Agenda packet — Yorba Linda City Council, July 19, 2022 (part 2 of 3)

OPENGOV SOFTWARE SERVICES AGREEMENT
Rev. 2018.01_210428NA
complete Customer’s responsibilities or adhere to a Customer schedule which were brought to the attention of the Customer on a timely basis, unless such delays result, directly or indirectly from the failure of OpenGov or its authorized independent contractors to perform the Professional Services in accordance with this Agreement or applicable SOW.

6.2 Consequences of Non-Payment. If Customer fails to make any payments required under any Order Form or SOW, then in addition to any other rights OpenGov may have under this Agreement or applicable law, (a) Customer will owe late interest penalty of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower and (b) If Customer’s account remains delinquent (with respect to payment of a valid invoice) for thirty (30) days after receipt of a delinquency notice from OpenGov, which may be provided via email to Customer’s designated billing contact, OpenGov may temporarily suspend Customer’s access to the Software Service for up to ninety (90) days to pursue good faith negotiations before pursuing termination in accordance with Section 7. Customer will continue to incur and owe all applicable Fees irrespective of any such Service suspension based on such Customer delinquency.

6.3 Taxes. All Fees under this Agreement are exclusive of any applicable sales, value-added, use or other taxes (“Sales Taxes”). Customer is solely responsible for any and all Sales Taxes, not including taxes based solely on OpenGov’s net income. If any Sales Taxes related to the Fees under this Agreement are found at any time to be payable, the amount may be billed by OpenGov to, and shall be paid by, Customer. If Customer fails to pay any Sales Taxes, then Customer will be liable for any related penalties or interest, and will indemnify OpenGov for any liability or expense incurred in connection with such Sales Taxes. In the event Customer or the transactions contemplated by the Agreement are exempt from Sales Taxes, Customer agrees to provide OpenGov, as evidence of such tax exempt status, proper exemption certificates or other documentation acceptable to OpenGov.

7. TERM & TERMINATION

7.1 Term. Subject to compliance with all terms and conditions, the term of this Agreement shall commence on the Effective Date and shall continue until the Subscription End Date specified on the Order Form (the “Initial Term”) unless sooner terminated pursuant to Section 7.3 below.

7.2 Renewal. This Agreement shall terminate at the end of the Initial Term unless the Customer notifies OpenGov of its intent to renew this Agreement in writing no less than thirty (30) days before the end of the Initial Term for another period mutually agreed upon between the parties (the “Renewal Term” and together with the Initial Term, the “Term”).

7.3 Termination. Neither party shall have the right to terminate this Agreement without a legally valid cause. If either party materially breaches any term of this Agreement and fails to cure such breach within thirty (30) days after notice by the non-breaching party (ten (10) days in the case of non-payment), the non-breaching party may terminate this Agreement. Additionally, the Customer may terminate this Agreement, upon providing at least ninety (90) days’ notice in the event the Customer does not appropriate necessary funding to support continued performance under this Agreement, with no further liability of any kind to OpenGov. The Customer agrees not to use termination for non-appropriation as a substitute for termination for convenience. The Customer represents and warrants it has appropriated the funds for the first year of this Agreement.

7.4 Effect of Termination.
(a) In General. Upon termination pursuant to Section 7.3 or expiration of this Agreement pursuant to Section

7.1: (a) Customer shall pay in full for all Software Services and Professional Services performed up to and including the effective date of termination or expiration, (b) all Software Services provided to Customer hereunder shall immediately terminate; and (c) each party shall return to the other party or, at the other party’s option, destroy all Confidential Information of the other party in its possession. (b) Deletion of Customer Data. Unless otherwise requested pursuant to this Section 7.4(b), upon the expiration or termination of this Agreement the Customer Data, excluding any Insights, shall be deleted pursuant to OpenGov’s standard data deletion and retention practices. Upon written request, Customer may request deletion of Customer Data, excluding any Insights, prior to the date of termination or expiration of this Agreement. Such

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OPENGOV SOFTWARE SERVICES AGREEMENT
Rev. 2018.01_210428NA
request must be addressed to “OpenGov Vice President, Customer Success” at OpenGov’s address for notice described at Section 10.

7.5 Survival. The following sections of this Agreement shall survive termination: Section 5 (Confidentiality), Section 6 (Payment of Fees), Section 7.4(b) (Deletion of Customer Data), Section 8.3 (Warranty Disclaimer), Section 9 (Limitation of Liability) and Section 10 (Miscellaneous).

8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

8.1 By OpenGov.
(a) General Warranty. OpenGov represents and warrants that: (i) it has all right and authority necessary to enter into and perform this Agreement; and (ii) the Professional Services, if any, will be performed in a professional and workmanlike manner in accordance with the related statement of work and generally prevailing industry standards. For any breach of the Professional Services warranty, Customer’s exclusive remedy and OpenGov’s entire liability will be the re-performance of the applicable services. If OpenGov is unable to re-perform all such work as warranted, Customer will be entitled to recover all fees paid to OpenGov for the deficient work. Customer must make any claim under the foregoing warranty to OpenGov in writing within ninety (90) days of performance of such work in order to receive such warranty remedies.
(b) Software Services Warranty. OpenGov further represents and warrants that for a period of ninety (90) days, the Software Services will perform in all material respects in accordance with the Documentation. The foregoing warranty does not apply to any Software Services that have been used in a manner other than as set forth in the Documentation and authorized under this Agreement. OpenGov does not warrant that the Software Services will be uninterrupted or error-free. Any claim submitted under this Section 8.1(b) must be submitted in writing to OpenGov during the Term. OpenGov’s entire liability for any breach of the foregoing warranty is to repair or replace any nonconforming Software Services so that the affected portion of the Software Services operates as warranted or, if OpenGov is unable to do so, terminate the license for such Software Services and refund the prepaid, unused portion of the Fee for such Software Services.

8.2 By Customer. Customer represents and warrants that (i) it has all right and authority necessary to enter into and perform this Agreement; (ii) OpenGov’s use of the Customer Data pursuant to this Agreement will not infringe, violate or misappropriate the Intellectual Property Rights of any third party, and (iii) The Customer represents and warrants it has appropriated the funds for the first year of this Agreement.

8.3 Disclaimer. OPENGOV DOES NOT WARRANT THAT THE SOFTWARE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE SERVICES. EXCEPT AS SET FORTH IN THIS SECTION 8, THE SOFTWARE SERVICES ARE PROVIDED “AS IS” AND OPENGOV DISCLAIMS ALL OTHER

WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

9. LIMITATION OF LIABILITY

9.1 By Type. NEITHER PARTY, NOR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES,

CONTRACTORS OR EMPLOYEES, SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT

MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY MATTER BEYOND SUCH PARTY’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

9.2 By Amount. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE, CUMULATIVE LIABILITY FOR ANY

CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY

CUSTOMER TO OPENGOV (OR, IN THE CASE OF CUSTOMER, PAYABLE) FOR THE SOFTWARE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.

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OPENGOV SOFTWARE SERVICES AGREEMENT
Rev. 2018.01_210428NA

9.3 Limitation of Liability Exclusions. The limitations of liability set forth in Sections 9.1 and 9.2 above do not apply to, and each party accepts liability to the other for: (a) claims based on either party’s intentional breach of its obligations set forth in Section 5 (Confidentiality), (b) claims arising out of fraud or willful misconduct by either party and (c) either party’s unauthorized use, distribution, or disclosure of the other party’s intellectual property.

9.4 No Limitation of Liability by Law. Because some jurisdictions do not allow liability or damages to be limited to the extent set forth above, some of the above limitations may not apply to Customer.

10. MISCELLANEOUS

10.1 Logo Use. OpenGov shall have the right to use and display Customer’s logos and trade names for marketing and promotional purposes in connection with OpenGov’s website and marketing materials, subject to Customer’s trademark usage guidelines provided to OpenGov.

10.2 Notice. Ordinary day-to-day operational communications may be conducted by email, live chat or telephone communications. However, for notices, including legal notices, required by the Agreement (in Sections where the word “notice” appears) the parties must communicate more formally in a writing given by personal delivery, by prepaid first-class mail or by overnight courier to the address specified in the most recent Order Form (or such other address as may be specified in writing in accordance with this Section).

10.3 Anti-corruption. OpenGov has not offered or provided any bribe, kickback, illegal or improper payment, gift, or thing of value to any Customer personnel in connection with the Agreement, other than reasonable gifts and entertainment provided Customer in the ordinary course of business. If OpenGov become aware of any violation of the above restriction then OpenGov shall promptly notify Customer.

10.4 Injunctive Relief. The parties acknowledge that any breach of the confidentiality provisions or the unauthorized use of a party’s intellectual property may result in serious and irreparable injury to the aggrieved party for which damages may not adequately compensate the aggrieved party. The parties agree, therefore, that, in addition to any other remedy that the aggrieved party may have, it shall be entitled to seek equitable injunctive relief without being required to post a bond or other surety or to prove either actual damages or that damages would be an inadequate remedy.

10.5 Force Majeure. Neither party shall be held responsible or liable for any losses arising out of any delay or failure in performance of any part of this Agreement, other than payment obligations, due to any act of god, act of governmental authority, or due to war, riot, labor difficulty, failure of performance by any third-party service, utilities, or equipment provider, or any other cause beyond the reasonable control of the party delayed or prevented from performing.

10.6 Severability; Waiver. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any express waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non-enforcement. There are no third-party beneficiaries to this Agreement.

10.7 Assignment. Except as set forth in this Section, neither party shall assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations to a third party without the other party's prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. Either party may assign, without such consent but upon written notice, its rights and obligations under this Agreement to: (i) its corporate affiliate; or (ii) any entity that acquires all or substantially all of its capital stock or its assets related to this Agreement, through purchase, merger, consolidation, or otherwise. Any other attempted assignment shall be void. This Agreement shall inure to the benefit of and bind each party’s permitted assigns and successors.

10.8 Independent Contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect.

10.9 Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

10.10 Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Exclusive jurisdiction for litigation of any dispute, controversy or

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OPENGOV SOFTWARE SERVICES AGREEMENT
Rev. 2018.01_210428NA
claim arising out of or in connection with this Agreement shall be only in the Federal or State court with competent jurisdiction located in Orange County, California, and the parties hereby submit to the personal jurisdiction and venue therein.

10.11 Complete Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party. [SIGNATURE PAGE TO FOLLOW]

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OPENGOV SOFTWARE SERVICES AGREEMENT
Rev. 2018.01_210428NA
Signatures
Customer: ____________________ OPENGOV, INC.

Signature: Signature:

Name: Name:

Title: Title:

Date: Date:
[SIGNATURE PAGE TO OPENGOV SOFTWARE SERVICES AGREEMENT]

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PUBLIC WORKS DEPARTMENT
DATE: JULY 19, 2022
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: JAMIE LAI, P.E., DIRECTOR OF PUBLIC WORKS / CITY ENGINEER PREPARED BY: REGINA HU, P.E., PRINCIPAL CIVIL ENGINEER
SUBJECT: APPROVAL OF NON-EXCLUSIVE EASEMENT TO SOUTHERN

CALIFORNIA GAS COMPANY FOR NATURAL GAS PURPOSES (LINE
2000 FAULT ISOLATION BREA PROJECT) AT VALLEY VIEW CIRCLE

AND LAVENDER DRIVE

RECOMMENDATION
It is recommended that City Council grant a permanent, non-exclusive easement to Southern California Gas Company for natural gas facility purposes located within Tract 16045, APN 322-291-47 and 322-291-48 per R/W Easement Agreement No. 266550, at the intersection of Valley View Circle and Lavender Drive.

BACKGROUND
On July 18, 2001, the City accepted Lots E and F in fee on Tract Map 16045 for landscape maintenance purposes, as part of the Vista del Verde, Village II Improvements. The lots currently serve an equestrian trail, sloped landscape area with some utility infrastructure, and a 10-foot-wide easement for Southern California Gas Company (SoCalGas) pipeline.

Due to the proximity of their pipeline and easement, SoCalGas has selected this site to install an automated mainline valve along their Line 2000.

California Public Utility Commission (CPUC) directed all-natural gas transmission pipeline operators to implement a plan to install automated or remote-controlled shut-off valves in accordance with Decision D.11-06-017. As a result, SoCalGas developed a plan to enhance system safety by augmenting existing valve infrastructure to accelerate their ability to identify, isolate, and contain escaping gas in the event of a pipeline rupture.

The proposed 120 feet by 100 feet easement area will house a 30-inch ball valve and actuator in a below ground vault. The above ground installation includes various ancillary equipment to remotely control and provide power to the system along with a low-profile antenna. These facilities will be screened with appropriate and additional landscaping.

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A P P R O V A L O F N O N - E X C L U S I V E E A S E M E N T T O S O U T H E R N

C A L I F O R N I A G A S C O M P A N Y F O R N A T U R A L G A S P U R P O S E S ( L I N E 2 0 0 0 F A U L T I S O L A T I O N B R E A P R O J E C T ) A T V A L L E Y V I E W

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DISCUSSION
On September 15, 2021, Planning Commission found the proposed easement (Attachment 2) for public utility use to be in conformance with the Yorba Linda General Plan, as required by State Government Code Section No. 65402 (see Attachment 5). A public service easement is defined as an easement for a number of public purposes other than streets or highways and includes easements for utilities (natural gas) pursuant to Streets and Highway Code section 8333.

The easements are currently reserved for landscape maintenance purposes by the City’s Landscaping Maintenance Assessment District (LMAD) under Tract 16045. Granting a nonexclusive easement to SoCalGas will not have a negative impact to the City’s use or maintenance ability.

As part of the project, SoCalGas is committed to maintaining the aesthetics of the site and providing public outreach to inform residents and nearby neighborhood of the project.

SoCalGas will replace and beautify the surroundings with a short turf stone wall and a new landscaping palette (designed in conjunction with City input). The site restoration plan and renderings are included in Attachment 1 “Project Summary”.

The easement agreement (Attachment 3) does stipulate language regarding operations, maintenance, access as well as there shall be no ambient noise coming from this location.

The easement agreement ensures Southern California Gas Company complies with Yorba Linda Municipal Code (YLMC) thresholds for any public environmental impacts or nuisances, including but not limited to noise, smell, and vibrations.

Other site locations were studied but deemed infeasible due to constructability issues, environmental impacts, right of way, or other impacts and private restoration to adjacent residents. These alternative sites include Chino Hills State Park, Valley View Circle and Red Pine Road, and Valley View Circle and Gardenia Lane.

FISCAL IMPACT
There is no direct fiscal impact for the proposed recommendation. Landscape within public right-of-way will continue to be maintained by Landscape Maintenance Assessment District, and funded via Local Landscape Zone L5-A.

ALTERNATIVES
Do not accept staff recommendation and do not grant non-exclusive easement for natural gas facilities at specified location. This alternative will force SoCalGas to redesign facilities at alternative locations with greater impacts to public and residential neighborhoods (i.e. cutting off residential/equestrian access, construction of substantial retaining walls adjacent to homes). This redesign will jeopardize SoCalGas’ schedule to comply with California Public Utility Commission (CPUC) Decision No. D.11-06-017.

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A P P R O V A L O F N O N - E X C L U S I V E E A S E M E N T T O S O U T H E R N

C A L I F O R N I A G A S C O M P A N Y F O R N A T U R A L G A S P U R P O S E S ( L I N E 2 0 0 0 F A U L T I S O L A T I O N B R E A P R O J E C T ) A T V A L L E Y V I E W

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ATTACHMENTS
Attachment 1: Vicinity Map & Project Summary (prepared by SoCalGas) Attachment 2: Permanent Non-exclusive & Temporary Construction Easement Exhibit Attachment 3: Grant of Easement Agreement
Attachment 4: Plat & Legal Description
Attachment 5: Government Code 65402 Finding (Resolution 5457 by Planning Commission)

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Project Summary for the SoCalGas Line 2000 Fault Isolation Brea Project, Yorba Linda, CA Overview
This proposed Project Line 2000 valve automation is part of SoCalGas’ Pipeline Safety Enhancement Plan (PSEP) that was created as required by the California Public Utility Commission (CPUC) Decision Determining Maximum Allowable Operating Pressure Methodology and Requiring Filing of Natural Gas Transmission Pipeline Replacement or Testing Implementation Plans (Decision, or D.11‐06‐017). In the Decision, the Commission “orders all California natural gas transmission operators to develop and file for Commission consideration A Natural Gas Transmission Pipeline Comprehensive Pressure Testing Implementation Plan (Implementation Plan).” The Commission directed pipeline operators to address the installation of “automated or remote‐controlled shut‐off valves” in their proposed implementation plans. In response to this directive, SoCalGas submitted a Valve Enhancement Plan as part of their PSEP.

The Valve Enhancement Plan works in concert with PSEP’s pipeline testing and replacement plan to enhance system safety by augmenting existing valve infrastructure to accelerate SoCalGas ability identify, isolate, and contain escaping gas in the event of a pipeline rupture.

Project Location and Description
The Project is located at the intersection of Lavender Drive and Valley View Circle in Yorba Linda, Orange County, California. The Project would occur on two, contiguously located parcels located at the southeast intersection of Lavender Drive and Valley View Circle in Yorba Linda, Orange County, California (Assessor Parcel Number [APN]: 322‐291‐48 and 322‐291‐47). The properties currently include no buildings. Existing features include a paved path and small‐scale utility‐related infrastructure.

The Project would involve the installation of an automated mainline valve on SoCalGas’ Line 2000 at the intersection of Lavender Road and Valley View Circle. Automating the mainline valve would require the installation of a 30‐inch ball valve, actuator in vault, line break panel, SCADA panel, electric meter panel, and low‐profile antenna. The Project includes one work area located at the northeast corner of Lavender Road and Valley View Circle that measures approximately 120 feet (ft.) by 100 ft. The project would include three (3) excavation areas with the following approximate measurements: 25 ft. by 20 ft.

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at a depth of 12 ft., 16 ft. by 8 ft. at a depth of 14 ft. and 20 ft. at a depth of 3 ft. The Project necessitates on a non‐exclusive easement from the city.

Project Background
In response to 2010 incident in San Bruno, California, SoCalGas has been directed to install new valves that operate automatically or via remote‐control in addition SoCalGas has committed to the California Public Utilities Commission (CPUC) to install new valves located within 5‐miles of near fault lines causing geological threats (exhibit A). This installation shall occur outside of The Metropolitan Water District of Southern California (MWD) property.

Exhibit A
Site Selection
In the site selection for the installation of this new valve Line 2000 automation project, SoCalGas explored and made extensive efforts for this site to take place within The Chino Hills State Park.

However, since The Chino Hills State Park is home to endangered species The State of California would not allow the land access needed for this scope of work. The State of California therefore asked to locate the Project site outside of the state park.

SoCalGas then identified three (3) locations within 5‐miles of the near fault line that was outside of the

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water district and The Chino Hills State Park properties in Yorba Linda. The three (3) locations, Valley View Circle/ Lavender Drive, Valley View Circle/ Red Pine Road and Gardenia Lane (exhibit B) were presented to the City of Yorba Linda on February 13, 2020, for consideration.

Through detailed site and envrionmental analysis it was discovered that Valley View Circle/ Red Pine Road had constructability concerns, as the grade was too step to safely execute construction.

It was determined that the project site considered at Gardenia Lane would be the greatest residential disturbance and impact, therefore not an option.

Although all three locations were near residents, the Valley View Circle/ Lavender Drive was preferred as it offered the least amount of residential disturbance and selected for the project location.

Exhibit B
Site Restoration
In coordination with The City of Yorba Linda, SoCalGas will be replacing and installing new landscaping to beautify the project site and its surroundings (exhibit C and D). Site beautification will consist of replacing the existing grass and low‐profile shrubs with a low‐maintenance ground covering, California‐ native plants, and other plants of different heights and colors (exhibit E) to reduce any visible footprint of SoCalGas’ equipment and to complement the surrounding landscaping. Additionally, SoCalGas will install an approximate 4 ft. retaining wall, which is to be located behind the SoCalGas equipment, that runs parallel to Valley View Circle. The retaining wall is required for SoCalGas maintenance and vehicular accessibility purposes. The retaining wall is to be constructed using Turf Stone as

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recommended by The City of Yorba Linda. This stone will provide an improved aesthetic to the corner of Valley View Circle and Lavender Drive.

Community Outreach
SoCalGas is committed to maintaining the infrastructure needed to provide its customers with safest and most reliable energy services. Although the work required to maintain and upgrade gas pipelines are sometimes located near residents, extensive measures are taken to ensure little‐to‐no interruption and/or inconvenience. It is expected to have some heavy equipment within the work area and construction noise from the equipment and crews. SoCalGas’ Outreach Department is committed to create a positive customer experience by informing residents, canvassing in nearby and affected areas, and work closely with the CBO’s, HOAs and Neighborhood Councils.

Project Notification
SoCalGas will mail pre‐construction notification to the Residents along Lavender Drive, Gardenia Lane, Jasmine Way, Primrose Lane, and any other residents within 500 ft. radius (exhibit F) two (2) weeks prior to the start of construction.

Exhibit F

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An example of what is to be sent to the residents attached as Exhibit G.

In addition to the Community Education and Outreach Project Manager contact information, SoCalGas will provide a Project Line Information phone number to address any of the resident’s questions or concerns.

Construction Schedule
The duration for the work as listed in Project Location and Description is projected to take 41‐days to complete the mechanical work, and 16‐days to complete the electrical work, for a total of 57‐working days not accounting for delays due to severe weather. Working days are based on a Monday through Friday, 8‐hour day work schedule, omitting federally observed holidays. Construction would commence on October 21, 2021.

Attachments
‐ Exhibit C – Photo Simulation Valley View Circle
‐ Exhibit D – Photo Simulation Lavender Drive
‐ Exhibit E – SoCalGas Lavender Renovations Proposed Planting Notes ‐ Exhibit G ‐ Line 2000 Valve Automation Project Outreach Notification Sample Letter

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Exhibit C
Photo Simulation Valley View Circle

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Photo Simulation
Applicant
Valley View Circle & Lavender Drive
Consultant
PHOTOSIM (REV. 8/19/21)
Proposed View
Existing View
Location Map GPS Coordinates: 33.913835, -117.829957

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Exhibit D
Photo Simulation Lavender Drive

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Photo Simulation
Applicant
Valley View Circle & Lavender Drive
Consultant
PHOTOSIM (REV. 8/19/21)
Proposed View
Existing View
Location Map GPS Coordinates: 33.913835, -117.829957

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Exhibit E
SoCalGas Lavender Renovations Proposed Planting Notes

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Images provided are meant as a basic representation of what we intend to suggest. Plant material colorations, bloom periods, size and type may change depending upon availability, time of season, and final design layout.

Rev. 2021-07-20
CITY of YORBA LINDA
Socal Gas Lavender Renovations
Existing Irrigation Area

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Rev. 2021-07-20
CITY of YORBA LINDA
Socal Gas Lavender Renovations
Proposed Planting Concept Plan
Leucophyllum ‘Texas Ranger’
Arbutus/Chilopsis
Pyracantha ‘Graeberii’ Heteromeles arbutifolia Lantana ‘New Gold’ Bougainvillea ‘La Jolla’
Carissa/Dianella Lomandra ‘Breeze’
Lavatera bipinatta

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Rev. 2021-07-20
CITY of YORBA LINDA
Socal Gas Lavender Renovations
Proposed Planting Notes
Notes:
- Utility clearances to be determined in the field. Construct Decomposed Granite pads with steel edging for access. - All plants to be installed per City details and specifications. - Irrigation to be converted to waterwise point-source emission per City approval.

Preliminary Plant Palette - subject to availability and changes in design requirements Lower slope:
15 - 36” box Arbutus ‘Marina’ multi-trunk form
15 - 36” box Chilopsis ‘Lucretia Hamilton’
50 - 5g Leucophyllum ‘Texas Ranger’
50 - 5g Pyracantha ‘Graeberii’
150 - 5g Lantana ‘New Gold’
50 - 15g Heteromeles arbutifolia
100 - 5g Bougainvillea ‘La Jolla’
80 - 5g Lomandra ‘Breeze’
125 - 1g Carissa ‘Emerald Carpet’
100 - 1g Dianella variegata
Upper slope:
50 - 15g Lavatera bipinata
75 - 5g Pyracantha ‘Graeberi’
100 - 5g Lantana ‘New Gold’
150 - 5g Leucophyllum ‘Texas Ranger’

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Exhibit G
Line 2000 Valve Automation project outreach notification sample letter

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L1013 MP – Brea Station
Current Occupant
[Address]
[City], CA, [ZIP]
August 11, 2021 Learn more at
SoCalGas.com/ConstructionProjects
Dear Neighbor,
We understand this is a challenging time for us all. Rest assured; your natural gas service will still be there for your community. SoCalGas continues to perform work needed to maintain our infrastructure so we can continue to provide you with safe and reliable energy services.

Natural gas is critical to providing an affordable and reliable energy source for heating and cooking to homes and businesses. We will be in your neighborhood soon to work on a section of our natural gas pipelines. We are dedicated to maintaining the safety and integrity of our natural gas system.

Estimated start date: August 23, 2021
Duration of work: Approximately 6 weeks (permitting weather and other factors) Work hours: Monday through Friday, 7 a.m. – 3:30 p.m.

Work area: SoCalGas Facility along Birch Street
What to expect
Trucks and heavy equipment will be in the area
Construction noise from equipment and crews
Excavation and pipeline work will be conducted in sections Your natural gas service should continue without interruption. If that changes, a SoCalGas representative will notify you.

Sincerely,
Aaron Ortiz
Outreach Project Manager
714-397-9054
[email protected]
We believe every Californian
deserves a clean, affordable,
& reliable energy future.

That’s why we’re building
the cleanest, safest,
most innovative energy
company in America.

Investment in system
safety & reliability
enhancements planned for
2020 — 2024
To learn more about our
Clean Energy projects, visit
SoCalGas.com/Clean-Energy

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STOP

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n SoCalGas
Qrr^oruEnergy A utitity

VIA FEDEX
I[day 25,2022
City Hall
Attn: Regina Hu
4845 Casa Loma Avenue
Yorba Linda, CA 92886
RE: SoCalGas V-L2000 Fault Isolation Project Easement
Dear Regina Hu
Enclosed please find the signed Grant of for SoCalGas' value project.

Thank you
ç.

California Gas

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Recording Requested by and
when recorded mailto:

Southem California Gas Company
8101 Rosemead Blvd., SC722K
Pico Rivera, California 90660-5 I 00
Attn.: Land &Rightof Way
Atlas #:

APN:
oc709-4
322-291-47 snd 322-291 -48
DocurueNt¡nv Tn¡¡rsnnn T¡x $
Computed on full value of property conveyed
Computed on full value less liens and encumbrances
remaining at time of sale
Southern California Gas Company

GRANT OF EASEMENT
FOR VALUABLE CONSIDERATION, City of Yorba Linda, ("Grantor"), hereby grants to Southern California Gas Company, a California corporation, its successors and assigns ("Grantee"): a permanent, non-exclusive easement ("Easement") to excavate foq, lay, construct, ieconstruct,'relocate, reconfigure, use, inspect, maintain, operate, repair, replace, pafrol, changg the size of, add to, or remove from time to time, ai Grantee deems necessary, underground pipelines and pileline valve automation equipment containing above ground electrical and telecommunication controls for the valve automation, line-break controls, ãnd an electric meter panel together with a new antenna pole and satellite receiver (all hereinafter referred to as the "Facilities") for the transportation of natural gas, ovet, under, through, aiong, and for all other purposes connected therewith, and together with the reasonable right ôf ingrõsé and ðgress to and from the Easement to access the Facilities, the strþ_of land located in thé City ofYorba Linäa, California, desøibed in Exhibit "A" and depicted in Exhibit "B" attached hereto, and made apart of this agreement (ooEasement Area").

Grantor, for its heirs, successors and assigns, agrees that the Easement Area shall be kept free of treevdeep rooted shrubs, buildings and structurei of all kinds (except for Grantee's Facilities and Grantor's existing landscaping), and that nothing shall be done that unreasonably interferes with Grantee's use of the Easemenf Area. Grantee shall have the right, but not the duty, to trim or remove trees, brush, roots or material from the Easement Area whenever Grantee deems ìt necessary, subject to prior approval from City Engineero except in the case of_an emerg€ngy. Said right shall not relieve Grantoi of the duty as ownerlo trim or rèmove trees, brush or material to prevent danger or hazard to property or persons.

Except as set forth above, Grantor reserves the right to (l) use any surface or subsurface areas, proviãed such use does not unreasonably or substantially interfere with Grantee's use of the Easement Àrea; and (2) improve the Easement Area surface with landscaping, paved driveways, PQrking surfaces, sidewalks, òurbs ãnd gutters. In additiono Grantor and Grantee must comply with DigAlert notification requirements when applicable pursuant to Government Code Section 4216 et seq.

R.W. No: 272022
9382129.v1 Page 328 of 474
R.W. No: 272022
This Grant of Easement shall be binding upon and inure to the benefit of successors, heirs, and assigns of Grantor and Grantee.

Grantee shall not under normal operating conditions allow its use of the easement to create any noise that violates the City's noise ordinancé, as governed by the Yorba Linda Municipal Code.

Grantee's use of the Easement and all pipeline facilities, under normal operating conditions, shall not emit any noise, smell, vibrations or othei public environmental impacts or nuisance that violate the requirements contained within the Yorba Linda Municipal Code, as may be amended from time to time, or
-otherwise established. Any breach thereof caused by Grantee shall be remedied at the sole expense of Grantee.

Grantee shall repair any damage to Grantor properfy, including but not limited to, .landscaping, sidewalks, curb and gutters, driveways, catch basins, storm drains, fencing, trail facilities, or other property resulting or
-due from Grantee's operations or maintenance of the Facilities or use of the Easement.

IN WITNESS WHEREOF, these presents are hereby signed this -
day of
GRANTOR: City of Yorba Linda
By
Print Name
GRANTEE: Southern California Gas Company' a California corporation By
2022.
6'Á^l Print
9382129.v1 Page 329 of 474

ALL-PT'RPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA
Los Angeles

COTINTY OF
on Yln t l.Ç .zo-Ø before me, .Iessica Roy a
Notary Poùüc, personally appeared C]'nthiaMayraMunoz , who proved to me on the basis of satisfactory evidence to be the person$ whose name$) is/ã&(subscribed to the within instrument and acknowledged to me that /sheithQ( executed the same in his/her/their authorized capacity(æÐ, and that by hßfteriüGk signatureQ$ on the instrument the personfi), or the entity upon behalf of which the person(S acted, executed the instrument.

I certiff under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.
(Seal) ct{AyEz-RoY
No. 22g7g7g
Ì
)ss Ì
eJESSICA
Commission
1{OTAÊY
lo8
PUBUC-cALtFoRf{tA
^f{cEtEs
Signature cot tfY
Commission
Commission
2287979 2023

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ALL-PURPOSE ACKNOWTEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA

COUNTY OF
On
)
)
)
2022,before me , a Notary Public in and for said
State, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacþ(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under thç laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and ofücial seal.

Signature (sEAL)
9382129.v1 Page 331 of 474
EXHIBIT *A'
Legal Description for Gas Easement
Portions of Lots E and F of Tract No. 16045, in the City of Yorba Linda, County of Orange, State of Califomia, as shown on a map recorded in Book 821, pages 1 through 12, inclusive, of Maps, records of said county, described as follows:

COMMENCING at a two inch iron pipe with brass disc stamped *LS 6654", said point being the most westerly corner of said Lot E and the northeast corner of Valley View Circle and Lavender Drive as shown on sheet 5 of said Tract No. 16045, said point being the beginning of a curve, concave northwesterly, with a radius of 378.00 feet and a central angle of 48o 05' 19", said curve also being the southeasterly right-of-way of said Lavender Drive, thence northeasterly along said curve, having a radial bearing of S 55o l8' 37" E, through a central angle of 3o26' 58", an arc length of

22.76 feetto the POINT OF BEGINNING; Thence continuing northeasterly along said 378.00 foot radius curve, through a central angle of 5o 59' 37", an arc length of39.54 feet; Thence leaving said right of way, N 82o 39' 05" E, 3.60 feet; Thence S 15o 12' 56" E, 56.00 feet; Thence S73o 27' 17" W, 12J1 feet; Thence S 34o 54' 50" W, 19.97 feet; Thence S 50"12'38 8,2.57 feet; Thence S 2"08'01" 8,8.62 feet to a point on the northeasterly right-of-way of Valley View Circle; Thence northwesterly along said northeasterly right-oÊway, through a curve concave southwesterly with a radius of 595.00 feet, having a radial bearing of N 44o 13' 17" E, through a central angle of 1o i0' 06", an arc length of 12.13 feet; Thence leaving said northeasterly right-oÊway of Valley View Circle, N 34o25'33" 8,27.09 feet; Thence N 10o27'02" W, 4.39 feet; Thence S 79"32'08" W, 20.48 feet; Thence N 10"27'52" W, 14.84 feet to the POINT OF BEGINNING.

CONTAINING 1,357 square feet, more or less.

EXHIBIT "8" depicting this easement is attached hereto and made apart hereof. l0l4l2l
Amanda LS 9576 License Expires: 6-30-22

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UNE DATA TA8I.E CURVE DATA TABLE
Cl: R= 378.00' D= T26'58" L= 22.76'
C2: R= 376.00' D= T59'57' L= 39.54'
C3: R= 595.00' D= 1'10'06" L= 12.13'
Ll: N8239'05"E 3.60'
L2: S5o'12'38'E 2.57'
lJ: S?08'01"E 8.62'
L4: N34'25'33"E 27.09'
L5: N10'27'02L 4.39'
Lô: S79'32'08"\il 20.48'
L7: N10'27'52\ 1+.84'
TRACT No. 16045
M*8. 82L/1-L2
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POC s73.27'17\w 12.71'
s55'18' J
s3¡1.'54'50'W 19.97'
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1" =20'
.N]ß PLAT WAS PREPARED BY UE OR UNÐER UY
ÐRECNON IN CONFORMANCE WTH THE PROFESSIONAL
UND SURWYORS' ACT ON JANUARY 25, 2021.

FOUND 2" IRON PIPE
. WITH DISC STAMPED
"LS 6654" PER TM
1 6045
10/u21 tl RECORD DATA FROM
TRACT MAP 16046
AMANDA RENEE JONES L.S. 9576

EXHIBIT '' B''
No. 9576
tp.6-þ2û2

SHTIOFI
uüiNAt(It: (x l0 tftstAtl-: PROJECT NO. Southern Colifornio Gos Compony SJRVEIE} BY: R/Tr ffi:
uflAtÍ{ ËY: DAlE:

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scÂt.E 7.=2t
DRAWNG NO.

L-2000
FAULT ISOTI\TION VAL1IE BREA

ORANGE COUNTY CALIFORNIA
N: EXHIBIT.DWG

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N:\226818-0000425-16\Survey\Office Data\20210923-L2000 DRAFT Legal.doc EXHIBIT “A”
Legal Description for Gas Easement
Portions of Lots E and F of Tract No. 16045, in the City of Yorba Linda, County of Orange, State of California, as shown on a map recorded in Book 821, pages 1 through 12, inclusive, of Maps, records of said county, described as follows:

COMMENCING at a two inch iron pipe with brass disc stamped “LS 6654”, said point being the most westerly corner of said Lot E and the northeast corner of Valley View Circle and Lavender Drive as shown on sheet 5 of said Tract No. 16045, said point being the beginning of a curve, concave northwesterly, with a radius of 378.00 feet and a central angle of 48o 05’19”, said curve also being the southeasterly right-of-way of said Lavender Drive, thence northeasterly along said curve, having a radial bearing of S 55o 18’ 37” E, through a central angle of 3o 26’ 58”, an arc length of

22.76 feet to the POINT OF BEGINNING; Thence continuing northeasterly along said 378.00 foot radius curve, through a central angle of 5o 59’ 37”, an arc length of 39.54 feet; Thence leaving said right of way, N 82o 39’ 05” E, 3.60 feet; Thence S 15o 12’ 56” E, 56.00 feet; Thence S 73o 27’ 17” W, 12.71 feet; Thence S 34o 54’ 50” W, 19.97 feet; Thence S 50°12'38" E, 2.57 feet; Thence S 2°08'01" E, 8.62 feet to a point on the northeasterly right-of-way of Valley View Circle; Thence northwesterly along said northeasterly right-of-way, through a curve concave southwesterly with a radius of 595.00 feet, having a radial bearing of N 44o 13’ 11” E, through a central angle of 1o 10’
06”, an arc length of 12.13 feet; Thence leaving said northeasterly right-of-way of Valley View Circle, N 34°25'33" E, 27.09 feet; Thence N 10°27'02" W, 4.39 feet; Thence S 79°32'08" W, 20.48 feet; Thence N 10°27'52" W, 14.84 feet to the POINT OF BEGINNING.

CONTAINING 1,357 square feet, more or less.

EXHIBIT “B” depicting this easement is attached hereto and made a part hereof. ____________________________________________
Amanda Renee Jones, LS 9576 License Expires: 6-30-22
10/4/21

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PUBLIC WORKS DEPARTMENT
DATE: JULY 19, 2022
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: JAMIE LAI, P.E., DIRECTOR OF PUBLIC WORKS/CITY ENGINEER PREPARED BY: FREDY CASTILLO, ASSISTANT ENGINEER
SUBJECT: AWARD OF A PUBLIC WORKS CONSTRUCTION CONTRACT FOR THE FISCAL YEAR 2021-22 ANNUAL PAVEMENT PRESERVATION PROJECT (ZONE 6) TO ONYX PAVING COMPANY, INC. AND APPROVE

PROFESSIONAL SERVICES CONTRACT WITH INTERWEST FOR

CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES

RECOMMENDATION
It is recommended that the City Council:

1. Approve the plans and specifications for the Fiscal Year 2021-22 Annual Pavement Preservation Project (APPP) (Zone 6); and

2. Find that the Project is categorically exempt from the California Environmental Quality Act (CEQA), Class 1, pursuant to CEQA Guidelines, Section 15301; and

3. Award the public works construction contract to Onyx Paving Company, Inc. for the Fiscal Year 2021-22 APPP (Zone 6) in the amount of $5,164,530 and reject all other bids; and

4. Approve a Professional Services Contract with Interwest in the amount of $157,200 to provide Construction Management and Inspection Services: and

5. It is also recommended that the City Council authorize expenditures of up to $535,958.00 (10% of the value of the agreements) in total contract contingencies for potential additional services and unanticipated work that may arise during the course of work.

BACKGROUND
The City utilizes a Pavement Management Program (PMP) that allows for the planning and programming of street maintenance strategies throughout the City’s roadway network. As a result of implementing the PMP, through ongoing investment in the City’s roadway network, the overall street condition has been maintained in good condition. The PMP is

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A W A R D O F A P U B L I C W O R K S C O N S T R U C T I O N C O N T R A C T F O R T H E F I S C A L Y E A R 2 0 2 1 - 2 2 A N N U A L P A V E M E N T P R E S E R V A T I O N P R O J E C T ( Z O N E 6 ) T O O N Y X P A V I N G C O M P A N Y , I N C . A N D

A P P R O V E P R O F E S S I O N A L S E R V I C E S C O N T R A C T W I T H

I N T E R W E S T F O R C O N S T R U C T I O N M A N A G E M E N T A N D I N S P E C T I O N

S E R V I C E S
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updated on a biennial basis through efforts that include field inspections on each street to determine the best and most efficient maintenance strategy for long-term asphalt preservation.

The City is divided into seven (7) maintenance zones and pavement maintenance/preservation treatments are implemented for one (1) zone per year. The area originally scheduled to receive treatment for Fiscal Year 2021-2022 included all of Maintenance Zone 6. Plans and specs were originally packaged for this area and were advertised in April. Bids were originally opened on May 19th but due to a number of factors, including recent spikes in material and labor costs, bids came in significantly higher than anticipated. At the June 7, 2022 meeting the City Council rejected all bids and authorized staff to repackage the plans and specifications with modifications to the treatment area and treatment types to create an opportunity for value engineering. The repackaged treatment area defers the Travis Ranch school area and Esperanza Road improvements to better synchronize with the summer school break and anticipated utility work in the area (See Attachment 1). The modified treatment type allows for a more cost-effective approach in roadway re-surfacing while still maintaining the quality and longevity of the maintenance effort.

DISCUSSION
Approval of Plans and Specifications
The contract documents, including the plans, specifications and the bid proposal from Onyx Paving Company, Inc., are on file with the City Clerk. The contract portion of the bid documents is included as Attachment 2. It is recommended that the City Council approve the plans and specifications for the Project.

Bid Analysis
Plans and specifications were re-advertised for bids on June 16th and June 23rd, 2022.

Formal bidding procedures have been followed in conformance with the State Public Contract Code and the City of Yorba Linda Municipal Code. A total of four (4) bids were received and opened by the City Clerk’s office on July 7th, 2022, with the following results:

Table 1 – Bid Summary
Bidder Bid Amount
Onyx Paving Company, Inc. $4,884,000.00
All American Asphalt
The RJ Noble Company
Palp, Inc. DBA Excel Paving
$5,329,222.00
$5,396,337.00
$5,588,576.59

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A P P R O V E P R O F E S S I O N A L S E R V I C E S C O N T R A C T W I T H

I N T E R W E S T F O R C O N S T R U C T I O N M A N A G E M E N T A N D I N S P E C T I O N

S E R V I C E S
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Onyx Paving Company has successfully delivered similar projects with the City and with other public agencies, such as City of Arcadia and the City of Montebello. References were verified and positive comments were received regarding their quality of work and ability to stay within budget and on schedule. Based upon this information, staff is recommending the award of the public works construction contract to Onyx Paving Company.

Project Schedule
The following table indicates a preliminary project schedule:

Table 2: Preliminary Project Schedule
Notice of Award July 2022
Pre-Construction Meeting August 2022
Begin Construction/Notice to Proceed August 2022
Complete Construction January 2023
Notice of Completion January 2023
The project will have some traffic impacts to the neighborhood residents during construction.

Impacts are due to the temporary lane and street closures during the required construction time frame. The contractor shall schedule the order of work so that no travel lanes are closed before 8:30 A.M. or after 5:30 P.M. daily. The same number of travel lanes currently in use shall be opened to traffic and no street closures will occur during non-working hours.

Affected property owners will be notified via door hanger at least two days in advance of the work.

Consultant Construction Support
Staff relies on consultant services to provide construction management and inspection for the APPP. Several firms are available to the City based on the City’s on-call professional engineering contracts. Proposals were requested from four engineering consultants on the City’s on-call list. Two proposals were received and evaluated by Public Works Staff. Based on demonstrated experience, availability of resources, and ability to facilitate public relations between the contractor and the community, it was determined that Interwest would best meet the needs of the City. Interwest has extensive experience providing the City with construction management and inspection services for capital improvement projects. This experience has resulted in a strong working relationship with City staff and a team that is thoroughly familiar with the City’s needs as well as its standards and administrative procedures. Staff is recommending the approval of a Professional Service Contract with Interwest in the amount of $157,200 to provide Construction Management and Inspection services.

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A P P R O V E P R O F E S S I O N A L S E R V I C E S C O N T R A C T W I T H

I N T E R W E S T F O R C O N S T R U C T I O N M A N A G E M E N T A N D I N S P E C T I O N

S E R V I C E S
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California Environmental Quality Act
The award of the contract is Categorically Exempt from the California Environmental Quality Act (CEQA) based upon a Class 1 exemption (Cal. Code Regs., Title 14, Section 15301). The Class 1 exemption consists of the operation, repair, maintenance, permitting, leasing, licensing or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination. The Annual Pavement Preservation Program consists of minor maintenance applications on existing streets involving negligible expansion of the existing use and therefore qualifies as a Class 1 exemption.

FISCAL IMPACT
The estimated project expenditures, including the standard 10% project contingency, is estimated below:

Table 3: Estimated Project Expenditures
Item Estimated Expenditures
Construction Contract (Onyx) $4,884,000.00
Option A3 Reconstruct Cross Gutters (Onyx) $280,530.00
SUBTOTAL (ONYX) $5,164,530.00
Construction Management & Inspection
(Interwest)
$157,200.00
Materials Testing $37,850.00
SUBTOTAL $5,359,580.00
Project Contingency (10%) $535,958.00
GRAND TOTAL $5,895,538.00

The selection of the low bidder is based on the base bid from Onyx Paving Company as the lowest responsible and responsive bid. The bid schedule also included a solicitation for optional bid items that could be awarded to the low bidder. Staff deems the option item to reconstruct cross gutters to be reasonable and recommends this item be included with the award amount. Therefore, the total award amount to Onyx Paving will be $5,164,530.

Sufficient funds are available in the Ongoing Street Maintenance Program Capital Improvement Program budget (Project Account No. SI221009) for the anticipated expenditures noted above. The project utilizes a combination of Gas Tax, Measure M2, SB1, and General Fund monies.

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A P P R O V E P R O F E S S I O N A L S E R V I C E S C O N T R A C T W I T H

I N T E R W E S T F O R C O N S T R U C T I O N M A N A G E M E N T A N D I N S P E C T I O N

S E R V I C E S
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ALTERNATIVES
The City Council may choose to not award the proposed public works construction contract and reject all bids. Staff does not recommend this alternative because it will delay the delivery of the needed improvements and these streets will continue to deteriorate which will require more expensive repair/maintenance strategies in the future. The bid received from Onyx Paving Company, Inc. is competitive and there is no guarantee that re-advertising this Project will result in lower bids.

ATTACHMENTS

1. Vicinity Map

2. Onyx Paving Company, Inc. Contract

3. Interwest Professional Services Contract

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FY2021-2022 ANNUAL PAVEMENT
PRESERVATION PROJECT (ZONE 6) - DEFERED ZONE 6 AREA

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CA-1

CONTRACT DOCUMENTS

CITY OF YORBA LINDA

CONTRACT SERVICES AGREEMENT
FOR
FY 2021-22 ANNUAL PAVEMENT PRESERVATION PROJECT (ZONE 6) THIS CONTRACT SERVICES AGREEMENT (“Agreement”) is made and effective this _ _ day of __________, 2022 by and between the CITY OF YORBA LINDA, a California municipal corporation, (“City”) and Onyx Paving Company, Inc., a Corporation, (“Contractor”). City and Contractor are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties”.

R E C I T A L S
A. City requires construction services. Contractor has represented to City that Contractor is qualified to perform said services and has submitted a proposal to City for same.

B. City desires to have Contractor perform said services on the terms and conditions set forth herein.

NOW, THEREFORE, based on the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by both Parties, City and Contractor hereby agree as follows:

1. SERVICES OF CONTRACTOR.

1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the Bid Documents and Plans and Specifications (“Bid Specifications”) attached hereto as Exhibit A and incorporated herein by this reference, which services may be referred to herein as the “Services.” As a material inducement to City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first-class work and services and Contractor is experienced in performing the Services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the Services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances.

1.2 Documents Included in Contract. This contract consists of the Noncollusion Affidavit, Certification of Principal, Supplemental Information, General and Special Specifications, plans, drawings, all responsible bidding documents (including but not limited to the bid proposal), the Notice Inviting Sealed Bids, Instructions to Bidders, this Contract Services Agreement, and all required bonds, insurance policies, endorsements, and certificates, permits, notices, and affidavits,

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any Addenda or supplemental agreements or change orders issued by City, as well as any and all referenced specifications, details, schedules, appendices, and attachments, which are incorporated as if fully set forth herein. In the event of an inconsistency, this Agreement shall govern.

1.3 Compliance with Law. Contractor and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Contractor is aware of the requirements of California Labor Code Sections 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Sections 1600, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “Public works” and “Maintenance” projects. Ready-mix suppliers and haulers delivering materials to public works projects must also comply with Labor Code Section 1720. Both suppliers and haulers of ready-mix materials will need to register with the Department of Industrial Relations as required under Labor Code Section 1725.5. If the Services are being performed as part of an applicable “Public works” or “Maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is ONE THOUSAND DOLLARS ($1,000) or more, Contractor agrees to fully comply with such Prevailing Wage Laws including, but not limited to, requirements related to the maintenance of payroll records and the employment of apprentices. Contractor will maintain and will require all subcontractors to maintain valid and current California Department of Industrial Relations (“DIR”) Public Works Contractor registration during the term of this Agreement. Contractor shall notify the City in writing immediately, and in no case more than twenty-four (24) hours, after receiving any information that Contractor’s or any of its subcontractor’s DIR registration status has been suspended, revoked, expired, or otherwise changed. It is understood that it is the responsibility of Contractor to determine the correct salary scale. The State Prevailing Wage Rates may be obtained from the DIR pursuant to California Public Utilities Code, Sections 465, 466, and 467 by calling 415-703-4774. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification, or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at Contractor’s principal place of business and at the project site, if any. The statutory penalties for failure to pay prevailing wage or to comply with State wage and hour laws will be enforced. Contractor must forfeit to City TWENTY-FIVE DOLLARS ($25.00) per day for each worker who works in excess of the minimum working hours when Contractor does not pay overtime. In accordance with the provisions of Labor Code Sections 1810 et seq., eight (8) hours is the legal working day. Contractor also shall comply with State law requirements to maintain payroll records and shall provide for certified records and inspection of records as required by California Labor Code Section 1770 et seq., including Section 1776. Contractor shall comply with all statutory requirements relating to the employment of apprentices. Contractor shall defend (with counsel selected by City), indemnify, and hold City, its elected officials, officers, employees, and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It is agreed by the Parties that, in connection with performance of the Services, including, without limitation, any and all “Public Works” (as defined by the Prevailing Wage Laws), Contractor shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.

Contractor acknowledges and agrees that it shall be independently responsible for reviewing the

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applicable laws and regulations and effectuating compliance with such laws. Contractor shall require the same of all subcontractors.

1.4 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the Services required by this Agreement, including a City of Yorba Linda business license.

Contractor and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required for the performance of the Services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Contractor’s performance of the Services required by this Agreement, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed, or imposed against City hereunder. Contractor shall be responsible for all subcontractors’ compliance with this Section 1.4.

1.5 Familiarity with Work. By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the Scope of Services to be performed, (ii) has carefully considered how the Services should be performed, and (iii) fully understands the facilities, difficulties, and restrictions attending performance of the Services under this Agreement.

If the Services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of the Services hereunder. Should Contractor discover any latent or unknown conditions, which will materially affect the performance of the Services hereunder, Contractor shall immediately inform City of such fact and shall not proceed until written instructions are received from the Contract Officer.

1.6 Care of Services. Contractor shall adopt reasonable methods during the life of this Agreement to furnish continuous protection to the Services, and the equipment, materials, papers, documents, plans, studies, and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Services by City, except such losses or damages as may be caused by City’s own negligence.

1.7 Further Responsibilities of Parties. Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither Party shall be responsible for the service of the other. Contractor shall require all subcontractors to comply with the provisions of this agreement.

1.8 Additional Services. City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such

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extra work may be undertaken unless a written change order is first given by the Contract Officer to Contractor, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of Contractor.

It is expressly understood by Contractor that the provisions of this Section shall not apply to the Services specifically set forth in the Scope of Services or reasonably contemplated therein.

Contractor hereby acknowledges that it accepts the risk that the Services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore.

2. COMPENSATION.

2.1 Contract Sum. For the Services rendered pursuant to this Agreement, the Contractor shall be compensated as specified herein, but not exceeding the maximum contract amount of Five Million, One Hundred Sixty-Four Thousand, Five Hundred Thirty Dollars ($5,164,530.00) except as provided in Section 1.8. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by City; Contractor shall not be entitled to any additional compensation for attending said meetings.

2.2 Progress Payments. Prior to the first day of the month, during the progress of the Services, commencing on the day and month specified in this Agreement, Contractor shall submit to the Contract Officer a complete itemized statement of all labor and materials incorporated into the Services during the preceding month and the portion of the Contract Sum applicable thereto.

Upon approval in writing by the Contract Officer, payment shall be made to Contractor from City within thirty (30) days.

City shall pay Contractor a sum based upon ninety-five percent (95%) of the Contract Sum apportionment of the labor and materials incorporated into the Services under this Agreement during the month covered by said statement. The remaining five percent (5%) thereof shall be retained as performance security. Refer to Section 7.3 of this Agreement for retention of funds.

3. PERFORMANCE SCHEDULE.

3.1 Time of Essence. Time is of the essence in the performance of this Agreement. If the work is not completed within 100 working days, it is understood that the AGENCY will suffer damage.

3.2 Schedule of Performance. Contractor shall commence the Services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within 100 working days. When requested by Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer.

3.3 Force Majeure. The time period(s) specified in the Schedule of Performance for performance of the Services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of

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Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, if Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the Services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Contractor be entitled to recover damages against City for any delay in the performance of this Agreement, however caused, Contractor’s sole remedy being extension of this Agreement pursuant to this Section.

3.4 Term. The term of this Agreement shall begin upon execution of this contract and shall end upon project completion as described in the Bid Specifications unless the term of the Agreement is otherwise terminated or extended as provided for at City’s sole discretion to award multiple years. The time provided to Contractor to complete the Services required by this Agreement shall not affect City’s right to terminate the Agreement, as provided in Section 7.8.

4. COORDINATION OF WORK.

4.1 Representative of Contractor. The following principals of Contractor (“Principals”) are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:

Corey R. Kirschner
CEO, President, VP, Secretary, Treasurer
It is expressly understood that the experience, knowledge, capability and reputation of the Principals were a substantial inducement for City to enter into this Agreement. Therefore, the Principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the Services hereunder. For purposes of this Agreement, the Principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City.

4.2 Contract Officer. The “Contract Officer” shall be such person as may be designated by the City Manager of City. It shall be the Contractor’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the Services and Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer.

The Contract Officer shall have authority to sign all documents on behalf of City required hereunder to carry out the terms of this Agreement.

4.3 Prohibition Against Assignment. The experience, knowledge, capability, and reputation of Contractor, its principals, and employees were a substantial inducement for City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the Services required hereunder in excess of one-half of 1 percent of

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Contractor’s total bid as to which Contractor’s original bid did not designate a subcontractor in addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release Contractor or any surety of Contractor of any liability hereunder without the express consent of City.

4.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Contractor, its agents, or employees, perform the Services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision, or control of Contractor’s employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. Contractor shall perform all Services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role.

Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor. Contractor shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Except for the Contract Sum paid to Contractor as provided in this Agreement, City shall not pay salaries, wages, or other compensation to Contractor for performing the Services hereunder for City. City shall not be liable for compensation or indemnification to Contractor for injury or sickness arising out of performing the Services hereunder. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (“PERS”) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.

4.5 Identity of Persons Performing Work. Contractor represents that it employs or will employ at its own expense all personnel required for the satisfactory performance of any and all of the Services set forth herein. Contractor represents that the Services required herein will be performed by Contractor or under its direct supervision, and that all personnel engaged in such work shall be fully qualified and shall be authorized and permitted under applicable State and local law to perform such tasks and services.

4.6 Utility Relocation. City is responsible for removal, relocation, or protection of existing main or trunkline utilities to the extent such utilities were not identified in the invitation for bids or specifications. City shall reimburse Contractor for any costs incurred in locating, repairing

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damage not caused by Contractor, and removing or relocating such unidentified utility facilities.

Contractor shall not be assessed liquidated damages for delay arising from the removal or relocation of such unidentified utility facilities.

4.7 Trenches or Excavations. Pursuant to California Public Contract Code Section 7104, in the event the work included in this Agreement requires excavations more than four (4) feet in depth, the following shall apply.
(a) Contractor shall promptly, and before the following conditions are disturbed, notify City, in writing, of any: (1) material that Contractor believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law; (2) subsurface or latent physical conditions at the site different from those indicated by information about the site made available to bidders prior to the deadline for submitting bids; or (3) unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement. (b) City shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in Contractor’s cost of, or the time required for, performance of any part of the work shall issue a change order per Section 1.8 of this Agreement. (c) That, in the event that a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor’s cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date provided for by this Agreement, but shall proceed with all work to be performed under this Agreement. Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the contracting Parties.

4.8 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out the Services, Contractor shall at all times be in compliance with all applicable local, state, and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.

5. INSURANCE, INDEMNIFICATION AND BONDS.

5.1 Insurance. Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any

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extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees, and agents of City:

Coverage (Check if applicable) Minimum Limits
(X) Comprehensive General Liability
Insurance (including premises and
operations)
 Commercial General Liability no less
broad than ISO form CG 0001.
 Coverage must be on a standard
Occurrence form. Claims-made not
acceptable.
 Minimum limits: ONE MILLION
DOLLARS ($1,000,000.00) per
occurrence; TWO MILLION
DOLLARS ($2,000,000.00) General
Aggregate; TWO MILLION
DOLLARS ($2,000,000.00) Products/
Completed Operations Aggregate. General
Aggregate must apply separately to the
Services performed under this
Agreement.
 Prior written consent is required if the
insurance has a deductible or self-insured
retention in excess of TWENTY-FIVE
THOUSAND DOLLARS ($25,000).
 Coverage shall be continued for one (1)
year after completion of the Services or
the expiration or termination of this
Agreement.
 City, its elected and appointed officers,
employees, agents, and authorized
volunteers must be additional insureds
for liability arising out of the Services
performed by or on behalf of Contractor,
including the insured’s general
supervision of Contractor, and liability
arising out of products and ongoing and
completed operations by or on behalf of
Contractor. City, its elected and
appointed officers, employees, agents,
and authorized volunteers shall continue
to be an additional insured for completed
operations for two (2) years after
completion of the work or the expiration
or termination of this Agreement.
 The policy definition of “insured contract”
must include assumptions of liability
arising out of both ongoing operations
and the products-completed operations
hazard (“f” definition of insured contract

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Coverage (Check if applicable) Minimum Limits
in ISO form CG 0001, or equivalent.
 The insurance provided to City and its
officers, employees, agents, and
authorized volunteers as an additional
insured must apply on a primary and
non-contributory basis with respect to
any insurance of self-insurance program
maintained by City.
 Contractor shall provide written notice to
City within ten (10) working days if:
(1) any of the required insurance policies
is terminated; (2) the limits of any of the
required polices are reduced; or (3) the
deductible or self-insured retention is
increased. In the event any of said
policies of insurance are cancelled,
Contractor shall, prior to the cancellation
date, submit new evidence of insurance in
conformance with Section 5.1 to the
Contract Officer.
 The policy must cover inter-insured suits
and include a “Separation of Insureds” or
“severability” clause which treats each
insured separately.
 The policy shall contain no endorsements
or provisions limiting coverage for (1)
explosion, collapse or underground
hazard (XCU); (2) products and
completed operations; (3) contractual
liability; (4) third party action over
claims; (5) cross liability exclusion for
claims or suits by one insured against
another; or (6) contain any exclusions
contrary to the Contract.
 Required Evidence of Coverage:
o Copy of the additional insured
endorsement or policy language
granting additional insured status.
o Copy of the endorsement or policy
language indicating that coverage
applicable to City is primary and noncontributory; and o Properly completed Certificate of
Insurance.
(X) Comprehensive Automobile Liability
Insurance (includes owned, non-owned,
and hired automobile hazards)
 ONE MILLION DOLLARS ($1,000,000.00)
per occurrence combined single limit per
accident.

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Coverage (Check if applicable) Minimum Limits
 Coverage must apply to all owned, hired,
and non-owned vehicles.
 City must qualify as an insured.
 Required Evidence of Coverage:
o Copy of the endorsement or policy
language indicating that City of Yorba
Linda is an insured for its vicarious
liability.
o Properly completed Certificate of
Insurance.
(X) Workers’ Compensation/Employers’
Liability Insurance
 Statutory limits as required by the Labor
Code of the State of California, including
Section 3700 of the California Labor Code.
 Employers Liability Statutory with limits
of ONE MILLION
DOLLARS ($1,000,000.00) per Accident;
ONE MILLION DOLLARS ($1,000,000.00)
disease per employee; ONE MILLION
DOLLARS ($1,000,000.00) disease per
policy.
 Policy must include a written waiver of
the insurer’s right to subrogate against
City.
 Required evidence of coverage:
o Subrogation waiver endorsement.
o Properly completed Certificate of
Insurance.
( ) Builder’s Risk Insurance (for property
constructed on behalf of City)
 Must cover “all risk” of physical loss
providing coverage, including collapse
from design error.
 Value insured shall cover 100% of
completed Agreement cost.
 Policy maintained until full acceptance of
Work.
 Required evidence of coverage:
o Subrogation waiver endorsement.
o Copy of the endorsement or policy
language indicating that coverage
applicable to City is primary and noncontributory; and o Properly completed Certificate of
Insurance.

5.2 General Insurance Requirements

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In accordance with Public Code Section 20170, the insurance of surety companies who provide or issue the policy shall have been admitted to do business in the State of California with a credit rating of A- or better.

Insurance policies must be issued by an insurer with an A.M. Best’s rating of at least A:VII.

Contractor shall provide written notice to City within ten (10) working days if:
(1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible or self-insured retention is increased. In the event any of said policies of insurance are cancelled, Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with Section 5.1 to the Contract Officer Any insurance maintained by the City shall apply in excess of and not combined with insurance provided by this policy.

City, its officers, employees, representatives, attorneys, and authorized volunteers shall be named as additional named insureds.

No Services under this Agreement shall commence until Contractor has provided City with original endorsements effecting coverage set forth in this Article 5. Such endorsements shall be signed by an authorized representative of the insurance company and shall include the signator’s company affiliation and title. Should it be deemed necessary by City, it shall be Contractor’s responsibility to see that City receives documentation, acceptable to City, which sustains that the individual signing said endorsements is indeed authorized to do so by the insurance company. Current Evidence of Coverage must be provided for the entire required period of insurance. City reserves the right to inspect complete, certified copies of all required insurance policies at any time. Upon written request, certified copies of required insurance policies must be provided within thirty (30) days. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City.

If the Contractor fails to maintain the aforementioned insurance, or secure and maintain the aforementioned endorsement, the City may obtain such insurance, and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement.

However, procuring of said insurance by City is an alternative to other remedies City may have, and is not the exclusive remedy for failure of Contractor to maintain said insurance or secure said endorsement. In addition to any other remedies City may have upon Contractor’s failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, City shall have the right to order Contractor to stop work hereunder, and/or withhold any payment(s) which became due to Contractor hereunder until Contractor demonstrates compliance with the requirements hereof.

Nothing herein contained shall be construed as limiting in any way the extent to which Contractor may be held responsible for the payment of damages to any persons or property resulting from Contractor’s activities or the activities of any person or persons for which Contractor is otherwise responsible nor shall it limit Contractor’s indemnification liabilities as provided in Section 5.3
The name and address for Additional Insured endorsements, Certificates and Notice of Cancellation is: City of Yorba Linda, 4845 Casa Loma Avenue, Yorba Linda, California, 92886.

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Certificate of Insurance must include the following reference:

In the event Contractor subcontracts any portion of the Services in compliance with this Agreement, the contract between Contractor and such subcontractor shall require the subcontractor to maintain the same policies of insurance that Contractor is required to maintain pursuant to Section 5.1, and such certificates and endorsements shall be provided to City.

5.3 Indemnification. To the full extent permitted by law, Contractor agrees to indemnify, defend, and hold harmless City, its officers, employees, agents, and volunteers (“Indemnified Parties”) from and against any and all actions, either judicial, administrative, arbitration, or regulatory, damages to persons or property, losses, costs, penalties, obligations, errors, omissions, or liabilities whether actual or threatened (“Claims or Liabilities”) that may be asserted or claimed by any person, firm, or entity arising out of or in connection with the performance of the Services, operations, or activities provided herein of Contractor, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Contractor is legally liable (“Indemnors”), or arising from Contractor’s reckless or willful misconduct, or arising from Contractor’s or Indemnors’ negligent performance of or failure to perform any term, provision, covenant, or condition of this Agreement, and in connection therewith:
(a) Contractor shall defend (with counsel selected by City) any action or actions filed in connection with any of said Claims or Liabilities and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith; (b) Contractor will promptly pay any judgment rendered against City, its officers, agents, or employees for any such Claims or Liabilities arising out of or in connection with the performance of or failure to perform such Services, operations or activities of Contractor hereunder; and Contractor agrees to save and hold City, its officers, agents, and employees harmless therefrom;
(c) In the event City, its officers, agents, or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the performance of or failure to perform the Services, operation or activities of Contractor hereunder, Contractor agrees to pay to City, its officers, agents, or employees, any and all costs and expenses incurred by City, its officers, agents, or employees in such action or proceeding, including but not limited to, legal costs and attorneys’ fees.
(d) Contractor’s duty to defend and indemnify as set out in this Section 5.3 shall include any claims, liabilities, obligations, losses, demands, actions, penalties, suits, costs, expenses or damages or injury to persons or property arising or alleged to arise from, in connection with, as a consequence of or pursuant to any state or federal law or regulation regarding hazardous substances, including but not limited to the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), Resource Conservation and Recovery Act of 1976 (“RCRA”), the Hazardous and Solid Waste Amendments of 1984, the Hazardous Material Transportation Act, the Toxic Substances control Act, the Clean Air Act, the Clean Water Act, the California Hazardous Substance Account Act, the California Hazardous Waste Control Law or the Porter-Cologne Water Quality Control Act, as any of those statutes may be amended from time to time.

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The provisions of this Section do not apply to Claims or Liabilities occurring as a result of City’s sole negligence or willful acts or omissions, but to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness, or willful misconduct of the design professional. Contractor’s indemnification obligations pursuant to this Section 5.3 shall be binding on successors and assigns of Contractor and shall survive termination of this Agreement. Contractor shall incorporate similar indemnity agreements with its subcontractors and if it fails to do so Contractor shall be fully responsible to indemnify City, and failure of City to monitor compliance with these provisions shall not be a waiver hereof.

5.4 Labor and Materials and Performance Bonds. Prior to July 17, 2017, Contractor shall deliver to City a payment (labor and materials) bond and a performance bond, each in the sum of the amount of this Agreement, in the forms provided by the City Clerk, which secures the faithful performance of this Agreement. The bonds shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bonds shall be unconditional and remain in force during the entire term of this Agreement and shall be null and void only if Contractor promptly and faithfully performs all terms and conditions of this Agreement.

5.5 Sufficiency of Insurer or Surety. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VU or better, unless such requirements are waived by the Risk Manager of City (“Risk Manager”) due to unique circumstances. In the event the Risk Manager determines that the Services to be performed under this Agreement creates an increased risk of loss to City, Contractor agrees that the minimum limits of the insurance policies and the performance bond required by this Section 5 may be changed accordingly upon receipt of written notice from the Risk Manager; provided that Contractor shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within ten (10) days of receipt of notice from the Risk Manager.

5.6 Substitution of Securities. Pursuant to Public Contract Code Section 22300, substitution of eligible equivalent securities for any moneys withheld to ensure performance under this Agreement may be permitted at the request and expense of Contractor.

6. RECORDS AND REPORTS.

6.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that City is greatly concerned about the cost of the Services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique, or event and the

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estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed.

6.2 Records. Contractor shall keep, and require subcontractors to keep, such ledgers books of accounts, invoices, vouchers, canceled checks, reports (including but not limited to payroll reports), studies, or other documents relating to the disbursements charged to City and the Services performed hereunder (the “Books and Records”), as shall be necessary to perform the Services required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. Any and all such Books and Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such Books and Records at all times during normal business hours of City, including the right to inspect, copy, audit, and make records and transcripts from such Books and Records. Such Books and Records shall be maintained for a period of three (3) years following completion of the Services hereunder, and City shall have access to such Books and Records in the event any audit is required. In the event of dissolution of Contractor’s business, custody of the Books and Records may be given to City, and access shall be provided by Contractor’s successor in interest. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.

6.3 Ownership of Documents. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents, and other materials plans, drawings, estimates, test data, survey results, models, renderings, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings, digital renderings, or data stored digitally, magnetically, or in any other medium (the “Documents and Materials”) prepared or caused to be prepared by Contractor, its employees, subcontractors, and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the expiration or termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the Documents and Materials hereunder. Any use, reuse or assignment of such completed Documents and Materials for other projects and/or use of uncompleted documents without specific written authorization by Contractor will be at City’s sole risk and without liability to Contractor, and Contractor’s guarantee and warranties shall not extend to such use, revise, or assignment. Contractor may retain copies of such Documents and Materials for its own use.

Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any Documents and Materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom.

6.4 Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs,

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rights of reproduction, and other intellectual property embodied in the Documents and Materials.

Contractor shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for the Documents and Materials the subcontractor prepares under this Agreement. Contractor represents and warrants that Contractor has the legal right to license any and all of the Documents and Materials. Contractor makes no such representation and warranty in regard to the Documents and Materials which were prepared by design professionals other than Contractor or provided to Contractor by City. City shall not be limited in any way in its use of the Documents and Materials at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.

7. ENFORCEMENT OF AGREEMENT.

7.1 California Law. This Agreement shall be interpreted, construed, and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California.

Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S.

District Court, venue shall lie exclusively in the Central District of California, in Santa Ana.

7.2 Disputes. In the event either Party fails to perform its obligations hereunder, the nondefaulting Party shall provide the defaulting Party written notice of such default. The defaulting Party shall have ten (10) days to cure the default; provided that, if the default is not reasonably susceptible to being cured within said ten (10) day period, the defaulting Party shall have a reasonable time to cure the default, not to exceed a maximum of thirty (30) days, so long as the defaulting Party commences to cure such default within ten (10) days of service of such notice and diligently prosecutes the cure to completion; provided further that if the default is an immediate danger to the health, safety, and general welfare, the defaulting Party shall take such immediate action as may be necessary. Notwithstanding the foregoing, the nondefaulting Party may, in its sole and absolute discretion, grant a longer cure period. Should the defaulting Party fail to cure the default within the time period provided in this Section, the nondefaulting Party shall have the right, in addition to any other rights the nondefaulting Party may have at law or in equity, to terminate this Agreement. Compliance with the provisions of this Section 7.2 shall be a condition precedent to bringing any legal action, and such compliance shall not be a waiver of any Party’s right to take legal action in the event that the dispute is not cured. During the period of time that Contractor is in default, City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default.

7.3 Claims. Notwithstanding Article 1.5 (commencing with Section 20104) of Chapter 1 of Part 3, Section 9204 of the Public Contract Code shall apply to any claim by the Contractor in connection with the Project.

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(a) Upon receipt of a claim pursuant to Section 9204 of the Public Contract Code, the City will conduct a reasonable review of the claim and, within a period not to exceed 45 Days, provide the Contractor a written statement identifying what portion of the claim is disputed and what portion is undisputed. Upon receipt of a claim, the Contractor and the City may, by mutual agreement, extend the aforementioned time period. (b) The Contractor shall furnish reasonable documentation to support the claim. (c) If City Council approval is needed to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the claim, and the City Council does not meet within the 45 Days or within the mutually agreed to extension of time following receipt of a claim sent by registered mail or certified mail, return receipt requested, the City will have up to 3 Days following the next duly publicly noticed meeting of the City Council after the 45-Day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion. (d) Any payment due on an undisputed portion of the claim will be processed and made within 60 Days after the City issues its written statement. If the City fails to issue a written statement, paragraph (i) shall apply.
(e) If the Contractor disputes the City’s written response, or if the City fails to respond to a claim issued pursuant to Section 9204 within the time prescribed, the Contractor may demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand in writing sent by registered mail or certified mail, return receipt requested, the City will schedule a meet and confer conference within 30 Days for settlement of the dispute. (f) Within 10 business days following the conclusion of the meet and confer conference, if the claim or any portion of the claim remains in dispute, the City will provide the Contractor a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the claim will be processed and made within 60 Days after the City issues its written statement. Any disputed portion of the claim, as identified by the Contractor in writing, shall be submitted to nonbinding mediation, with the City and the Contractor sharing the associated costs equally. The City and the Contractor shall mutually agree to a mediator within 10 business days after the disputed portion of the claim has been identified in writing. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator. If mediation is unsuccessful, the parts of the claim remaining in dispute shall be subject to applicable procedures outside those established in Section 9204.
(g) Mediation may include any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation.

Any mediation utilized shall conform to the timeframes in Section 9204.

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(h) Unless otherwise agreed to by the City and the Contractor in writing, the mediation conducted pursuant to Section 9204 shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced. (i) Failure by the City to respond to a claim from the Contractor within the time periods described in this subdivision or to otherwise meet the time requirements of Section 9204 shall result in the claim being deemed rejected in its entirety. (j) Amounts not paid in a timely manner as required by Section 9204 will bear interest at 7 percent per annum.
(k) If a Subcontractor or a lower tier Subcontractor lacks legal standing to assert a claim against the City because privity of the Contract does not exist, the Contractor may present to the City a claim on behalf of a Subcontractor or lower tier Subcontractor. A Subcontractor may request in writing, either on its own behalf or on behalf of a lower tier Subcontractor, that the Contractor present a claim for work which was performed by the Subcontractor or by a lower tier Subcontractor on behalf of the Subcontractor. The Subcontractor requesting that the claim be presented to the City shall furnish reasonable documentation to support the claim. Within 45 Days of receipt of this written request, the Contractor shall notify the Subcontractor in writing as to whether the Contractor presented the claim to the City and, if the original Contractor did not present the claim, provide the Subcontractor with a statement of the reasons for not having done so. (l) A waiver of the rights granted by Section 9204 is void and contrary to public policy, provided, however, that (1) upon receipt of a claim, the Contractor and the City may mutually agree to waive, in writing, mediation and proceed directly to the commencement of a civil action or binding arbitration, as applicable; and (2) the City may prescribe reasonable change order, claim, and dispute resolution procedures and requirements in addition to the provisions of Section 9204, so long as the contractual provisions do not conflict with or otherwise impair the timeframes and procedures set forth in Section 9204.

7.3 Retention of Funds. Progress payments shall be made in accordance with the provisions of Section 2.2 of this agreement. In accordance with said section, City shall pay Contractor a sum based upon ninety-five percent (95%) of the Contract Sum apportionment of the labor and materials incorporated into the Services under this Agreement during the month covered by said statement. The remaining five percent (5%) thereof shall be retained as performance security to be paid to Contractor within sixty (60) days after final acceptance of the Services by the City Council of City, after Contractor has furnished City with a full release of all undisputed payments under this Agreement, if required by City. In the event there are any claims specifically excluded by Contractor from the operation of the release, City may retain proceeds (per Public Contract Code § 7107) of up to one hundred fifty percent (150%) of the amount in dispute. City’s failure to deduct or withhold shall not affect Contractor’s obligations hereunder.

7.4 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting Party on any default shall impair such right or remedy or be construed as a waiver. A Party’s consent to or approval of any act by the other Party requiring the Party’s consent or approval shall not be deemed to waive or render unnecessary the other Party’s consent to or approval of any

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subsequent act. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.

7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.

7.6 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.

7.7 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, Contractor and its sureties shall be liable for and shall pay to City the sum of EIGHT HUNDRED AND FIFTH DOLLARS ($850.00) as liquidated damages for each working day of delay in the performance of any of the Services required hereunder, as specified in the Schedule of Performance. In addition, liquidated damages may be assessed for failure to comply with the emergency call out requirements described in the Scope of Services. City may withhold from any moneys payable on account of the Services performed by Contractor any accrued liquidated damages.

7.8 Termination for Default of Contractor. If termination is due to the failure of Contractor to fulfill its obligations under this Agreement, Contractor shall vacate any City-owned property which Contractor is permitted to occupy hereunder and City may, after compliance with the provisions of Section 7.2, take over the Services and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of setoff or partial payment of the amounts owed the City as previously stated.

7.9 Attorneys’ Fees. If either Party to this Agreement is required to initiate or defend or made a Party to any action or proceeding in any way connected with this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees; provided, however, that the attorneys’ fees awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services multiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the litigation. Attorneys’ fees shall include attorneys’ fees on any appeal, and in addition a Party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on

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commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. The court may set such fees in the same action or in a separate action brought for that purpose.

8. CITY OFFICERS AND EMPLOYEES, NONDISCRIMINATION.

8.1 Non-liability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Contractor, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.

8.2 Conflict of Interest. Contractor covenants that neither it, nor any officer or principal of it, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor’s performance of the Services under this Agreement. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent, or subcontractor without the express written consent of the Contract Officer. Contractor agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.

No officer or employee of City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to this Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.

8.3 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry in the performance of this Agreement.

Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.

9. MISCELLANEOUS PROVISIONS.

9.1 Notice. Any notice, demand, request, document, consent, approval, or communication either Party desires or is required to give to the other Party or any other person shall be in writing and shall be deemed to be given when served personally or deposited in the US Mail, prepaid, firstclass mail, return receipt requested, addressed as follows:

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To City: City of Yorba Linda
4845 Casa Loma Avenue
Yorba Linda, California 92886
Attention: Rick Yee, Assistant City Engineer
To Contractor: Onyx Paving Company, Inc.
2890 E. La Cresta Avenue
Anaheim, California 92806
Attention: Corey R. Kirschner, CEO, President, VP, Secretary, Treasurer
Either Party may change its address by notifying the other Party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.

9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.

9.3 Article and Section Headings and Subheadings. The article and section headings and subheadings contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement.

9.4 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.

9.5 Integration; Amendment. This Agreement including the attachments hereto is the entire, complete, and exclusive expression of the understanding of the Parties. It is understood that there are no oral agreements between the Parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the Parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by Contractor and by the City Council of City. The Parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.

9.6 Severability. In the event that any one or more of the articles, phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable, such invalidity or unenforceability shall not affect any of the remaining articles, phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.

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9.7 Unfair Business Practices Claims. In entering into this Agreement, Contractor offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials related to this Agreement. This assignment shall be made and become effective at the time City renders final payment to Contractor without further acknowledgment of the Parties.

9.8 Invoicing. Contractor shall submit invoices monthly during the term of this Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to the invoice date.

Invoices shall be submitted to:

City of Yorba Linda
4845 Casa Loma Avenue
Yorba Linda, California 92886
Attention: Rick Yee, Assistant City Engineer

9.9 No Third Party Beneficiaries. With the exception of the specific provisions set forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and no such other third parties shall have any rights or obligations hereunder.

9.10 Execution of Contract. The persons executing this Agreement on behalf of each of the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) that entering into this Agreement does not violate any provision of any other Agreement to which said Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors, and assigns of the Parties. [SIGNATURES ON FOLLOWING PAGE]

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IN WITNESS WHEREOF, the Parties have executed and entered into this Agreement as of the date first written above.

CITY:

CITY OF YORBA LINDA, a California municipal
corporation
Carlos Hernandez, Mayor
ATTEST
By:

Marcia Brown, City Clerk
APPROVED AS TO FORM:

By:

Rutan & Tucker, LLP, City Attorney
CONTRACTOR:

By:
(Print)
Signature:

Title:

Address:

By:
(Print)
Signature:

Title:

Address:

Two signatures are required if a corporation.

NOTE: CONTRACTOR’S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE

ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONTRACTOR’S BUSINESS ENTITY.

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(PAGE 1 OF 2)

CITY OF YORBA LINDA

FAITHFUL PERFORMANCE BOND
FOR THE FY2021-22 ANNUAL PAVEMENT PRESERVATION PROJECT (ZONE 6) KNOW ALL MEN BY THESE PRESENTS that, Onyx Paving Company, Inc. as CONTRACTOR, and , SURETY, are held and firmly bound unto the City of Yorba Linda, as AGENCY, in the penal sum of Five Million, One Hundred Sixty-Four Thousand, Five Hundred Thirty Dollars ($5,164,530.00) which is one hundred (100%) of the total contract amount for the above stated project, for the payment of which sums, CONTRACTOR and SURETY agree to be bound, jointly and severally, firmly by these presents.

THE CONDITIONS OF THIS OBLIGATION ARE SUCH that, whereas CONTRACTOR has been awarded and is about to enter into the annexed Contract Agreement with AGENCY for the above stated project, if CONTRACTOR faithfully performs and fulfills all obligations under the contract documents in the manner and time specified therein, then this obligation shall be null and void, otherwise it shall remain in full force and effect in favor of AGENCY; provided that any alterations in the obligations or time for completion made pursuant to the terms of the contract documents shall not in any way release either CONTRACTOR or SURETY, and notice of such alterations is hereby waived by SURETY.

WITNESS our hands this ________ day of _____________ , 20______.

Onyx Paving Company, Inc.

CONTRACTOR (CORPORATION)-TYPE
(SEAL) By
President
By
Secretary/Treasurer

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FAITHFUL PERFORMANCE BOND
(PAGE 2 OF 2)
_________________________________

SURETY'S NAME-TYPE
_________________________________

MAILING ADDRESS (SURETY)
BY:

Name
(SEAL)
Title
NOTE: SIGNATURES OF CORPORATE OFFICIALS AND SURETY MUST BE NOTARIZED. (ATTACH ACKNOWLEDGMENT.)
BOND APPROVED AS TO FORM:

CITY ATTORNEY - CITY OF YORBA LINDA

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(PAGE 1 OF 2)

CITY OF YORBA LINDA

MATERIAL AND LABOR BOND
FOR
THE FY2021-22 ANNUAL PAVEMENT PRESERVATION PROJECT (ZONE 6) KNOW ALL MEN BY THESE PRESENTS that, Onyx Paving Company, Inc. as CONTRACTOR, and , SURETY, are held and firmly bound unto the City of Yorba Linda, as AGENCY, in the penal sum of Five Million, One Hundred Sixty-Four Thousand, Five Hundred Thirty Dollars ($5,164,530.00) which is one hundred (100%) of the total contract amount for the above stated project, for the payment of which sums, CONTRACTOR and SURETY agree to be bound, jointly and severally, firmly by these presents.

THE CONDITIONS OF THIS OBLIGATION ARE SUCH that, whereas CONTRACTOR has been awarded and is about to enter into the annexed Contract Agreement with AGENCY for the above stated project, if CONTRACTOR or any subcontractor fails to pay for any labor or material of any kind used in the performance of the work to be done under said contract, or fails to submit amounts due under the State Unemployment Insurance Act with respect to said labor, SURETY will pay for the same in an amount not exceeding the sum set forth above, which amount shall insure to be the benefit of all persons entitled to file claims under the State Code of Civil Procedures; provided that any alterations in the work to be done, materials to be furnished, or time for completion made pursuant to the terms of the contract documents shall not in any way release either CONTRACTOR or SURETY, and notice of said alterations is hereby waived by SURETY.

WITNESS our hands this ______ day of _____________________, 20______.

CONTRACTOR (CORPORATION)-TYPE

By___________________________
President
(SEAL) By __________________________
Secretary/Treasurer

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MATERIAL AND LABOR BOND
(PAGE 2 OF 2)

SURETY'S NAME-TYPE

MAILING ADDRESS (SURETY)
BY:

Name
(SEAL)
Title
NOTE: SIGNATURES OF CORPORATE OFFICIALS AND SURETY MUST BE NOTARIZED. (ATTACH ACKNOWLEDGMENT.)
BOND APPROVED AS TO FORM:

CITY ATTORNEY - CITY OF YORBA LINDA

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COMPENSATION INSURANCE CERTIFICATE
Pursuant to Section 1861 of the State Labor Code, each contractor to whom a public works contract has been awarded shall sign the following certificate and shall submit same to the City prior to performing any work on the contract:

I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of work of this contract.

Onyx Paving Company, Inc.

Contractor
By
(PRINT)
(SIGNATURE)
Title
Date
Section 3700 of the State Labor Code reads as follows:
"Every employer except the State shall secure the payment of compensation in one or more of the following ways:
(a) By being insured against liability to pay compensation in one or more insurers duly authorized to write compensation insurance in this state. (b) By securing from the Director of Industrial Relations a certificate of consent to self-insure, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self-insure and to pay any compensation that may become due to his employee."

COMPENSATION INSURANCE CERTIFICATE

TO BE SUBMITTED WITH CONTRACT

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EXHIBIT A

BID SPECIFICATIONS

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10434958.1 a07/12/22

PROFESSIONAL SERVICES AGREEMENT
FOR

CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES FY
21/22 ANNUAL PAVEMENT PRESERVATION PROJECT ZONE 6
THIS AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into as of __________ ____, 2022, by and between the CITY OF YORBA LINDA, a municipal organization organized under the laws of the State of California (“City”), and Interwest Consulting Group, a (“a California corporation”) (“Consultant”).

NOW THEREFORE, the parties hereto agree as follows:

SECTION ONE: SERVICES OF CONSULTANT

1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services related to provide Construction Management and Inspection Services for Fiscal Year 2021/2022 for the Annual Pavement Preservation Project (APPP) Zone 6, as specified in the “Scope of Services” attached hereto as Exhibit “A” and incorporated herein by this reference (the “services” or “work”). Consultant warrants that all services will be performed in a competent, professional, and satisfactory manner in accordance with the standards prevalent in the industry for such services.

1.2 Changes and Additions to Scope of Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from said work. No such work shall be undertaken unless a written order is first given by City to Consultant, incorporating therein any adjustment in (i) the Schedule of Compensation, and/or (ii) the Schedule of Performance, which adjustments are subject to the written approval of the consultant. It is expressly understood by Consultant that the provisions of this Section 1.2 shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates, and that Consultant shall not be entitled to additional compensation therefor.

1.3 Familiarity with Work. By executing this Agreement, Consultant warrants that (a) it has thoroughly investigated and considered the work to be performed, (b) it has investigated the nature and factual context of the work and fully acquainted itself with the conditions pertaining to it, (c) it has carefully considered how the work should be performed, and (d) it fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, and such latent or unknown condition affects Consultant’s ability to perform the Work for the Contract Sum (as defined in Section 2.1 below) Consultant shall immediately inform City of such fact and shall not proceed except at Consultant’s risk until written instructions are received from the Contract Officer (as defined in Section 4.2 hereof).

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1.4 Standard of Performance. Consultant agrees that all services shall be performed in a competent, professional, and satisfactory manner in accordance with the standards prevalent in the industry, and that all goods, materials, equipment, or personal property included within the services herein shall be of good quality, fit for the purpose intended.

1.5 Performance to Satisfaction of City. Consultant shall perform all work and tasks comprising the Services to the satisfaction of City within the time specified. If City reasonably determines that any portion of the services is not satisfactory, City shall have the right to take appropriate action, including but not limited to: (a) meeting with Consultant to review the quality of the work and resolve matters of concern; (b) requiring Consultant to repeat unsatisfactory work at no additional charge until they are satisfactory; (c) suspending the delivery of work to Consultant for an indefinite time; (d) withholding payment; and € terminating this Agreement as hereinafter set forth.

1.6 Prohibition Against Subcontracting or Assignment. Consultant shall not contract with any entity to perform in whole or in part the work and services required of Consultant herein without the prior express written approval of the City. Neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of the City. Any such prohibited assignment or transfer shall be void.

SECTION TWO: COMPENSATION

2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant shall be compensated in accordance with Exhibit “B” (the “Schedule of Compensation”) in a total amount not to exceed One Hundred Fifty-Seven Thousand Two Hundred Dollars ($157,200.00) (the “Contract Sum”), except as provided in Section 1.2. The method of compensation set forth in the Schedule of Compensation may include a lump sum payment upon completion, payment in accordance with the percentage of completion of the services, payment for time and materials based upon Consultant's rate schedule, but not exceeding the Contract Sum, or such other methods as may be specified in the Schedule of Compensation.

Compensation may include reimbursement at Consultant's actual cost, without additional overhead or services charge, for actual and necessary expenditures for reproduction costs, transportation expense, telephone expense, and similar costs and expenses when and if specified in the Schedule of Compensation.

2.2 Method of Payment. Unless otherwise provided in the Schedule of Compensation, Consultant shall submit to City no later than the tenth (10th) working day of each month, in the form approved by City, an invoice for services rendered prior to the date of the invoice. Such invoice shall (1) describe in detail the services provided, including time and materials, and (2) specify each staff member who has provided services and the number of hours assigned to each such staff member. Such invoice shall contain a certification by a principal member of Consultant specifying that the payment requested is for work performed in accordance with the terms of this Agreement. City will pay Consultant for all expenses stated thereon which are approved by City pursuant to this Agreement no later than forty-five (45) days after invoices are received by the City.

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SECTION THREE: PERFORMANCE SCHEDULE

3.1 Time of Essence. Time is of the essence in the performance of this Agreement.

3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be performed diligently and within the time period established in Exhibit “C” (the “Schedule of Performance”). Extensions to the time period specified in the Schedule of Performance may be approved in writing by the Contract Officer.

3.3 Force Majeure. The time period specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant, including, but not restricted to, acts of God or of the public enemy, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, acts of any governmental agency other than City, and unusually severe weather, if Consultant shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the forced delay when and if in his or her judgment such delay is justified, and the Contract Officer's determination shall be final and conclusive upon the parties to this Agreement.

3.4 Term. The term of this agreement shall commence on execution of this agreement and terminate upon completion of the project (initial term). This agreement may be extended upon mutual agreement by both parties (extended term). Unless earlier terminated in accordance with Sections 8.11 or 8.12 of this Agreement, this Agreement shall continue in full force and effect until completion of the services, except as otherwise provided in the Schedule of Performance.

SECTION FOUR: COORDINATION OF WORK

4.1 Representative of Consultant. Paul Meschino, Vice President of Operations is hereby designated as the principal representative of the Consultant, authorized to act in its behalf with respect to the work and services specified herein and to make all decisions in connection therewith. A substitution of the designated representative must be approved in advance by the City.

4.2 Contract Officer. The Contract Officer shall be Rick Yee, Deputy Director of Public Works / Assistant City Engineer or such other person as may be designated by the City Manager of City. It shall be Consultant's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and Consultant shall refer any decisions, which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer.

SECTION FIVE: INSURANCE AND INDEMNIFICATION

5.1 Without limiting Consultant's indemnification obligations, Consultant shall not undertake the services contemplated hereunder until Consultant has obtained all of the insurance required herein from a company or companies acceptable to City, and Consultant shall maintain

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all such insurance in full force and effect at all times during the term of this License and any extension or renewal thereof. Insurance shall be placed with insurers having a current A.M. Best rating of no less than A-: VII or equivalent or as otherwise approved by City.

5.2 Consultant shall take out and maintain the following insurance:

5.2.1. Workers' Compensation and Employer's Liability Insurance: Consultant shall cover or insure as required by applicable laws relating to workers’ compensation insurance all of its employees performing the services contemplated hereunder, in accordance with the “Workers' Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any Acts amendatory thereof. Consultant shall provide worker's compensation insurance and employer's liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence, One Million Dollars ($1,000,000) disease policy limit, and One Million Dollars ($1,000,000) disease each employee. Such policy of workers compensation insurance shall contain the following separate endorsements:
(a) “Insurer waives all rights of subrogation against the City of Yorba Linda, its officers, directors, employees, representatives and volunteers.” (b) “This insurance policy shall not be suspended, voided, reduced in coverage or in limits, cancelled, limited, non-renewed or materially changed for any reason by the insurer until thirty (30) days after receipt by the City of Yorba Linda of a written notice of such cancellation, limitation or reduction of coverage.”

5.2.2. Commercial General Liability Insurance providing coverage in the following minimum limits:
(a) Combined single limit of One Million Dollars ($1,000,000) per occurrence for Bodily Injury, Personal Injury or Death and Property. (b) Damage Coverage shall be at least as broad as Insurance Services Office (ISO) Commercial General Liability coverage (occurrence Form CG 0001). (c) If Commercial General Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the project/location (with the ISO CG 2503 or ISO CG 2504, or insurer's equivalent endorsement provided to City), or the general aggregate limit shall be twice the required occurrence limit.

5.2.3. Comprehensive Automobile Liability Insurance, including owned, nonowned, leased, hired, and borrowed automobiles and similar vehicles, providing the following minimum limits:
(a) Combined single limit of One Million Dollars ($1,000,000) per occurrence for Bodily Injury or Death and Property Damage. (b) Coverage shall be at least as broad as Insurance Services Office (ISO) Business and Auto Coverage (Form CA 0001) covering any auto.

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5.2.4. Professional Liability: Consultant shall provide coverage appropriate to the Consultant's profession covering Consultant's wrongful acts, negligent actions, errors, or omissions. The retroactive date (if any) is to be no later than the effective date of this Agreement.

Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the contract work. Consultant shall purchase a one-year extended reporting period i) if the retroactive date is advanced past the effective date of this Agreement; ii) if the policy is canceled or not renewed; or iii) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. The limits shall be no less than $1,000,000 per claim and annual aggregate.

5.3 Endorsements: The policies of liability insurance provided for in Paragraphs

5.2.2 through 5.2.4 shall specify that this specific Agreement is insured and that coverage for injury to participants resulting from Consultant's activities is not excluded, and shall be in a form satisfactory to City and contain the following separate endorsements:
(a) “The City of Yorba Linda, its officers, directors, employees, representatives and volunteers, are declared to be additional insureds on all of the above policies with respects to the operations and activities of the named insured at or from the premises of the City of Yorba Linda. The coverage shall contain no special limitations on the scope of protection afforded to the City of Yorba Linda, its officers, directors, employees, representatives and volunteers.”
(b) “This insurance policy shall not be suspended, voided, reduced in coverage or in limits, canceled, limited, non-renewed, or materially changed for any reason until thirty (30) days after receipt by the City of Yorba Linda of a written notice of such cancellation, limitation or reduction of coverage.” (c) “This insurance policy is primary insurance and no insurance held or owned by the designated additional insureds shall be called upon or looked to cover a loss under said policy; the City of Yorba Linda shall not be liable for the payment of premiums or assessments on this policy.”
(d) “Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City of Yorba Linda, its officers, directors, employees, representatives, or volunteers.” (e) “This insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.”

5.4 Evidence of Coverage: Consultant shall at the time of the execution of the Agreement present to City the original policies of insurance required by this Section 5 or a certificate of the insurance, with separate endorsements (Insurance Services Office Form CG 2026, or equivalent), showing the issuance of such insurance and the additional insured and other provisions and endorsements required herein, and copies of all endorsements signed by the insurer's representative. All policies shall contain the Consultant's name and location of the Premises on the certificate. At least thirty (30) days prior to the expiration of any such policy, a

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signed complete certificate of insurance, with all endorsements provided herein, showing that such insurance coverage has been renewed or extended, shall be filed with City. Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

5.5 Review of Coverage: City shall have the right at any time to review the coverage, form, and limits of insurance required under this Agreement. If, in the sole and absolute discretion of City, the insurance provisions in this Agreement do not provide adequate protection for City, City shall have the right to require Consultant to obtain insurance sufficient in coverage, form and limits to provide adequate protection and Consultant shall promptly comply with any such requirement. City's requirements shall not be unreasonable but shall be adequate in the sole opinion of City to protect against the kind and extent of risks which may exist at the time a change of insurance is required, or thereafter.

5.6 Deductibles: Any and all deductibles must be declared and approved by City prior to execution of this Agreement.

5.7 Agreement Contingent Upon Coverage: Notwithstanding any other provision of this Agreement, this Agreement shall be null and void at all times when the above-referenced original policies of insurance or Certificate of Insurance or Renewal Certificates or Endorsements are not on file with City.

5.8 Workers' Compensation Insurance. By his/her signature hereunder, Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing the performance of the work of this Agreement. To the extent required by law, Consultants and subcontractors will keep Workers' Compensation Insurance for their employees in effect during all work covered by this Agreement. In the event Consultant has no employees requiring Consultant to provide Workers' Compensation Insurance, Consultant shall so certify to the City in writing prior to the City's execution of this Agreement.

The City shall not be responsible for any claims in law or equity occasioned by failure of the Consultant to comply with this section or with the provisions of law relating to Worker's Compensation.

5.9 Indemnification. Consultant shall indemnify, defend, and hold City and City's agents, officers, and employees (“City Personnel”) harmless from and against any and all actions, suits, claims, demands, judgments, attorney's fees, costs, damages to persons or property, losses, penalties, obligations, expenses or liabilities (herein "claims" or "liabilities") that may be asserted or claimed by any person or entity arising out of the negligence, recklessness, or willful misconduct of Consultant, its employees, agents, representatives or subcontractors in the performance of any tasks or services for or on behalf of City, whether or not there is concurrent active or passive negligence on the part of City and/or City Personnel, but excluding such claims or liabilities arising from the sole active negligence or willful misconduct of City or City Personnel. In connection therewith:

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5.9.1. Consultant shall defend any action or actions filed in connection with any such claims or liabilities, and shall pay all costs and expenses, including attorney's fees incurred in connection therewith, to the maximum extent allowed under California law including but not limited to Civil Code section 2782.8.

5.9.2. Consultant shall promptly pay any judgment rendered against City or any City Personnel for any such claims or liabilities, to the maximum extent allowed under California law including but not limited to Civil Code section 2782.8..

5.9.3. In the event City and/or any City Personnel is made a party to any action or proceeding filed or prosecuted for any such damages or other claims arising out of or in connection with the negligence, recklessness, or willful misconduct of Consultant, Consultant shall pay to City any and all costs and expenses incurred by City or City Personnel in such action or proceeding, together with reasonable attorney's fees and expert witness fees, to the maximum extent allowed under California law including but not limited to Civil Code section 2782.8..

SECTION SIX: RECORDS, REPORTS, AND INTELLECTUAL PROPERTY.

6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning Consultant's performance of the services required by this Agreement as the Contract Officer shall require.

6.2 Records. Consultant shall keep such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the cost and the performance of such services. Books and records pertaining to costs shall be kept and prepared in accordance with generally accepted accounting principles. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records.

6.3 Ownership of Documents and Data. All original drawings, specifications, reports, records, data, documents and other materials, whether in hard copy or electronic form, which are prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement, shall be the property of City and shall be delivered to City upon termination of this Agreement or upon the earlier request of the Contract Officer, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Consultant shall cause all subcontractors to assign to City any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages suffered thereby.

6.4 In the event City or any person, firm or corporation authorized by City reuses said documents and materials without written verification or adaptation by Consultant for the specific purpose intended and causes to be made or makes any changes or alterations in said documents and materials, City hereby releases, discharges, and exonerates Consultant from liability resulting from said change. The provisions of this clause shall survive the completion of this Contract and shall thereafter remain in full force and effect.

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6.5 Intellectual Property and Proprietary Information.

6.5.1. Proprietary Information. All proprietary information developed specifically for City by Consultant in connection with, or resulting from, this Agreement, including but not limited to inventions, discoveries, improvements, copyrights, patents, maps, reports, textual material, or software programs, but not including Consultant's underlying materials, software, or know-how, shall be the sole and exclusive property of City, and are confidential and shall not be made available to any person or entity without the prior written approval of City. Consultant agrees that the compensation to be paid pursuant to this Agreement includes adequate and sufficient compensation for any proprietary information developed in connection with or resulting from the performance of Consultant's services under this Agreement. Consultant further understands and agrees that full disclosure of all proprietary information developed in connection with, or resulting from, the performance of Services by Consultant under this Agreement shall be made to City, and that Consultant shall do all things necessary and proper to perfect and maintain ownership of such proprietary information by City.

6.5.2. Reproduction Rights. Any and all patents and copyrights that arise from the services or the creation of work in carrying out this Agreement shall be vested in City, and Consultant hereby agrees to relinquish all claims to such copyrights in favor of City.

6.5.3. Use of Patented Materials. Consultant shall assume all costs arising from the use of patented or copyrighted materials, including but not limited to equipment, devices, processes, and software programs, used, or incorporated in the Services performed by Consultant under this Agreement. Consultant shall indemnify, defend, and save City harmless from any and all suits, actions, or proceedings of every nature for or on account of the use of any patented or copyrighted materials.

SECTION SEVEN: RELEASE OF INFORMATION/CONFLICTS OF INTEREST.

7.1 Confidentiality. All information gained by Consultant in performance of this Agreement shall be considered confidential and shall not be released by Consultant without City's prior written authorization. Consultant, its officers, employees, agents, or subcontractors, shall not without written authorization from the City Manager or unless requested by the City Attorney, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena.

7.2 Release of Confidential Information. Consultant shall promptly notify City should Consultant, its officers, employees, agents, or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request, court order, or subpoena from any person or party regarding this Agreement and the work performed hereunder or with respect to any project or property located within the City. City retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with City and to provide the opportunity to review any response to discovery

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requests provided by Consultant. However, City's right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.

7.3 Conflicts of Interest Prohibited. Consultant covenants that neither he/she nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree with the performance of their services hereunder. Consultant further covenants that in the performance of this Agreement, no person having such interest shall be employed by them as an officer, employee, agent, or subcontractor.

Consultant further covenants that Consultant has not contracted with nor is performing any services, directly or indirectly, with any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City or the study area and further covenants and agrees that Consultant and/or its subcontractors shall provide no service or enter into any agreement or agreements with a/any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City or the study area prior to the completion of the work under this Agreement.

7.4 Covenant Against Contingent Fee. Consultant covenants that neither it nor any of its officers, employees, agents, or representatives employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement.

Consultant further covenants that neither it nor any of its officers, employees, agents, or representatives has paid or agreed to pay any company or person, other than a bona fide employee of Consultant, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this provision, City shall have the right to annul this agreement without liability, or, at its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fees, gift, or contingent fee.

SECTION EIGHT: LEGAL RELATIONS AND RESPONSIBILITIES.

8.1 Compliance with Law. Consultant shall keep itself fully informed of all existing and future state and federal laws and all county and city ordinances and regulations which in any manner affect those employed by it or in any way affect the performance of services pursuant to this Agreement. Consultant shall at all times observe and comply with all such laws, ordinances, and regulations and shall be responsible for the compliance of all work and services performed by or on behalf of Consultant.

8.2 Licenses, Permits, Fees and Assessments. Except as otherwise specified herein, Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties, and interest, which may be imposed by law and arise from or are necessary for the performance of the services required by this Agreement.

8.3 Covenant Against Discrimination. The Consultant covenants that, by and for itself, its heirs, executors, assigns and all persons claiming under or through them, that there shall be no discrimination against, or segregation of, any person or group of persons on account of

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race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement.

8.4 Independent Contractor. Consultant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise, or a joint venturer, or a member of any joint enterprise with Consultant. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Neither Consultant nor any of Consultant's employees shall, at any time, or in any way, be entitled to any sick leave, vacation, retirement, or other fringe benefits from City; and neither Consultant nor any of its employees shall be paid by City time and one-half for working in excess of forty (40) hours in any one week. City is under no obligation to withhold State and Federal tax deductions from Consultant's compensation.

Neither Consultant nor any of Consultant's employees shall have any property right to any position, or any of the rights an employee may have in the event of termination of this Agreement.

8.5 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount that may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.

8.6 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California.

Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.

8.7 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor.

The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the Contract Officer; provided that if the default is an immediate danger to the health, safety and general welfare, City may take such immediate action as City deems warranted. Compliance with the provisions of this section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's right to terminate this Agreement without cause pursuant to Section 8.11.

8.8 Retention of Funds. City may withhold from any monies payable to Consultant sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably believes were suffered by City due to the default of Consultant in the performance of the services required by this Agreement.

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8.9 Waiver. No delay or omission in the exercise of any right or remedy of a non defaulting party on any default shall impair such right or remedy or be construed as a waiver.

City's consent or approval of any act by Consultant requiring City's consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Consultant. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.

8.10 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.

8.11 Termination Prior To Expiration of Term. This section shall govern any termination of this Agreement, except as specifically provided in the following Section 8.12 for termination for cause. City reserves the right to terminate this Agreement at any time, with or without cause, upon ten (10) days' written notice to Consultant. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 8.8.

8.12 Termination for Default of Consultant. If termination is due to the failure of Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 8.7, take over work and prosecute the same to completion by contract or otherwise, and Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Consultant for the purpose of setoff or partial payment of the amounts owed City as previously stated in Section 8.8.

8.13 Attorney's Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees, whether or not the matter proceeds to judgment.

8.14 Safety. The Consultant shall execute and maintain his/her work so as to avoid injury or damage to any person or property. The Consultant shall comply with the requirements of the specifications relating to safety measures applicable in particular operations or kinds of work. In carrying out his/her work, the Consultant shall at all times exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed, and be in compliance with all applicable federal, state, and local statutory and regulatory requirements including California Department of Industrial Relations (Cal/OSHA) regulations; and the U.S. Department of Transportation Omnibus Transportation Employee Testing Act.

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8.15 Compliance with California Unemployment Insurance Code Section 1088.8. If Consultant is a sole proprietor, then prior to signing the Agreement, Consultant shall provide to City a completed and signed Form W-9, Request for Taxpayer Identification Number and Certification. Consultant understands that pursuant to California Unemployment Insurance Code section 1088.8, City will report the information from Form W-9 to the State of California Employment Development Department, and that the information may be used for the purposes of establishing, modifying, or enforcing child support obligations, including collections, or reported to the Franchise Tax Board for tax enforcement purposes.

8.16 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects.

If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

8.17 Unauthorized Use of City's Name. Except as required by law or with the prior written consent of City (which consent may be withheld in city's sole and absolute discretion), Consultant shall not use City's name, seal or logo in any marketing materials, magazine, trade paper, newspaper, television or radio production or other similar medium, nor shall Consultant state, imply or in any way represent to any third party that City has endorsed or approved Consultant or any of its services or products.

SECTION NINE: MISCELLANEOUS

9.1 Notices. Any notice, demand, request, consent, approval, communication either party desires or is required to give the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing.

Notices personally delivered or delivered by a document delivery service shall be effective upon receipt. Notices delivered by mail shall be effective at 5:00 p.m. on the second calendar day following dispatch.

To City: CITY OF YORBA LINDA
Attention: Rick Yee, Deputy Director of Public Works /
Assistant City Engineer
4845 Casa Loma Avenue
Yorba Linda, CA 92886
To Consultant: INTERWEST CONSULTING GROUP
Attention: Paul Meschino, Vice President of Operations
1 Jenner
Suite 160
Irvine, CA 92618

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9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement.

9.3 Integration; Amendment. This Agreement contains the entire understanding of the parties herein and supersedes any and all other written or oral understandings as to those matters contained herein, and no prior oral or written understanding shall be of any force or effect with respect to those matters covered thereby. No amendment, change or modification of this Agreement shall be valid unless in writing, stating that it amends, changes or modifies this Agreement, and signed by all the parties hereto.

9.4 Severability. In the event that part of this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or inability to enforce shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.

9.5 Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties.

9.6 Statutory References. All references in this Agreement to particular statutes, regulations, ordinances, or resolutions of the United States, the State of California, or the County of Orange shall be deemed to include the same statute, regulation, ordinance or resolution as hereafter amended or renumbered, or if repealed, to such other provisions as may thereafter govern the same subject.

9.7 Special Provisions. Any additional or supplementary provisions or modifications or alterations of this Agreement, if any, shall be set forth in an additional Exhibit “D” (“Special Provisions”) if any such Special Provisions exist. In the event of any discrepancy between the provisions of this Agreement and the Special Provisions, Special Provisions shall take precedence and prevail.

9.8 Contract Documents. The Agreement between the Parties shall consist of the following: (1) this Agreement, (2) the Consultant’s signed, original Proposal dated XXx,xx,xxxx (“Consultant’s Proposal”), and (3) the City’s Request for Proposals, dated XXx,xx,xxxx (“City’s RFP), which shall all be referred to collectively hereinafter as the “Contract Documents”. The Consultant’s Proposal and the City’s RFP, which are both attached hereto as Exhibits “A” and “B”, are hereby incorporated by reference, and are made a part of this Agreement. All provisions of this Agreement, the Consultant’s Proposal, and the City’s RFP shall be binding on the Parties. Should any conflict or inconsistency exist in the Contract Documents, the conflict or inconsistency shall be resolved by applying the provisions in the highest priority document, which shall be determined in the following order of priority, (1st) the terms and conditions of this Agreement, (2nd) the provisions of the City’s RFP (Exhibit “B”) and (3rd) the provisions of the Consultant’s Proposal (Exhibit “A”).
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first written above.

CITY:

CITY OF YORBA LINDA
By:

Its:

CONSULTANT:
(CONSULTANT'S NAME)
By:

Name:

Title:

ATTEST:

By:

Marcia Brown, City Clerk
By:

Dianna Honeywell, Finance Director
By:

Name:

Title:

APPROVED AS TO FORM

RUTAN & TUCKER, LLP
By:

City Attorney, City of Yorba Linda

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EXHIBIT A

SCOPE OF SERVICES

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1500 S. Haven Ave. | Suite 220 | Ontario, CA 91761
909.295.3142
July 5, 2022
Rick Yee, Assistant City Engineer
Public Works Department
City of Yorba Linda
4845 Casa Loma Avenue
Yorba Linda, CA 92886
Re: Proposal to Provide Construction Management and Inspection Services FY 21/22 Annual Pavement Preservation Project
Dear Mr. Yee,
We are pleased to present this letter proposal to the City of Yorba Linda to provide Construction Management and Inspection services for the subject 21-22 Annual Pavement Preservation Project, Zone 6. We understand that construction is anticipated to start in August 2022, and the work to be provided will include and not be limited to:
▪ Attending and running pre-construction & progress meetings ▪ Observing work performed by the contractor for general conformance with the plans and specifications.

The project inspector will be expected to be onsite at all times during construction activities. ▪ Identifying defective work and unacceptable material
▪ Preparing and maintaining record of daily reports, project correspondence, submittals and other documents generated during inspection of the contract work ▪ Taking field measurements, recording test data and documenting field conditions as required to adequately document the construction
▪ Negotiating contract change orders
▪ Coordinating special materials testing
▪ Assisting with project closeout procedures

PROJECT TEAM
To provide Construction Management support, we propose Tom Marnocha QSP, CESSWI. Tom brings more than 35 years of experience in the areas of construction management, inspection, planning, schedule analysis, project management, billings and payments, contract administration and compliance, field engineering, quality assurance, and materials testing for a variety of public works, residential and transportation projects. He possesses a vast array of certifications, including his certifications in QSP (Qualified SWPPP Practitioner) and CESSWI (Certified Erosion, Sediment, and Storm Water Inspector). These two certifications allow Tom to serve as an inspector, monitoring Storm Water Prevention Plans ensuring they are adhering to all California rules and regulations.

Tom’s diverse background allows him to bring a deep understanding and expertise to cities and government agencies on large, complex, high-value construction projects. Projects range from small city projects to multimillion-dollar projects including parks, fire stations, street improvements, and community buildings. Tom is an expert in using the Contract Manager Document Control System which facilitates his ability to collaboratively work with all parties ensuring projects are professionally managed and brought to a successful completion.

To provide Inspection services, we propose Doug Cummings. Douglas has more than 20 years of geotechnical engineering and public works experience in both public and private projects and has had the opportunity to oversee the building of roads, bridges, homes, schools and community centers as well as many other structures.

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Over the years Douglas has had the opportunity to work with over 15 local cities, with a considerable amount of time being spent in Yorba Linda. The work varied from compaction studies to complete oversight of the project.

His knowledge of the construction industry, as well as on-the-job experience, helps him provide thorough and accurate inspections. Douglas stands out with a high-energy and diligent work ethic that aids him in handling all types of clients, builders and city professionals.

QUALIFICATIONS
Below is a sampling of projects that Interwest and our proposed team have provided for the City of Yorba Linda, similar to those required for the 21/22 Annual Pavement Preservation Project. Interwest has provided the Construction Management and Inspection services on the past 18/19, 19/20 Pavement Preservation Projects as well.

City of Yorba Linda | Bastanchury Road Project
Activities involved the installation of two intersections of new traffic signal poles and head, traffic loops, interconnect communication conduit, construction of new horse trail fencing, sidewalk and handicap ramp construction. Interwest provided construction management and field inspection services for this very visible and busy arterial. During construction, previously buried traffic signal foundations were discovered leading to discussion of either relocating the new signal poles or removing the old, buried foundations. We opted to resolve the issue by removing the buried foundations and then backfilling and re-drilling the new traffic signal foundations.

City of Yorba Linda | Yorba Linda Town Center
The Town Center Project was already over budget when Interwest took over the Construction Management and Inspection responsibilities.

This important and high-profile City project had gotten off to a difficult start because the original consultant had underestimated his anticipated schedule and budget. This $3.8 million dollar project included the installation of a new storm drain system, and the widening of Lakeview and Yorba Linda Boulevard with decorative sidewalk, landscaping, and bio-swales. As issues with the prime contractor’s available work force, schedule, and sub-contractors contributed to an initial delay, the City has encouraged the contractor to perform an aggressive overhaul of their schedule and available work forces. The pre-construction phase concluded in May 2015, with the developer breaking ground in early 2016. Construction is ongoing under the supervision of our construction management and inspection staff.

City of Yorba Linda | Richfield Widening Project
This project included the construction of approximately 500 LF of new curb and gutter, sidewalk and a retaining wall. Our employees coordinated utility relocations, survey and materials testing. The design of the project provided many challenges that included complying with ADA handicap access and smooth driveway approaches for low profile vehicles. The Interwest inspector recognized and anticipated these potential issues early in the demolition phase to have these issues for resolved and a redesign provided to the contractor in enough time to not impact the construction schedule in any negative way.

City of Yorba Linda | Yorba Linda Boulevard Rehabilitation Project Activities included grinding the existing pavement and replacing it with new asphalt concrete pavement as well as restriping over roadway and adjusting the utility boxes. This was an important and high-visibility project for the City because the site is a traffic-heavy arterial adjacent to one of Yorba Linda’s busiest shopping centers. During

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Tom Marnocha, QSP, CESSWI
CONSTRUCTION MANAGER | CONSTRUCTION INSPECTOR
Tom brings more than 35 years of experience in the areas of construction management, inspection, planning, schedule analysis, project management, billings and payments, contract administration and compliance, field engineering, quality assurance, and materials testing for a variety of public works, residential and transportation projects. He possesses a vast array of certifications, including his certifications in QSP (Qualified SWPPP Practitioner) and CESSWI (Certified Erosion, Sediment, and Storm Water Inspector). These two certifications allow Tom to serve as an inspector, monitoring Storm Water Prevention Plans ensuring they are adhering to all California rules and regulations.

Tom’s diverse background allows him to bring a deep understanding and expertise to cities and government agencies on large, complex, high-value construction projects.

Projects range from small city projects to multi-million dollar projects including parks, fire stations, street improvements, and community buildings. Tom is an expert in using the Contract Manager Document Control System which facilitates his ability to collaboratively work with all parties ensuring projects are well managed and brought to a successful completion.

PROJECT EXPERIENCE
Construction Manager | Construction Inspector / Interwest Consulting Group / 2011-Present
Tom provides a variety of services to clients in the Southern California region, including construction management, public works construction management and observation, inspection, and SWPPP inspections. He currently provides public works construction management and inspection services on a variety of projects throughout the City of Yorba Linda:
 Bastanchury Road improvement Project – Provided CM services for the road widening and resurface, filterra installation, new sidewalk, curb and gutter and streetlights. Traffic signal improvements.  Culver City, Pedestrian Improvement Project – Provided CM services for multiple locations for new handicap ramps and street corner configurations. Pedestrian crossing signal pole improvements.  Culver City, Washington Place Resurface – Street widening and resurface with sidewalk, handicap ramp and curb & gutter installation.

Signal improvements for pedestrian crossings.
 Town Center Yorba Linda
 Richfield Widening Project – Approximately 500 lineal feet (LF) of new curb and gutter, sidewalk and retaining wall. Coordinated utility relocations, survey and materials testing.
 Hidden Hills Storm Drain Lining Project – 1500 LF of storm drain lining which includes the flushing, video documentation and lining installation.
 Bastanchury Road – Project involved the installation of two intersections of new traffic signal poles and head, traffic loops, interconnect communication conduit, construction of new horse trail with fencing, sidewalk and handicap ramp construction.

Years of Experience: 35+
Education
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Professional Affiliations
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TOM MARNOCHA, QSP, CESSWI – CONSTRUCTION MANAGER | CONSTRUCTION INSPECTOR  Richfield/Buena Vista Street Light Improvement Project – Project included relocating Edison power lines, installation of new traffic signal poles, signal heads and safety lighting, traffic loops and advanced loops and restriping.
 Yorba Linda Medical Office Building – Approximately 10,000 sq. ft. of medical office space. Interwest performed grading, roadwork and sidewalk improvement inspections.  Corta Bella, Heritage, Vista Vel Verdes, Amalfi and Encanto – New residential housing developments totaling more than 500 homes. Interwest performed the grading and SWPP inspections for all three projects.
 Traffic Signal – Provided construction management and inspection for new construction of traffic signal at Richfield/Buena Vista ensuring compliance to the plans and specifications.  Yorba Linda Water District Phase 1 Water Main – Replacement of 5,000 LF of 18” water main. Provided oversight for the city which included compliance to the required traffic control and completion of the final striping to the city standards.
 Traffic Signals – $500,000 new construction project consisting of traffic signals at two intersections.

ADDITIONAL EXPERIENCE
Tom performed construction management and inspection services on a contract basis. Projects included:
 Pier Avenue Streetscape – $4 million project, which had several funding sources including a $1.2 million federal ARRA Grant from the State Water Boards. The primary goals for this project for the City of Hermosa Beach was to improve the aesthetics of the street and improving pedestrian accessibility, parking, landscape and hardscape. Pier Avenue is the City's “main street” in the downtown area connecting Pacific Coast Highway to the City's Municipal Pier and Pier Plaza. Pier Avenue is one of the few MTA Bus Routes in the City and will include new bus shelters and other transit related improvements.
 Civic Center Median – This project for the City of Garden Grove involved replacing the existing landscaping and irrigation on a busy road. Project also involved installing a perimeter decorative mow strip and a city monument with lighting.
 Garden Grove Euclid Intersection Improvement Project – This project included widening the right turn lane on north bound Euclid to east bound Garden Grove, including adding protective barriers at the corner. The project also included adding decorative sidewalk crosswalks and a garden wall at the NE corner of the intersection.
 Freedom Park – $10 million, 23-acre park project in the City of Palm Desert that received the California Park and Recreation Society’s (CPRS) Award of Excellence. Served as Construction Manager for the project, which included underground utility construction; clearing and grubbing; irrigation and landscape installation; rough and finish grading for baseball fields, volleyball courts, tennis courts, skate park, play equipment, and soccer field with an underground drainage system; concrete site improvements; curb and gutter; asphalt parking lot; a Snack Bar and Men’s/Women’s Restroom facility per City of Palm Desert specifications and plans. Coordination with Coachella Valley Water District on the placement of a future well site was a major component of the project.  Palm Desert Redevelopment Agency – Served as the owner’s representative on this $4 million, 8,200 sf Visitor Information Center project. Responsible for quality control and construction safety oversight.

Conducted daily meetings and conferences; and received, managed, and distributed submittals.

Managed all contract administration and compliance. Staff also provided pre-construction (including a biddability/constructability review) and construction management services.  Rancho Mirage Santa Rosa Villa Housing Project – Provided pre-construction services, and construction management and administration-related services for the City’s low-income housing project. Was on site daily serving as owner’s representative. Ensured construction safety oversight, quality control, progress payments, contract administration/compliance, and document control.  Rancho Mirage Public Library – A new $15 million public library, a one-story civic library building of approximately 43,000 square feet on a 9-acre site located along Highway 111 between San Jacinto Drive and Paxton Drive. The building interior floor plan consists of offices, classrooms, a commercial kitchen, a conference room, a dining room, lounges and reading rooms. The site development

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TOM MARNOCHA, QSP, CESSWI – CONSTRUCTION MANAGER | CONSTRUCTION INSPECTOR incorporates two transition roads and parking lots, civil grading/soil export work, architectural surface feature improvements, and irrigation and landscaping.
 Hathaway Park Improvements – As Construction Manager, provided construction management services for the installation of new playground equipment at Hathaway Park for the City of Lomita.  Capital Improvement Projects – Construction Manager and Inspector for capital improvement projects in the City of Lomita ranging from street repair to the construction of new municipal facilities.

Coordinated and scheduled appropriate design services, reviewed completed plans and specifications, prepared or supervised the preparation of bid packages, reviewed bids and provided general engineering supervision during construction. Tracked all project correspondence using Expedition.
 “H” Street Bridge – Provided construction management services for this unique lead abatement/bridge painting project for the City of Sacramento, which was the first fully contained, lead paint removal project on a steel bridge in California as regulated by the promulgation of the EPA’s Title

10. Full containment and redundant systems were required to contain lead paint waste. In addition to knowing the requirements of the lead abatement regulations, he supervised two other inspectors who assisted in the quality assurance program. Routine ambient conditions were taken periodically throughout the day including air temperature, steel surface temperatures, relative humidity and dew point temperature. After abrasive blasting, the inspection team visually inspected the steel surface for cleanliness and anchor profile. After each coat of paint dried, the inspection team randomly tested the dry film mil thickness to assure conformance to the specifications. Other aspects of the project included the repainting of the bridge and maintaining the traffic flow of 45,000 vehicles per day as the work proceeded. (SF 330: 1995/1995)

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Douglas Cummings

CONSTRUCTION INSPECTOR

PROFESSIONAL EXPIERENCE
Doug performed Public Works Inspection services on a contract basis for many years working on the following projects:

Montebello School District / 2008 - 2013
City of Yorba Linda Engineering Department / 2001 - 2010 Fullerton Joint Unified School District / 2003 - 2011
Fullerton Airport / 2003
Imperial Highway Improvement Project / 2000 - 2002
Laguna Hills Sports Park and Community Center / 1997

PROFESSIONAL EXPIERENCE
Construction Inspector / Interwest Consulting Group / 2013 - Present ▪
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Years of Experience: 20+
Education
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2284/009410-1001
10434958.1 a07/12/22 -16-

EXHIBIT B

SCHEDULE OF COMPENSATION
Payment shall be on a “Fixed Fee” basis in accordance with the Consultants Schedule of Compensation attached herewith for the work tasks performed in conformance with Section 2.2 of the Agreement. Total compensation for all work under this contract shall not exceed One Hundred Fifty-Seven Thousand Two Hundred Dollars ($157,200.00) except as specified in Section 1.2 - Changes and Additions to Scope of Services of the Agreement.

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pre-construction meetings and in speaking with local business owners while handing out notifications, Interwest determined that a majority of the grind and overlay should be performed at night in order to minimize the impact on businesses and the traveling public. We were able to negotiate with contractor to eliminate additional costs for the night work, ensuring that the project was completed within budget while satisfying business owners and the general public.

FEE SCHEDULE
We have provided a fee proposal and schedule breakdown of the anticipated costs for your review, below.

Staff Hourly
Rate
PreConstruction Construction PostConstruction Total
Tom Marnocha, QSP, CESSWI
Construction Manager
$165 20 hrs 200 hrs for 20 Weeks
or as/needed 20 hrs $39,600
Douglas Cummings
Construction Inspector
$140 20 hrs 800 hrs 20 hrs $117,600
TOTAL: 40 hrs 1,000 40 $157,200
Furthermore, we appreciate the opportunity to continue serving the City of Yorba Linda. Please contact Jim Ross at 714.742.1551 or [email protected] should you have any questions. If you find our proposal acceptable, please provide a signed notice-to-proceed letter.

Sincerely,
Paul Meschino
Vice President of Operations
Interwest Consulting Group

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2284/009410-1001
10434958.1 a07/12/22 -17-

EXHIBIT C

SCHEDULE OF PERFORMANCE
Consultants Project Schedule is attached and made a part of this agreement. Consultant shall complete services presented within the scope of work contained within Exhibit “A” in accordance with the attached project schedule.

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PUBLIC WORKS DEPARTMENT
DATE: JULY 19, 2022
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: JAMIE LAI, P.E., DIRECTOR OF PUBLIC WORKS/CITY ENGINEER PREPARED BY: JESSE GUTIERREZ, ASSESSMENT DIST. MANAGER
SUBJECT: REJECTION OF ALL BIDS RECEIVED FOR LANDSCAPE MAINTENANCE

WITHIN LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT
PACKAGE B – HIDDEN HILLS

RECOMMENDATION
It is recommended that the City Council reject all bids received for the Landscape Maintenance Within Landscape Maintenance Assessment District Package B – Hidden Hills (Package B).

BACKGROUND
All publicly maintained landscaping and equestrian trails within Maintenance Package B are to be maintained by the Landscape Maintenance Assessment District (LMAD), per the approved Fiscal Year 2022/23 Engineer’s Report. The City advertised for bids to perform the work. The bid package included an agreement for such work to take effect on or about August 1, 2022 and continue through June 30, 2025. The contract could be extended for one (1) two-year renewal term, providing for a potential term of five (5) years.

DISCUSSION
The City received bids from two (2) landscape maintenance contractors as shown below.

Table 1 – Bid Summary

BIDDER AMOUNT

1. NIEVES LANDSCAPE $919,847.38

2. MERCHANTS LANDSCAPE $965,879.88
This bid amount was calculated to include an amount for the base monthly maintenance work amount and additional quantities for anticipated optional/as-needed supplemental work so that the City would not have to enter into potential future “time and materials” contracts for additional work which are typically more expensive and not as competitive.

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R E J E C T I O N O F A L L B I D S R E C E I V E D F O R L A N D S C A P E

M A I N T E N A N C E W I T H I N L A N D S C A P E M A I N T E N A N C E A S S E S S M E N T D I S T R I C T P A C K A G E B – H I D D E N H I L L S P a g e | 2
Unfortunately, the low bid exceeds the previous contract amount by approximately 15% comparing base monthly maintenance work as the basis of comparison.

Maintenance Package B is currently maintained by Merchants Landscape. The current agreement with Merchants still has an option for an additional two years of extensions on the current agreement. Merchants has recently indicated that it is willing to agree to an extension of the current agreement based on a yearly CPI increase of approximately 6.8%.

An extension of the current agreement would cost less than entering into a contract with the low bidder on this bid. City staff intends to prepare an amendment for an extension of the current agreement with Merchants and bring the item to the Council at a future City Council meeting.

FISCAL IMPACT
The rejection of the bids is a financial benefit to the City over the next two years based upon the comparison between the potential extension of the current agreement versus the costs proposed in the bids.

ALTERNATIVES
Council may direct staff to proceed with approval of Nieves Landscape’s bid via a separate staff report recommendation at a future Council meeting date. This is not recommended as the City will incur higher expenses.

ATTACHMENTS
None.

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WITHIN LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT
PACKAGE D – SAN ANTONIO

RECOMMENDATION
It is recommended that the City Council reject all bids received for the Landscape Maintenance Within Landscape Maintenance Assessment District Package D – San Antonio (Package D).

BACKGROUND
All publicly maintained landscaping and equestrian trails within Maintenance Package D, are to be maintained by the Landscape Maintenance Assessment District (LMAD), per the approved Fiscal Year 2022/23 Engineer’s Report. The City advertised for bids to perform the work. The bid package included an agreement for such work to take effect on or about August 1, 2022 and continue through June 30, 2025. The contract could be extended for one (1) two-year renewal term, providing for a potential term of five (5) years.

DISCUSSION
The City received bids from two (2) landscape maintenance contractors as shown below.

Table 1 – Bid Summary

BIDDER AMOUNT

1. NIEVES LANDSCAPE $963,110.88

2. MERCHANTS LANDSCAPE $964,000.92
This bid amount was calculated to include an amount for the base monthly maintenance work amount and additional quantities for anticipated optional/as-needed supplemental work so that the City would not have to enter into potential future “time and materials” contracts for additional work which are typically more expensive and not as competitive.

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R E J E C T I O N O F A L L B I D S R E C E I V E D F O R L A N D S C A P E M A I N T E N A N C E

W I T H I N L A N D S C A P E M A I N T E N A N C E A S S E S S M E N T D I S T R I C T P A C K A G E D – S A N A N T O N I O
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Unfortunately, the low bid exceeds the previous contract amount by approximately 19% comparing base monthly maintenance work as the basis of comparison.

Maintenance Package D is currently maintained by Merchants Landscape. The current agreement with Merchants still has an option for an additional two years of extensions on the current agreement. Merchants has recently indicated that it is willing to agree to an extension of the current agreement based on a yearly CPI increase of 6.8%. An extension of the current agreement would cost less than entering into a contract with the low bidder on this bid. City staff intends to prepare an amendment for an extension of the current agreement with Merchants and bring the item to the Council at a future City Council meeting.

FISCAL IMPACT
The rejection of the bids is a financial benefit over the next two years based upon the comparison between the potential extension of the current agreement versus the costs proposed in the bids.

ATTACHMENTS
None.

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COMMUNITY DEVELOPMENT DEPARTMENT
DATE: JULY 19, 2022
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: DAVID BRANTLEY, COMMUNITY DEVELOPMENT DIRECTOR
PREPARED BY: MARY LEWIS, SENIOR COMMUNITY PRESERVATION

OFFICER
SUBJECT: RESOLUTION NO. 2022-5811 DECLARING THAT WEEDS GROWING

UPON OR IN FRONT OF CERTAIN PROPERTY CONSTITUTE A PUBLIC NUISANCE; DECLARING INTENTION TO PROVIDE FOR THE

ABATEMENT THEREOF AND SETTING A DATE FOR A PUBLIC HEARING

RECOMMENDATION
It is recommended that the City Council adopt Resolution No. 2022-5811, declaring its intention to set a public hearing on August 16, 2022, for this year’s Weed Abatement Program.

BACKGROUND
Every year the City Council implements a Weed Abatement Program to minimize hazardous fire conditions within the City. This involves a multi-step process of informing property owners that have large areas of undeveloped property that are prone to wildfire hazard, due to natural vegetation overgrowth, to perform weed abatement/vegetation reduction within certain specified time frames prior to the heightened portion of the fire season. Although the City does obtain a high degree of compliance from property owners as a result of the initial outreach efforts and subsequent inspections and follow up notifications, there are some number of properties that for various reasons fail to comply in a timely manner.

Article 2, Section 39560 et seq. of the California State Government Code authorizes cities to perform weed abatement on private properties that fail to comply through declaring such properties a public nuisance. The adoption of Resolution No. 2022-5811 is required to declare the City’s intention to set a Public Nuisance Hearing on August 16, 2022, to provide for the Weed Abatement Program and receive any protest(s) relating to the potential Cityabatement of non-compliant, private properties.

Also pursuant to the provisions of these sections of the Government Code, upon the second and any subsequent occurrence of such nuisance on the same parcel or parcels within the same calendar year, no further Hearings need to be held, and it shall be sufficient, prior to abatement, to mail a postcard notice to the owners of the property as they and their

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U P O N O R I N F R O N T O F C E R T A I N P R O P E R T Y C O N S T I T U T E A P U B L I C N U I S A N C E ; D E C L A R I N G I N T E N T I O N T O P R O V I D E F O R T H E

A B A T E M E N T T H E R E O F A N D S E T T I N G A D A T E F O R A P U B L I C

H E A R I N G
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addresses appear upon the current assessment roll, in accordance with the provisions for such notice contained in Section 39562.1 of the Government Code of the State of California.

DISCUSSION
In previous years, the entire Weed Abatement list was presented to City Council (early in the fire season), ahead of any determination of compliance status, to allow the City to quickly conduct abatement of any non-compliant properties that remained non-compliant later on (after conclusion of inspections and compliance determination). Specifically, since determination of non-compliant properties potentially subject to City-abatement was not confirmed until later in the summer (after completion of follow-up inspections), it had been the City’s historic practice to declare all properties on the City’s Weed Abatement List (approximately 1200 properties) as a potential public nuisance due to the existence of hazardous vegetation/wildland fire prone areas on their properties in early summer (midJuly), before the inspection component of the program was completed. The public hearing was then held approximately one month later (in later August) after most inspections were completed. The City Council adopts resolutions for each of these steps in the process: 1) intent to declare applicable properties a public nuisance, and 2) ordering abatement of remaining non-compliant properties, respectively.

Given the extreme fire hazard condition last year (2021 Program) and potential need for additional time for homeowners to arrange for abatement work to be completed due to COVID-19, the resolution of intent was adopted earlier than in prior years (on May 18 th) and
the public hearing and resolution of abatement occurred on June 15th, before completion of the inspection program. For this reason, last year’s resolution ordering abatement also referenced the entire Weed Abatement List of properties, rather than solely a subset of properties that had been confirmed as non-compliant (through inspection). Although the staff report and resolution emphasized that this was to provide a legal mechanism to allow the City the ability to abate non-compliant properties later, after completion of the inspection program, it nevertheless caused concern on the part of some property owners who already had completed weed abatement on their properties and thus were in full compliance. City staff were directed by City Council to look at ways to improve the noticing process.

After further review of the timing of initial compliance letters and the timeframe for completing inspections, staff believes scheduling the two City Council meetings to coincide more closely with the close of the inspection program avoids the need to identify the entire weed abatement list of properties as a “potential” public nuisance in the initial intent resolution.

Staff also believes that by shifting the timing of the initial compliance request letter to late March rather than early-April, the same amount of time to comply (i.e., 65-70 days) can be provided to homeowners, while still allowing the necessary public meetings and related City Council actions to occur in a timely manner, in the interest of public safety. Staff provided an overview of these process modifications to the City Council at their February 15, 2022, regular meeting.

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U P O N O R I N F R O N T O F C E R T A I N P R O P E R T Y C O N S T I T U T E A P U B L I C N U I S A N C E ; D E C L A R I N G I N T E N T I O N T O P R O V I D E F O R T H E

A B A T E M E N T T H E R E O F A N D S E T T I N G A D A T E F O R A P U B L I C

H E A R I N G
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ANALYSIS
Accordingly, the 2022 Weed Abatement Program has been modified. Compliance letters were delivered to the Weed Abatement List property owners on March 16, 2022.

Homeowners were requested to complete weed abatement on their properties by May 25th, approximately 70 days later. Compliance inspections then were conducted from May 26th through July 19th. The currently requested resolution, therefore, includes only those properties that remain out of compliance at the conclusion of the inspection program.

Weed Abatement is an on-going concern within the City of Yorba Linda. In the last several years, California has experienced devastating wildland fires, including the most recent Blue Ridge Fire in Yorba Linda in 2020. This has increased resident awareness of this hazard and they have stepped up their involvement in taking preventive action. In addition to the City’s weed abatement enforcement role, the Orange County Fire Authority also assumes responsibility for Fuel Modification parcels in the City, and for performing Wildland Task Force inspections. The Orange County Fire Authority’s enforcement activities within these areas are separate and apart from the City enforced weed abatement properties.

This increased sensitivity to wildfire threat has resulted in a reduced number of properties remaining out of compliance at the close of the City’s inspection process on July 19th. As of this writing, a total of 24 properties remain out of compliance. However, staff will continue to follow-up with the property owners over the next month or so leading up to the August 16, 2022, public hearing to gain compliance. It is anticipated that even fewer properties will be included in the final abatement list that will be presented to the City Council on August 16th.

FISCAL IMPACT
None at this time. However, the Weed Abatement Program historically has been budgeted under the Weed Abatement section of the Community Preservation Division’s budget. More recently, any required City abatement has been funded under the Public Nuisance section of the Community Preservation budget. Over the last several years, due to a high degree of resident compliance, the City’s cost to abate non-complying properties has averaged approximately $1,200.00 to $15,000.00. The cost of abatement is passed on to owner(s) of the abated property(ies) through a special assessment.

ALTERNATIVES

1. Continue to provide annual notices to properties that meet the Weed Abatement criteria, with no formal procedure or proactive follow-up, other than through standard code enforcement protocol, which is reactive in nature.

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U P O N O R I N F R O N T O F C E R T A I N P R O P E R T Y C O N S T I T U T E A P U B L I C N U I S A N C E ; D E C L A R I N G I N T E N T I O N T O P R O V I D E F O R T H E

A B A T E M E N T T H E R E O F A N D S E T T I N G A D A T E F O R A P U B L I C

H E A R I N G
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ATTACHMENTS

1. Resolution 2022-5811, with Exhibit “A” – 2022 Annual Weed Abatement List Subset of non-compliant properties.

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RESOLUTION NO. 2022-5811

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

YORBA LINDA, CALIFORNIA DECLARING THAT WEEDS

GROWING UPON OR IN FRONT OF CERTAIN PROPERTY

IN THE CITY OF YORBA LINDA CONSTITUTE A PUBLIC
NUISANCE; DECLARING ITS INTENTION TO PROVIDE

FOR THE ABATEMENT THEREOF, AND SETTING A DATE

FOR A PUBLIC HEARING

THE CITY COUNCIL OF THE CITY OF YORBA LINDA DOES FIND, DECLARE AND RESOLVE AS FOLLOWS:

1. That weeds growing upon or in front of, and that rubbish, refuse and dirt upon or in front of certain parcels of land described in Exhibit “A”, on file in the office of the City Clerk, and incorporated herein by this reference, constitute a public nuisance.

2. That the weeds on those certain parcels of land described in Exhibit “A” are seasonal and recurrent nuisances within the meaning of Government Code Section 39562.1.

3. That if said nuisance is not abated by the owners of said parcels of land, it is the intention of the City Council of the City of Yorba Linda to have said nuisance abated in accordance with the provisions of Article II, Title 4, Division 3, Part 2, Chapter 13, Article 3, comprised of Sections 39560 through 39588, inclusive, of the Government Code of the State of California.

4. The Senior Community Preservation Officer of the City of Yorba Linda is hereby designated as the Public Officer to perform the duties imposed by such Article II upon the Officer therein.

5. The Senior Community Preservation Officer is directed to mail notices to the owners of said property as provided in Section 39567.1 of such Code.

6. The time and place for such Hearing and consideration of objections of all property owners having any objections to the proposed abatement of said nuisance by destruction and/or removal of such weeds and removal of rubbish, refuse and dirt, is hereby set at 7:00 p.m. on TUESDAY, AUGUST 16, 2022, in the City Council Chambers located in City Hall, 4845 Casa Loma Avenue, Yorba Linda, California.

7. That as such, upon the second and any subsequent occurrence of said nuisance on the same parcel or parcels within the same calendar year, no further Hearing need be held
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Yorba Linda on this 19
TH day of July 2022.

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RESOLUTION NO. 2022-5811
PAGE NO. 2
__________________________

CARLOS RODRIGUEZ, MAYOR

CITY OF YORBA LINDA
ATTEST:
______________________________

MARCIA BROWN, CITY CLERK

CITY OF YORBA LINDA
APPROVED AS TO FORM:

RUTAN & TUCKER, LLP
__________________________

CITY ATTORNEY

STATE OF CALIFORNIA )
ss.

COUNTY OF ORANGE )
I, MARCIA BROWN, City Clerk of the City of Yorba Linda, California, DO HEREBY CERTIFY that the foregoing Resolution was adopted at a regular meeting of the City Council of the City of Yorba Linda held on the 19th day of July, 2022, and was carried by the following roll call vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:
_________________________________

MARCIA BROWN, CITY CLERK

CITY OF YORBA LINDA

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JULY 19, 2022 CITY COUNCIL MEETING
CONSENT CALENDAR ITEM NO. 14 - RESOLUTION NO. 2022-5811 DECLARING THAT

WEEDS GROWING UPON OR IN FRONT OF CERTAIN PROPERTY CONSTITUTE A PUBLIC NUISANCE; DECLARING INTENTION TO PROVIDE FOR THE ABATEMENT

THEREOF AND SETTING A DATE FOR A PUBLIC HEARING

REVISION TO EXHIBIT A OF RESOLUTION RECEIVED AFTER POSTING OF AGENDA

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PARKS AND RECREATION DEPARTMENT
DATE: JULY 19, 2022
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: MICHEAL KUDRON, DIRECTOR OF PARKS AND RECREATION
PREPARED BY: BRAD SKEENE, PARKS AND FACILITIES

SUPERINTENDENT
SUBJECT: REJECTION OF BIDS FOR THE PLAYGROUND SAFETY SURFACING

RENOVATION PROJECT

RECOMMENDATION
It is recommended that the City Council:

 Reject all bids for the Playground Safety Surfacing Renovation Project.

BACKGROUND
To prolong the life and effectiveness of the resilient rubber playground safety surfacing, regular maintenance is required. The playgrounds at the following parks are due for this necessary maintenance: Eastside Community Park, Box Canyon Park, Veterans Park and Bryant Ranch Park.

DISCUSSION
In accordance with the City’s formal competitive purchasing policy, staff published bid notices and requested proposals from qualified firms to propose on the required scope of work indicated in the Request for Proposals.

Proposals were received and publicly opened on June 30, 2022, at 9:00 a.m. One potential firm submitted proposals for the project with the following result:

Bidder City Amount of Bid

1. Ortco, Inc Orange, CA $ 494,594
The engineer’s estimate for the project was $350,000. Due to the fact that there was only one bid received and this bid was significantly higher than the engineer’s estimate, staff is recommending that the City Council reject all bids received. Staff intends to rebid the project in an effort to get more companies to propose on the project. Pending a successful bid process, staff anticipates that work on the playground surfacing would begin in September.

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REJECTION OF BIDS FOR THE PLAYGROUND SAFETY SURFACING RENOVATION

PROJECT
P a g e | 2

FISCAL IMPACT
The Playground Safety Surfacing Renovation Project was approved by City Council as part of the FY 2022/23 Capital Improvement Program budget with a construction budget of $370,000.

ALTERNATIVES

1. Do not approve the staff recommendation and award the construction of the project to the low-bidder, Ortco, Inc.

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ADMINISTRATION DEPARTMENT
DATE: JULY 19, 2022
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: MARK PULONE, CITY MANAGER
PREPARED BY: TODD LITFIN, CITY ATTORNEY
SUBJECT: TELECONFERENCED MEETINGS PURSUANT TO GOVERNMENT CODE § 54953(e)

RECOMMENDATION
It is recommended that the City Council adopt Resolution No. 2022-5816 authorizing teleconferenced meetings pursuant to the requirements of Government Code § 54953(e).

BACKGROUND
During the COVID-19 pandemic, the Governor issued Executive Order No. N-29-20, which suspended the Brown Act’s requirements for teleconferencing, so long as specified requirements relating to public participation in such meetings were satisfied. That executive order was recently rescinded. In its place, the State legislature and the governor have approved Assembly Bill 361 (AB 361) which added Government Code § 54953(e) to the Brown Act. Government Code § 54953(e) modifies the teleconferencing requirements of the Brown Act to allow a legislative body to meet without granting public access to the locations where members of the body are teleconferencing, such as their private residences, or allowing public access to public facilities as long as the public may participate electronically/telephonically in real time during the meeting.

Government Code § 54953(e) imposes three primary requirements for virtual public meetings:
 A proclaimed state of emergency coupled with imposed or recommended social distancing measures, or a vote that as a result of the emergency, meeting in person would present imminent health or safety risks;  For meetings subsequent to the first virtual meeting, certain enumerated findings authorizing teleconferenced meetings pursuant to Government Code § 54953(e); and
 Compliance with public notice and “real time” participation requirements either telephonically or via an internet based provider. Local agencies may not require that comments be submitted in advance, and no official action may occur if public access to the virtual meeting is disrupted.

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T E L E C O N F E R E N C E D M E E T I N G S P U R S U A N T T O G O V E R N M E N T C O D E § 5 4 9 5 3 ( e )
P a g e | 2
As to the current status of whether there is an “emergency”, on March 4, 2020, Governor Gavin Newsom proclaimed a state of emergency in California due to the COVID-19 pandemic. The emergency declaration to date has not been lifted by the Governor. The California Department of Public Health’s (“CDPH”) current guidance strongly recommends all persons, regardless of vaccination status, wear masks in indoor public settings.

Furthermore, based on the number and location of recent positive COVID-19 cases at City Hall, the City meets the Cal/OSHA definition of a “workplace outbreak” and the City is taking additional measures in accordance with the Cal/OSHA regulations to mitigate the outbreak.

The current state of emergency authorizes local agencies to conduct meetings under Government Code § 54953(e) with the adoption of the attached resolution containing the findings required by Government Code § 54953(e). In order to continue to conduct meetings, the City has to readopt the findings every 30 days.

FISCAL IMPACT
Minimal costs pertaining to providing remote access to Councilmembers, City staff and the public.

ALTERNATIVES
Not approve Resolution No. 2022-5816 and either conduct meetings in person or pursuant to the normal teleconferencing requirements of the Brown Act.

ATTACHMENTS

1. Resolution No. 2022-5816.

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539/009410-1001
18046021.1 a07/14/22
RESOLUTION NO. 2022-5816

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

YORBA LINDA, CALIFORNIA, MAKING FINDINGS

NECESSARY FOR REMOTE PARTICIPATION IN PUBLIC

MEETINGS OF THE CITY COUNCIL AND COMMISSIONS OF

THE CITY OF YORBA LINDA, AS AUTHORIZED BY
GOVERNMENT CODE § 54953(e)
WHEREAS, the Ralph M. Brown Act (Brown Act) requires, with specified exceptions, that all meetings of the City Council of the City of Yorba Linda, and its subordinate legislative bodies (collectively, “Public Bodies”), be open and public and that all persons be permitted to attend and participate; and WHEREAS, the Brown Act allows for meetings to occur via teleconferencing subject to certain requirements, particularly that Public Bodies notice each teleconference location of each member that will be participating in the public meeting, that each teleconference location be accessible to the public, that members of the public be allowed to address the Public Body at each teleconference location, that the Public Body post an agenda at each teleconference location, and that at least a quorum of the Public Body participate from locations within the boundaries of the City; and WHEREAS, during the COVID-19 pandemic and pursuant to authority provided under the California Emergency Services Act, the Governor issued Executive Order No.

N-29-20, which suspended the Brown Act’s requirements for teleconferencing provided that notice and accessibility requirements were met, the public members were allowed to observe and address Public Bodies at their meetings, and that the Public Body had a procedure for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities; and
WHEREAS, Executive Order No. N-29-20 has been rescinded; and WHEREAS, on September 16, 2021 the Governor signed Assembly Bill 361 (AB 361) which adopted Government Code § 54953(e) that establishes further refinements to the procedures that may be used by the City when allowing for remote participation in meetings of Public Bodies; and
WHEREAS, Government Code § 54953(e) authorizes the City to use teleconferencing without complying with the teleconferencing requirements imposed by the Brown Act (prior to adoption of AB 361) when the City Council finds that the meeting will be held during a declared state of emergency and state or local health officials have imposed or recommended measures to promote social distancing (Remote Participation Findings); and
WHEREAS, if the Remote Participation Findings are made, Government Code § 54953(e) requires that Public Bodies give notice of the meeting and post agendas, as described in Government Code § 54953(e), to allow members of the public to access the

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RESOLUTION NO. 2022-5816
PAGE 2
539/009410-1001
18046021.1 a07/14/22 -2-
meeting and address the Public Body, to give notice of the means by which members of the public may access the meeting and offer public comment, including an opportunity for all persons to attend via a call-in option or an internet-based service option, and to conduct the meeting in a manner that protects the statutory and constitutional rights of the parties and the public appearing before the Public Body; and WHEREAS, if the City exercises the option for remote participation under Government Code § 54953(e), it cannot require that public comments be submitted in advance of the meeting and body must provide an opportunity for the public to address Public Bodies and offer comment in real time; and
WHEREAS, when there is a continuing state of emergency and state or local officials have imposed or recommended measures to promote social distancing, Government Code § 54953(e) requires that the City Council make specified findings not later than 30 days after the first teleconferenced meeting pursuant to Government Code § 54953(e), and to make those findings every 30 days thereafter, in order to continue to meet under the abbreviated teleconferencing procedures specified therein; and WHEREAS, on March 4, 2020, Governor Newsom declared a state of emergency pertaining to COVID-19 and that state of emergency has not to date been lifted; and WHEREAS, the California Department of Public Health’s (“CDPH”) current guidance strongly recommends all persons, regardless of vaccination status, wear masks in indoor public settings.

WHEREAS, based on the number and location of recent positive COVID-19 cases at City Hall, the City meets the Cal/OSHA definition of a “workplace outbreak” and the City is taking additional measures in accordance with the Cal/OSHA regulations to mitigate the outbreak.; and
NOW, THEREFORE, BE IT RESOLVED AND ORDERED by the City Council of the City of Yorba Linda, California as follows:

SECTION 1. The above recitals are true and correct and incorporated herein.

SECTION 2. The City Council of the City of Yorba Linda, for itself and for each of its subordinate legislative bodies, finds and declares as follows:
 A continued state of emergency, as declared by the State of California, exists.  The City Council of the City of Yorba Linda has reconsidered the circumstances of the state of emergency.
 The state of emergency continues to directly impact the ability of the Council members to meet safely in person and the City of Yorba Linda and State of California continue to impose or recommend measure to promote social distancing including without limitation (i) promoting and utilizing remote attendance options at City Council meetings, (ii) allowing work from home arrangements for City

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RESOLUTION NO. 2022-5816
PAGE 3
539/009410-1001
18046021.1 a07/14/22 -3-
employees, (iii) using barriers and other means of separating employees from one another and from the public throughout City facilities and (iv) requiring masks to be worn regardless of vaccination status in all indoor public settings.

SECTION 3. The City Council of the City of Yorba Linda, and all of its subordinate legislative bodies, shall comply with the provisions and requirements of Government Code § 54953(e) during each and every public meeting where remote participation of a Council member, board member, commissioner, or committee member (as the case may be) occurs, unless such participation complies with the Brown Act’s pre-AB 361 teleconferencing requirements.

SECTION 4. The City Manager, or designee, is authorized and directed to take all action necessary to implement this Resolution.

PASSED AND ADOPTED by the City Council of the City of Yorba Linda at a regular meeting held on the 19th day of July, 2022.
_________________________________

CARLOS RODRIGUEZ, MAYOR

CITY OF YORBA LINDA
ATTEST:
________________________________

MARCIA BROWN, CITY CLERK

CITY OF YORBA LINDA
APPROVED AS TO FORM:

RUTAN & TUCKER, LLP
________________________________

CITY ATTORNEY

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RESOLUTION NO. 2022-5816
PAGE 4
539/009410-1001
18046021.1 a07/14/22 -4-

STATE OF CALIFORNIA )

COUNTY OF ORANGE ) SS

CITY OF YORBA LINDA )
I, MARCIA BROWN, City Clerk of the City of Yorba Linda, HEREBY DO CERTIFY that the foregoing Resolution was duly adopted at a regular meeting of the City Council of the City of Yorba Linda, held on the 19th day of July, 2022.

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
________________________________

MARCIA BROWN, CITY CLERK

CITY OF YORBA LINDA

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CITY OF YORBA LINDA

PLANNING COMMISSION

AGENDA ITEM SUMMARY
Meeting Date: June 29, 2022
Community Development Department
Planning Division
Director
David Brantley, AICP
APPROVAL OF MAY 11, 2022, PLANNIING COMMISSION MEETING MINUTES A motion by Chair Pro Tem Pease, Second by Commissioner Masterson approving the May 11, 2022, Planning Commission meeting minutes. The motion carried (5-0) with the following roll call vote:

AYES: Pease, Bernstein, Darnell, Masterson, Singh
NOES: None
ABSENT: None
ABSTAIN: None
APPROVAL OF MAY 25, 2022, PLANNING COMMISSION MEETING MINUTES A motion by Chair Pro Tem Pease, Second by Commissioner Masterson approving the May 25, 2022, Planning Commission meeting minutes. The motion carried (5-0) with the following roll call vote:

AYES: Pease, Bernstein, Darnell, Masterson, Singh
NOES: None
ABSENT: None
ABSTAIN: None
PUBLIC HEARING RE: CONDITIONAL USE PERMIT 2022-17 CHANG A motion by Commissioner Bernstein, Second by Commissioner Masterson to continue Conditional Use Permit 2022-17 Chang to a date certain of July 13, 2022. The motion carried (5-0) with the following roll call vote:

AYES: Darnell, Pease, Bernstein, Masterson, Singh
NOES: None
ABSENT: None
ABSTAIN: None
PUBLIC HEARING RE: CONDITIONAL USE PERMIT 2022-11, CONDITIONAL USE PERMIT 2022-23, AND DESIGN REVIEW 2022-02 LONGBALL INVESTMENTS, LLC.

A motion by Commissioner Bernstein, Second by Commissioner Masterson to continue Conditional Use Permit 2022-11, Conditional Use Permit 2022-23 and Design Review 2022- 02 Longball Investments, LLC. to a date certain of July 13, 2022. The motion carried (5-0) with the following roll call vote:

AYES: Pease, Bernstein, Darnell, Masterson, Singh
NOES: None Page 417 of 474
2 ABSENT: None
ABSTAIN: None
CONTINUED DESIGN REVIEW 2021-17 THE CHURCH OF JESUS CHRIST OF LATTERDAY SAINTS A minute motion by Commissioner Masterson, Second by Commissioner Singh approving Design Review 2021-17 The Church of Jesus Christ of Latter-Day Saints with conditions. The motion carried (5-0) with the following roll call vote:

AYES: Darnell, Pease, Bernstein, Masterson, Singh
NOES: None
ABSENT: None
ABSTAIN: None
PUBLIC HEARING RE: GENERAL PLAN AMENDMENTS AND ZONING CODE AMENDMENTS ASSOCIATED WITH THE 2021-2029 HOUSING ELEMENT

IMPLEMENTATION
A motion by Commissioner Singh, Second by Commissioner Bernstein adopting Resolution No. 5508 recommending the City Council adopt various General Plan Amendments and Zoning Code Amendments as reflected in attached Exhibits “A” through “D” to implement the 2021-2029 Housing Element as required by State Law in addition to adding Measure B language to the Planned Development zone change and adding open space language specific to the Fairmont site. The motion carried (4-1) with the following roll call vote:

AYES: Singh, Pease, Bernstein, Masterson
NOES: Darnell
ABSENT: None
ABSTAIN: None
Adjournment: The meeting adjourned at 11:45 p.m. to the July 13, 2022, Planning Commission meeting at 6:30 p.m.

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CITY OF YORBA LINDA

PLANNING COMMISSION

AGENDA ITEM SUMMARY
Meeting Date: July 13, 2022
Community Development Department
Planning Division
Director
David Brantley, AICP
APPROVAL OF JUNE 29, 2022, PLANNIING COMMISSION MEETING MINUTES A motion by Commissioner Bernstein, Second by Chair Pro Tem Pease approving the June 29, 2022, Planning Commission meeting minutes. The motion carried (4-0-1-0) with the following roll call vote:

AYES: Pease, Bernstein, Darnell, Singh
NOES: None
ABSENT: Masterson
ABSTAIN: None
CONTINUED DESIGN REVIEW 2022-02, CONDITIONAL USE PERMIT 2022-11, CONDITIONAL USE PERMIT 2022-23 LONGBALL INVESTMENTS, LLC.

A minute motion by Chair Pro Tem Pease, Second by Commissioner Singh approving Design Review 2022-02 Longball Investments, LLC. with conditions. The motion carried (4-0-1-0) with the following roll call vote:

AYES: Pease, Bernstein, Darnell, Singh
NOES: None
ABSENT: Masterson
ABSTAIN: None
A motion by Chair Pro Tem Pease, Second by Commissioner Bernstein adopting Resolution No. 5509 approving Conditional Use Permit 2022-11 Longball Investments, LLC. with conditions. The motion carried (4-0-1-0) with the following roll call vote:

AYES: Pease, Bernstein, Darnell, Singh
NOES: None
ABSENT: Masterson
ABSTAIN: None
A motion by Commissioner Pease, Second by Commissioner Bernstein adopting Resolution No. 5510 approving Conditional Use Permit 2022-23 Longball Investments, LLC. with conditions. The motion carried (4-0-1-0) with the following roll call vote:

AYES: Pease, Bernstein, Darnell, Singh
NOES: None
ABSENT: Masterson
ABSTAIN: None

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2 CONTINUED CONDITIONAL USE PERMIT 2022-17 CHANG
A motion by Chair Darnell, Second by Commissioner Bernstein adopting Resolution No. 5511 approving Conditional Use Permit 2022-17 Chang with conditions. The motion carried (3-1-1-0) with the following roll call vote:

AYES: Darnell, Bernstein, Singh
NOES: Pease
ABSENT: Masterson
ABSTAIN: None
SIGN REQUEST 2022-02 CLYDE’S HOT CHICKEN
A minute motion by Commissioner Bernstein, Second by Commissioner Singh approving Sign Request 2022-02 Clyde’s Hot Chicken with conditions. The motion carried (4-0-1-0) with the following roll call vote:

AYES: Pease, Bernstein, Darnell, Singh
NOES: None
ABSENT: Masterson
ABSTAIN: None
GOVERNMENT CODE SECTION NO. 65402 FINDING RE: VACATION OF LANDSCAPE EASEMENT AT 24340 VIA LENARDO
A motion by Commissioner Singh, Second by Commissioner Bernstein adopting Resolution No. 5512 finding that the proposed vacation of the subject landscape easement areas conforms to the Yorba Linda General Plan, as required by State Government Code Section No. 65402. The motion carried (4-0-1-0) with the following roll call vote:

AYES: Darnell, Pease, Bernstein, Singh
NOES: None
ABSENT: Masterson
ABSTAIN: None
GOVERNMENT CODE SECTIONS 65103(c), 65401 AND 65402 FINDING FOR THE 2022/23 – 2028/29 CAPITAL IMPROVEMENT PROGRAM
A motion by Chair Pro Tem Pease, Second by Commissioner Singh adopting Resolution No. 5513 determining the proposed 2022/23 – 2028/29 Capital Improvement Program (CIP) conforms with the Yorba Linda General Plan, as required by State Government Code Section Nos. 65103(C), 65401, and 65402. The motion carried (4-0-1-0) with the following roll call vote:

AYES: Darnell, Pease, Bernstein, Singh
NOES: None
ABSENT: Masterson
ABSTAIN: None
Adjournment: The meeting adjourned at 7:44 p.m. to the July 27, 2022, Planning Commission meeting at 6:30 p.m.

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CITY CLERK'S OFFICE
DATE: JULY 19, 2022
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: MARCIA BROWN, CMC, CITY CLERK
SUBJECT: COUNCIL COMMITTEE AND AGENCY REPORTS

RECOMMENDATION
It is recommended that the City Council receive and file this report.

DISCUSSION
City Council members serve on a number of outside committees and agencies. Attached are updates received recently from these agencies.

ATTACHMENTS

1. Reports from City Council Organizations, Agencies and Committees

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July 2022

ANNOUNCEMENTS
Strategic Planning Session
On July 13, the Commission will conduct the agency’s strategic planning workshop. The workshop will begin promptly at 8:30 a.m. and take place at the County of Orange Civic Center, 601 North Street, Room 104, Santa Ana, CA 92701.

The half-day session, scheduled to end by 12:00 noon and will include a review and potential refining of the agency’s goals that will be used by staff to develop the Fiscal Year 2022-2023 Work Plan for consideration by the Commission in August. There will also be a brief discussion on any changes involving the Commission’s strengths, weaknesses and opportunities since the September workshop. Additionally, at the beginning of the workshop, there will be an opportunity for the Commission to receive comments from the public. Announcement of the workshop has been distributed to our local agencies and other OC LAFCO subscribers.

Additional information on parking and other accommodations has been sent to you in a separate email.

Future OC LAFCO Regular Meetings
Beginning in September, OC LAFCO Regular Meetings will be held at the County of Orange Civic Center. OC LAFCO staff is currently working with staff of the County Executive Office to finalize the specific details. As the new Civic Center is still under construction, the Commission’s first few meetings at the Civic Center may experience slight adjustments to the meeting room location. Staff will ensure that the Commission is notified of the respective location in advance of each meeting, as well as publish the location in the agenda and on the agency’s website for the public.

Staff appreciates your patience during this transition.

Upcoming CALAFCO Webinar
Here’s an opportunity to learn more about one of the many complexities of the LAFCO process! Join the next CALAFCO webinar titled “Sharing the Wealth,” where you will hear from expert panelists on the property tax exchange process for counties, cities and special districts involving boundary changes. The panel will include a representative from the Orange County Auditor-Controller. This exciting webinar will take place on Thursday, July 21, 2022, from 1-3 p.m. You can sign up and get more information on the webinar at the CALAFCO website (www.calafco.org).

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Laboratory Report, July 21, 2022 Attachment No. 1
Vector of the Month
Western Black-Legged Tick, Ixodes pacificus
Ixodes pacificus is a species of hard tick that has
been recovered from a variety of hosts along the
Pacific Coast from Washington and Oregon through
California. Included in the host records are birds
(quail), mammals (cats, dogs, deer, chipmunks,
pocket mice, deer mice, horses, and man), and
lizards (fence and alligator lizards). Ixodes pacificus is found mainly in wooded and grassy areas across
the state.

In the early 1980s, I. pacificus was incriminated
as a potential vector of the type of bacteria that
causes Lyme disease. This disease was first
recognized in 1975 in Lyme, Connecticut, and is
characterized by annular skin lesions (erythema
chronicum migrans) that may be followed by
arthritic, neurologic, or cardiac symptoms several
weeks or months later. The disease is caused by a
microbe called a spirochete (scientifically referred
to as Borrelia burgdorferi), which may be seen
moving in a serpentine fashion under a microscope.

People are most commonly exposed to the Lyme
disease agent by the immature nymphal tick, which
is active in the spring and early summer; an average
of 5-15% of nymphal western black-legged ticks in
California are infected with B. burgdorferi.
1 Relatively few cases of Lyme disease were
diagnosed in California in the early 1980s; however,
after recognition of this disease by the medical
community, a significant increase in diagnosed
cases has occurred. Typically, 80 – 100 cases are
recognized each year in the state, with the highest
number of infections occurring in Trinity,
Mendocino, Humboldt, Mono, Sierra, and Nevada
Counties. Because the
symptoms of this
disease are variable, it
is possible that some
victims of Lyme disease
go undiagnosed.

The Orange County
Mosquito and Vector
Control District
initiated a monitoring and testing program for ticks
and spirochetes in 1984, which continues to this
day. In March of 1991, B. burgdorferi spirochetes
were isolated from a male I. pacificus collected near
San Clemente in February. Since that time, more
than 5,000 I. pacificus from Orange County have
been checked for spirochetes and all other
specimens have tested negative for B. burgdorferi.

Although some people have claimed to have
acquired Lyme disease while residing in Orange
County, most infections have been attributed to
people visiting northern California and the eastern
U.S., where Lyme disease is more common.

The principal protection against Lyme disease
is awareness. Individuals are encouraged to avoid
problems by learning more about the vector ticks
and their natural habits and habitats. People are
advised to avoid areas where ticks occur, or if
potential exposure is unavoidable, use both
protective clothing and tick repellents, check the
entire body for ticks daily, and promptly remove
attached ticks.
1 http://www.cdph.ca.gov/healthinfo/LymeDisease.aspx
Tick Removal
• Use Tweezers and grasp the tick’s mouthparts as close to the skin as possible.
• Gently pull the tick straight out with steady pressure. • Do not twist or jerk the tick.
• Do not try to remove the tick by burning it or applying ointment or lotion.
• Apply an antiseptic to the bite area after removing tick. • Wash your hands with soap and water. Page 423 of 474
Tick Bite: What to Do
Ticks bites can make people sick. Below are some steps that you can take after a tick bite to reduce your chances of getting sick and how to get treatment promptly if you do get sick.

Remove the tick as soon as possible

1.Use fine-tipped tweezers to grasp the tick as close to the skin as you can.

2.Pull upward with steady, even pressure. Don’t twist or jerk the tick.

3.After removing the tick, clean the bite area and your hands with rubbing alcohol or soap and water.

4.Dispose of the tick by flushing it down the toilet. If you would like to bring the tick to your healthcare provider for identification, put it in rubbing alcohol or place it in a sealed bag/container.

Consider calling your healthcare provider
In general, CDC does not recommend taking antibiotics after tick bites to prevent tickborne diseases. However, in certain circumstances, a single dose of doxycycline after a tick bite may lower your risk of Lyme disease. Consider talking to your healthcare provider if you live in an area where Lyme disease is common.

Watch for symptoms for 30 days
Call your healthcare provider if you get any of the following:
• Rash
• Fever
• Fatigue
• Headache
• Muscle pain
• Joint swelling and pain
Treatment for tickborne diseases should be based on symptoms, history of exposure to ticks, and in some cases, blood test results. Most tickborne diseases can be treated with a short course of antibiotics.

CS310465-A November 03, 2021
Laboratory Report July 21, 2022 Attachment No. 2

Page 424 of 474 ends

Common questions after a tick bite
Should I get my tick tested for germs?
Some companies offer to test ticks for specific germs. CDC strongly discourages using results from these tests when deciding whether to use antibiotics after a tick bite. • Results may not be reliable. Laboratories that test ticks are not required to meet the same quality standards as laboratories used by clinics or hospitals for patient care. • Positive results can be misleading. Even if a tick contains a germ, it does not mean that you have been infected by that germ.
• Negative results can also be misleading. You might have been bitten unknowingly by a different infected tick.

Can I get sick from a tick that is
crawling on me but has not yet
attached?
Ticks must bite you to spread their
germs. Once they attach to you,
they will feed on your blood and can
spread germs. A tick that is crawling
on you but not attached could not
have spread germs. However, if you
have found a tick crawling on you,
it’s a sign there may be others: do a
careful tick check.

How long does a tick need to be
attached before it can spread
infection?
Depending on the type of tick and
germ, a tick needs to be attached
to you for different amounts of time
(minutes to days) to infect you with
that germ.

Your risk for Lyme disease is
very low if a tick has been attached
for fewer than 24 hours. Check for
ticks daily and remove them as soon
as possible.

WHERE TO CHECK FOR TICKS
www.cdc.gov/ticks/
Laboratory Report July 21, 2022 Attachment No. 2

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JULY 19, 2022 CITY COUNCIL MEETING
CONSENT CALENDAR ITEM NO. 19 - COUNCIL COMMITTEE AND

AGENCY REPORTS

ADDITIONAL MATERIAL RECEIVED AFTER POSTING OF AGENDA

Page 426 of 474 ends

Transportation Corridor Agencies
For the July 14, 2022, Meeting

BOARD MEETING HIGHLIGHTS

F/ETCA BOARD OF DIRECTORS
Peggy Huang, Chair,

YORBA LINDA
Joseph Muller, Vice Chair,

DANA POINT
Trevor O’Neil,

ANAHEIM
Farrah Khan,
IRVINE
Scott Voigts,

LAKE FOREST
Patricia Kelley,

MISSION VIEJO
Mark A. Murphy,
ORANGE
Anthony Beall,

RANCHO SANTA MARGARITA
John Taylor,

SAN JUAN CAPISTRANO
David Penaloza,

SANTA ANA
Austin Lumbard,
TUSTIN
Donald P. Wagner,
COUNTY OF ORANGE, 3RD DIST.

Doug Chaffee,
COUNTY OF ORANGE, 4TH DIST.

Lisa Bartlett,
COUNTY OF ORANGE, 5TH DIST.

Ryan Chamberlain, Ex-Officio
Member, CALTRANS DIST. 12

SJHTCA BOARD OF DIRECTORS
Will O’Neill, Chair,

NEWPORT BEACH
Janine Heft, Vice Chair,

LAGUNA HILLS
Richard Hurt,

ALISO VIEJO
Arlis Reynolds,

COSTA MESA
Richard Viczorek,

DANA POINT
Farrah Khan,
IRVINE
Fred Minagar,

LAGUNA NIGUEL
Cynthia Conners,

LAGUNA WOODS
Patricia Kelley,

MISSION VIEJO
John Taylor,

SAN JUAN CAPISTRANO
David Penaloza,

SANTA ANA
Donald P. Wagner,
COUNTY OF ORANGE, 3RD DIST.

Lisa Bartlett,
COUNTY OF ORANGE, 5TH DIST.

Ryan Chamberlain, Ex-Officio
Member, CALTRANS DIST. 12
73/133/241/261 TOLL ROADS

FOOTHILL/EASTERN TRANSPORTATION CORRIDOR AGENCY PAYS DOWN $125 MILLION IN BONDS EARLY
On July 15, the Foothill/Eastern Transportation Corridor Agency (F/ETCA) executed an early paydown of $125 million in bond debt.

The early paydown of bond principal that had a maturity date of 2053 is expected to save the Agency approximately $180 million in interest payments.

The early paydown is part of the Transportation Corridor Agencies’ (TCA) groundbreaking seven-year Strategic Plan, approved earlier this year by their two Boards of Directors. The fiscal management component of the Strategic Plan recommended both Agencies pay down approximately $600 million, combined, in early bond principal payments over the next seven years.

Five more early paydown opportunities are scheduled, allowing the Agencies to collectively save nearly $1.4 billion in interest over a 10-year horizon while still investing in improvements to The Toll Roads.

PAYNEARME HIGHLIGHTS SUCCESSFUL RELATIONSHIP WITH THE TOLL ROADS
On July 11, PayNearMe – the partner the Agencies work with to accept cash payments from drivers – published a case study about the success of its relationship with TCA.

PayNearMe provides payment flexibility to customers through thousands of retail locations across the country, allowing them to pay tolls, violations and/or replenish FasTrak® accounts at participating 7-Eleven, CVS Pharmacy, Walmart, Family Dollar and Walgreens locations.

In Fiscal Year 2022, nearly a quarter of a million payments totaling $7 million were processed through PayNearMe at about 4,000 locations.

PayNearMe partnered with TCA to place QR codes on customer correspondence to make paying a toll, resolving toll violations and funding FasTrak accounts as easy as possible.

With the introduction of QR codes, the Agencies anticipated a 5% increase in payments made through PayNearMe. However, payments via PayNearMe have increased an incredible 640%.

TCA SHARES LESSONS AND VISION IN PEER EXCHANGE WITH AUSTRIAN

GOVERNMENT TOLLING AGENCY
In late June, staff from The Toll Roads hosted a peer
exchange with representatives from ASFINAG, the
Austrian government-owned corporation responsible for
all the country’s tolling facilities.

The purpose of the peer exchange was to share
information, experiences, best practices and trends
impacting the tolling industry globally. ASFINAG plans, finances, builds, maintains, operates and tolls in a
nation that has 1,400 miles of toll roads that provide
sustainable revenues for transportation and innovation.

Among the topics discussed were the history of the Agencies and current environmental sustainability programs, as well as their Strategic Plan. ASFINAG shared several initiatives, including Connected Vehicle Technology, leading-edge clean renewable energy creation and an interface with digital assistance to pay tolls while on the road.

Many of the initiatives ASFINAG has envisioned are part of the Agencies’ adopted Strategic Plan. TCA staff gained insight and inspiration from several ASFINAG concepts and will present for research and pilot consideration at the Strategic Planning Workshop, set for November. Page 427 of 474

PUBLIC WORKS DEPARTMENT
DATE: JULY 19, 2022
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: JAMIE LAI, P.E., DIRECTOR OF PUBLIC WORKS / CITY ENGINEER PREPARED BY: JESSE GUTIERREZ, ASSESSMENT DIST. MANAGER
SUBJECT: PUBLIC HEARING DECLARING THE VACATION OF THE LANDSCAPE EASEMENT AT 24340 VIA LENARDO

RECOMMENDATION
It is recommended that City Council:

1. Adopt Resolution No. 2022-5815 (Attachment 2), declaring the landscape easement at 24340 Via Lenardo, Assessor’s Parcel Number (APN) 353-244-09, as unnecessary for present or prospective public use and vacating the same pursuant to California Streets & Highways Code Section 8300 et seq.; and

2. Direct staff execute a release agreement with the property owner to keep existing on-grade irrigation infrastructure within the proposed vacated easement area; and

3. Direct staff to continue to irrigate and maintain the designated areas until the final recordation of the landscape easement vacation documents are processed; and

4. Direct the City Clerk to cause a certified copy of the proposed resolution to be recorded in the Office of the Clerk-Recorder, County of Orange upon completion of any removal of irrigation equipment undertaken by the City.

BACKGROUND
The property owner at 24340 Via Lenardo (“Subject Property”) has requested the vacation of the landscape easement on the property in order to extend his backyard. The Subject Property is located on Via Lenardo and is in the local Landscape Maintenance Assessment District (LMAD) Zone L1-A. The easement is located on the slope at the rear of the property which abuts the BNSF railroad easement.

Staff reviewed the property owners request and found that the proposed improvement would be located within the city easement for landscape maintenance purposes. The easement area is located on at the rear landscaped slope abutting the BNSF railroad easement that was part of the original development.

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P U B L I C H E A R I N G D E C L A R I N G T H E V A C A T I O N O F T H E L A N D S C A P E E A S E M E N T A T 2 4 3 4 0 V I A L E N A R D O P a g e | 2
The proposed improvements would conflict with the irrigation and maintenance operations of the landscaped area. The property owner indicated an interest in acquiring the landscape easement. The existing irrigation system would be modified to exclude the area proposed to be vacated. Staff reviewed the property owner’s request and is in favor of the vacation the landscape easement.

On June 21, 2022, the City Council approved Resolution No. 2022-5808 declaring its intent to vacate the landscape easement at 24340 Via Lenardo, directed staff to require a release of liability agreement be executed by the property owner to allow the existing above grade irrigation lines to remain in place, and to set July 19, 2022, as the Public Hearing date for the vacation process.

DISCUSSION
The purpose of this public hearing is to hear evidence and testimony offered by persons interested in the proposed vacation. At the conclusion of the public hearing, if the City Council finds that the landscape easement is unnecessary for present or prospective public use, the City Council may order the vacation of the easements by adopting Resolution No. 2022-5815 (Attachment 2).

Streets & Highways Code Section 8300 et seq. sets forth the procedures for vacating public service easements, such as said landscape easement. First, the City Council adopts a resolution declaring its intent to vacate the easement and instructs the City Clerk to set the hearing and publish and post the required notices. On June 21, 2022, the City Council adopted Resolution No. 2022-5808, declaring its intent to vacate the landscape easement, and directing staff to publish and post the Notice of the Public Hearing on the proposed vacation.

The City Clerk has caused the Notice of Public Hearing to be published in the Yorba Linda Star for two consecutive weeks prior to the public hearing. The City Engineer has caused the Notice of Public Hearing to be posted and staked on the property pursuant to the requirements of the Streets & Highways Code, not later than June 30, 2022.

Pursuant to Government Code section 65402, the Planning Commission considered and found that the proposed disposition of the property is consistent with the City’s General Plan.

This finding was made at a Planning Commission meeting, which was held on July 13, 2022.

FISCAL IMPACT
There will be minor costs related to 1) the modification of the existing irrigation systems to isolate them from the areas that will no longer be maintained; and 2) the irrigation and maintenance that will continue until the completion of the easement vacation process. The costs associated with the modification of the existing irrigation system will be covered using the deposited funds provided by the property owner. Deposited funds are available in the Project Account No. 7010000-227560, for vacation number VAC22-001. There will be a reduction in potential future operating and maintenance costs to the Zone by way of removing future maintenance and irrigation responsibilities.

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P U B L I C H E A R I N G D E C L A R I N G T H E V A C A T I O N O F T H E L A N D S C A P E E A S E M E N T A T 2 4 3 4 0 V I A L E N A R D O P a g e | 3

ALTERNATIVES
Do not accept the staff recommendation and defer action to a later date.

ATTACHMENTS

1. Attachment 1 – Vicinity Map

2. Attachment 2 – Resolution No. 2022-5815, with Exhibits

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Not to Scale
BASTANCHURY RD.

IMPERIAL HWY 90
YORBA LINDA BLVD.

LAKEVIEW AVE. FAIRMONT BLVD.

VILLAGE CENTER DR.

CA-91 HWY CITY OF YORBA LINDA YORBA RANCH RD. NORTH CA-57 HWY City of Yorba Linda
Public Works
KELLOGG DR.

VACATION SITE VICINITY MAP
ATTACHMENT No. 1

BNSF RAIL ROAD

LA PALMA

LOMAS DE YORBA VACATION SITE

VIA LENARDO

VACATION SITE

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RESOLUTION NO. 2022-5815

A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF YORBA LINDA, CALIFORNIA, DECLARING THE
LANDSCAPE EASEMENT AT 24340 VIA LENARDO

UNNECESSARY FOR PRESENT OR PROSPECTIVE

PUBLIC USE AND VACATING THE SAME PURSUANT TO

CALIFORNIA STREETS AND HIGHWAYS CODE
SECTION 8300 ET SEQ.

WHEREAS, the City Council of the City of Yorba Linda ("City Council") initiated proceedings on June 21, 2022, to vacate the landscape easement at 24340 Via Lenardo in the City of Yorba Linda, County of Orange, California (Subject Property); and WHEREAS, in order for the City Council to initiate proceedings to vacate the landscape easement on the Subject Property, it must comply with the provisions of the Public Streets, Highways, and Service Easements Vacation Law of the Streets and Highway Code of the State of California (Streets and Highways Code §8300 et. seq.) ("Vacation Law"); and
WHEREAS, the Vacation Law requires specific procedures for the vacation of public streets and easements; and
WHEREAS, notices of this vacation were duly posted and published pursuant to the requirements of California Streets and Highways Code Section 8300 et seq.; and WHEREAS, a hearing regarding this vacation was duly held on July 19th, 2022, pursuant to the requirements of the Vacation Law.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Yorba Linda as follows:

Section 1. Recitals. The Recitals above are true and correct and are incorporated herein by reference.

Section 2. General Plan Consistency. On July 13, 2022, the Planning Commission of the City of Yorba Linda determined that vacation of the landscape easements on the Subject Properties is consistent and in conformity with the General Plan of the City of Yorba Linda.

Section 3. Order of Vacation. The City Council, under the authority vested in it by the California Streets and Highways Code, Division 9. - Change of Grade and Vacation, Part 3. - Public Streets, Highways, and Service Easements Vacation Law (Sections 8300 et seq.), Chapter 3. – General Vacation Procedure, hereby finds that the landscape easements on the Subject Properties, as more specifically described in

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RESOLUTION NO. 2022-5815
PAGE NO. 2
Exhibit “A” and depicted in Exhibit “B” (attached) is unnecessary for present or prospective public use and orders the vacation of the landscape easements on the Subject Properties.

Section 4. Conditions of Vacation. The City Council, under the authority vested in it by the California Streets and High Code Section 8324(b), hereby requires that the vacations only occur after the on-grade irrigation infrastructure within the designated easement areas to be vacated in Exhibits A is removed to the satisfaction of the City Engineer. This condition is required prior to the completion of the vacations and shall be known as the Conditions of Vacation.

Section 5. Recorded Date. The City Clerk shall record a certified copy of this Resolution with the Orange County Recorder. The City Clerk shall attest to the copy so recorded. From and after the date this resolution is recorded with the Orange County Recorder’s Office, the Subject Property will no longer be encumbered by the City’s landscape easement.

Section 6. Effective Date. This Resolution shall become effective upon its adoption.

PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Yorba Linda on this 19th day of July, 2022. __________________________

CARLOS RODRIGUEZ, MAYOR

CITY OF YORBA LINDA
ATTEST:
____________________________

MARCIA BROWN, CITY CLERK

CITY OF YORBA LINDA
APPROVED AS TO FORM:

RUTAN & TUCKER LLP
__________________________

CITY ATTORNEY

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RESOLUTION NO. 2022-5815
PAGE NO. 3

STATE OF CALIFORNIA )
ss.

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:
________________________________

MARCIA BROWN, CITY CLERK

CITY OF YORBA LINDA

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CITY CLERK'S OFFICE
DATE: JULY 19, 2022
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: MARCIA BROWN, CMC, CITY CLERK
SUBJECT: DESIGNATING VOTING DELEGATE FOR LEAGUE OF CALIFORNIA CITIES 2022 ANNUAL CONFERENCE

RECOMMENDATION
It is recommended that the City Council designate a voting delegate and up to two alternates to vote at the Annual Business meeting of the League of California Cities 2022 Annual Conference in September.

DISCUSSION
The League of California Cities will hold its Annual Conference on September 7 – 9 in Long Beach. An important part of the Annual Conference is the Annual Business meeting. At this meeting, the League membership considers and takes action on resolutions that establish League policy. Consistent with League bylaws, a city’s voting delegate and up to two alternates must be designated by the City Council. As of this writing, Councilwoman Peggy Huang has indicated that she will be in attendance at the Annual Conference.

FISCAL IMPACT
There is a $650 conference registration fee per attendee. Funding is available under account number 1010100-426050.

ATTACHMENTS

1. League of California Cities Letter.

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ADMINISTRATION DEPARTMENT
DATE: JULY 19, 2022
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: PAMELA STOKER, ECONOMIC DEVELOPMENT MANAGER
SUBJECT: PURCHASE AND SALE AGREEMENT AND JOINT ESCROW

INSTRUCTIONS WITH EVAN CARL, DBA EVANS SMOKEHOUSE LLC,

FOR THE SALE OF THE CITY-OWNED VACANT PARCEL LOCATED AT 4859 MAIN STREET, YORBA LINDA (APN# 323-304-19) AND THIRD

AMENDMENT TO THE LEASE AGREEMENT BETWEEN THE CITY AND
EVAN’S SMOKEHOUSE

RECOMMENDATION
It is recommended that the Yorba Linda City Council authorize the City Manager to enter into the attached Purchase and Sale Agreement and Joint Escrow Instructions with Evan Carl, dba Evan’s Smokehouse LLC, to sell the City-owned vacant parcel located at 4859 Main Street, Yorba Linda (APN# 323-304-19), for the purpose of developing an eating establishment.

It is further recommended that the City Council also approve a Third Amendment to the Lease Agreement allowing Evan’s Smokehouse to continue its operations at 4859 Main Street during the escrow process.

BACKGROUND
Evan’s Smokehouse has occupied a 5,000 square foot, City-owned lot at 4859 Main Street for the past 20 months as a temporary location for an outdoor barbeque establishment. The use was proposed to be interim until the City could reasonably determine the highest and best use for the property. The site had been historically used as public parking lot consisting of approximately 10 parking stalls. However, with the construction of the Town Center public parking structure, it was envisioned that vacant infill property in the vicinity would ultimately be developed to help boost commercial interest along Main Street and encourage pedestrians and patrons to the area.

Although the City has not actively marketed the site, staff has received interest from the current tenant to acquire the property and build a permanent restaurant facility and eliminate the temporary nature of his business operation.

In conjunction with contemplating the sale of the property and as required by State law, the City offered the property as a potential housing site, consistent with Government Code Sections

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PURCHASE & SALE AGREEMENT – EVAN’S SMOKEHOUSE
P a g e | 2
54220-54234 related to the Surplus Lands Act. The notice of land availability was sent to over 1,000 housing-related developers identified on the Housing and Community Development (HCD) website on December 20, 2021. Only one response was received, but the entity chose not to respond nor negotiate during the 60-day negotiation period. Staff assumes the lack of housing interest is quite possibly due to the location within a commercial downtown district and relatively small lot size.

As such, the City has completed the requirements pursuant to the Surplus Lands Act and received confirmation in letter from HCD, dated June 14, 2022, that the City may now proceed with the lease or sale of the property

DISCUSSION
The subject property is a key component to Town Center and the ultimate development of infill properties along the Main Street corridor.

Upon successful lease of the site, the restauranteur has communicated his interest in acquiring the property to develop a 2,700 square foot, two-story full-service BBQ restaurant with outdoor patio dining.

The negotiated Purchase and Sale Agreement suggests the opening of escrow upon execution of the contract. The buyer will also be required to place in escrow $25,000 in earnest money within 5 days of opening escrow. The agreed upon purchase price for the site is $240,000 or $48.00 per square foot, which is fairly consistent with the valuation for comparable, vacant commercial properties in the vicinity. For example, the City sold a vacant commercial parcel at the corner of Arroyo and School Street to Clyde’s Hot Chicken in 2020 for $50 per square foot. That location was valued at a slightly higher price per square foot due to the property being located on a hard corner with higher visibility and proximity to the parking structure. Discussions with City Council suggested that a slightly lesser value might be applied to the inline, less prominent location on Main Street. However, the valuation is perceived to be fair market value.

Certain conditions for both the Buyer and Seller would need to be met, including award of full entitlements, prior to the close of escrow. The Buyer projects an anticipated closing date of March 31, 2023, with an outside closing date of July 31, 2023. The Agreement contemplates the terms and conditions for both the Buyer and Seller in effectuating the real estate transaction. For example, the Buyer, among other obligations, will 1) obtain full entitlement approvals for a full-service restaurant; 2) be fully responsible for all on-site improvements, including utilities, drainage, landscaping, trash, etc.; 3) commit to provide the required off-site parking as part of the City’s parking in-lieu program; 4) complete due diligence of the property during the escrow period and acquire the site in as-is condition; and 5) share all closing costs with the Seller as described in Section 8 of the Agreement.

As in any real estate transaction, the surety of a final closing hinges on all conditions being satisfied during the escrow period. However, as part of this Purchase and Sale Agreement, the City and Evan Carl have agreed to work cooperatively in finalizing the real property

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PURCHASE & SALE AGREEMENT – EVAN’S SMOKEHOUSE
P a g e | 3
transfer and obtaining the required project approvals to ensure the ultimate development of a BBQ restaurant on the site.

LEASE AGREEMENT
The City’s lease with Evan’s Smokehouse at the Main Street location began in October 2020. The original lease terms called for a one-year lease with a possible 6-month extension. The first extension was granted in October 2021 and continued through April 2022. Earlier this year the lease was extended for an additional six months per the lessee’s request to allow additional time to operate while the Purchase & Sale Agreement was negotiated. The current lease is set to expire on August 31, 2022.

Staff is recommending that a Third Amendment to the Lease Agreement be approved to allow the restauranteur to continue to operate his restaurant at 4859 Main Street while the property is in escrow. The Third Amendment would allow for an 11-month lease period (September 1, 2022, through July 31, 2023) with intent to terminate the lease upon close of escrow. Additionally, the monthly lease rate will be increased by 8%, consistent with the current CPI, which would be effective September 1, 2022. All other terms and conditions would remain in effect as originally agreed upon.

PROJECT SCHEDULE
The anticipated project schedule suggests closing of escrow in spring of next year, building permit issuance by summer with construction commencing soon thereafter. An 8-month construction period would then suggest a restaurant opening in Spring 2024.

FISCAL IMPACT
Proceeds from this land sale will be deposited into the General Fund along with in-lieu parking fees to be determined as part of the Conditional Use Permit and Design Review process.

ALTERNATIVES
The City Council may wish to revise the terms and conditions established in the attached Purchase and Sale Agreement and Joint Escrow Instructions or decline the offer and postpone the sale of the property to a later date.

The Third Amendment to the Lease Agreement may be considered separate from the Purchase Agreement and may be amended or revised to the Council’s pleasure.

ATTACHMENTS
Attachment A – Purchase and Sale Agreement and Joint Escrow Instructions Attachment B – Third Amendment to the Lease Agreement Between the City of Yorba Linda and Evan’s Smokehouse

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AGREEMENT FOR PURCHASE AND SALE

AND JOINT ESCROW INSTRUCTIONS
by and between

CITY OF YORBA LINDA
(“SELLER”)
and
EVAN CARL, EVAN’S SMOKEHOUSE
(“BUYER”)

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AGREEMENT FOR PURCHASE AND SALE

AND ESCROW INSTRUCTIONS
This AGREEMENT FOR PURCHASE AND SALE AND ESCROW
INSTRUCTIONS (“Agreement”) is made and entered into as of July ___, 2022 (“Effective Date”), by and between the CITY OF YORBA LINDA, a California municipal corporation (“Seller”) and Evan’s Smokhouse, LLC __________________ (“Buyer”).

R E C I T A L S:

A. Seller (“City”) is the owner of that certain unimproved real property located at 4859 Main Street,Yorba Linda, CA 92886, County of Orange, State of California, commonly identified as APN 323-304-19 (“Property”). The Property is depicted in Exhibit “A”, which is attached hereto and incorporated herein by this reference.

B. Buyer desires to purchase the Property “”from Seller and Seller desires to sell the Property to Buyer, on the terms and conditions set forth herein.

A G R E E M E N T:

NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, and the mutual covenants herein contained, the parties hereto agree as follows:

1. PURCHASE PRICE.

1.1 Amount. Subject to the terms of this Agreement, Buyer hereby agrees to purchase the Property from Seller and Seller agrees to sell the Property to Buyer, for the purchase price of Two Hundred Forty Thousand Dollars ($240,000) (the “Purchase Price”).

1.2 Payment of Purchase Price. The Purchase Price shall be paid in accordance with the following:

1.2.1 Within five (5) days after the “Opening of Escrow,” Buyer shall deposit with “Escrow Holder” (as those terms are defined in Section 3.1) as an earnest money deposit the sum of Twenty-Five Dollars ($25,000) (the “Earnest Money Deposit”). ’’In the event the “Escrow” (as that term is defined in Section 3.1) closes, Escrow Holder shall apply the Earnest Money Deposit towards the Purchase Price. In the event the Escrow is terminated and fails to close, for any reason other than Seller’s default of the terms hereof, Escrow Holder shall promptly, but no later than five (5) days after said termination, release the Earnest Money Deposit to Seller. Notwithstanding anything in this Agreement to the contrary, a portion of the Earnest Money Deposit, in the amount of One Hundred Dollars ($100) (the “Independent Contract Consideration”), shall be released immediately to City as consideration for Seller’s execution and delivery of this Agreement and Buyer’s right to approve or disapprove any Buyer contingencies set forth in this Agreement with respect to the Property. The Independent Contract Consideration

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is in all respects nonrefundable to Buyer as consideration for Seller’s execution and delivery of this Agreement and Buyer’s right to approve or disapprove any Buyer contingencies set forth in this Agreement.

1.2.2 On or before 5:00 p.m. on the business day preceding the “Closing Date” (as that term is defined in Section 4.1) or such earlier time as required by Escrow Holder in order to close Escrow on the Closing Date, Buyer shall deposit with Escrow Holder in Good Funds the Purchase Price, less the Earnest Money Deposit, and such additional funds as may be required to meet Buyer’s portion of the closing costs as hereinafter provided.

2. DUE DILIGENCE. As used herein, the term “Due Diligence Period” shall refer to a period of time to expire upon the date that is one hundred twenty (120) days after the Effective Date. Buyer’s obligation to consummate the transactions contemplated by this Agreement is subject to and conditioned upon Buyer’s approval, deemed approval or waiver of the right to approve of the following contingencies set forth in this Section 2 (collectively, the “Contingencies”):

2.1 Title/Survey. Seller shall deliver to Buyer, at Buyer’s expense, within five (5) days after the Effective Date of this Agreement, a preliminary title report prepared by First American Title Insurance Company (the “Title Company”), dated not more than thirty (30) days earlier than the Effective Date describing the state of title of the Property together with copies of all underlying documents (collectively the “Preliminary Title Report”). Buyer may, at its sole cost and expense, obtain a current survey of the Property or any portion thereof (the “Survey”), provided it commences to do so within thirty (30) days after the Effective Date.

2.1.1 Notwithstanding anything herein to the contrary, Seller shall be obligated to remove all monetary encumbrances against the Property excluding nondelinquent real property taxes and assessments. Buyer shall notify Seller in writing of any objections Buyer may have to title exceptions contained in the Preliminary Title Report or matters shown on the Survey (if Buyer obtains) no later than the date which is thirty (30) days after the later of (i) Buyer’s receipt of the Preliminary Title Report or (ii) (if applicable) Buyer’s receipt of the Survey (“Buyer’s Objection Notice”). Buyer’s approval or disapproval of the matters set forth in the Preliminary Title Report and the Survey may be granted or withheld in Buyer’s sole and absolute discretion. Buyer’s failure to provide Seller with a Buyer’s Objection Notice within said period shall constitute Buyer’s approval of all exceptions to title shown on the Preliminary Title Report and all matters shown on the Survey. Seller shall have a period of fifteen (15) days after receipt of Buyer’s Objection Notice in which to deliver written notice to Buyer (“Seller’s Notice”) of Seller’s election to either (i) agree to remove the objectionable items on the Preliminary Title Report and/or Survey prior to the “Close of Escrow” (as that term is defined in Section

4.1), or (ii) decline to remove any such title exceptions and/or Survey matters and terminate the Escrow and the obligations of Buyer and Seller to purchase and sell the Property under this Agreement. Seller’s failure to provide Buyer with Seller’s Notice within said period shall constitute Seller’s election not to remove the objectionable items on the Preliminary Title Report and/or the Survey. If Seller notifies Buyer of its election, or is

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deemed to have elected, to terminate rather than remove the objectionable items on the Preliminary Title Report and/or Survey, Buyer shall have the right, by written notice delivered to Seller within five (5) days after Buyer’s receipt of Seller’s Notice, to agree to accept the Property subject to the objectionable items, in which event Seller’s election to terminate shall be of no effect, and Buyer shall take title at the Close of Escrow subject to such objectionable items without any adjustment to or credit against the Purchase Price.

2.1.2 Upon the issuance of any amendment or supplement to the Preliminary Title Report which adds additional exceptions, including any survey exceptions, the foregoing right of review and approval shall also apply to said amendment or supplement; provided, however, that Buyer’s initial period of review and approval or disapproval of any such additional exceptions shall be limited to fifteen (15) days following receipt of notice of such additional exceptions. The process set forth above for Buyer’s review and Seller’s response shall apply to any review and response with respect to any amendment or supplement to the Preliminary Title Report, and the Close of Escrow shall be extended for such period as is necessary to allow for that review and response process to be completed.

2.2 Environmental Condition. Buyer shall have access to the Property, as described in this Section 2.3, in order to permit Buyer or its directors, engineers, analysts, officers, employees, agents, contractors, representatives, attorneys or advisors (collectively, the “Buyer Representatives”) to investigate the Property.

2.2.1 During the Due Diligence Period, Seller shall permit Buyer and Buyer Representatives, at the sole cost and expense of Buyer, to conduct physical inspections of the Property, including the site work, soil, subsurface soils, drainage, seismic and other geological and topographical matters, location of asbestos, toxic substances, hazardous materials or wastes, if any, and any other investigations as Buyer deems prudent with respect to the physical condition of the Property in order to determine the Property’s suitability for Buyer’s intended development. In no event shall Buyer conduct any intrusive testing procedures on the Property without the prior written consent of Seller, which consent shall not be unreasonably withheld. Such investigations may be made by Buyer and/or Buyer Representatives during any normal business hours. Seller shall cooperate to assist Buyer in completing such inspections and special investigations at no cost or expense to Seller. Such inspections and investigations shall be conducted only upon no less than twenty-four (24) hours’ notice to Seller and shall be conducted at such times and in such a manner as to minimize any disruption to the Property. Seller shall have the right, but not the obligation, to accompany Buyer during such investigations and/or inspections.

2.2.2 As a condition to any such entry, Buyer shall (i) conduct all work or studies in a diligent, expeditious and safe manner and not allow any dangerous or hazardous conditions to occur on the Property during or after such investigation; (ii) comply with all applicable laws and governmental regulations; (iii) keep the Property free and clear of all materialmen’s liens, lis pendens and other liens arising out of the entry and work performed under this paragraph; (iv) maintain or assure maintenance of

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workers’ compensation insurance (or state approved self-insurance) on all persons entering the property in the amounts required by the State of California; (v) provide to Seller prior to initial entry a certificate of insurance evidencing that Buyer and/or the persons entering the Property has procured and has in effect an all-risk public liability insurance policy meeting the following requirements: (1) the insurance shall be written on a per occurrence and not claims-made basis; (2) the amount of insurance shall be a combined single limit of not less than Two Million Dollars ($2,000,000.00) with a deductible or self-insured retention amount of not more than One Hundred Thousand Dollars ($100,000); (3) the policy shall name or be endorsed to Seller and Seller’s officers, members, officials, employees, agents, and representatives (collectively, “Seller & Seller Personnel”) as additional insureds; (4) the insurance shall not contain any special limitations on the scope of protection afforded to Seller & Seller Personnel; (5) the policy shall not be canceled by the insurer or Buyer unless there is a minimum of thirty (30) days prior written notice to Seller; (6) the insurer shall waive subrogation rights against the Seller & Seller Personnel; and (7) the insurance shall be primary insurance and not contributory with any insurance any of Seller & Seller Personnel may have; and (8) the insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer’s liability; and (vi) following Buyer’s entry, repair any and all damage to the Property caused by such inspections or investigations in a timely manner. Notwithstanding anything to the contrary herein, Buyer may satisfy the above insurance requirements through self-insurance.

2.2.3 Buyer shall promptly pay and discharge all demands for payment relating to Buyer’s entry on and investigation of the Property and take all other steps to avoid the assertion of claims of lien against the Property. In the event a claim of lien is recorded by reason of Buyer’s entry on the Property, Buyer, within twenty (20) days of such recordation, shall either (i) record or deliver a surety bond sufficient to release such claim or lien in accordance with applicable law; or (ii) provide Seller with such other assurance as Seller may require for the payment of the claim or lien. Seller may elect to record and post notices of non-responsibility from time to time on and about the Property.

2.2.4 Prior to expiration of the Due Diligence Period, Buyer shall notify Seller in writing (i) of Buyer’s election to terminate the Escrow and this Agreement, if Buyer disapproves of the physical or environmental conditions of the Property and, as a result, does not wish to proceed with purchasing the Property (“Buyer’s Property Termination Notice”), or (ii) of any objections Buyer may have (the “Disapproved Property Matters”) to any physical or environmental conditions of the Property (“Buyer’s Property Objection Notice”). Buyer’s approval or disapproval of the physical and environmental conditions of the Property may be granted or withheld in Buyer’s sole and absolute discretion. In the event Buyer terminates this Agreement pursuant to this Section, Buyer and Seller shall be relieved of all further liability under this Agreement, and Buyer shall be entitled to the refund of Earnest Money Deposit. Buyer’s failure to provide Seller with a Buyer’s Property Termination Notice or a Buyer’s Property Objection Notice prior to the expiration of the Due Diligence Period shall constitute Buyer’s approval of the condition of the Property. If Buyer provides to Seller Buyer’s Property Objection Notice, Seller shall have a period of fifteen (15) days after receipt of Buyer’s Property Objection Notice in which to deliver written notice to Buyer (“Seller’s Response”) of

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Seller’s election to either (i) agree to remove the Disapproved Property Matters prior to the Close of Escrow, or (ii) decline to remove the Disapproved Property Matters and terminate Escrow and the obligations of Buyer and Seller to purchase and sell the Property under this Agreement. Seller’s failure to provide Buyer with Seller’s Response within said period shall constitute Seller’s election not to remove the Disapproved Property Matters prior to the Close of Escrow. If Seller notifies Buyer of its election, or is deemed to have elected, to terminate rather than remove the Disapproved Property Matters, Buyer shall have the right, by written notice delivered to Seller within five (5) days after Buyer’s receipt of Seller’s Response, to agree to accept the Property subject to the Disapproved Property Matters, in which event Seller’s election to terminate shall be of no effect, and Buyer shall take title at the Close of Escrow subject to such Disapproved Property Matters without any adjustment to or credit against the Purchase Price.

3. ESCROW.

3.1 Opening of Escrow. Closing of the sale of the Property shall take place through an escrow (“Escrow”) to be established within three (3) business days after the Effective Date with First American Title Insurance Company, at its office located at 18500 Von Karman Avenue, Suite 600, Irvine, CA 92621 (“Escrow Holder”). The opening of the Escrow (the “Opening of Escrow”) shall be deemed to be the date that a fully executed copy of this Agreement is delivered to the Escrow Holder. Escrow Holder is instructed to notify Buyer and Seller in writing of the date of the Opening of Escrow.

3.2 Escrow Instructions. This Agreement, once deposited in Escrow, shall constitute the joint escrow instructions of Buyer and Seller to Escrow Holder. Additionally, if Escrow Holder so requires, Buyer and Seller agree to execute the form of escrow instructions that Escrow Holder customarily requires in real property escrows administered by it. In the event of any conflict or inconsistency between Escrow Holder’s standard instructions and the provisions of this Agreement, the provisions of this Agreement shall supersede and be controlling.

4. CLOSE OF ESCROW.

4.1 Close of Escrow; Outside Closing Date. Provided that all of the conditions of this Agreement precedent to the “Close of Escrow” (as hereinafter defined) have been satisfied (or waived by the appropriate party) prior to or on the “Outside Closing Date,” (as hereinafter defined) the closing of this transaction for the sale and purchase of the Property shall take place on the date which is five (5) days after the date on which all of “Buyer’s Conditions to Closing” and all of “Seller’s Conditions to Closing” (as those terms are defined in Section 8) have been satisfied (or waived by the appropriate party); provided, however, in no event shall the closing of this transaction occur, if at all, later than July 31, 2023 (“Outside Closing Date”). The terms “Close of Escrow” and the “Closing Date” are used herein to mean the time Seller’s grant deed conveying fee title to the Property to Buyer, substantially in the form attached hereto and incorporated herein as Exhibit “B” (the “Grant Deed”) is recorded in the Official Records of the Office of the County Recorder of Riverside (“Official Records”). If Escrow is not in a condition to close by the Outside Closing Date, either party not then in default hereunder may, upon five (5)

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days advance written notice to the other party and Escrow Holder, elect to terminate this Agreement and the Escrow. No such termination shall release either party then in default from liability for such default. If neither party so elects to terminate this Agreement and the Escrow, Escrow Holder shall close the Escrow as soon as possible.

4.2 Recordation; Release of Funds and Documents. Upon the Closing Date, Escrow Holder shall deliver (i) the Purchase Price, less any of Seller’s closing costs, to Seller, and (ii) conformed copies of all recorded documents to both Buyer and Seller.

4.3 Escrow Cancellation Charges. If the Escrow does not close due to a default by one of the parties, the defaulting party shall bear all “Escrow Cancellation Charges” (as that term is defined below). If the Close of Escrow does not occur for any reason other than the default of a party, then Buyer and Seller shall each pay fifty percent (50%) of any Escrow Cancellation Charges. As used herein, “Escrow Cancellation Charges” means all fees, charges and expenses incurred by Escrow Holder or third parties engaged by Escrow Holder, as well as all expenses related to the services of the Title Company in connection with the issuance of the Preliminary Title Report and other title matters.

5. DELIVERY OF DOCUMENTS REQUIRED FROM BUYER AND SELLER.

5.1 Buyer’s Obligations. Buyer agrees that on or before 5:00 p.m. of the last business day immediately preceding the Closing Date, Buyer shall deposit or cause to be deposited with Escrow Holder the following:
(a) the Purchase Price, less the Earnest Money Deposit; and (b) any and all additional funds, instruments or other documents required from Buyer (executed and acknowledged where appropriate) as may be reasonably necessary in order for the Escrow Holder to comply with the terms of this Agreement.

5.2 Seller’s Obligations. Seller agrees that on or before 5:00 p.m. of the last business day immediately preceding the Closing Date, Seller shall deposit or cause to be deposited with Escrow Holder each of the following:
(a) the executed and acknowledged Grant Deed;
(b) a Certificate of Non-Foreign Status (the “Non-Foreign Affidavit”) Necessary executed and acknowledged by Seller in the form attached hereto as Exhibit “C”; and
(c) all other funds, items, and instruments required from Seller (executed and acknowledged where appropriate) as may be reasonably necessary in order for Escrow Holder to comply with the provisions of this Agreement.

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6. TITLE INSURANCE POLICY.

6.1 Title Policy. At the Closing Date, the Title Company, as insurer, shall issue a standard ALTA owner’s standard coverage policy of title insurance (“Title Policy”), in favor of Buyer, as insured, with liability in the amount of the Purchase Price, subject to the following:
(a) non-delinquent real property taxes and assessments; (b) title exceptions approved or deemed approved by Buyer pursuant to Section 2.2 above;
(c) title exceptions, if any, resulting from Buyer’s entry onto the Property pursuant to the provisions of Section 2.3 above;
(d) any other exceptions approved by Buyer; and
(e) the standard printed conditions and exceptions contained in the ALTA standard coverage owner’s policy of title insurance regularly issued by the Title Company.

6.2 Payment for Title Policy. Buyer shall be responsible for all charges for the Title Policy. Buyer shall also pay for the ALTA survey, if applicable.

7. CONDITIONS PRECEDENT TO CLOSING.

7.1 Conditions Precedent to Buyer’s Obligations. The obligations of Buyer under this Agreement to purchase the Property and close the Escrow shall be subject to the satisfaction or signed written waiver by Buyer of each and all of the following conditions precedent (collectively “Buyer’s Conditions to Closing”):
(a) Buyer shall have obtained all project entitlements required for Buyer’s proposed development of a restaurant, including, without limitation, a conditional use permit and design review, as required by the City and approved by the Yorba Linda Planning Commission;
(b) Buyer shall have approved the condition of the title to the Property, in accordance with Section 2.2 hereof;
(c) Buyer shall have approved the condition of the Property, in accordance with Section 2.3 hereof;
(d) on the Closing Date, the Title Company shall be irrevocably committed to issue the Title Policy pursuant to Section 6 above insuring fee title to the Property as being vested in Buyer;

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(e) Escrow Holder holds all instruments and funds required for the Close of Escrow and will deliver to Buyer the instruments and funds, if any, accruing to Buyer pursuant to this Agreement;
(f) except as otherwise permitted by this Agreement, all representations and warranties by the Seller in this Agreement shall be true on and as of the Closing Date as though made at that time and all covenants of Seller pursuant to this Agreement shall have been fulfilled by the Closing Date;
(g) Seller is not in material default of any term or condition of this Agreement.

In the event that any of Buyer’s Conditions to Closing are not satisfied, or waived in a writing signed by Buyer, prior to the expiration of the applicable period for satisfaction or waiver, Buyer may terminate this Agreement. In the event of such termination, neither party shall thereafter have any obligations to, or rights against, the other under this Agreement, except for any obligations that expressly survive the termination of this Agreement.

7.2 Conditions Precedent to Seller’s Obligations. The obligations of Seller under this Agreement shall be subject to the satisfaction or signed written waiver by Seller of each and all of the following conditions precedent (“Seller’s Conditions to Closing”):
(a) Escrow Holder holds the Purchase Price and all other instruments and funds required for the Closing and will deliver to Seller the instruments and funds, including but not limited to the Purchase Price (less Seller’s closing costs), accruing to Seller pursuant to this Agreement;
(b) except as otherwise permitted by this Agreement, all representations and warranties by the Buyer in this Agreement shall be true on and as of the Closing Date as though made at that time and all covenants of Buyer pursuant to this Agreement shall have been fulfilled by the Closing Date;
(c) Buyer is not in material default of any term or condition of this Agreement.

In the event that any of Seller’s Conditions to Closing are not satisfied, or waived in a writing signed by Seller, prior to the expiration of the applicable period for satisfaction or waiver, Seller may terminate this Agreement. In the event of such termination, neither party shall thereafter have any obligations to, or rights against, the other under this Agreement, except for any obligations that expressly survive the termination of this Agreement.

7.3 Recording of Covenant. Seller acknowledges and consents that a covenant similar in form to the draft covenant attached hereto as Exhibit D is acceptable to Seller and shall be recorded on the Property prior to the Close of Escrow

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Yorba Linda City CouncilJuly 19, 2022

Yorba Linda City Council
July 19, 2022