Building Futures with Women and Children 1 Version 4-08-22
SERVICE PROVIDER AGREEMENT
This SERVICE PROVIDER AGREEMENT (“Agreement”) is entered into this ___ day of _________, 2022 (“Effective Date”), by and between the CITY OF ALAMEDA, a municipal corporation ( “the City”), and CORNERSTONE COMMUNITY DEVELOPMENT CORPORATION, dba BUILDING FUTURES WITH WOMEN AND CHILDREN (BFWC), a California non-profit corporation, whose address is 1840 Fairway Drive, San Leandro, CA 94577 (“Provider”), in reference to the following facts and circumstances:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. The City is in need of the following services: BFWC was selected on a sole source basis because of limitations on the source of supply, necessary restrictions in specifications, necessary standardization, quality considerations, or other valid reasons (i.e., as the operator of the Midway Shelter, that they are uniquely positioned to complete the rehabilitation of the Midway Shelter) for waiving competitive bids.
C. Provider possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein.
D. City and Provider desire to enter into an agreement for the rehabilitation of Midway Shelter, upon the terms and conditions herein.
AGREEMENT
NOW, THEREFORE, in consideration of the forgoing, which are incorporated herein by reference, and for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the City and Provider agree as follows:
1. TERM:
The term of this Agreement shall commence on the ____ day of _______ 2022, and shall terminate on the 31 day of December 2024, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED:
Provider agrees to do all necessary work at its own cost and expense, to furnish all labor, tools, equipment, materials, except as otherwise specified, and to do all necessary work included in Exhibit A as requested. Provider acknowledges that the work plan included in Exhibit A is tentative and does not commit the City to request Provider to perform all tasks included therein.
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3. COMPENSATION TO PROVIDER:
a. By the 7th day of each month, Provider shall submit to the City funding requests to meet pay requests submitted by contractors and costs incurred by Provider for work done the previous month. These requests shall be prepared by Provider with supporting documentation. b. City shall approve payment requests not to exceed the total funding amount of one million eight hundred thousand dollars ($1,800,000) as described in the itemized budget included in Exhibit B. Substantial changes to budget amounts included in Exhibit B will require written approval from the Community Development Director or their designee within five (5) business days to ensure project continuity. Any use of the contingency included in Exhibi t B will require written approval from the C ommunity Development Director or their designee within five (5) business days to ensure project continuity.
c. Understanding that significant upfront costs will be incurred by the Provider related to vendor deposit s and site preparation , the Provider may request and the City may pay up to twenty-five (25) percent of the total funding amount upon execution of this Agreement. These requests shall be requested by Provider with supporting documentation. Upon execution of this Agreement, Provider may request from the City an advancement funds for security deposits. d. Provider is required to provide conditional or final lien releases on all work completed prior to receiving payment.
e. In compliance with the American Rescue Plan Act funding requirements, all funds must be encumbered by the end of 2024 and spent by the end of 2026.
4. TIME IS OF THE ESSENCE:
Provider and the City agree that time is of the essence regarding the performance of this Agreement.
5. STANDARD OF CARE:
Provider agrees to perform all services hereunder in a manner commensurate with the prevailing standards of like professionals or service providers, as applicable, in the San Francisco Bay Area and agrees that all services shall be perfor med by qualified and experienced personnel who are not employed by the City.
6. INDEPENDENT PARTIES:
Provider hereby declares that Provider is engaged as an independent business and Provider agrees to perform the services as an independent contractor. The manner and means of conducting the services and tasks are under the control of Provider except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will b e acquired by virtue of Provider ’s services. None of the benefits provided by the City to its employees, including but not limited to unemployment insurance, workers’ compensation plans, vacation and sick leave, are available from the City to Provider, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer -employee relationship
Building Futures with Women and Children 3 Version 4-08-22 from any compensation due to Provider. Paym ents of the above items, if required, are the responsibility of Provider.
7. PREVAILING WAGES AND RELATED REQUIREMENTS:
This Agreement has been prepared with the intention that the rehabilitation of the Midway Shelter shall be subject to the requirement of payment of prevailing wages or related obligations set forth in Labor Code Section 1720 et seq., and Section 2-67 of the Alameda Municipal Code.
Notwithstanding the foregoing, nothing in this Agreement constitutes a representation or warranty by the City regarding the applicability of the provision of Labor Code Section 1720 et seq., and/or Section 2-67 of the Alameda Municipal Code and the Provider shall comply with any applicable laws, rules and regulations related to construction wages and other construction matters, if and to the extent applicable to any portion of the rehabilitation of the Midway Shelter.
The Provider shall indemnify, defend (with counsel reasonably acceptable to the City), and hold harmless the Indemnified Parties against any claim f or damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including the Provider and any sub -providers involved in rehabilitation activities) to pay prevailing wages as determined pur suant to Labor Code Sections 1720 et seq., to employ apprentices pursuant to Labor Code Sections 1777.5 et seq., or to comply with the other applicable provisions of Labor Code Sections 1720 et seq. and 1777.5 et seq., to meet the conditions of Section 1771.4 of the Labor Code, and the implementing regulations of the DIR in connection with the construction of the Project and to comply with any other requirements related to public contracting. The Developer's obligation to indemnify, defend and hold harmless under this Section
8.3(b) shall survive termination of this Agreement, and shall be interpreted broadly so as to apply to any legal or administrative proceeding, arbitration, or enforcement action.
8. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Provider assum es any and all responsibility for verifying the identity and employment authorization of all of its employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Provider shall indemnify, defend, and hold the City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Provider.
9. NON-DISCRIMINATION:
Consistent with the City’s policy and state and federal law that harassment and discrimination are unacceptable conduct, Provider and its employees, contractors, and agents shall not harass or discriminate against any job applicant, City employee, or any other person on the basis of any kind of any statutorily (federal, state or local) protected class, including but not limited to: race, religious creed, color, national origin, ancestry, disability (both mental and physical) including HIV and AIDS, medical condition (e.g. cancer), genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, pregnancy, political affiliation, military and veteran status or legitimate union activities. Provider agrees that any violation of this provision shall constitute a material breach of this Agreement.
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10. HOLD HARMLESS:
a. To the fullest extent permitted by law, Provider shall indemnify, defend (with counsel acceptable to the City) and hold harmless the City, its City Council, boards, commissions, officials, employees, agents and volunteers (“Indemnitees”) from and against any and all loss, damages, liability, obligations, claims, suits, judgments, costs and expenses whatsoever, including reasonable attorney ’s fees and costs of litigation (“Claims”), arising from or in any manner connected to Provider’s performance of its obligations under this Agreement or out of the operations conducted by Provider even if the City is found to have been negligent . If the Claims filed against Indemnitees alleg e negligence, recklessness or willful misconduct on the part of Provider, Provider shall have no right of reimbursement against Indemnitees for the costs of defense even if negligence, recklessness or willful misconduct is not found on the part of Provider.
Provider shall not have any obligations to indemnify Indemnitees if the loss or damage is found to have resulted solely from the negligence or the willful misconduct of the City. The defense and indemnification obligations of this Agreement are undertak en in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement. b. As to Claims for professional liability only, Provider’s obligation to defend Indemnitees (as set forth above) is limited as provided in California Civil Code Section 2782.8. c. Provider’s obligation to indemnify, defend and hold harmless Indemnities shall expressly survive the expiration or early termination of this Agreement.
11. INSURANCE:
a. On or before the commencement of the terms of this A greement, Provider shall furnish the City’s Risk Manager with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with Sections
10.b. (1) through (4) Such certificates, which do not limit Provider ’s indemnification, shall also contain substantially the following statement:
“Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days’ advance written notice to the City of Alameda. Attention: Risk Manager.” Provider shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company licensed to offer insurance business in the State of California with a current A.M. Be st’s rating of no less than A:VII or Standard & Poor’s Rating (if rated) of at least BBB unless otherwise acceptable to the City. Provider shall deliver updated insurance certificates to the City at the address described in Section 17.f. prior to the expiration of the existing insurance certificate for the duration of the term of Agreement. Endorsements naming the City, its City Council, boards, commissions, officials, employees, agents, and volunteers as additional insured shall be submitted with the insurance certificates.
_____________
Provider Initials
Building Futures with Women and Children 5 Version 4-08-22 b. COVERAGE REQUIREMENTS:
Provider shall maintain insurance coverage and limits at least as broad as:
(1) Workers’ Compensation:
Statutory coverage as required by the State of California. (2) Liability:
Commercial general liability coverage in the following minimum limits:
Bodily Injury: $1,000,000 each occurrence
$2,000,000 aggregate - all other
Property Damage: $1,000,000 each occurrence
$2,000,000 aggregate
If submitted, combined single limit policy with per occurrence limits in the amounts of $2,000,000 and aggregate limits in the amounts of $4 ,000,000 will be considered equivalent to the required minimum limits shown above . Additional Insured Endorsement n aming the City, its City Council, boards, commissions, officials, employees, agents, and volunteers is required. (3) Automotive:
Comprehensive automobile liability coverage (any auto) in the following minimum limits:
Bodily injury: $1,000,000 each occurrence
Property Damage: $1,000,000 each occurrence
or
Combined Single Limit: $2,000,000 each occurrence
Additional Insured Endorsement naming the City, its City Council, boards, commissions, officials, employees, agents, and volunteers is required.
(4) Professional Liability:
Professional liability insurance which includes coverage appropriate for the professional acts, errors and omissions of Provider ’s profession and work hereunder, including, but not limited to, technology professional liability errors and omissions if the services being provided are technology -based, in the following minimum limits:
$2,000,000 each occurrence
Technology professional liability errors and omissions shall include, or be endorsed to include, property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the City in the care, custody, or control of Provider. If not covered under Provider’s liability policy, such “property” coverage of the City may be endorsed onto
Building Futures with Women and Children 6 Version 4-08-22 Provider’s Cyber Liability Policy as covered property as follows: cyber liability coverage in an amount sufficient to cover the full replacement value of damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the City that will be in the care, custody, or control of Provider.
As to commercial general liability and automobile liability insurance, such insurance will provide that it constitutes primary insurance with respect to claims insured by such policy, and, except with respect to limits, that insurance applies separately to each insured against whom claim is made or suit is brought. Such insurance is not additional to or contributing with any other insurance carried by or for the benefit of the City.
c. SUBROGATION WAIVER:
Provider hereby agrees to waive rights of subrogation that any insurer of Provider may acquire from Provider by virtue of the payment of any loss. Provider agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether the City has received a waiver of subrogation endorsement from the insurer.
The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by Provider, its employees, agents and subcontractors.
d. FAILURE TO SECURE:
If Provider at any time during the term hereof should fail to secure or maintain the foregoing insurance, the City shall be permitted to obtain such insurance in Provider’s name or as an agent of Provider and shall be compensated by Provider for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is r eceived that the premiums have not been paid.
e. ADDITIONAL INSUREDS:
The City, its City Council, boards, commissions, officials, employees , agents , and volunteers shall be named as additional insured(s) under all insurance coverages, except workers’ compensation and professional liability insurance. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy.
Additional Insured covera ge under Provider’s policy shall be primary and non -contributory and will not seek contribution from the City’s insurance or self -insurance. Any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to the additional insured(s).
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by the City are not represented as being sufficient to protect Provider. Provider is advised to consult Provider ’s insurance broker to determine adequate
Building Futures with Women and Children 7 Version 4-08-22 coverage for Provider. The coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of the coverage carried by or available to Provider; whichever is greater.
12. CONFLICT OF INTEREST:
Provider warrants that it is not a conflict of interest for Provider to perform the services required by this Agreement. Provider may be required to fill out a conflict of interest form if the services provided under this Agreement require Provider to make certain governmental decisions or serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations.
13. PROHIBITION AGAINST TRANSFERS:
a. Provider shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of the City Manager. Provider shall submit a written request for consent to transfer to the City Manager at least thirty (30) days in advance of the desired transfer. The City Manager or their designee may consent or reject such request in their sole and absolute discretion. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money against the City under this Agreement may be assigned by Provider to a bank, trust company or other financial institution without prior written consent. b. The sale, assignment, transfer o r other disposition of any of the issued and outstanding capital stock, membership interest, partnership interest, or the equivalent, which shall result in changing the control of Provider, shall be construed as an assignment of this Agreement.
Control means fifty percent or more of the voting power of Provider.
14. APPROVAL OF SUB-PROVIDERS:
a. Only those persons and/or businesses whose names and contractors licenses are attached to this Agreement shall be used in the performance of this Agreement. However, if after the start of this Agreement, Provider wishes to use sub-providers, at no additional costs to the City, then Provider shall submit a written request for consent to add sub-providers including the names of the sub -providers and the reasons for the re quest to the City Manager or Community Development Director at least five (5) days in advance. The City Manager or Community Development Director may consent or reject such requests in their sole and absolute discretion. b. Each sub -provider shall be required to furnish proof of workers ’ compensation insurance and shall also be required to carry general, automobile and professional liability insurance (as applicable) in reasonable conformity to the insurance carried by Provider. c. In addition, any task s or services performed by sub -providers shall be subject to each provision of this Agreement. Provider shall include the following language in their agreement with any sub -provider: “Sub-providers hired by Provider agree to be bound to Provider and the City in the same manner and to the same extent as Provider is bound to the City.” d. The requirements in this Section 14 shall not apply to persons who are merely
Building Futures with Women and Children 8 Version 4-08-22 providing materials, supplies, data or information that Provider then analyzes and incorporates into its work product.
15. PERMITS AND LICENSES:
Provider, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses, including a City business license that may be required in connection with the performance of the services and tasks hereunder.
16. REPORTS:
a. Reports shall include a narrative description of the work completed and detailed comparison of expected and actual expenditures . Rehabilitation of the Midway Shelter is anticipated to be completed over a relatively short period of time due to its modular design. Based on this truncated construction timeline, Provider shall provide the following four (4) reports:
Interim report to the City once 50% of the rehabilitation work has been completed; Report at 100 percent completion;
Report ten (10) months after installation. Report to include an overview of any outstanding issues with the rehabilitation project or associated vendors per the checklist provided in Exhibit C. Overview should reference any warranty items; Final report to be completed one year following construction completion. Report to include an overview of any outstanding issues with the rehabilitation project or associated vendors per the checklist provided in Exhibit C . Over view should reference any warranty items;
b. Each and every report, draft, work product, map, record and other document produced, prepared or caused to be prepared by Provider pursuant to or in connection with thi s Agreement shall be the exclusive property of the City.
c. No report, information or other data given to or prepared or assembled by Provider pursuant to this Agreement shall be made available to any individual or organization by Provider without prior approval of the City Manager or their designee. d. Provider shall, at such time and in such form as City Manager or their designee may require, furnish reports concerning the status of services and tasks required under this Agreement.
17. RECORDS:
a. Provider shall maintain complete and accurate records with respect to the services, tasks, work, documents and data in sufficient detail to permit an evaluation of Provider’s performance under the Agreement , as well as maintain books and records related to sales, costs, expenses, receipts and other such information required by the City that relate to the performance of the services and tasks under this Agreement (collectively the “Records”).
Building Futures with Women and Children 9 Version 4-08-22 b. All Records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Provider shall provide free access to the Records to the representatives of the City or its designees during regular business hours upon reasonable prior notice. The City has the right to examine and audit the Records, and to make copies or transcripts therefrom as necessary, and to allow inspection of all proceedings and activities related to this Agreement. Such Records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained by Provider for a period of three (3) years after receipt of final payment.
c. If supplemental examination or audit of the Records is necessary due to concerns raised by the City’s preliminary examination or audit of records, and the City ’s supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of this Agreement or failure to act in good faith, then Provider sha ll reimburse the City for all reasonable costs and expenses associated with the supplemental examination or audit.
18. NOTICES:
a. All notices shall be in writing and delivered: (i) by hand; or (ii) sent by registered, express, or certified mail, with return rece ipt requested or with delivery confirmation requested from the U.S. postal service ; or (iii) sent by overnight or same day courier service at the party’s respective address listed in this Section.
b. Each notice shall be deemed to have been received on the e arlier to occur of : (x) actual delivery or the date on which delivery is refused ; or (y) three (3) days after notice is deposited in the U.S. mail or with a courier service in the manner described above (Sundays and City holidays excepted).
c. Either party may, at any time, change its notice address (other than to a post office box address) by giving the other party three (3) days prior written notice of the new address. d. All notices, demands, requests, or approvals from Provider to the City shall be addressed to the City at:
City of Alameda
Community Development Department
950 West Mall Square, Suite 205
Alameda, CA 94501
ATTENTION: Community Development Director
Ph: 510.747.6897 / Email: [email protected]
e. All notices, demands, requests, or approvals from City to Provider shall be addressed to Provider at:
Building Futures with Women and Children
1840 Fairway Drive San Leandro, CA 94577
ATTENTION: Project Manager
Ph: 510.352.0205 / Email: [email protected]
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f. All updated insurance certificates from Provider to City shall be addressed to City at:
City of Alameda
Community Development Department
950 West Mall Square, Suite 205
Alameda, CA 94501
ATTENTION: Annie Cox
Ph: 510.747.6893 / Email: [email protected]
19. SAFETY:
a. Provider will be solely and completely responsible for conditions of all vehicles owned or operated by Provider, including the safety of all persons and property during performance of the services and tasks under this Agreement. This requirement will apply continuously and not be limited to normal working hours. In addition, Provider will comply with all s afety provisions in conformance with U.S. Department of Labor Occupational Safety and Health Act, any equivalent state law, and all other applicable federal, state, county and local laws, ordinances, codes, and any regulations that may be detailed in other parts of the Agreement. Where any of these are in conflict, the more stringent requirement s will be followed. Provider’s failure to thoroughly familiarize itself with the aforementioned safety provisions will not relieve it from compliance with the obligations and penalties set forth herein. b. Provider will immediately notify the City within 24 hours of any incident of death, serious personal injury or substantial property damage that occurs in connection with the performance of this Agreement. Provider will promptly submit to the City a written report of all incidents that occur in connection with this Agreement. This report must include the following information: (i) name and address of injured or deceased person(s); (ii) name and address of Provider’s employee(s) involved in the incident; (iii) name and address of Provider’s liability insurance carrier; (iv) a detailed description of the incident; and (v) a police report.
20. TERMINATION:
a. In the event Provider fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Provider shall be deemed in default in the performance of this Agreement . If such default is not cured within two (2) business days after receipt by Provider from the City of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the City may thereafter immediately terminate the Agreement forthwith by giving to Provider written notice thereof. b. The foregoing notwithstanding, the City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days’ prior written notice to Provider as provided herein.
c. Upon termination of this Agreement either for cause or for convenience, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned
Building Futures with Women and Children 11 Version 4-08-22 and unpaid prior to the effective date of termination. The obligation of the parties under this Section 19.c. shall survive the expiration or early termination of this Agreement.
21. ATTORNEYS’ FEES:
In the event of the bringing of any action or suit by a party hereto against the other party by reason of any breach of any covenants, conditions, obligation or provision arising out of this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all of its costs and expenses of the action or suit, including reasonable attorney’s fees, experts’ fees, all court costs and other costs of action incurred by the prevailing party in connection with the prosecution or defense of such action and enforcing or establishing its rights hereunder (whether or not such action is prosecuted to a judgment). For the purposes of this Agreement, reasonable fees of attorneys of the Alameda City Attorney’s office shall be based on the fees regularly charged by private attorneys with the equivalent number of years of experience in the subject matter area of the law for which the services were rendered who practice in Alameda County in law firms with approximately the same number of attorneys as employed by the Alameda City Attorney’s Office.
22. HEALTH AND SAFETY REQUIREMENTS.
Provider acknowledges that the City shall have the right to impose , at the City’s sole discretion, requirements that it deems are necessary to protect the health and safety of the City employees, residents, and visitors. Provider agrees to comply with all such requirements, including, but not limited to, mandatory vaccinations, the use of personal protective equipment (e.g. masks), physical distancing, and health screenings. Provider also agrees to make available to the City, at the City’s request, records to demonstrate Provider’s compliance with th is Section. [See Certification of Compliance attached.]
23. COMPLIANCE WITH ALL APPLICABLE LAWS:
During the term of this Agreement, Provider shall keep fully informed of all existing and future state and federal laws and all municipal ordinances and regulations of the City of Alameda which affect the manner in which the services or tasks are to be performed by Provider, as well as all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Provider shall comply with all applicable laws, state and federal and all ordinances, rules and regulations enacted or issued by the City.
24. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of the State of California without regard to any choice of law rules which may direct the application of laws of another jurisdiction. The Agreement and obligations of the parties are sub ject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities). Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Alameda, State of California.
25. WAIVER:
A waiver by the City of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character.
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26. INTEGRATED CONTRACT:
Subject to the language of Section 30, the Recitals and exhibits are a material part of this Agreement and are expressly incorporated herein. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both the City and Provider.
26. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement.
27. COUNTERPARTS:
This Agreement may be executed in any number of counterparts (including by fax, PDF , DocuSign, or other electronic means), each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
28. SIGNATORY:
By signing this Agreement, signatory warrants and represents that they executed this Agreement in their authorized capacity and that by their signature on this Agreement, they or the entity upon behalf of which they acted, executed this Agreement.
29. CONTROLLING AGREEMENT:
In the event of a conflict between the terms and conditions of this Agreement (as amended, supplemented, restated or otherwise modified from time to time) and any other terms and conditions wherever contained, including, without limitation, terms and conditions included within exhibits, the terms and conditions of this Agreement shall control and be primary.
30. NONDISCRIMINATION – FEDERAL REQUIREMENTS:
a. Provider certifies and agrees that it will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, ancestry, sex, age, or condition or physical or mental handicap (as defined in 41 C.F.R. Section 60 -741, et seq.), in accordance with requirement of state or federal law. Provider shall take affirmative action to ensure that qualified applicants are employed and that employees are treated during employment without regard to race, color, religion, national origin, ancestry, sex, age, or condition of physical or mental handicap in accordance with requirements of state and federal law. Such shall include, but not be limited to, the following:
A. Employment upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation.
Building Futures with Women and Children 13 Version 4-08-22 B. Selection for training, including interns and apprentices. (i) Provider agrees to post in conspicuous places in each of Provider’s facilities providing services hereunder, availab le and open to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. (ii) Provider shall, in all solicitations or advertisements for employees placed by or on behalf of Provider, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, ancestry, sex, age, or condition of physical or mental handicap, in accordance with requirements of state and federal law. (iii) Provider shall send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding a notice advising the labor union or workers ’ representative of Provider’s commitments under this paragraph.
(iv) Provider certifies and agrees that it will deal with its subcontractors, bidders, or vendors without regard to race, color, religion, national origin, ancestry, sex, age, or condition of physical or mental handicap, in accordance with requirement of state and federal law. (v) In accordance with applicable state and federal law, Provider shall allow duly authorized county, state and federal representatives access to its employment records during regular business hours in order to verify compliance with the anti-discrimination provisions of this paragraph. Provider shall provide such other information and records as such representatives may require in order to verify compliance with the anti -discrimination provisions of this paragraph.
b. If the City finds that any of the prov isions of this paragraph have been violated, the same shall constitute a material breach of Agreement upon which the City may determine to cancel, terminate, or suspend this Agreement. The City reserves the right to determine independently that the anti -discrimination provisions of this Agreement have been violated. In addition, a determination by the California Fair Employment Practices Commission or the Federal Equal Employment Opportunity Commission that Provider has violated state and federal anti - discrimination laws shall constitute a finding by the City that Provider has violated the anti - discrimination provisions of Agreement.
c. The parties agree that in the event Provider violates any of the anti-discrimination provisions of this paragraph, the City shall be entitled, at its option, to the sum of $500.00 pursuant to California Civil Code Section 1671 as liquidated damages in lieu of canceling, terminating, or suspending this Agreement.
d. Provider hereby agrees that it will comply with Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. Section 794), all requirements imposed by the applicable regulations, and all guidelines and interpretations issued pursuant thereto, to the end that no qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity of Provider receiving Federal Financial Assistance. In addition, Provider shall comply with the
Building Futures with Women and Children 14 Version 4-08-22 Uniform Federal Accessibility Standards, and Provider, Engineer, or Architect responsible for any design, construction or alteration shall certify compliance with those Standards. e. Provider’s attention is directed to laws, including but not limited to:
A. CIVIL RIGHTS/EQUAL OPPORTUNITY
(i) Civil Rights Act of 1964. Under Title VII of the Civil Rights Act of 1964, no person shall, on the grounds of race, sex, religion, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to di scrimination under any program or activity receiving Federal financial assistance. (ii) Section 109 of the Housing and Community Development Act of 1974. No person in the United States shall, on the grounds of race, color, national origin, or sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under this title. (iii) Section 109 of the Act further provides that any prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) or with respect to an otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) shall also apply to any program or activity funded in whole or in part with funds made available pursuant to the Act.
B. PROGRAM ACCESSIBILITY FOR INDIVIDUALS WITH
DISABILITIES
This Agreement is subject to laws and regulations concerning the rights of otherwise qualified individuals with handicaps for equal participation in, and benefit from federally assisted programs and activities, including but not limited to:
(i) Americans with Disabilities Act of 1990 (ADA) (28 C.F.R. 35).
Title II, Subpart A of the Americans with Disab ilities Act of 1990 applies to all publicly funded activities and programs. Provider shall also comply with the public accommodations requirements of Title III of the ADA, as applicable.
(ii) Nondiscrimination on the Basis of Handicap (24 C .F.R. 8). These regulations, which implement Section 504 of the Rehabilitation Act of 1973, as amended, and as cited in Section 109 of the Housing and Community Development Act, apply to all federally assisted activities and programs and are implemented through the regulations at 24 C.F.R. 8. (iii) Architectural Barrier Act of 1968. Any building or facility, excluding privately owned residential structures, designed, constructed, or altered with federal funds, shall comply with the Uniform Federal Accessibility Standards, 1984 (41 C.F.R. 3) and the Handicapped Accessibility Requirements of the State of California Title 24. The Consultant, Engineer or Architect responsible for such design, construction or alteration shall certify compliance with the above standards.
Building Futures with Women and Children 15 Version 4-08-22 (iv) In resolving any conflict between the accessibility standards cited in paragraphs (i), (ii) and (iii) above, the more stringent standard shall apply.
31. RESTRICTIONS ON LOBBYING – FEDERAL REQUIREMENT:
This Agreement is subject to 24 C.F.R. 87 which prohibits the payme nt of Federal funds to any person for influencing or attempting to influence, any public officer or employee in connection with the award, making, entering into, extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Building Futures with Women and Children 16 Version 4-08-22 IN WITNESS WHEREOF, the parties have each caused this Agreement to be duly executed on its behalf as of the Effective Date.
BUILDING FUTURES WITH CITY OF ALAMEDA
WOMEN AND CHILDREN, a municipal corporation
a California non-profit corporation
Elizabeth Varela Dirk Brazil
Executive Director Interim City Manager
RECOMMENDED FOR APPROVAL
Lisa N. Maxwell
Community Development Director
APPROVED AS TO FORM:
John D. Lê
Assistant City Attorney
Certification of Compliance
With the City of Alameda’s Vaccination Requirement
The City of Alameda (“City”) requires all individuals who perform work for the City to be fully vaccinated1 against COVID-19. All service providers and contractors for the City must sign the following statement certifying compliance with this requirement.
By signing below, I certify that all of our personnel who are performing work for the City are fully vaccinated against COVID-19. I also acknowledge that the City reserves the right to review any relevant records to demonstrate our compliance with this requirement.
I declare under penalty of perjury that the foregoing is true and correct.
Building Futures with Women and Children Date:______________________
__________________________________
By: Elizabeth Varela
Its Executive Director
1 For the purposes of this Certification of Compliance, an individual is considered to be fully vaccinated if two weeks have passed since their second dose in a 2 -dose series (such as the Pfizer or Moderna vaccines) or if two weeks have passed since receiving their single-dose vaccine (such as Johnson & Johnson’s Janssen vaccine).
Exhibit A: Midway Scope of Work
The Midway Shelter of Alameda (Midway Shelter) is a shelter for women and children suffering from homelessness and domestic violence. The shelter is operated by Building Futures for Women and Children, a non-profit organization. The scope for the project is to provide the architecture, engineering, project management, prevailing wage monitoring, permits, insurance, necessary inspection reports for the following: removal, purchase and installation of a modular kitchen and an office unit, removal and installation of 25 bed dormitory unit, installation of skirting and tie downs, disconnection and reconnection of electrical, disconnection and reconnection of water, replacement of the deck with new replacement railing, installation of awnings, installation of IT and communications system, install fire sprinkler system, and all other work necessary for the successful completion of the foregoing work of a certificate of occupancy at the Midway Shelter.
The purchase of the dormitory modular, VCT flooring for the dormitory and kitchen shall be funded through a separate source, but installed as part of this contract.
The Midway Shelter’s children's play area shall be decked over or replaced, increasing the useful outdoor area for residents. Specified deck material is Trex, a composite product with lower maintenance than traditional wood decking. Prior to that, drainage will be addressed since that area retains water after rain. A trench drain with an attached sump discharging to the curb will be installed to eliminate standing water under the new deck.
The dormitory shall have a fire sprinkler system installed as a safety measure. A new water meter and two inch pipe will be buried to supply the rear modular. Sprinkler heads shall be installed during the factory construction by a local FSS company. The IT wiring and connections for the site shall also be installed at the factory by our IT provider, based in Phoenix.
Modular design and layout was determined with assistance from staff and residents to provide the most functional new shelter. The architect and engineer shall provide the necessary drawings to construct and install the project to current building code standards.
All units shall have electric heat pumps and the kitchen shall have efficient induction cooking surfaces. Building Futures is working with Alameda Municipal Power to coordinate maximum rebates and lowest cost for solar install.
Given the overhead wires, bollards, utility poles, and a large concrete loading curb along the only accessible, western property line, the three new portables will need to be craned onto the site from an adjacent Navy parking lot. The project is dependent on authorization from the Navy that the crane operator can temporarily use their lot.
Since this project was bid, supply chain issues have impacted the delivery and potentially the bids, therefore a fast turnaround is beneficial to cost controls. We are still awaiting Navy requirements to access the site for crane and removal/install for these modulars.
Community Development staff assigned to this project may approve adjustments in the scope as warranted to complete the project.
Exhibit B. Midway Replacement Estimated Budget
PROJECT NAME:
Midway Shelter Dormitory/Office/Kitchen Modular Trailer Replacement 2181 Clement Ave: Alameda, CA 94501
GRANTEE:
Building Futures Date: June 10, 2022
1840 Fairway Drive, Suite W, San Leandro, CA 94577
Master Line Items Budget
HARD COSTS
Modular Company for Purchase: Phoenix Modular 1
Kitchen $209,169
Appliances (Allowance) $25,000
Office $154,546
VCT Flooring $2,518
Subtotal $391,233
Tax $42,058
Total modular $433,291
Owner hard costs $96,760
Installer: Mobile One 2
R & R Awnings $75,000
R & R Decks and Railings3 $207,680
*metal frames with powder coated railings and Trex decking Crane $50,000
Dismantle and remove 3 existing modular trailers and haul away to legal dump site$95,000 Dolly transport 3 buildings (5 floors total) $80,000
Install 3 buildings including skirting and tie downs $126,000 Waste, Electric, Water Disconnect and Reconnect $65,000 Temporary fencing at Navy facility as required by DoD- Navy required gate guard included in Owner Contingency $25,000
Communication and IT $20,000
Fire Sprinkler system - Site and in Dormitory $150,000
Solar Panels4 $70,000
Owner Contingency $107,105
Total Hard Costs $1,600,835
SOFT COSTS
Temporary Relocation (4 weeks) $40,000
Architecture & Engineering $8,500
Bid Expenses $500
Building Permits $9,500
Builders Risk Insurance $4,000
Legal $0
Title/Closing/Recording Costs $0
Building Inspection Report $1,500
Lead and Asbestos Test $2,500
Prevailing Wage Monitor $2,000
Project Management $105,000
Other $0
Soft Cost Contingency $25,665
Total Soft Costs $199,165
TOTAL USES $1,800,000
Sources
ARPA Grant $1,800,000
Total $1,800,000
2 Lowest installation bid that complies with City's Covid requirements. 3 Metal frames with powder coated railings and Trex decking. 1 Detailed bid with all requests itemized except appliances ($25K allowance) Same manufacturer as Bathroom modular installed in 2018.
4 Solar install will be done after project is signed off and occupied, depending on unused contingency and available funds.
Proposed Budget Pending Receipt of Navy Requirements
Exhibit C. Midway Shelter Checklist
Issues? Notes
Dormitory Modular
Roof
Windows
Flooring
Electrical
Plumbing
Fire Sprinkler
IT
Awning
Warranty Items:
HVAC
Heat Pump
Kitchen Modular
Roof
Windows
Flooring
Electrical
Plumbing
Fire Sprinkler
IT
Awning
Warranty Items:
HVAC
Appliances
Heat Pump
Office Modular
Roof
Windows
Flooring
Electrical
Plumbing
Fire Sprinkler
IT
Awning
Warranty Items:
HVAC
Heat Pump
Deck
Drainage
Trench drainage
Railings
Item