Tuesday, June 28, 2022
7:00 PM
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Regular Agenda
Ord. No. 1895 Reso. No 2022-053
WORKSHOP - 5:00 P.M.
CLOSED SESSION - 6:00 P.M.
REGULAR MEETING - 7:00 P.M.
Grover W. Taylor Council Chambers
City Council Meeting
Acquanetta Warren - Mayor
Peter A. Garcia- Mayor Pro Tem
Phillip W. Cothran - Council Member
John B. Roberts - Council Member
Jesus "Jesse" Sandoval - Council Member
Germaine McClellan Key - City Clerk
Janet Koehler-Brooks - City Treasurer
1 City Council Meeting Regular Agenda June 28, 2022
Welcome to a meeting of the Fontana City Council.
Welcome to a meeting of the Fontana City Council. A complete agenda packet is located in the binder on the table in the lobby of the Grover W. Taylor Council Chambers 8353 Sierra Avenue Fontana, CA 92335. To address the Council, please fill out a card located at the entrance to the right indicating your desire to speak on either a specific agenda item or under Public Communications and give it to the City Clerk. Your name will be called when it is your turn to speak. In compliance with Americans with Disabilities Act of 1990 (42 USC § 12132), the Grover W. Taylor Council Chambers 8353 Sierra Avenue Fontana, CA 92335 is wheelchair accessible, and a portable microphone is available. Upon request, this agenda will be made available in appropriate alternative forms to persons with disabilities, as required by Section 12132 of the Americans with Disabilities Act of 1990. Any person with a disability who requires a modification or accommodation in order to participate in a meeting should direct such a request to the City Clerk ’s Office at ( 909) 350-7602 at least 48 hours before the meeting, if possible. Any public record, relating to an open session agenda item, that is distributed within 72 hours prior to the meeting is available for public inspection in the Grover W. Taylor Council Chambers 8353 Sierra Avenue Fontana, CA 92335.
Traduccion en Espa ñol disponible a peticion. Favor de notificar al Departamento "City Clerk".
Para mayor informacion, favor de marcar el numero (909) 350-7602.
WORKSHOP:
A. 5:00 P.M. City Council Workshop
(A) Comprehensive Municipal Code Update (City Attorney
Ruben Duran to present);
(B) Public Communications;
(C) Agenda Review and;
(D) City Manager Comments
21-1494
PUBLIC COMMUNICATION - CLOSED SESSION:
This is an opportunity for citizens to speak to the City Council for up to 3 minutes on the following Closed Session. The Mayor and City Council reserve the right to adjust this time limit based on the number of speakers who wish to address the Mayor and City Council.
A. Public Communications - Closed Session
CLOSED SESSION:
A. 6:00 P.M. CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL-EXISTING
LITIGATION
(Gov. Code section 54956.9(d)(1).)
Name of Case: Garcia-Medina v. City of Fontana, et al.
Case No. USDC CV21-01422 JGB (KK)
21-1492
2 City Council Meeting Regular Agenda June 28, 2022
CONFERENCE WITH LABOR NEGOTIATOR PURSUANT TO
GOVERNMENT CODE SECTION 54957.6
City Negotiator: Matt Ballantyne, City Manager and Rakesha Thomas, Director of Human Resources and Risk
Management
Employee Organization(s): Police Officers Association
CONFERENCE WITH LABOR NEGOTIATOR PURSUANT TO
GOVERNMENT CODE SECTION 54957.6
City Negotiator: Matt Ballantyne, City Manager
Employee Organization( s): Non-Represented Executive
Group
CALL TO ORDER/ROLL CALL:
A. 7:00 P.M. Call To Order/Roll Call:
INVOCATION/PLEDGE OF ALLEGIANCE:
A. Invocation/Pledge of Allegiance:
SPECIAL PRESENTATIONS:
A. 1. Mayor Warren and City Council to recognize Officers Jon Gearhart and Toni Lozano as the Police Department ’s May 2022 Employees of the Month (Captain Stover to present).
2. Mayor Warren to introduce and recognize Miss Fontana Giselle Aparicio and Teen Fontana Ava Trejo (Representative of the Miss Fontana Organization to present).
3. Mayor Warren and City Council to recognize Council
Member John Roberts' Birthday (Mayor Warren to present). 21-1483
PUBLIC COMMUNICATIONS:
This is an opportunity for members of the public to address the City Council for up to three ( 3) minutes total on items either on the Agenda or items not on the Agenda, but within the City Council's jurisdiction. Note that Public Hearing items have individual and specific public input opportunities during the public hearing and testimony on those items will only be taken during the public hearing. The Council is prohibited by law from discussing or taking immediate action on non-agendized items. The Mayor and City Council reserve the right to adjust this time limit based on the number of speakers who wish to address the Mayor and City Council .
A. Public Communications
CONSENT CALENDAR:
3 City Council Meeting Regular Agenda June 28, 2022
All matters listed under CONSENT CALENDAR will be enacted by one motion in the form listed below. There will be no separate discussion on these items prior to the time Council votes on them, unless a member of the Council requests a specific item be removed from the Consent Calendar for discussion.
A. Approval of Minutes 21-1480
Approve the minutes of the June 14, 2022, Regular City Council Meeting.
Minutes - 06.14.22 Regular City Council MeetingAttachments:
B. Adoption of Ordinance No. 1893 (Second Reading) 21-1462 Second Reading /Adopt Ordinance No. 1893 levying special taxes within the City of Fontana Community Facilities District No. 109 (Narra Hills).
Ordinance Levying Special TaxesAttachments:
C. Adoption of Ordinance No. 1894 (Second Reading) 21-1463 Second Reading/Adopt Ordinance No. 1894, amending Chapter 2, Section 2-42, of the Fontana Municipal Code, regarding City Council electoral system.
Ordinance - Amendment re DistrictsAttachments:
D. Adopt a Resolution Approving the Updated Salary Tables for the Fontana Police Management Association (PMA) Bargaining Unit and the Executive Group
21-1386
Adopt Resolution No. 2022-053, a resolution of the City Council of the City of Fontana adopting the updated salary table for the Fontana Police Management Association Bargaining Unit and the Executive Group.
Resolution for PMA & Executive Salary Table 06/18/22
Sideletter Agreement Between the City and PMA
Attachments:
E. Annual Placement of Sewer Charges on the Property Tax Rolls 21-1400 Adopt Resolution No. 2022-054 of the City Council of the City of Fontana, California, directing the placement of sewer charges on the property tax bills for collection.
Sewer Resolution 2022Attachments:
F. Annual Placement of Rubbish Charges on the Property Tax Rolls
21-1453
Adopt Resolution No. 2022-055 of the City Council of the City of Fontana, California, directing the placement of rubbish charges on the property tax bills for collection.
Rubbish Resolution 2022Attachments:
4 City Council Meeting Regular Agenda June 28, 2022
G. Annual Placement of Weed Abatement Charges on the
Property Tax Rolls
21-1452
Adopt Resolution No. 2022-056 of the City Council of the City of Fontana, California, directing the placement of weed abatement charges on the property tax bills for collection.
Weed Resolution 2022Attachments:
H. Approve Task Orders for Inspection Services and
Construction Management Services for the Sierra Avenue
Widening Project between Foothill Boulevard and Baseline Avenue
21-1446
1. Approve and authorize the City Manager to execute a Task Order in a not to exceed amount of $ 304,400.00 with Albert Webb and Associates for Inspection Services and any amendments for the Sierra Avenue Widening Project between Foothill Boulevard and Baseline Avenue;
2. Approve and authorize the City Manager to execute a Task Order in a not to exceed amount of $492,548.00 with TKE Engineering Inc. and any amendments for Construction Management Services for the Sierra Avenue Widening Project between Foothill Boulevard and Baseline Avenue.
Sierra Widening Project Vicinity Map
Inspection Services Scope and Fee
Construction Management Services Scope and Fee
Attachments:
I. Approval of a Contract Agreement with the County of San Bernardino to accept American Rescue Plan Act (ARPA)
Funds in the amount of $ 3,125,000 for Improvements to
Veterans Park, Jack Bulik Park, Cypress-Knopf Community Center, and Center Stage Theater
21-1478
It is recommended that the Mayor and City Council ratify and approve the agreements and accept funding from the County of San Bernardino in the amount of $3,125,000.
Contract-Center Stage Theater
Contract-Veteran's Park Improvements
EXHIBIT A-Scope of Expenditures_Center Stage Theater
EXHIBIT A-Scope of Expenditures_Veteran's Park
Improvements
EXHIBIT A-Scope of Expenditures_Cypress-Knopf Center
Contract -Cypress-Knopf Center
Contract -Jack Bulik Park
EXHIBIT A - Scope of Expenditure_Jack Bulik Park
Attachments:
5 City Council Meeting Regular Agenda June 28, 2022
J. Authorize the Purchase of Varonis DatAdvantage Data Audit and Protection Software Solution
21-1378
1. Authorize the Purchasing Office to “Piggy-Back” on the National Association of State Procurement Officials (NASPO) Software VAR contract ADSPO16-130651 for the purchase of Varonis DatAdvantage Data Audit and Protection Software cybersecurity solution from SHI International;
2. Approve appropriation and allocate the amount of $157,926.68 from fund 302 as part of the City’s American Rescue Plan Act Expenditure Plan.
Sowftware_VAR_SHI-International_CA 2016-2021 Executed PA SHI Quote-21904353
Attachments:
K. 2017 Edward Byrne Memorial Justice Assistance Grant (JAG) 21-1445
1. Approve the Interlocal Agreement with the Town of Apple Valley, the Cities of Adelanto, Barstow, Chino, Colton, Fontana, Hesperia, Highland, Montclair, Ontario, Rancho Cucamonga, Redlands, Rialto, San Bernardino, Upland, Victorville, and the County of San Bernardino, concerning distribution of the 2017 Edward Byrne Memorial Justice Assistance Grant (JAG) in the amount of $57,226;
2. Authorize the City Manager to sign the Interlocal Agreement on behalf of the City of Fontana for the 2017 Justice Assistance Grant and any other documents and/or amendments required to comply with this grant award;
3. Approve allocation of funds to purchase law enforcement equipment to assist in responding to or investigate crimes.
2017 JAG - Appendix 1
2017 Interlocal Agreement
Attachments:
L. Police Department Monthly Information Update 21-1459 Accept the Police Department monthly information update for April 2022.
April 2022 Report for City CouncilAttachments:
M. Police Department Monthly Information Update 21-1460 Accept the Police Department monthly information update for May 2022.
May 2022 Report for City CouncilAttachments:
N. Adopt a Resolution Approving Updated Salary Tables for the Executive Group, Fontana Police Management Association, Fontana Police Benefit Association, Teamsters Local 1932 City 21-1475
6 City Council Meeting Regular Agenda June 28, 2022
Hall Unit, Teamsters Local 1932 Public Works Unit, and the Management/Confidential Group as Outlined in Current Labor Agreements or Contracts.
Adopt Resolution No. 2022-057, a resolution of the City Council of the City of Fontana adopting the updated salary tables for the Executive Group, Fontana Police Management Association, Fontana Police Benefit Association, Teamsters Local 1932 City Hall Unit, Teamsters Local 1932 Public Works Unit, and the Management/Confidential Group for the Fiscal Year 2022/2023.
Resolution & Salary Table Updates FY 2022/2023Attachments:
Approve Consent Calendar Items as recommended by staff.
PUBLIC HEARINGS:
To speak on Public Hearing Items, submit comments via e-mail at [email protected]. In the subject of your e-mail please indicate whether you are in favor or opposition of the item. Comments must be received no later than 5:00 P.M. on the day of the meeting. Comments of no more than three ( 3) minutes will be read into the record at the appropriate time during the meeting. If you challenge in court any action taken concerning a Public Hearing item, you may be limited to raising only those issues you or someone else raised at the Public Hearing described in this notice or in written correspondence delivered to the City at, or prior to, the Public Hearing.
All Public Hearings will be conducted following this format:
(a) hearing opened (e) oral - favor
(b) written communication (f) oral - opposition
(c) council/staff comments (g) hearing closed
(d) applicant comments (applicant not limited to 5 minutes) A. Quarterly Lien Action for Delinquent Sewer, Rubbish and Weed Abatement Accounts
21-1399
1. Authorize staff to complete and record lien notices against real property for those sewer accounts sixty days or more delinquent as described in Certified Lien List and direct staff to forward recorded liens to the County for collection;
2. Authorize staff to complete and record liens against real property for those rubbish accounts more than ninety days delinquent as described in the Certified Lien List and direct staff to forward recorded liens to the County for collection;
3. Adopt Resolution No. 2022-058 of the City Council of the City of Fontana adopting the statement of unpaid expenses for weed abatement and
7 City Council Meeting Regular Agenda June 28, 2022
imposing a lien against real property for payment thereof.
Weed Abatement Resolution June 2022
Public Hearing Notice - Rubbish
Public Hearing Notice - Sewer
Public Hearing Notice - Weed Abatement
Attachments:
B. New User Fees for City Services 21-1424
Adopt Resolution No. 2022-059 a resolution adopting new planning and engineering fees.
Resolution
Exhibit A
Attachments:
C. Zoning Code Amendment (ZCA) No. 22-003 for an
amendment to Chapter 30, Article X, General Landscape
Standards, of the Municipal Code to establish general
landscape standards to improve water efficiency and other environmental quality citywide developments
21-1451
Read by title only and waive further reading of and introduce Ordinance No. 1895, an ordinance of the City of Fontana, California amending chapter 30, Article X, General Landscape Standards for the Fontana Municipal Code to establish water efficiency and other environmental standards for the regulation of environmental quality for citywide development, and that the reading of the title constitutes the first reading thereof.
Attachment No. 1 City Council Ordinance
Attachment No. 2 PC Resolution
Attachment No. 3 Notice of Exemption
Attachment No. 4 CC Notice of Public Hearing
Attachments:
NEW BUSINESS:
A. Annual Comprehensive Financial Report for Fiscal Year Ended June
30, 2021
21-1476
Approve the City of Fontana's Annual Comprehensive Financial Report (ACFR) for Fiscal Year ended June 30, 2021.
Annual Comprehensive Financial Report FY2020-21Attachments:
B. Adopt Resolution to update Mission Statement, Vision, and Goals for the City of Fontana
21-1481
Adopt Resolution No. 2022-060, updating the Mission Statement, Vision, and Goals for the City of Fontana.
8 City Council Meeting Regular Agenda June 28, 2022
Vision Mission Goals Resolution
2022 Goal Setting For Agenda
Attachments:
CITY MANAGER COMMUNICATIONS:
A. City Manager Communications
ELECTED OFFICIALS COMMUNICATIONS/REPORTS:
A. Elected Officials Communications/Reports
ADJOURNMENT:
A. Adjournment
To the next Regular City Council Meeting on July 12, 2022 at 7:00 p.m. in the Grover W .
Taylor Council Chambers located at 8353 Sierra Avenue, Fontana, California.
9 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1494 Agenda Date: 6/28/2022
Agenda #: Category: Workshop
City Council Workshop
Tuesday, June 28, 2022
5:00 P.M.
Council Chambers
City Council
Acquanetta Warren, Mayor
Peter A. Garcia, Mayor Pro Tem
John Roberts, Council Member
Jesus “Jesse” Sandoval, Council Member
Phillip W. Cothran, Council Member
City of Fontana Printed on 6/23/2022Page 1 of 1
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10 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1492 Agenda Date: 6/28/2022
Agenda #: Category: Closed Session
Closed Session
Tuesday, June 28, 2022
6:00 P.M.
City Hall - Executive Conference Room
City Council
Acquanetta Warren, Mayor
Peter Garcia, Mayor Pro Tem
John Roberts, Council Member
Jesus “Jesse” Sandoval, Council Member
Phillip W. Cothran., Council Member
City of Fontana Printed on 6/23/2022Page 1 of 1
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11 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1483 Agenda Date: 6/28/2022
Agenda #: A. Category: Special Presentation
Special Presentations
Tuesday, June 28, 2022
Council Chambers
City Council
Acquanetta Warren, Mayor
Peter A. Garcia, Mayor Pro Tem
John Roberts, Council Member
Jesus “Jesse” Sandoval, Council Member
Phillip W. Cothran, Council Member
City of Fontana Printed on 6/23/2022Page 1 of 1
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12 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1480 Agenda Date: 6/28/2022
Agenda #: A. Category: Consent Calendar
FROM:
City Clerk
SUBJECT:
Approval of Minutes
RECOMMENDATION:
Approve the minutes of the June 14, 2022, Regular City Council Meeting.
COUNCIL GOALS:
· To create a team by working together to provide stability and consistent policy direction. · To create a team by communicating Goals and Objectives to all sectors of the community.
DISCUSSION:
The City Council will consider approval of the minutes of the June 14, 2022, Regular City Council meeting. The draft minutes are attached to this report for Council review and approval.
FISCAL IMPACT:
None
MOTION:
Approve staff recommendation
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13 Tuesday, June 14, 2022
7:00 PM
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
WORKSHOP - 5:00 P.M.
CLOSED SESSION - 6:00 P.M.
REGULAR MEETING - 7:00 P.M.
Grover W. Taylor Council ChambersCity Council Meeting
Acquanetta Warren - Mayor
Peter A. Garcia- Mayor Pro Tem
Phillip W. Cothran - Council Member
John B. Roberts - Council Member
Jesus "Jesse" Sandoval - Council Member
Germaine McClellan Key - City Clerk
Janet Koehler-Brooks - City Treasurer
Minutes
14 WORKSHOP:
A. 5:00 P.M. City Council Workshop
The Workshop of the Fontana City Council was held on Tuesday, June 14, 2022, in the Grover W. Taylor Council Chambers, 8353 Sierra Avenue, Fontana, CA 92335. Mayor Warren called the meeting to order at 5:03 p.m. with all members of the City Council present.
City Clerk Germaine McClellan Key and City Treasurer Janet Koehler-Brooks was also in attendance.
The Regular City Council meeting agenda was reviewed and Council Member Sandoval requested to pull Consent Calendar Item 'T' for staff presentation.
City Manager Matt Ballantyne had no City Manager comments.
No public communications were received.
Chief Financial Officer Jessica Brown provided a report on the 2022/2023 Budget and Third Quarter Update.
Council Member Sandoval asked for clarification on the elimination of the Public Works Director. Deputy City Manager Phillip Burum provided clarification, identifying the merge of the Public Works Director/City Engineer.
The Workshop adjourned at 5:27 p.m
PUBLIC COMMUNICATION - CLOSED SESSION:
CLOSED SESSION:
A. 6:00 P.M. CLOSED SESSION
A Closed Session was held in the Executive Conference Room at 6:00 p.m. located at 8353 Sierra Avenue, Fontana, California, with all members of the City Council present.
A. Public Communications - Closed Session
15 City Council Meeting Minutes June 14, 2022
No public communications were received on the following Closed Session Items:
CONFERENCE WITH LABOR NEGOTIATOR PURSUANT TO
GOVERNMENT CODE SECTION 54957.6
City Negotiator: Ray Ebert, Interim Deputy City Manager Employee Organization(s): Unrepresented Part-Time Employees
CONFERENCE WITH LABOR NEGOTIATOR PURSUANT TO
GOVERNMENT CODE SECTION 54957.6
City Negotiator: Matt Ballantyne, City Manager and Rakesha Thomas, Director of Human Resources and Risk Management
Employee Organization(s): Police Officers Association
CONFERENCE WITH LEGAL COUNSEL—EXISTING LITIGATION
(Gov. Code section 54956.9(d)(1).)
Name of Case: Jackson v. City of Fontana, et al.
Case No. USDC 5:20-cv-01372-JGB-SHK
CONFERENCE WITH LEGAL COUNSEL—ANTICIPATED LITIGATION
(Gov. Code section 54956.9(d)(2).)
Significant exposure to litigation. Number of potential cases: (1) One
CONFERENCE WITH REAL PROPERTY NEGOTIATORS
(Gov. Code section 54956.8)
Property: APN’s 1108-072-01 thru -16 and 1108-074-01 thru -16 City Negotiator: Matt Ballantyne, City Manager
Negotiating Parties: Diversified Pacific Communities
Under Negotiation: Price and terms of payment
CONFERENCE WITH REAL PROPERTY NEGOTIATORS
(Gov. Code section 54956.8)
Property: APN # 0191-274-33, 0191-274-38, 0191-27-39, 0191-274-07, 0191-274-08, 0191-274-09, 0191-274-10, 0191-274-11, and 0191-274-12 City Negotiator: Phillip Burum, Deputy City Manager
Negotiating Party: R. Swedlove
Under Negotiating: Price and Terms of payment
CONFERENCE WITH REAL PROPERTY NEGOTIATORS
(Gov. Code section 54956.8)
Property: APN # 0191-163-11
City Negotiator: Phillip Burum, Deputy City Manager
Negotiating Party: Song Yun
Under Negotiating: Price and Terms of payment
CALL TO ORDER/ROLL CALL:
A. 7:00 P.M. Call To Order/Roll Call:
16 City Council Meeting Minutes June 14, 2022
The Regular meeting of the Fontana City Council was held in the Grover W. Taylor Council Chambers, 8353 Sierra Avenue, Fontana, California 92335, on Tuesday, June 14, 2022.
Mayor Warren called the meeting to order at 7:04 p.m.
ROLL CALL:
Present: Mayor Warren, Mayor Pro Tem Garcia, Council Members Cothran, Roberts, and Sandoval
Absent: None
City Clerk McClellan Key and City Treasurer Koehler-Brooks was also in attendance.
INVOCATION/PLEDGE OF ALLEGIANCE:
A. Invocation / Pledge of Allegiance:
Following the invocation led by Fontana Calvary Chapel Pastor Daniel Vasquez, the pledge of allegiance was led by Council Member Cothran.
CLOSED SESSION ANNOUNCEMENT
City Attorney Ruben Duran announced that the Mayor and City Council met under Closed Session on the items listed on the agenda and took no reportable action.
PROCLAMATIONS:
A. Mayor Warren and City Council to Proclaim the Month of June as Fatherhood Awareness Month (San Bernardino Fatherhood, Executive Director Ryan Berryman to accept).
21-1466
Mayor Warren and City Council to Proclaim the Month of June as Fatherhood Awareness Month (San Bernardino Fatherhood, Executive Director Ryan Berryman to accept).
Mayor Warren and City Council presented a proclamation to the San Bernardino Fatherhood Executive Director Ryan Berryman to acknowledge June 2022 as Fatherhood Awareness Month.
SPECIAL PRESENTATIONS:
A. 1. Mayor Warren and City Council to recognize Christopher Williams, Grace Shumate, Tristian Chance, and Isaac
Hernandez as the 2022 Joel Cascadden Scholarship Fund
recipients (Captain Binley to present).
2. Mayor Warren and City Council to recognize Officers
Celestine Cazares, Garrett Gooselaw, Travis Marshall, and Christopher Oropesa and Animal Service Officers Carmen
Sanchez and Adam Sturgess as the Police Department’s April 2022 Employees of the Month (Captain Stover and Captain Dorsey to present).
21-1428
17 City Council Meeting Minutes June 14, 2022
3. Mayor Warren and City Council to recognize Mayor Pro Tem Peter Garcia's Birthday (Mayor Warren to present).
1. Mayor Warren and City Council to recognize Christopher Williams, Grace Shumate, Tristian Chance, and Isaac Hernandez as the 2022 Joel Cascadden Scholarship Fund recipients (Captain Binley to present).
Captain Binley, with the assistance of Retired Fire Batallion Chief Joel Cascadden from the City of Upland and daughter Lacey Atchison, presented the scholarships to the awardees as follows: Christopher Williams, Grace Shumate, Tristian Chance, and Isaac Hernandez.
2. Mayor Warren and City Council to recognize Officers Celestine Cazares, Garrett Gooselaw, Travis Marshall, and Christopher Oropesa and Animal Service Officers Carmen Sanchez and Adam Sturgess as the Police Department’s April 2022 Employees of the Month (Captain Stover and Captain Dorsey to present).
Captain Stover recognized Officers Cazares, Gooselaw, Marshall, and Oropesa, and Captain Dorsey recognized Animal Service Officers Sanchez and Sturgess as the Police Department's April 2022 Employees of the Month.
3. Mayor Warren and City Council to recognize Mayor Pro Tem Peter Garcia's Birthday (Mayor Warren to present).
Mayor Warren and City Council sung Mayor Pro Tem Garcia happy birthday.
PUBLIC COMMUNICATIONS:
A. Public Communications
18 City Council Meeting Minutes June 14, 2022
1. Ahmed Yakovi spoke on parking concerns in Sierra Lake's neighborhood and asked for staff to extend hours of operations for public pools during the summer.
2. Betty Sandoval announced the upcoming Annual Health Fair at the Fontana Senior Center. Robert Vasquez provided the announcement in Spanish.
3. Daniel Vasquez presented a certificate of appreciation to the Mayor and City Council for their assistance with the success of this year's Love Fontana event.
Photo was taken.
4. Cris Smith spoke in opposition of Consent Calendar Item 'T'.
5. Miriam De La Cruz spoke in opposition of Consent Calendar Item 'T'.
6. Amparo Munoz spoke in opposition of Consent Calendar Item 'T'.
7. Elizabeth Sena spoke in opposition of the City's decision to limit public participation in a virtual setting and public speakers video being darkened.
8. Ana Gonzalez spoke in opposition of Consent Calendar Item 'T'.
9. Andrea De Leon announced the upcoming Chamber of Commerce Job Fair.
CONSENT CALENDAR:
During the Workshop, Council Member Sandoval requested that Consent Calendar Item 'T' be pulled for staff presentation prior to a motion being taken.
Deputy City Manager Burum provided the staff report and answered questions of the City Council. Council Member Sandoval noted for the record that he can not support this item due to lack of involvement in meetings that happened with the groups associated with the item. Council Member Cothran spoke on the meetings with the groups.
City Clerk McClellan Key noted for the record that the City Clerk's Office received a total of 10 written correspondences in opposition of the item and that there were 5 public communications received in opposition of the item.
Prior to the motion for the Consent Calendar, Council Member Sandoval stated his vote for Consent Calendar Item 'T' was a 'NO'. Additionally, Council Member Cothran stated for the record that he will abstain from Consent Calendar Item 'P', due to one of the co-sponsorships being the Miss Fontana organization which has a member of his family as an employee.
Mayor Warren called for a motion.
ACTION: Motion was made by Council Member Cothran, seconded by Council Member Roberts to approve the Consent Calendar Items 'A-V' with a vote of 5-0, with the exception of Council Member Cothran abstaining from Consent Calendar Item 'P'
19 City Council Meeting Minutes June 14, 2022
and Council Member Sandoval voting 'NO' for Consent Calendar Item 'T'. The motion carried as follows: AYES: Warren, Garcia, Cothran, Roberts, and Sandoval; NOES:
None; ABSTAIN: None
A. Approval of Minutes 21-1423
Approve the minutes of the May 10, 2022, Regular City Council Meeting.
B. Fiscal Year 2021/22 Third Quarter Budget Status Report 21-1416 Approve the recommended Third Quarter Budget Status adjustments C. Fiscal Year 2022/23 Supplemental Budget Report 21-1438 Approve the recommended Fiscal Year 2022/23 Supplemental Budget adjustments
D. Adopt Resolution to Update Spending Authority Limits for City Manager, Deputy City Managers, and Department
Heads for Goods and Services and to settle Claims on
behalf of the City
21-1407
1. Approve updated spending authority limits;
2. Adopt Resolution No. 2022-035 to Update Spending Authority Limits for City Manager, Deputy City Managers, and Department Heads for Goods and Services and to settle Claims on behalf of the City.
E. Adopt the New Job Description and Corresponding Salary Range for the Classification of Information Technology (IT) Project Administrator, and the Updated Management
Confidential Group Salary Table
21-1450
Adopt Resolution No. 2022-036, a resolution of the City Council of the City of Fontana adopting the new job description and corresponding salary range for the classification of Information Technology (IT) Project Administrator, and the updated Management Confidential group salary table.
F. Adopt Resolution and Amend Adopted Resolution No.
2022-029 for Projects Funded by the Road Repair and
Accountability Act SB-1
21-1413
Adopt Resolution No. 2022-037, Amending Adopted Resolution No. 2022-029 of the City Council of the City of Fontana to incorporate projects funded by SB -1, the Road Repair and Accountability Act for Fiscal Year 2022/2023.
G. Amendment No. 8 to the City/County Waste Disposal
Agreement
21-1458
Approve Amendment No. 8 to the Waste Disposal Agreement (WDA) with the County of San Bernardino.
H. Approve Replacement of Securities for Tract No. 19997 Located North of Walnut Street and East of Citrus Avenue 21-1369
Approve replacement of securities for infrastructure improvements of Tract No. 19997 and authorize the City Manager to enter into a Subdivision
20 City Council Meeting Minutes June 14, 2022
Agreement with Apple 7, LLC for construction of infrastructure improvements.
I. Approval of Final Map for Tract No. 20363 within the Arboretum Specific Plan
21-1376
Approve the Final Map for Tract No. 20363 located south of Duncan Canyon Road, west of Sierra Avenue, north of Fieldcress Drive, and east of Cassava Drive within the Arboretum Specific Plan; accept as public dedicated streets and easements; and authorize the City Manager to enter into a Subdivision Agreement with the subdivider.
J. Approval of Final Map for Tract No. 20364 within the Arboretum Specific Plan
21-1377
Approve the Final Map for Tract No. 20364 located north of Casa Grande Avenue, west of Sierra Avenue, south of Fieldcress Drive, and east of Montelena Road within the Arboretum Specific Plan; accept as public dedicated streets and easements; and authorize the City Manager to enter into a Subdivision Agreement with the subdivider.
K. Authorization to Apply for 2022 Community Oriented
Policing Services (COPS) Hiring Program Grant
21-1381
1. Authorize the Fontana Police Department to apply for the 2022 Community Oriented Policing Services (COPS) Hiring Program Grant.
2. Authorize the Chief of Police or his assigned designee to sign the application for the 2022 Community Oriented Policing Services (COPS) Hiring Program Grant.
L. Approval of Final Map for Tract No. 16897 21-1389
Approve the Final Map for Tract No. 16897 located south of Miller Avenue and west of Lime Avenue; accept as public dedicated streets and easements; and authorize the City Manager to enter into a Subdivision Agreement with the subdivider.
M. Approve a Development Impact Fees Credit Agreement
related to Tract Map No. 20224 (TTM No. 18-011R1) and
Design Review No. 18-028R1
21-1401
Approve and authorize the City Manager to execute a Development Impact Fees Credit Agreement with Lennar Homes of California, LLC, related to Tract Map No. 20224 (TTM No. 18-011R1) and Design Review No. 18-028R1 located north of Duncan Canyon Road and east of Citrus Avenue.
N. Authorize the Purchase of the Arctic Wolf Managed
Detection and Response Cybersecurity Solution
21-1335
1. Approve appropriation and allocate the amount of $ 148,093.65 from Fund 302 as part of the City’s American Rescue Plan Act Expenditure Plan.
2. Authorize the Purchasing Office to “Piggy-Back” on the National Cooperative Purchasing Alliance (NCPA) contract # 01-96 for the purchase of Arctic Wolf ’s Managed Detection and Response cybersecurity solution from Vector USA.
21 City Council Meeting Minutes June 14, 2022
O. Award a Construction Contract for the Sierra Avenue
Widening Project between Foothill Boulevard and Baseline Avenue
21-1408
Approve and authorize the City Manager to execute a construction contract with Los Angeles Engineering, Inc. for the construction of the Sierra Avenue Widening Project between Foothill Boulevard and Baseline Avenue in the amount of $ 11,300,000 and authorize a 10% contingency in the amount of $1,130,000 (Bid No. SB-86-DE-22)
P. Co-Sponsorship Application Cycle (1) FY 2022/2023 21-1397 Review and approve (13) Co-Sponsorships recommended for the first half of 2022/2023 fiscal year (July 2022 through June 2023) totaling an amount of $24,498.00 as recommended by Parks, Community, and Human Services Commission.
Q. Calling of the November 8, 2022, General Municipal
Election; Requesting Consolidation with the Statewide
General Election to be conducted by the San Bernardino
County Registrar of Voters; and Providing Regulations for Candidates
21-1429
1. Adopt Resolution No. 2022-038, a Resolution of the City Council of the City of Fontana, California, Calling And Giving Notice of a General Municipal Election to be held in the City of Fontana on Tuesday, November 8, 2022, for the Election of Certain Officers of the City as Required By the Provisions of the Laws of The State of California Relating To General Law Cities;
2. Adopt Resolution No. 2022-039, a Resolution of the City Council of the City of Fontana, California, Requesting the Board of Supervisors of the County of San Bernardino to Consolidate a General Municipal Election to be held on November 8, 2022, with the Statewide Primary Election to be held on the date Pursuant To § 10403 of the Elections Code;
3. Adopt Resolution No. 2022-040, a Resolution of the City Council of the City of Fontana, California, Adopting Regulations for Candidates for Elective Office Pertaining to Candidates Statements Submitted to the Voters at a General Municipal Election to be held on Tuesday, November 8, 2022.
R. First Amendment to the Purchase, Sale and Disposition Agreement (PSDA) between the City of Fontana and Citrus Development LLC regarding the North-West Corner of
Citrus and South Highland
21-1365
Approve a First Amendment to the Purchase, Sale and Disposition Agreement (PSDA) between the City of Fontana and Citrus Development LLC to effectuate development of the property located on the North-West corner of Citrus and South Highland Avenues and authorize the City Manager to execute any documents necessary or appropriate to effectuate said approval.
22 City Council Meeting Minutes June 14, 2022
S. Intention to Levy Assessments for Fiscal Year 2022-2023 for Landscape and Lighting Maintenance Districts
21-1406
1. Adopt Resolution No. 2022-041, of the City of Fontana, California, Declaring its Intention to Levy and Collect Assessments within Landscape Maintenance District No. 1 ("LMD #1") for Fiscal Year 2022-2023 and Giving Notice of and Setting the Time and Place of the Hearing on the Levy of the Proposed Assessment.
2. Adopt Resolution No. 2022-042, of the City of Fontana, California, Declaring its Intention to Levy and Collect Assessments within Landscape Maintenance District No. 2 ("LMD # 2") for Fiscal Year 2022-2023 and Giving Notice of and Setting the Time and Place of the Hearing on the Levy of the Proposed Assessment.
3. Adopt Resolution No. 2022-043, of the City of Fontana, California, Declaring its Intention to Levy and Collect Assessments within Landscape Maintenance District No. 3 ("LMD # 3") for Fiscal Year 2022-2023 and Giving Notice of and Setting the Time and Place of the Hearing on the Levy of the Proposed Assessment.
4. Adopt Resolution No. 2022-044, of the City of Fontana, California, Declaring its Intention to Levy and Collect Assessments within Landscape Maintenance District No. 3-1 ("LMD # 3-1") for Fiscal Year 2022-2023 and Giving Notice of and Setting the Time and Place of the Hearing on the Levy of the Proposed Assessment.
5. Adopt Resolution No. 2022-045, of the City of Fontana, California, Declaring its Intention to Levy and Collect Assessments within Local Lighting Maintenance District No. 3 ("LLMD # 3") for Fiscal Year 2022-2023 and Giving Notice of and Setting the Time and Place of the Hearing on the Levy of the Proposed Assessment.
T. Option to Purchase Agreement - NH Southridge LLC 21-1464
1. Approval of an Option to Purchase Agreement with NH Southridge LLC for Assessor Parcel Number 0237-411-13 and find the approval is not a “project” requiring review under CEQA, or, in the alternative, is subject to the common-sense exemption from CEQA;
2. Authorize the City Manager to execute any documents necessary or appropriate to execute the Option to Purchase Agreement.
U. Purchase and Sale Agreement for Vacant Property located on the North side of Arrow Blvd. in Downtown Fontana
21-1435
1. Approve a Purchase & Sale Agreement for the acquisition of APN #0191-162-05, a vacant property located on the North side of Arrow Blvd. in Downtown Fontana.
2. Authorize the City Manager to execute any documents necessary or
23 City Council Meeting Minutes June 14, 2022
appropriate to effectuate said approval and/or agreement.
V. Sale of Surplus Property located South of South Highland Avenue and West of Oleander Avenue
21-938
1. The proposed sale of the property is exempt from environmental review pursuant to the California Environmental Quality Act (Pub. Resources Code, §§21000 et seq.) (CEQA) and the State CEQA Guidelines ( Cal. Code Regs .
Tit. §§15000 et seq.) Specifically, the proposed project qualifies for the Class 12 Categorical Exemption (State CEQA Guidelines, §15312), which applies to surplus government property.
2. Adopt Resolution No. 2022-046, approving a sale of City-owned exempt surplus property located south of South Highland Avenue and west of Oleander Avenue to Diego of Fontana, LLC and make the requisite declarations and findings contained therein.
3. Approve and authorize the City Manager and City Attorney to execute the Purchase and Sale Agreement with Developer.
PUBLIC HEARINGS:
A. Public Hearing on Formation of Community Facilities District No. 109 (Narra Hills)
21-1432
24 City Council Meeting Minutes June 14, 2022
Mayor Warren asked for any members of the public who wish to file a written protest prior to the opening of the public hearing for the Establishment of Community Facilities District No. 109.
There was no one who wished to file a protest.
Mayor Warren opened the public hearing.
City Clerk McClellan Key announced that there were no written correspondences received for this item.
Accountant Justin Marietta provided the staff report and answered questions of the City Council.
City Clerk McClellan Key announced that there were no public communication requests to speak on this item.
Mayor Warren closed the public hearing.
ACTION: Motion was made by Council Member Sandoval, seconded by Council Member Roberts, to move the following by a unanimous vote of 5-0 as follows:
(AYES: Warren, Garcia, Cothran, Roberts, and Sandoval; NOES: None; ABSTAIN: None)
1. Adopt Resolution No. 2022-047 of the City Council of the City of Fontana of formation of the City of Fontana Community Facilities District No. 109 (Narra Hills), authorizing the levy of a special tax within the community facilities district and establishing an appropriations limit for the community facilities district.
2. Adopt Resolution No. 2022-048 of the City Council of the City of Fontana deeming it necessary to incur bonded indebtedness within the City of Fontana Community Facilities District No. 109 (Narra Hills).
3. Adopt Resolution No. 2022-049 of the City Council of the City of Fontana calling special election for City of Fontana Community Facilities District No. 109 (Narra Hills).
Following the motion, Mayor Warren asked City Clerk McClellan Key to open the ballot and announce the results of the election.
City Clerk McCllelan Key announced that the City received one ballot in favor.
ACTION: Motion was made by Council Member Roberts, seconded by Council Member Cothran to move the following unanimously by a 5-0 vote as follows:
(AYES: Warren, Garcia, Cothran, Roberts, and Sandoval; NOES: None; ABSTAIN: None)
25 City Council Meeting Minutes June 14, 2022
4. Adopt Resolution No. 2022-050 of the City Council of the City of Fontana declaring results of special election and directing the recording of notice of special tax lien.
5. Read by title only and waive further reading of and introduce Ordinance No. 1893 levying special taxes within the City of Fontana Community Facilities District No. 109 (Narra Hills); and that the reading of the title constitutes the first reading thereof.
6. Adopt Resolution No. 2022-051 of the City Council of the City of Fontana authorizing the execution and delivery of a Letter of Credit and Funding Agreement.
7. Adopt Resolution No. 2022-052 of the City Council of the City of Fontana authorizing the execution and delivery of Joint Community Facilities Agreements.
ACTION: Motion was made by Roberts, seconded by Cothran, and passed unanimously by a vote of 5-0 to adopt this Public Hearing. The motion carried by the following vote:
Warren, Garcia, Roberts, Sandoval, and CothranAye:
B. Public Hearing and Adoption of HUD Community Development Block Grant, HOME Investment Partnerships Program, and
Emergency Solutions Grant 2022 Annual Action Plan
21-1328
Mayor Warren opened the public hearing.
Housing Project Specialist Mary Aguilar provided the staff report and answered questions of the City Council.
Mayor Warren closed the public hearing, as there was no one who wished to speak in favor or opposition of the item.
ACTION: Motion was made by Council Member Roberts, seconded by Mayor Pro Tem Garcia, and passed unanimously by a vote of 5-0 to approve Public Hearing Item 'B' as follows:
1. Adopt the draft FY2022-23 Annual Action Plan for Community Development Block Grant (CDBG), HOME Investment Partnerships Program (HOME), and Emergency Solutions Grant (ESG) programming;
2. Authorize the City Manager, or City Manager’s designee, to execute and transmit any documents necessary or desirable, including but not limited to purchase agreements that may include acquisitions costs up to the full amount of the allocated funds, to ensure the City's timely receipt and execution of Community Development Block Grant (CDBG), HOME Investment Partnerships Program (HOME), and Emergency Solutions Grant
26 City Council Meeting Minutes June 14, 2022
(ESG) programs;
3. Authorize the City Manager, or City Manager’s designee, to execute and transmit any documents necessary or desirable, including but not limited to purchase agreements that may include acquisitions costs up to the full amount of the allocated funds, to facilitate the timely administration of the Community Development Block Grant (CDBG) Acquisition, Rehabilitation, and Rental Program including but not limited to property purchase agreements.
The motion carried by the following vote:AYES: Warren, Garcia, Cothran, Roberts, and Sandoval; NOES: None; ABSTAIN: None
Warren, Garcia, Roberts, Sandoval, and CothranAye:
C. Adopt Resolution for Inland Empire Utilities Agency Capital Capacity Reimbursement Fee
21-1418
Mayor Warren opened the public hearing.
Public Works Manager Armando Martinez provided the staff report and answered questions of the City Council.
Council Member Sandoval asked for clarification on what new development rate increases would be.
The following individuals spoke under public communications:
1. Amparo Munoz spoke on connection of septic systems and clarification for new developments.
Public Works Manager Martinez stated that he would work with the Consultant on providing answers to questions asked and inform the City Council.
Mayor Warren closed the public hearing.
ACTION: Motion was made by Council Member Cothran, seconded by Mayor Pro Tem Garcia, and passed unanimously by a vote of 5-0 to approve Public Hearing 'C' as follows:
Adopt Resolution No. 2022-053, approving an increase to the Capital Capacity Reimbursement Fee for capital expansion of the regional sewer system capacity in accordance with yearly increase imposed by Inland Empire Utilities Agency (IEUA) for fiscal 2022/23.
The motion carried by the following vote: AYES: Warren, Garcia, Cothran, Roberts, and Sandoval; NOES: None; ABSTAIN: None
27 City Council Meeting Minutes June 14, 2022
Warren, Garcia, Roberts, Sandoval, and CothranAye:
NEW BUSINESS:
A. Amending Chapter 2, Section 2-42, of the Fontana Municipal Code, regarding City Council Electoral System
21-1367
Deputy City Clerk Ashton R. Arocho provided the staff report and answered questions of the City Council.
ACTION: Motion was made by Council Member Roberts, seconded by Council Member Cothran, and passed unanimously by a vote of 5-0 to approve New Business Item 'A' as follows:
Read by title only and waive further reading of and introduce Ordinance No. 1894, amending Chapter 2, Section 2-42, of the Fontana Municipal Code, regarding City Council electoral system, and the reading of the title constitutes
the first thereof.
The motion carried by the following vote: AYES: Warren, Garcia, Cothran, Roberts, and Sandoval; NOES: None; ABSTAIN: None
Warren, Garcia, Roberts, Sandoval, and CothranAye:
CITY MANAGER COMMUNICATIONS:
A. City Manager Communications
There were no City Manager communications received.
ELECTED OFFICIALS COMMUNICATIONS/REPORTS:
A. Elected Officials Communications/Reports
28 City Council Meeting Minutes June 14, 2022
City Treasurer Koehler-Brooks wished Mayor Pro Tem Garcia a Happy Birthday and the community a Happy Father's Day.
City Clerk McClellan Key echoed City Treasurer Koehler-Brooks sentiments; commented on recent meeting with Parks, Community and Human Services Commission Chair Glass and Acting Community Services Director Schneider on transitioning out of the Commission role; recent attendance at the Chief's Roundtable; recent attendance at the Fontana Day's celebration; and closed with comments on the recently attended Innovating Commerce Serving Communities (ICSC) Conference in Las Vegas, NV.
Council Member Cothran commented on recent attendance at the Innovating Commerce Serving Communities (ICSC) Conference in Las Vegas, NV; congratulated those recently crowned in the Miss Fontana pageant; wished Mayor Pro Tem Garcia a Happy Birthday; and spoke on upcoming community events.
Council Member Sandoval wished the community a Happy Father's Day; thanked Southern California Edison on a quick restoration for those who were impacted by the recent structural fire; thanked City staff for their collaboration on the recent community event, Love Fontana; congratulated recent high school and college graduates; announced his grandson's recent Kindergarten graduation; and congratulated those recently crowned in the Miss Fontana pageant.
Council Member Roberts congratulated those recently crowned in the Miss Fontana pageant; commented on recent attendance at the Innovating Commerce Serving Communities (ICSC) Conference in Las Vegas, NV; wished Mayor Pro Tem Garcia a Happy Birthday; and closed congratulating Mayor Warren for her recent appointment as a Board of Trustee with the United States Conference of Mayors.
Mayor Warren commented on recent attendance at the Innovating Commerce Serving Communities (ICSC) Conference in Las Vegas, NV; commented on the hiring need within the City; congratulated those recently crowned in the Miss Fontana pageant; spoke on recently written opt-in for her support of Care Corp; spoke on success in enhancing South Fontana and throughout Fontana; asked for prayers to Deborah Hall-Lindsay; congratulated her daughter, Aa'jee, for her recent Master's Degree graduation; and closed with wishing Mayor Pro Tem Garcia a Happy Birthday.
Mayor Pro Tem Garcia had nothing to report.
ADJOURNMENT:
A. Adjournment
29 City Council Meeting Minutes June 14, 2022
Mayor Warren adjourned the meeting at 8:57 p.m. to the next Regular City Council Meeting on June 28, 2022 at 7:00 p.m. in the Grover W. Taylor Council Chambers located at 8353 Sierra Avenue, Fontana, California.
________________________
Ashton R. Arocho, MMC
Deputy City Clerk
THE FOREGOING MINUTES WERE APPROVED AND ADOPTED BY THE FONTANA CITY COUNCIL ON JUNE 28, 2022.
________________________
Germaine McClellan Key
City Clerk
30 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1462 Agenda Date: 6/28/2022
Agenda #: B. Category: Consent Calendar
FROM:
Management Services
SUBJECT:
Adoption of Ordinance No. 1893 (Second Reading)
RECOMMENDATION:
Second Reading/Adopt Ordinance No. 1893 levying special taxes within the City of Fontana Community Facilities District No. 109 (Narra Hills).
COUNCIL GOALS:
· To practice sound fiscal management by developing long-term funding and debt management plans.
DISCUSSION:
Ordinance No. 1893 was introduced by a unanimous vote of 5-0 at the June 14, 2022, Regular City Council Meeting.
FISCAL IMPACT:
This District will provide annual funding for maintenance costs, administration and debt service costs once bonds are issued.
MOTION:
Approve staff recommendation.
City of Fontana Printed on 6/22/2022Page 1 of 1
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31 4136-9617-8741.2
ORDINANCE NO. 1893
AN ORDINANCE OF THE CITY OF FONTANA LEVYING A
SPECIAL TAX WITHIN THE CITY OF FONTANA
COMMUNITY FACILITIES DISTRICT NO. 109 (NARRA
HILLS)
WHEREAS, on April 12, 2022 , the City Council (the “City Council”) of the City of Fontana (the “City”), pursuant to the Mello -Roos Community Facilities Act of 1982 (the “Act”), adopted a resolution entitled “A Resolution of the City Council of the City of Fontana of Intention to Establish a Community Facilities District Proposed to be Named City of Fontana Community Facilities District No. 109 (Narra Hills), and to Authorize the Levy of Special Taxes” stating its intention to establish City of Fontana Community Facilities District No. 109 (Narra Hills) (the “Community Facilities District”), to authorize the levy of a special tax (the “Special Tax”) within the Community Facilities District and to finance certain public facilities (the “Facilities”) and services (the “Services”);
WHEREAS, on June 14, 2022 , the City Council held a noticed public hearing on the establishment of the Community Facilities District, as required by the Act; WHEREAS, subsequent to the close of said hearing, the City Council adopted resolutions entitled “A Resolution of the City Council of the City of Fontana of F ormation of the City of Fontana Community Facilities District No. 109 (Narra Hills), Authorizing the Levy of a Special Tax within the Community Facilities District and Establishing an Appropriations Limit for the Community Facilities District” (the “Resolution of Formation”), “A Resolution of the City Council of the City of Fontana Deeming it Necessary to Incur Bonded Indebtedness within City of Fontana Community Facilities District No. 109 (Narra Hills)” and “A Resolution of the City Council of the City of Fontana Calling Special Election for City of Fontana Community Facilities District No. 109 (Narra Hills),” which resolutions established the Community Facilities District, authorized the levy of the Special Tax within the Community Facilities District and called an election within the Community Facilities District on the proposition of incurring indebtedness, levying the Special Tax within the Community Facilities District and establishing an appropriations limit for the Community Facilities District, respectively; and
WHEREAS, on June 14, 2022, an election was held in which the qualified electors of the Community Facilities District approved said proposition by more than the two-thirds vote required by the Act;
THE CITY COUNCIL OF THE CITY OF FONTANA DOES ORDAIN AS
FOLLOWS:
Section 1. The City Council hereby authorizes and levies the Special Tax within the Community Facilities District pursuant to Sections 53328 and 53340 of the Act, at the rate and in accordance with the method of apportionment set forth in Exhibit B to the Resolution of Formation (the “Rate and Method of Apportionment”). The Special Tax is hereby levied commen cing in fiscal year 2022-23 and in each fiscal year thereafter until the last fiscal year in which such Special Tax is authorized to be levied pursuant to the Rate and Method of Apportionment. 32 2
4136-9617-8741.2
Section 2. The City Council may, in accordance with subdivision (b) of Section 53340 of the Act, provide, by resolution, for the levy of the Special Tax in future tax years at the same rate or at a lower rate than the rate provided by this Ordinance. In no event shall the Special Tax be levied on any parcel within the Communit y Facilities District in excess of the maximum tax specified therefor in the Rate and Method of Apportionment.
Section 3. The Special Tax shall be levied on all of the parcels in the Community Facilities District, unless exempted by law or by the Rate and Method of Apportionment.
Section 4. The proceeds of the Special Tax shall only be used to pay, in whole or in part, the cost of providing the Facilities and Services and incidental expenses pursuant to the Act.
Section 5. The Special Tax shall be collected in the same manner as ordinary ad valorem property taxes are collected and shall be subject to the same penalties and the same procedure, sale and lien priority in the case of delinquency as is provided for ad valorem taxes, unless another procedure is adopted by the City Council.
Section 6. If for any reason any portion of this Ordinance is found to be invalid, or if the Special Tax is found inapplicable to any particular parcel within the Community Facilities District, by a court of competent jurisdiction, the balance of this Ordinanc e and the application of the Special Tax to the remaining parcels within the Community Facilities District shall not be affected.
Section 7. This Ordinance shall take effect and shall be in force 30 days after the date of its adoption and prior to the expiration of 15 days from the passage thereof shall be published at least once in the Fontana Herald News, a newspaper of general circulation, printed and published in the City of Fontana, State of California, together with the names of the City Council members voting for and against the same.
APPROVED AND ADOPTED this ____ day of _________ 2022.
READ AND APPROVED AS TO LEGAL FORM:
City Attorney
33 4136-9617-8741.2
I, Germaine McClellan Key, City Clerk of the City of Fontana and Ex-Officio Clerk of the City Council, do hereby certify that the foregoing Ordinance is the actual Ordinance introduced at a regular meeting of said City Council on June 14, 2022, and was finally passed and adopted not less than five days thereafter on ___________, 2022, by the following vote, to wit:
AYES:
NOES:
ABSENT:
City Clerk
Mayor
ATTEST:
City Clerk
34 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1463 Agenda Date: 6/28/2022
Agenda #: C. Category: Consent Calendar
FROM:
City Clerk
SUBJECT:
Adoption of Ordinance No. 1894 (Second Reading)
RECOMMENDATION:
Second Reading/Adopt Ordinance No. 1894, amending Chapter 2, Section 2-42, of the Fontana Municipal Code, regarding City Council electoral system.
COUNCIL GOALS:
· To increase citizen involvement by seeking community input.
DISCUSSION:
Ordinance No. 1894 was introduced by a unanimous vote of 5-0 at the June 14, 2022, Regular City Council Meeting.
FISCAL IMPACT:
No fiscal impact.
MOTION:
Approve staff recommendation.
City of Fontana Printed on 6/22/2022Page 1 of 1
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35 ORDINANCE NO. 1894
AN O
RDINANCE OF THE CITY COUNCIL OF THE CITY OF FONTANA,
CALIFORNIA, AMENDING SECTION 2-42 TO ARTICLE II, CHAPTER 2
OF THE FONTANA MUNICIPAL CODE, REGARDING CITY COUNCIL
DISTRICTS
WHEREAS, the City of Fontana, California (“City”) is a general law city, duly organized under the California Constitution and laws of the State of California; and WHEREAS, on September 12, 2017, City Council adopted Ordinance No. 1767, adding Section 2-42 “City council electoral system” to Article II, Chapter 2 of the Fontana Municipal Code and establishing “by district” elections for members of the City Council; and WHEREAS, Section 2-42 “City council electoral system” includes a reference to a map delineating the boundaries and identifying number of each district within the City of Fontana (“City”) established by Ordinance No, 1767; and
WHEREAS, on April 12, 2022, City Council adopted Resolution No. 2022-023, modifying the boundaries of the four (4) districts within the City; and WHEREAS, the reference to the map in Section 2-42 to Article II, Chapter 2, is no longer current and needs to be amended.
THE CITY COUNCIL OF THE CITY OF FONTANA DOES ORDAIN AS
FOLLOWS:
SECTION 1. In corporation of Recitals . The above recitals are true and correct and are incorporated herein by this reference as findings in support of this Ordinance.
SECTION 2. Municipal Code Amendment . Section 2-42 of Article II, Chapter 2 of the Fontana Municipal Code is hereby amended to read as follows:
“City council districts established. Four city council districts are he
reby established in the City of Fontana. The boundaries and identifying number of each district shall be as describ ed on the council district map and made available to the public in the City Clerk’s Office. Attached hereto as Exhibit “A” and incorporated herein by this reference.”
SECTION 3. CEQA. The City Council finds that this Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 36 Ordinance No. 1893
SECTION 4. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance, or any part thereof, is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portion of this O rdinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsectio n, subdivision, paragraph, sentence, clause or phrase be declared unconstitutional. If for any reason any portion of this ordinance is found to be invalid by a court of competent jurisdiction, the balance of this ordinance shall not be affected.
SECTION 5. C
ustodian of Records . The documents and materials that constitute the record of proceedings on which this Ordinance is based are located at the City Clerk’s office located at 8353 Sierra Avenue, Fontana, CA 92335. The custodian of these records is the City Clerk.
SECTION 6. E
ffective Date. This Ordinance shall be effective thirty days (30) following its adoption.
SECTION 7. P ublication. The City Clerk shall certify to the adoption of this Ordinance.
Not later than fifteen (15) days following the pas sage of this Ordinance, the Ordinance, or a summary thereof, along with the names of the City Council members voting for and against the Ordinance, shall be published in a newspaper of general circulation in the City of Fontana.
PASSED, AP
PROVED and ADOPTED by the City Council of the City of Fontana, at a regular meeting of the City Council held on the 28th day of June, 2022. [SIGNATURES ON FOLLOWING PAGE]
37 Ordinance No. 1893
__________________________________
Acquanetta Warren, Mayor
City of Fontana
Attest:
__________________________________
Germaine McClellan Key, City Clerk
Read and Approved as to form:
Best, Best & Krieger, LLP.
__________________________________
Ruben Duran, City Attorney
38 Ordinance No. 1893
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF FONTANA )
CERTIFICATION
I, Germaine McClellan Key, City Clerk, hereby certify that the attached is a true copy of Ordinance No. 1893, introduced by the City Council of the City of Fontana, California, at a regular meeting held the 14th day of June, 2022. Ordinance No. 1893 was approved, passed and adopted at a regular meeting held the 28th day of June, 2022 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Germaine McClellan Key, City Clerk
39 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1386 Agenda Date: 6/28/2022
Agenda #: D. Category: Consent Calendar
FROM:
Human Resources
SUBJECT:
Adopt a Resolution Approving the Updated Salary Tables for the Fontana Police Management Association (PMA) Bargaining Unit and the Executive Group RECOMMENDATION:
Adopt Resolution No. 2022-053, a resolution of the City Council of the City of Fontana adopting the updated salary table for the Fontana Police Management Association Bargaining Unit and the Executive Group.
COUNCIL GOALS:
· To operate in a businesslike manner by becoming more service oriented. · To operate in a businesslike manner by ensuring that the public debate is based on accurate information.
· To practice sound fiscal management by living within our means while investing in the future.
DISCUSSION:
The City’s objective is to attract and retain the best talent to serve the Fontana residents and business community by offering attractive and competitive salaries and benefits. Staff received direction from City Council to engage in discussions with the various labor groups regarding the terms and compensation levels outlined in their respective Confirmation and Memoranda of Understanding.
The City has concluded discussions with the PMA, in which a side letter agreement was created (attached as an exhibit for reference). This side letter agreement extended the current contract by one (1) additional year and provided revised salary increases totaling 3% for each year of the contract.
Further, the Chief of Police’semployment contract includes a provision that states, “atno point shall Employee’s[Chief of Police] rate of pay fall below 30% over that of his subordinate Captains.” In order to maintain this provision, staff is recommending adoption of the updated Executive Group salary table in which the maximum annual salary for the Chief of Police classification is increasing to $268,399.04.
Staff is recommending formal adoption by City Council of the attached salary table for the PMA and the Executive Group. Formal adoption of all City Salary Tables is in accordance with the guidelines provided by the California Public Employee Retirement System (CalPERS).
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40 File #: 21-1386 Agenda Date: 6/28/2022
Agenda #: D. Category: Consent Calendar
FISCAL IMPACT:
The total additional cost of the PMA contract extension, including an increase to Chief’s salary, is approximately $530,000 through Fiscal Year 2023/24. Fiscal Year 2021/22 cost (Year 1 of the contract extension) is approximately $12,000 and all associated costs will be included in subsequent fiscal year budgets.
MOTION:
Approve staff recommendation.
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41 RESOLUTION NO. 2022-053
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FONTANA
ADOPTING THE UPDATED SALARY TABLES FOR THE FONTANA POLICE
MANAGEMENT ASSOCIATION BARGAINING GROUP AND THE EXECUTIVE GROUP
WHEREAS, the City Council of the City of Fontana has adopted Personnel Rules and Regulations which incorporate the City’s Classification and Compensation Plan; and
WHEREAS, the Classification and Compensation Plan is not a static plan and requires revision to reflect organizational changes and needs; and WHEREAS, the City has created a side letter agreement which will serve as an addendum to the current Memorandum of Understanding (MOU) for the Fontana Police Management Association (PMA) , which update the terms and compensation levels for this groups; and
WHEREAS, the Chief of Police’s employment contract includes a provision that states, “at no point shall Employee’s [Chief of Police] rate of pay fall below 30% over that of his subordinate Captains.”
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Fontana, to adopt the updated salary tables for the Fontana Police Management Association and the Executive Group , including increasing the Chief of Police’s salary range to $268,399.04.
EFFECTIVE DATE: June 18, 2022
APPROVED AND ADOPTED this 28th day of June, 2022.
READ AND APPROVED AS TO LEGAL FORM:
City Attorney
I, Germaine McClellan Key, City Clerk of the City of Fontana, and Ex-Officio Clerk of the City Council, do hereby certify that the foregoing Resolution is the actual Resolution duly and regularly adopted by the City Council of said City at a regular meeting thereof, held on June 28, 2022, by the following vote to wit:
AYES:
NOES:
ABSENT:
42 Resolution 2022-
___________________________
City Clerk of the City of Fontana
___________________________
Mayor of the City of Fontana
ATTEST:
___________________________
City Clerk
43 CITY OF FONTANA
POLICE MANAGEMENT ASSOCIATION
HOURLY/MONTHLY/ANNUAL PAY SCHEDULE
Effective 06/18/2022
TITLE RANGE STEP 1 STEP 2 STEP 3 STEP 4 STEP 5
$55.62 $58.41 $61.34 $64.41 $67.64 Hourly
$9,640.80 $10,124.40 $10,632.27 $11,164.40 $11,724.27 Monthly $115,689.60 $121,492.80 $127,587.20 $133,972.80 $140,691.20 Annual $58.19 $61.10 $64.16 $67.37 $70.74
$10,086.27 $10,590.67 $11,121.07 $11,677.47 $12,261.60
$121,035.20 $127,088.00 $133,452.80 $140,129.60 $147,139.20 $67.54 $70.92 $74.47 $78.20 $82.11
$11,706.94 $12,292.80 $12,908.14 $13,554.67 $14,232.40
$140,483.20 $147,513.60 $154,897.60 $162,656.00 $170,788.80 $70.98 $74.53 $78.26 $82.18 $86.29
$12,303.20 $12,918.54 $13,565.07 $14,244.54 $14,956.94
$147,638.40 $155,022.40 $162,780.80 $170,934.40 $179,483.20 $81.64 $85.73 $90.02 $94.53 $99.26
$14,150.94 $14,859.87 $15,603.47 $16,385.20 $17,205.07
$169,811.20 $178,318.40 $187,241.60 $196,622.40 $206,460.80 Police Lieutenant
w/Advanced Certificate PM04
Police Captain PM05
Police Sergeant
w/Intermediate
Certificate
PM01
Police Sergeant
w/Advanced Certificate PM02
Police Lieutenant
w/Intermediate
Certificate
PM03
44 CITY OF FONTANA
EXECUTIVE GROUP ANNUAL PAY SCHEDULE
EFFECTIVE 06/18/2022
TITLE RANGE MINMUM ANNUAL SALARY MAXIMUM ANNUAL SALARY
City Manager EXE02 315,000.00$
Chief of Police EXE02 200,930.00$ 268,399.04 $ Deputy City Clerk EXE01 103,500.80$ 138,000.36 $ Deputy City Manager EXE02 200,930.00$ 267,907.00 $ Director of Community Development EXE01 151,350.00$ 201,800.23 $ Director of Community Services EXE01 133,024.32$ 183,573.56 $ EXE01 133,042.00$ 177,390.04 $ Director of Information Techonology EXE01 141,723.00$ 188,964.55 $ Director of Planning EXE01 135,000.00$ 183,454.75 $ Chief Financial Officer/ Director of
Management Services
EXE01 151,350.00$ 201,800.00 $ Public Works Director/City Engineer EXE01 165,000.00$ 206,100.00 $ Director of Human Resources & Risk
Management
45 46
47 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1400 Agenda Date: 6/28/2022
Agenda #: E. Category: Consent Calendar
FROM:
Management Services
SUBJECT:
Annual Placement of Sewer Charges on the Property Tax Rolls RECOMMENDATION:
Adopt Resolution No. 2022-054 of the City Council of the City of Fontana, California, directing the placement of sewer charges on the property tax bills for collection.
COUNCIL GOALS:
· To operate in a businesslike manner by becoming more service oriented.
DISCUSSION:
The County Auditor-Controller requires that the City provide an annual resolution to place sewer charges on the property tax bills. The attached resolution provides for the following, as approved by the City Council on April 4, 1995, for the 2022/2023 property tax bills:
1. Voluntary tax roll billing of sewer charges for current residential customers;
2. Mandatory tax roll billing of sewer charges for those residential customers that have unpaid liens; and
3. Mandatory tax roll billing for new residential connections and residential properties that change ownership.
FISCAL IMPACT:
This action will help ensure collection of outstanding receivables in a timely manner. County cost of $0.30 per parcel will be included with charges on the property tax bill. Total amount to be applied has not yet been determined. Previous year total was approximately $18,836,547.44 applied to 38,833 properties.
MOTION:
Approve staff recommendation.
City of Fontana Printed on 6/23/2022Page 1 of 1
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48
RESOLUTION NO. 2022-054
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FONTANA,
CALIFORNIA, DIRECTING THE PLACEMENT OF SEWER CHARGES
ON THE PROPERTY TAX BILLS FOR COLLECTION.
WHEREAS, Section 23-351 of the Municipal code of the City of Fontana provides for the adoption, by resolution of the City Council, rules and regulations for the rendering and collection of sewer bills; and
WHEREAS, California Health and Safety Code Section 5473 specifically authorizes the City to levy and collect sewer charges through County administered and enforced property tax billing and collection procedures; and WHEREAS, the Auditor-Controller of San Bernardino County is authorized, if so directed by the City, to place sewer charges on property tax bills; and WHEREAS, the City Council has elected to transition the placement of residential sewer charges on the property tax rolls, making it voluntary for current customers and mandatory for new homes, property transfers and accounts subject to lien action because of delinquency.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Fontana, California, as follows:
SECTION 1. That sewer service charges for the period of July 1, 2022, through June 30, 2023 for those residential properties whose owners have elected tax roll billing, be forwarded to the County of San Bernardino for addition to the 2022/2023 property tax rolls as a special assessment. Additionally, that sewer service charg es for July 1 through June 30 of each subsequent year be forwarded in the same manner.
SECTION 2. That sewer service charges for the period of July 1, 2022, through June 30, 2023, for those residential properties that have unpaid liens for delinquent sewer charges as of June 30, 2022, together with the amount of unpaid liens, be forwarded to the County of San Bernardino for addition to the 2022/2023 property tax rolls as a special assessment. Additionally, that sewer service charges for July 1 through June 30 of each subsequent year be forwarded in the same manner.
SECTION 3. That all new residential connections and residential properties that have changed ownership on or after July 1, 1995, and which have not previously been placed on the property tax rolls shall be billed on a bi -monthly basis through June 30 of the assessment year and that sewer service charges for July 1 through June 30 of each year be forwarded to the County of San Bernardino for addition to the property tax rolls as a special assessment.
49
Resolution No. 2022-
SECTION 4. That whenever a rate change occurs during the assessment year, the City shall prepare a pro-rated adjustment to the assessment file which shall be added to the subsequent annual assessment.
SECTION 5. This resolution shall take effect upon adoption.
APPROVED AND ADOPTED 28th day of June, 2022.
READ AND APPROVED AS TO LEGAL FORM:
City Attorney
I, Tonia Lewis, City Clerk of the City of Fontana, and Ex -Officio Clerk of the City Council, do hereby certify that the foregoing resolution is the actual resolution duly and regularly adopted by the City Council at a regular meeting on the 28th day of June, 2022, by the following vote to wit:
AYES:
NOES:
ABSENT:
City Clerk of the City of Fontana
Mayor of the City of Fontana
ATTEST:
City Clerk
50 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1453 Agenda Date: 6/28/2022
Agenda #: F. Category: Consent Calendar
FROM:
Management Services
SUBJECT:
Annual Placement of Rubbish Charges on the Property Tax Rolls RECOMMENDATION:
Adopt Resolution No. 2022-055 of the City Council of the City of Fontana, California, directing the placement of rubbish charges on the property tax bills for collection.
COUNCIL GOALS:
· To operate in a businesslike manner by becoming more service oriented.
DISCUSSION:
The City, on behalf of Burrtec, processes payments for current annual rubbish services and prior year rubbish liens that have been received through property tax payments. The County Auditor-Controller requires that the City provide an annual resolution to place rubbish charges on the property tax bills.
The attached resolution provides for the following, as approved by the City Council on April 4, 1995, for the 2022/2023 property tax bills:
1. Voluntary tax roll billing of rubbish charges for current residential customers;
2. Mandatory tax roll billing of rubbish charges for those residential customers that have unpaid liens
FISCAL IMPACT:
This action will help ensure collection of outstanding receivables in a timely manner. County cost of $0.30 per parcel will be included with charges on the property tax bill. Actual amounts will be determined and applied to tax bills directly by Burrtec. Previous year total was approximately $3,076,186.49 applied to 7,237 properties
MOTION:
Approve staff recommendation.
City of Fontana Printed on 6/23/2022Page 1 of 1
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51
RESOLUTION NO. 2022-055
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FONTANA,
CALIFORNIA, DIRECTING THE PLACEMENT OF RUBBISH CHARGES
ON THE PROPERTY TAX BILLS FOR COLLECTION.
WHEREAS, Section 24-85 of the Municipal code of the City of Fontana provides for the collection of rubbish charges more than ninety days delinquent by recording real property liens, and further by annually forwarding amounts remaining unpaid to the County of San Bernardino for addition to the property tax rolls as a special assessment; and
WHEREAS, California Health and Safety Code Section 5473 specifically authorizes the City to levy and collect rubbish charges through County administered and enforced property tax billing and collection procedures; and WHEREAS, the Auditor-Controller of San Bernardino County is authorized, if so directed by the City, to place rubbish charges on property tax bills; and WHEREAS, the City Council has elected to place annual rubbish charges on the property tax rolls for accounts subject to lien action because of delinquency.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Fontana, California, as follows:
SECTION 1. That rubbish service charges for the period of July 1, 2022, through June 30, 2023 for those residential properties whose owners have elected tax roll billing, be forwarded to the County of San Bernardino for addition to the 2022/2023 property tax rolls as a special assessment. Additionally, that rubbish service charges for July 1 through June 30 of each subsequent year be forwarded in the same manner.
SECTION 2. That rubbish service charges for the period of July 1, 2022, through June 30, 2023, for those residential properties that have unpaid liens for delinquent rubbish charges as of June 30, 2022, together with the amount of unpaid liens, be forwarded to the County of San Bernardino for addition to the 2022/2023 property tax rolls as a special assessment.
SECTION 3. That whenever a rate change occurs during the assessment year, the City shall prepare a pro-rated adjustment to the assessment file which shall be added to the subsequent annual assessment.
SECTION 4. This resolution shall take effect upon adoption. 52
Resolution No. 2022-
APPROVED AND ADOPTED 28th day of June, 2022.
READ AND APPROVED AS TO LEGAL FORM:
City Attorney
I, Tonia Lewis, City Clerk of the City of Fontana, and Ex -Officio Clerk of the City Council, do hereby certify that the foregoing resolution is the actual resolution duly and regularly adopted by the City Council at a regular meeting on the 28th day of June, 2022, by the following vote to wit:
AYES:
NOES:
ABSENT:
City Clerk of the City of Fontana
Mayor of the City of Fontana
ATTEST:
City Clerk
53 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1452 Agenda Date: 6/28/2022
Agenda #: G. Category: Consent Calendar
FROM:
Management Services
SUBJECT:
Annual Placement of Weed Abatement Charges on the Property Tax Rolls RECOMMENDATION:
Adopt Resolution No. 2022-056 of the City Council of the City of Fontana, California, directing the placement of weed abatement charges on the property tax bills for collection.
COUNCIL GOALS:
· To operate in a businesslike manner by becoming more service oriented.
DISCUSSION:
The County Auditor-Controller requires that the City provide an annual resolution to place weed abatement charges on the property tax bills. The attached resolution provides for the property tax roll billing of weed abatement charges for those properties that have unpaid liens as of July 1, 2022 as authorized in Fontana Municipal Code Section 28-16 and 28-17.
FISCAL IMPACT:
This action will help ensure collection of outstanding receivables in a timely manner. County cost of $0.30 per parcel will be included with charges on the property tax bill. Total amount to be applied has not yet been determined. Previous year total was approximately $96,897.93 applied to 122 properties.
MOTION:
Approve staff recommendation.
City of Fontana Printed on 6/23/2022Page 1 of 1
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54
RESOLUTION NO. 2022-056
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FONTANA,
CALIFORNIA, DIRECTING THE PLACEMENT OF WEED ABATEMENT
CHARGES ON THE PROPERTY TAX BILLS FOR COLLECTION.
WHEREAS, Section 28-16 and 28-17 of the Municipal code of the City of Fontana provide the rules and regulations for the rendering and collection of unpaid delinquent weed abatement charges; and
WHEREAS, the Auditor-Controller of San Bernardino County is authorized, if so directed by the City, to place weed abatement charges on property tax bills for collection; and
WHEREAS, the City Council has elected to place unpaid weed abatement charges onto the property tax rolls for accounts subject to lien action because of delinquency.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Fontana, California, as follows:
SECTION 1. That weed abatement charges which remain unpaid as of July 1, 2022, on which lien action has been taken, be forwarded to the County of San Bernardino for addition to the 2022/2023 property tax rolls as a special assessment.
SECTION 2. This resolution shall take effect upon adoption.
Resolution No. 2022-
APPROVED AND ADOPTED 28th day of June, 2022.
READ AND APPROVED AS TO LEGAL FORM:
City Attorney
I, Tonia Lewis, City Clerk of the City of Fontana, and Ex -Officio Clerk of the City Council, do hereby certify that the foregoing resolution is the actual resolution duly and regularly adopted by the City Council at a regular meeting on the 28th day of June, 2022, by the following vote to wit:
AYES:
NOES:
ABSENT:
55
City Clerk of the City of Fontana
Mayor of the City of Fontana
ATTEST:
City Clerk
56 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1446 Agenda Date: 6/28/2022
Agenda #: H. Category: Consent Calendar
FROM:
Engineering
SUBJECT:
Approve Task Orders for Inspection Services and Construction Management Services for the Sierra Avenue Widening Project between Foothill Boulevard and Baseline Avenue RECOMMENDATION:
1. Approve and authorize the City Manager to execute a Task Order in a not to exceed amount of $304,400.00 with Albert Webb and Associates for Inspection Services and any amendments for the Sierra Avenue Widening Project between Foothill Boulevard and Baseline Avenue;
2. Approve and authorize the City Manager to execute a Task Order in a not to exceed amount of $492,548.00 with TKE Engineering Inc. and any amendments for Construction Management Services for the Sierra Avenue Widening Project between Foothill Boulevard and Baseline Avenue.
COUNCIL GOALS:
· To invest in the city's infrastructure (streets, sewers, parks, etc.) by maintaining and improving the city's existing infrastructure.
· To invest in the city's infrastructure (streets, sewers, parks, etc.) by improving the aesthetics of the community.
· To invest in the city's infrastructure (streets, sewers, parks, etc.) by focusing on relief of traffic congestion.
DISCUSSION:
City of Fontana’sapproved Capital Improvement Program Budget includes the Sierra Avenue from Foothill Boulevard to Baseline Avenue Street Improvement Project (Project). The proposed improvements include widening Sierra Avenue to six-lanes with curb, gutter, sidewalks, raised landscaped median, decorative streetlights, and a new traffic signal at Sierra Avenue and Reed Street intersection.
On June 14, 2022, the City Council approved and authorized the City Manager to execute a construction contract with Los Angeles Engineering, Inc. for the construction of the Project in the amount of $11,300,000 and authorized a 10% contingency in the amount of $1,300,000. The construction is expected to begin in July 2022.
On April 26, 2022, staff solicited a Request for Proposals (RFP) for Inspection Services by notifying firms through the Purchasing Office. The notifications were sent out to the firms listed on the Engineering Pre-Qualified List established and approved by council in October 2019. On May 5, City of Fontana Printed on 6/22/2022Page 1 of 2
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57 File #: 21-1446 Agenda Date: 6/28/2022
Agenda #: H. Category: Consent Calendar
Engineering Pre-Qualified List established and approved by council in October 2019. On May 5, 2022, proposals were received from ten (10) engineering firms interested in providing inspection services for the Project. Proposals were evaluated and five (5) firms were shortlisted for an oral interview. The interviews were conducted on May 25, 2022 and May 26, 2022. Through this evaluation process, Albert Webb and Associates has been selected to provide inspection services for the project.
Also, staff solicited an RFP for Project Management. The notifications were sent out to the firms listed on the Engineering Pre-Qualified List established and approved by council. Proposals were received from seven (7) firms and were evaluated and interviewed. Through this evaluation process, TKE Engineering was selected to provide the construction management services for the project.
FISCAL IMPACT:
Funds for the inspection services and construction management services are budgeted in Fiscal Year 2021/2022 in Measure I Arterial Fund 245 and the City's Circulation Mitigation Fund 630 in Project No. 3218, Sierra Avenue widening project from Foothill Boulevard to Baseline Avenue.
MOTION:
Approve staff recommendation
City of Fontana Printed on 6/22/2022Page 2 of 2
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58 N01 inch = 800 feet1600800
SIERRA AVENUE WIDENING PROJECTFROM FOOTHILL BOULEVARD TO BASELINE AVENUEBID NO. SB-86-DE-22(PROJECT NO. 3281)PROJECT LOCATION 59 G:\Proposals\FORMAL PROPOSALS\City of Fontana\014561 - On-Call CMI\Sierra Ave. Widening Inspection\Proposal Ltr. 2022-06-07.docx
014561
June 7, 2022
Mr. Jeffrey Kim
Engineering Manager
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
RE: Construction Inspection Services Proposal
Sierra Avenue Widening Project
Dear Mr. Kim:
Pursuant to your request, the following is Webb Ass ociates’ proposal to provide construction inspection services for the subject pr oject. The following provides our Project Understanding and Scope, Project Personnel, and Work Hour Cost Estimate.
Project Understanding and Scope
Webb Associates understands that the City of Fontana is seeking an experienced and qualified inspector for construction inspection ser vices for the Sierra Avenue Widening project. The estimated schedule for this p roject is 12 months, and the project is scheduled to begin construction in July 2022. The work will be performed under the On-Call agreement.
The following is a list of holidays we understand t he City observes in which construction will not be allowed: New Year's Day, Martin Luther King’s Birthday, President’s Day, Memorial Day, Independence Day, La bor Day, Veteran’s Day, Thanksgiving and the day after Thanksgiving, Christ mas Eve, and Christmas Day. We also understand that City Hall is closed from Christmas Eve through New Year’s Day.
We understand this project is prevailing wage.
60 G:\Proposals\FORMAL PROPOSALS\City of Fontana\014561 - On-Call CMI\Sierra Ave. Widening Inspection\Proposal Ltr. 2022-06-07.docx Project Personnel
Ed Nylund will be the primary inspector assigned to this project.
Work Hour Cost Estimate
The inspection request is for 12 months Our proposal is for full-time inspection for 12 months.
We have also included a cost for Overtime inspection should it be required.
Construction Inspector 2,000 hours @ $145/hour = $290,000.00 80 hours OT inspection @ $180/hour = $14,400.00
Total not to be exceeded without prior authorizati on from the City of Fontana = $304,400.00
We look forward to providing the requested services . Should you have any questions or require additio nal information please contact me at 951-830-5746.
Sincerely,
ALBERT A. WEBB ASSOCIATES
Reed Chilton, P.E.
Director of Construction Management and Inspection
cc: Brian Knoll, Webb Associates
61 June 6, 2022
Mr. Jeffrey Kim, P.E.
CITY OF FONTANA
Engineering Department
8353 Sierra Avenue
Fontana, CA 92335
Subject: Sierra Avenue Widening Construction Management Scope of Services
Dear Mr. Kim:
Thank you for the opportunity to provide professional construction management services for the Sierra Avenue Widening Project. The City would like to retain professional engineering services for the construction management of the street widening along Sierra Avenue between Foothill Boulevard and Baseline Avenue including demolition of structures, undergrounding of overhead electrical, telephone, fiber optic, and cable television lines, vault and manhole construction required for the utility undergrounding, installation of new water mains and pressure reducing station, curb, gutter, sidewalk, driveway and ramp construction, asphalt concrete pavement, median curb, landscaping and irrigation, fencing, walls and signing and striping and private property improvement reconstruction. TKE’s scope of services for each project has been listed below:
SCOPE OF WORK
TKE’s scope of services is presented in the following paragraphs:
Task No. 1 - Preconstruction Meeting
A preconstruction conference will be held for the project. The conference will be attended by City staff, TKE’s Construction Manager , the C onstruction Inspector, the Contractor, representatives of potentially affected utilities and representatives of any other affected agencies. Prior to the conference, we will prepare a conference agenda. At the meeting, we will discuss communication protocol requirements, safety and health procedures, permitting, traffic control requirements, schedule and phasing requirements, utility coordination and inspection, storm water pollution prevention controls, procedures for contract submittals, contract administration, job -site access and delivery, progress payments, certified payroll, and coordination with others. After the meeting, it will be documented with minutes.
Deliverables: Agenda, Minutes, and Distribution to All Entities Task No. 2 – Material Submittal Review
TKE will develop a list of all required material submittals and compare the list to the Contractors submittals. TKE wil l review all project submittals including traffic control plans.
Each submittal shall be reviewed with City of Fontana staff and design t eam as required to verify compliance. We will maintain a project log which will include descriptions of submittals, submittal status, date received, and date returned. Once the submittals have been reviewed and accepted, they will be signed, dated, and sent to the Construction Inspector, City of 62 City of Fontana - Mr. Jeffrey Kim, P.E. (Continued)
Sierra Avenue Widening Construction Management Scope of Services June 6, 2022 Page 2 of 5
Fontana staff, project Contractor and the file. Submittals will be returned within the time frame specified by the Contract Documents.
In addition to submittals, TKE will review all vendor and lab reports and certifications and material test inspections and correlate all reports with respect to the plans and specifications.
TKE will provide a log for reports and certifications and notify the City upon any irregularities.
Deliverables: Submittals, Transmittals, and Logs
Task No. 3 – Records Management
TKE utilizes an electronic records management system. Files include:
Contract Documents, Addenda, Bulletins, and Reports
All required local, other agencies and state records throughout the project duration and submit copies to the City’s project manager, including labor compliance. Environmental Compliance Documents/ Agency Permits
Material Submittals
Contractor Correspondence (RFI’s and RFC’s)
City Correspondence (Responses to RFI’s and RFC’s , Bulletins and other correspondence)
Certified Payroll Records
Change Orders
Progress Payments
Materials Testing Reports/Correspondence
Surveying Records
Inspection Field Reports/ Accident Reports
Photo Logs
Utility/Agency Correspondence
Public Correspondence
Operations and Maintenance Manuals
Project Closeout Records
Deliverables: E-File of All of the Above
Task No. 4 – Construction Meetings
TKE will be in constant communication with City staff during the projects entirety to ensure that the project is running smoothly and in accordance with the City’s expectations. TKE will hold weekly meetings with City staff, Contractor and Inspector, meetings with utilities/agencies, and affected agencies. Each is discussed below:
City Meetings -TKE will meet with City staff as required to keep staff fully apprised as to construction progress and potential project issues. We will prepare agendas and minutes for each meeting.
Contractor Meeting-our Construction Manager will meet with the project contractor weekly .
We will prepare agendas and minutes for each meeting. Meeting agenda will typically include background, old business, new business, SWPPP, submittals, RFI’s, objectives, traffic control, 63 City of Fontana - Mr. Jeffrey Kim, P.E. (Continued)
Sierra Avenue Widening Construction Management Scope of Services June 6, 2022 Page 3 of 5
construction phasing, project schedule, utility coordination, potential issues discussion, payment quantities discussion, certified payroll deficiencies, and any safety defici encies observed.
Utilities/Agency Meetings -as mentioned above, TKE will invite utilities and agencies to the preconstruction conference. During that meeting, all potential project impacts will be discussed with each. During construction, should issues develop needing further discussions with utilities/agencies, TKE will meet with each and develop remediation strategies. Again, all meetings will be documented with minutes.
Deliverables: Agendas, and Minutes
Task No. 5 – Construction Management
With our current experience on the Sierra Avenue Widening Project Management , TKE is uniquely suited to respond to challenges that may occur during construction. Our manager’s consistent communications with th e City and construction inspector will also provide immediate remediation alternative development.
TKE will review the project schedule and construction progress prior to each Contractor meeting to verify compliance with the Contract Documents. In addition , we will prepare weekly statement of working days to be provided to the contractor at each weekly meeting.
If the Contractor is failing to meet approved schedule contract obligations, TKE will request a remediation effort to return the project progress to comply with requirements. If the remediation plan requires adjustment to the completion date, TKE will advise the City and will not execute any approval of such change without City authorization.
In addition, TKE will receive RFI’s and RFC’s (including written clarification requests and change-in-plan drawings) regarding the contract documents. TKE will provide any drawings, sketches and written responses in a timely manner to each with direction and will verify compliance with the Contract Documents. All RFI’s and RFC’s will be logged, including content of inquiry, date relayed and date of response. TKE will review all RFC’s for any potential change in scope and notify the City if potential change orders may arise from the RFC.
Change conditions and time extensions that may warrant a c hange order will require a complete understanding of the impacts of the change of which TKE will need to consider in determining its resolution. TKE will seek appropriate comments from anyone impacted by the changed conditions and will closely consult with the City to develop the most cost-effective remediation alternative. Cost and scheduling impacts will be noted and presented to the City in accordance with the cities change order procedures prior to direction being given to the Contractor, including the preparation of Change Order drawings and specifications, if required.
To maintain cost controls, TKE will review project budgets on a weekly basis, or as warranted, by review of change orders, RFC’s, and progress payments. In particular, quantities used on the project will be tracked to verify that they will not exceed contract budgeted amounts.
Each month, TKE will provide a budget report to the City. Should an increase in budget be required, TKE will assist Staff with staff report preparation.
Regarding change orders, we will review any change order request received to determine if said request is warranted. If the change order request is not warranted, we will reject it in writing; prior to sending rejection letters to the Contractor, we will review it with City staff.
If the change order request appears justified, we will review it with the Construction Inspector and compare it with field reports for confirmation of materials, equipment and/or labor involved; we will review same with City sta ff and receive City staff’s approval prior to preparing and processing the contract change order. Change orders will be prepared on standard forms.
64 City of Fontana - Mr. Jeffrey Kim, P.E. (Continued)
Sierra Avenue Widening Construction Management Scope of Services June 6, 2022 Page 4 of 5
Should rejected change order s require additional consideration, we will negotiate with contractors to estab lish the impact of change conditions and we will attempt to complete negotiations prior to beginning work. If we fail to reach an agreement and the work must continue, we will direct the Contractor to complete the work. For all disputed work and force account work, the Construction Inspector will document the labor, materials and equipment used for the extra work for use in future negotiations.
Upon direction from the City, TKE will continue negotiating with Contractors to settle all disputes. However, City staff will ultimately determine the extent the City will go to achieve resolution. TKE will meet with both parties, either independently or together, as warranted until resolution is reached. TKE will complete all necessary calculations to support th e City’s position. TKE utilizes a proactive dispute avoidance program. Once an issue is identified, TKE works diligently to resolve it as timely as possible. The weekly meetings will also be used to avoid or resolve these disputes.
If required, TKE will perform labor compliance interviews and verification of labor compliance for the project with each payment request submitted. Should deficiencies be noted, corrective action will be requested from the contractors prior to payment release.
Deliverables: RFI and RFC R esponses, Change Orders, Budget Reports, Labor Compliance Reporting and Staff Report
Task No. 6 – Pay Requests
Each month, TKE will review the construction payment requests submitted by the contractors for work completed and the construction schedule. We will review the work completed and payment requests to ensure that the quantities and amounts requested reflect the actual work completed. After each request has been reviewed (and revised if necessary), we will approve it and forward it to staff for approval and payment along with a written statement of completed review. We will also submit a monthly status report with each payment request that will advise the City of compliance with the project schedule.
TKE will track and log any Preliminary and Stop Notices prior to each month’s progre ss payment. If any stop notices have been issued, we will direct the Contractor to rectify the notice and provide proof of the rectification prior to release of payment.
TKE will also provide monthly reports highlighting project progress, change orders, c ost issues, and schedule.
Deliverables: Payment Requests and Budget Reports
Task No. 7 – Construction Surveying
TKE will provide construction staking services for the project. Construction staking will include site control to develop control and establishment of centerline monumentation and elevation’s for City’s benchmarks around the site to be utilized during construction. In addition, we will provide staking and grade sheets as necessary for all items required for construction including but not limited to, clearing and grubbing, rights-of-way, temporary construction easements, rough grading, asphalt concrete and PCC demolition limits, conduit installation, vaults, manholes, sewer pipe, street lights, traffic signal poles, curbs, median curb, walkways, ramps, driveways, fences, walls, asphalt concrete pavement blue tops and relocation of private property improvements. In addition, we will tie out all monumentation on the project site prepare temporary monument tie sheets and reinstall all removed monumentation with new tie sheets.
Deliverables: Construction Stakes and Grade Sheets
65 City of Fontana - Mr. Jeffrey Kim, P.E. (Continued)
Sierra Avenue Widening Construction Management Scope of Services June 6, 2022 Page 5 of 5
Task No. 8 – Agency Coordination
TKE’s Construction Manager will review permitting and coordinate with appropriate City and utility agencies affected by the work. We will coordinate project schedules and work progress affecting the project with each appropriate agency. If appropriate, the Construction Manager will invite affected agencies to attend the weekly progress meetings to review the project schedule, summarize project requirements and discuss them at these weekly meetings.
Deliverables: Agency Coordination
Task 9 – Project Close-Out
After project construction is essentially complete, we together with City staff, will field review the project and prepare a construction deficiencies list (punch list) of items requiring remedial work. After all deficiencies are corrected, our Construction Manager will prepare a letter, recommending acceptance of the project. Once the remedial work is completed, TKE will review and process the final project invoice.
TKE will assist the City to identify, track and monitor the completion of warranty work prior to the construction completion date. We will obtain lien waivers, bonds, g uarantees, warranties, if required, and other documents required by the Contract Documents for final Contract Closeout.
In addition, we will prepare the Notice of Substantial Completion to establish the date for the commencement of contract warranty peri ods and acceptance of maintenance responsibility by City. We will provide the Contractor with a list of any remaining incomplete work requirements to be completed prior to Final Completion.
After all project requirements have been completed, we will prepare a “Notice of Completion” report documenting the final completion of the project and acceptance of the project improvements by the City.
We will forward copies of all records in digital and hard copy format (CD ROM and mylar) and we will prepare a summary of construction changes, final cost, and schedule revisions.
Deliverables: Punch List, Final Payment, Project Records, and Notice of Completion FEE
TKE’s fee to provide the scope of services described above is shown on the attached fee table breakdown. TKE will invoice monthly in accordance with our rate schedule and will not exceed our fee without prior approval from the City.
TKE’s scope is based off construction management for a construction period of 30 0 working days and was developed based on our understanding of the project plans and specifications.
Again, thank you for the opportunity to submit our proposal to provide professional surveying services. If you have any questions, please contact me at (951) 680-0440.
Sincerely,
Terry Renner, P.E., Q.S.D.
Senior Vice President
TKE ENGINEERING, INC.
Attachment: Fee Table Breakdown
66 Total
Task No. Task Hours $ Hours $ Hours $ Hours $ $
Scope of Services
Task 1 - Preconstruction Meeting 6 900$ 8 1,040$ 2 150$ -$ 2,090$ Task 2 - Material Submittal Review 24 3,600$ 72 9,360$ -$ -$ 12,960$ Task 3 - Records Management 8 1,200$ 24 3,120$ 60 4,500$ -$ 8,820$ Task 4 - Construction Meetings 120 18,000$ 240 31,200$ 30 2,250$ -$ 51,450$ Task 5 - Construction Management 2) 1,080 162,000$ 650 84,500$ 210 15,750$ -$ 262,250$ Task 6 - Pay Requests 28 4,200$ 56 7,280$ -$ -$ 11,480$ Task 7 - Construction Surveying 8 1,200$ 8 1,040$ -$ 480 110,400$ 112,640$ Task 8 - Agency Coordination 40 6,000$ 40 5,200$ 8 600$ -$ 11,800$ Task 9 - Project Close-Out 24 3,600$ 40 5,200$ 8 600$ -$ 9,400$ Subtotal: 1,338 200,700$ 1,138 147,940$ 318 23,850$ 480 110,400$ 482,890$ Reimbursables (@2%)1.): 9,658$
Rates: Construction Management Total: 492,548$
Construction Manager 150$ /HR
Assistant Construction Manager 130$ /HR Notes:
Clerical 75$ /HR 1.) Reimbursables Include Cost for Prints, Copies, Mileage, Etc.
Survey Crew 230$ /HR 2.) Assumes Construction Period of 300 Working Days TKE Engineering, Inc.
Clerical Survey Crew
City of Fontna
Professional Construction Services for Sierra Avenue Widening Project Consulting Engineering Fee
Construction Manager
Assistant Construction
Manager
67 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1478 Agenda Date: 6/28/2022
Agenda #: I. Category: Consent Calendar
FROM:
City Manager's Office
SUBJECT:
Approval of a Contract Agreement with the County of San Bernardino to accept American Rescue Plan Act (ARPA) Funds in the amount of $3,125,000 for Improvements to Veterans Park, Jack Bulik Park, Cypress-Knopf Community Center, and Center Stage Theater RECOMMENDATION:
It is recommended that the Mayor and City Council ratify and approve the agreements and accept funding from the County of San Bernardino in the amount of $3,125,000.
COUNCIL GOALS:
· To create a team by working together to provide stability and consistent policy direction. · To create a team by communicating Goals and Objectives to all sectors of the community. · To create a team by supporting the decisions of the majority once made.
DISCUSSION:
As a result of the American Rescue Plan Act, the San Bernardino County Board of Supervisors allocated $4 million to each of the five supervisorial districts to allow the county to contract with certain entities to provide services to county residents. As a result, Supervisor Joe Baca Jr. desires to fund $530,000 in enhancements to Veterans Park and Supervisor Janice Rutherford desires to fund $2,595,000 in enhancements to Jack Bulik Park, Center Stage Theater, and Cypress-Knoph Community.
At Veterans Park, $530,000 of ARPA funds will be used to include the purchase and installation of:
· New playground equipment
· ADA inclusive structures, equipment, and rubber safety surfacing · Shade features
· New ballfield scoreboards
At Jack Bulik Park, $1,545,000 of ARPA funds will be used to include the purchase and installation of:
· 12 baseball dugout shade structures
· 7 baseball scoreboards
· 14 baseball spectator area shade structures
· New ADA inclusive playground structures and rubber playground safety surfacing City of Fontana Printed on 6/22/2022Page 1 of 2
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68 File #: 21-1478 Agenda Date: 6/28/2022
Agenda #: I. Category: Consent Calendar
At Cypress-Knopf Community Center, $750,000 of ARPA funds will be used to include the purchase and installation of:
· Interior painting and new doors
· New flooring
· Build new restroom for Tiny Tots Daycare
· Kitchen remodeling
· Re-finishing and new front reception counter
· New roof
At Center Stage Theater, $300,000 of ARPA funds will be used to include the purchase and installation of:
· Repairing moisture intrusion
· Exterior re-paint
· Additional exterior improvements
FISCAL IMPACT:
The fiscal impact associated with the approval of this item is $3,125,000 and was not included in the fiscal year 2021-22 or 2022-23 annual budgets. The required budget adjustments will be included in the next quarterly budget report.
MOTION:
Approve staff recommendation.
City of Fontana Printed on 6/22/2022Page 2 of 2
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69 Rev. 5/8/20 Page 1 of 41
THE INFORMATION IN THIS BOX IS NOT A PART OF THE CONTRACT AND IS FOR COUNTY USE ONLY
County Administrative Office
Department Contract Representative Matthew Erickson, County Chief Financial Officer
Telephone Number (909) 387-5423
Contractor [City of Fontana]
DUNS No. [004949541]
UEI No. [WLF8LH1TH3P8]
Contractor Representative [Matt Ballantyne – City Manager] Telephone Number [909-350-7653]
Contract Term [5/1/2022] through [12/31/2024]
Original Contract Amount Based on actual project costs
Amendment Amount
Total Contract Amount Based on actual project costs
Cost Center 1100921078
Internal Order (If Applicable) TBD
CONTRACT BETWEEN SAN BERNARDINO COUNTY AND [CITY OF FONTANA] RELATED TO
THE AMERICAN RESCUE PLAN ACT AND THE CORONAVIRUS LOCAL FISCAL RECOVERY FUND
WHEREAS, on March 4, 2020, the State of California declared a state of emergency as a result of the Coronavirus Disease 2019 (COVID-19) outbreak and on March 13, 2020, by Proclamation 9994, the President declared a national emergency concerning the C OVID-19 pand emic. The COVID -19 pandemic continues to cause significant risk to the public health and safety of the United States; and
WHEREAS, on March 11, 2021, the American Rescue Plan Act (ARPA) was signed into law by the President and the law is intended to combat the COVID-19 pandemic, including the public health and economic impacts; and
WHEREAS, pursuant to S ection 9901 of the ARPA, San Bernardino County (County) received a disbursement from the Unite d States Department of the Treasury of money ass ociated with the Coronavirus Local Fiscal Recovery Fund (CLFRF) for Local Governments under Sect ion 603(a) [see 42 U.S.C. Section 803]; and
WHEREAS, the County agreed to comply with the United States Department of the Treasury Coronavirus State Fiscal Rec overy Fund Award Terms and Conditions (Terms and Conditions), Contract Number
ARPA21-PRJC-015-FON
SAP Number
70 Rev. 5/8/20 Page 2 of 41
including Assurance of Compliance with Title VI of t he Civil Rights Act of 1964 ( Assurance of Compliance with Civil Rights Requirements), identified in the U nited States Department of the Treasury and San B ernardino County Agreement (OMB Approved No. 1505 -0271) (U nited States Department of the Treasury Agre ement), which is on file with the County and incorporated herein by this reference; and
WHEREAS, the Assistance Listing Number (ALN)/Federal Assistance Identification Number (FAIN) for the ARPA CLFRF is 21.027/SLT-0628 respectively; and
WHEREAS, the ARPA provides that payments from the CLFRF may be used for the following : i) to respond to the public health emergency with respect to COVID -19 or its negative economic impacts, including assistance to househol ds, small businesses, and nonprofits, or aid to i mpacted industries such as tourism, travel, and hospitality ; ii) to respond to workers performing essential work during the COVID–19 public health emergency by providing premium pay to eligible workers that are performing such essential work, or by providi ng grants to eligible employers that have eligible workers who perform essential work ; iii) for the provision of government services to the ex tent of the reduction in revenue due to the COVID –19 public healt h emergency relative to revenues collected in the most recent full fiscal year prior to the emergency; or iv) to make necessary investments in water, sewer, or broadband infrastructure; and
WHEREAS, funding provided under ARPA CLFRF must be obligated by D ecember 31, 2024 and expended by December 31, 2026; and
WHEREAS, the County desires to transfer and [City of Fontana ] (Contractor) desires to accept a transfer from ARPA CLFRF in t he amount of $ 300,000 for expenditures identified in Exhibit “A” related to [Center Stage Theater Exterior Rehabilitation].
NOW, THEREFORE, in consideration of the above, the County and Contractor agree as follows:
1. THE ARPA CLFRF
A. This Contract applies to the following ARPA CLFRF transfers:
The transfer by the County of an amount not to exceed $300,000 to Contractor on a reimbursement basis for expenditures identified in Exhibit “A”. Exhibit “A” is attached hereto and incorporated herein by this reference. County acknowl edges and agrees that Contractor will be administering the transfer of funds for th e expen ditures identified in Exhibit “A” by separate contracts. Contractor shall provide the County quarterly reports of actual cash expenditures to date u nder this Contract, and estimated cash expenditures through December 31 st of each year. County, through its Chief Executive Officer (CEO), in the CEO’s sole discretion, reserves the right to reduce the transfer amount identified in this Contract with fifteen (15) days advance written notice provided to Contractor. The reduction would be based: A) on Contractor’s estimated cash expenditures through December 31st of each year; B) a later determination by the Unite d States Depa rtment of the Treasury, or County, that the costs identified in this Contract are ineligible for ARPA CLFRF; or C) a determination by CEO the funds should be utilized in a different manner.
B. Contractor certifies that the use of fun ds that will be submitted for reimbursement from the CLFRF under Paragraph 1. A. and Exhibit “A ” of this Contract will be used only to cover those costs that: i) ; are related to public health or negative economic impact eligible use and ii) were incurred during the period that begins [5/1/2022], and will end [12/31/2024]. For purposes of this Contract and pursuant to federal guidance, expended or obligated costs are costs incurred by Contractor during the time period referenced above that are allowable for reimbursement. Any cost obligated by Contractor as of December 31, 2024, must be 71 Rev. 5/8/20 Page 3 of 41
expended by December 31, 2026, to meet the eligible costs timeframe as defined by the United States Department of the Treasury.
C. Contractor agrees that the funds provided pursuant to this Contract cannot be used: i) as a revenue replacement for lower than expected tax or other revenue collections; ii) for expenditures for which Contractor has rec eived any other emergency COVID -19 supplemental funding (whether federal, state, or private in nature) for that same expense ; or iii) as a deposit into any pension fund.
D. Contractor shall prepare and submit to County an invoice for reimbursement of eligibl e funding expenses identified in Paragraph 1.A., above. Invoices may be submitted to County as frequently as monthly. Invoices will be reviewed and approved for compliance with terms of this Contract. County shall reimburse to Contractor the amount of approved invoices submitted within sixty (60) days of receipt. If an invoice is r ejected, or revisions are requested, Contractor will work with County to submit the required revisions.
E. Both County and Contractor agree to comply with any and all ARPA CLFRF requirements, including but are not li mited to the terms included in this Contract, as well as any and all applicable Coun ty, Contractor, State, and Federal laws, regulations, policies and procedures pertaining to the funding described in this Contract. County and Contractor shall comply with Title 2 Code of Federal Regula tions ( C.F.R.) Part 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards), including, but not limited to, Title 2 C.F.R. Section 200.303 (internal control), Title 2 C.F.R. Sections 200.331 through 200.333 (subrecipient monitoring and management), and Title 2 C.F.R. Part 200 S ubpart F (audit requirements), as these sections currently exist or may be amended . The use of funds must also adhere to of ficial federal guidance issued or to be issued on what constitute s an eligible expenditure. Any funds expended by Contractor or its subcontractor(s) in any manner that does not adhere to official federal guidance shall be returned to the County. Contractor agrees to comply with all official guidance regarding the ARPA CLFRF. County and Contractor also agree that as additional federal guidance becomes available, a n amendment to this Contract may become necessary. If an amendment is required, Contractor agree s to promptly execute the Contract amendment.
F. Contractor shall retain documentation of all uses of the funds, including but not limited to invoices and/or sales receipts in a manner consistent with Title 2 C.F.R. Section 200.334 (retention requirements fo r reco rds). Such d ocumentation shal l be produced to County upon request and m ay be subject to audit. Unless otherwise provided by Federal or State law (whichever is the most rest rictive), Contractor shall maintain all documentation connected with its performance under this Contract for a minimum of five (5) years from the date of the last payment made by County or until audit resolution is achieved, whichever is later, and to make all such supporting information available for inspection and audit by representatives of the County, the State o r the United States Government during normal business hours at Contractor. Copies will be made and furnished by Contractor upon written request by County.
G. Contractor shall establish and maintain an accounting system conf orming t o Genera lly Accepted Accoun ting Principles (GAAP) to supp ort Contractor’s requests for reimbursement which segregate and accumulate costs of Contractor and produce monthly reports which clearly identify reimbursable costs, matching fund costs (if applicable), and other allowable exp enditures by Contractor. Contractor shall provide a monthly report of expenditures under this Contract no later than the 20th day of the following month.
72 Rev. 5/8/20 Page 4 of 41
H. Contractor shall cooperate in having an audit completed by County, at County’s option and expense. Any audit require d by A RPA CLFRF and i ts re gulation and United States Treasury guidance will be completed by Contractor at Contractor’s expense.
I. Contractor shall repay to County any r eimbursement for ARPA CLFRF funding that is determined by subsequent audit to be unallowable under the ARPA CLFRF within the time period required by the ARPA CLFRF, but no later than one hundred twenty (120) days of Contractor receiving notice of audit findings, which time shall include an opp ortunity for Contractor to respond to and/or resolve the findings . Should the findings not be otherwise resolved and Contractor fail to reimburse moneys due County within one hundred twenty (120) days of audit findings, or within such other period as may b e agreed between both parties or re quired by the ARPA CLFRF, County reserves the right to withhold future payments due Contractor from any source under County’s control.
J. Contractor shall accept all payments from County via electronic funds transfer (EFT) directly deposite d into the Contra ctor’s designated checking or other bank a ccount.
Contractor shall promptly comply with directio ns and accurately complete forms provided by County required to process EFT payments.
K. County is exempt from Federal excise t axes and no paymen t shall be made f or any personal property taxes levied on C ontractor or on any taxes levied on employee wages.
The County shall only pay for any State or local sales or use taxes on the services rendered or equipment and/or parts supplied to the County pursuant to the Contract.
L. Funds made available un der this Con tract shall not supplant any federal, state or any governmental funds intended for services of the same nature as this Contract. Contractor shall not claim reimbursement or paymen t from County for, or apply sums re ceived from County with respect to that portion of its obligations that have been paid by another source of revenue. Contractor agrees that it will not use funds received pursuant to this Contract, either directly or indi rectly, as a cont ribution or compen sation for purposes of obtaini ng funds from another revenue source without prior written approval of the County.
M. County shall only reimburse costs incurred through the dates identified in Exhibit “A”. Contractor requirem ents in Sections 1, 2 and 5 of this Contract shall survive the termination of this Contract. The costs to be reimbursed under this Contract do not include Research and Development as defined in Title 2 Code of Federal Regulations ( C.F.R.) Section 200.1, nor do they include indirect costs.
2. AMERICAN RESCUE PLAN ACT REQUIREMENTS
A. This Contract may be funded in whole or in part with funds provided by the America n Rescue Plan Act - Coronavirus Local Fiscal Recovery Fund (ARPA), Federal Award Identification Number (FAIN): SLT-0628 and Assistance Listing Number (formerly known as a CFDA nu mber): 21.027 , and therefore Contractor agrees to comply with any and all ARPA requirements in addition to any and all applicable County, State, and Federal laws, regulations, policies, and procedures pertai ning to the funding of this Contract. The use of the funds must also adhere to official federal guidance issued or to be issued on what constitutes a necessary expenditure. Any funds expended by Contractor or its subcontractor(s) in any manner that does n ot adhere to t he ARPA requirements sha ll be returned or repaid to the County. Any funds paid to Contractor: i) in excess of the amount to which Contractor is finally determined to be authorized to retain; ii) that are determined to have been misused; or i ii) that are d etermined to be subject t o a repaymen t obligation 73 Rev. 5/8/20 Page 5 of 41
pursuant to section 603(e) of the Act and have not been repaid, shall constitute a debt to the federal government. Contractor agrees to comply with the requirements o f section 603 of the Act, regulations adopted by Treasury pursuan t to the Act , and guidance issued by Treasury regarding the foregoing. Contractor shall provide for such compliance in any agreements with subcontractor(s).
B. Contractor agrees to comply with all applicable federal laws and regulations, including but not limited to all laws and regulations identified in Section 2 of the Contract.
C. In accordance with Title 2 C.F.R. Section 200.322, the non-Federal Contractor should, to the greatest extent pract icable under a Federal a ward, provi de a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subawards includi ng all contracts and purchase orders for work or products under this award. For purpose s of this section: “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from th e initial melting stage through the appli cation of coatings, occurred in the United States. “Manufactured products” means items and construction materials composed in whole or in part of non -ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
D. In accordance wit h Title 2 C.F.R. Section 200.471, costs incurred for telecommunications and video surveillance services or equipment such as pho nes, internet, video surveillance, cloud servers are allowable except for the following circumstances: Obligating or expending covered telecommunications and video surveillance services or equipment or services (as described in 2 C.F.R. Section 200.216) to: 1) Procure or obtain, extend or renew a contract to procure or obtain; 2) Enter into a contract (or extend or renew a contract ) to procure; or 3) Obtain the equipment, services, or systems, as described in Title 2 C.F.R. Section 200.216 that uses covered telecommunications equipment or services as a substa ntial or essential component of any system, or as critical technology as pa rt of any system. As described in Public Law 115 -232, section 889, covered telecommunications equipment is telecommunications eq uipment pro duced by Huawei Technologies C ompany or ZT E Corporation (or any subsidiary or affiliate of such entities) and: (i) For the purpose of public safety, security of government facilities, physical security surveillance of cri tical infrastructure, an d ot her nat ional security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corpor ation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entiti es); (ii) Telecommunications or video sur veillance services provided by such e ntities or using such equipment ; and (iii) Telecommunications or video surveillance equipment or services produced or provided by a n entity that the Secretary of Defense, in cons ultation with the Director of the Nationa l Intelligence or the Director of the Federal Bureau of Investigation, reasonably belie ves to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. In implementing the pro hibition under Public Law 115 -232, section 889, subsection (f), paragraph (1), heads of executive agencies administer ing loan, grant, or subsidy programs shall prioritize available funding and technical support to assist affected businesses, institutions a nd organizations as is reasona bly necessar y for those affected entities to transition from covered communications equ ipment and services, to procure replacement equipment and services, and to ensure that communications se rvice to users and customers is sustained.
74 Rev. 5/8/20 Page 6 of 41
E. A non -Federal Contractor that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conse rvation and Recovery Act . The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at Title 40 C.F.R. Part 247 that contain the highest percentage of recovered materials practicable, consistent with mainta ining a satisfactory level of competition , where the purchase price of the item exceeds $10,000 or the value of the quantity acq uired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes en ergy and re source recovery; and establish ing an affir mative procurement program for procurement of recovered materials identifie d in the EPA guidelines.
F. Byrd Anti-Lobbying Amendment (31 U.S.C. Section 1352) - Contractors that apply or bid for an award exc eeding $100,000 must file the required ce rtification. Each tier certifies to the tier above that it will not and has not used Fe deral appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obt aining any Federal contract, grant or any other award covered by Title 31 U.S.C. Section 1352. Each tier must also disclose any lobbying with non-Federal funds that take s place in c onnection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.
G. Clean Air Act (42 U.S.C. Sections 7401-7671q.) and the F ederal Water Pollution C ontrol Act (33 U.S.C. Sections 1251-1389), as amended - Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non -Federal award to agree to comply with all applicable standards, orders o r regulations issued pur suant to the Clean Air Act (42 U.S.C. Sections 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. Sections1251-1389).
H. Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets t he definition of “funding agreement” under Title 37 C.F.R. Section 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a sma ll business firm or nonprofit organization regarding the substitution of parties, assignment or performa nce of experimental, developmental, or research work under that “funding agreement,” the Title 33 U.S.C. Sections 1251-1387 recipient or subrecipient mu st comply with the requirements of Title 37 C.F.R. Part 401, “Rights to Inventions Made by Nonprofit Org anizations and Small Business Firms Under Government Grants, Cont racts and Co operative Agreements,” and any implementing regulations issued by the awarding agency.
I. Contract Work Hours and Safety Standards Act (40 U.S.C. Sections 3701-3708). Where applicable, all contracts awarded by the non-Federal Contractor in excess of $100,000 that involve the employment of mechanics or laborers must include a provi sion for compliance with Title 40 U.S.C. Sections 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. Part 5). Und er Title 40 U.S.C. Section 3702 of the Act , each contractor must be required to compute the wages of every mechanic a nd laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided th at the worker is compensated at a rate of not less th an one and a half times the basic rate of pay for all hours worked in exces s of 40 hours in the work week.
The requirements of Title 40 U.S.C. Section 3704 are applicable to const ruction work and provide that no la borer or mechanic must be requ ired to work in surroundings or under working conditions which are unsanitary, hazardou s or dangerous to health or safety .
These requirements do not apply to the purchases of supplies or mate rials or articles 75 Rev. 5/8/20 Page 7 of 41
ordinarily available on the open market, or con tracts for t ransportation or transmission of intelligence.
J. Davis-Bacon Act, as amende d (40 U.S.C. Sections 3141-3148). When required by Federal program legislation, all prime construction c ontracts in excess of $2 ,000 awarded by non- Federal entities must include a p rovision for compliance with the Davi s-Bacon Act (40 U.S.C. Sections 3141-3148) as supplemented by Department of Labor regulations (29 C.F.R. Part 5, “Labor Standards Provisions A pplicable to Contracts C overing Fed erally Financed and Assisted C onstruction”). In accordance with the statute, contractors must be required to pay wage s to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determinati on made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non -Federal contractor must pla ce a copy of the current prevailing wage determination issued by the Department of Labor in each solicit ation. The decision to a ward a contract or subcontract must be co nditioned up on the acceptance of the wage determination. The non -Federal Contractor must report all suspected or reported violations to the Federal awarding agency.
The contracts must also in clude a provision for co mpliance wi th the Copeland “Anti - Kickback” Act ( 18 U.S.C. Section 874 and 40 U.S.C. Section 3145), as supplemented by Department of Labor regulations (29 C.F.R. Part 3, “Contractors and Subcontractors on Public Building or Public Wo rk Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work , to give up any part of the compensation to which he or she is otherwise ent itled. The non -Federal contractor must report all suspected or reported violations to the Federal awarding agency.
i. The Contractor and all Subcontractors and Sub -subcontractors are required to pay their employees and workers a wage not less than the minimum wage for the work classification as specified in both the Federal and Cali fornia wage decisions. See Exhibit “B” for additional information regarding California Prevailing Wage Rate Requirements and the applicable general prevailing wage deter minations which are on file with the County and are available to any interested party on request . The higher of the two applicable wage determinations, either California prevailing wage or Da vis-Bacon Federal prev ailing wage, will be enforced fo r all applicable work/services under this Contract.
K. Contracts for more than the simplified ac quisition threshold, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Co uncil and the Defense Acquisition Regulations Council (Councils) as authorize d by Title 41 U.S.C. Section 1908, must address administrative, contrac tual, or leg al remedies in instances where Contractors violate or breach contract terms, and provide for suc h sanctions and pena lties as appropriate.
L. All contracts in excess of $10,000 must address termination for cause and for convenience by the non -Federal Contractor including the manner by which it will be effected and the basis for settlement.
M. Equal Employment Opportunity. Ex cept as otherwise provided under Title 41 C.F.R. Part 60, all contracts that meet the definition of “federally assisted const ruction contract” in Title 41 C.F.R. Section 60-1.3 must include the equal opportunity clause provided under Title 41 C.F.R. Section 60-1.4(b), in accordance with Executive Ord er 11246, “E qual Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal 76 Rev. 5/8/20 Page 8 of 41
Employment Opportunit y,” and implem enting regulations at 41 C.F.R. part 60, “O ffice of Federal Contract Compliance Programs, Equal Employment Opportu nity, Department of Labor.” The identified clause is below and Contractor shall comply with the clause and a ll legal requiremen ts a nd include the equal opportunity clause in each of its nonexempt subcontracts.
i. The applicant hereby agrees that it will inc orporate or cause to be incorporated into any contract for construction work, or modification thereof, as def ined in the regulations of the Secretary of Labor at Title 41 C.F.R. Chapter 60, which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan, insurance, or guarantee, or under taken pursuant to any Federal pr ogram involving such grant, contract, loan, insurance, or guarantee, the following equal opportunity clause:
During the performance of this contract, the contractor agrees as follows:
(1) T he contractor will not discriminate against any employee or appli cant for employment because of race, color, religion, sex, sexual orientation, gen der identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that e mployees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin.
Such action shall include, but not be limited to the following: Employment, upgrading, de motion, or transfer ; re cruitment or recruitment advertising; layo ff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employe es and applicants f or e mployment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, i n all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicant s wi ll receive consideration for employment wi thout regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applic ant has inquired about, discussed, or disclosed the compensation of the employee o r applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applic ants as a part of such employee's essential job functions discloses th e compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal co mplaint or c harge, in furtherance of an investigation, proceeding, hearing, or act ion, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
(4) The contractor will send to each lab or union or representative of workers with which he has a collective bargaining ag reement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this secti on, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
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(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pur suant thereto, and will permit a ccess to his books, records, and accounts by the administering agency and the Secr etary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulation s, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ine ligible for fu rther Government contracts or fe derally assi sted construction contracts in accordance with procedures authorized i n Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked a s provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisio ns will be binding upon each subc ontractor or vendor.
The contrac tor will tak e such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, howe ver, that in t he event a contractor becomes in volved in, o r is threatened with, litigation with a subcontractor or vendor as a r esult of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.
The applic ant further agrees that it will be bound by the above equal opportunit y clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the appl icant so participating is a Stat e or local g overnment, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperat e actively with the administering agency and the Secretary of Labor in obtaining t he compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they m ay require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility fo r, Government 78 Rev. 5/8/20 Page 10 of 41
contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be impo sed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these under takings, the admini stering agency may take any or all of the following action s: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the pr ogram with respect to w hich the f ailure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
N. Data Collection Requirements – Contractor agrees to collect pre-post data per County, and United Stat es Treasury guidelines and timeline, for project tracking and monitori ng and various rep orting purposes. Data inclu ding, but not limited to: Required Project Demographic Distribution Data; Required Performance Indicators and Programmatic Data ; Required Exp enditure Report Data; and Required Program Evaluation Data. Contracto r agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data tha t needs to be avai lable to County, State or Federal governments u pon request.
O. Data Submission Requirements - Contractor agrees to furnish data to the County up on request, per County, and U nited States Treasury guidelines and timeline, for project tracking and monitoring an d various reporting purposes. Data including, b ut not limit ed to:
Required Project Demographic Distribution Data; Required Perf ormance I ndicators and Programmatic Data ; Required Expenditure Report Data; Required Program Evaluation Data. Contractor agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data that needs to be available at request.
P. Project Progress Reporting - Contractor agrees to provide project timeline and progress updates to th e County up on request, per Coun ty, and United States Treasury guidelines and timeline. Contractor agrees to routine and impromptu program and pro ject evaluation by the County.
Q. Uniform Administrative Requirements, Cost Principles, and Audit Requirements fo r Federal Awards, Title 2 C.F.R. Part 200, other than such provisions as Treasury may determine are inapplicable and subject to such exceptions a s may be otherwise provided by Treasury.
Subpart F – Audit Requirements of the Uniform Guidance, implementing t he Single Audit Act, shall apply.
R. Universal Identifier and System for Award Management (SAM), Title 2 C.F.R. Part 25.
S. Reporting Subaward and Executive Compensation Information, Title 2 C.F.R. Part 170.
T. OMB Guidelines to Agencies on Governmentwide Debarm ent and Suspensi on (nonprocurement), title 2 C.F.R. Part 180, inc luding the r equirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 C.F.R. Part 180, subpart B) that the award is subject t o Title 2 C.F.R. Part 180 and Treasury’s implementing regulation at Title 31 C.F.R. Part 19. Debarment and Suspension (Executive Orders 12549 and 12689) - A contract award (see 2 CFR Section 180.220) must not be made to parties listed on the government wide exclusions in the System for Award 79 Rev. 5/8/20 Page 11 of 41
Management (SAM), in accordance with th e OMB guidelines at Title 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions co ntains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
U. Recipient Integrity and Performance Matters, pursuant to which the award terms set forth in Title 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference.
V. Government Requirements for Drug-Free Workplace, Title 31 C.F.R. Part 20.
W. New Restrictions on Lobbying, Title 31 C.F.R. Part 21.
X. Uniform Relocation Assistance and Real Property Acquis itions Act of 1970 (42 U.S.C.
Sections 4601-4655) and implementing regulations.
Y. Applicable Federal environmental laws and regulations.
Z. Statutes and regulations prohibiting discrimination include, without limitation, the following:
i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. Sections 2000d et seq.) and Treasury’s i mplementing re gulations at Title 31 C.F.R. Part 22, w hich prohibi ts discrimination on the basis of race, color, or national orig in under programs or activities receiving federal financial assistance.
ii. The Fair Housing Act, Title VIII of the Civ il Rights Act of 1968 (42 U.S.C. Sections 3601 et seq.), which pr ohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability. iii. Section 504 of the Rehabilitation Act of 1973, as amended (29 U. S.C. Section 794), which prohibits discrimination on the basis of disability under any program or activity receiving federal financial assistance.
iv. The Age Discrimination Act of 1975, as amended (42 U.S.C. Sections 6101 et seq.), which prohibits discriminat ion on the basis of disab ility unde r programs, activities, and se rvices provi ded or made available by state and local governments or instrumentalities or agencies thereto.
v. Title II of the Americans with Disabilities Act o f 1990 , as amended (42 U.S.C.
Sections 12101 et seq.), whi ch prohibit s discrimination on the basis of disabilit y under programs, activities, and services provided or made a vailable by state and local governments or instrumentalities or agencies thereto.
AA. Contractor understands that making false statements or c laims in conn ection with the ARPA funded ac tivities is a violation of federal law and may result in criminal, civi l, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from participating in fede ral awards or contracts, an d/or any other remedy available by law.
BB. Any publications produced with ARPA funds must display the f ollowing language: “This project [is being] [was] supported, in whole or in part, by federal award number SLT-0628 awarded to San Bernardino County by the United States Department of Treasury.”
CC. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 19 97), Contractor is being encouraged to adopt and enforce on -the-job seat belt policies and programs for their employees when operating company-owned, rented, or personally owned vehicles. 80 Rev. 5/8/20 Page 12 of 41
DD. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Cont ractor is being encouraged to adopt and enforce policies that ban text messaging while driving and establishing workplace safety policies to decrease accidents caused by distracted drivers.
EE. As a recipient of federal financial assistance, the Civil Right s Restoration Act of 1987 applies, and Contractor and all subrecipients assures that it:
i. Ensures its current and future c ompliance w ith Title VI of the Civi l Rights Act of 1964, as amend ed, which pr ohibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs and activities receiving federal funds, of any person in the United States on the ground of race, colo r, or national origin (42 U.S. C. Sections 2000d et seq.), as implemented by the Department of the Tr easury Title VI regulations at Title 31 CFR Part 22 and other pertinent executive orders such as Executive Order 13166, d irectives, circulars, policies, memoranda and/or guidance documents.
ii. Acknowledges that Executive Order 13166, “Improving Access to Serv ices for Persons with Limited English Proficiency,” seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, have Limited En glish profic iency (LEP). Contractor understands that denying a person access to its programs, services, and activities, because of LEP is a form of national origin discrimination prohibited u nder Title VI of the Civil Rights Act of 1964 and the Department of the Treas ury’s implementing regulations. Contractor shall initiat e reasonable steps, or comply with the Department of the Treasury’s directives, to ensure LEP persons have meaningful acces s to its programs, services, and activities. Contractor understan ds and agree s that meaningful access may entail provide language as sistance services, including oral interpretation and written translation where necessary, to ensure effective communication. iii. Agrees to consi der the need for l anguage services for LEP perso ns during development of applicable budgets and when conducting pr ograms, services, and activities.
iv. Agrees to maintain a complaint log of any complaints of discrimination on the grounds of race, color, or national origin, and limited English proficiency c overed by Title VI of the Civil Rights Act and implementing regu lations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome.
FF. The Contractor m ust include the following lang uage in ever y contract or agreement subject to Title VI and its regulations:
“The sub -grantee, contractor, successor, transferee, and assignee shall comply with Title VI of the Civil Rights Act of 1964, which prohibits recipie nts of federal financial assistance from e xcluding a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, colo r, or nation origin (42 U.S.C.
Section 2000d et seq.) , as implemented by the Department of the Treasury’s Title VI regulations, 31 C FR Part 22, which are herein incorporated by refe rence and made a part of this contract (or agreement). Title VI also includes protection to persons with “Limited English Profi ciency” in any program or activity rec eiving federal f inancial assistance, 42 U.S.C. Sections 2000d et seq., as implemented by the Department of the Treasury’s Title VI regulations, 31 CFR Part 22, and herein incorporated by reference and made a part of this contract or agreement.”
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GG. Contractor shall cooperate in any enforc ement or com pliance review activities by the County and/or t he Department of the Treasury. Contractor shall comply with information requests, on-site compliance reviews, and reporting requirements.
HH. Contractor shall maintain r ecords and financial documents sufficient to evidence compliance with section 603(c), r egulations adopted by Treasury implementing those sections, and guidance issued by Treasury regarding the foregoing.
II. County has the right of access to records (electronic or otherwise) of Contractor in order to conduct audits or other investigations.
JJ. Contractor shall maintain records for a period of five (5) years after the completion of the contract or a period of five (5) years after the last reporting date the County is obligated with the Department of the United States Treasury, whichever is later.
KK. Contractor must disclose in writing any potential conflict of interest in accordance with Title 2 C.F.R. Section 200.112.
LL. In accordance with Title 41 U.S.C. Section 4712, subrecipient or Contractor may not discharge, demote, or otherwise discrimin ate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that th e em ployee reasonably believes is evidenc e of gross mismanagement of a federal contract or grant, a gross waste of federal funds , an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, o r a violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant.
The list of persons and entities referenced in the paragraph above includes the following: (i) A member of Congr ess or a representative of a committee of Congress; (ii) An Inspector General; (iii) The Government Accountability Office; (iv) A Treasury employee responsible for contract or grant oversight or management; (v) An authorized official of the Department of J ustice or othe r law enforcement agency; ( vi) A court or grand jury; or (vii) A management officia l or other employee of recipient, subrecipient, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct.
Subrecipient or Contractor shall inform its emp loyees in writing of the right s and remedi es provided under this section, in the predominant native language of the workforce.
MM. County and Contractor acknowledge that if additional federal guidance is issued, an amendment to this Contract may be necessary. In the event any of the terms in this Section 2 conflict with any other terms in the Contract, the terms in this Section 2 shall control.
3. GENERAL CONTRACT REQUIREMENTS
A. Recitals
The recitals set forth above are true and correct and incorporated herein by this reference.
B. Contract Amendments
Contractor agrees any alterations, variations, modifications, or waivers of the provisions of the Contract, shall be valid only when reduced to writing, executed and attached to t he original Contract and approved by the person(s) authorized to do so on behalf of Contractor and County.
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C. Contract Assignability
Without the prior written consent of the County, the Contract is not assignable by Contractor either in whole or in part.
D. Contract Exclusivity
This is not an exclusive Contract. The County reserves the right to enter into a contract with other c ontractors for the same or similar services. The County does not guarantee or represent that the Contractor will be permitted to perform any minimum amount of work, or receive compensation other than on a per order basis, under the terms of this Contract.
E. Attorney’s Fees and Costs
If any legal action is instituted to enforce any party’s rights hereunder, each party shall bear its own costs and attorney fees, regardless of who is the prevailing party. This paragraph shall not apply to those costs and attor ney fees directly arising from a third -party legal action against a party hereto and payable under Indemnification and Insurance Requirements.
F. Background Checks for Contractor Personnel
Contractor sha ll ensure th at its personnel (a) are authorized to work in the jurisdiction in which they are assigned to perform services; (d) do not use legal or illegal substances in any manner w hich will impact their ability to provide services; and (c) are not otherw ise disqualified from performing the services under ap plicable law. If requested by the County and not in violation of applicable law, Contractor shall conduct a background check, a t Contractor’s sole expense, on all its perso nnel providing services. If re quested by t he County, Contractor shall provide the r esults of the background check of each individual to the County. Such background check shall be in the form generally used by C ontractor in its initial hiring of employees o r contracting for contractors or, as appli cable, during the employment-screening process but must, at a minimum, have been performed within the preceding 12 -month period. Contractor personnel who do not meet t he C ounty’s hiring criteria, in County’s sole d iscretion, shall not be assign ed to work o n County property or services, and Coun ty shall have the right, at its sole option, to refuse access to any Contract personnel to any County facility.
G. Change of Address
Contractor shall notify the County in writi ng, of any change in mailing a ddress within ten (10) business days of the change.
H. Choice of Law
This Contract shall be governed by and construed according to the laws of the State of California.
I. Confidentiality
Contractor shall protect from unauthorized use or disclosure names and o ther identifying information concerning persons rec eiving services pursuant to this Contract, except for statistical information not identifying any participant. Contractor shall not use or disclose any identifying information for any other purpose other t han carrying out the Contractor's obligations under this Contract, except as may be otherwise required by law. This provision will remain in force even after the termination of the Contract.
J. Primary Point of Contact
Contractor will designate an individual to serve as the primary point of contact for the Contract. Contractor or designee must respond to County inquiries within two (2) business 83 Rev. 5/8/20 Page 15 of 41
days. Contractor shall not change th e primary contact without written acknowledgement to the County. Contractor will also design ate a back -up point of contact in t he event the primary contact is not available.
K. Rule of Construction
The parties agree that this Contract and all agreements or documents incorporated herein shall not be subject to the rule of construction that a written agreement is construed against the party preparing or drafting that agreement.
L. County Representative
The Chief Executive Officer or his/her designee shall rep resent the Cou nty in all matters pertaining to the s ervices to be rendered under t his Contract , including termination and assignment of this Contract, and shall be the final authority in all matt ers pertaining to the services/scope of Work by Contractor. If t his contra ct w as initially approved by the San Bernardino County Board of Super visors, then the Board of Supervisors must ap prove all amendments to this Contract.
M. Damage to County Property
Contractor shall repair, or cause to be repaired, at its own cost, all dama ges to County vehicles, facilities, buildings or grounds caused by the willful or negligent acts of Contractor or its employees or agents. Such repairs shall be made immediately after Contractor becomes aware of such damage, but in no event later than thi rty ( 30) days after the occurrence.
If the Contractor fails to make t imely repairs, the County may make any neces sary repairs.
The Contractor, as determined by the County, shall repay all costs incurred by the County for such repairs, by cas h payment upon demand, or County may deduct such costs from any amounts due to the C ontractor from the County, as determined at the County’s sole discretion.
N. Debarment and Suspension
Contractor certifies that neither it nor its principals or subcontracts is presently debarred, suspended, proposed for debarme nt, declared ineligible, or vo luntarily ex cluded from participation in thi s transaction by any federal department or agency. (See the following United States General Services Administration’s System fo r Award Manage ment website https://www.sam.gov). Contractor further certifies that if it or any of its subcontractors are business entities that must be registered with the California Secretary of State, they are registered and in good standing with the Secretary of State. An subcontracts funded by this Contract shall be with vendors that meet this certification and registration requirement.
O. Drug and Alcohol Free Workplace
In recognition of individual ri ghts to work i n a safe, healthful and productive work place, as a mater ial condition of this Contract , the Contra ctor agrees that the Contract or and the Contractor’s employees, while performing service for the County, on County property, or while using County equipment:
i. Shall not be in any way impaired because of being under the influence of alcohol or an illegal or controlled substance.
ii. Shall not possess an open container of alcohol or consume alcohol or possess or be under the influence of an illegal or controlled substance.
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iii. Shall not sel l, offer, or provide alcohol or an illegal or controlled substanc e to another person, except where Contrac tor or Contractor’s employee who, as part of the performance of normal job duties and responsibilities , prescribes or administers medically prescribed drugs.
The Contractor shall infor m all employees that are perfo rming service for the County on County property, or using County equipment, of the County’s objective of a safe, healthful and productive work place and the prohibition of drug or alc ohol use or impairment from same while performing such service for the County.
The County may terminate for defau lt or breach of this Contract and any other Contract the Contractor has with the County, if the Contractor or Contractor’s emplo yees are determined by the County not to be in compliance with above.
P. Duration of Terms
This Contract, and all of its terms an d conditions, shall be binding upon and shall inure to the benefit of the heirs, executors, administrators, successors, and assi gns of the respective parties, provided no such assignmen t is in violation of the provi sions of thi s Contract.
Q. Discrimination
During the term of the Contract, Contractor shall not discriminate against any employee or applicant for employment because of r ace, religious creed, color, national origin, ancestry, physical disability, mental dis ability, medical condition, genetic infor mation, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, or military and veteran status . Contractor shall com ply with Executive Orders 11246, 11 375, 11625, 12138, 12432, 1225 0, 13672, Ti tle VI and Title VII of the Civil Rights Act of 1964, the California Fair Employment and Housing Act and other applicable Federal, State and County laws and regulations a nd polici es relating to equal employment and contracting opportunities, including laws and regulations hereafter enacted.
R. Improper Influence
Contractor shall make all reasonable efforts to ensure that no County officer or employee, whose position in the County enables him/her to influence any award of the Contract or any competing offer, shall have any direct or ind irect financial interest resulting from the award of the Contract or shall have any relationship to the Contractor or officer or employee of the Contractor.
S. Improper Consideration
Contractor shall not offer (either directly or through an intermediary) an y improper consideration such as, but not limited to cash, discounts, service, the provision of travel or entertainment, or any items of value to any officer, employee or agent of the Co unty in an attempt to secure favorable treatment regarding this Contract.
The County, by written notice, may immediately terminate this Contract if it determines that any improper consideration as described in t he preced ing paragraph was offered to any officer, employee or agent of th e County wit h respect to the proposal an d award process.
This prohibition shall apply to any amendment, extension or evaluation process once a contract has been awarded.
Contractor shall immediately report any attempt by a Co unty officer, employee or agen t to solicit (either directly or throug h an intermediary) improper consideration from Contractor. 85 Rev. 5/8/20 Page 17 of 41
The report shall be made to the supervisor or manager charged with s upervision of the employee or the County Administrative Offi ce. In the event of a terminat ion under th is provision, the County is entitled to pursue any available legal remedies.
T. Informal Dispute Resolution
In the event the County determines that servic e is unsatisfactory, or in the event of any other dispute, cl aim, question or disagreement arising from or relating to this Cont ract or breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recogni zing their m utual interests, attempt to reach a just and equitable solution satisfactory to both parties.
U. Legality and Severability
The parties’ actions under the Contract shal l comply with all applicable laws, rules, regulations, court orders and govern mental agency orders. The provisions of this Contract are specifically made severable. If a provision of the Contract is terminated or held to be invalid, illegal or u nenforceable, the validi ty, legality and enforceability of the remaining provisions shall remain in full effect.
V. Licenses, Permits and/or Certifications
Contractor shall ensure that it has all necessary licenses, permits and/or certifications required by the laws of Federal, St ate, County, and municipal laws, or dinances, rules and regulations. The Contr actor shall maintain t hese licenses, permits and/or certifications in effect for the duration of this Contract. Contractor will notify County immedia tely of loss o r suspension of any such licenses, permits and/or c ertifications. Failure to main tain a required license, permit a nd/or certification may result in immediate termination of this Contract.
W. Material Misstatement/Misrepresentation
If during th e co urse of th e administration of this Contract, the County deter mines that Contractor has made a material misstatement or misre presentation or that materially inaccurate information has been provided to the County, this Contract may be immediately terminated. If this Contract is termi nated according to this provision, the County is entitled to pursue any available legal remedies.
X. Mutual Covenants
The parties to this Contract mutually covenant to perform all of their obligations hereunder, to exercise al l di scretion a nd rights granted hereunder, and to give all consent s in a reasonable manner consistent with the standards of “good faith” and “fair dealing”.
Y. Nondisclosure
Contractor shall hold as confidential and use reasonable care to prevent unauthorized access by, storage, disclosure, publication, dissemination to and/or use by third parties of, confidential information that is either: (1) provided by the County to Contractor or an agent of Contractor or otherwise made available to Contractor or Contractor’s agent in connection with this Contract; or, (2) acquired, ob tained, or learned by Contract or or an age nt of Contractor in the performance of this Contract. For purposes of this provision, confidential information means any data, files, software, information or materials in oral, electronic, tangible or intangible form and however stored, compiled or memorialize and includes, but is not limited to, technology infrastructure, architecture, financial data, trade secrets, equipment specifications, user lists, passwords, research data, and technology data.
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Z. Notice of Delays
Except as otherwise provid ed herein, w hen either party ha s knowledge that any actual or potential situation is delaying or threatens to delay the timely performance of this contract, that p arty shall , within twenty -four (24) hours, give notice thereof, including all relevant information with respect thereto, to the other party.
AA. Ownership of Documents
All documents, data, products, graphics, computer programs and reports prepared by Contractor pursua nt to the Contract shall be considered property of th e County upon payment for serv ices (and pr oducts, if applicab le). All such items shall be delivered to County at the completion of work under the Contract. Unless otherwise directed by County, Contractor may retain copies of such items.
BB. Air, Water Pollution Control, Safety and Health
Contractor shall comply with all air pollution control, water pollution, safety and health ordinances and statutes, which apply to the work performed pursuant to this Contract.
CC. Records
Contractor shall maintain all records a nd books pertaining to the del ivery of services under this Contract and demonstrate accountability for contract performance. All records shall be complete and current and comply with all Contract requi rements. Failure to maintain acceptable records shall b e considered grounds for withh olding of pa yments for invoi ces submitted and/or termination of the Contract.
All records relating to the Contractor’s personnel, consult ants, subcontracto rs, services/scope of Work and expe nses pertaining to this Contract sh all be kept in a generally acc eptable acco unting format. Records should include primary source documents. Fiscal records shall be kept in accordance with Generally Accepted Accounting Principles and must account for all funds, tangible assets, revenue and expenditures. Fiscal records m ust comply w ith the appro priate Office of Management and Budget (OMB) Circulars, which state the administrative requirements, cost principles and other s tandards for accountancy.
DD. Relationship of the Parties
Nothing contained in this Contract shall be cons trued as cre ating a joint venture, partnership, or employment arrangement between the Parties hereto, nor shall either Party have the right, power or aut hority to create an obligation or duty , expressed or implied, on behalf of the other Party hereto.
EE. Release of Information
No n ews releases, advertisements, public announcements or photographs arising out of the Contract or Contractor’s relationship with County may be made or used without pri or written approval of the County.
FF. Representation of the County
In the per formance of this Contract, Contractor, its agents and employees, shall act in an independent capacity and not as officers, employees, or age nts of the San Bernardino County.
GG. Strict Performance
Failure by a party to insist upon the strict perf ormance of a ny of the provisions of this Contract by the other party, or the failure by a party to exercise its rights upon the default of 87 Rev. 5/8/20 Page 19 of 41
the other party, shall not constitute a waiver of such party’s right to insist and dema nd strict compliance by the other party with the terms of this Contract thereafter.
HH. Subcontracting
Contractor shall obtain County’s written consent, which County may withhold in its sole discretion, before entering into Contracts with or otherwise engagi ng any subcontractors who may supply any p art of the services to County. At County’s request, Contractor shall provide information regarding the subcontractor’s qualifications and a l isting of a subcontractor’s key person nel including, if requested by the County, resumes of proposed subcontractor personnel. Contractor shall remain directly responsible to County for its subcontractors and shall indemnify County for the actions or o missions of it s subcontractors under the te rms and conditions specified in S ection 5. All approved subcontractors shall be subject to the provisions of this Contract applicable to Contractor Personnel.
For any subcontractor, Contractor shall:
i. Be responsible for subcontractor compliance with the Co ntract and the subcontract terms and conditions; and
ii. Ensure that the subcontractor follows County’s reporting formats and procedures as specified by County.
iii. Include in the subcontractor’s subcontract substantially similar terms as are provided in this Contract.
Upon expiration or termina tion of this Contract for any reason, County will have the right to enter into direct Contracts with any of the Subcontractors. Contractor agrees that its arrangements with Sub contractors wi ll not prohibit or restrict suc h Subcontractors from entering into direct Contracts with County.
II. Subpoena
In the event that a subpoena or other legal process commenced by a third p arty in any way concerning the goods or services provided under this Contract is served upon Contractor or County, such party agrees to not ify the other party in the mos t expeditious fashion possible following receipt of such subpoena or other legal process. Contractor and County further agree to cooperate with the other party in any lawful effort by such other party to contest the legal validity of such subpoena or other legal process commenced by a third party as may be reasonably required and at the expense of the party to whom the legal process is directed, except as otherwise provided herein in connection with defense obligations by Contractor for County.
JJ. Termination for Convenience
The County reserves the right to terminate the Contract, for any reason, with a thirty (30) day written notice of termination. The County’s Chi ef Executive Officer is autho rized to terminate this Contract. Such termination may include al l or part of the services described herein. Upon such termination, payment will be made to the Contractor for services rendered and expenses reasonably incurred prior to the effective date of termination. Upon receipt of termi nation notice Contractor shall promptly di scontinue services unless the notice directs otherwise. Contractor shall deliver promptly to County and transfer title (if necessary) all completed work, and work in progress, inc luding drafts, documents, plans, forms, data, products, graphics, computer programs and reports.
KK. Time of the Essence
Time is of the essence in performance of this Contract and of each of its provisions. 88 Rev. 5/8/20 Page 20 of 41
LL. Venue
The parties acknowledge and agree that th is Contract was entered into and in tended to be performed in San Bernardino County, California. The parties agree that the venue of any action or claim brought by any party to this Contract will be the Superior Court of California, San Bernardino County, San Bernardino District. Each party hereby waives any law or rule of the court, which would allow them to request or demand a change of venue. If any action or claim concerning this Contract is brought by any third party an d filed in another venue, the part ies hereto agree to use their best efforts to obtain a change of venue to the Superior Court of California, San Bernardino County, San Bernardino District.
MM. Conflict of Interest
Contractor shall make all rea sonable effort s to ensure that no conflict of in terest exists between its officers, employees, or subcontractors and the County. Contractor shall make a reasonable effort to prevent employees, Contractor, or members of governing bodies from using their positions for purposes that are, or give the appear ance of being motivated by a desire for private gain for themselv es or others such as those with whom they have family business, or other ties. Officers, employees, and agents of cities, counties, districts , an d other local agencies are subject to applicable conflict of interest codes and state law. In the event the Cou nty determin es a conflict of interest situation exists, any increase in costs, associated with the conflict of interest situation, may be di sallowed by the County and such conflict may consti tute grounds for termination of the Contract. This provision shal l not be construed to prohibit employment of persons with whom Contractor’s officers, employees, or agents have family, business, or other ties so long a s the employment of such persons does not result in increased costs over those associated with the empl oyment of any other equally qualified applicant.
NN. Copyright
County shall have a royalty-free, non-exclusive and irrevocable license to publish, disclose, copy, translate, and otherwise use, copyright or patent, now and herea fter, all reports, studies, information, data, statistics, forms, designs, plans, procedures, systems, and any other materials or properties developed under this Contrac t in cluding th ose covered by copyright, and reserves the right to authorize others to u se or reproduce such material. All such materials developed under the terms of this Contract shall acknowledge the San Bernardino County as the funding agency and Contr actor as the c reator of the publication.
No such mate rials, or properties produced in wh ole or in part under this Cont ract shall be subject to private use, copyright or patent right by Contractor in the United States or in any other country without the exp ress written consent of County. Copies of all educati onal and training materials, curric ula, audio/visual aids, printe r material, and periodicals, assembled pursuant to this Contract must be filed with the County prior to publication.
OO. Iran Contracting Act
IRAN CONTR ACTING ACT OF 2010, Public Contract Code Sections 2200 et seq. (Applicable for all Contracts of one milli on dollar s ( $1,000,000) or more). In accord ance with Public Contract Code Section 2204(a), the Contractor certifies that at the time the Contract is s igned, the Contractor signing the Contrac t is not identified on a list creat ed pursuant to subdivision (b) of Public Contract Code Section 2203 as a person (as defined in Public Contract Code Section 2202(e)) engaging in investment activities in Iran described in subdivisi on (a) of Public Contrac t Code Section 2202.5, or as a pers on described in subdivision (b) of Public Contract Code Section 2202.5, as applicable.
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Contractors are cautioned that making a false certification may subject the C ontractor to civil penalties, termination of existing c ontract, and ineligibility to bid o n a contract for a period of three (3) years in accordance with Public Contract Code Section 2205.
PP. California Consumer Privacy Act
To the extent applicable, if Contractor is a business that collects the personal information of a consumer(s) in performing services pursuant to this Cont ract, Co ntractor must comply with the provisions of the California Consumer Privacy Act (CCPA). (Cal. Civil Code Sections 1798.100, et s eq.). For pu rposes of this provision, “business,” “cons umer,” and “personal information” s hall have the same meani ngs as set f orth a t Civil Code Section 1798.140. Contractor must contact the County immediately upon receipt of any request by a consumer su bmitted pursuant to the CCPA that requires any action on the part of the County, including b ut not limited to, providing a list of dis closures or deleting personal information. Contractor must not sell, market or otherwise disclose personal information of a consumer provided by the County unless specifically aut horized pursuant to terms of this Contract. Contractor must immed iately provi de to the County any notice provided by a consumer to Con tractor pursuant to Civil Code Section 1798.150(b) alleging a vi olation of the CCPA, that involves personal information re ceived or maintained pursuant to th is Contract. Contractor must i mmediately notify the County if it receives a notice of violation from the California Attorney General pursuant to Civil Code Section 1798.155(b).
QQ. Prevailing Wage Laws
By its execution of t his Contract, Contractor certifies that it is aware of the requir ements of California Labor Code Sections 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 requi rements on c ertain “public works” and “maintenance” projects. Section 1720 of the California Labor Code states in part: “For purp oses of this p aragraph, ‘construction’ includes work performed during the design, site assessment , feasibility study, and other preconstruction phases of construction including, but not limited to, inspection and land surveying work…” If the services/scope of Work are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wag e Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall m ake copies of the prevailing rates of per diem wag es for each craft, classification o r type o f worker needed to ex ecute the services available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the project site. Contractor will also adhere to a ny other applicable requirements, including but not limited to, those regarding the employment of apprentices, travel and subsistence pay, retention and inspection of payroll records, workers compensation a nd forfeiture of penalties prescribed in the Labor Code for violations.
Contractor sh all defend, indemnify and ho ld the County, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, pena lties or interest arising out of any failure or alleged failure t o comply with Prevailing Wage Laws.
See Exhibit “B”, which is attached and incorporated by reference, for additional information regarding Prevailing Wage Laws. Contractor shall comply with all applicable terms and conditions in Exhibit “B”. The applicable general prevailing wage determinat ions are on file with the County and are a vailable to any interested party on request. Contractor shall post a copy of the applicable prevailing wage determinations at the job site.
90 Rev. 5/8/20 Page 22 of 41
4. TERM OF CONTRACT
This Contract is e ffective as of the date last signed by authorized representatives of any party (Effective Date), requires all incurred obligations by December 31, 2024, and expires on December 31, 2026, but may be terminated earlier in accordance with the provisions of th is Contract.
5. INDEMNIFICATION AND INSURANCE REQUIREMENTS
A. Indemnification
The Contractor agrees to indemnify, defend (with counsel reasonably approved by County) and hold harmless the County and its authorized officers , em ployees, age nts and volunteers from any and all claims, actions, losse s, damages and/or liability ar ising out of this Contract from any cause wh atsoever, including the acts, errors or omissions of any person and for any costs or expenses incurred by th e Co unty on acco unt of any claim except where such indemnification is proh ibited by law. This indemnification provision shall apply regardless of t he existence or degree of fault of indemnities. The Contractor indemnification obligation applies to the Co unty’s “active” as well as “passive” negl igence but does not apply to the Co unty’s “sole negligence” or “w illful misco nduct” wi thin the meaning of Civil Code Section 2782.
B. Insurance
[OPTION A] Contractor and County are authorized self -insured public entities for purposes of Professional Liability, General Liability, Automobile Liability, Worker’s Compensation and Property Damage and warrant that through their respective programs of self -insurance, they have adequate coverage or resources to protect against liabilities ari sing out of the performance of the terms, conditions or obli gations of this Contract. – I believe we want OPTION A as is typical for the City.
[OPTION B] Contractor agrees to provide insurance set forth in accordance with the requirements herein. If Contractor uses existing coverage to comply w ith these requirements and that coverage does not meet the sp ecified require ments, Contractor agrees to amend, supplement, or endorse the existing coverage to do so.
Without in anyway affecting the indemnity herein provided and in addition ther eto, Contractor shall secure and maintain throughou t the Contract term the following types of insurance with limits as shown:
i. Workers’ Compensation/Employer’s Liability – A program of Workers’ Compensation insurance or a state -approved, self-insurance program in an amount and form to meet all applicable r equirements of the La bor Code of the State of California, including Employer’s Liability with $250,000 limits covering all persons including volunteers providing services on behalf of the Contractor and all risks to such persons under this Contract.
If Contractor has no employees, it may ce rtify or warrant to the County that it does not currently have any employees or individuals who are defined as “employees” under the Labor Code and the requirement for Workers’ Com pensation coverage will be waived by the Contractor’s Director of Risk Management.
With respect to Contractors that are non -profit corporations organized under California or Federal law, volunteers for such entities are required to be covered by Workers’ Compensation insurance.
91 Rev. 5/8/20 Page 23 of 41
ii. Commercial/General Liabi lity I nsurance – Contractor shall carry General Liability Insurance covering all operations performed by or on behalf of Contractor providing coverage for bodily injury and property damage with a combined si ngle limit of not less than one million dollars ($1,000,000), per occurrence. The policy coverage shall include:
a. Premises operations and mobile equipment.
b. Products and completed operations.
c. Broad form property damage (including completed operations). d. Explosion, collapse and underground hazards.
e. Personal injury.
f. Contractual liability.
g. $2,000,000 general aggregate limit.
iii. Automobile Liability Insurance – Primary insurance coverage shall be written on ISO Business Auto coverage form for all owned, hired and n on-owned automob iles or symbol 1 (any aut o). The policy shall have a combined single limit of not less than one million dollars ($1,000,000) for bodily injury and property damage, per occurrence.
If Contractor is transporting one or more non -employee passengers in perfo rmance of Contract services, the au tomobile lia bility policy s hall have a combined single limit of two million dollars ($2,000,000) for bodily injury and property damage per occurrence.
If Contractor owns no autos, a non -owned auto endorse ment to the Gene ral Liability policy described above is acceptable.
iv. Umbrella Liability Insurance – An umbrella (over primary) or excess policy may be used to comply with limits or other primary coverage requirements. When used, the umbrella policy shall apply to bodily injury/property damage, personal injury/advertising injury and shall include a “dropdown” provision providing primary coverage for any liability not covered by the primary policy. The coverage shall also apply to automobile liability.
v. [if applicable] Professional Liability – Professional Li ability Insurance with limi ts of not less than one million ($1,000,000) per claim and two million ($2,000,000) aggregate limits
or
Errors and Omissions Liability Insurance – Errors and Omissions Liability Insurance with limits of not less than o ne million ($1,000,000) and two mill ion ($2,000,000) aggregate limits
or
Directors and Officers Insurance coverage with limits of not less than one million ($1,000,000) shall be required for Contr acts with charter labor committees or ot her not- for-profit organizations advising or acting on behalf of the County.
If insurance coverage is provided on a “claims made” policy, the “retroactive date” shall be shown and must be before the date of the stat e of the contract work. The claims made insurance shall be maintained or “tail” coverage provided for a minimum of five (5) years after contract completion.
vi. [if applicable] Construction contracts for projects over one million ($1,000,000) and less than three million ($3,000,000) require limits of not less than th ree million ($3,000,000) in General Liability and Auto Liability coverage.
92 Rev. 5/8/20 Page 24 of 41
Construction contracts for projects over three million ($3,000,000) and less than five million ($5,000,000) require limi ts of not less t han five million ($5,000 ,000) in General Liability and Auto Liability coverage.
Construction contracts for projects over five million ($5,000,000) require limits of not less than ten million ($10,000,000) in General Liability and Auto Liability.
Continuing Products/Completed Operations Liabilit y Insuran ce with a li mit of not less than five million ($5,000,000) for each occurrence for at least three years following substantial completion of the work on projects over one million ($1,000,000).
Subcontractor Insurance Requiremen ts. The Contractor agrees to require all parties or subcontractors, including architects or others it hires or contracts with related to the performance of this contract to provide insurance covering the contracted o perations with t he basic requ irements identified in Paragra ph 5 .A (indemnification) and the insurance specif ications for all contracts in in Paragraph 5.B (including waiver of subrogation rights) , and naming the County as an additional insured. The Contrac tor agrees to monitor and review all such coverage and assumes all responsibility ensuring that such coverage is provided as required here.
Course of Construction/Installation (Builder’s Risk) property insurance providing all risk, including theft covera ge f or all prope rty and materials to be used on the project . The insurance policy shall not have any coinsurance penalty.
vii. [if applicable] Cyber Liability Insurance – Cyber Liability Insurance with limits of no less than $1,000,000 for each occurrence or e vent with an ann ual aggregate of $2,000, 000 covering privac y violati ons, informa tion theft, dam age to or destruction of electronic information, intentional and/or unintentional release of private information, alteration of electronic information, extortion and network sec urity. The policy shall protect the involved County entities and cover breach response cost as well as regulatory fines and penalties.
viii. [if applicable ] Abuse/Molestation Insurance – Contractor shall have abuse or molestation insurance providing coverage for all employees for the actual or threatened abuse or molestation by anyone of any person in the care, custody, or control of any insured, including negligent employment, investigation and supervision. The policy shall provide coverage for both defense and indemnity with liability limits of not les s than one million dollars ($1,000,000) with a two million dollars ($2,000,000) aggregate limit.
ix. Additional Insured – All policies, except for Worker’s Compensation, Errors and Omissions and Pro fessional Liabil ity policies shall conta in additional endorse ments naming the Coun ty and its offi cers, employees, agents and volunteers as additional named insured with respect to liabilities arising out of the performance of services hereunder. The additional insured en dorsements shall not lim it the scope of covera ge for th e County to vicarious liabi lity but shall allow coverage for the County to the full extent provided by the policy. Such additional insured coverage shall be at least as broad as Additional Insured (Form B) endorsement form ISO, CG 2010.11 85.
x. Waiver of Su brogation Ri ghts – Contractor shall require the carriers of required coverages to waive all rights of subrogation against the County, its officers, employees, agents, volunteers, contractors, and subc ontractors. All general or auto liability 93 Rev. 5/8/20 Page 25 of 41
insurance coverage provided shall not pro hibit Contractor and Contractor’s employees or agents from waiving the right of subrogation prior to a loss or claim. Contractor hereby waives all rights of subrogation against the County.
xi. Policies Primary and Non -Contributory – All policies required here in are to be primary and non -contributory with any insurance or self -insurance programs carried or administered by the County.
xii. Severability of Interests – Contractor agrees to ensure that covera ge provided to meet these requirements is appl icable separately to each insured and there will be no cross liability exclusions that preclude coverage for suits between Contractor and the County or between the County and any other insured or additional insured under the policy.
xiii. Proof of Coverage – Contractor shall furnish Certificates of Insurance to the Department administering the Contract evidencing the insurance coverage at the time the Contract is executed, addi tional end orsements, as required shall be provided prior to the commencement of perfor mance of servic es hereunder, which certificates shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to the Departm ent, and Contractor shall maintain such insurance from the time Contractor commences performance of services hereunder until the completion of such services. Within fifteen (15) days of the commencement of this Contract, Contractor shall furnish a co py of the Declaration page for all applicable policies and will provide complete certified copies of the policies and endorsements immediately upon request.
xiv. Acceptability of Insurance Carrier – Unless otherwise approved by Risk Management, insurance shall be w ritten by insure rs authorized to do business in the State of California and with a minimum “Best” Insurance Guide rating of “A- VII”.
xv. Deductibles and Self -Insured Retention – Any and all deductibles or self -insured retentions in excess of $10,000 sha ll be declared to and approved by Risk Management.
xvi. Failure to Procure Coverage – In the event that any pol icy of insurance required under this Contract does not comply with the requirements, is not procured, or is canceled and not replaced, the County has the right but not th e obligation or duty to cancel the Contract or obt ain insur ance if it d eems necessary and any premiums paid by the County will be promptly reimbursed by Contractor or County payments to Contractor will be reduced to pay for County purchased insurance.
xvii. Insurance Review – Insurance requirements are subject to perio dic review b y the County. The Director of Risk Management or designee is authorized, but not required, to reduce, waive or suspend any insurance requirements whenever Risk Manageme nt determines that any of the required insurance is not available, is unreasonably priced, or is not ne eded to protect the interests of the County. In addition, if the Department of Risk Management determines that hereto fore unreasonably priced or unavail able types of in surance coverage or coverage limits become reasonabl y priced or available , the Director of Risk Management or designee is authorized, but not required, to change the above insurance requirements to require additional types of insurance cove rage or higher c overage limits, provided that any such change is rea sonable i n light of p ast claims against the County, inflation, or any other item reasonably related to the County’s risk.
94 Rev. 5/8/20 Page 26 of 41
Any change requiring additiona l types of insurance coverage or hi gher coverage limits must be made by amendment to this Contract. Contractor agrees to execute any such amendment within thirty (30) days of receipt.
Any failure, actual or alleged, on the part of the Coun ty to monitor or enforce compliance with any of th e in surance and indemnification requirements will not be deemed as a waiver of any rights on the part of the County.
6. RIGHT TO MONITOR AND AUDIT
A. The County, State and Federal government shall have absolute right to review and audit all records, books, pape rs, documents, c orporate minutes, and other pertinent items as requested, and shall have a bsolute right t o monitor the performance of Contractor in the delivery of services provided under this Contract. Con tractor shall give full cooperation, in any auditi ng o r monitoring conducted. Contractor shall cooperate with the Count y in the implementation, monitoring, and evaluation of this Contract and comply with any and all reporting requirements established by the County.
B. All records pertaining to services delivered and all fiscal, statistical and management books and records sh all be av ailable for examination and audit by County representatives for a period of three years after final payment under this Contract or until all pending County, State and Federal audits are completed, whichever is later.
7. CORRECTION OF PERFORMANCE DEFICIENCIES
A. Failure by Contractor to c omply with any of the provisions, covenants, requirements or conditions of this Contract shall be a material breach of this Contract.
B. In the event of a non-cured breach, County may, at its sole discretion and in addition to any other remedies available at law, in equity, or otherwise specified in this Contract:
i. Afford Contractor thereafter a time perio d within which to cure the breach, which period shall be established at the sole discretion of County; and/or ii. Discontinue reimbur sement to Co ntractor for an d during the period in which Contractor is in breach, which reimbursement shall not be entitled to l ater recovery; and/or
iii. Withhold funds pending duration of the breach; and/or iv. Offset against any monies billed by Contract or but ye t unpaid by County those monies disallowed pursuant to Item “B” of this paragraph; and/or v. Terminate this Contract immediately a nd be relieved of the payment of any consideration to Contractor. In the event of such termination, the County may proceed with the work in any manner deemed proper by the County. The cost to the County shall be deducted from any sum due to the Contracto r under this Contract and the balance, if any, shall be paid by the Contractor upon demand.
8. NOTICES
All written notices provided for in this Contract or which either party desires to give to the other shall be deemed fully given, when made in writing and either served personally, or by facsimile, or deposited in the Uni ted States mail, postage prepaid, and addressed to the o ther party as follows:
San Bernardino County
County Administrative Office – 4th Floor
385 N. Arrowhead Avenue
San Bernardino, CA 92415
City of Fontana
8353 Sierra Ave.
Fontana, CA 92335
95 Rev. 5/8/20 Page 27 of 41
Notice shall be deemed communicated two (2) Co unty working days from the time of mailing if mailed as provided in this paragraph.
9. ENTIRE AGREEMENT
This Contract, including all Exhibits and other attachme nts, which are attached hereto and incorporated by reference, and other documents incorporated her ein, rep resents the final, complete and exclusiv e agreement betwee n the parties hereto. Any prior agreement, promises, negotiations or representations relatin g to the subject matter of this Contract not expressly set forth herein are of no force or effect . This Co ntract is ex ecuted without reliance upon any promise, warranty or representation by any party or any representative of any party other than those expr essly contained herein. Each party has carefully read this Contract and signs the same of its own free will.
10. CONTRACT EXECUTION
This Contract may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute one and the same Contract. The parties shall be entitled to sign and transmit an electronic signature of this Contract (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Each party providing an electronic signature agrees to promptly execute and deliver to the other party an original signed Contract upon request.
IN WITNESS WHEREOF, the San Bernardino County and [City of Fontana] have each caused this Contract to be subscribed by its respective duly authorized officers, on its behalf.
FOR COUNTY USE ONLY
Approved as to Legal Form Reviewed for Contract Compliance Reviewed/Approved by Department
County Counsel
SAN BERNARDINO COUNTY
(Print or type name of corporation, company, contractor, etc.)
By
Leonard X. Hernandez, Chief Executive Officer (Authorized signature - sign in blue ink) Dated:
Name
(Print or type name of person signing contract)
Title
(Print or Type)
Dated:
Address
96 Rev. 5/8/20 Page 28 of 41
Date Date Date
97 Rev. 5/8/20 Page 29 of 41
EXHIBIT A
SCOPE OF EXPENDITURES
[SEPARATELY ATTACHED]
98 Rev. 5/8/20 Page 30 of 41
EXHIBIT B
PREVAILING WAGE REQUIREMENTS
A. All or a portion of the Scope of Work in the Contract r equires the payment of prevailing wages and compliance with the following requirements:
1. Determination of Prevailing Rates:
Pursuant to Labor Code sections 1770, et seq. , the County has obtained fr om the Director of the Department of Industrial Relations (D IR) pursuant to t he California L abor Code, t he general prevailing rates of per diem wages and the prevailing rates for holiday and overtime work in the locality in which the Scope of Work is to be performed. Copies of said rates are on file with the County, will be made available for inspection during regular business hours, may be included elsewhere in the specifications for the Scope of Work, and are also available online at www.dir.ca.gov. The wage rate for any classification not listed, but which may be required to execute the Scope of Work, shall be commensurate and in accord with specified rates for similar or comparable classif ications for those performin g similar or comparable duties. In accordance with Labor Code section 1773 .2, the Contractor shall post, at appropriate and conspicuous locations o n the job site, a schedule showing all applicable prevailing wage rates and shall comply with the requirement s of Labor Code sections 1773, et seq.
2. Payment of Prevailing Rates
Each worker of the Contr actor, or an y subcontractor, engaged in the Scope of Wo rk, shall be paid not less than the general prevailing wage rate, regardless of a ny contractual relationship which may be alleged to exist between the Contractor or an y subcontractor, and such worker.
3. Prevailing Rate Penalty
The Contractor shall, as a pe nalty, forfeit two hundred dollars ($200.00) to the County for each calendar day or portion thereof, for each worker paid less than the prevailing rates as determined b y th e Director of the DIR for suc h work or cr aft in which such worker is employed by the Contractor or by any subcontractor in connection with the Scope of Work.
Pursuant to California Labor Code s ection 1775, the difference between such prevailing wage rates and the amou nt paid to each w orker for ea ch calendar day, or portion thereof, for which each worker was paid less than the prevailing wage rate, shall be paid to eac h worker by the Contractor.
4. Ineligible Contractors:
Pursuant to the provisions of Lab or C ode section 1 777.1, the Labor Commissioner publishes and distributes a list of contr actors ineligible to perform work as a contractor or subcontractor on a public wo rks project. This list of de barred contractors is available from the DIR website at http://www.dir.ca.gov/Public-Works/PublicWorks.html. Any contract entered into between a contractor and a debarred subcontractor is void as a matter of law.
A debarred subcontractor may no t re ceive any pub lic money for perfo rming work a s a subcontractor on a public works contrac t, and any public money that may have been paid to a debarred subcontractor by a contractor on the project sh all be returned to the County.
The Contractor shall be responsible for t he payment of wages to workers a s a debarred subcontractor who has been allowed to work on the Scope of Work.
99 Rev. 5/8/20 Page 31 of 41
5. Payroll Records:
a. Pursuant to California Labor Code section 1776, the Contractor and each subcontractor, shall keep accurate certified payroll records, showing the name, address, social security number, work classifica tion, straight time and overtime hours worked each day and week, and the actual p er diem wages paid to each j ourneyman, apprentice, worker or other employee employed b y them in connect ion with the Scop e of Work. The payroll records enumerated herein shall be verified by a written declaration made under penalty of perjury that the information contained in the payroll record is true and correct and that the Contractor or subcontractor ha s complied with th e requiremen ts of the California Labor Code sections 17 71, 1811, and 1815 for any Scope of Work performed by his or her employees. The payroll records shall be avai lable for inspection at all reasonable hours at the principal office of the Contractor on the following basis:
i. A certified copy of an employee's pa yroll record shall be made available for inspection or furnished to such employee or his/her authorized representative on request;
ii. A certified copy of all payroll re cords shall be ma de available for in spection or furnished upon request to the County, the D ivision of Labor Standards Enforcement of the DIR;
iii. A certified copy of payroll re cords shall be made availabl e upon request to the public for inspection or copies th ereof made; provi ded, however, that a request by the public shall be made through either th e County or the Division of Labor Standards Enforcement. If the requested payroll records have not been previously provided to the County or the Division of Labor S tandards Enforcement, the requesting party shall, prior to being provided the records, reimburse the cost of preparation by the Contractor, subcontractor and the entity through which the request was ma de; the public shall not be given access to such records at the principal office of the Contractor; iv. The Contractor shall file a certified copy of t he payroll records with the entity that requested such records within ten (10) days after receipt of a written request; and v. Copies provided to the public, by the Co unty or the Divis ion of Labor Standar ds Enforcement shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address and social secu rity number. The name and ad dress of the Contractor or any subcontractor, performi ng a part of the Scope of Work shall not be marked or obliterated. The Contractor shall inform the County of the location of payroll records, including the street address, ci ty and county and shall, within five (5) working days, provide a notice of a change of location and address.
b. The Contractor shall ha ve ten (10) days from receipt of the writ ten notice specifying in what respects the Contractor must comply with the above re quirements. In the event Contractor does not comply with the requirements of thi s section within the ten (10) day period, the Contra ctor shall, as a penalty to the County, forfeit one -hundred dollars ($100.00) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the D ivision of Labor Standards Enforcement, such penalty shall be withheld from any portion of t he payments then due or to become due to the Contractor.
6. Limits on Hours of Work:
Pursuant to California Labor C ode section 1810, eight (8) hours of labor shall con stitute a legal day's work. Pursuant to California Labor Code section 1811, the time of service of any worker employed at any time by the Contractor or by a subcontractor, upon the Scope of Work or upon a ny part of the Scope of Work, is limited and restri cted to eight (8) hours during any one calendar day and forty (40) hours during any one cale ndar week, except as 100
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provided for under Labor Code section 1815. Notwithstanding the foregoing provisions, work performed by employees of Contractor or any subcont ractor, in excess of eight (8) hours per d ay and forty (40) hours during any one week, shall be p ermitted upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and one-half (1½) times the basic rate of pay.
7. Penalty for Excess Hours:
The Contractor shall pay to the C ounty a penalty of twenty -five dollars ($25.00) for each worker employed on the Scope of Work by the Contractor or any subco ntractor, for each calendar day during which such worker is required or permitt ed to work more than eight (8) hours in any calendar day and forty (40) hours in any one cal endar week, in violation of the provisions of the California Labor Code, unless compe nsation to the worker so emp loyed by the Contractor is not less than one and on e-half (1½) times the basic rate of pay f or all hours worked in excess of eight (8) hours per day.
8. Senate Bill 854 (Chapter 28, Statutes of 2014) and Senate Bill 96 (Chapter 28 , Statutes of 2017) Requirements:
a. Contractor shall comply with Senate Bill 854 and S enate Bill 96 . The requirements include, but are not limited to, the following:
i. No contractor or subcontractor may be listed on a bid proposal for a public works project un less registered with the DIR pursuant to Labor Code section 1725.5, with limited exceptions from this requirements for b id purposes only as allowed under Labor Code section 1771.1(a).
ii. No contractor or subcontractor may be awarded a contract for public work or perform work on a public works project unless registered with the DIR pursu ant to Labor Code section 1725.5.
iii. This project is subject to compliance monitoring and enforcement by the DIR. iv. As required by the DIR, Contractor is required to post job site no tices, as prescribed by regu lation, regarding compliance monitoring and enforce ment by the DIR.
v. Contractors and all subc ontractors must submit certified payroll records on line to the Labor Commissioner for all public works projects.
1) The certified payroll m ust be submitted at least mo nthly to the Labor Commissioner.
2) The County reserves the right to require Contractor and all subcontractors to submit certified payroll records more frequently than monthly to the Labor Commissioner.
3) The certified payroll record s must be in a format prescr ibed by the Labor Commissioner.
vi. Registration with t he DIR and the su bmission of certified pa yroll records to the Labor Commissioner are not req uired if the public works project is $25,000 or less when the project is for construc tion, alteration, demolition , installation or repair work, or if the public wor ks project is $15 ,000 or less when the pr oject is for maintenance work.
b. Labor Code section 1725.5 states the following:
“A contractor shall be registered pursuant to this sect ion to be qualified to bid o n, be listed in a bid proposal, subject to the requ irements of Secti on 4104 of the Public Contract Code, or engage in the performance of any pu blic work contract that is subject to the requirements of this chapter. For the purpo ses of this section, “contra ctor” includes a subcontractor as defined by Section 1722.1.
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(a) To qualify for registration under this section, a contractor shall do all of the following:
(1) (A) Register with the Department of Industrial Relations in the m anner prescribed by the department and pay an initial nonrefundable application f ee of four hundred dollars ($400) to qu alify for re gistration under this section and an annu al renewal fee on or before July 1 of each year thereafter. The annual renewal fee shall be in a uniform amount set by the Director of Industrial Relations, and the initial registra tion and renewal fees may be adjus ted no more than annually by the director to support the costs specified in Section 1771.3.
(B) Beginning June 1, 2019, a c ontractor may register or re new according to this subdivision in annual increments up to three year s from the date of re gistration.
Contractors who wish to do so will be req uired to prepay the applicable nonrefundable application or renewal fees to qualify for the number of years for which they wish to preregister.
(2) Provide evidence , disclosures, or releases as are nece ssary to est ablish all of the following:
(A) Workers' compensation coverage that meets the requirements of Division 4 (commencing with Section 3200) and includes s ufficient coverage for any worker whom the contractor e mploys to perform work that is subjec t to prevailing wage requirements other than a contract or who is separately registered under this section. Coverage may be evidenced by a current and valid certific ate of workers' compensation insurance or certification of self-insurance required under Sec tion 7125 of the Business and Professions Code.
(B) If applicable, the contractor is licensed in accordance with Chapter 9 (commencing with Section 7000) of the Business and Professions Code.
(C) The contractor does not have any delinquent liability to an employee or the state for any assessment of back wage s or related damages, interest, fines, or penalties pursuant to any final judgmen t, order, or determination b y a court or any federal, state, or local administrative agency, including a confirmed arbit ration award . However, for purposes of this paragraph, the contractor shall not be disqualified for any judgment, order, or determinatio n that is under appeal, prov ided that the contractor has secured the payment of any a mount eventually found due through a bond or ot her appropriate means.
(D) The contractor is not currently debarred under Section 1777.1 or under any other federal or state law providing for the debarment of contractors from public works.
(E) The contractor has not bid on a public works contract, been listed in a bid proposal, or engaged in th e pe rformance of a contract for public works without being lawfully registered in accordance with this sectio n, within the preceding 12 months or since the effective date of the require ments set forth in subdivision (e), whichever is earlier. If a contractor is found to be in violation of the requir ements of this paragraph, th e period of disqualification shall be waived if both of the following are true:
(i) The contractor has not previously been found to be in violation of the requirements of this paragraph within the preceding 12 months.
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(ii) The contractor pays an addition al nonrefundable penalty registration fee of two thousand dollars ($2,000).
(b) Fees received pursuant to this section shall be deposited in the S tate Public Works Enforcement Fund established by Section 1771.3 and shall be use d only for the purposes specified in that section.
(c) A contractor who fails to pay the r enewal fee requir ed under par agraph (1) o f subdivision (a) on or before the expirati on of an y prior period of registration shall be prohibited from bidding on or eng aging in the performance of any contract for public work until once again registered pursuant to this section. If the failure to pay the renewal fee was inadvertent, the contractor may renew its registration retroactively by paying an additional nonrefunda ble penalty renewal fee equa l to the amount of the renewal fee within 90 days of the due date of the renewal fee.
(d) I f, after a b ody awarding a contract accepts the contrac tor's bid or awards the contract, the work covered by the bid or contract is dete rmined to be a public work t o which Section 1771 applies, either as the result of a determin ation by the dire ctor pursuant to Section 1773.5 or a court decision, the requirements of this section shall not apply, subject to the following requirements:
(1) The body that awarded the co ntract failed, in the bid specification or in the contract documents, to identify as a public work that portion of the work that the determination or decision subsequently classifies as a public work.
(2) Within 20 days followi ng service of notice on the awarding body of a determination by the Director of Industrial Rel ations pursuant t o Section 1773.5 or a decision by a court that the contract was for public work as defined in this chapter, the contractor and any subcontractors are registered under this s ection or are replaced by a contractor or subcontractors who are registered under this section.
(3) The requirements of this section shall apply p rospectively only to any subsequent bid, bid proposal, contract, or work performe d after the awarding body is served with notice of the determination or decision referred to in paragraph (2).
(e) The requirements of this section shall apply to any bid proposal submitted on or after March 1, 2015, to any contract for public work, as de fined in this chapter, executed on or after April 1, 2015 , and to any work performed under a con tract for public work on or after January 1, 2018, regardless of when the contract for public work was executed.
(f) This section does not apply to work perfo rmed on a public works proje ct of twenty - five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.”
c. Labor Code section 1771.1 states the following:
“(a) A contra ctor o r subcontrac tor shall not be qualified to bid on, be li sted in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless c urrently registere d and qualified to perform public work purs uant to Sectio n 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by 103
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Section 1016 4 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.
(b) Notice of the requirement described in subdivision (a) shall b e in cluded in all bid invitations and public works contracts, and a bid shall not be accepted nor any contract or subcontract entered into without proof of th e contractor or subcontracto r's current registration to perform public work pursuant to Section 1725.5.
(c) An inad vertent error in listing a subcontractor who is not registe red pursuant to Section 1725.5 in a bid proposal shall not be grounds for filing a bid protest or grounds for considering the bid nonresponsive, provided that any of the following apply:
(1) The subcontractor is registered prior to the bid opening.
(2) Within 24 hours aft er the bid opening, the subcontractor is registered and has pai d the penalty registration fee specified in subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5.
(3) The subcont ractor is replaced by another registered su bcontractor pursuan t to Section 4107 of the Public Contract Code.
(d) Failure by a subcontractor to be regis tered to perform public work as required by subdivision (a) shall be grounds under Section 4107 of the Public Contract Code for the contractor, with the consent of the awarding authority, to substitute a subcontractor who is reg istered to perform public wo rk pursuant to Section 1725.5 in place of the unregistered subcontractor.
(e) The department shall maintain on its Internet Web site a list of con tractors who are currently registered to perform public work pursuant to Section 1725.5.
(f) A contract entered into with any contractor or subcontractor in violation of subdivision (a) shall be subject to cancellation, provided that a contract for public work shall not be unlawful, void, or voidable solely due to the failure of the a warding body, contractor, or any subcontractor to comply with the requirements of Section 1725.5 or this section.
(g) If t he Labor Commissioner or his or her designee determi nes that a contractor o r subcontractor engaged in the performance of any public w ork contract without having been registered in accordance with this section, the contractor or subcontract or s hall forfeit, as a civ il penalty to the state, one hundred dollar s ($100) for each day o f work performed in violation of the registration requirem ent, not to exceed an aggreg ate penalty of eight thousand dollars ($8,000) in addition to any penalty regi stration fee assessed pursuant to clause (ii) of subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5.
(h)(1) In addition to, or in lieu of, any other penalty or sanction authorized pursuant to this chapter, a higher tiered public works c ontractor or subcontractor who is found to have entered into a subcontract with an unregistered lower tier subcontractor to perform any public work i n violation of the requireme nts of Section 1725.5 or this section shall be subject to forfeiture, as a civi l penalty to the state, of one hundred dollars ($100) for each day t he unregistered lower ti er subcontractor performs work in violation of the 104
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registration requirement, not to e xceed an aggregate penalty of ten thousand dollars ($10,000).
(2) The Labor Com missioner shall use the same standards specified in subparagraph (A) of paragraph (2) of sub division (a) of Section 1775 when determining the severi ty of the violation and what penalty to assess, and may waive the penalty for a first time violation that wa s unintentional and did not hinder the Labor Commissioner’s ability to monitor and enforce compliance with the requirements of this chapter.
(3) A higher tiered public works c ontractor or subcontractor shall not be liable for penalties assessed pursuant to paragraph (1) if the l ower tier subcontractor’s performance is in violation of the requirem ents of Section 1725.5 due to the revocation of a previously approved registration.
(4) A subcontractor shall not be liable for any penalties assessed against a hig her tiered public works contractor or subcontractor pursuant to p aragraph (1). A higher tie red public works contractor or subcontractor may not re quire a lower tiered subcontractor to indemnity or otherwise be liable for any penalties pursuant to paragraph (1).
(i) The Labor Commissioner or his or her designee shall is sue a civil wage and penalt y assessment, in accordance with the provisions of Sec tion 1741, upon determinatio n of penalties pursuant to subdivision (g) and subparagraph (B) of paragraph (1) o f subdivision (h) . Review of a civil wage and penalty assessment issued under this subdivision may be requested in accordance with the provisions of Section 1742. The regulations of the Director of Industrial Relations, which govern proceedings for revie w of civil wage and penalty assessments and the withholding of cont ract payments under Article 1 (commencing with Section 1720) and Article 2 (comme ncing with Section 1770), shall apply.
(j)(1) Where a contractor or subcontractor engages in the performance of any pub lic work contract without having been registered in vio lation of the requirements of Section 1725.5 or this section, the Labor Commissio ner shall issue and serve a stop order prohibiting the use of the unregistered contractor or the unregistered subcontractor on all p ublic works until the unregistered contract or or unregistered subcont ractor is registered. The stop order shall not apply to work by registered contract ors or subcontractors on the public work.
(2) A stop order may be personally ser ved upon th e cont ractor or subcontractor by either of the following methods:
(A) Manual delivery of the order to the contractor or subcontractor personally.
(B) Leaving sign ed copies of the order with the person who is apparently in charge at the site of t he public work and by thereafter mailing copies of the order by first class mail, postage prepaid to the contractor or subcontractor at one of the following:
(i) The addres s of the contractor or subcontractor on file with either the Secretary of State or the Contractors’ State License Board.
(ii) If the contractor or subcontractor has no address on file with the Secretary of State or the Contractors’ State License Board, the address of the site of the public work. 105
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(3) The stop order shall be effective immed iately upon service and shall be subject to appeal by the party contracting with the unregistered contractor or subcontractor, by the unregistered contractor or subcontrac tor, or both. The appeal, hearing, and any further review of the hearing decision sh all be g overned b y t he procedures, time limits, and other requirements specified in subdivision (a) of Section 238.1.
(4) Any employee of an un registered contractor or sub contractor who is affected by a work stoppage ordered by the commissioner pursuant to this subdivision shall be paid at his or her regular hourly p revailing wage rate by that em ployer for any hours the employee would have worked but for the work stoppage, not to exceed 10 days.
(k) Failure of a contractor or subcontractor, owner, directo r, officer, or ma naging agent of the contractor or subcontract or to observe a stop order iss ued and served upon him or her pursuant to subdivision (j) is guilty of a misdemeanor punishable by imprisonment in county jail not exceeding 60 days or by a fine n ot e xceeding ten thousand dollars ($10,000), or both.
(l) This section shall apply to any bi d proposal submitted on or after March 1, 2015, an d any contract for public work entered into on or after April 1, 2015. This section shall also apply to the perfor mance of any publ ic work, as defined in this chapter, on or a fter January 1, 2018, regardless of when the contract for public work was entered.
(m) Penalties received pu rsuant to this section shall be deposited in the State Public Works Enforcement Fund es tablished by Section 1771.3 and shall be used only for the purposes specified in that section.
(n) This section shall not apply to work perf ormed on a public works proj ect of twenty - five thousand dollars ($25,000) or less when the project is for constructi on, alteration, demolition, installation, or repair work or to work performed on a public wo rks project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.”
d. Labor Code section 1771.4 states the following:
“(a) All of th e fo llowing are applicable to all public works projects tha t are otherwise subject to the requirements of this chapter:
(1) The call for bi ds and contract documents sh all specify that the project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
(2) The awarding body shall post or require the prime contractor to post job site notices, as prescribed by regulation.
(3) Each c ontractor and subcontractor shall furnish the records specified in Section 1776 directly to the Labor Commissioner, in the following manner:
(A) At least monthly or more frequently if specified in the contract with the awarding body.
(B) In a format prescribed by the Labor Commissioner.
(4) If the contractor or subcontractor is not registered pursuant to Section 1725.5 and is performing work on a project for which registration is not r equired because of subdivision (f) of Sect ion 1725.5, the unregistered contractor or subcontractor is not 106
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required to furnish the records specified in Section 177 6 directly t o the L abor Commissioner but shall retain t he records specified in Section 1776 fo r at least three years after completion of the work.
(5) The department shall undertake those activities it deems necessary to monitor and enforce compliance with prevailing wage requirements.
(b) The Labor Commissi oner may exempt a public works project fr om compliance with all or part of the requirements of subdivision (a) if either of the following occurs:
(1) The awarding body has enforced an approved labor compliance program, as defined in Section 1771.5, on all public works projects under its authority , except those deemed exempt pursuant to subdivision (a) of Section 1771.5, continuously since December 31, 2011.
(2) The awarding body has entered into a col lective bargaining agreement that binds all contractors performing work on the project and that in cludes a mechanism for resolving disputes about the payment of wages.
(c) The requirements of paragraph (1) of subdivision (a) shall only apply to contracts for public works projects awarded on or after January 1, 2015.
(d) The requirements of paragraph (3 ) of subdivision (a) shall apply to all contracts for public work, whether new or ongoing, on or after January 1, 2016.”
B. STATE PUBLIC WORKS APPRENTICESHIP REQUIREMENTS
1. State Public Works Apprenticeship Requirements:
a. The Contractor is responsible for comp liance with Labor Code section 1777.5 and the California Code of Regulations, title 8, sections 230 – 230.2 for all apprenticeable occupations (denoted with “#” sym bol next to craft name in DIR Prevailing Wage Determination), whether employed by the Contra ctor, subcontractor, vendor or consultant. Included in these requirements is (1) the Contractor’s requirement to provide notification (i.e. DAS-140) to the appropriate apprenticeship committees; (2) pay training fund contributions for each apprenticeable h our employed on the Contract; and (3) utilize apprentices in a mi nimum ratio of not less than one apprentice hour for each five journeyman hours by completio n of Co ntract work (unle ss an exception is granted in accordance with Labor Code section 1777.5) or request for the dispatch of apprentices. b. Any apprentices employe d to perform any of the Scope of Work shall be paid the standard wage to apprentices under t he regulations of the cr aft or trade for which such apprentice is employed, and such individual sha ll be employed only for the work of t he craft or trade to which s uch individual is registered. Only apprentices, as defined in California Labor Code section 3077, who are in training under apprenticeship standards and written apprenticeship agreements und er California Labor Code sections 3070 et seq. are eligible to be employed for the Scope of Work. The employment and training of each apprentice shall be in a ccordance with the pro visions of the apprenticeship standards and apprentice agreements under which such apprentice is training.
2. Compliance with California Labor Code secti on 1777.5 requires all public w orks contractors to:
a. Submit Contract Award Information (DAS-140):
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i. Although there are a few exemptions (identi fied below), all Contractors, regardless of union affiliation, must submit contract award in formation when performing on a California public works project.
ii. The DAS -140 is a notification “ann ouncement” of the Contractor’s partici pation on a public works project—it is not a request for the dispatch of an apprentice. iii. Contractors shall submit the con tract award information (you may use form DAS 140) within 10 days of the execution of the prime co ntract or subcontract, but in no event later than the first day in which the Contractor has workers employed on the public work.
iv. Contractors who are already a pproved to train apprentices (i.e. check “Box 1” on the DAS-140) shall only be required to submit the form to their approved program.
v. Contractors who are NOT approv ed to train apprentices (i.e. those that check either “Box 2” or “Box 3” on the DAS-140) shall submit the DAS-140 TO EACH of the apprenticeship program sponsors in the area of your public works project. For a listing of apprenticeship programs see
http://www.dir.ca.gov/Databases/das/pwaddrstart.asp.
b. Employ Registered Apprentices
i. Labor Code section 1777.5 requires that a cont ractor performing work in an “apprenticeable” craft must employ one (1) hour of apprentice work for every five (5) hours performed by a journeyman. This ratio shall be met prior to the Contractor’s completion of wo rk on the project. “Apprenticeable” craf ts are denoted with a pound symbol “#” in front of the craft name on the prevailing wage determination.
ii. All Contractors who do not fall within an exemption categ ory (see bel ow) must request for dispatch of an apprent ice from an apprenticeship program (for each apprenticeable craft or trade) by gi ving the program actual noti ce of at least 72 hours (business days only) before the date on which apprentices are required. iii. Contractors may use the “DAS-142” form for making a request for the dispatch of an apprentice.
iv. Contractors who are participating in an approved apprenticeship training program and who did not receive sufficient number of apprentices from their initial request must request dispatch of apprentices from ALL O THER apprenticeship committees in the project area in order to fulfill this requirement. v. Contractor should ma intain and submit proof (when requested) of its DAS -142 submittal to the apprenticeship comm ittees (e.g. fax transmittal confirmation). A Contractor has met its requirement to employ app rentices only after it has successfully ma de a dispatch request to all apprenticeship programs in the project area.
vi. Only “registered” apprentices may be paid the prevailing a pprentice rates and must, at all times work under the supervision of a Journeyman (Cal. Code Regs., tit 8, § 230.1).
c. Make Training Fund Contributions
i. Contractors performing in apprenticeable crafts on public works projects, must make training fund contributions in the amount established in the prevailing wage rate publication for journeymen and apprentices.
ii. Contractors may use the “CAC -2” form for submitt al of their training fund contributions.
iii. Contractors who do not submit their training fund c ontributions to an approved apprenticeship training pro gram must submit their contributions to the California Apprenticeship Council (CAC), PO Box 420603, San Francisco, CA 94142-0603. 108
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iv. Training fund contributions to the CAC are due and payable on the 15th day of the month for work performed during the preceding month. v. The “training” contribution amount identified on the prevailing wage determination shall not be paid to the worker, unless the worker falls within one of the exemption categories listed below.
3. Exemptions to Apprenticeship Requirements:
a. The follow ing are exempt from having to comply wit h California apprenticeship requirements. These types of contractors do not need to submit a DAS -140, DAS-142, make training fund contributions, or utilize apprentices:
i. When the Contractor holds a sole proprietor lic ense (“Owner-Operator”) and no workers w ere employed by the Contractor. In other words, the contractor performed the entire work from start to finish and worked alone. ii. Contractors performing in non -apprenticeable crafts. “Apprenticeable” crafts are denoted with a pound symbol “#” in front of the craft name on the prevailing wage determination.
iii. When the Contractor has a direct contract with the Public Agency that is under $30,000.
iv. When the project is 100 % federally-funded and the funding of the project does not contain any city, county, and/or st ate monies (unless the project is administered by a state agency in wh ich case the apprenticeship requirements apply).
v. When the project is a private project not c overed by the definition of public works as found in Labor Code section 1720.
4. Exemption from Apprenticeship Rations:
a. The Joint Apprenti ceship Committee shall have the discretion to grant a certificate, which shall be subject to the approval of the Adminis trator of Apprenticeship, exempting the Contractor from the 1-to-5 ratio set forth in this Sect ion when it finds that any one of the following conditions are met:
i. Unemployment for the previous three -month period in such area exceeds an average of fifteen percent (15%); or
ii. The number of apprentices in training in such area exceeds a ratio of 1 -to-5 in relation to journeymen; or
iii. The Apprenticeable Craft or Trade is rep lacing at least one -thirtieth (1/30) of its journeymen annually through apprenticeship train ing, either on a statewide basis or on a local basis; or
iv. If assignment of an apprentice to any work performed under the Contract Documents would create a condition which would jeopardize such apprentice's life or the life, safety or property of fellow empl oyees or the public at large, or if the specific task to which the apprentice is to be assigned is of such a nature that training cannot be provided by a journeyman.
b. When such exemptions from the 1 -to-5 ratio between apprentices and journeymen are granted to an organization which represents contractors in a sp ecific trade on a local or statewide bas is, the member contractors will not be re quired to submit individual applications for approval to local Joint Apprenticeship Committees, provided they are already covered by the local apprenticeship standards.
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5. Contractor’s Compliance:
a. The responsibility of compliance with this Section for all Apprenticeable Trades or Crafts is solely and exclusively that of the Contractor. All decisions of the Joint Apprenticeship Committee(s) under this Section are subject to the provisions of California Labor Code section 3081 and penalties are pursuant to Labor Code section 1777.7 and the determination of the Labor Commissioner.
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THE INFORMATION IN THIS BOX IS NOT A PART OF THE CONTRACT AND IS FOR COUNTY USE ONLY
County Administrative Office
Department Contract Representative Matthew Erickson, County Chief Financial Officer
Telephone Number (909) 387-5423
Contractor [City of Fontana]
DUNS No. [004949541]
UEI No. [WLF8LH1TH3P8]
Contractor Representative [Matt Ballantyne – City Manager] Telephone Number [909-350-7653]
Contract Term [5/1/2022] through [12/31/2024]
Original Contract Amount Based on actual project costs
Amendment Amount
Total Contract Amount Based on actual project costs
Cost Center 1100921078
Internal Order (If Applicable) TBD
CONTRACT BETWEEN SAN BERNARDINO COUNTY AND [CITY OF FONTANA] RELATED TO
THE AMERICAN RESCUE PLAN ACT AND THE CORONAVIRUS LOCAL FISCAL RECOVERY FUND
WHEREAS, on March 4, 2020, the State of California declared a state of emergency as a result of the Coronavirus Disease 2019 (COVID-19) outbreak and on March 13, 2020, by Proclamation 9994, the President declared a national emergency concerning the COVID -19 pandemic. The COVID -19 pandemic continues to cause significant risk to the public health and safety of the United States; and
WHEREAS, on March 11, 2021, the American Rescue Plan Act (ARPA) was signed into law by the President and the law is intended to combat the COVID-19 pandemic, including the public health and economic impacts; and
WHEREAS, pursuant to S ection 9901 of the ARPA, San Bernardino Cou nty (Coun ty) received a disbursement from the Unite d States Department of the Treasury of money associated with the Coronavirus Local Fiscal Recovery Fund (CLFRF) for Local Governments under Sect ion 603(a) [see 42 U.S.C. Section 803]; and
WHEREAS, the Cou nty agree d to comply with the United States Department of the Treasury Coronavirus State Fiscal Recovery Fund Award Terms and Conditions (Terms and Conditions), Contract Number
ARPA21-PRJC-016-FON
SAP Number
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including Assurance of Compliance with Title VI of t he Civil Rights Act of 1964 ( Assurance of Compliance with Civil Rights Requirements), identified in the U nited States Department of the Treasury and San Bernardino County Agreement (OMB Approved No. 1505 -0271) (U nited States Department of the Treasury Agre ement), which is on file with the County an d incorporated herein by this reference; and
WHEREAS, the Assistance Listing Number (ALN)/Federal Assistance Identification Number (FAIN) for the ARPA CLFRF is 21.027/SLT-0628 respectively; and
WHEREAS, the ARPA provides that payments from the CLFRF may be used for the following : i) to respond to the public health emergency with respect to COVID -19 or its negative economic impacts, including assistance to househol ds, small businesses, and nonprofits, or aid to i mpacted industries such as tourism, travel, and hospitality; ii) to respond to workers performing essential work during the COVID–19 public health emergency by providing premium pay to eligible workers that are performing such essential work, or by providi ng grants to eligible employers that have e ligible w orkers who perform essential work ; iii) for the provision of government services to the extent of the reduction in revenue due to the COVID –19 public healt h emergency relative to revenues collected in the most recent full fiscal year prior to the emergency; or iv) to make necessary investments in water, sewer, or broadband infrastructure; and
WHEREAS, funding provided under ARPA CLFRF must be obligated by D ecember 31, 2024 and expended by December 31, 2026; and
WHEREAS, the County desires to tra nsfer and [City of Fontana ] (Contractor) desires to accept a transfer from ARPA CLFRF in the amount of $ 530,000 for expenditures identified in Exhibit “A” related to [Veteran’s Park Improvements].
NOW, THEREFORE, in consideration of the above, the County and Contractor agree as follows:
1. THE ARPA CLFRF
A. This Contract applies to the following ARPA CLFRF transfers:
The transfer by the County of an amount not to exceed $530,000 to Contractor on a reimbursement basis for expenditures identified in Exhibit “A”. Exhibit “A” is attached hereto and incorporated herein by this reference. County acknowl edges and agrees that Contractor will be administering the transfer of funds for th e expen ditures identified in Exhibit “A” by separate contracts. Contractor shall provide the County quarterly reports of actual cash expenditures to date u nder this Contract, and estimated cash expenditures through December 31 st of each year. County, through its Chief Executive Officer (CEO), in the CEO’s sole discretion, reserves the rig ht to reduce the transfer amount identified in this Contract with fifteen (15) days advance written notice provided to Contractor. The reduction would be based: A) on Contractor’s estimated cash expenditures through December 31st of each year; B) a later d etermination by the United States Depa rtment of the Treasury, or County, that the costs identified in this Contract are ineligible for ARPA CLFRF; or C) a determination by CEO the funds should be utilized in a different manner.
B. Contractor certifies that the use of funds that will be submitted for reimbursement from the CLFRF under Paragraph 1. A. and Exhibit “A ” of this Contract will be used only to cover those costs that: i) ; are related to public health or negative economic impact eligible use and ii) were incurred during the period that begins [5/1/2022], and will end [12/31/2024]. For purposes of this Contract and pursuant to federal guidance, expended or obligated costs are costs incurred by Contractor during the time period referenced above that are allowable for reimbursement. Any cost obligated by Contractor as of December 31, 2024, must be 112
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expended by December 31, 2026, to meet the eligible costs timeframe as defined by the United States Department of the Treasury.
C. Contractor agrees that the funds provided pursuant to this Contract cannot be used: i) as a revenue replacement for lower than expected tax or other revenue collections; ii) for expenditures for which Contractor has rec eived any other emergency COVID -19 supplemental funding (whether federal, state, or private in nature) for that same expense ; or iii) as a deposit into any pension fund.
D. Contractor shall prepare and submit to County an invoice for reimbursement of eligibl e funding expenses identified in Paragraph 1.A., above. Invoices may be submitted to County as frequently as monthly. Invoices will be reviewed and approved for compliance with terms of this Contract. County shall reimburse to Contractor the amount of approved invoices submitted within sixty (60) days of receipt. If an invoi ce is rej ected, or revisions are requested, Contractor will work with County to submit the required revisions.
E. Both County and Contractor agree to comply with any and all ARPA CLFRF requirements, including but are not li mited to the terms included in this Contract, as well as any and all applicable Coun ty, Contractor, State, and Federal laws, regulations, policies and procedures pertaining to the funding described in this Contract. County and Contractor shall comply with Title 2 Code of Federal Regulations (C.F.R.) Part 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards), including, but not limited to, Title 2 C.F.R. Section 200.303 (internal control), Title 2 C.F.R. Sections 200.331 through 200.333 (subrecipient monitoring and management), and Title 2 C.F.R. Part 200 S ubpart F (audit requirements), as these sections currently exist or may be amended . The use of funds must also adhere to of ficial federal guidance issued or to be issued on what constitutes a n eligible expenditure. Any funds expended by Contractor or its subcontractor(s) in any manner that does not adhere to official federal guidance shall be returned to the County. Contractor agrees to comply with all official guidance regarding the ARPA CLFRF. County and Contractor also agree that as additional federal guidance becomes available, a n amendment to this Contract may become necessary. If an amendment is required, Contractor agree s to promptly execute the Contract amendment.
F. Contractor shall retain documentation of all uses of the funds, including but not limited to invoices and/or sales receipts in a manner consistent with Title 2 C.F.R. Section 200.334 (retention requirements fo r reco rds). Such d ocumentation shal l be produced to County upon request and may be subject to audit. Unless otherwise provided by Federal or State law (whichever is the most rest rictive), Contractor shall maintain all documentation connected with its performance under this Contract for a minimum of five (5) years from the date of the last payment made by County or until audit resolution is achieved, whichever is later, and to make all such supporting information available for inspection and audit by representatives of the County, the State o r the United States Government during normal business hours at Contractor. Copies will be made and furnished by Contractor upon written request by County.
G. Contractor shall establish and maintain an accounting system conf orming t o Genera lly Accepted Accoun ting Principles (GAAP) to support Contractor’s requests for reimbursement which segregate and accumulate costs of Contractor and produce monthly reports which clearly identify reimbursable costs, matching fund costs (if applicable), and other allowable exp enditures by Contractor. Contractor shall pr ovide a monthly report of expenditures under this Contract no later than the 20th day of the following month.
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H. Contractor shall cooperate in having an audit completed by County, at County’s option and expense. Any audit require d by A RPA CLFRF and its regu lation and United States Treasury guidance will be completed by Contractor at Contractor’s expense.
I. Contractor shall repay to County any r eimbursement for ARPA CLFRF funding that is determined by subsequent audit to be unallowable under the ARPA CLFRF within the time period required by the ARPA CLFRF, but no later than one hundred twenty (120) days of Contractor receiving notice of audit findings, which time shall include an opp ortunity for Contractor to respond to and/or resolve the findings. Should the f indings not be otherwise resolved and Contractor fail to reimburse moneys due County within one hundred twenty (120) days of audit findings, or within such other period as may b e agreed between both parties or re quired by the ARPA CLFRF, County reserves th e right to withhold future payments due Contractor from any source under County’s control.
J. Contractor shall accept all payments from County via electronic funds transfer (EFT) directly deposite d into the Contra ctor’s designated checking or other bank acc ount.
Contractor shall promptly comply with directio ns and accurately complete forms provided by County required to process EFT payments.
K. County is exempt from Federal excise t axes and no paymen t shall be made f or any personal property taxes levi ed on Con tractor or on any taxes levied on employee wages.
The County shall only pay for any State or local sales or use taxes on the services rendered or equipment and/or parts supplied to the County pursuant to the Contract.
L. Funds made available under t his Contr act shall not supplant any federal, state or any governmental funds intended for services of the same nature as this Contract. Contractor shall not claim reimbursement or paymen t from County for, or apply sums re ceived from County with respect to that portion of its obligations that have been paid by another source of revenue. Contractor agrees that it will not use funds received pursuant to this Contract, either directly or indi rectly, as a cont ribution or compen sation for purposes of obtaining funds from another revenue source without prior written approval of the County.
M. County shall only reimburse costs incurred through the dates identified in Exhibit “A”. Contractor requirem ents in Sections 1, 2 and 5 of this Contract shall survive the termination of this Contract. The costs to be reimbursed under this Contract do not include Research and Development as defined in Title 2 Code of Federal Regulations ( C.F.R.) Section 200.1, nor do they include indirect costs.
2. AMERICAN RESCUE PLAN ACT REQUIREMENTS
A. This C ontract may be funded in whole or in part with funds provided by the America n Rescue Plan Act - Coronavirus Local Fiscal Recovery Fund (ARPA), Federal Award Identification Number (FAIN): SLT-0628 and Assistance Listing Number (formerly known as a CFDA numb er): 21.027 , and therefore Contractor agrees to comply with any and all ARPA requirements in addition to any and all applicable County, State, and Federal laws, regulations, policies, and procedures pertai ning to the funding of this Contract. The use of the funds must also adhere to official federal guidance issued or to be issued on what constitutes a necessary expenditure. Any funds expended by Contractor or its subcontractor(s) in any manner that does n ot adhere to t he ARPA requirements shall be returned or repaid to the County. Any funds paid to Contractor: i) in excess of the amount to which Contractor is finally determined to be authorized to retain; ii) that are determined to have been misused; or i ii) that are d etermined to be subject to a r epayment obligation 114
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pursuant to section 603(e) of the Act and have not been repaid, shall constitute a debt to the federal government. Contractor agrees to comply with the requirements o f section 603 of the Act, regulations adopted by Treasury pursuant to the Act, and guidance issued by Treasury regarding the foregoing. Contractor shall provide for such compliance in any agreements with subcontractor(s).
B. Contractor agrees to comply with all applicable federal laws and regulations, including but not limited to all laws and regulations identified in Section 2 of the Contract.
C. In accordance with Title 2 C.F.R. Section 200.322, the non-Federal Contractor should, to the greatest extent pract icable under a Federal a ward, provi de a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subawards including al l contracts and purchase orders for work or products under this award. For purpose s of this section: “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from th e initial melting stage through the applicatio n of coatings, occurred in the United States. “Manufactured products” means items and construction materials composed in whole or in part of non -ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
D. In accordance wit h Title 2 C.F.R. Section 200.471, costs incurred for telecommunications and video surveillance services or equipment such as pho nes, internet, video surveillance, cloud servers are allowable except for the following circumstances: Obligating or expending covered telecommunications and video surveillance services or equipment or services (as described in 2 C.F.R. Section 200.216) to: 1) Procure or obtain, extend or renew a cont ract to procure or obtain; 2) Enter into a contract (or extend or renew a contract ) to procure; or 3) Obtain the equipment, services, or systems, as described in Title 2 C.F.R. Section 200.216 that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as pa rt of any system. As described in Public Law 115 -232, section 889, covered telecommunications equipment is telecommunications eq uipment pro duced by Huawei Technologies Compan y or ZTE Corporation (or any subsidiary or affiliate of such entities) and: (i) For the purpose of public safety, security of government facilities, physical security surveillance of cri tical infrastructure, an d ot her nat ional security purposes, video surv eillance and telecommunications equipment produced by Hytera Communications Corpor ation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entiti es); (ii) Telecommunications or video surveill ance services provided by such e ntities or using such equipment ; and (iii) Telecommunications or video surveillance equipment or services produced or provided by a n entity that the Secretary of Defense, in cons ultation with the Director of the National Int elligence or the Director of the Federal Bureau of Investigation, reasonably belie ves to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. In implementing the pro hibition under Public Law 115 -232, section 8 89, subsection (f), paragraph (1), heads of executive agencies administer ing loan, grant, or subsidy programs shall prioritize available funding and technical support to assist affected businesses, institutions a nd organizations as is reasonably n ecessary for those affected entities to transition from covered communications equ ipment and services, to procure replacement equipment and services, and to ensure that communications se rvice to users and customers is sustained.
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E. A non -Federal Contractor that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conse rvation and Recovery Act . The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at Title 40 C.F.R. Part 247 that contain the highest percentage of recovered materials practicable, consistent with mainta ining a satisfactory level of competition, whe re the purchase price of the item exceeds $10,000 or the value of the quantity acq uired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes en ergy and re source recovery; and establishing a n affirma tive procurement program for procurement of recovered materials identifie d in the EPA guidelines.
F. Byrd Anti-Lobbying Amendment (31 U.S.C. Section 1352) - Contractors that apply or bid for an award exc eeding $100,000 must file the required certifi cation. Each tier certifies to the tier above that it will not and has not used Fe deral appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or e mployee of Congress, or an employee of a member of Congress in connection with obt aining any Federal contract, grant or any other award covered by Title 31 U.S.C. Section 1352. Each tier must also disclose any lobbying with non-Federal funds that takes pla ce in con nection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.
G. Clean Air Act (42 U.S.C. Sections 7401-7671q.) and the F ederal Water Pollution C ontrol Act (33 U.S.C. Sections 1251-1389), as amended - Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non -Federal award to agree to comply with all applicable standards, orders o r regulations issued pur suant to the Clean Air Act (42 U.S.C. Sections 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. Sections1251-1389).
H. Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets t he definition of “funding agreement” under Title 37 C.F.R. Section 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a sma ll business firm or nonprofit organization regarding the substitution of parties, assignment or performa nce of experimental, developmental, or research work under that “funding agreement,” the Title 33 U.S.C. Sections 1251-1387 recipient or subrecipient mu st comply with the requirements of Title 37 C.F.R. Part 401, “Rights to Inventions Made by Nonprofit Org anizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.
I. Contract Work Hours and Safety Standards Act (40 U.S.C. Sections 3701-3708). Where applicable, all contracts awarded by the non-Federal Contractor in excess of $100,000 that involve the employment of mechanics or laborers must include a provi sion for compliance with Title 40 U.S.C. Sections 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. Part 5). Und er Title 40 U.S.C. Section 3702 of the Act, each contractor must be required to compute the wages of every mechanic a nd laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided th at the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in exces s of 40 hours in the work week.
The requirements of Title 40 U.S.C. Section 3704 are applicable to const ruction work and provide that no la borer or mechanic must be required to work i n surroundings or under working conditions which are unsanitary, hazardou s or dangerous to health or safety .
These requirements do not apply to the purchases of supplies or mate rials or articles 116
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ordinarily available on the open market, or contract s for tra nsportation or transmission of intelligence.
J. Davis-Bacon Act, as amende d (40 U.S.C. Sections 3141-3148). When required by Federal program legislation, all prime construction c ontracts in excess of $2 ,000 awarded by non- Federal entities must incl ude a pro vision for compliance with the Davi s-Bacon Act (40 U.S.C. Sections 3141-3148) as supplemented by Department of Labor regulations (29 C.F.R. Part 5, “Labor Standards Provisions A pplicable to Contracts C overing Fed erally Financed and Assisted Constr uction”). In accordance with the statute, contractors must be required to pay wage s to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determinati on made by the Secretary of Labor. In addition, contractors must be re quired to pay wages not less than once a week. The non -Federal contractor must pla ce a copy of the current prevailing wage determination issued by the Department of Labor in each solicit ation. The decision to a ward a contract or subcontract must be conditi oned upon the acceptance of the wage determination. The non -Federal Contractor must report all suspected or reported violations to the Federal awarding agency.
The contracts must also in clude a provision for co mpliance wi th the Copeland “Anti - Kickback” Act (18 U.S.C. Section 874 and 40 U.S.C. Section 3145), as supplemented by Department of Labor regulations (29 C.F.R. Part 3, “Contractors and Subcontractors on Public Building or Public Wo rk Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work , to give up any part of the compensation to which he or she is otherwise entit led. The non -Federal contractor must report all suspected or reported violations to the Federal awarding agency.
i. The Contractor and all Subcontractors and Sub -subcontractors are required to pay their employees and workers a wage not less than the minimum wage for the work classification as specified in both the Federal and Cali fornia wage decisions. See Exhibit “B” for additional information regarding California Prevailing Wage Rate Requirements and the applicable general prevailing wage determinat ions which are on file with the County and are available to any interested party on request . The higher of the two applicable wage determinations, either California prevailing wage or Da vis-Bacon Federal prev ailing wage, will be enforced fo r all applicable work/services under this Contract.
K. Contracts for more than the simplified ac quisition threshold, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Co uncil and the Defense Acquisition Regulations Council (Councils) as au thorized by Title 41 U.S.C. Section 1908, must address administrative, contrac tual, or leg al remedies in instances where Contractors violate or breach contract terms, and provide for suc h sanctions and pena lties as appropriate.
L. All contracts in excess of $10,000 must address termination for cause and for convenience by the non -Federal Contractor including the manner by which it will be effected and the basis for settlement.
M. Equal Employment Opportunity. Ex cept as otherwise provided under Title 41 C.F.R. Part 60, all contracts that meet the definition of “federally assisted const ruction contract” in Title 41 C.F.R. Section 60-1.3 must include the equal opportunity clause provided under Title 41 C.F.R. Section 60-1.4(b), in accordance with Executive Order 11 246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal 117
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Employment Opportunit y,” and implem enting regulations at 41 C.F.R. part 60, “Off ice of Federal Contract Compliance Programs, Equal Employment Opportu nity, Department of Labor.” The identified clause is below and Contractor shall comply with the clause and a ll legal requiremen ts a nd include the equal opportunity clause in each of its n onexempt subcontracts.
i. The applicant hereby agrees that it will inc orporate or cause to be incorporated into any contract for construction work, or modification thereof, as def ined in the regulations of the Secretary of Labor at Title 41 C.F.R. Chapter 60, which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan, insurance, or guarantee, or under taken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following equal opportunity clause:
During the performance of this contract, the contractor agrees as follows:
(1) T he contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gen der identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that e mployees are treated during employment without rega rd to their race, color, religion, sex, sexual orientation, gender identity, or national origin.
Such action shall include, but not be limited to the following: Employment, upgrading, de motion, or transfer ; re cruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employe es and applicants f or e mployment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, i n all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicant s wi ll receive consideration for employment without regard t o race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant h as inquired about, discussed, or disclosed the compensation of the employee o r applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses th e compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complai nt or cha rge, in furtherance of an investigation, proceeding, hearing, or act ion, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
(4) The contractor will send to each labor un ion or re presentative of workers with which he has a collective bargaining ag reement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section, a nd shall post copies of the notice in conspicuous places available to employees and applicants for employment.
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(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pur suant thereto, and will permit access to his b ooks, records, and accounts by the administering agency and the Secr etary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulation s, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ine ligible for fu rther Government contracts or federal ly assist ed construction contracts in accordance with procedures authorized i n Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked a s provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisio ns will be binding upon each subc ontractor or vendor.
The contractor w ill take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, howe ver, that in t he event a contractor becomes involve d in, or is threatened with, litigation with a subcontractor or vendor as a r esult of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunit y clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the appl icant so participating is a State or local gov ernment, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate act ively with the administering agency and the Secretary of Labor in obtaining t he compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they m ay require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Go vernment 119
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contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be impo sed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these under takings, the admini stering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the pr ogram with respect to w hich the f ailure or refund occurred until satis factory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
N. Data Collection Requirements – Contractor agrees to collect pre-post data per County, and United States Treasury guidelines and timeline, for project tracking and monitori ng and various rep orting purposes. Data inclu ding, but not limited to: Required Project Demographic Distribution Data; Required Performance Indicators and Programmatic Data ; Required Expen diture Report Data; and Required Program Evaluation Data. Contracto r agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data tha t needs to be avai lable to County, State or Federal governments upon request.
O. Data Submission Requirements - Contractor agrees to furnish data to the County up on request, per County, and U nited States Treasury guidelines and timeline, for project tracking and monitoring an d various reporting purposes. Data including, but no t limited to:
Required Project Demographic Distribution Data; Required Perf ormance I ndicators and Programmatic Data ; Required Expenditure Report Data; Required Program Evaluation Data. Contractor agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data that needs to be available at request.
P. Project Progress Reporting - Contractor agrees to provide project timeline and progress updates to th e County up on request, per Coun ty, and United States Treasury guidelin es and timeline. Contractor agrees to routine and impromptu program and pro ject evaluation by the County.
Q. Uniform Administrative Requirements, Cost Principles, and Audit Requirements fo r Federal Awards, Title 2 C.F.R. Part 200, other than such provisions as Treasury may determine are inapplicable and subject to such exceptions a s may be otherwise provided by Treasury.
Subpart F – Audit Requirements of the Uniform Guidance, implementing t he Single Audit Act, shall apply.
R. Universal Identifier and System for Award Management (SAM), Title 2 C.F.R. Part 25.
S. Reporting Subaward and Executive Compensation Information, Title 2 C.F.R. Part 170.
T. OMB Guidelines to Agencies on Governmentwide Debarm ent and Suspensi on (nonprocurement), title 2 C.F.R. Part 180, includin g the req uirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 C.F.R. Part 180, subpart B) that the award is subject t o Title 2 C.F.R. Part 180 and Treasury’s implementing regulation at Title 31 C.F.R. Part 19. Debarment and Suspension (Executive Orders 12549 and 12689) - A contract award (see 2 CFR Section 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award 120
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Management (SAM), in accordance with th e OMB guidelines at Title 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 C FR part 1 989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions co ntains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
U. Recipient Integrity and Performance Matters, pursuant to which the award terms set forth in Title 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference.
V. Government Requirements for Drug-Free Workplace, Title 31 C.F.R. Part 20.
W. New Restrictions on Lobbying, Title 31 C.F.R. Part 21.
X. Uniform Relocation Assistance and Real Property Acquis itions Act of 1970 (42 U.S.C.
Sections 4601-4655) and implementing regulations.
Y. Applicable Federal environmental laws and regulations.
Z. Statutes and regulations prohibiting discrimination include, without limitation, the following:
i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. Sections 2000d et seq.) and Treasury’s i mplementing re gulations at Title 31 C.F.R. Part 22, which prohibits discrimination on the basis of race, color, or national orig in under programs or activities receiving federal financial assistance.
ii. The Fair Housing Act, Title VIII of the Civ il Rights Act of 1968 (42 U.S.C. Sections 3601 et seq.), which prohibi ts discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability. iii. Section 504 of the Rehabilitation Act of 1973, as amended (29 U. S.C. Section 794), which prohibits discrimination on the basis of disa bility under any program or activity receiving federal financial assistance.
iv. The Age Discrimination Act of 1975, as amended (42 U.S.C. Sections 6101 et seq.), which prohibits discriminat ion on the basis of disab ility unde r programs, activities, and service s provide d or made available by state and local governments or instrumentalities or agencies thereto.
v. Title II of the Americans with Disabilities Act o f 1990 , as amended (42 U.S.C.
Sections 12101 et seq.), whi ch prohibit s discrimination on the basis of di sability under programs, activities, and services provided or made a vailable by state and local governments or instrumentalities or agencies thereto.
AA. Contractor understands that making false statements or c laims in conn ection with the ARPA funded activit ies is a violation of federal law and may result in criminal, civi l, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from participating in fede ral awards or contracts, an d/or any other remedy available by law.
BB. Any publications produced with ARPA funds must display the f ollowing language: “This project [is being] [was] supported, in whole or in part, by federal award number SLT-0628 awarded to San Bernardino County by the United States Department of Treasury.”
CC. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 19 97), Contractor is being encouraged to adopt and enforce on -the-job seat belt policies and programs for their employees when operating company-owned, rented, or personally owned vehicles. 121
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DD. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Cont ractor is being encouraged to adopt and enforce policies that ban text messaging while driving and establishing workplace safety policies to decrease accidents caused by distracted drivers.
EE. As a re cipient of federal financial assistance, the Civil Right s Restoration Act of 1987 applies, and Contractor and all subrecipients assures that it:
i. Ensures its current and future c ompliance w ith Title VI of the Civi l Rights Act of 1964, as amended, w hich proh ibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs and activities receiving federal funds, of any person in the United States on the ground of race, colo r, or national origin (42 U.S.C. Sections 2000d et seq.), as implemented by the Department of the Tr easury Title VI regulations at Title 31 CFR Part 22 and other pertinent executive orders such as Executive Order 13166, d irectives, circulars, policies, memoranda and/or guidance documents.
ii. Acknowledges that Executive Order 13166, “Improving Access to Serv ices for Persons with Limited English Proficiency,” seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, have Limited English proficiency (LEP). Contractor understands that denying a person access to its programs, services, and activities, because of LEP is a form of national origin discrimination prohibited u nder Title VI of the Civil Rights Act of 1964 and the Department of th e Treasur y’s implementing regulations. Contractor shall initiat e reasonable steps, or comply with the Department of the Treasury’s directives, to ensure LEP persons have meaningful acces s to its programs, services, and activities. Contractor understands an d agrees that meaningful access may entail provide language as sistance services, including oral interpretation and written translation where necessary, to ensure effective communication. iii. Agrees to consi der the need for l anguage services for LEP persons du ring development of applicable budgets and when conducting pr ograms, services, and activities.
iv. Agrees to maintain a complaint log of any complaints of discrimination on the grounds of race, color, or national origin, and limited English proficiency covere d by Title VI of the Civil Rights Act and implementing regu lations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome.
FF. The Contractor m ust include the following language in every contract or agreement subject to Title VI and its regulations:
“The sub -grantee, contractor, successor, transferee, and assignee shall comply with Title VI of the Civil Rights Act of 1964, which prohibits recipie nts of federal financial assistance from exc luding a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, colo r, or nation origin (42 U.S.C.
Section 2000d et seq.) , as implemented by the Department of the Treasury’s Title VI regulations, 31 CFR Part 22, which are herein incorporated by refe rence and made a part of this contract (or agreement). Title VI also includes protection to persons with “Limited English Profi ciency” in any program or activity rec eiving federal f inancial assistance, 42 U.S.C. Sections 2000d et seq., as implemented by the Department of the Treasury’s Title VI regulations, 31 CFR Part 22, and herein incorporated by reference and made a part of this contract or agreement.”
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GG. Contractor shall cooperate in any enforcement or compl iance review activities by the County and/or t he Department of the Treasury. Contractor shall comply with information requests, on-site compliance reviews, and reporting requirements.
HH. Contractor shall maintain r ecords and financial documents suff icient to evidence compliance with section 603(c), r egulations adopted by Treasury implementing those sections, and guidance issued by Treasury regarding the foregoing.
II. County has the right of access to records (electronic or otherwise) of Contractor in order to conduct audits or other investigations.
JJ. Contractor shall maintain records for a period of five (5) years after the completion of the contract or a period of five (5) years after the last reporting date the County is obligated with the Department of the United States Treasury, whichever is later.
KK. Contractor must disclose in writing any potential conflict of interest in accordance with Title 2 C.F.R. Section 200.112.
LL. In accordance with Title 41 U.S.C. Section 4712, subrecipient or Contractor may no t discharge, demote, or otherwise discrimin ate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that th e em ployee reasonably believes is evidenc e of gross mismanagement of a feder al contract or grant, a gross waste of federal funds , an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, o r a violation of law, rule, or regulation related to a federal contract (inc luding th e competition for or negotiation of a contract) or grant.
The list of persons and entities referenced in the paragraph above includes the following: (i) A member of Congr ess or a representative of a committee of Congress; (ii) An Inspector General; (iii) The Government Accountability Office; (iv) A Treasury employee responsible for contract or grant oversight or management; (v) An authorized official of the Department of J ustice or othe r law enforcement agency; ( vi) A court or grand jury; or (vii) A management officia l or other employee of recipient, subrecipient, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct.
Subrecipient or Contractor shall inform its emp loyees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.
MM. County and Contractor acknowledge that if additional federal guidance is issued, an amendment to this Contract may be necessary. In the event any of the terms in this Section 2 conflict with any other terms in the Contract, the terms in this Section 2 shall control.
3. GENERAL CONTRACT REQUIREMENTS
A. Recitals
The recitals set forth above are true and correct and incorporated herein by this reference.
B. Contract Amendments
Contractor agrees any alterations, variations, modifications, or waivers of the provisions of the Contract, shall be valid only when reduced to writing, executed and attached to t he original Contract and approved by the person(s) authorized to do so on behalf of Contractor and County.
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C. Contract Assignability
Without the prior written consent of the County, the Contract is not assignable by Contractor either in whole or in part.
D. Contract Exclusivity
This is not an exclusive Contract. The County reserves the right to enter into a contract with other c ontractors for the same or similar services. The County does not guarantee or represent that the Contractor will be permitted to perform any minimum amount of work, or receive compensation other than on a per order basis, under the terms of this Contract.
E. Attorney’s Fees and Costs
If any legal action is instituted to enforce any party’s rights hereunder, each party shall bear its own costs and attorney fees, regardless of who is the prevailing party. This paragraph shall not apply to those costs and attor ney fees directly arising from a third -party legal action against a party hereto and payable under Indemnification and Insurance Requirements.
F. Background Checks for Contractor Personnel
Contractor shall en sure that its personnel (a) are authorized to work in the jurisdiction in which they are assigned to perform services; (d) do not use legal or illegal substances in any manner w hich will impact their ability to provide services; and (c) are not otherwise disqualified from performing the services under ap plicable law. If requested by the County and not in violation of applicable law, Contractor shall conduct a background check, a t Contractor’s sole expense, on all its perso nnel providing services. If request ed by the County, Contractor shall provide the r esults of the background check of each individual to the County. Such background check shall be in the form generally used by C ontractor in its initial hiring of employees o r contracting for contractors or, a s applica ble, during the employment-screening process but must, at a minimum, have been performed within the preceding 12 -month period. Contractor personnel who do not meet t he C ounty’s hiring criteria, in County’s sole d iscretion, shall not be assigned to work on County property or services, and Coun ty shall have the right, at its sole option, to refuse access to any Contract personnel to any County facility.
G. Change of Address
Contractor shall notify the County in writi ng, of any change in mailing addres s within ten (10) business days of the change.
H. Choice of Law
This Contract shall be governed by and construed according to the laws of the State of California.
I. Confidentiality
Contractor shall protect from unauthorized use or disclosure names and other identifying information concerning persons rec eiving services pursuant to this Contract, except for statistical information not identifying any participant. Contractor shall not use or disclose any identifying information for any other purpose other than c arrying o ut the Contractor's obligations under this Contract, except as may be otherwise required by law. This provision will remain in force even after the termination of the Contract.
J. Primary Point of Contact
Contractor will designate an individual to s erve as t he primary point of contact for the Contract. Contractor or designee must respond to County inquiries within two (2) business 124
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days. Contractor shall not change th e primary contact without written acknowledgement to the County. Contractor will also designate a back -up point of contact in t he event the primary contact is not available.
K. Rule of Construction
The parties agree that this Contract and all agreements or documents incorporated herein shall not be subject to the rule of construction that a written agreement is construed against the party preparing or drafting that agreement.
L. County Representative
The Chief Executive Officer or his/her designee shall rep resent the Cou nty in all matters pertaining to the s ervices to be rendered under this C ontract, including termination and assignment of this Contract, and shall be the final authority in all matt ers pertaining to the services/scope of Work by Contractor. If t his contra ct w as initially approved by the San Bernardino County Board of Supervisor s, then t he Board of Supervisors must ap prove all amendments to this Contract.
M. Damage to County Property
Contractor shall repair, or cause to be repaired, at its own cost, all dama ges to County vehicles, facilities, buildings or grounds caused by the willful or negligent acts of Contractor or its employees or agents. Such repairs shall be made immediately after Contractor becomes aware of such damage, but in no event later than thi rty ( 30) days after the occurrence.
If the Contractor fails to make timely repairs, the County may make any neces sary repairs.
The Contractor, as determined by the County, shall repay all costs incurred by the County for such repairs, by cas h payment upon demand, or County may deduct such costs from any amounts due to the Contra ctor from the County, as determined at the County’s sole discretion.
N. Debarment and Suspension
Contractor certifies that neither it nor its principals or subcontracts is presently debarred, suspended, proposed for debarme nt, declared ineligible, or volunta rily excl uded from participation in thi s transaction by any federal department or agency. (See the following United States General Services Administration’s System fo r Award Manage ment website https://www.sam.gov). Contractor further certifies that if it or any of its subcontractors are business entities that must be registered with the California Secretary of State, they are registered and in good standing with the Secretary of State. An subcontracts funded by this Contract shall be with vendors that meet this certification and registration requirement.
O. Drug and Alcohol Free Workplace
In recognition of individual ri ghts to work i n a safe, healthful and productive work place, as a mater ial condition of this Contract, the Contractor agrees that the Contract or and the Contractor’s employees, while performing service for the County, on County property, or while using County equipment:
i. Shall not be in any way impaired because of being under the influence of alcohol or an illegal or controlled substance.
ii. Shall not possess an open container of alcohol or consume alcohol or possess or be under the influence of an illegal or controlled substance.
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iii. Shall not sel l, offer, or provide alcohol or an illegal or controlled substance to another person, except where Contrac tor or Contractor’s employee who, as part of the performance of normal job duties and responsibilities , prescribes or administers medically prescribed drugs.
The Contractor shall infor m all employees that are performing service for the County on County property, or using County equipment, of the County’s objective of a safe, healthful and productive work place and the prohibition of drug or alc ohol use or impairment from same while performing such service for the County.
The County may terminate for defau lt or breach of this Contract and any other Contract the Contractor has with the County, if the Contractor or Contractor’s emplo yees are determined by the County not to be in compliance with above.
P. Duration of Terms
This Contract, and all of its terms an d conditions, shall be binding upon and shall inure to the benefit of the heirs, executors, administrators, successors, and assi gns of the respective parties, provided no such assignmen t is in violation of the provisions of this Contract.
Q. Discrimination
During the term of the Contract, Contractor shall not discriminate against any employee or applicant for employment because of r ace, religious creed, color, national origin, ancestry, physical disability, mental disabili ty, medical condition, genetic infor mation, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, or military and veteran status . Contractor shall com ply with Executive Orders 11246, 11 375, 11625, 12138, 12432, 12250, 13 672, Titl e VI and Title VII of the Civil Rights Act of 1964, the California Fair Employment and Housing Act and other applicable Federal, State and County laws and regulations a nd polici es relating to equal employment and contracting opportunities, including laws and regulations hereafter enacted.
R. Improper Influence
Contractor shall make all reasonable efforts to ensure that no County officer or employee, whose position in the County enables him/her to influence any award of the Contract or any competing offer, shall have any direct or ind irect financial interest resulting from the award of the Contract or shall have any relationship to the Contractor or officer or employee of the Contractor.
S. Improper Consideration
Contractor shall not offer (either dire ctly or t hrough an intermediary) an y improper consideration such as, but not limited to cash, discounts, service, the provision of travel or entertainment, or any items of value to any officer, employee or agent of the Co unty in an attempt to secure favorable treatment regarding this Contract.
The County, by written notice, may immediately terminate this Contract if it determines that any improper consideration as described in t he preced ing paragraph was offered to any officer, employee or agent of the Cou nty with respect to the proposal an d award process.
This prohibition shall apply to any amendment, extension or evaluation process once a contract has been awarded.
Contractor shall immediately report any attempt by a Co unty officer, employee or agent to solicit (either directly or throug h an intermediary) improper consideration from Contractor. 126
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The report shall be made to the supervisor or manager charged with s upervision of the employee or the County Administrative Offi ce. In the event of a termination u nder this provision, the County is entitled to pursue any available legal remedies.
T. Informal Dispute Resolution
In the event the County determines that servic e is unsatisfactory, or in the event of any other dispute, cl aim, question or disagreement arisi ng from o r relating to this Cont ract or breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mut ual interests, attempt to reach a just and equitable solution satisfactory to both parties.
U. Legality and Severability
The parties’ actions under the Contract shal l comply with all applicable laws, rules, regulations, court orders and governmenta l agency orders. The provisions of this Contract are specifically made severable. If a provision of the Contract is terminated or held to be invalid, illegal or u nenforceable, the validi ty, legality and enforceability of the remaining provisions shall remain in full effect.
V. Licenses, Permits and/or Certifications
Contractor shall ensure that it has all necessary licenses, permits and/or certifications required by the laws of Federal, St ate, County, and municipal laws, or dinances, rules and regulations. The Contrac tor shall maintain t hese licenses, permits and/or certifications in effect for the duration of this Contract. Contractor will notify County immedia tely of loss o r suspension of any such licenses, permits and/or c ertifications. Failure to maintain a required license, permit a nd/or certification may result in immediate termination of this Contract.
W. Material Misstatement/Misrepresentation
If during th e co urse of th e administration of this Contract, the County deter mines that Contractor has made a ma terial mi sstatement or misre presentation or that materially inaccurate information has been provided to the County, this Contract may be immediately terminated. If this Contract is termi nated according to this provision, the County is entitled to pursue any available legal remedies.
X. Mutual Covenants
The parties to this Contract mutually covenant to perform all of their obligations hereunder, to exercise al l di scretion a nd rights granted hereunder, and to give all consent s in a reasonable manner consistent with the standards of “good faith” and “fair dealing”.
Y. Nondisclosure
Contractor shall hold as confidential and use reasonable care to prevent unauthorized access by, storage, disclosure, publication, dissemination to and/or use by third parties of, confidential information that is either: (1) provided by the County to Contractor or an agent of Contractor or otherwise made available to Contractor or Contractor’s agent in connection with this Contract; or, (2) acquired, ob tained, or learned by Contractor or an agent of Contractor in the performance of this Contract. For purposes of this provision, confidential information means any data, files, software, information or materials in oral, electronic, tangible or intangible form and however stored, compiled or memorialize and includes, but is not limited to, technology infrastructure, architecture, financial data, trade secrets, equipment specifications, user lists, passwords, research data, and technology data.
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Z. Notice of Delays
Except as otherwise provided he rein, when either party ha s knowledge that any actual or potential situation is delaying or threatens to delay the timely performance of this contract, that p arty shall , within twenty -four (24) hours, give notice thereof, including all relevant information with respect thereto, to the other party.
AA. Ownership of Documents
All documents, data, products, graphics, computer programs and reports prepared by Contractor pursua nt to the Contract shall be considered property of th e County upon payment for services (and prod ucts, if applicab le). All such items shall be delivered to County at the completion of work under the Contract. Unless otherwise directed by County, Contractor may retain copies of such items.
BB. Air, Water Pollution Control, Safety and Health
Contractor sh all comply with all air pollution control, water pollution, safety and health ordinances and statutes, which apply to the work performed pursuant to this Contract.
CC. Records
Contractor shall maintain all records a nd books pertaining to the delivery of services under this Contract and demonstrate accountability for contract performance. All records shall be complete and current and comply with all Contract requi rements. Failure to maintain acceptable records shall b e considered grounds for withholdin g of paym ents for invoi ces submitted and/or termination of the Contract.
All records relating to the Contractor’s personnel, consult ants, subcontracto rs, services/scope of Work and expe nses pertaining to this Contract sh all be kept in a generally acceptab le accoun ting format. Records should include primary source documents. Fiscal records shall be kept in accordance with Generally Accepted Accounting Principles and must account for all funds, tangible assets, revenue and expenditures. Fiscal records must c omply wit h the appro priate Office of Management and Budget (OMB) Circulars, which state the administrative requirements, cost principles and other s tandards for accountancy.
DD. Relationship of the Parties
Nothing contained in this Contract shall be construed as creat ing a joint venture, partnership, or employment arrangement between the Parties hereto, nor shall either Party have the right, power or aut hority to create an obligation or duty , expressed or implied, on behalf of the other Party hereto.
EE. Release of Information
No n ews releases, advertisements, public announcements or photographs arising out of the Contract or Contractor’s relationship with County may be made or used without pri or written approval of the County.
FF. Representation of the County
In the performance of this Contract, Contractor, its agents and employees, shall act in an independent capacity and not as officers, employees, or age nts of the San Bernardino County.
GG. Strict Performance
Failure by a party to insist upon the strict performan ce of any of the provisions of this Contract by the other party, or the failure by a party to exercise its rights upon the default of 128
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the other party, shall not constitute a waiver of such party’s right to insist and dema nd strict compliance by the other party with the terms of this Contract thereafter.
HH. Subcontracting
Contractor shall obtain County’s written consent, which County may withhold in its sole discretion, before entering into Contracts with or otherwise engagi ng any subcontractors who may suppl y any par t of the services to County. At County’s request, Contractor shall provide information regarding the subcontractor’s qualifications and a l isting of a subcontractor’s key person nel including, if requested by the County, resumes of proposed subcontractor pe rsonnel. Contractor shall remain directly responsible to County for its subcontractors and shall indemnify County for the actions or o missions of it s subcontractors under the te rms and conditions specified in S ection 5. All approved subcontractors shall be subject to the provisions of this Contract applicable to Contractor Personnel.
For any subcontractor, Contractor shall:
i. Be responsible for subcontractor compliance with the Co ntract and the subcontract terms and conditions; and
ii. Ensure that the subcontractor follows County’s reporting formats and procedures as specified by County.
iii. Include in the subcontractor’s subcontract substantially similar terms as are provided in this Contract.
Upon expiration or termina tion of this Contract for any reaso n, County will have the right to enter into direct Contracts with any of the Subcontractors. Contractor agrees that its arrangements with Sub contractors wi ll not prohibit or restrict suc h Subcontractors from entering into direct Contracts with County.
II. Subpoena
In the event that a subpoena or other legal process commenced by a third p arty in any way concerning the goods or services provided under this Contract is served upon Contractor or County, such party agrees to not ify the other party in the most exp editious fashion possible following receipt of such subpoena or other legal process. Contractor and County further agree to cooperate with the other party in any lawful effort by such other party to contest the legal validity of such subpoena or other legal process commenced by a third party as may be reasonably required and at the expense of the party to whom the legal process is directed, except as otherwise provided herein in connection with defense obligations by Contractor for County.
JJ. Termination for Convenience
The County reserves the right to terminate the Contract, for any reason, with a thirty (30) day written notice of termination. The County’s Chi ef Executive Officer is autho rized to terminate this Contract. Such termination may include all or part of t he services described herein. Upon such termination, payment will be made to the Contractor for services rendered and expenses reasonably incurred prior to the effective date of termination. Upon receipt of termi nation notice Contractor shall prom ptly disc ontinue services unless the notice directs otherwise. Contractor shall deliver promptly to County and transfer title (if necessary) all completed work, and work in progress, inc luding drafts, documents, plans, forms, data, products, graphics, computer programs and reports.
KK. Time of the Essence
Time is of the essence in performance of this Contract and of each of its provisions. 129
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LL. Venue
The parties acknowledge and agree that th is Contract was entered into and in tended to be performed in San Berna rdino County, California. The parties agree that the venue of any action or claim brought by any party to this Contract will be the Superior Court of California, San Bernardino County, San Bernardino District. Each party hereby waives any law or rule of the court, which would allow them to request or demand a change of venue. If any action or claim concerning this Contract is brought by any third party an d filed in another venue, the part ies hereto agree to use their best efforts to obtain a change of venue to the Superior Court of California, San Bernardino County, San Bernardino District.
MM. Conflict of Interest
Contractor shall make all rea sonable effort s to ensure that no conflict of in terest exists between its officers, employees, or subcontractors and the County. Contractor shall make a reasonable effort to prevent employees, Contractor, or members of governing bodies from using their positions for purposes that are, or give the appear ance of being motivated by a desire for private gain for themselves or others such as those with whom they have family business, or other ties. Officers, employees, and agents of cities, counties, districts , an d other local agencies are subject to applicable conflict of interest codes and state law. In the event the County d etermines a conflict of interest situation exists, any increase in costs, associated with the conflict of interest situation, may be di sallowed by the County and such conflict may consti tute grounds for termination of the Contract. This provision shall not be construed to prohibit employment of persons with whom Contractor’s officers, employees, or agents have family, business, or other ties so long a s the employment of such persons does not result in increased costs over those associated with the employmen t of any other equally qualified applicant.
NN. Copyright
County shall have a royalty-free, non-exclusive and irrevocable license to publish, disclose, copy, translate, and otherwise use, copyright or patent, now and herea fter, all reports, studies, information, data, statistics, forms, designs, plans, procedures, systems, and any other materials or properties developed under this Contrac t in cluding th ose covered by copyright, and reserves the right to authorize others to u se or reproduce such material. All such materials developed under the terms of this Contract shall acknowledge the San Bernardino County as the funding agency and Contr actor as the c reator of the publication.
No such mate rials, or properties produced in wh ole or in part under this Contract shall be subject to private use, copyright or patent right by Contractor in the United States or in any other country without the exp ress written consent of County. Copies of all educati onal and training materials, curric ula, audio/visual aids, printer mat erial, and periodicals, assembled pursuant to this Contract must be filed with the County prior to publication.
OO. Iran Contracting Act
IRAN CONTR ACTING ACT OF 2010, Public Contract Code Sections 2200 et seq. (Applicable for all Contracts of one million do llars ($1 ,000,000) or more). In accord ance with Public Contract Code Section 2204(a), the Contractor certifies that at the time the Contract is s igned, the Contractor signing the Contrac t is not identified on a list creat ed pursuant to subdivision (b) of Public Contract Code Section 2203 as a person (as defined in Public Contract Code Section 2202(e)) engaging in investment activities in Iran described in subdivisi on (a) of Public Contrac t Code Section 2202.5, or as a pers on described in subdivision (b) of Public Contract Code Section 2202.5, as applicable.
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Contractors are cautioned that making a false certification may subject the C ontractor to civil penalties, termination of existing c ontract, and ineligibility to bid o n a contract for a period of three (3) years in accordance with Public Contract Code Section 2205.
PP. California Consumer Privacy Act
To the extent applicable, if Contractor is a business that collects the personal information of a consumer(s) in performing services pursuant to this Contract, Contractor must comply with the provisions of the California Consumer Privacy Act (CCPA). (Cal. Civil Code Sections 1798.100, et s eq.). For pu rposes of this provision, “business,” “cons umer,” and “personal information” s hall have the same meani ngs as set forth at Civil Code Section 1798.140. Contractor must contact the County immediately upon receipt of any request by a consumer su bmitted pursuant to the CCPA that requires any action on the part of the County, including b ut not limited to, providing a list of discl osures or deleting personal information. Contractor must not sell, market or otherwise disclose personal information of a consumer provided by the County unless specifically aut horized pursuant to terms of this Contract. Contractor must immediatel y provide to the County any notice provided by a consumer to Con tractor pursuant to Civil Code Section 1798.150(b) alleging a vi olation of the CCPA, that involves personal information re ceived or maintained pursuant to th is Contract. Contractor must immedi ately notify the County if it receives a notice of violation from the California Attorney General pursuant to Civil Code Section 1798.155(b).
QQ. Prevailing Wage Laws
By its execution of t his Contract, Contractor certifies that it is aware of the requirem ents of California Labor Code Sections 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 require ments on cer tain “public works” and “maintenance” projects. Section 1720 of the California Labor Code states in part: “For purp oses of this p aragraph, ‘construction’ includes work performed during the design, site assessment , feasibility study, and other preconstruction phases of construction including, but not limited to, inspection and land surveying work…” If the services/scope of Work are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wag e Law s, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall m ake copies of the prevailing rates of per diem wag es for each craft, classification o r type o f worker needed to ex ecute the services available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the project site. Contractor will also adhere to a ny other applicable requirements, including but not limited to, those regarding the employment of apprentices, travel and subsistence pay, retention and inspection of payroll records, workers compensation a nd forfeiture of penalties prescribed in the Labor Code for violations.
Contractor sh all defend, indemnify and ho ld the County, i ts elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, pena lties or interest arising out of any failure or alleged failure t o comply with Prevailing Wage Laws.
See Exhibit “B”, which is attached and incorporated by reference, for additional information regarding Prevailing Wage Laws. Contractor shall comply with all applicable terms and conditions in Exhibit “B”. The applicable general prevailing wage determinat ions are on file with the County and are available to any interested party on request. Contractor shall post a copy of the applicable prevailing wage determinations at the job site.
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4. TERM OF CONTRACT
This Contract is e ffective as of the date last signed by authorized representatives of a ny party (Effective Date), requires all incurred obligations by December 31, 2024, and expires on December 31, 2026, but may be terminated earlier in accordance with the provisions of th is Contract.
5. INDEMNIFICATION AND INSURANCE REQUIREMENTS
A. Indemnification
The Contractor agrees to indemnify, defend (with counsel reasonably approved by County) and hold harmless the County and its authorized officers , em ployees, age nts and volunteers from any and all claims, actions, losse s, damages and/or liability arising out of this Contract from any cause wh atsoever, including the acts, errors or omissions of any person and for any costs or expenses incurred by th e Co unty on acco unt of any claim except where such indemnification is proh ibited by law. This indemnification provision shall apply regardless of t he existence or degree of fault of indemnities. The Contractor indemnification obligation applies to the Co unty’s “active” as well as “passive” negl igence but does not apply to the Co unty’s “sole negligence” or “willfu l miscond uct” wi thin the meaning of Civil Code Section 2782.
B. Insurance
[OPTION A] Contractor and County are authorized self -insured public entities for purposes of Professional Liability, General Liability, Automobile Liability, Worker’s Compensation and Property Damage and warrant that through their respective programs of self -insurance, they have adequate coverage or resources to protect against liabilities ari sing out of the performance of the terms, conditions or obli gations of this Contract. – I believe we wa nt OPTION A as is typical for the City.
[OPTION B] Contractor agrees to provide insurance set forth in accordance with the requirements herein. If Contractor uses existing coverage to comply w ith these requirements and that coverage does not meet the spec ified require ments, Contractor agrees to amend, supplement, or endorse the existing coverage to do so.
Without in anyway affecting the indemnity herein provided and in addition ther eto, Contractor shall secure and maintain throughou t the Contract term the following types of insurance with limits as shown:
i. Workers’ Compensation/Employer’s Liability – A program of Workers’ Compensation insurance or a state -approved, self-insurance program in an amount and form to meet all applicable r equirements of the Labo r Code of the State of California, including Employer’s Liability with $250,000 limits covering all persons including volunteers providing services on behalf of the Contractor and all risks to such persons under this Contract.
If Contractor has no employees, it may ce rtify or warrant to the County that it does not currently have any employees or individuals who are defined as “employees” under the Labor Code and the requirement for Workers’ Com pensation coverage will be waived by the Contractor’s Director of Risk Management.
With respect to Contractors that are non-profit corporations organized under California or Federal law, volunteers for such entities are required to be covered by Workers’ Compensation insurance.
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ii. Commercial/General Liability Insurance – Contractor shall carry General Liability Insurance co vering all operations performed by or on behalf of Contractor providing coverage for bodily injury and property damage with a combined si ngle limit of not less than one million dollars ($1,000,000), per occurrence. The policy coverage shall include:
a. Premises operations and mobile equipment.
b. Products and completed operations.
c. Broad form property damage (including completed operations). d. Explosion, collapse and underground hazards.
e. Personal injury.
f. Contractual liability.
g. $2,000,000 general aggregate limit.
iii. Automobile Liability Insurance – Primary insurance coverage shall be written on ISO Business Auto coverage form for all owned, hired and n on-owned automob iles or symbol 1 (any aut o). The policy shall have a combined single limit of not less than one million dollars ($1,000,000) for bodily injury and property damage, per occurrence.
If Contractor is transporting one or more non -employee passengers in perfo rmance of Contract services, the automob ile liabi lity policy s hall have a combined single limit of two million dollars ($2,000,000) for bodily injury and property damage per occurrence.
If Contractor owns no autos, a non -owned auto endorse ment to the Gene ral Liability policy described above is acceptable.
iv. Umbrella Liability Insurance – An umbrella (over primary) or excess policy may be used to comply with limits or other primary coverage requirements. When used, the umbrella policy shall apply to bodily injury/property damage, personal injury/advertising injury and shall include a “dropdown” provision provid ing primary coverage for any liability not covered by the primary policy. The coverage shall also apply to automobile liability.
v. [if applicable] Professional Liability – Professional Liabili ty Insurance with limi ts of not less than one million ($1,000,000 ) per claim and two million ($2,000,000) aggregate limits
or
Errors and Omissions Liability Insurance – Errors and Omissions Liability Insurance with limits of not less than o ne million ($1 ,000,000) and two mill ion ($2,000,000) aggregate limits
or
Directors and Officers Insurance coverage with limits of not less than one million ($1,000,000) shall be required for Contr acts with charter labor committees or ot her not- for-profit organizations advising or acting on behalf of the County.
If insurance coverage is provided on a “claims made” policy, the “retroactive date” shall be shown and must be before the date of the stat e of the contract work. The claims made insurance shall be maintained or “tail” coverage provided for a minimum of five (5) years after contract completion.
vi. [if applicable] Construction contracts for projects over one million ($1,000,000) and less than three million ($3,000,000) require limits of not less than th ree million ($ 3,000,000) in General Liability and Auto Liability coverage.
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Construction contracts for projects over three million ($3,000,000) and less than five million ($5,000,000) require limi ts of not less t han five million ($5,000 ,000) in General Liability and Auto Liability coverage.
Construction contracts for projects over five million ($5,000,000) require limits of not less than ten million ($10,000,000) in General Liability and Auto Liability.
Continuing Products/Completed Operations Liabilit y Insurance wi th a limi t of not less than five million ($5,000,000) for each oc currence for at least three years following substantial completion of the work on projects over one million ($1,000,000).
Subcontractor Insurance Requiremen ts. The Contractor agrees to requ ire all p arties or subcontractors, including architects or others it hires or contracts with related to the performance of this contract to provide insurance covering the contracted o perations with t he basic requ irements identified in Paragra ph 5 .A (indemnification) and the insurance specif ications for all contracts in in Paragraph 5.B (including waiver of subrogation rights) , and naming the County as an additional insured. The Contrac tor agrees to monitor and review all such coverage and assumes all responsibility ensuring that such coverage is provided as required here.
Course of Construction/Installation (Builder’s Risk) property insurance providing all risk, including theft covera ge f or all prope rty and materials to be used on the project . The insurance policy shall not have any coinsurance penalty.
vii. [if applicable] Cyber Liability Insurance – Cyber Liability Insurance with limits of no less than $1,000,000 for each occurrence or e vent with an ann ual aggregate of $2,000, 000 covering privac y violations, information theft, dam age to or destruction of electronic information, intentional and/or unintentional release of private information, alteration of electronic information, extortion and network sec urity. The policy shall protect the involved County entities and cover breach response cost as well as regulatory fines and penalties.
viii. [if applicable ] Abuse/Molestation Insurance – Contractor shall have abuse or molestation insurance providing coverage for all employees for the actual or threatened abuse or mol estation by anyone of any person in the care, custody, or control of any insured, including negligent employment, investigation and supervision. The policy shall provide coverage for both defense and indemnity with liability limits of not les s than one million dollars ($1,000,000) with a two million dollars ($2,000,000) aggregate limit.
ix. Additional Insured – All policies, except for Worker’s Compensation, Errors and Omissions and Pro fessional Liabil ity policies shall conta in additional endorse ments naming t he County and its offi cers, employees, agents and volunteers as a dditional named insured with respect to liabilities arising out of the performance of services hereunder. The additional insured en dorsements shall not lim it the scope of covera ge for the Cou nty to vi carious liabi lity but shall allow coverage for the Count y to the full extent provided by the policy. Such additional insured coverage shall be at least as broad as Additional Insured (Form B) endorsement form ISO, CG 2010.11 85.
x. Waiver of Subroga tion Righ ts – Contractor shall require the carriers of required coverages to waive all rights of subrogation against the County, its officers, employees, agents, volunteers, contractors, and subc ontractors. All general or auto liability 134
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insurance coverage provided shall not pro hibit Contractor and Contractor’s employees or agents from waiving the right of subrogation prior to a loss or claim. Contractor hereby waives all rights of subrogation against the County.
xi. Policies Primary and Non -Contributory – All policies required herein are to be primary and non -contributory w ith any insurance or self -insurance programs carried or administered by the County.
xii. Severability of Interests – Contractor agrees to ensure that covera ge provided to meet these requirements is applicable separately to each insured and there will be no cro ss liability exclusions that preclude coverage for suits between Contractor and the County or between the County and any other insured or additional insured under the policy.
xiii. Proof of Coverage – Contractor shall furnish Certificates of Insurance to the Department administering the Contract evidencing the insurance coverage at the time the Contract is executed, addi tional end orsements, as required shall be provided prior to the commencement of performance of servic es hereunder, which certificates shall prov ide that such insurance shall not be terminated or expire without thirty (30) days written notice to the Departm ent, and Contractor shall maintain such insurance from the time Contractor commences performance of services hereunder until the completion of s uch services. Within fifteen (15) days of the commencement of this Contract, Contractor shall furnish a co py of the Declaration page for all applicable policies and will provide complete certified copies of the policies and endorsements immediately upon request.
xiv. Acceptability of Insurance Carrier – Unless otherwise approved by Risk Management, insurance shall be w ritten by insure rs authorized to do business in the State of California and with a minimum “Best” Insurance Guide rating of “A- VII”.
xv. Deductibles and Self -Insured Retention – Any and all deductibles or self -insured retentions in excess of $10,000 sha ll be declared to and approved by Risk Management.
xvi. Failure to Procure Coverage – In the event that any policy of insurance required under this Contract does not comply with the requirements, is not procured, or is canceled and not replaced, the County has the right but not th e obligation or duty to cancel the Contract or obt ain insurance if it dee ms necessary and any premiums paid by the County will be promptly reimbursed by Contractor or County payments to Contractor will be reduced to pay for County purchased insurance.
xvii. Insurance Review – Insurance requirements are subject to periodic r eview by the County. The Director of Risk Management or designee is authorized, but not required, to reduce, waive or suspend any insurance requirements whenever Risk Manageme nt determines that any of the required insurance is not available, is unreasonably priced, or is not ne eded to protect the interests of the County . In addition, if the Department of Risk Management determines that hereto fore unreasonably priced or unavail able types of in surance coverage or coverage limits become reasonabl y priced or av ailable, the Director of Risk Management or designee is authorize d, but not required, to change the above insurance requirements to require additional types of insurance cove rage or higher c overage limits, provided that any such change is rea sonable in lig ht of pas t claims against the County, inflation, or any other item reasonably related to the County’s risk.
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Any change requiring additiona l types of insurance coverage or hi gher coverage limits must be made by amendment to this Contract. Contractor agrees to execute any such amendment within thirty (30) days of receipt.
Any failure, actual or alleged, on the part of the Coun ty to monitor or enforce compliance with any of th e in surance and indemnification requirements will not be deemed as a waiver of any rights on the part of the County.
6. RIGHT TO MONITOR AND AUDIT
A. The County, State and Federal government shall have absolute right to review and audit all records, books, pape rs, documents, c orporate minutes, and other pertinent items as requested, and shall have absolute right t o monitor the performance of Contractor in the delivery of services provided under this Contract. Con tractor shall give full cooperation, in any auditi ng o r monitoring conducted. Contractor shall cooperate with the Count y in the implementation, monitoring, and evaluation of this Contract and comply with any and all reporting requirements established by the County.
B. All records pertaining to services delivered and all fiscal, statistical and management books and records sh all be availab le for ex amination and audit by County representatives for a period of three years after final payment under this Contract or until all pending County, State and Federal audits are completed, whichever is later.
7. CORRECTION OF PERFORMANCE DEFICIENCIES
A. Failure by Co ntractor to c omply with any of the provisions, covenants , requirements or conditions of this Contract shall be a material breach of this Contract.
B. In the event of a non-cured breach, County may, at its sole discretion and in addition to any other remedies available at law, in equity, or otherwise specified in this Contract:
i. Afford Contractor thereafter a time perio d within which to cure the breach, which period shall be established at the sole discretion of County; and/or ii. Discontinue reimbursemen t to Cont ractor for an d during the period in which Contractor is in breach, which reimbursement shall not be entitled to l ater recovery; and/or
iii. Withhold funds pending duration of the breach; and/or iv. Offset against any monies billed by Contract or but yet unp aid by Co unty those monies disallowed pursuant to Item “B” of this paragraph; and/or v. Terminate this Contract immediately a nd be relieved of the payment of any consideration to Contractor. In the event of such termination, the County may proceed with the work in any manner deemed proper by the County. The cost to the County shall be deducted from any sum due to the Contracto r under this Contract and the balance, if any, shall be paid by the Contractor upon demand.
8. NOTICES
All written notices provided for in this Contract or which either party desires to give to the other shall be deemed fully given, when made in writing and either served personally, or by facsimile, or deposited in the Uni ted States mail, postage prepaid, and addressed to the o ther party as follows:
San Bernardino County
County Administrative Office – 4th Floor
385 N. Arrowhead Avenue
San Bernardino, CA 92415
City of Fontana
8353 Sierra Ave.
Fontana, CA 92335
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Notice shall be deemed communicated two (2) Co unty working days from the tim e of mailing if mailed as provided in this paragraph.
9. ENTIRE AGREEMENT
This Contract, including all Exhibits and other attachme nts, which are attached hereto and incorporated by reference, and other documents incorporated her ein, represents the final, complete and exclusive agreement betwee n the parties hereto. Any prior agreement, promises, negotiat ions or representations relatin g to the subject matter of this Contract not expressly set forth herein are of no force or effect . This Contract is executed wit hout reliance upon any promise, warranty or representation by any party or any representative of any party other than those expr essly contained herein. Each party has carefully read this Contract and signs the same of its own free will.
10. CONTRACT EXECUTION
This Contract may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute one and the same Contract. The parties shall be entitled to sign and transmit an elec tronic signature of this Contract (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Each party providing an electronic signature agrees to promptly execute and deliver to the other party an original signed Contract upon request.
IN WITNESS WHEREOF, the San Bernardino County and [City of Fontana ] have each caused this Contract to be subscribed by its respective duly authorized officers, on its behalf.
FOR COUNTY USE ONLY
Approved as to Legal Form Reviewed for Contract Compliance Reviewed/Approved by Department
County Counsel
SAN BERNARDINO COUNTY
(Print or type name of corporation, company, contractor, etc.)
By
Leonard X. Hernandez, Chief Executive Officer (Authorized signature - sign in blue ink) Dated:
Name
(Print or type name of person signing contract)
Title
(Print or Type)
Dated:
Address
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Date Date Date
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EXHIBIT A
SCOPE OF EXPENDITURES
[SEPARATELY ATTACHED]
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EXHIBIT B
PREVAILING WAGE REQUIREMENTS
A. All or a portion of the Scope of Work in the Contract r equires the payment of prevailing wages and compliance with the following requirements:
1. Determination of Prevailing Rates:
Pursuant to Labor Code sections 1770, et se q., the County has obtained fr om the Director of the Department of Industrial Relations (D IR) pursuant to t he California Labor Code, the general prevailing rates of per diem wages and the prevailing rates for holiday and overtime work in the locality in which the Scope of Work is to be performed. Copies of said rates are on file with the County, will be made available for inspection during regular business hours, may be includ ed elsewhere in the specifications for the Scope of Work, and are also available online at www.dir.ca.gov. The wage rate for any classification not listed, but which may be required to execute the Scope of Wor k, shall be commensurate and in accord with specified rates for similar or comparable class ifications for those performin g similar or comparable duties. In accordance with Labor Code section 1773 .2, the Contractor shall post, at appropriate and conspicuous locations o n the job site, a schedule showing all applicable prevailing wage rates and sha ll comply with the requirement s of Labor Code sections 1773, et seq.
2. Payment of Prevailing Rates
Each worker of the Contractor, or any subcontractor, engaged in the Scope of Work, shall be paid not less than the general prevailing wage rate, regardless of any contractual relationship which may be alleged to exist between the Contractor or an y subcontractor, and such worker.
3. Prevailing Rate Penalty
The Contractor sh all, as a penalty, forfeit two hundred dollars ($200.00) to the County for each calendar day or portion thereof, for each worker paid less than the prevailing rates as determined b y th e Director of the DIR for such work or craft in which such worker is employed by the Contractor or by any subcontractor in connection with the Scope of Work.
Pursuant to California Labor Code s ection 1775, the difference between such prevailing wage rates and the amou nt paid to each worker for each calendar day, or portion the reof, for which each worker was paid less than the prevailing wage rate, shall be paid to e ach worker by the Contractor.
4. Ineligible Contractors:
Pursuant to the provisions of Lab or C ode section 1 777.1, the Labor Commissioner publishes and distributes a l ist of co ntractors ineligible to perform work as a contractor or subcontractor on a public works project. This list of de barred contractors is available from the DIR website at http://www.dir.ca.gov/Public-Works/PublicWorks.html. Any contract entered into between a contractor an d a debarred subcontractor is void as a matter of law.
A debarred subcontractor may no t re ceive any pub lic money for performing work as a subcontractor on a public w orks contract, and any public money that may have been paid to a debarred subcontractor by a contractor on the project sh all be returned to the County.
The Contractor shall be responsible for t he payment of wages to workers as a debarred subcontractor who has been allowed to work on the Scope of Work.
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5. Payroll Records:
a. Pursuant to California Labor Code section 1776, the Contractor and each subcontractor, shall keep accurate certified payroll records, showing the name, address, social security number, wor k classif ication, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each j ourneyman, apprentice, worker or other employee employed b y them in connect ion with the Scope of Work. The payroll records enumerated herein shall be verified by a written declaration made under penalty of perjury that the information contained in the payroll record is true and correct and that the Contractor or subcontractor ha s complied with the requirements of the California Labor Code sections 1771, 1811, and 1815 for any Scope of Work performed by his or her employees. The payroll records shall be avai lable for inspection at all reasonable hours at the principal office of the Contractor on the following basis:
i. A certified copy of an e mployee's payroll record shall be made available for inspection or furnished to such employ ee or his/her authorized representative on request;
ii. A certified copy of all payroll re cords shall be ma de available for inspection or furnished upon request to the C ounty, th e D ivision of Labor Standards Enforcement of the DIR;
iii. A certified copy of payroll records shall be made availabl e upon request to the public for inspection or copies th ereof made; provi ded, however, that a request by the public shall be made throu gh either the County or the Division of Labor Standards Enforcement. If the requested payro ll records have not been previously provided to the County or the Division of Labor S tandards Enforcement, the requesting party shall, prior to being provided the re cords, reimburse the cost of preparation by the Contractor, subcontractor and the entity through which the request was ma de; the public shall not be given access to such records at the principal office of the Contractor; iv. The Contractor shall file a certifi ed copy of the payroll records with the entity that requested such records within ten (10) days after receipt of a written request; and v. Copies provided to the public, by the Co unty or the Divis ion of Labor Standards Enforcement shall be marked or obliterat ed in suc h a manner as to prevent disclosure of an individual's name, address and social se curity number. The name and ad dress of the Contractor or any subcontractor, performi ng a part of the Scope of Work shall not be marked or obliterated. The Contractor shall inform the County of the location of payroll records, including the street address, city and county and shall, within five (5) working days, provide a notice of a change of location and address.
b. The Contractor shall have ten (10) days from receipt o f the wri tten notice specifying in what respects the Contractor must comply with the above requirements. In the event Contractor does not comply with the requirements of thi s section within the ten (10) day period, the Contractor shall, as a penalty to the County, forfeit one -hundred dollars ($100.00) for each calendar day, or portion thereof, f or each worker, until strict compliance is effectuated. Upon the request of the D ivision of Labor Standards Enforcement, such penalty shall be withheld from any port ion of the payments then due or to become due to the Contractor.
6. Limits on Hours of Work:
Pursuant to California Labor C ode section 1810, eight (8) hours of labor shall con stitute a legal day's work. Pursuant to California Labor Code section 1811, the time of service of any worker employed at any time by the Contractor or by a subcontractor, up on the Scope of Work or upon a ny part of the Scope of Work, is limited and restri cted to eight (8) hours during any one calendar day and forty (40) hours during any one calendar week, except as 141
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provided for under Labor Code section 1815. Notwithstanding th e foregoing provisions, work performed by employees of Contractor or any subcont ractor, in excess of eight (8) hours per day and forty (40) hours during any one week , shall be p ermitted upon compensation for all hours worked in excess of eight (8) hours pe r day at not less than one and one-half (1½) times the basic rate of pay.
7. Penalty for Excess Hours:
The Contractor shall pay to the County a penalty of twenty -five dollars ($25.00) for each worker employed on the Scope of Work by the Contractor or any sub contractor, for each calendar day during which such worker is required or permitt ed to work more than eight (8) hours in any calendar day and forty (40) hours in any one calendar week, in violation of the provisions of the California Labor Code, unless com pensation to the worker so emp loyed by the Contractor is not less than one and on e-half (1½) times the basic rate of pay for all hours worked in excess of eight (8) hours per day.
8. Senate Bill 854 (Chapter 28, Statutes of 2014) and Senate Bill 96 (Chapter 28, Statutes of 2017) Requirements:
a. Contractor shall comply with Senate Bill 854 and S enate Bill 96 . The requirements include, but are not limited to, the following:
i. No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the DIR pursuant to Labor Code section 1725.5, with limited exceptions from this requirements for bid purposes only as allowed under Labor Code section 1771.1(a).
ii. No contractor or subcontractor may be awarded a contract for public wo rk or perform work on a public works project unless registered with the DIR pursu ant to Labor Code section 1725.5.
iii. This project is subject to compliance monitoring and enforcement by the DIR. iv. As required by the DIR, Contractor is required to post job site notices, as prescribed by regu lation, regarding compliance monitoring and enforce ment by the DIR.
v. Contractors and all subcontractors must submit certified payroll re cords online to the Labor Commissioner for all public works projects.
1) The certified payroll must be submitted at least mo nthly to the Labor Commissioner.
2) The County reserves the right to require Contractor and all subcontractors to submit certified payroll records more frequently than monthly to the Labor Commissioner.
3) The certified payroll reco rds must be in a format prescr ibed by the Labor Commissioner.
vi. Registration with t he DIR and the su bmission of certified payroll records to the Labor Commissioner are not req uired if the public works project is $25,000 or less when the project is for constr uction, alteration, demolition , installation or repair work, or if the public wor ks project is $15 ,000 or less when the project is for maintenance work.
b. Labor Code section 1725.5 states the following:
“A contractor shall be registered pursuant to this se ction to be qualified to bid o n, be listed in a bid proposal, subject to the requ irements of Secti on 4104 of the Public Contract Code, or engage in the performance o f any public work contract that is subject to the requirements of this chapter. For the pur poses of this section, “contra ctor” includes a subcontractor as defined by Section 1722.1.
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(a) To qualify for registration under this section, a contractor shall do all of the following:
(1) (A) Register with the Department of Industrial Relations in the manner prescribed by the department and pay an initial nonrefundable application f ee of four hundred dollars ($400) to qualify for registration under this section a nd an ann ual renewal fee on or before July 1 of each year thereafter. The annual renewal fe e shall be in a uniform amount set by the Director of Industrial Relations, and the initial registra tion and renewal fees may be adjusted no more than annually by th e directo r to support the costs specified in Section 1771.3.
(B) Beginning June 1, 2019, a contractor may register or re new according to this subdivision in annual increments up to three year s from the date of registration.
Contractors who wish to do so w ill be re quired to prepay the applicable nonrefundable application or renewal fees to quali fy for the number of years for which they wish to preregister.
(2) Provide evidence , disclosures, or releases as are necessary to establish all of the following:
(A) Workers' compensation coverage that meets the requirements of Division 4 (commencing with Section 3200) and includes s ufficient coverage for any worker whom the contractor e mploys to perform work that is subject to prevailing wage requirements other than a contr actor who is separately registered under this section. Coverage may be evidenced b y a current and valid certific ate of workers' compensation insurance or certification of self-insurance required under Section 7125 of the Business and Professions Code.
(B) If applicable, the contractor is licensed in accordance with Chapter 9 (commencin g with Section 7000) of the Business and Professions Code.
(C) The contractor does not have any delinquent liability to an employee or the state for any assessment of back w ages or related damages, interest, fines, or penalties pursuant to any final judgm ent, order, or determination b y a court or any federal, state, or local administrative agency, including a confirmed arbitration award. However, for purposes of this paragraph, the contractor shall not be disqualified for any judgment, order, or determinat ion that is under appeal, prov ided that the contractor has secured the payment of any a mount eventually found due through a bond or other appropriate means.
(D) The contractor is not currently debarred under Section 1777.1 or under any other federal or state law providing for the debarment of contractors from public works.
(E) The contractor has not bid on a public works contract, been listed in a bid proposal, or e ngaged in the pe rformance of a contract for public works without being lawfully registered in accordance with this sectio n, within the preceding 12 months or since the effective date of the require ments set forth in subdivision (e), whichever is earlier. If a contractor is found to be in violation of the requ irements of this paragraph, th e period of disqualification shall be waived if both of the following are true:
(i) The contractor has not previously been found to be in violation of the requirements of this paragraph within the preceding 12 months.
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(ii) T he contractor pays an addition al nonrefundable penalty registration fee of two thousand dollars ($2,000).
(b) Fees received pursuant to this section shall be deposi ted in the State Public Works Enforcement Fund established by Section 1771.3 and shall be u sed only for the purposes specified in that section.
(c) A contractor who fails to pay the r enewal fee requir ed under paragraph (1) of subdivision (a) on or before the expir ation of an y prior period of registration shall be prohibited from bidding on or e ngaging in the performance of any contract for public work until once again registered pursuant to this section. If the failure to pay the renewal fee was inadvertent, the contractor may renew its registration retroactively by paying an additional nonrefun dable penalty renewal fee equa l to the amount of the renewal fee within 90 days of the due date of the renewal fee.
(d) If, after a body awarding a contract accepts the cont ractor's bid or awards the contract, the work covered by the bid or contract is de termined to be a public work t o which Section 1771 applies, either as the result of a determin ation by the dire ctor pursuant to Section 1773.5 or a court decision, the requirements of this section shall not apply, subject to the following requirements:
(1) The body that awarded the co ntract failed, in the bid specification or in the contract documents, to identify as a public work that portion of the work that the de termination or decision subsequently classifies as a public work.
(2) Within 20 days follo wing service of notice on the awarding body of a determination by the Director of Industrial Rel ations pursuant t o Section 1773.5 or a decision by a court that the contract was for public work as defined in this chapter, the contractor and any subcontractors are registered under this s ection or are replaced by a contractor or subcontractors who are registered under this section.
(3) The requirements of this section s hall apply prospectively only to any subsequent bid, bid proposal, contract, or work perfor med after the awarding body is served with notice of the determination or decision referred to in paragraph (2).
(e) The requirements of this section shall apply to any bid proposal submitted on or after March 1, 2015, to any contract for public work, as defined in this chapter, executed on or after April 1, 2015 , and to any work performed under a con tract for public work on or after January 1, 2018, regardless of when the contract for public work was executed.
(f) This section does not apply to work per formed on a public works proje ct of twenty - five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.”
c. Labor Code section 1771.1 states the following:
“(a) A contra ctor or subcontractor shall not be qualified to b id on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Publ ic Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless c urrently registered and qualified to perform publ ic work p ursuant to Sectio n 1725.5. It is not a violation of this section for an unregister ed contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by 144
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Section 10164 or 20103.5 of the Public Contract Code, p rovided t he contractor is registered to perform public work pursuant to Section 1725.5 at t he time the contract is awarded.
(b) Notice of the requirement described in subdivision (a) shall b e in cluded in all bid invitations and public works contracts, and a bid shall not be accepted nor any contract or subcontract entered into without proof of the contractor or subcontracto r's current registration to perform public work pursuant to Section 1725.5.
(c) An inad vertent error in listing a subcontractor who is not regi stered pursuant to Section 1725.5 in a bid proposal shall not be grounds for filin g a bid protest or grounds for considering the bid nonresponsive, provided that any of the following apply:
(1) The subcontractor is registered prior to the bid opening.
(2) Within 24 hours aft er the bid opening, the subcontractor is registered and has p aid the penalty registration fee specified in subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5.
(3) The subcontractor is replaced by another r egistered subcontractor pursuan t to Section 4107 of the Public Contract Code.
(d) Failure by a subcontractor to be regis tered to perform public work as required by subdivision (a) shall be grounds under Section 4107 of the Public Contract Code for the contractor, with the consent of the awarding authority, to substitute a subcontractor who is r egistered to perform public wo rk pursuant to Section 1725.5 in place of the unregistered subcontractor.
(e) The department shall maintain on its Internet Web site a list of contractors who are currently registered to perform public work pursuant to Section 1725.5.
(f) A contract entered into with any contractor or subcontractor in violation of subdivision (a) shall be subject to cancellation, provided that a contrac t for public work shall not be unlawful, void, or voidable solely due to the failure of the awarding body, contractor, or any subcontractor to comply with the requirements of Section 1725.5 or this section.
(g) If t he Labor Commissioner or his or her desi gnee dete rmines that a contractor o r subcontractor engaged in the performance of any public work contract without having been registered in accordance with this section, the contractor or subcontract or s hall forfeit, as a civil penalty to the state, one hu ndred dollars ($100) for each day o f work performed in violation of the registration requir ement, not to exceed an aggreg ate penalty of eight thousand dollars ($8,000) in addition to any penalty regi stration fee assessed pursuant to clause (ii) of subparag raph (E) of paragraph (2) of subdivision (a) of Section 1725.5.
(h)(1) In addition to, or in lieu of, any other penalty or sanction authorized pursuant to this chapter, a higher tiered public works c ontractor or subc ontractor who is found to have entered into a subcontract with an unregistered lower tier subcontractor to perform any public work in violation of the requireme nts of Section 1725.5 or this section shall be subject to forfeiture, as a civi l penalty to the state, of one hundred dollars ($100) fo r each da y t he unregistered lower ti er subcontractor performs work in violation of the 145
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registration requirement, not to e xceed an aggregate penalty of ten thousand dollars ($10,000).
(2) The Labor Com missioner shall u se the same standards specified in sub paragraph (A) of paragraph (2) of sub division (a) of Section 1775 when determining the seve rity of the violation and what penalty to assess, and may waive the penalty for a first time violation that wa s unintentional and did not hinder the Labor Commission er’s ability to monitor and enforce compliance with the requirements of this chapter.
(3) A higher tiered public works c ontractor or subcontractor shall not be liable for penalties assessed pursuant to paragraph (1) if the lower tier subcontractor’s performance is in violation of the requirem ents of Section 1725.5 due to the revocation of a previously approved registration.
(4) A subcontractor shall not be liable for any penalties assessed against a hig her tiered public works contractor or subcontractor p ursuant t o p aragraph (1). A higher tie red public works contractor or subcontractor may not require a lower tiered subcontractor to indemnity or otherwise be liable for any penalties pursuant to paragraph (1).
(i) The Labor Commissioner or his or her desig nee shall issue a civil wage and penalt y assessment, in accordance with the provisions of S ection 1741, upon determinatio n of penalties pursuant to subdivision (g) and subparagraph (B) of paragraph (1) o f subdivision (h) . Review of a civil wage and penalty assessment issued under this subdivision may be requested in accordance with the provision s of Section 1742. The regulations of the Director of Industrial Relations, which govern proceedings for revie w of civil wage and penalty assessments and the withhol ding of contract payments under Article 1 (commencing with Section 1720) and Article 2 (com mencing with Section 1770), shall apply.
(j)(1) Where a contractor or subcontractor engages in the performance of any public work contract without having been regis tered in violation of the requirements of Section 1725.5 or this section, the Labor Commiss ioner shall issue and serve a stop order prohibiting the use of the unregistered contractor or the unregistered subcontractor on all public works until the unregiste red contr actor or unregistered subcont ractor is registered. The stop order shall not apply to work by registered contract ors or subcontractors on the public work.
(2) A stop order may be personally ser ved upon the cont ractor or subcontractor by either of the following methods:
(A) Manual delivery of the order to the contractor or subcontractor personally.
(B) Leaving sign ed copies of the order with the person who is apparently in charge at the site of t he public work an d by thereafter mailing copies of t he order by first class mail, postage prepaid to the contractor or subcontractor at one of the following:
(i) The addres s of the contractor or subcontractor on file with either the Secretary of State or the Contractors’ State License Board.
(ii) If the c ontractor or subcontractor has no address on file with the Secretary of State or the Contractors’ State License Board, the address of the site of the public work. 146
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(3) The stop order shall be effective immed iately upon servi ce and shall be subject to appeal by the party contracting with the unregistered contractor or subcontractor, by the unregistered contractor or subcontrac tor, or both. The appeal, hearing, and any further review of the hearing decision sh all be governed b y the procedures, time limits, and other requirements specified in subdivision (a) of Section 238.1.
(4) Any employee of an unregistered contractor or sub contractor who is affected by a work stoppage ordered by the commissioner pursuant to this subdivision shall be paid at his or her regu lar hourl y p revailing wage rate by that em ployer for any hours the employee would have worked but for the work stoppage, not to exceed 10 days.
(k) Failure of a contractor or subcontractor, owner, directo r, officer, or ma naging agent of the contractor or subcontractor to observe a stop order iss ued and served upon him or her pursuant to subdivision (j) is guilty of a misdemeanor punishable by imprisonment in county jail not exceeding 60 days or by a fine n ot e xceeding ten thousand dollars ($10,000), or both.
(l) This section shall apply to any bi d proposal submitted on or after March 1, 2015, and any contract for public work entered into on or after April 1, 2015. This section shall also apply to the perfor mance of any publ ic work, as defined in this chap ter, on o r a fter January 1, 2018, regardless of when the contract for public work was entered.
(m) Penalties received pu rsuant to this section shall be deposited in the State Public Works Enforcement Fund es tablished by Section 1771.3 and shall be used on ly for the purposes specified in that section.
(n) This section shall not apply to work pe rformed on a public works proj ect of twenty - five thousand dollars ($25,000) or less when the project is for constructi on, alteration, demolition, installation, or repair work or to work performed on a public wo rks project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.”
d. Labor Code section 1771.4 states the following:
“(a) All of th e fo llowing are a pplicable to all public works projects that are otherwise subject to the requirements of this chapter:
(1) The call for bids and contract documents sh all specify that the project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
(2) The awarding body shall post or require the prime contractor to post job site notices, as prescribed by regulation.
(3) Each c ontractor and subcontractor shall furnish the records specified in Section 1776 directly to the Labor Commissioner, in the following manner:
(A) At least monthly or more frequently if specified in the contract with the awardi ng body.
(B) In a format prescribed by the Labor Commissioner.
(4) If the contractor or subcontractor is not registered pu rsuant to Section 1725.5 and is performing work on a project for which registration is not r equired because of subdivision (f) of Se ction 1725.5, the unregistered contractor or subcontractor is not 147
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required to furnish the records specified in Section 1776 directly to the L abor Commissioner but sh all retain the records specified in Section 1776 fo r at least three years after completion of the work.
(5) The department shall undertake those activities it deems necessary to monitor and enforce compliance with prevailing wage requirements.
(b) The La bor Commissioner may exempt a public works project fr om compliance with all or part of the requirements of subdivision (a) if either of the following occurs:
(1) The awarding body has enforced an approved labor compliance program, as defined in Section 1771.5, on all public works projects under its authority , except those deemed exempt pursuant to subdivision (a) of Section 1771.5, continuously since December 31, 2011.
(2) The awarding body has entered into a collectiv e bargaining agreement that binds all contractors performing work on the project and that in cludes a mechanism for resolving disputes about the payment of wages.
(c) The requirements of paragraph (1) of subdivision (a) shall only apply to contracts for public works projects awarded on or after January 1, 2015.
(d) The requirements of paragraph (3 ) of subdivision (a) shall apply t o all contracts for public work, whether new or ongoing, on or after January 1, 2016.”
B. STATE PUBLIC WORKS APPRENTICESHIP REQUIREMENTS
1. State Public Works Apprenticeship Requirements:
a. The Contractor is responsible for comp liance with Labor Code section 1777 .5 and the California Code of Regulations, title 8, sections 230 – 230.2 for all apprenticeable occupations (denoted with “#” sym bol next to craft name in DIR Prevai ling Wage Determination), whether employed by the Contra ctor, subcontractor, vendor or consultant. Included in these requirements is (1) the Contractor’s requirement to provide notification (i.e. DAS-140) to the appropriate apprenticeship committees; (2) pay training fund contributions for each apprenticeable h our employed on the Contract; and ( 3) utilize apprentices in a mi nimum ratio of not less than one apprentice hour for each five journeyman hours by completion of Co ntract work (unle ss an exception is granted i n accordance with Labor Code section 1777.5) or request for the dispatch of apprentices. b. Any apprentices employe d to perform any of the Scope of Work shall be paid the standard wage to apprentices under the regu lations of the cr aft or trade for wh ich such apprentice is employed, and such individual sha ll be employed only for the work of the craft or trade to which s uch individual is registered. Only apprentices, as defined in California Labor Code section 3077, who are in training under apprenticeship standards and written apprenticeship agreements und er California Labor Code sections 30 70 et seq. are eligible to be employed for the Scope of Work. The employment and training of each apprentice shall be in accord ance with the pro visions of the appren ticeship standards and apprentice agreements under which such apprentice is training.
2. Compliance with California Labor Code secti on 1777.5 requires all publi c w orks contractors to:
a. Submit Contract Award Information (DAS-140):
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i. Although ther e are a few exemptions (identi fied below), all Contractors, regardless of union affiliation, must submit contract award informat ion when performing on a California public works project.
ii. The DAS -140 is a notification “ann ouncement” of the Contractor’s parti cipation on a public works project—it is not a request for the dispatch of an apprentice. iii. Contractors shall submit the contract award information (you may use form D AS 140) within 10 days of the execution of the prime co ntract or subcontract, but in no event later than the first day in which the Contractor has workers employed on the public work.
iv. Contractors who are already approve d to train apprentices (i.e. check “Box 1” on the DAS-140) shall only be required to submit the form to their approved program.
v. Contractors who are NOT approv ed to train apprentices (i.e. those that check either “Box 2” or “Box 3” on the DAS-140) shall submit the DAS-140 TO EACH of the apprenticeship program sponsors in the area of your public works project. For a listing of apprenticeship programs see
http://www.dir.ca.gov/Databases/das/pwaddrstart.asp.
b. Employ Registered Apprentices
i. Labor Code section 1777.5 requires that a cont ractor performing work in an “apprenticeable” craft must employ one (1) hour of apprentice work for every five (5) hours performed by a journeyman. This ratio shal l be met prior to the Contractor’s comp letion of work on the project. “Apprenticeable” craf ts are denoted with a pound symbol “#” in front of the craft name on the prevailing wage determination.
ii. All Contractors who do not fall within an exemption category (see below) must request for dispatch o f an appr entice from an apprenticeship program (for each apprenticeable craft or trade) by giving the program actual noti ce of at least 72 hours (business days only) before the date on which apprentices are required. iii. Contractors may use the “DAS-142” form for making a request for the dispatch of an apprentice.
iv. Contractors who are participating in an approved apprenticeship training program and who did not receive sufficient number of apprentices from their initial req uest must request dispatch of apprentice s from AL L O THER apprenticeship committees in the project area in order to fulfill this requirement. v. Contractor should ma intain and submit proof (when requested) of its DAS -142 submittal to the apprenticeship committ ees (e.g. fax tra nsmittal confirmation). A Contractor has met its requirement to employ app rentices only after it has successfully made a dispatch request to all apprenticeship programs in the project area.
vi. Only “registered” apprentices may be paid the pr evailing apprenti ce rates and must, at all times work under the supervision of a Journeyman (Cal. Code Regs., tit 8, § 230.1).
c. Make Training Fund Contributions
i. Contractors performing in apprenticeable crafts on public works projects, must make training fund contributions in the amount established in the prevailing wage rate publication for journeymen and apprentices.
ii. Contractors may us e the “CAC -2” form for submitt al of their training fund contributions.
iii. Contractors who do not submit their training fund con tributions to an approved apprenticeship training program must submit their contributions to the California Apprenticeship Council (CAC), PO Box 420603, San Francisco, CA 94142-0603. 149
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iv. Training fund contributions to the CAC are due and payable on the 15th da y of the month for work performed during the preceding month. v. The “training” contribution amount identified on the prevailing wage determination shall not be paid to the worker, unless the worker falls within one of the exemption categories listed below.
3. Exemptions to Apprenticeship Requirements:
a. The fol lowing are exempt from having to comply wit h California apprenticeship requirements. These types of contractors do not need to submit a DAS -140, DAS-142, make training fund contributions, or utilize apprentices:
i. When the Con tractor holds a sole pr oprietor license (“Owner-Operator”) and no workers w ere employed by the Contractor. In othe r words, the contractor performed the entire work from start to finish and worked alone. ii. Contractors performing in non -apprenticeable crafts. “Apprenticeable” crafts are denoted with a pound symbol “#” in front of the craft name on the prevailing wage determination.
iii. When the Contractor has a direct contract with the Public Agency that is under $30,000.
iv. When the project is 100% federally-funded and the funding of the p roject does not contain any city, county, and/or st ate monies (unless the project is administered by a state agency in wh ich case the apprenticeship requirements apply).
v. When the project is a private project not cov ered by the definition of public works as found in Labor Code section 1720.
4. Exemption from Apprenticeship Rations:
a. The Joint Appren ticeship Committee shall have the discretion to grant a certificate, which shall be subject to the approval of the Administra tor of Apprenticeship, exempting the Contractor from the 1-to-5 ratio set forth in this Sect ion when it finds that any one of the following conditions are met:
i. Unemployment for the previous three -month period in such area exceeds an average of fifteen percent (15%); or
ii. The number of apprentices in training in such area exceeds a ratio of 1 -to-5 in relation to journeymen; or
iii. The Apprenticeable Craft or Trade is rep lacing at least one -thirtieth (1/30) of its journeymen annually through apprenticeship training , either on a statewide basis or on a local basis; or
iv. If assignment of an apprentice to any work performed under the Contract Documents would create a condition which would jeopardize such apprentice's life or the life, safety or property of fellow employe es or the public at large, or if the specific task to which the apprentice is to be assigned is of such a nature that training cannot be provided by a journeyman.
b. When such exemptions from the 1 -to-5 ratio between apprentices and journeymen are granted to an organization which represents contractors in a specific trade on a local or statewide bas is, the member contractors will not be required to submit individual applications for approval to local Joint Apprenticeship Committees, provided they are already covered by the local apprenticeship standards.
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5. Contractor’s Compliance:
a. The responsibility of compliance with this Section for all Apprenticeable Trades or Crafts is solely and exclusively that of the Contractor. All decisions of the Joint Apprenticeship Committee(s) under this Section are subject to the provisions of California Labor Code section 3081 and penalties are pursuant to Labor Code section 1777.7 and the determination of the Labor Commissioner.
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EXHIBIT A – SCOPE OF EXPENDITURES
APPLIES TO AGREEMENT ARPA21-PRJC-015-FON BETWEEN SAN BERNARDINO COUNTY AND [CITY OF FONTANA] RELATED TO THE CORONAVIRUS LOCAL FISCAL
RECOVERY FUND FOR LOCAL GOVERNMENTS
1. The following is the mutually agreed upon scope of expenditures to be funded by the American Rescue Plan Act of 2021 (ARPA) Coronavirus Local Fiscal Recovery Fund (CLFRF) received by San Bernardino County:
Center Stage Theater Exterior Improvements.
2. Not-to-exceed amount of expenditures described in 1, above, obligated during the period of [5/1/2022] and [12/31/2024] and expanded on or before December 31, 2026 is $300,000.
3. The following is the list of projected expenditures that will be funded by the CLFRF and each of these expenditures satisfy the findings in 1, above:
Expenditure Type (e.g., Payroll) Projected Expenditures* Remediate and repair moisture intrusion $50,000
Re-paint exterior $50,000
Additional exterior improvements $200,000
$
$
$
$
Total Expenditure $300,000
*Note: Projected expenditures may differ from the actual costs but a total amount of expenditure shall not exceed the amount as specified in Section 2, above.
4. The Contractor is responsible for ensuring that any procurement using CLFRF funds, or payments under procurement contracts using such funds are consistent with the procurement standards set forth in the Uniform Guidance at Title 2 C.F.R. Sections 200.317 - 200.327, as applicable. The Uniform Guidance establishes in Title 2 C.F.R.
Section 200.319 that all procurement transactions for property or services must be conducted in a manner providing full and open competition, consistent with standards outlined in Title 2 C.F.R. Section 200.320. If the full and open procurement is not applicable, provide a reason for its exemption:
Confirmed – No exemption identified.
152
EXHIBIT A – SCOPE OF EXPENDITURES
APPLIES TO AGREEMENT ARPA21-PRJC-016-FON BETWEEN SAN BERNARDINO COUNTY AND [CITY OF FONTANA] RELATED TO THE CORONAVIRUS LOCAL FISCAL
RECOVERY FUND FOR LOCAL GOVERNMENTS
1. The following is the mutually agreed upon scope of expenditures to be funded by the American Rescue Plan Act of 2021 (ARPA) Coronavirus Local Fiscal Recovery Fund (CLFRF) received by San Bernardino County:
Veteran’s Park Improvements.
2. Not-to-exceed amount of expenditures described in 1, above, obligated during the period of [5/1/2022] and [12/31/2024] and expanded on or before December 31, 2026 is $530,000.
3. The following is the list of projected expenditures that will be funded by the CLFRF and each of these expenditures satisfy the findings in 1, above:
Expenditure Type (e.g., Payroll) Projected Expenditures* New playground installation to include: $
ADA inclusive structures and equipment, $
rubber safety surfacing, $
and shade features. $500,000
New ballfield scoreboards $30,000
$
$
Total Expenditure $530,000
*Note: Projected expenditures may differ from the actual costs but a total amount of expenditure shall not exceed the amount as specified in Section 2, above.
4. The Contractor is responsible for ensuring that any procurement using CLFRF funds, or payments under procurement contracts using such funds are consistent with the procurement standards set forth in the Uniform Guidance at Title 2 C.F.R. Sections 200.317 - 200.327, as applicable. The Uniform Guidance establishes in Title 2 C.F.R.
Section 200.319 that all procurement transactions for property or services must be conducted in a manner providing full and open competition, consistent with standards outlined in Title 2 C.F.R. Section 200.320. If the full and open procurement is not applicable, provide a reason for its exemption:
Confirmed – No exemption identified.
153
16498.00001\34933324.1
EXHIBIT A – SCOPE OF EXPENDITURES
APPLIES TO AGREEMENT ARPA21-PRJC-004-FON BETWEEN SAN BERNARDINO
COUNTY AND CITY OF FONTANA RELATED TO THE CORONAVIRUS LOCAL FISCAL
RECOVERY FUND FOR LOCAL GOVERNMENTS
1. The following is the mutually agreed upon scope of expenditures to be funded by the American Rescue Plan Act of 2021 (ARPA) Coronavirus Local Fiscal Recovery Fund (CLFRF) received by San Bernardino County:
Cypress-Knopf Center offers lifelong learning and enrichment classes, special event rentals for residents, toddler programming, community events, non-profit organization rentals and special needs programming. Prior to the COVID-19 Pandemic, Cypress- Knopf Center would host over 65,000 participants annually. During the pandemic the Cypress-Knopf Center has had limited operational hours and has only hosted a few community events. With the funds through San Bernardino County to enhance and remodel the Cypress-Knopf Center, Fontana staff estimate there would be an increase of 15% in use or 74,750 participants annually. Knopf Center is located in Qualified Census Tract number 28.03.
2. Not-to-exceed amount of expenditures described in 1, above, obligated during the period of 7/2/2022 and 11/30/2022 and expanded on or before December 31, 2026, is $750,000.
3. The following is the list of projected expenditures that will be funded by the CLFRF for the scope identified in 1, above:
Expenditure Type (e.g., Payroll) Projected Expenditures* Interior Painting and New Doors $45,000
New Flooring $75,000
Build New Restroom for Tiny Tots Daycare $125,000
Kitchen Remodeling $128,000
Stage Re-finishing and New Front Reception
Counter
$62,000
Restroom Remodeling $135,000
New Roof $180,000
Total Expenditure $750,000
*Note: Projected expenditures may differ from the actual costs but a total amount of expenditure shall not exceed the amount as specified in Section 2, above.
4. The Contractor is responsible for ensuring that any procurement using CLFRF funds, or payments under procurement contracts using such funds are consistent with the procurement standards set forth in the Uniform Guidance at Title 2 C.F.R. Sections 200.317 - 200.327, as applicable. The Uniform Guidance establishes in Title 2 C.F.R.
Section 200.319 that all procurement transactions for property or services must be conducted in a manner providing full and open competition, consistent with standards 154
16498.00001\34933324.1
outlined in Title 2 C.F.R. Section 200.320. If the full and open procurement is not applicable, provide a reason for its exemption:
If no exemption, please type “Confirmed – No exemption identified” here.
Confirmed
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THE INFORMATION IN THIS BOX IS NOT A PART OF THE CONTRACT AND IS FOR COUNTY USE ONLY
County Administrative Office
Department Contract Representative Matthew Erickson, County Chief Financial Officer
Telephone Number (909) 387-5423
Contractor City of Fontana
DUNS No. 004949541
UEI No. WLF8LH1TH3P8
Contractor Representative Matt Ballantyne, City Manager Telephone Number 909-350-7653
Contract Term 7/2/2022 through 12/31/2026
Original Contract Amount Based on actual project costs not to exceed $750,000
Amendment Amount
Total Contract Amount Based on actual project costs not to exceed $750,000
Cost Center 1100921078
Internal Order (If Applicable) 1012319
CONTRACT BETWEEN SAN BERNARDINO COUNTY AND CITY OF FONTANA RELATED TO
THE AMERICAN RESCUE PLAN ACT AND THE CORONAVIRUS LOCAL FISCAL RECOVERY FUND
WHEREAS, on March 4, 2020, the State of California declared a state of emergency as a result of the Coronavirus Disease 2019 (COVID-19) outbreak and on March 13, 2020, by Proclamation 9994, the President declared a national emergency concerning the COVID -19 pandemic. The COVID -19 pandemic continues to cause significant risk to the public health and safety of the United States; and
WHEREAS, on March 11, 2021, the American Rescue Plan Act (ARPA) was signed into law by the President and the law is intended to combat the COVID-19 pandemic, including the public health and economic impacts; and
WHEREAS, pursuant to Secti on 9901 of the ARPA, San Bernardino County (County) received a disbursement from the Unite d States Department of the Treasury of money associated with the Coronavirus Local Fiscal Recovery Fund (CLFRF) for Local Governments under Section 603(a) [see 42 U.S.C. Section 803]; and
Contract Number
ARPA21-PRJC-004-FON
SAP Number
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WHEREAS, the County agreed to comply with the United States Department of the Treasury Coronavirus State Fiscal Recovery Fund Award Terms and Conditions (Terms and Conditions), including Assurance of Compliance with Title VI of the C ivil Rig hts Act of 1964 (Assurance of Compliance with Civil Rights Requirements), identified in the U nited States Department of the Treasury and San Bernardino County Agreement (OMB Approved No. 1505 -0271) (U nited States Department of the Treasury Agreemen t), which is on file with the County and incorporated herein by this reference; and
WHEREAS, the Assistance Listing Number (ALN)/Federal Assistance Identification Number (FAIN) for the ARPA CLFRF is 21.027/SLT-0628 respectively; and
WHEREAS, the ARPA provides that payments from the CLFRF may be used for the following : i) to respond to the public health emergency with respect to COVID -19 or its negative economic impacts, including assistance to households, small businesses, and nonprofits, or aid to impac ted industries such as tourism, travel, and hospitality ; ii) to respond to workers performing essential work during the COVID–19 public health emergency by providing premium pay to eligible workers that are performing such essential work, or by providing g rants to eligible employers that have eligible workers who perform essential work ; iii) for the provision of government services to the extent of the reduction in revenue due to the COVID –19 public health emergency relative to revenues collected in the mos t recent full fiscal year prior to the emergency; or iv) to make necessary investments in water, sewer, or broadband infrastructure; and
WHEREAS, funding provided under ARPA CLFRF must be obligated by December 31, 2024 and expended by December 31, 2026; and
WHEREAS, the County desires to transfer and City of Fontana (Contractor) desires to accept a transfer from ARPA CLFRF in the not to exceed amount of $ 750,000 for expenditures identified in Exhibit “A” related to Cypress-Knopf Community Center Rehabilitation Project.
NOW, THEREFORE, in consideration of the above, the County and Contractor agree as follows:
1. THE ARPA CLFRF
A. This Contract applies to the following ARPA CLFRF transfers:
The transfer by the County of an amount not to exceed $750,000 to Contractor on a reimbursement basis for expenditures identified in Exhibit “A”. Exhibit “A” is attached hereto and incorporated herein by this reference. County acknowledges and agrees that Contractor will be administering the transfer of funds for the expendi tures id entified in Exhibit “A” by separate contracts. Contractor shall provide the County quarterly reports of actual cash expenditures to date under this Contract, and estimated cash expenditures through December 31 st of each year. County, through its Ch ief Executive Officer (CEO), in the CEO’s sole discretion, reserves the right to reduce the transfer amount identified in this Contract with fifteen (15) days advance written notice provided to Contractor. The reduction would be based: A) on Contractor’s estimated cash expenditures through December 31st of each year ; B) a later determination by the United States Department of the Treasury, or County, that the costs identified in this Contract are inelig ible for ARPA CLFRF; or C) a determination by CEO the funds should be utilized in a different manner.
B. Contractor certifies that the use of funds that will be submitted for reimbursement from the CLFRF under Paragraph 1. A. and Exhibit “A ” of this Contract will be used only to cover those costs that: i) are rel ated to public health or negative economic impact eligible use and; and ii) were incurred during the period that begins 7/2/2022, and will end 11/30/2022.
For purposes of this Contract and pursuant to federal guidance, expended or obligated 157
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costs are costs incurred by Contractor during the time period referenced above that are allowable for reimbursement. Any cost obligated by Contractor as of December 31, 2024, must be expended by December 31, 2026, to meet the eligible costs timeframe as defined by the United States Department of the Treasury.
C. Contractor agrees that the funds provided pursuant to this Contract cannot be used: i) as a revenue replacement for lower than expected tax or other revenue collections; ii) for expenditures for which Contractor has received any other emergency COVID -19 supplemental funding (whether federal, state, or private in nature) for that same expense ; or iii) as a deposit into any pension fund.
D. Contractor shall prepare and submit to County an invoice for reimbursement of eli gible funding expenses identified in Paragraph 1.A., above. Invoices may be submitted to County as frequently as monthly. Invoices will be reviewed and approved for compliance with terms of this Contract. County shall reimburse to Contractor the amount of approved invoices submitted within sixty (60) days of receipt. If an invoice is rejected, or revisions are requested, Contractor will work with County to submit the required revisions.
E. Both County and Contractor agree to comply with any and all ARPA CLFRF requirements, including but are not limited to the terms included in this Contract , as well as any and all applicable County, Contractor, State, and Federal laws, regulations, policies and procedures pertaining to the funding described in this Contract. County an d Contractor shall comply with Title 2 Code of Federal Regulations ( C.F.R.) Part 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards), including, but not limited to, Title 2 C.F.R. Section 200.303 (internal control), Title 2 C.F.R. Sections 200.331 through 200.333 (subrecipient monitoring and management), and Title 2 C.F.R. Part 200 S ubpart F (audit requirements), as these sections currently exist or may be amended . The use of funds must also adhere t o official federal guidance issued or to be issued on what constitutes a n eligible expenditure. Any funds expended by Contractor or its subcontractor(s) in any manner that does not adhere to official federal guidance shall be returned to the County. Contractor agr ees to comply with all official guidance regarding the ARPA CLFRF. County and Contractor also agree that as additional federal guidance becomes available, a n amendment to this Contract may become necessary. If an amendment is required, Contractor a grees to promptly execute the Contract amendment.
F. Contractor shall retain documentation of all uses of the funds, including but not limited to invoices and/or sales receipts in a manner consistent with Title 2 C.F.R. Section 200.334 (retention requirement s for re cords). Such documentation shall be produced to County upon request and may be subject to audit. Unless otherwise provided by Federal or State law (whichever is the most restrictive) , Contractor shall maintain all documentation connected with its performance under this Contract for a minimum of five (5) years from the date of the last payment made by County or until audit resolution is achieved, whichever is later, and to make all such supporting information available for inspection and audit by representatives of the County, the State or the United States Government during normal business hours at Contractor. Copies will be made and furnished by Contractor upon written request by County.
G. Contractor shall establish and maintain an accounting system conforming to Generally Accepted Accounting Principles (GAAP) to support Contractor’s requests for reimbursement which segregate and accumulate costs of Contractor and produce monthly reports which clearly identify reimbursable costs, matching fund costs (if applicable), and 158
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other allowable expenditures by Contractor. Contractor shall provide a monthly report of expenditures under this Contract no later than the 20th day of the following month.
H. Contractor shall cooperate in having an audit completed by County, at County’s option and expense. Any audit require d by A RPA CLFRF and its regulation and United States Treasury guidance will be completed by Contractor at Contractor’s expense.
I. Contractor shall repay to County any r eimbursement for ARPA CLFRF funding that is determined by subsequent audit to be unallowable under the ARPA CLFRF within the time period required by the ARPA CLFRF, but no later than one hundred twenty (120) days of Contractor receiving notice of audit findings, which time shall include an opportunity for Contractor to respond to and/or resolve the findings. Should the findings not be otherwise resolved and Contractor fail to reimburse moneys due County within one hundred twenty (120) days of audit findings, or within such other period as m ay be ag reed between b oth parties or required by the ARPA CLFRF, County reserves the right to withhold future payments due Contractor from any source under County’s control.
J. Contractor shall accept all payments from County via electronic funds transfer ( EFT) directly deposited into the Contractor’s designated checking or other bank account.
Contractor shall promptly comply with directions and accurately complete forms provided by County required to process EFT payments.
K. County is exempt from Federal exci se taxes and no payment shall be made for any personal property taxes levied on Contractor or on any taxes levied on employee wages.
The County shall only pay for any State or local sales or use taxes on the services rendered or equipment and/or parts supplied to the County pursuant to the Contract.
L. Funds made available under this Contract shall not supplant any federal, state or any governmental funds intended for services of the same nature as this Contract. Contractor shall not claim reimbursement or pa yment from County for, or apply sums received from County with respect to that portion of its obligations that have been paid by another source of revenue. Contractor agrees that it will not use funds received pursuant to this Contract, either directly or indirectly, as a contribution or compensation for purposes of obtaining funds from another revenue source without prior written approval of the County.
M. County shall only reimburse costs incurred through the dates identified in Exhibit “A”. Contractor requ irements in Sections 1, 2 and 5 of this Contract shall survive the termination of this Contract. The costs to be reimbursed under this Contract do not include Research and Development as defined in Title 2 Code of Federal Regulations ( C.F.R.) Section 200.1, nor do they include indirect costs.
2. AMERICAN RESCUE PLAN ACT REQUIREMENTS
A. This Contract may be funded in whole or in part with funds provided by the American Rescue Plan Act - Coronavirus Local Fiscal Recovery Fund (ARPA), Federal Award Identification Number (FAIN): SLT-0628 and Assistance Listing Number (formerly known as a CFDA number): 21.027 , and therefore Contractor agrees to comply with any and all ARPA requirements in addition to any and all applicable County, State, and Federal laws, regulations, policies, and procedures pertaining to the funding of this Contract. The use of the funds must also adhere to official federal guidance issued or to be issued on what constitutes a necessary expenditure. Any funds expended by Contractor or its subcontractor(s) in any manner that does not adhere to the ARPA requirements shall be 159
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returned or repaid to the County. Any funds paid to Contractor: i) in excess of the amount to which Contractor is finally determined to be authorized to retain; ii) that are determi ned to have been misused; or iii) that are determined to be subject to a repayment obligation pursuant to section 603(e) of the Act and have not been repaid, shall constitute a debt to the federal government. Contractor agrees to comply with the requiremen ts of section 603 of the Act, regulations adopted by Treasury pursuant to the Act, and guidance issued by Treasury regarding the foregoing. Contractor shall provide for such compliance in any agreements with subcontractor(s).
B. Contractor agrees to comply with all applicable federal laws and regulations, including but not limited to all laws and regulations identified in Section 2 of the Contract.
C. In accordance with Title 2 C.F.R. Section 200.322, the non -Federal Contractor should, to the greatest extent p racticable under a Federal award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subawards including all contracts and purchase orders for work or products under this award. For purposes of this section: “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. “Manufactured products” means items and construction materials composed in whole or in part of non -ferrous metals such as aluminum; plas tics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
D. In accordance with Title 2 C.F.R. Section 200.471, c osts incurred for telecommunications and video surveillance servi ces or equipment such as phones, internet, video surveillance, cloud servers are allowable except for the following circumstances: Obligating or expending covered telecommunications and video surveillance services or equipment or services (as described in 2 C.F.R. Section 200.216) to: 1) Procure or obtain, extend or renew a contract to procure or obtain; 2) Enter into a contract (or extend or renew a contract) to procure; or 3) Obtain the equipment, services, or systems, as described in Title 2 C.F.R. Section 200.216 that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115 -232, section 889, covered telecommunications equipm ent is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities) and: (i) F or the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affi liate of such entities); (ii) Telecommunications or video surveillance services provided by such e ntities or using such equipment; and (iii) Telecommunications or video surveillance equipment or services produced or provided by a n entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. In implementing the prohibition under Public Law 115 -232, section 889, subsection (f), paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs shall prioritize available funding and technical support to ass ist affe cted businesses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement 160
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equipment and services, and to ensure that communication s servic e to users and customers is sustained.
E. A non -Federal Contractor that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource C onservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at Title 40 C.F.R. Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a mann er that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
F. Byrd Anti-Lobbying Amendment (31 U.S.C. Section 1352) - Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by Title 31 U.S.C. Section 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.
G. Clean Air Act (42 U.S.C. Sections 7401-7671q.) and t he Federal Water Pollution Control Act (33 U.S.C. Sections 1251-1389), as amended - Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non -Federal award to agree to comply with all applicable standards, orde rs or regulations issued pursuant to the Clean Air Act (42 U.S.C. Sections 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. Sections1251-1389).
H. Rights to Inventions Made Under a Contract or Agreement. If the Federal award mee ts the definition of “funding agreement” under Title 37 C.F.R. Section 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or perf ormance of experimental, developmental, or research work under that “funding agreement,” the Title 33 U.S.C. Sections 1251-1387 recipient or subrecipient must comply with the requirements of Title 37 C.F.R. Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.
I. Contract Work Hours and Safety Standards Act (40 U.S.C. Sections 3701-3708). Where applicable, all contracts awarded by the non -Federal Contractor in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with Title 40 U.S.C. Sections 3702 and 3704, as supplemented by Department of La bor regulations (29 C.F.R. Part 5). Under Title 40 U.S.C. Section 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work wee k is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week.
The requirements of Title 40 U.S.C. Section 3704 are applicable to c onstruction work and 161
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provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous to health or safety .
These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
J. Davis-Bacon Act, as amended (40 U.S.C. Sections 3141-3148). When required by Federal program legislation, all prime constructi on contracts in excess of $2,000 awarded by non - Federal entities must include a provision for compliance with the Davi s-Bacon Act (40 U.S.C. Sections 3141 -3148) as supplemented by Department of Labor regulations (29 C.F.R. Part 5, “Labor Standards Provisio ns Appli cable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determi nation m ade by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non -Federal contractor must place a copy of the current prevailing wage determination issued by the Department of Labor in each sol icitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non -Federal Contractor must report all suspected or reported violations to the Federal awarding agency.
The contracts must als o includ e a provision for compliance with the Copeland “Anti - Kickback” Act ( 18 U.S.C. Section 874 and 40 U.S.C. Section 3145), as supplemented by Department of Labor regulations (29 C.F.R. Part 3, “Contractors and Subcontractors on Public Building or Publi c Work F inanced in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non -Federal contractor must report all suspected or reported violations to the Federal awarding agency.
i. The Contractor and all Subcontractors and Sub -subcontractors are required to pay their employees and workers a wage not less than the minimum wage for the work classification as specified in both the Federal and California wage decisions. See Exhibit “B” for additional information regarding California Prevailing Wa ge Rate Requirements and the applicable general prevailing wage determinations which are on file with the County and are available to any interested party on request. The higher of the two applicable wage determinations, either California prevailing wage or Davis -Bacon Federal prevailing wage, will be enforced for all applicable work/services under this Contract.
K. Contracts for more than the simplified acquisition threshold, which is the inflation adjusted amount determined by the Civilian Agency Acquisitio n Council and the Defense Acquisition Regulations Council (Councils) as authorized by Title 41 U.S.C. Section 1908, must address administrative, contractual, or leg al remedies in instances where C ontractors violate or breach contract terms, and provide for such sa nctions and penalties as appropriate.
L. All contracts in excess of $10,000 must address termination for cause and for convenience by the non -Federal Contractor including the manner by which it will be effected and the basis for settlement.
M. Equal Employment Opportunity. Except as otherwise provided under Title 41 C.F.R. Part 60, all contracts that meet the definition of “federally assisted const ruction contract” in Title 41 C.F.R. Section 60-1.3 must include the equal opportunity clause provided unde r Title 41 162
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C.F.R. Section 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equ al Employment Opportunity,” and implementing regulations at 41 C.F.R. part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The identified clause is below and Contractor shall comply with the clause a nd all legal requirements and include the equal opportunity clause in each of its nonexempt subcontracts.
i. The applicant hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at Title 41 C.F.R. Chapter 60, which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, lo an, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following equal opportunity clause:
During the performance of this contract, the contractor agrees as follows:
(1) The c ontractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin.
Such action shall include, but not be limited to the following: Employment, upgrading, demoti on, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to emp loyees a nd applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qual ified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an emp loyee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to s uch information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
(4) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or work ers' representatives of 163
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the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contrac tor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such prov isions w ill be binding upon each subcontractor or vendor.
The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to ente r into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulati ons, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering ag ency in the discharge of the agency's primary responsibility for securing compliance.
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The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these u ndertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under th e progra m with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
N. Data Collection Requirements – Contractor agrees to collect pre-post data per County, and United States Treasury guidelines and timeline, for project tracking and monitoring and various rep orting purposes. Data including , but not limited to: Required Project Demographic Distribution Data; Required Performance I ndicators and Programmatic Data; Required Expenditure Report Data; and Required Program Evaluation Data. Contractor agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data that needs to be available to County, State or Federal governments upon request.
O. Data Submission Requirements - Contractor agrees to furnish data to the County up on request, per County, and United States Treasury guidelines and timeline, for project tracking and monitoring and various reporting purposes. Data including, but not limited to:
Required Project Demographic Distribution Data; Required Performance I ndicators and Programmatic Data; Required Expenditure Report Data; Required Program Evaluation Data. Contractor agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data that needs to be available at request.
P. Project Progress Reporting - Contractor agrees to provide project timeline and progress updates t o the Co unty upon request, per County, and United States Treasury guidelines and timeline. Contractor agrees to routine and impromptu program and project evaluation by the County.
Q. Uniform Administrative Requirements, Cost Principles, and Audit Requirement s for Federal Awards, Title 2 C.F.R. Part 200, other than such provisions as Treasury may determine are inapplicable and subject to such exceptions as may be otherwise provided by Treasury.
Subpart F – Audit Requirements of the Uniform Guidance, implementi ng the S ingle Audit Act, shall apply.
R. Universal Identifier and System for Award Management (SAM), Title 2 C.F.R. Part 25.
S. Reporting Subaward and Executive Compensation Information, Title 2 C.F.R. Part 170.
T. OMB Guidelines to Agencies on Governmentwide De barment and Suspension (nonprocurement), title 2 C.F.R. Part 180, including the requirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 C.F.R. Part 180, subpart B) that the award is subje ct to Title 2 C.F.R. Part 180 and 165
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Treasury’s implementing regulation at Title 31 C.F.R. Part 19. Debarment and Suspension (Executive Orders 12549 and 12689) - A contract award (see 2 CFR Section 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at Title 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
U. Recipient Integrity and Performance Matters, pursuant to which the award terms set forth in Title 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference.
V. Government Requirements for Drug-Free Workplace, Title 31 C.F.R. Part 20.
W. New Restrictions on Lobbying, Title 31 C.F.R. Part 21.
X. Uniform Relocation Assistance and Real Property Acquis itions Act of 1970 (42 U.S.C.
Sections 4601-4655) and implementing regulations.
Y. Applicable Federal environmental laws and regulations.
Z. Statutes and regulations prohibiting discrimination include, without limitation, the following:
i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. Sections 2000d et seq.) and Treasury’s implementing regulations at Title 31 C.F.R. Part 22, which prohibit s discrimination on the basis of race, color, or national origin under programs or activities receiving federal financial assistance.
ii. The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. Sections 3601 et seq.), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability. iii. Section 504 of the Rehabilitation Act of 1973, as amended (2 9 U.S.C. Section 794), which prohibits discrimination on the basis of disability under any program or activity receiving federal financial assistance.
iv. The Age Discrimination Act of 1975, as amended (42 U.S.C. Sections 6101 et seq.), which prohibits discrim ination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
v. Title II of the Americans with Disabilities Act o f 1990, as amended (42 U.S.C.
Sections 12101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
AA. Contractor understands that ma king false statements or claims in connection with the ARPA funded activities is a violation of federal law and may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from participa ting in federal awards or contracts, and/or any other remedy available by law.
BB. Any publications produced with ARPA funds must display the following language: “This project [is being] [was] supported, in whole or in part, by federal award number SLT -0628 awarded to San Bernardino County by the United States Department of Treasury.”
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CC. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Contractor is being encouraged to adopt and enforce on -the-job seat belt policies and programs for their employees when operating company-owned, rented, or personally owned vehicles.
DD. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Contractor is being encouraged to adopt and enforce policies that ban text messaging while driving and establishing workplace safety policies to decrease accidents caused by distracted drivers.
EE. As a recipient of federal financial assistance, the Civil Rights Restoration Act of 1987 applies, and Contractor and all subrecipients assures that it:
i. Ensures its current and futu re compl iance with Title VI of the Civil Rights Act of 1964, as amended, which prohibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs and activities receiving federal funds, of any person in the Un ited States on the ground of race, color, or national origin (42 U.S.C. Sections 2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at Title 31 CFR Part 22 and other pertinent executive orders such as Executive Order 1316 6, direc tives, circulars, policies, memoranda and/or guidance documents.
ii. Acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency,” seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, have Limited English proficiency (LEP). Contractor understands that denying a person access to its programs, services, and activities, because of LEP is a form of national origin discrimination prohibited under Title VI of the Civil Rights Act of 1964 and the Department of the Treasury’s implementing regulations. Contractor shall initiate reasonable steps, or comply with the Department of the Treasury’s directives, to ensure LEP persons have meaningful a ccess to its programs, services, and activities. Contractor understands and agrees that meaningful access may entail provide language assistance services, including oral interpretation and written translation where necessary, to ensure effective communication. iii. Agrees to consider the need for language services for LEP persons during development of applicable budgets and when conducting programs, services, and activities.
iv. Agrees to maintain a complaint log of any complaints of discrimination on the grounds of race, color, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Act and implementing regulations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome.
FF. The Contractor must include the following language in every contract or agreement subject to Title VI and its regulations:
“The sub -grantee, contractor, successor, transferee, and assignee shall comply with Title VI of the Civil Righ ts Act o f 1964, which prohibits recipients of federal financial assistance from excluding a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, colo r, or nation origin (42 U.S.C.
Section 2000d et seq .), as i mplemented by the Department of the Treasury’s Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement). Title VI also includes protection to persons with “Limited English Prof iciency” in any program or activity receiving federal f inancial assistance, 42 U.S.C. Sections 2000d et seq., as implemented by the Department of the 167
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Treasury’s Title VI regulations, 31 CFR Part 22, and herein incorporated by reference and made a part of this contract or agreement.”
GG. Contractor shall cooperate in any enforcement or compliance review activities by the County and/or the Department of the Treasury. Contractor shall comply with information requests, on-site compliance reviews, and reporting requirements.
HH. Contractor shall maintain records and financial documents sufficient to evidence compliance with section 603(c), regulations adopted by Treasury implementing those sections, and guidance issued by Treasury regarding the foregoing.
II. County has the right of access to records (electronic or otherwise) of Contractor in order to conduct audits or other investigations.
JJ. Contractor shall maintain records for a period of five (5) years after the completion of the contract or a period of five (5) y ears after the last reporting date the County is obligated with the Department of the United States Treasury, whichever is later.
KK. Contractor must disclose in writing any potential conflict of interest in accordance with Title 2 C.F.R. Section 200.112.
LL. In acco rdance with Title 41 U.S.C. Section 4712, subrecipient or C ontractor may not discharge, demote, or otherwise discriminate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violat ion of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant.
The list of persons and entities referenced in the paragraph above includes the following: (i) A member of Congres s or a r epresentative of a committee of Congress; (ii) An Inspector General; (iii) The Government Accountability Office; (iv) A Treasury employee responsible for contract or grant oversight or management; (v) An authorized official of the Department of Jus tice or other law enforcement agency; (vi) A court or grand jury; or (vii) A management officia l or other employee of recipient, subrecipient, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct.
Subrecipient or Contractor shall inform its employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.
MM. County and Contractor acknowledge that if additional federal guidance is issued, an amendment to this Contract may be necessary. In the event any of the terms in this Section 2 conflict with any other terms in the Contract, the terms in this Section 2 shall control.
3. GENERAL CONTRACT REQUIREMENTS
A. Recitals
The recitals set forth above are true and correct and incorporated herein by this reference.
B. Contract Amendments
Contractor agrees any alterations, variations, modifications, or waivers of the provisions of the Contract, shall be valid only when reduced to writing, executed and attached to the 168
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original Contract and approved by the person(s) authorized to do so on behalf of Contractor and County.
C. Contract Assignability
Without the prior written consent of the County, the Contract is not assignable by Contractor either in whole or in part.
D. Contract Exclusivity
This is not an exclusive Contract. The County reserves the right to enter into a contract with other contractors for the same or similar services. The County does not guarantee or represent that the Contractor will be permitted to per form any minimum amount of work, or receive compensation other than on a per order basis, under the terms of this Contract.
E. Attorney’s Fees and Costs
If any legal action is instituted to enforce any party’s rights hereunder, each party shall bear its own costs and attorney fees, regardless of who is the prevailing party. This paragraph shall not apply to those costs and attorney fees directly arising from a third -party legal action against a party hereto and payable under Indemnification and Insurance Requirements.
F. Background Checks for Contractor Personnel
Contractor shall ensure that its personnel (a) are authorized to work in the jurisdiction in which they are assigned to perform s ervices; (d) do not use legal or illegal substances in any manner which will i mpact their ability to provide services ; and (c) are not otherwise disqualified from performing the s ervices under applicable law. If requested by the County and not in violation of applicable law, Contractor shall conduct a background check, at Contractor’s sole expense, on all its personnel providing s ervices. If requested by the County, Contractor shall provide the results of the background check of each individual to the County. Such background check shall be in the form generally used by Contract or in its initial hiring of employees or contracting for contractors or, as applicable, during the employment-screening process but must, at a minimum, have been performed within the preceding 12 -month period. Contractor personnel who do not meet the Count y’s hiri ng criteria, in County’s sole discretion, shall not be assigned to work on County property or services, and County shall have the right, at its sole option, to refuse access to any Contract personnel to any County facility.
G. Change of Address
Contractor shall notify the County in writing, of any change in mailing address within ten (10) business days of the change.
H. Choice of Law
This Contract shall be governed by and construed according to the laws of the State of California.
I. Confidentiality
Contractor shall protect from unauthorized use or disclosure names and other identifying information concerning persons receiving s ervices pursuant to this Contract, except for statistical information not identifying any participant. Contractor shall not use or disclose any identifying information for any other purpose other than carrying out the Contractor's obligations under this Contract, except as may be otherwise required by law. This provision will remain in force even after the termination of the Contract. 169
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J. Primary Point of Contact
Contractor will designate an individual to serve as the primary point of contact for the Contract. Contractor or designee must respond to County inquiries within two (2) business days. Contractor shall not change the primary c ontact without written acknowledgement to the County. Contractor will also designate a back -up point of contact in the event the primary contact is not available.
K. Rule of Construction
The parties agree that this Contract and all agreements or documents in corporated herein shall not be subject to the rule of construction that a written agreement is construed against the party preparing or drafting that agreement.
L. County Representative
The Chief Executive Officer or his/her designee shall represent the Co unty in all matters pertaining to the services to be rendered under this Contract, including termination and assignment of this Contract, and shall be the final authority in all matt ers pertaining to the services/scope of Work by Contractor. If this contra ct was i nitially approved by the San Bernardino County Board of Supervisors, then the Board of Supervisors must approve all amendments to this Contract.
M. Damage to County Property
Contractor shall repair, or cause to be repaired, at its own cost, all dama ges to C ounty vehicles, facilities, buildings or grounds caused by the willful or negligent acts of Contractor or its employees or agents. Such repairs shall be made immediately after Contractor becomes aware of such damage, but in no event later than thir ty (30) days after the occurrence.
If the Contractor fails to make timely repairs, the County may make any necessary repairs.
The Contractor, as determined by the County, shall repay all costs incurred by the County for such repairs, by cash payment upon demand, or County may deduct such costs from any amounts due to the Contractor from the County, as determined at the County’s sole discretion.
N. Debarment and Suspension
Contractor certifies that neither it nor its principals or subcontracts is presently de barred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or agency. (See the following United States General Services Administration’s System for Award Manageme nt websi te https://www.sam.gov). Contractor further certifies that if it or any of its subcontractors are business entities that must be registered with the California Secretary of State, they are registered and in good standing with the Secretary of State. An subcontracts funded by this Contract shall be with vendors that meet this certification and registration requirement.
O. Drug and Alcohol Free Workplace
In recognition of individual rights to work in a safe, healthfu l and productive work place, as a material condition of this Contract, the Contractor agrees that the Contractor and the Contractor’s employees, while performing service for the County, on County property, or while using County equipment:
i. Shall not be in any way impaired because of being under the influence of alcohol or an illegal or controlled substance.
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ii. Shall not possess an open container of alcohol or consume alcohol or possess or be under the influence of an illegal or controlled substance.
iii. Shall not sell, o ffer, or provide alcohol or an illegal or controlled substance to another person, except where Contractor or Contractor’s employee who, as part of the performance of normal job duties and responsibilities, prescribes or administers medically prescribed drugs.
The Contractor shall inform all employees that are performing service for the County on County property, or using County equipment, of the County’s objective of a safe, healthful and productive work place and the prohibition of drug or alcohol use or impairment from same while performing such service for the County.
The County may terminate for default or breach of this Contract and any other Contract the Contractor has with the County, if the Contractor or Contractor’s employees are determined by the County not to be in compliance with above.
P. Duration of Terms
This Contract, and all of its terms and conditions, shall be binding upon and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the respective part ies, provided no such assignment is in violation of the provisions of this Contract.
Q. Discrimination
During the term of the Contract, Contractor shall not discriminate against any employee or applicant for employment because of race, religious cre ed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, or military and veteran status. Contractor shall comply with Executive Orders 11246, 11375, 11625, 12138, 12432, 12250, 13672, Title VI and Title VII of the Civil Rights Act of 1964, the California Fair Employment and Housing Act and other applicable Federal, State and County laws and regulations and po licies r elating to equal employment and contracting opportunities, including laws and regulations hereafter enacted.
R. Improper Influence
Contractor shall make all reasonable efforts to ensure that no County officer or employee, whose position in the County enables him/her to influence any award of the Contract or any competing offer, shall have any direct or indirect financial interest resulting from the award of the Contract or shall have any relationship to the Contractor or officer or employee of the Contractor.
S. Improper Consideration
Contractor shall not offer (either directly or through an intermediary) any improper consideration such as, but not limited to cash, discounts, service, the provision of travel or entertainment, or any items of value to a ny officer, employee or agent of the County in an attempt to secure favorable treatment regarding this Contract.
The County, by written notice, may immediately terminate this Contract if it determines that any improper consideration as described in the pr eceding paragraph was offered to any officer, employee or agent of the County with respect to the proposal and award process.
This prohibition shall apply to any amendment, extension or evaluation process once a contract has been awarded.
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Contractor shall immediately report any attempt by a County officer, employee or agent to solicit (either directly or through an intermediary) improper consideration from Contractor.
The report shall be made to the supervisor or manager charged with supervision of the employee or the County Administrative Office. In the event of a termination under this provision, the County is entitled to pursue any available legal remedies.
T. Informal Dispute Resolution
In the event the County determines that service is unsatisfactory, o r in the event of any other dispute, claim, question or disagreement arising from or relating to this Contract or breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties.
U. Legality and Severability
The parties’ actions under the Contract shall comply with all applicable laws, rules, regulations, court orders and governmental agency orders. The provisions of this Contract are specifically made severable. If a provision of the Contract is terminated or held to be invalid, illegal or unenforceable, the va lidity, legality and enforceability of the remaining provisions shall remain in full effect.
V. Licenses, Permits and/or Certifications
Contractor shall ensure that it has all necessary licenses, permits and/or certifications required by the laws of Federal , State, County, and municipal laws, ordinances, rules and regulations. The Contractor shall maintain these licenses, permits and/or certifications in effect for the duration of this Contract. Contractor will notify County immediately of loss or suspension of any such licenses, permits and/or certifications. Failure to maintain a required license, permit and/or certification may result in immediate termination of this Contract.
W. Material Misstatement/Misrepresentation
If during the course of the administra tion of this Contract, the County determines that Contractor has made a material misstatement or misrepresentation or that materially inaccurate information has been provided to the County, this Contract may be immediately terminated. If this Contract is t erminated according to this provision, the County is entitled to pursue any available legal remedies.
X. Mutual Covenants
The parties to this Contract mutually covenant to perform all of their obligations hereunder, to exercise all discretion and rights gra nted her eunder, and to give all consents in a reasonable manner consistent with the standards of “good faith” and “fair dealing”.
Y. Nondisclosure
Contractor shall hold as confidential and use reasonable care to prevent unauthorized access by, storage, disclosure, publication, dissemination to and/or use by third parties of, confidential information that is either: (1) provided by the County to Contractor or an agent of Contractor or otherwise made available to Contractor or Contractor’s agent in connection with this Contract; or, (2) acquired, obtained, or learned by Contractor or an agent of Contractor in the performance of this Contract. For purposes of this provision, confidential information means any data, files, software, information or materials in oral, electronic, tangible or intangible form and however stored, compiled or memorialize and includes, but is not limited to, technology 172
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infrastructure, architecture, financial data, trade secrets, equipment specifications, user lists, passwords, research data, and technology data.
Z. Notice of Delays
Except as otherwise provided herein, when either party has knowledge that any actual or potential situation is delaying or threatens to delay the timely performance of this contract, that party shall, within twent y-four ( 24) hours, give notice thereof, including all relevant information with respect thereto, to the other party.
AA. Ownership of Documents
All documents, data, products, graphics, computer programs and reports prepared by Contractor pursuant to the Cont ract sha ll be considered property of the County upon payment for services (and products, if applicable). All such items shall be delivered to County at the completion of work under the Contract. Unless otherwise directed by County, Contractor may retain copies of such items.
BB. Air, Water Pollution Control, Safety and Health
Contractor shall comply with all air pollution control, water pollution, safety and health ordinances and statutes, which apply to the work performed pursuant to this Contract.
CC. Records
Contractor shall maintain all records and books pertaining to the delivery of services under this Contract and demonstrate accountability for contract performance. All records shall be complete and current and comply with all Contract requirements. Failure to main tain acceptable records shall be considered grounds for withholding of payments for invoices submitted and/or termination of the Contract.
All records relating to the Contractor’s personnel, consult ants, subcontractors, services/scope of Work and expenses pertaining to this Contract shall be kept in a generally acceptable accounting format. Records should include primary source documents. Fiscal records shall be kept in accordance with Generally Accepted Accounting Principles and must account for all funds, tangible assets, revenue and expenditures. Fiscal records must comply with the appropriate Office of Management and Budget (OMB) Circulars, which state the administrative requirements, cost principles and other standards for accountancy.
DD. Relationship of the Parties
Nothing contained in this Contract shall be construed as creating a joint venture, partnership, or employment arrangement between the Parties hereto, nor shall either Party have the right, power or authority to create an obligation or duty, expressed or implied, on behalf of the other Party hereto.
EE. Release of Information
No news releases, advertisements, public announcements or photographs arising out of the Contract or Contractor’s relationship with County may be made or used without prior written approval of the County.
FF. Representation of the County
In the performance of this Contract, Contractor, its agents and employees, shall act in an independent capacity and not as officers, employees, or agents of the San Bernardino County.
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GG. Strict Performance
Failure by a party to insist upon the strict performance of any of the provisions of this Contract by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver o f such party’s right to insist and demand strict compliance by the other party with the terms of this Contract thereafter.
HH. Subcontracting
Contractor shall obtain County’s written consent, which County may withhold in its sole discretion, before entering into Con tracts with or otherwise engaging any subcontractors who may supply any part of the s ervices to County. At County’s request, Contractor shall provide information regarding the subcontractor’s qualifications and a listing of a subcontractor’s key pe rsonnel including, if requested by the County, resumes of proposed subcontractor personnel. Contractor shall remain directly responsible to County for its subcontractors and shall indemnify County for the actions or omissions of its subcontractors under th e terms and conditions specified in S ection 5 . All approved subcontractors shall be subject to the provisions of this Contract applicable to Contractor Personnel.
For any subcontractor, Contractor shall:
i. Be responsible for subcontractor compliance with th e Contract and the subcontract terms and conditions; and
ii. Ensure that the subcontractor follows County’s reporting formats and procedures as specified by County.
iii. Include in the subcontractor’s subcontract substantially similar terms as are provided in this Contract.
Upon expiration or termination of this Contract for any reason, County will have the right to enter into direct Contracts with any of the Subcontractors. Contractor agrees that its arrangements with Subcontractors will not prohibit or restrict such Su bcontractors from entering into direct Contracts with County.
II. Subpoena
In the event that a subpoena or other legal process commenced by a third p arty in any way concerning the goods or services provided under this Contract is served upon Contractor or County, such party agrees to notify the other party in the most expeditious fashion possible following receipt of such subpoena or other legal process. Contractor and County further agree to cooperate with the other party in any lawful effort by such other party to contest the legal validity of such subpoena or other legal process commenced by a third party as may be reasonably required and at the expense of the party to whom the legal process is directed, except as otherwise provided herein in connection with defense obligations by Contractor for County.
JJ. Termination for Convenience
The County reserves the right to terminate the Contract, for any reason, with a thirty (30) day written notice of termination. The County’s Chief Executive Officer is a uthorized to terminate this Contract. Such termination may include all or part of the services described herein. Upon such termination, payment will be made to the Contractor for services rendered and expenses reasonably incurred prior to the effective dat e of termination. Upon receipt of termination notice Contractor shall promptly discontinue services unless the notice directs otherwise. Contractor shall deliver promptly to County and transfer title (if necessary) all completed work, and work in progress, including drafts, documents, plans, forms, data, products, graphics, computer programs and reports. 174
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KK. Time of the Essence
Time is of the essence in performance of this Contract and of each of its provisions.
LL. Venue
The parties acknowledge and agree tha t this Contract was entered into and intended to be performed in San Bernardino County, California. The parties agree that the venue of any action or claim brought by any party to this Contract will be the Superior Court of California, San Bernardino County, San Bernardino District. Each party hereby waives any law or rule of the court, which would allow them to request or demand a change of venue. If any action or claim concerning this Contract is brought by any third party and filed in another venue, the parties hereto agree to use their best efforts to obtain a change of venue to the Superior Court of California, San Bernardino County, San Bernardino District.
MM. Conflict of Interest
Contractor shall make all reasonable efforts to ensure that no conflict o f intere st exists between its officers, employees, or subcontractors and the County. Contractor shall make a reasonable effort to prevent employees, Contractor, or members of governing bodies from using their positions for purposes that are, or give the ap pearance of being motivated by a desire for private gain for themselves or others such as those with whom they have family business, or other ties. Officers, employees, and agents of cities, counties, districts, and other local agencies are subject to applicable conflict of interest codes and state law. In the event the County determines a conflict of interest situation exists, any increase in costs, associated with the conflict of interest situation, may be disallowed by the County and such conflict may co nstitute grounds for termination of the Contract. This provision shall not be construed to prohibit employment of persons with whom Contractor’s officers, employees, or agents have family, business, or other ties so long as the employment of such persons does not result in increased costs over those associated with the employment of any other equally qualified applicant.
NN. Copyright
County shall have a royalty-free, non-exclusive and irrevocable license to publish, disclose, copy, translate, and otherwise use, cop yright or patent, now and hereafter, all reports, studies, information, data, statistics, forms, designs, plans, procedures, systems, and any other materials or properties developed under this Contract including those covered by copyright, and reserves the right to authorize others to use or reproduce such material. All such materials developed under the terms of this Contract shall acknowledge the San Bernardino County as the funding agency and Contractor as the creator of the publication.
No such materials, or properties produced in whole or in part under this Contract shall be subject to private use, copyright or patent right by Contractor in the United States or in any other country without the express written consent of County. Copies of all edu cational and training materials, curricula, audio/visual aids, printer material, and periodicals, assembled pursuant to this Contract must be filed with the County prior to publication.
OO. Iran Contracting Act
IRAN CONTRACTING ACT OF 2010, Public Contract Code S ections 2200 et seq. (Applicable for all Contracts of one million dollars ($1,000,000) or more). In accord ance with Public Contract Code S ection 2204(a), the Contractor certifies that at the time the Contract is signed, the Contractor signing the Con tract is not identified on a list created pursuant to subdivision (b) of Public Contract Code Section 2203 as a person (as defined in Public Contract Code S ection 2202(e)) engaging in investment activities in Iran described 175
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in subdivisi on (a) of Public Con tract Co de Section 2202.5, or as a person described in subdivision (b) of Public Contract Code Section 2202.5, as applicable.
Contractors are cautioned that making a false certification may subject the Contractor to civil penalties, termination of existi ng contr act, and ineligibility to bid on a contract for a period of three (3) years in accordance with Public Contract Code Section 2205.
PP. California Consumer Privacy Act
To the extent applicable, if Contractor is a business that collects the personal info rmation of a consumer(s) in performing s ervices pursuant to this Contract, Contractor must comply with the provisions of the California Consumer Privacy Act (CCPA). (Cal. Civil Code Sections 1798.100, et seq.). For purposes of this provision, “business,” “ consumer,” and “personal information” shall have the same meani ngs as set forth at Civil Code S ection 1798.140. Contractor must contact the County immediately upon receipt of any request by a consumer submitted pursuant to the CCPA that requires any action on the part of the County, including but not limited to, providing a list of disclosures or deleting personal information. Contractor must not sell, market or otherwise disclose personal information of a consumer provided by the County unless specifically authorized pursuant to terms of this Contract. Contractor must immediately provide to the County any notice provided by a consumer to Con tractor pursuant to Civil Code S ection 1798.150(b) alleging a violation of the CCPA, that involves personal informatio n receiv ed or maintained pursuant to this Contract. Contractor must immediately notify the County if it receives a notice of violation from the California Attorney General pursuant to Civil Code Section 1798.155(b).
QQ. Prevailing Wage Laws
By its execution of this Contract, Contractor certifies that it 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, Section 16000 et seq. (“Prevailing Wage Laws”), which require th e payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Section 1720 of the California Labor Code states in part: “For purposes of this paragraph, ‘construction’ includes work perfo rmed during the design, site assessment, feasibility study, and other preconstruction phases of construction including, but not limited to, inspection and land surveying work…” If the services/scope of Work are being performed as part of an applicable “pub lic work s” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type o f worker needed to execute the s ervices available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the project site. Contractor will also adhere to any o ther applicable requirements, including but not limited to, those regarding the employment of apprentices, travel and subsistence pay, retention and inspection of payroll records, workers compensation and forfeiture of penalties prescribed in the L abor Cod e for violations.
Contractor shall defend, indemnify and hold the County, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failu re to co mply with Prevailing Wage Laws.
See Exhibit “B”, which is attached and incorporated by reference, for additional information regarding Prevailing Wage Laws. Contractor shall comply with all applicable terms and conditions in Exhibit “B”. The applicable general prevailing wage determinations are on file with the County and are available to any interested party on request. Contractor shall post a copy of the applicable prevailing wage determinations at the job site.
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4. TERM OF CONTRACT
This Contract is effective as of the date last signed by authorized representatives of any party (Effective Date), requires all incurred obligations by November 30 , 202 2, and expires on December 31, 2026, but may be terminated earlier in accordance with th e provisions of this Contract.
5. INDEMNIFICATION AND INSURANCE REQUIREMENTS
A. Indemnification
The Contractor agrees to indemnify, defend (with counsel reasonably approved by County) and hold harmless the County and its authorized officers, employees, agents a nd volunteers from any and all claims, actions, losses, damages and/or liability arising out of this Contract from any cause whatsoever, including the acts, errors or omissions of any person and for any costs or expenses incurred by the County on account o f any cl aim except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence or degree of fault of indemnities. The Contractor indemnification obligation applies to the County’s “active” as well as “passive” negligence but does not apply to the County’s “sole negligence” or “willful misconduct” wi thin the meaning of Civil Code Section 2782.
B. Insurance
i. Contractor and County are authorized self -insured public entities for purposes of Professional L iability, General Liability, Automobile Liability, Worker’s Compensation and Property Damage and warrant that through their respective programs of self - insurance, they have adequate coverage or resources to protect against liabilities arising out of the performance of the terms, conditions or obligations of this Contract.
ii. Insurance Review – Insurance requirements are subject to periodic review by the County. The Director of Risk Management or designee is authorized, but not required, to reduce, waive or s uspend any insurance requirements whenever Risk Management determines that any of the required insurance is not available, is unreasonably priced, or is not needed to protect the interests of the County. In addition, if the Department of Risk Management determines that heretofore unreasonably priced or unavailable types of insurance coverage or coverage limits become reasonably priced or available, the Director of Risk Management or designee is authorized, but not required, to change the above insurance req uirements to require additional types of insurance coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against the County, inflation, or any other item reasonably related to the County’s risk.
Any change requiring additional types of insurance coverage or higher coverage limits must be made by amendment to this Contract. Contractor agrees to execute any such amendment within thirty (30) days of receipt.
Any failure, actual or alleged, on the part of the County t o monitor or enforce compliance with any of the insurance and indemnification requirements will not be deemed as a waiver of any rights on the part of the County.
6. RIGHT TO MONITOR AND AUDIT
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A. The County, State and Federal government shall have absol ute right to review and audit all records, books, papers, documents, corporate minutes, and other pertinent items as requested, and shall have absolute right to monitor the performance of Contractor in the delivery of services provided under this Contract. Contractor shall give full cooperation, in any auditing or monitoring conducted. Contractor shall cooperate with the County in the implementation, monitoring, and evaluation of this Contract and comply with any and all reporting requirements established by the County.
B. All records pertaining to services delivered and all fiscal, statistical and management books and records shall be available for examination and audit by County representatives for a period of three years after final payment under this Contr act or u ntil all pending County, State and Federal audits are completed, whichever is later.
7. CORRECTION OF PERFORMANCE DEFICIENCIES
A. Failure by Contractor to comply with any of the provisions, covenants, requirements or conditions of this Contract shall be a material breach of this Contract.
B. In the event of a non-cured breach, County may, at its sole discretion and in addition to any other remedies available at law, in equity, or otherwise specified in this Contract:
i. Afford Contractor thereafter a time pe riod wit hin w hich to cure the breach, which period shall be established at the sole discretion of County; and/or ii. Discontinue reimbursement to Contractor for and during the period in which Contractor is in breach, which reimbursement shall not be entitled t o later recovery; and/or
iii. Withhold funds pending duration of the breach; and/or iv. Offset against any monies billed by Contractor but yet unpaid by County those monies disallowed pursuant to Item “B” of this paragraph; and/or v. Terminate this Contract immediatel y and be relieved of the payment of any consideration to Contractor. In the event of such termination, the County may proceed with the work in any manner deemed proper by the County. The cost to the County shall be deducted from any sum due to the Contract or under this Contract and the balance, if any, shall be paid by the Contractor upon demand.
8. NOTICES
All written notices provided for in this Contract or which either party desires to give to the other shall be deemed fully given, when made in writing and either served personally, or by facsimile, or deposited in the United States mail, postage prepaid, and addressed to the other party as follows:
San Bernardino County
County Administrative Office – 4th Floor
385 N. Arrowhead Avenue
San Bernardino, CA 92415
City of Fontana
8353 Sierra Ave.
Fontana, CA 92335
Notice shall be deemed communicated two (2) County working days from the time of mailing if mailed as provided in this paragraph.
9. ENTIRE AGREEMENT
This Contract, including all Exhibits and other attachments, which are attached hereto and incorporated by reference, and other documents incorporated herein, represents the final, complete and exclusive agreement between the parties hereto. Any prior agreement, promises, negotiations or representations relating to the subject matter of this Contract not 178
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expressly set forth herein are of no force or effect. This Contract is executed without reliance upon any promise, warranty or representation by any party or any representative of any party other than th ose expressly contained herein. Each party has carefully read this Contract and signs the same of its own free will.
10. CONTRACT EXECUTION
This Contract may be executed in any number of counterparts, each of which so executed shall be deemed to be an origina l, and such counterparts shall together constitute one and the same Contract. The parties shall be entitled to sign and transmit an electronic signature of this Contract (whether by facsimile, PDF or other email transmission), which signature shall be binding on t he party whose name is contained therein. Each party providing an electronic signature agrees to promptly execute and deliver to the other party an original signed Contract upon request.
IN WITNESS WHEREOF, the San Bernardino County and City of Fo ntana have each caused this Contract to be subscribed by its respective duly authorized officers, on its behalf.
FOR COUNTY USE ONLY
Approved as to Legal Form Reviewed for Contract Compliance Reviewed/Approved by Department
Julie Surber, Principal Asst. County Counsel
Date Date Date
SAN BERNARDINO COUNTY
(Print or type name of corporation, company, contractor, etc.)
By
Leonard X. Hernandez, Chief Executive Officer (Authorized signature - sign in blue ink) Dated:
Name
(Print or type name of person signing contract)
Title
(Print or Type)
Dated:
Address
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EXHIBIT A
SCOPE OF EXPENDITURES
[SEPARATELY ATTACHED]
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EXHIBIT B
PREVAILING WAGE REQUIREMENTS
A. All or a portion of the Scope of Work in the Contract requires the payment of prevailing wages and compliance with the following requirements:
1. Determination of Prevailing Rates:
Pursuant to Labor Code sections 1770, et se q., the County has obtained from the Director of the Department of Industrial Relations (DIR) pursuant to the California Labor Code, the general prevailing rates of per diem wages and the prevailing rates for holiday and overtime work in the locality in wh ich the Scope of Work is to be performed. Copies of said rates are on file with the County, will be made available for inspection during regular business hours, may be included elsewhere in the specifications for the Scope of Work, and are also available online at www.dir.ca.gov. The wage rate for any classification not listed, but which may be required to execute the Scope of Work, shall be commensurate and in accord with specified rates for similar or comparable class ifications for those performing similar or comparable duties. In accordance with Labor Code section 1773.2, the Contractor shall post, at appropriate and conspicuous locations on the job site, a schedule showing all applicable prevailing wage rates and sha ll compl y with the requirements of Labor Code sections 1773, et seq.
2. Payment of Prevailing Rates
Each worker of the Contractor, or any subcontractor, engaged in the Scope of Work, shall be paid not less than the general prevailing wage rate, regardless of any con tractual relationship which may be alleged to exist between the Contractor or any subcontractor, and such worker.
3. Prevailing Rate Penalty
The Contractor shall, as a penalty, forfeit two hundred dollars ($200.00) to the County for each calendar day or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of the DIR for such work or craft in which such worker is employed by the Contractor or by any subcontractor in connection with the Scope of Work.
Pursuant to C alifornia Labor Code section 1775, the difference between such prevailing wage rates and the amount paid to each worker for each calendar day, or portion thereof, for which each worker was paid less than the prevailing wage rate, shall be paid to e ach worker by the Contractor.
4. Ineligible Contractors:
Pursuant to the provisions of Labor Code section 1777.1, the Labor Commissioner publishes and distributes a list of contractors ineligible to perform work as a contractor or subcontractor on a public works project. This list of debarred contractors is available from the DIR website at http://www.dir.ca.gov/Public-Works/PublicWorks.html. Any contract entered into between a contractor an d a debarred subcontractor is void as a matter of law.
A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract, and any public money that may have been paid to a debarred subcontractor by a contractor on the project shall be returned to the County.
The Contractor shall be responsible for the payment of wages to workers as a debarred subcontractor who has been allowed to work on the Scope of Work.
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5. Payroll Records:
a. Pursuant to California Labor Code section 1776, the Contractor and each subcontractor, shall keep accurate certified payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed by them in connection with the Scope of Work. The payroll records enumerated herein shall be verified by a written declaration made under penalty of perjury that the information contained in the payroll record is true and correct and that the Contractor or subcontractor has complied with the requirements of the California Labor Code sections 1771, 1811, and 1815 for any Scope of Work performed by his or her employees. The payroll records shall be available for inspection at all reasonable hours at the principal office of the Contractor on the following basis:
i. A certified copy of an employee's payroll record shall be made available for inspection or furnished to such employ ee or his/her authorized representative on request;
ii. A certified copy of all payroll records shall be made available for inspection or furnished upon request to the County, the Division of Labor Standards Enforcement of the DIR;
iii. A certified copy of payroll records shall be made available upon request to the public for inspection or copies thereof made; provided, however, that a request by the public shall be made through either the County or the Division of Labor Standards Enforcement. If the requested payro ll recor ds have not been previously provided to the County or the Division of Labor Standards Enforcement, the requesting party shall, prior to being provided the records, reimburse the cost of preparation by the Contractor, subcontractor and the entity through wh ich t he request was made; the public shall not be given access to such records at the principal office of the Contractor; iv. The Contractor shall file a certified copy of the payroll records with the entity that requested such records within ten (10) days after receipt of a written request; and v. Copies provided to the public, by the County or the Division of Labor Standards Enforcement shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address and social se curity n umber. The name and address of the Contractor or any subcontractor, performing a part of the Scope of Work shall not be marked or obliterated. The Contractor shall inform the County of the location of payroll records, including the street address, city and county and shall, within five (5) working days, provide a notice of a change of location and address.
b. The Contractor shall have ten (10) days from receipt of the written notice specifying in what respects the Contractor must comply with the above requirements. In the event Contractor does not comply with the requirements of this section within the ten (10) day period, the Contractor shall, as a penalty to the County, forfeit one -hundred dollars ($100.00) for each calendar day, or portion thereof, f or each worker, until strict compliance is effectuated. Upon the request of the Division of Labor Standards Enforcement, such penalty shall be withheld from any portion of the payments then due or to become due to the Contractor.
6. Limits on Hours of Work:
Pursuant to California Labor Code section 1810, eight (8) hours of labor shall constitute a legal day's work. Pursuant to California Labor Code section 1811, the time of service of any worker employed at any time by the Contractor or by a subcontractor, up on the S cope of Work or upon any part of the Scope of Work, is limited and restricted to eight (8) hours during any one calendar day and forty (40) hours during any one calendar week, except as 182
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provided for under Labor Code section 1815. Notwithstanding th e forego ing p rovisions, work performed by employees of Contractor or any subcontractor, in excess of eight (8) hours per day and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours pe r day at not less than one and one-half (1½) times the basic rate of pay.
7. Penalty for Excess Hours:
The Contractor shall pay to the County a penalty of twenty -five dollars ($25.00) for each worker employed on the Scope of Work by the Contractor or any sub contractor, for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any calendar day and forty (40) hours in any one calendar week, in violation of the provisions of the California Labor Code, unless com pensation to the worker so employed by the Contractor is not less than one and one -half (1½) times the basic rate of pay for all hours worked in excess of eight (8) hours per day.
8. Senate Bill 854 (Chapter 28, Statutes of 2014) and Senate Bill 96 (Chapter 28, Statutes of 2017) Requirements:
a. Contractor shall comply with Senate Bill 854 and Senate Bill 96. The requirements include, but are not limited to, the following:
i. No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the DIR pursuant to Labor Code section 1725.5, with limited exceptions from this requirements for bid purposes only as allowed under Labor Code section 1771.1(a).
ii. No contractor or subcontractor may be awarded a contract for public wo rk or perform work on a public works project unless registered with the DIR pursuant to Labor Code section 1725.5.
iii. This project is subject to compliance monitoring and enforcement by the DIR. iv. As required by the DIR, Contractor is required to post job site notices, as prescribed by regulation, regarding compliance monitoring and enforcement by the DIR.
v. Contractors and all subcontractors must submit certified payroll records online to the Labor Commissioner for all public works projects.
1) The certified payroll must be submitted at least monthly to the Labor Commissioner.
2) The County reserves the right to require Contractor and all subcontractors to submit certified payroll records more frequently than monthly to the Labor Commissioner.
3) The certified payroll reco rds must be in a format prescribed by the Labor Commissioner.
vi. Registration with the DIR and the submission of certified payroll records to the Labor Commissioner are not required if the public works project is $25,000 or less when the project is for constr uction, alteration, demolition, installation or repair work, or if the public works project is $15,000 or less when the project is for maintenance work.
b. Labor Code section 1725.5 states the following:
“A contractor shall be registered pursuant to this se ction to be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any public work contract that is subject to the requirements of this chapter. For the pur poses of this section, “contractor” includes a subcontractor as defined by Section 1722.1.
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(a) To qualify for registration under this section, a contractor shall do all of the following:
(1) (A) Register with the Department of Industrial Relations in the manner prescribed by the department and pay an initial nonrefundable application fee of four hundred dollars ($400) to qualify for registration under this section and an annual renewal fee on or before July 1 of each year thereafter. The annual renewal fe e shall be in a uniform amount set by the Director of Industrial Relations, and the initial registration and renewal fees may be adjusted no more than annually by the director to support the costs specified in Section 1771.3.
(B) Beginning June 1, 2019, a contractor m ay register or renew according to this subdivision in annual increments up to three years from the date of registration.
Contractors who wish to do so will be required to prepay the applicable nonrefundable application or renewal fees to quali fy for t he number of years for which they wish to preregister.
(2) Provide evidence, disclosures, or releases as are necessary to establish all of the following:
(A) Workers' compensation coverage that meets the requirements of Division 4 (commencing with Section 3200) and includes sufficient coverage for any worker whom the contractor employs to perform work that is subject to prevailing wage requirements other than a contractor who is separately registered under this section. Coverage may be evidenced b y a curr ent and valid certificate of workers' compensation insurance or certification of self -insurance required under Section 7125 of the Business and Professions Code.
(B) If applicable, the contractor is licensed in accordance with Chapter 9 (commencin g with Section 7000) of the Business and Professions Code.
(C) The contractor does not have any delinquent liability to an employee or the state for any assessment of back wages or related damages, interest, fines, or penalties pursuant to any final judgm ent, order, or determination by a court or any federal, state, or local administrative agency, including a confirmed arbitration award. However, for purposes of this paragraph, the contractor shall not be disqualified for any judgment, order, or determinat ion that is under appeal, provided that the contractor has secured the payment of any amount eventually found due through a bond or other appropriate means.
(D) The contractor is not currently debarred under Section 1777.1 or under any other federal or state law providing for the debarment of contractors from public works.
(E) The contractor has not bid on a public works contract, been listed in a bid proposal, or engaged in the performance of a contract for public works without being lawfully registered in accordance with this section, within the preceding 12 months or since the effective date of the requirements set forth in subdivision (e), whichever is earlier. If a contractor is found to be in violation of the requ irements of this paragraph, the period of disqualification shall be waived if both of the following are true:
(i) The contractor has not previously been found to be in violation of the requirements of this paragraph within the preceding 12 months.
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(ii) T he contr actor pays an additional nonrefundable penalty registration fee of two thousand dollars ($2,000).
(b) Fees received pursuant to this section shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be u sed only for the purposes specified in that section.
(c) A contractor who fails to pay the renewal fee required under paragraph (1) of subdivision (a) on or before the expiration of any prior period of registration shall be prohibited from bidding on or e ngaging in the performance of any contract for public work until once again registered pursuant to this section. If the failure to pay the renewal fee was inadvertent, the contractor may renew its registration retroactively by paying an additional nonrefun dable pe nalty renewal fee equal to the amount of the renewal fee within 90 days of the due date of the renewal fee.
(d) If, after a body awarding a contract accepts the contractor's bid or awards the contract, the work covered by the bid or contract is de termined to be a public work to which Section 1771 applies, either as the result of a determination by the director pursuant to Section 1773.5 or a court decision, the requirements of this section shall not apply, subject to the following requirements:
(1) The body that awarded the contract failed, in the bid specification or in the contract documents, to identify as a public work that portion of the work that the determination or decision subsequently classifies as a public work.
(2) Within 20 days follo wing service of notice on the awarding body of a determination by the Director of Industrial Relations pursuant to Section 1773.5 or a decision by a court that the contract was for public work as defined in this chapter, the contractor and any subcontractors are registered under this section or are replaced by a contractor or subcontractors who are registered under this section.
(3) The requirements of this section shall apply prospectively only to any subsequent bid, bid proposal, contract, or work perfor med afte r the awarding body is served with notice of the determination or decision referred to in paragraph (2).
(e) The requirements of this section shall apply to any bid proposal submitted on or after March 1, 2015, to any contract for public work, as defined in this chapter, executed on or after April 1, 2015, and to any work performed under a contract for public work on or after January 1, 2018, regardless of when the contract for public work was executed.
(f) This section does not apply to work per formed on a public works project of twenty - five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.”
c. Labor Code section 1771.1 states the following:
“(a) A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Publ ic Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregister ed contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by 185
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Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at t he time the contract is awarded.
(b) Notice of the requirement described in subdivision (a) shall be included in all bid invitations and public works contracts, and a bid shall not be accepted nor any contract or subcontract entered into without proof of the cont ractor or subcontractor's current registration to perform public work pursuant to Section 1725.5.
(c) An inadvertent error in listing a subcontractor who is not registered pursuant to Section 1725.5 in a bid proposal shall not be grounds for filin g a bid protest or grounds for considering the bid nonresponsive, provided that any of the following apply:
(1) The subcontractor is registered prior to the bid opening.
(2) Within 24 hours after the bid opening, the subcontractor is registered and has p aid the penalty registration fee specified in subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5.
(3) The subcontractor is replaced by another registered subcontractor pursuant to Section 4107 of the Public Contract Code.
(d) Failure by a sub contractor to be registered to perform public work as required by subdivision (a) shall be grounds under Section 4107 of the Public Contract Code for the contractor, with the consent of the awarding authority, to substitute a subcontractor who is r egistered to perform public work pursuant to Section 1725.5 in place of the unregistered subcontractor.
(e) The department shall maintain on its Internet Web site a list of contractors who are currently registered to perform public work pursuant to Section 1725.5.
(f) A contract entered into with any contractor or subcontractor in violation of subdivision (a) shall be subject to cancellation, provided that a contract for public work shall not be unlawful, void, or voidable solely due to the failure of the awarding body, contractor, or any subcontractor to comply with the requirements of Section 1725.5 or this section.
(g) If the Labor Commissioner or his or her designee determines that a contractor or subcontractor engaged in the performance of any public work contract without having been registered in accordance with this section, the contractor or subcontractor shall forfeit, as a civil penalty to the state, one hundred dollars ($100) for each day of work performed in violation of the registration requir ement, n ot to exceed an aggregate penalty of eight thousand dollars ($8,000) in addition to any penalty registration fee assessed pursuant to clause (ii) of subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5.
(h)(1) In addition to, or in lieu of, any other penalty or sanction authorized pursuant to this chapter, a higher tiered public works contractor or subcontractor who is found to have entered into a subcontract with an unregistered lower tier subcontractor to perform any public work in violation of the requirements of Section 1725.5 or this section shall be subject to forfeiture, as a civil penalty to the state, of one hundred dollars ($100) for each day the unregistered lower tier subcontractor performs work in violation of the 186
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registration requirement, not to exceed an aggregate penalty of ten thousand dollars ($10,000).
(2) The Labor Commissioner shall use the same standards specified in subparagraph (A) of paragraph (2) of subdivision (a) of Section 1775 when determining the seve rity of the v iolation and what penalty to assess, and may waive the penalty for a first time violation that was unintentional and did not hinder the Labor Commissioner’s ability to monitor and enforce compliance with the requirements of this chapter.
(3) A higher tiered public works contractor or subcontractor shall not be liable for penalties assessed pursuant to paragraph (1) if the lower tier subcontractor’s performance is in violation of the requirements of Section 1725.5 due to the revocation of a previously approved registration.
(4) A subcontractor shall not be liable for any penalties assessed against a higher tiered public works contractor or subcontractor pursuant to paragraph (1). A higher tiered public works contractor or subcontractor may not require a lower tiered subcontractor to indemnity or otherwise be liable for any penalties pursuant to paragraph (1).
(i) The Labor Commissioner or his or her designee shall issue a civil wage and penalty assessment, in accordance with the provisions of S ection 1741, upon determination of penalties pursuant to subdivision (g) and subparagraph (B) of paragraph (1) of subdivision (h). Review of a civil wage and penalty assessment issued under this subdivision may be requested in accordance with the provision s of Sec tion 1742. The regulations of the Director of Industrial Relations, which govern proceedings for review of civil wage and penalty assessments and the withholding of contract payments under Article 1 (commencing with Section 1720) and Article 2 (com mencing with Section 1770), shall apply.
(j)(1) Where a contractor or subcontractor engages in the performance of any public work contract without having been registered in violation of the requirements of Section 1725.5 or this section, the Labor Commiss ioner sh all i ssue and serve a stop order prohibiting the use of the unregistered contractor or the unregistered subcontractor on all public works until the unregistered contractor or unregistered subcontractor is registered. The stop order shall not apply to work by registered contractors or subcontractors on the public work.
(2) A stop order may be personally served upon the contractor or subcontractor by either of the following methods:
(A) Manual delivery of the order to the contractor or subcontractor personally.
(B) Leaving signed copies of the order with the person who is apparently in charge at the site of the public work and by thereafter mailing copies of the order by first class mail, postage prepaid to the contractor or subcontractor at one of the following:
(i) The address of the contractor or subcontractor on file with either the Secretary of State or the Contractors’ State License Board.
(ii) If the contractor or subcontractor has no address on file with the Secretary of State or the Contractors’ State License Board, the address of the site of the public work. 187
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(3) The stop order shall be effective immediately upon service and shall be subject to appeal by the party contracting with the unregistered contractor or subcontractor, by the unregistered contractor or subcontractor, or both. The appeal, hearing, and any further review of the hearing decision shall be governed by the procedures, time limits, and other requirements specified in subdivision (a) of Section 238.1.
(4) Any employee of an unregistered contractor or subcontractor who is affected by a work stoppage ordered by the commissioner pursuant to this subdivision shall be paid at his or her regular hourly prevailing wage rate by that employer for any hours the employee would have worked but for the work stoppage, not to exceed 10 days.
(k) Failure of a contractor or subcontractor, owner, director, officer, or managing agent of the contractor or subcontractor to observe a stop order issued and served upon him or her pursuant to subdivision (j) is guilty of a misdemeanor punishable by imprisonment in county jail not exceeding 60 days or by a fine not exceeding ten thousand dollars ($10,000), or both.
(l) This section shall apply to any bid proposal submitted on or after March 1, 2015, and any contract for public work entered into on or after April 1, 2015. This section shall also apply to the performance of any public work, as defined in this chapter, on or after January 1, 2018, regardless of when the contract for public work was entered.
(m) Penalties received pursuant to this section shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be used only for the purposes specified in that section.
(n) This section shall not apply to work pe rformed on a public works project of twenty - five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.”
d. Labor Code section 1771.4 states the following:
“(a) All of the following are applicable to all public works projects that are otherwise subject to the requirements of this chapter:
(1) The call for bids and contract documents shall specify that the project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
(2) The awarding body shall post or require the prime contractor to post job site notices, as prescribed by regulation.
(3) Each contractor and subcontractor shall furnish the records specified in Section 1776 directly to the Labor Commissioner, in the following manner:
(A) At least monthly or more frequently if specified in the contract with the awardi ng body.
(B) In a format prescribed by the Labor Commissioner.
(4) If the contractor or subcontractor is not registered pursuant to Section 1725.5 and is performing work on a project for which registration is not required because of subdivision (f) of Se ction 17 25.5, the unregistered contractor or subcontractor is not 188
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required to furnish the records specified in Section 1776 directly to the Labor Commissioner but shall retain the records specified in Section 1776 for at least three years after completion of the work.
(5) The department shall undertake those activities it deems necessary to monitor and enforce compliance with prevailing wage requirements.
(b) The Labor Commissioner may exempt a public works project from compliance with all or part of the requirements of subdivision (a) if either of the following occurs:
(1) The awarding body has enforced an approved labor compliance program, as defined in Section 1771.5, on all public works projects under its authority, except those deemed exempt pursuant to subdivision (a) of Section 1771.5, continuously since December 31, 2011.
(2) The awarding body has entered into a collective bargaining agreement that binds all contractors performing work on the project and that includes a mechanism for resolving disputes about the payment of wages.
(c) The requirements of paragraph (1) of subdivision (a) shall only apply to contracts for public works projects awarded on or after January 1, 2015.
(d) The requirements of paragraph (3) of subdivision (a) shall apply t o all co ntracts for public work, whether new or ongoing, on or after January 1, 2016.”
B. STATE PUBLIC WORKS APPRENTICESHIP REQUIREMENTS
1. State Public Works Apprenticeship Requirements:
a. The Contractor is responsible for compliance with Labor Code section 1777 .5 and t he California Code of Regulations, title 8, sections 230 – 230.2 for all apprenticeable occupations (denoted with “#” symbol next to craft name in DIR Prevailing Wage Determination), whether employed by the Contractor, subcontractor, vendor or consultant. Included in these requirements is (1) the Contractor’s requirement to provide notification (i.e. DAS-140) to the appropriate apprenticeship committees; (2) pay training fund contributions for each apprenticeable hour employed on the Contract; and ( 3) utilize apprentices in a minimum ratio of not less than one apprentice hour for each five journeyman hours by completion of Contract work (unless an exception is granted in accordance with Labor Code section 1777.5) or request for the dispatch of apprentices. b. Any apprentices employed to perform any of the Scope of Work shall be paid the standard wage to apprentices under the regulations of the craft or trade for which such apprentice is employed, and such individual shall be employed only for the work of the craft or trade to which such individual is registered. Only apprentices, as defined in California Labor Code section 3077, who are in training under apprenticeship standards and written apprenticeship agreements under California Labor Code sections 30 70 et seq. are eligible to be employed for the Scope of Work. The employment and training of each apprentice shall be in accordance with the provisions of the apprenticeship standards and apprentice agreements under which such apprentice is training.
2. Compliance w ith California Labor Code section 1777.5 requires all public works contractors to:
a. Submit Contract Award Information (DAS-140):
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i. Although ther e are a few e xemptions (identified below), all Contractors, regardless of union affiliation, must submit contract award information when performing on a California public works project.
ii. The DAS -140 is a notification “announcement” of the Contractor’s parti cipation on a public works project—it is not a request for the dispatch of an apprentice. iii. Contractors shall submit the contract award information (you may use form DAS 140) within 10 days of the execution of the prime contract or subcontract, but in no event later than the first day in which the Contractor has workers employed on the public work.
iv. Contractors who are already approved to train apprentices (i.e. check “Box 1” on the DAS -140) shall only be required to submit the form to their approved program.
v. Contractors w ho are NOT approved to train apprentices (i.e. those that check either “Box 2” or “Box 3” on the DAS-140) shall submit the DAS-140 TO EACH of the apprenticeship program sponsors in the area of your public works project. For a listing of apprenticeship programs see
http://www.dir.ca.gov/Databases/das/pwaddrstart.asp.
b. Employ Registered Apprentices
i. Labor Code section 1777.5 requires that a contractor performing work in an “apprenticeable” craft must employ one (1) hour of apprentice work for every five (5) hours performed by a journeyman. This ratio shall be met prior to the Contractor’s completion of work on the project. “Apprenticeable” crafts are denoted with a pound symbol “#” in front of the craft name on the prevailing wage determination.
ii. All Contractors who do not fall within an exemption category (see below) must request for dispatch of an apprentice from an apprenticeship program (for each apprenticeable craft or trade) by giving the program actual notice of at least 72 hours (business days only) before the date on which apprentices are required. iii. Contractors may use the “DAS-142” form for making a request for the dispatch of an apprentice.
iv. Contractors who are participating in an approved apprenticeship training program and who did not receive sufficient number of apprentices from their initial request must request dispatch of apprentices from ALL OTHER apprenticeship committees in the project area in order to fulfill this requirement. v. Contractor should maintain and submit proof (when requested) of its DAS -142 submittal to the apprenticeship committees (e.g. fax transmittal confirmation). A Contractor has met its requirement to employ apprentices only after it has successfully made a d ispatch request to all apprenticeship programs in the project area.
vi. Only “registered” apprentices may be paid the prevailing apprentice rates and must, at all times work under the supervision of a Journeyman (Cal. Code Regs., tit 8, § 230.1).
c. Make Training Fund Contributions
i. Contractors performing in apprenticeable crafts on public works projects, must make training fund contributions in the amount established in the prevailing wage rate publication for journeymen and apprentices.
ii. Contractors may us e the “C AC-2” form for submittal of their training fund contributions.
iii. Contractors who do not submit their training fund contributions to an approved apprenticeship training program must submit their contributions to the California Apprenticeship Council (CAC), PO Box 420603, San Francisco, CA 94142-0603. 190
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iv. Training fund contributions to the CAC are due and payable on the 15th day of the month for work performed during the preceding month. v. The “training” contribution amount identified on the prevailing wage determination shall not be paid to the worker, unless the worker falls within one of the exemption categories listed below.
3. Exemptions to Apprenticeship Requirements:
a. The following are exempt from having to comply with California apprenticeship requirements. These types of contractors do not need to submit a DAS -140, DAS-142, make training fund contributions, or utilize apprentices:
i. When the Contractor holds a sole proprietor license (“Owner -Operator”) and no workers were employed by the Contractor. In othe r words, the contractor performed the entire work from start to finish and worked alone. ii. Contractors performing in non -apprenticeable crafts. “Apprenticeable” crafts are denoted with a pound symbol “#” in front of the craft name on the prevailing wage determination.
iii. When the Contractor has a direct contract with the Public Agency that is under $30,000.
iv. When the project is 100% federally -funded and the funding of the project does not contain any city, county, and/or state monies (unless the project is administered by a state agency in which case the apprenticeship requirements apply).
v. When the project is a private project not covered by the definition of public works as found in Labor Code section 1720.
4. Exemption from Apprenticeship Rations:
a. The Joint Appren ticeship Committee shall have the discretion to grant a certificate, which shall be subject to the approval of the Administrator of Apprenticeship, exempting the Contractor from the 1-to-5 ratio set forth in this Section when it finds that any one of the following conditions are met:
i. Unemployment for the previous three -month period in such area exceeds an average of fifteen percent (15%); or
ii. The number of apprentices in training in such area exceeds a ratio of 1 -to-5 in relation to journeymen; or
iii. The Apprenticeable Craft or Trade is replacing at least one -thirtieth (1/30) of its journeymen annually through apprenticeship training, either on a statewide basis or on a local basis; or
iv. If assignment of an apprentice to any work performed under the Contract Documents wou ld create a condition which would jeopardize such apprentice's life or the life, safety or property of fellow employees or the public at large, or if the specific task to which the apprentice is to be assigned is of such a nature that training cannot be provided by a journeyman.
b. When such exemptions from the 1 -to-5 ratio between apprentices and journeymen are granted to an organization which represents contractors in a specific trade on a local or statewide basis, the member contractors will not be required to s ubmit individual applications for approval to local Joint Apprenticeship Committees, provided they are already covered by the local apprenticeship standards.
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5. Contractor’s Compliance:
a. The responsibility of compliance with this Section for all Apprenticeable Trades or Crafts is solely and exclusively that of the Contractor. All decisions of the Joint Apprenticeship Committee(s) under this Section are subject to the provisions of California Labor Code section 3081 and penalties are pursuant to Labor Code section 1777.7 and the determination of the Labor Commissioner.
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THE INFORMATION IN THIS BOX IS NOT A PART OF THE CONTRACT AND IS FOR COUNTY USE ONLY
County Administrative Office
Department Contract Representative Matthew Erickson, County Chief Financial Officer
Telephone Number (909) 387-5423
Contractor City of Fontana
DUNS No. 004949541
UEI No. WLF8LH1TH3P8
Contractor Representative Matt Ballantyne, City Manager Telephone Number 909-350-7653
Contract Term 7/1/2022 through 12/31/2026
Original Contract Amount Based on actual project costs not to exceed $1,545,000
Amendment Amount
Total Contract Amount Based on actual project costs not to exceed $1,545,000
Cost Center 1100921078
Internal Order (If Applicable) 1012320
CONTRACT BETWEEN SAN BERNARDINO COUNTY AND CITY OF FONTANA RELATED TO
THE AMERICAN RESCUE PLAN ACT AND THE CORONAVIRUS LOCAL FISCAL RECOVERY FUND
WHEREAS, on March 4, 2020, the State of California declared a state of emergency as a result of the Coronavirus Disease 2019 (COVID-19) outbreak and on March 13, 2020, by Proclamation 9994, the President declared a national emergency concerning the COVID -19 pandemic. The COVID -19 pandemic continues to cause significant risk to the public health and safety of the United States; and
WHEREAS, on March 11, 2021, the American Rescue Plan Act (ARPA) was signed into law by the President and the law is intended to combat the COVID-19 pandemic, including the public health and economic impacts; and
WHEREAS, pursuant to S ection 9901 of the ARPA, San Bernardino County (County) received a disbursement from the Unite d States Department of the Treasury of money associated with the Coronavirus Local Fiscal Recovery Fund (CLFRF) for Local Governments under Section 603(a) [see 42 U.S.C. Section 803]; and
Contract Number
ARPA21-PRJC-016-FON
SAP Number
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WHEREAS, the County agreed to comply with the United States Department of the Treasury Coronavirus State Fiscal Recovery Fund Award Terms and Conditions (Terms and Conditions), including Assurance of Compliance with Title VI of t he Civil Rights Act of 1964 (Assurance of Compliance with Civil Rights Requirements), identified in the U nited States Department of the Treasury and San Bernardino County Agreement (OMB Approved No. 1505 -0271) (U nited States Department of the Treasury Agre ement), which is on file with the County and incorporated herein by this reference; and
WHEREAS, the Assistance Listing Number (ALN)/Federal Assistance Identification Number (FAIN) for the ARPA CLFRF is 21.027/SLT-0628 respectively; and
WHEREAS, the ARPA provides that payments from the CLFRF may be used for the following : i) to respond to the public health emergency with respect to COVID -19 or its negative economic impacts, including assistance to households, small businesses, and nonprofits, or aid to i mpacted industries such as tourism, travel, and hospitality ; ii) to respond to workers performing essential work during the COVID–19 public health emergency by providing premium pay to eligible workers that are performing such essential work, or by providi ng grant s to eligible employers that have eligible workers who perform essential work ; iii) for the provision of government services to the extent of the reduction in revenue due to the COVID –19 public health emergency relative to revenues collected in the most recent full fiscal year prior to the emergency; or iv) to make necessary investments in water, sewer, or broadband infrastructure; and
WHEREAS, funding provided under ARPA CLFRF must be obligated by December 31, 2024 and expended by December 31, 2026; and
WHEREAS, the County desires to transfer and City of Fontana (Contractor) desires to accept a transfer from ARPA CLFRF in the not to exceed amount of $ 1,545,000 for expenditures identified in Exhibit “A” related to Jack Bulik Park Improvement Project.
NOW, THEREFORE, in consideration of the above, the County and Contractor agree as follows:
1. THE ARPA CLFRF
A. This Contract applies to the following ARPA CLFRF transfers:
The transfer by the County of an amount not to exceed $1,545,000 to Contractor on a reimbursement basis for expenditures identified in Exhibit “A”. Exhibit “A” is attached hereto and incorporated herein by this reference. County acknowledges and agrees that Contractor will be administering the transfer of funds for the expenditures iden tified i n Exhibit “A” by separate contracts. Contractor shall provide the County quarterly reports of actual cash expenditures to date under this Contract, and estimated cash expenditures through December 31 st of each year. County, through its Chief Execut ive Officer (CEO), in the CEO’s sole discretion, reserves the right to reduce the transfer amount identified in this Contract with fifteen (15) days advance written notice provided to Contractor. The reduction would be based: A) on Contractor’s estimated cash expenditures through December 31st of each year ; B) a later determination by the United States Department of the Treasury, or County, that the costs identified in this Contract are inelig ible for ARPA CLFRF; or C) a determination by CEO the funds should be utilized in a different manner.
B. Contractor certifies that the use of funds that will be submitted for reimbursement from the CLFRF under Paragraph 1. A. and Exhibit “A ” of this Contract will be used only to cover those costs that: i) are related to pu blic hea lth or negative economic impact eligible use and; and ii) were incurred during the period that begins 7/1/2022, and will end 11/30/2024.
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costs are costs incurred by Contractor during the time period referenced above that are allowable for reimbursement. Any cost obligated by Contractor as of December 31, 2024, must be expended by December 31, 2026, to meet the eligible costs timeframe as defined by the United States Department of the Treasury.
C. Contractor agrees that the funds provided pursuant to this Contract cannot be used: i) as a revenue replacement for lower than expected tax or other revenue collections; ii) for expenditures for which Contractor has received any othe r emergency COVID -19 supplemental funding (whether federal, state, or private in nature) for that same expense ; or iii) as a deposit into any pension fund.
D. Contractor shall prepare and submit to County an invoice for reimbursement of eligible funding expenses identified in Paragraph 1.A., above. Invoices may be submitted to County as frequently as monthly. Invoices will be reviewed and approved for compliance with terms of this Contract. County shall reimburse to Contractor the amount of approved invoices submitted within sixty (60) days of receipt. If an invoice is rejected, or revisions are requested, Contractor will work with County to submit the required revisions.
E. Both County and Contractor agree to comply with any and all ARPA CLFRF requirements, including but are not limited to the terms included in this Contract , as well as any and all applicable County, Contractor, State, and Federal laws, regulations, policies and procedures pertaining to the funding described in this Contract. County and Contractor shall comply with Title 2 Code of Federal Regulations ( C.F.R.) Part 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards), including, but not limited to, Title 2 C.F.R. Section 200.303 (internal control), Title 2 C.F.R. Sections 200.331 through 200.333 (subrecipient monitoring and management), and Title 2 C.F.R. Part 200 S ubpart F (audit requirements), as these sections currently exist or may be amended . The use of funds must also adhere to official federal guidance issued or to be issued on what constitutes a n eligible expenditure. Any funds expended by Contractor or its subcontractor(s) in any manner that does not adhere to official federal guidance shall be returned to the County. Contractor agree s to com ply with all official guidance regarding the ARPA CLFRF. County and Contractor also agree that as additional federal guidance becomes available, a n amendment to this Contract may become necessary. If an amendment is required, Contractor agrees to p romptly execute the Contract amendment.
F. Contractor shall retain documentation of all uses of the funds, including but not limited to invoices and/or sales receipts in a manner consistent with Title 2 C.F.R. Section 200.334 (retention requirements for reco rds). Su ch documentation shall be produced to County upon request and may be subject to audit. Unless otherwise provided by Federal or State law (whichever is the most restrictive) , Contractor shall maintain all documentation connected with its performance under this Contract for a minimum of five (5) years from the date of the last payment made by County or until audit resolution is achieved, whichever is later, and to make all such supporting information available for inspection and audit by representatives of the County, the State or the United States Government during normal business hours at Contractor. Copies will be made and furnished by Contractor upon written request by County.
G. Contractor shall establish and maintain an accounting system conforming to Gene rally Accepted Accounting Principles (GAAP) to support Contractor’s requests for reimbursement which segregate and accumulate costs of Contractor and produce monthly reports which clearly identify reimbursable costs, matching fund costs (if applicable), and 195
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other allowable expenditures by Contractor. Contractor shall provide a monthly report of expenditures under this Contract no later than the 20th day of the following month.
H. Contractor shall cooperate in having an audit completed by County, at County’s option and expense. Any audit require d by A RPA CLFRF and its regulation and United States Treasury guidance will be completed by Contractor at Contractor’s expense.
I. Contractor shall repay to County any r eimbursement for ARPA CLFRF funding that is determined by subsequent audit to be unallowable under the ARPA CLFRF within the time period required by the ARPA CLFRF, but no later than one hundred twenty (120) days of Contractor receiving notice of audit findings, which time shall include an opportuni ty for Contractor to respond to and/or resolve the findings. Should the findings not be otherwise resolved and Contractor fail to reimburse moneys due County within one hundred twenty (120) days of audit findings, or within such other period as may be agre ed between both parties or required by the ARPA CLFRF, County reserves the right to withhold future payments due Contractor from any source under County’s control.
J. Contractor shall accept all payments from County via electronic funds transfer (EFT) directly depo sited into the Contractor’s designated checking or other bank account.
Contractor shall promptly comply with directions and accurately complete forms provided by County required to process EFT payments.
K. County is exempt from Federal excise taxes a nd no pa yment shall be made for any personal property taxes levied on Contractor or on any taxes levied on employee wages.
The County shall only pay for any State or local sales or use taxes on the services rendered or equipment and/or parts supplied to the County pursuant to the Contract.
L. Funds made available under this Contract shall not supplant any federal, state or any governmental funds intended for services of the same nature as this Contract. Contractor shall not claim reimbursement or payment from County for, or apply sums received from County with respect to that portion of its obligations that have been paid by another source of revenue. Contractor agrees that it will not use funds received pursuant to this Contract, either directly or indirectly , as a c ontribution or compensation for purposes of obtaining funds from another revenue source without prior written approval of the County.
M. County shall only reimburse costs incurred through the dates identified in Exhibit “A”. Contractor requirements i n Sections 1, 2 and 5 of this Contract shall survive the termination of this Contract. The costs to be reimbursed under this Contract do not include Research and Development as defined in Title 2 Code of Federal Regulations ( C.F.R.) Section 200.1, nor do they include indirect costs.
2. AMERICAN RESCUE PLAN ACT REQUIREMENTS
A. This Contract may be funded in whole or in part with funds provided by the American Rescue Plan Act - Coronavirus Local Fiscal Recovery Fund (ARPA), Federal Award Identification Number (FAIN): SLT-0628 and Assistance Listing Number (formerly known as a CFDA number): 21.027 , and therefore Contractor agrees to comply with any and all ARPA requirements in addition to any and all applicable County, State, and Federal laws, regulations, policies, and procedures pertaining to the funding of this Contract. The use of the funds must also adhere to official federal guidance issued or to be issued on what constitutes a necessary expenditure. Any funds expended by Contractor or its subcontractor(s) in a ny manner that does not adhere to the ARPA requirements shall be 196
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returned or repaid to the County. Any funds paid to Contractor: i) in excess of the amount to which Contractor is finally determined to be authorized to retain; ii) that are determined to have been m isused; or iii) that are determined to be subject to a repayment obligation pursuant to section 603(e) of the Act and have not been repaid, shall constitute a debt to the federal government. Contractor agrees to comply with the requirements of sect ion 603 of the Act, regulations adopted by Treasury pursuant to the Act, and guidance issued by Treasury regarding the foregoing. Contractor shall provide for such compliance in any agreements with subcontractor(s).
B. Contractor agrees to comply with all a pplicable federal laws and regulations, including but not limited to all laws and regulations identified in Section 2 of the Contract.
C. In accordance with Title 2 C.F.R. Section 200.322, the non -Federal Contractor should, to the greatest extent practicable under a Federal award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subawards including all contracts and purchase orders for work or products under this award. For purposes of this section: “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. “Manufactured products” means items and construction materials composed in whole or in part of non -ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
D. In accordance with Title 2 C.F.R. Section 200.471, c osts incurred for telecommunications and video surveillance services or equ ipment such as phones, internet, video surveillance, cloud servers are allowable except for the following circumstances: Obligating or expending covered telecommunications and video surveillance services or equipment or services (as described in 2 C.F.R. Section 200.216) to: 1) Procure or obtain, extend or renew a contract to procure or obtain; 2) Enter into a contract (or extend or renew a contract) to procure; or 3) Obtain the equipment, services, or systems, as described in Title 2 C.F.R. Section 200.216 that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115 -232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities) and: (i) F or the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affili ate of s uch entities); (ii) Telecommunications or video surveillance services provided by such e ntities or using such equipment; and (iii) Telecommunications or video surveillance equipment or services produced or provided by a n entity that the Secretary o f Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. In implementing the prohibition under Public Law 115 -232, section 889, subsection (f), paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs shall prioritize available funding and technical support to assist affect ed busin esses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement 197
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equipment and services, and to ensure that communications service to users and customers is sustained.
E. A non -Federal Contractor that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservatio n and Re covery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at Title 40 C.F.R. Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that ma ximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
F. Byrd Anti-Lobbying Amendment (31 U.S.C. Section 1352) - Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by Title 31 U.S.C. Section 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.
G. Clean Air Act (42 U.S.C. Sections 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. Sections 1251-1389), as amended - Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non -Federal award to agree to comply with all applicable standards, orders or regu lations issued pursuant to the Clean Air Act (42 U.S.C. Sections 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. Sections1251-1389).
H. Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of “funding agreement” under Title 37 C.F.R. Section 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the Title 33 U.S.C. Sections 1251-1387 recipient or subrecipient must comply with the requirements of Title 37 C.F.R. Part 401, “Rights to Inventions Made by Nonprofit Organizat ions and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.
I. Contract Work Hours and Safety Standards Act (40 U.S.C. Sections 3701-3708). Where applicable, all contracts awarded by the non -Federal Contractor in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with Title 40 U.S.C. Sections 3702 and 3704, as supplemented by Department of Labor regulations (2 9 C.F.R. Part 5). Under Title 40 U.S.C. Section 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week.
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provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous to health or safety .
These requirements do not apply to the purchases of supplies or materials or artic les ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
J. Davis-Bacon Act, as amended (40 U.S.C. Sections 3141-3148). When required by Federal program legislation, all prime construction contrac ts in ex cess of $2,000 awarded by non - Federal entities must include a provision for compliance with the Davi s-Bacon Act (40 U.S.C. Sections 3141 -3148) as supplemented by Department of Labor regulations (29 C.F.R. Part 5, “Labor Standards Provisions Applica ble to C ontracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination mad e by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non -Federal contractor must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non -Federal Contractor must report all suspected or reported violations to the Federal awarding agency.
The contracts must also include a provis ion for compliance with the Copeland “Anti - Kickback” Act ( 18 U.S.C. Section 874 and 40 U.S.C. Section 3145), as supplemented by Department of Labor regulations (29 C.F.R. Part 3, “Contractors and Subcontractors on Public Building or Public Work Fin anced in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to g ive up a ny part of the compensation to which he or she is otherwise entitled. The non -Federal contractor must report all suspected or reported violations to the Federal awarding agency.
i. The Contractor and all Subcontractors and Sub -subcontractors are requi red to p ay their employees and workers a wage not less than the minimum wage for the work classification as specified in both the Federal and California wage decisions. See Exhibit “B” for additional information regarding California Prevailing Wage Rate Requirements and the applicable general prevailing wage determinations which are on file with the County and are available to any interested party on request. The higher of the two applicable wage determinations, either California prevailing wage or Davis -Bacon Fede ral prevailing wage, will be enforced for all applicable work/services under this Contract.
K. Contracts for more than the simplified acquisition threshold, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by Title 41 U.S.C. Section 1908, must address administrative, contractual, or leg al remedies in instances where C ontractors violate or breach contract terms, and provide for such sanc tions an d penalties as appropriate.
L. All contracts in excess of $10,000 must address termination for cause and for convenience by the non -Federal Contractor including the manner by which it will be effected and the basis for settlement.
M. Equal Employment O pportunity. Except as otherwise provided under Title 41 C.F.R. Part 60, all contracts that meet the definition of “federally assisted const ruction contract” in Title 41 C.F.R. Section 60-1.3 must include the equal opportunity clause provided under Title 41 199
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C.F.R. Section 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Oppo rtunity,” and implementing regulations at 41 C.F.R. part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The identified clause is below and Contractor shall comply with the clause and all legal requi rements and include the equal opportunity clause in each of its nonexempt subcontracts.
i. The applicant hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined i n the regulations of the Secretary of Labor at Title 41 C.F.R. Chapter 60, which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan, insura nce, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following equal opportunity clause:
During the performance of this contract, the contractor agrees as follows:
(1) The con tractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin.
Such action shall include, but not be limited to the following: Employment, upgrading, demotion , or tra nsfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualif ied appl icants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or appli cant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such inform ation, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
(4) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' repre sentatives of 200
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the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as prov ided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provi sions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions wil l be bin ding upon each subcontractor or vendor.
The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in th e discharge of the agency's primary responsibility for securing compliance.
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The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause a s may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertaking s, the a dministering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with res pect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
N. Data Collection Requirements – Contractor agrees to collect pre-post data per County, and United States Treasury guidelines and timeline, for project tracking and monitoring and various rep orting purposes. Data including , but not limited to: Required Project Demographic Distribution Da ta; Required Performance I ndicators and Programmatic Data; Required Expenditure Report Data; and Required Program Evaluation Data. Contractor agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data that need s to be available to County, State or Federal governments upon request.
O. Data Submission Requirements - Contractor agrees to furnish data to the County up on request, per County, and United States Treasury guidelines and timeline, for project tracking and m onitoring and various reporting purposes. Data including, but not limited to:
Required Project Demographic Distribution Data; Required Performance I ndicators and Programmatic Data; Required Expenditure Report Data; Required Program Evaluation Data. Contractor agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data that needs to be available at request.
P. Project Progress Reporting - Contractor agrees to provide project timeline and progress updates to the Coun ty upon request, per County, and United States Treasury guidelines and timeline. Contractor agrees to routine and impromptu program and project evaluation by the County.
Q. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Fede ral Awards, Title 2 C.F.R. Part 200, other than such provisions as Treasury may determine are inapplicable and subject to such exceptions as may be otherwise provided by Treasury.
Subpart F – Audit Requirements of the Uniform Guidance, implementing the Sin gle Audit Act, shall apply.
R. Universal Identifier and System for Award Management (SAM), Title 2 C.F.R. Part 25.
S. Reporting Subaward and Executive Compensation Information, Title 2 C.F.R. Part 170.
T. OMB Guidelines to Agencies on Governmentwide Debarment an d Suspen sion (nonprocurement), title 2 C.F.R. Part 180, including the requirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 C.F.R. Part 180, subpart B) that the award is subject to Title 2 C.F. R. Part 180 and 202
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Treasury’s implementing regulation at Title 31 C.F.R. Part 19. Debarment and Suspension (Executive Orders 12549 and 12689) - A contract award (see 2 CFR Section 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at Title 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
U. Recipient Integrity and Performance Matters, pursuant to which the award terms set forth in Title 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference.
V. Government Requirements for Drug-Free Workplace, Title 31 C.F.R. Part 20.
W. New Restrictions on Lobbying, Title 31 C.F.R. Part 21.
X. Uniform Relocation Assistance and Real Property Acquis itions Act of 1970 (42 U.S.C.
Sections 4601-4655) and implementing regulations.
Y. Applicable Federal environmental laws and regulations.
Z. Statutes and regulations prohibiting discrimination include, without limitation, the following:
i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. Sections 2000d et seq.) and Treasury’s imp lementing regulations at Title 31 C.F.R. Part 22, which prohibit s discrimination on the basis of race, color, or national origin under programs or activities receiving federal financial assistance.
ii. The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. Sections 3601 et seq.), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability. iii. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. S ection 794), which prohibits discrimination on the basis of disability under any program or activity receiving federal financial assistance.
iv. The Age Discrimination Act of 1975, as amended (42 U.S.C. Sections 6101 et seq.), which prohibits discrimination on the bas is of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
v. Title II of the Americans with Disabilities Act o f 1990, as amended (42 U.S.C.
Sections 12101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
AA. Contractor understands that making false statements or claims in connection with the ARPA funded activities is a violation of federal law and may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from participating in fe deral aw ards or contracts, and/or any other remedy available by law.
BB. Any publications produced with ARPA funds must display the following language: “This project [is being] [was] supported, in whole or in part, by federal award number SLT -0628 awarded to San Bernardino County by the United States Department of Treasury.”
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CC. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Contractor is being encouraged to adopt and enforce on -the-job seat belt policies and programs for their employees when operating company-owned, rented, or personally owned vehicles.
DD. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Contractor is being encouraged to adopt and enforce policies that ban text messaging while driving and establishing workplace safety policies to decrease accidents caused by distracted drivers.
EE. As a recipient of federal financial assistance, the Civil Rights Restoration Act of 1987 applies, and Contractor and all subrecipients assures that it:
i. Ensures its current and future complia nce with Title VI of the Civil Rights Act of 1964, as amended, which prohibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs and activities receiving federal funds, of any person in the United State s on the ground of race, color, or national origin (42 U.S.C. Sections 2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at Title 31 CFR Part 22 and other pertinent executive orders such as Executive Order 13166, directi ves, cir culars, policies, memoranda and/or guidance documents.
ii. Acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency,” seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, have Limited English proficiency (LEP). Contractor understands that denying a person access to its programs, services, and activities, because of LEP is a form of national origin discrimination prohibited under T itle VI of the Civil Rights Act of 1964 and the Department of the Treasury’s implementing regulations. Contractor shall initiate reasonable steps, or comply with the Department of the Treasury’s directives, to ensure LEP persons have meaningful access to i ts progr ams, services, and activities. Contractor understands and agrees that meaningful access may entail provide language assistance services, including oral interpretation and written translation where necessary, to ensure effective communication. iii. Agrees to co nsider the need for language services for LEP persons during development of applicable budgets and when conducting programs, services, and activities.
iv. Agrees to maintain a complaint log of any complaints of discrimination on the grounds of race, c olor, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Act and implementing regulations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome.
FF. The Contractor must include the following language in every contract or agreement subject to Title VI and its regulations:
“The sub -grantee, contractor, successor, transferee, and assignee shall comply with Title VI of the Civil Rights Act of 1964, wh ich prohibits recipients of federal financial assistance from excluding a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, colo r, or nation origin (42 U.S.C.
Section 2000d et seq.), as imp lemented by the Department of the Treasury’s Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement). Title VI also includes protection to persons with “Limited English Proficiency” i n any pr ogram or activity receiving federal f inancial assistance, 42 U.S.C. Sections 2000d et seq., as implemented by the Department of the 204
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Treasury’s Title VI regulations, 31 CFR Part 22, and herein incorporated by reference and made a part of this contract or agreement.”
GG. Contractor shall cooperate in any enforcement or compliance review activities by the County and/or the Department of the Treasury. Contractor shall comply with information requests, on-site compliance reviews, and reporting requirements.
HH. Contractor shall maintain records and financial documents sufficient to evidence compliance with section 603(c), regulations adopted by Treasury implementing those sections, and guidance issued by Treasury regarding the foregoing.
II. County has the right of access to records (electronic or otherwise) of Contractor in order to conduct audits or other investigations.
JJ. Contractor shall maintain records for a period of five (5) years after the completion of the contract or a period of five (5) years after the last reporting date the County is obligated with the Department of the United States Treasury, whichever is later.
KK. Contractor must disclose in writing any potential conflict of interest in accordance with Title 2 C.F.R. Section 200.112.
LL. In accord ance wit h Title 41 U.S.C. Section 4712, subrecipient or C ontractor may not discharge, demote, or otherwise discriminate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violatio n of law , rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant.
The list of persons and entities referenced in the paragraph above includes the following: (i) A member of Congress or a rep resentative of a committee of Congress; (ii) An Inspector General; (iii) The Government Accountability Office; (iv) A Treasury employee responsible for contract or grant oversight or management; (v) An authorized official of the Department of Justice or ot her law enforcement agency; (vi) A court or grand jury; or (vii) A management officia l or other employee of recipient, subrecipient, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct.
Subrecipient or Co ntractor shall inform its employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.
MM. County and Contractor acknowledge that if additional federal guidance is issued, an amendment to this Contract may be necessary. In the event any of the terms in this Section 2 conflict with any other terms in the Contract, the terms in this Section 2 shall control.
3. GENERAL CONTRACT REQUIREMENTS
A. Recitals
The recitals set forth above are true and correct and incorporated herein by this reference.
B. Contract Amendments
Contractor agrees any alterations, variations, modifications, or waivers of the provisions of the Contract, shall be valid only when reduced to writing, executed and attached to the 205
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original Contract and approved by the person(s) authorized to do so on behalf of Contractor and County.
C. Contract Assignability
Without the prior written consent of the County, the Contract is not assignable by Contractor either in whole or in part.
D. Contract Exclusivity
This is not an exclusive Contract. The County reserves the right to enter into a contract with other contractors for the same or similar services. The County does not guarantee or represent that the Contractor will be permitted to perform any m inimum amount of work, or receive compensation other than on a per order basis, under the terms of this Contract.
E. Attorney’s Fees and Costs
If any legal action is instituted to enforce any party’s rights hereunder, each party shall bear its own costs and attorney fees, regardless of who is the prevailing party. This paragraph shall not apply to those costs and attorney fees directly arising from a third -party legal action against a party hereto and payable under Indemnification and Insurance Requirements.
F. Background Checks for Contractor Personnel
Contractor shall ensure that its personnel (a) are authorized to work in the jurisdiction in which they are assigned to perform s ervices; (d) do not use legal or illegal substances in any manner which will i mpact their ability to provide services ; and (c) are not otherwise disqualified from performing the s ervices under applicable law. If requested by the County and not in violation of applicable law, Contractor shall conduct a background check, at Contractor’s s ole expe nse, on all its personnel providing s ervices. If requested by the County, Contractor shall provide the results of the background check of each individual to the County. Such background check shall be in the form generally used by Contractor in its initial hiring of employees or contracting for contractors or, as applicable, during the employment-screening process but must, at a minimum, have been performed within the preceding 12 -month period. Contractor personnel who do not meet the County’s hiring criteria, in County’s sole discretion, shall not be assigned to work on County property or services, and County shall have the right, at its sole option, to refuse access to any Contract personnel to any County facility.
G. Change of Address
Contractor sha ll notify the County in writing, of any change in mailing address within ten (10) business days of the change.
H. Choice of Law
This Contract shall be governed by and construed according to the laws of the State of California.
I. Confidentiality
Contractor shall protect from unauthorized use or disclosure names and other identifying information concerning persons receiving s ervices pursuant to this Contract, except for statistical information not identifying any participant. Contractor shall not use or disclose any identifying information for any other purpose other than carrying out the Contractor's obligations under this Contract, except as may be otherwise required by law. This provision will remain in force even after the termination of the Contract. 206
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J. Primary Point of Contact
Contractor will designate an individual to serve as the primary point of contact for the Contract. Contractor or designee must respond to County inquiries within two (2) business days. Contractor shall not change the primary contact wit hout written acknowledgement to the County. Contractor will also designate a back -up point of contact in the event the primary contact is not available.
K. Rule of Construction
The parties agree that this Contract and all agreements or documents incorporated herein shall not be subject to the rule of construction that a written agreement is construed against the party preparing or drafting that agreement.
L. County Representative
The Chief Executive Officer or his/her designee shall represent the County in al l matters pertaining to the services to be rendered under this Contract, including termination and assignment of this Contract, and shall be the final authority in all matt ers pertaining to the services/scope of Work by Contractor. If this contract was ini tially a pproved by the San Bernardino County Board of Supervisors, then the Board of Supervisors must approve all amendments to this Contract.
M. Damage to County Property
Contractor shall repair, or cause to be repaired, at its own cost, all damages to Cou nty vehicles, facilities, buildings or grounds caused by the willful or negligent acts of Contractor or its employees or agents. Such repairs shall be made immediately after Contractor becomes aware of such damage, but in no event later than thirty (30) da ys after the occurrence.
If the Contractor fails to make timely repairs, the County may make any necessary repairs.
The Contractor, as determined by the County, shall repay all costs incurred by the County for such repairs, by cash payment upon demand, or County may deduct such costs from any amounts due to the Contractor from the County, as determined at the County’s sole discretion.
N. Debarment and Suspension
Contractor certifies that neither it nor its principals or subcontracts is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or agency. (See the following United States General Services Administration’s System for Award Management website https://www.sam.gov). Contractor further certifies that if it or any of its subcontractors are business entities that must be registered with the California Secretary of State, they are registered and in good standing with the Secretary of State. An subcontracts funded by this Contract shall be with vendors that meet this certification and registration requirement.
O. Drug and Alcohol Free Workplace
In recognition of individual rights to work in a safe, healthful and prod uctive work place, as a material condition of this Contract, the Contractor agrees that the Contractor and the Contractor’s employees, while performing service for the County, on County property, or while using County equipment:
i. Shall not be in any way imp aired because of being under the influence of alcohol or an illegal or controlled substance.
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ii. Shall not possess an open container of alcohol or consume alcohol or possess or be under the influence of an illegal or controlled substance.
iii. Shall not sell, off er, or p rovide alcohol or an illegal or controlled substance to another person, except where Contractor or Contractor’s employee who, as part of the performance of normal job duties and responsibilities, prescribes or administers medically prescribed drugs.
The Contractor shall inform all employees that are performing service for the County on County property, or using County equipment, of the County’s objective of a safe, healthful and productive work place and the prohibition of drug or alcohol use or im pairment from same while performing such service for the County.
The County may terminate for default or breach of this Contract and any other Contract the Contractor has with the County, if the Contractor or Contractor’s employees are determined by the County not to be in compliance with above.
P. Duration of Terms
This Contract, and all of its terms and conditions, shall be binding upon and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the respective partie s, provi ded no such assignment is in violation of the provisions of this Contract.
Q. Discrimination
During the term of the Contract, Contractor shall not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, or military and veteran status. Contractor shall comply wi th Execu tive Orders 11246, 11375, 11625, 12138, 12432, 12250, 13672, Title VI and Title VII of the Civil Rights Act of 1964, the California Fair Employment and Housing Act and other applicable Federal, State and County laws and regulations and policies rel ating to equal employment and contracting opportunities, including laws and regulations hereafter enacted.
R. Improper Influence
Contractor shall make all reasonable efforts to ensure that no County officer or employee, whose position in the County enables him/her to influence any award of the Contract or any competing offer, shall have any direct or indirect financial interest resulting from the award of the Contract or shall have any relationship to the Contractor or officer or employee of the Contractor.
S. Improper Consideration
Contractor shall not offer (either directly or through an intermediary) any improper consideration such as, but not limited to cash, discounts, service, the provision of travel or entertainment, or any items of value to any officer , employee or agent of the County in an attempt to secure favorable treatment regarding this Contract.
The County, by written notice, may immediately terminate this Contract if it determines that any improper consideration as described in the preceding pa ragraph was offered to any officer, employee or agent of the County with respect to the proposal and award process.
This prohibition shall apply to any amendment, extension or evaluation process once a contract has been awarded.
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Contractor shall immediate ly report any attempt by a County officer, employee or agent to solicit (either directly or through an intermediary) improper consideration from Contractor.
The report shall be made to the supervisor or manager charged with supervision of the employee or t he Count y Administrative Office. In the event of a termination under this provision, the County is entitled to pursue any available legal remedies.
T. Informal Dispute Resolution
In the event the County determines that service is unsatisfactory, or in the e vent of any other dispute, claim, question or disagreement arising from or relating to this Contract or breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question or disagreement. To this effect, they shall consu lt and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties.
U. Legality and Severability
The parties’ actions under the Contract shall comply with all a pplicable laws, rules, regulations, court orders and governmental agency orders. The provisions of this Contract are specifically made severable. If a provision of the Contract is terminated or held to be invalid, illegal or unenforceable, the validity, le gality a nd enforceability of the remaining provisions shall remain in full effect.
V. Licenses, Permits and/or Certifications
Contractor shall ensure that it has all necessary licenses, permits and/or certifications required by the laws of Federal, State, C ounty, and municipal laws, ordinances, rules and regulations. The Contractor shall maintain these licenses, permits and/or certifications in effect for the duration of this Contract. Contractor will notify County immediately of loss or suspension of any su ch licen ses, permits and/or certifications. Failure to maintain a required license, permit and/or certification may result in immediate termination of this Contract.
W. Material Misstatement/Misrepresentation
If during the course of the administration of th is Contr act, the County determines that Contractor has made a material misstatement or misrepresentation or that materially inaccurate information has been provided to the County, this Contract may be immediately terminated. If this Contract is terminated according to this provision, the County is entitled to pursue any available legal remedies.
X. Mutual Covenants
The parties to this Contract mutually covenant to perform all of their obligations hereunder, to exercise all discretion and rights granted hereu nder, an d to give all consents in a reasonable manner consistent with the standards of “good faith” and “fair dealing”.
Y. Nondisclosure
Contractor shall hold as confidential and use reasonable care to prevent unauthorized access by, storage, disclosure, publication, dissemination to and/or use by third parties of, confidential information that is either: (1) provided by the County to Contractor or an agent of Contractor or otherwise made available to Contractor or Contractor’s agent in connection with this Contract; or, (2) acquired, obtained, or learned by Contractor or an agent of Contractor in the performance of this Contract. For purposes of this provision, confidential information means any data, files, software, information or materials in oral, electronic, tangible or intangible form and however stored, compiled or memorialize and includes, but is not limited to, technology 209
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infrastructure, architecture, financial data, trade secrets, equipment specifications, user lists, passwords, research data, and technology data.
Z. Notice of Delays
Except as otherwise provided herein, when either party has knowledge that any actual or potential situation is delaying or threatens to delay the timely performance of this contract, that party shall, within twenty -four (24 ) hours, give notice thereof, including all relevant information with respect thereto, to the other party.
AA. Ownership of Documents
All documents, data, products, graphics, computer programs and reports prepared by Contractor pursuant to the Contract shall be cons idered property of the County upon payment for services (and products, if applicable). All such items shall be delivered to County at the completion of work under the Contract. Unless otherwise directed by County, Contractor may retain copies of such items.
BB. Air, Water Pollution Control, Safety and Health
Contractor shall comply with all air pollution control, water pollution, safety and health ordinances and statutes, which apply to the work performed pursuant to this Contract.
CC. Records
Contractor shall maintain all records and books pertaining to the delivery of services under this Contract and demonstrate accountability for contract performance. All records shall be complete and current and comply with all Contract requirements. Failure to mainta in acceptable records shall be considered grounds for withholding of payments for invoices submitted and/or termination of the Contract.
All records relating to the Contractor’s personnel, consult ants, subcontractors, services/scope of Work and expenses p ertaining to this Contract shall be kept in a generally acceptable accounting format. Records should include primary source documents. Fiscal records shall be kept in accordance with Generally Accepted Accounting Principles and must account for all funds, tangible assets, revenue and expenditures. Fiscal records must comply with the appropriate Office of Management and Budget (OMB) Circulars, which state the administrative requirements, cost principles and other standards for accountancy.
DD. Relationship of the Parties
Nothing contained in this Contract shall be construed as creating a joint venture, partnership, or employment arrangement between the Parties hereto, nor shall either Party have the right, power or authority to create an obligation or duty, expr essed or implied, on behalf of the other Party hereto.
EE. Release of Information
No news releases, advertisements, public announcements or photographs arising out of the Contract or Contractor’s relationship with County may be made or used without prior written approval of the County.
FF. Representation of the County
In the performance of this Contract, Contractor, its agents and employees, shall act in an independent capacity and not as officers, employees, or agents of the San Bernardino County.
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GG. Strict Performance
Failure by a party to insist upon the strict performance of any of the provisions of this Contract by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such par ty’s right to insist and demand strict compliance by the other party with the terms of this Contract thereafter.
HH. Subcontracting
Contractor shall obtain County’s written consent, which County may withhold in its sole discretion, before entering into Contr acts wit h or otherwise engaging any subcontractors who may supply any part of the s ervices to County. At County’s request, Contractor shall provide information regarding the subcontractor’s qualifications and a listing of a subcontractor’s key personnel in cluding, if requested by the County, resumes of proposed subcontractor personnel. Contractor shall remain directly responsible to County for its subcontractors and shall indemnify County for the actions or omissions of its subcontractors under the terms an d condit ions specified in S ection 5 . All approved subcontractors shall be subject to the provisions of this Contract applicable to Contractor Personnel.
For any subcontractor, Contractor shall:
i. Be responsible for subcontractor compliance with the Contract and the subcontract terms and conditions; and
ii. Ensure that the subcontractor follows County’s reporting formats and procedures as specified by County.
iii. Include in the subcontractor’s subcontract substantially similar terms as are provided in this Contract.
Upon expiration or termination of this Contract for any reason, County will have the right to enter into direct Contracts with any of the Subcontractors. Contractor agrees that its arrangements with Subcontractors will not prohibit or restrict such Subc ontractors from entering into direct Contracts with County.
II. Subpoena
In the event that a subpoena or other legal process commenced by a third p arty in any way concerning the goods or services provided under this Contract is served upon Contractor or County, such party agrees to notify the other party in the most expeditious fashion possible following receipt of such subpoena or other legal process. Contractor and County further agree to cooperate with the other party in any lawful effort by such other party to contest the legal validity of such subpoena or other legal process commenced by a third party as may be reasonably required and at the expense of the party to whom the legal process is directed, except as otherwise provided herein in connection with defense obligations by Contractor for County.
JJ. Termination for Convenience
The County reserves the right to terminate the Contract, for any reason, with a thirty (30) day written notice of termination. The County’s Chief Executive Officer is authorized to terminate this Contract. Such termination may include all or part of the services described herein. Upon such termination, payment will be made to the Contractor for services rendered and expenses reasonably incurred prior to the effective date of termi nation. Upon receipt of termination notice Contractor shall promptly discontinue services unless the notice directs otherwise. Contractor shall deliver promptly to County and transfer title (if necessary) all completed work, and work in progress, including drafts, documents, plans, forms, data, products, graphics, computer programs and reports. 211
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KK. Time of the Essence
Time is of the essence in performance of this Contract and of each of its provisions.
LL. Venue
The parties acknowledge and agree that this Con tract was entered into and intended to be performed in San Bernardino County, California. The parties agree that the venue of any action or claim brought by any party to this Contract will be the Superior Court of California, San Bernardino County, San Ber nardino District. Each party hereby waives any law or rule of the court, which would allow them to request or demand a change of venue. If any action or claim concerning this Contract is brought by any third party and filed in another venue, the parties he reto agr ee to use their best efforts to obtain a change of venue to the Superior Court of California, San Bernardino County, San Bernardino District.
MM. Conflict of Interest
Contractor shall make all reasonable efforts to ensure that no conflict of interest exists between its officers, employees, or subcontractors and the County. Contractor shall make a reasonable effort to prevent employees, Contractor, or members of governing bodies from using their positions for purposes that are, or give the appearance o f being motivated by a desire for private gain for themselves or others such as those with whom they have family business, or other ties. Officers, employees, and agents of cities, counties, districts, and other local agencies are subject to applicable con flict of interest codes and state law. In the event the County determines a conflict of interest situation exists, any increase in costs, associated with the conflict of interest situation, may be disallowed by the County and such conflict may constitute g rounds for termination of the Contract. This provision shall not be construed to prohibit employment of persons with whom Contractor’s officers, employees, or agents have family, business, or other ties so long as the employment of such persons does not result in increased costs over those associated with the employment of any other equally qualified applicant.
NN. Copyright
County shall have a royalty-free, non-exclusive and irrevocable license to publish, disclose, copy, translate, and otherwise use, copyr ight or patent, now and hereafter, all reports, studies, information, data, statistics, forms, designs, plans, procedures, systems, and any other materials or properties developed under this Contract including those covered by copyright, and reserves the r ight to authorize others to use or reproduce such material. All such materials developed under the terms of this Contract shall acknowledge the San Bernardino County as the funding agency and Contractor as the creator of the publication.
No such materials, or properties produced in whole or in part under this Contract shall be subject to private use, copyright or patent right by Contractor in the United States or in any other country without the express written consent of County. Copies of all educational a nd training materials, curricula, audio/visual aids, printer material, and periodicals, assembled pursuant to this Contract must be filed with the County prior to publication.
OO. Iran Contracting Act
IRAN CONTRACTING ACT OF 2010, Public Contract Code S ections 2200 et seq. (Applicable for all Contracts of one million dollars ($1,000,000) or more). In accord ance with Public Contract Code S ection 2204(a), the Contractor certifies that at the time the Contract is signed, the Contractor signing the Contract is n ot ident ified on a list created pursuant to subdivision (b) of Public Contract Code Section 2203 as a person (as defined in Public Contract Code S ection 2202(e)) engaging in investment activities in Iran described 212
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in subdivisi on (a) of Public Contract Code Section 2202.5, or as a person described in subdivision (b) of Public Contract Code Section 2202.5, as applicable.
Contractors are cautioned that making a false certification may subject the Contractor to civil penalties, termination of existing contrac t, and i neligibility to bid on a contract for a period of three (3) years in accordance with Public Contract Code Section 2205.
PP. California Consumer Privacy Act
To the extent applicable, if Contractor is a business that collects the personal information of a consu mer(s) in performing s ervices pursuant to this Contract, Contractor must comply with the provisions of the California Consumer Privacy Act (CCPA). (Cal. Civil Code Sections 1798.100, et seq.). For purposes of this provision, “business,” “consumer,” and “personal information” shall have the same meani ngs as set forth at Civil Code S ection 1798.140. Contractor must contact the County immediately upon receipt of any request by a consumer submitted pursuant to the CCPA that requires any action on the pa rt of th e County, including but not limited to, providing a list of disclosures or deleting personal information. Contractor must not sell, market or otherwise disclose personal information of a consumer provided by the County unless specifically authorize d pursuant to terms of this Contract. Contractor must immediately provide to the County any notice provided by a consumer to Con tractor pursuant to Civil Code S ection 1798.150(b) alleging a violation of the CCPA, that involves personal information received or main tained pursuant to this Contract. Contractor must immediately notify the County if it receives a notice of violation from the California Attorney General pursuant to Civil Code Section 1798.155(b).
QQ. Prevailing Wage Laws
By its execution of this Co ntract, Contractor certifies that it 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, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of preva iling wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Section 1720 of the California Labor Code states in part: “For purposes of this paragraph, ‘construction’ includes work performed during the de sign, site assessment, feasibility study, and other preconstruction phases of construction including, but not limited to, inspection and land surveying work…” If the services/scope of Work 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, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall make copies of the prevailing rates of per diem wages for each cr aft, classification or type o f worker needed to execute the s ervices available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the project site. Contractor will also adhere to any oth er appli cable requirements, including but not limited to, those regarding the employment of apprentices, travel and subsistence pay, retention and inspection of payroll records, workers compensation and forfeiture of penalties prescribed in the Labor Code for viol ations.
Contractor shall defend, indemnify and hold the County, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comp ly with Prevailing Wage Laws.
See Exhibit “B”, which is attached and incorporated by reference, for additional information regarding Prevailing Wage Laws. Contractor shall comply with all applicable terms and conditions in Exhibit “B”. The applicable gener al prevailing wage determinations are on file with the County and are available to any interested party on request. Contractor shall post a copy of the applicable prevailing wage determinations at the job site.
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4. TERM OF CONTRACT
This Contract is effecti ve as of the date last signed by authorized representatives of any party (Effective Date), requires all incurred obligations by November 30, 2024 , and expires on December 31, 2026, but may be terminated earlier in accordance with the provisions of this Contract.
5. INDEMNIFICATION AND INSURANCE REQUIREMENTS
A. Indemnification
The Contractor agrees to indemnify, defend (with counsel reasonably approved by County) and hold harmless the County and its authorized officers, employees, agents and volunteers from any and all claims, actions, losses, damages and/or liability arising out of this Contract from any cause whatsoever, including the acts, errors or omissions of any person and for any costs or expenses incurred by the County on account of any claim except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence or degree of fault of indemnities. The Contractor indemnification obligation applies to the County’s “active” as well as “passive” negligence but does not apply to the County’s “sole negligence” or “willful misconduct” wi thin the meaning of Civil Code Section 2782.
B. Insurance
i. Contractor and County are authorized self -insured public entities for purposes of Professional Liability, Gen eral Lia bility, Automobile Liability, Worker’s Compensation and Property Damage and warrant that through their respective programs of self - insurance, they have adequate coverage or resources to protect against liabilities arising out of the performance of the terms, conditions or obligations of this Contract.
ii. Insurance Review – Insurance requirements are subject to periodic review by the County. The Director of Risk Management or designee is authorized, but not required, to reduce, waive or suspend any in surance requirements whenever Risk Management determines that any of the required insurance is not available, is unreasonably priced, or is not needed to protect the interests of the County. In addition, if the Department of Risk Management determines that heretofore unreasonably priced or unavailable types of insurance coverage or coverage limits become reasonably priced or available, the Director of Risk Management or designee is authorized, but not required, to change the above insurance requirements to require additional types of insurance coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against the County, inflation, or any other item reasonably related to the County’s risk.
Any change requiring ad ditional types of insurance coverage or higher coverage limits must be made by amendment to this Contract. Contractor agrees to execute any such amendment within thirty (30) days of receipt.
Any failure, actual or alleged, on the part of the County to mon itor or enforce compliance with any of the insurance and indemnification requirements will not be deemed as a waiver of any rights on the part of the County.
6. RIGHT TO MONITOR AND AUDIT
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A. The County, State and Federal government shall have absolute right to review and audit all records, books, papers, documents, corporate minutes, and other pertinent items as requested, and shall have absolute right to monitor the performance of Contractor in the delivery of services provided under this Contract. Contractor s hall give full cooperation, in any auditing or monitoring conducted. Contractor shall cooperate with the County in the implementation, monitoring, and evaluation of this Contract and comply with any and all reporting requirements established by the County.
B. All records pertaining to services delivered and all fiscal, statistical and management books and records shall be available for examination and audit by County representatives for a period of three years after final payment under this Contract or until all pend ing County, State and Federal audits are completed, whichever is later.
7. CORRECTION OF PERFORMANCE DEFICIENCIES
A. Failure by Contractor to comply with any of the provisions, covenants, requirements or conditions of this Contract shall be a material breach of this Contract.
B. In the event of a non-cured breach, County may, at its sole discretion and in addition to any other remedies available at law, in equity, or otherwise specified in this Contract:
i. Afford Contractor thereafter a time period within w hich to cure the breach, which period shall be established at the sole discretion of County; and/or ii. Discontinue reimbursement to Contractor for and during the period in which Contractor is in breach, which reimbursement shall not be entitled to later recov ery; and/or
iii. Withhold funds pending duration of the breach; and/or iv. Offset against any monies billed by Contractor but yet unpaid by County those monies disallowed pursuant to Item “B” of this paragraph; and/or v. Terminate this Contract immediately and be reli eved of the payment of any consideration to Contractor. In the event of such termination, the County may proceed with the work in any manner deemed proper by the County. The cost to the County shall be deducted from any sum due to the Contractor under this Contract and the balance, if any, shall be paid by the Contractor upon demand.
8. NOTICES
All written notices provided for in this Contract or which either party desires to give to the other shall be deemed fully given, when made in writing and either serve d person ally, or by facsimile, or deposited in the United States mail, postage prepaid, and addressed to the other party as follows:
San Bernardino County
County Administrative Office – 4th Floor
385 N. Arrowhead Avenue
San Bernardino, CA 92415
City of Fontana
8353 Sierra Ave.
Fontana, CA 92335
Notice shall be deemed communicated two (2) County working days from the time of mailing if mailed as provided in this paragraph.
9. ENTIRE AGREEMENT
This Contract, including all Exhibits and other attachments, which ar e attached hereto and incorporated by reference, and other documents incorporated herein, represents the final, complete and exclusive agreement between the parties hereto. Any prior agreement, promises, negotiations or representations relating to the subj ect matter of this Contract not 215
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expressly set forth herein are of no force or effect. This Contract is executed without reliance upon any promise, warranty or representation by any party or any representative of any party other than those expressly contained herein. Each party has carefully read this Contract and signs the same of its own free will.
10. CONTRACT EXECUTION
This Contract may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such c ounterparts shall together constitute one and the same Contract. The parties shall be entitled to sign and transmit an electronic signature of this Contract (whether by facsimile, PDF or other email transmission), which signature shall be binding on the pa rty whos e name is contained therein. Each party providing an electronic signature agrees to promptly execute and deliver to the other party an original signed Contract upon request.
IN WITNESS WHEREOF, the San Bernardino County and City of Fontana have each caused this Contract to be subscribed by its respective duly authorized officers, on its behalf.
FOR COUNTY USE ONLY
Approved as to Legal Form Reviewed for Contract Compliance Reviewed/Approved by Department
Julie Surber, Principal Asst. County Counsel
Date Date Date
SAN BERNARDINO COUNTY
(Print or type name of corporation, company, contractor, etc.)
By
Leonard X. Hernandez, Chief Executive Officer (Authorized signature - sign in blue ink) Dated:
Name
(Print or type name of person signing contract)
Title
(Print or Type)
Dated:
Address
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EXHIBIT A
SCOPE OF EXPENDITURES
[SEPARATELY ATTACHED]
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EXHIBIT B
PREVAILING WAGE REQUIREMENTS
A. All or a portion of the Scope of Work in the Contract requires the payment of prevailing wages and compliance with the following requirements:
1. Determination of Prevailing Rates:
Pursuant to Labor Code sections 1770, et seq., the Count y has obtained from the Director of the Department of Industrial Relations (DIR) pursuant to the California Labor Code, the general prevailing rates of per diem wages and the prevailing rates for holiday and overtime work in the locality in which the Scope of Work is to be performed. Copies of said rates are on file with the County, will be made available for inspection during regular business hours, may be included elsewhere in the specifications for the Scope of Work, and are also available online at www.dir.ca.gov. The wage rate for any classification not listed, but which may be required to execute the Scope of Work, shall be commensurate and in accord with specified rates for similar or comparable classifications fo r those performing similar or comparable duties. In accordance with Labor Code section 1773.2, the Contractor shall post, at appropriate and conspicuous locations on the job site, a schedule showing all applicable prevailing wage rates and shall comply wit h the re quirements of Labor Code sections 1773, et seq.
2. Payment of Prevailing Rates
Each worker of the Contractor, or any subcontractor, engaged in the Scope of Work, shall be paid not less than the general prevailing wage rate, regardless of any contract ual relationship which may be alleged to exist between the Contractor or any subcontractor, and such worker.
3. Prevailing Rate Penalty
The Contractor shall, as a penalty, forfeit two hundred dollars ($200.00) to the County for each calendar day or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of the DIR for such work or craft in which such worker is employed by the Contractor or by any subcontractor in connection with the Scope of Work.
Pursuant to Califo rnia Lab or Code section 1775, the difference between such prevailing wage rates and the amount paid to each worker for each calendar day, or portion thereof, for which each worker was paid less than the prevailing wage rate, shall be paid to each worker by the Contractor.
4. Ineligible Contractors:
Pursuant to the provisions of Labor Code section 1777.1, the Labor Commissioner publishes and distributes a list of contractors ineligible to perform work as a contractor or subcontractor on a public works project . This l ist of debarred contractors is available from the DIR website at http://www.dir.ca.gov/Public-Works/PublicWorks.html. Any contract entered into between a contractor and a debarred subcontractor is void as a matter of law.
A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract, and any public money that may have been paid to a debarred subcontractor by a contractor on the project shall be returned to the County.
The Contractor shall be responsible for the payment of wages to workers as a debarred subcontractor who has been allowed to work on the Scope of Work.
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5. Payroll Records:
a. Pursuant to California Labor Code section 1776, the Contractor and each subcontractor, shall keep accurate certified payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wag es paid to each journeyman, apprentice, worker or other employee employed by them in connection with the Scope of Work. The payroll records enumerated herein shall be verified by a written declaration made under penalty of perjury that the information contained in the payroll record is true and correct and that the Contractor or subcontractor has complied with the requirements of the California Labor Code sections 1771, 1811, and 1815 for any Scope of Work performed by his or her employees. The payroll reco rds shall be available for inspection at all reasonable hours at the principal office of the Contractor on the following basis:
i. A certified copy of an employee's payroll record shall be made available for inspection or furnished to such employee or his/her authorized representative on request;
ii. A certified copy of all payroll records shall be made available for inspection or furnished upon request to the County, the Division of Labor Standards Enforcement of the DIR;
iii. A certified copy of payroll records shall be made available upon request to the public for inspection or copies thereof made; provided, however, that a request by the public shall be made through either the County or the Division of Labor Standards Enforcement. If the requested payroll records ha ve not b een previously provided to the County or the Division of Labor Standards Enforcement, the requesting party shall, prior to being provided the records, reimburse the cost of preparation by the Contractor, subcontractor and the entity through which t he reque st was made; the public shall not be given access to such records at the principal office of the Contractor; iv. The Contractor shall file a certified copy of the payroll records with the entity that requested such records within ten (10) days after receipt of a written request; and v. Copies provided to the public, by the County or the Division of Labor Standards Enforcement shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address and social security number . The name and address of the Contractor or any subcontractor, performing a part of the Scope of Work shall not be marked or obliterated. The Contractor shall inform the County of the location of payroll records, including the street address, city and county and shall, within five (5) working days, provide a notice of a change of location and address.
b. The Contractor shall have ten (10) days from receipt of the written notice specifying in what respects the Contractor must comply with the above requirements. In the event Contractor does not comply with the requirements of this section within the ten (10) day period, the Contractor shall, as a penalty to the County, forfeit one -hundred dollars ($100.00) for each calendar day, or portion thereof, for each worke r, until strict compliance is effectuated. Upon the request of the Division of Labor Standards Enforcement, such penalty shall be withheld from any portion of the payments then due or to become due to the Contractor.
6. Limits on Hours of Work:
Pursuant to C alifornia Labor Code section 1810, eight (8) hours of labor shall constitute a legal day's work. Pursuant to California Labor Code section 1811, the time of service of any worker employed at any time by the Contractor or by a subcontractor, upon the Scope of Work or upon any part of the Scope of Work, is limited and restricted to eight (8) hours during any one calendar day and forty (40) hours during any one calendar week, except as 219
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provided for under Labor Code section 1815. Notwithstanding the foregoing p rovisions, work performed by employees of Contractor or any subcontractor, in excess of eight (8) hours per day and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and one-half (1½) times the basic rate of pay.
7. Penalty for Excess Hours:
The Contractor shall pay to the County a penalty of twenty -five dollars ($25.00) for each worker employed on the Scope of Work by the Contractor or any subcontractor, f or each calendar day during which such worker is required or permitted to work more than eight (8) hours in any calendar day and forty (40) hours in any one calendar week, in violation of the provisions of the California Labor Code, unless compensation to the worker so employed by the Contractor is not less than one and one -half (1½) times the basic rate of pay for all hours worked in excess of eight (8) hours per day.
8. Senate Bill 854 (Chapter 28, Statutes of 2014) and Senate Bill 96 (Chapter 28, Statutes of 2017) Requirements:
a. Contractor shall comply with Senate Bill 854 and Senate Bill 96. The requirements include, but are not limited to, the following:
i. No contractor or subcontractor may be listed on a bid proposal for a public works project unless regist ered wit h the DIR pursuant to Labor Code section 1725.5, with limited exceptions from this requirements for bid purposes only as allowed under Labor Code section 1771.1(a).
ii. No contractor or subcontractor may be awarded a contract for public work or perform work on a public works project unless registered with the DIR pursuant to Labor Code section 1725.5.
iii. This project is subject to compliance monitoring and enforcement by the DIR. iv. As required by the DIR, Contractor is required to post job site notices, as prescribed by regulation, regarding compliance monitoring and enforcement by the DIR.
v. Contractors and all subcontractors must submit certified payroll records online to the Labor Commissioner for all public works projects.
1) The certified payroll must be subm itted at least monthly to the Labor Commissioner.
2) The County reserves the right to require Contractor and all subcontractors to submit certified payroll records more frequently than monthly to the Labor Commissioner.
3) The certified payroll records must be i n a form at prescribed by the Labor Commissioner.
vi. Registration with the DIR and the submission of certified payroll records to the Labor Commissioner are not required if the public works project is $25,000 or less when the project is for construction, alter ation, d emolition, installation or repair work, or if the public works project is $15,000 or less when the project is for maintenance work.