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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.
For purposes of this Contract and pursuant to federal guidance, expended or obligated Rev. 5/8/20 Page 3 of 37
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 Rev. 5/8/20 Page 4 of 37
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 Rev. 5/8/20 Page 5 of 37
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 Rev. 5/8/20 Page 6 of 37
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.
The requirements of Title 40 U.S.C. Section 3704 are applicable to constructio n work a nd Rev. 5/8/20 Page 7 of 37
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 Rev. 5/8/20 Page 8 of 37
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 Rev. 5/8/20 Page 9 of 37
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 Rev. 5/8/20 Page 11 of 37
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 Rev. 5/8/20 Page 13 of 37
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 Rev. 5/8/20 Page 14 of 37
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.
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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 Rev. 5/8/20 Page 18 of 37
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.
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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 Rev. 5/8/20 Page 21 of 37
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 Rev. 5/8/20 Page 24 of 37
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
Rev. 5/8/20 Page 25 of 37
EXHIBIT A
SCOPE OF EXPENDITURES
[SEPARATELY ATTACHED]
Rev. 5/8/20 Page 26 of 37
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.
Rev. 5/8/20 Page 27 of 37
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 Rev. 5/8/20 Page 28 of 37
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.
b. Labor Code section 1725.5 states the following:
“A contractor shall be registered pursuant to this section to be q ualified 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 purposes of this section, “contractor” includes a subcontractor as defined by Section 1722.1.
Rev. 5/8/20 Page 29 of 37
(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 presc ribed 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 fee shall be in a unifo rm 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 regis ter 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 qualify for the nu mber 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 by a current a nd 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 (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 wages or related damages, interest, fines, or penalties pursuant to any final judgment, order, o r 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 determination that is u nder 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 requirements of t his 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.
Rev. 5/8/20 Page 30 of 37
(ii) The contractor 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 used 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 engaging in th e perfor mance 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 nonrefundable penalty 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 determined to b e a publ ic 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 th at 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 following 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 regist ered 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 performed 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 th is 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 performed on a p ublic 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 Public Contract C ode, 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 unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Rev. 5/8/20 Page 31 of 37
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 the time the c ontract 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 contracto r or sub contractor'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 filing a bid prote st 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 paid 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 subcontr actor 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 registered 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 bod y, 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 contrac t 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 requirement, not 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, a ny 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 Rev. 5/8/20 Page 32 of 37
registration requ irement, 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 severity 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 tier ed publi c 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 low er 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 Section 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 provisions of Section 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 (commencing 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 Commissioner shall 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 re gistered 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) T he 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.
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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) Pena lties re ceived 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 performed 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 cont ract 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 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 required because of subdivision (f) of Section 1725.5, the unr egistered contractor or subcontractor is not Rev. 5/8/20 Page 34 of 37
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 to all contrac ts 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 the 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 ap prentices 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 t o 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 3070 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 with 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 there 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 participation 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 N OT 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 pr ogram 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 dispat ch reque st 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 use the “CAC -2” form fo r 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.
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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 no t 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 type s of con tractors 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 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 C ontractor 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 s tate 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 Apprenticeship Comm ittee sh all 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 Craf t or Tra de 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 would cr eate a c ondition 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 in dividual 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.