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CITY OF FONTANA
EQUIPMENT PURCHASE AGREEMENT
This Equipment Purchase Agreement (“Agreement”) is entered into this _____ day of __________, 20__, by and between the City of Fontana, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at a municipal corporation organized under the laws of the State of California with its principal place of business at 8353 Sierra Avenue, Fontana, California 92335 (“City”), and Alliance Building Solutio ns, Inc., a Corporation with its principal place of business at 12520 High Bluff Drive, Suite 345, San Diego, California 92130 (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
Section 1. DEFINITIONS.
A. “Equipment” means all machinery, equipment, items, parts, materials, labor or other services, including design, engineering and installation services, provided by Contractor as specified in Exhibit “A,” attached hereto and incorporated herein by reference.
B. “Delivery Date(s)” means that date or dates upon which the Equipment is to be delivered to City, ready for approval, testing and/or use as specified in Exhibit “B.” Section 2. MATERIALS AND WORKMANSHIP.
When Exhibit “A” specifies machinery, equip ment or material by manufacturer, model or trade name, no substitution will be made without City’s written approval.
Machinery, equipment or material installed in the Equipment without the approval required by this Section 2 will be deemed to be defective material for purposes of Section 4. Where machinery, equipment or materials are referred to in Exhibit “A” as equal to any particular standard, City will decide the question of equality. When requested by City, Contractor will furnish City with the name of the manufacturer, the performance capabilities and other pertinent information necessary to properly determine the quality and suitability of any machines, equipm ent and material to be incorporated in the Equipment. Material samples will be submitted at City’s request.
The site of any installation work shall be kept clean and free of hazards at all times during performance of such installation services. After in stallation is completed at the site, as applicable, Contractor shall clean the surrounding area to the condition prior to delivery and installation.
Section 3. INSPECTIONS AND TESTS.
City shall have the right to inspect and/or test the Equipment prior to acceptance.
If upon inspection or testing the Equipment or any portion thereof are found to be nonconforming, unsatisfactory, defective, of inferior quality or workmanship, or fail to
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meet any requirements or specifications contained in Exhibit “A,” then without prej udice to any other rights or remedies, City may reject the Equipment or exercise any of its rights under Section 4.C . The inspection, failure to make inspection, acceptance of goods, or payment for goods shall not impair City’s right to reject nonconforming goods, irrespective of City’s failure to notify Contractor of a rejection of nonconforming goods or revocation of acceptance thereof or to specify with particularity any defect in nonconforming goods after rejection or acceptance thereof.
If the Contractor is responsible for providing installation services, finished installation work and/or equipment shall be subject to final inspection and acceptance or rejection by the City.
Section 4. WARRANTY.
A. Contractor warrants tha t the Equipment will be of merchantable quality and free from defects in design, engineering, material and workmanship for a period of two (2) years, or such longer period as provided by a manufacturer’s warranty or as agreed to by Contractor and City, fro m the date of final written acceptance of the Equipment by City as required for final payment under Section 7 . Contractor further warrants that any services provided in connection with the Equipment will be per formed in a professional and workmanlike manner and in accordance with the highest industry standards.
B. Contractor further warrants that all machinery, equipment or process included in the Equipment will meet the performance requirements and specification s specified in Exhibit “A” and shall be fit for the purpose intended. City’s inspection, testing, approval or acceptance of any such machinery, equipment or process will not relieve Contractor of its obligations under this Section 4.B.
C. For any breach of the warranties contained in Section 4.A and Section
4.B, Contractor will, immediately after receiving notice from City, at the option of City, and at Contractor’s own expense and without cost to City:
1. Repair the defective Equipment;
2. Replace the defective Equipment with conforming Equipment, F.O.B. City’s plant, office or other location of City where the Equipment was originally performed or delivered; or
3. Repay to City the purchase price of the defective Equipment.
If City selects repair or replacement, any defects will be remedied without cost to City, including but not limited to, the costs of removal, repair and replacement of the defective Equipment, and reinstallation of new Equipment. All such defective Equipment that is so remedied will be similarly warranted as stated above. In addition, Contractor will repair or replace other items of the
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Equipment which may have b een damaged by such defects or the repairing of the same, all at its own expense and without cost to City.
D. Contractor also warrants that the Equipment is free and clear of all liens and encumbrances whatsoever, that Contractor has a good and marketable tit le to same, and that Contractor owns or has a valid license for all of the proprietary technology and intellectual property incorporated within the Equipment. Contractor agrees to indemnify, defend and hold City harmless against any and all third party claims resulting from the breach or inaccuracy of any of the foregoing warranties.
E. In the event of a breach by Contractor of its obligations under this Section 4, City will not be limited to the remedies set fort h in this Section 4, but will have all the rights and remedies permitted by applicable law, including without limitation, all of the rights and remedies afforded to City under the California Commercial Code.
Section 5. PRICES.
Unless expressly provided otherwise, all prices and fees specified in Exhibit “C,” attached hereto and incorporated herein by reference, are firm and shall not be subject to change without the written approval of City. No extra charges of any kind wi ll be allowed unless specifically agreed to in writing by City’s authorized representative. The total price shall include (i) all federal, state and local sales, use, excise, privilege, payroll, occupational and other taxes applicable to the Equipment fur nished to City hereunder; and (ii) all charges for packing, freight and transportation to destination.
Section 6. CHANGES.
City, at any time, by a written order, and without notice to any surety, may make changes in the Equipment, including but not limited to, City’ s requirements and specifications. If such changes affect the cost of the Equipment or time required for its performance, an equitable adjustment will be made in the price or time for performance or both. Any change in the price necessitated by such chan ge will be agreed upon between City and Contractor and such change will be authorized by a change order document signed by City and accepted by Contractor.
Section 7. PAYMENTS.
A. Terms of payment, are net thirty (30) days, less any applicable retention, after receipt of invoice, or completion of applicable Progress Milestones. Final payment shall be made by City after Contractor has satisfied all contractual requirements.
Payment of invoices shall not constitute acceptance of Equipment.
B. If Progress Milestones have b een specified Exhibit “B,” then payments for the Equipment will be made as the requirements of such Progress Milestones are met.
Progress payments for the Equipment will be made by City upon proper application by Contractor during the progress of the Equipment and according to the terms of payment as specified in Exhibit “B.” Contractor’s progress billing invoice will include progress
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payments due for the original scope of work and changes. Each “Item for Payment” shown in Exhibit “B” and each change order will be itemized on the invoice. Invoices for cost plus work, whether part of Exhibit “B” or a change order, must have subcontractor and/or supplier invoices attached to Contractor’s invoice. Other format and support documents for invoices will be determined by City in advance of the first invoice cycle.
C. Payments otherwise due may be withheld by City on account of defective Equipment not remedied, liens or other claims filed, reasonable evidence indicating probable filing of liens or other claims, fail ure of Contractor to make payments properly to its subcontractors or for material or labor, the failure of Contractor to perform any of its other obligations under the Agreement, or to protect City against any liability arising out of Contractor’s failure to pay or discharge taxes or other obligations. If the causes for which payment is withheld are removed, the withheld payments will be made promptly. If the said causes are not removed within a reasonable period after written notice, City may remove them at Contractor’s expense.
D. Payment of the final Progress Milestone payment or any retention will be made by City upon:
1. Submission of an invoice for satisfactory completion of the requirements of a Progress Milestone as defined in Exhibit “B” and in the amou nt associated with the Progress Milestone;
2. Written acceptance of the Equipment by City;
3. Delivery of all drawings and specifications, if required by City;
4. Delivery of executed full releases of any and all liens arising out of this Agreement; and
5. Delivery of an affidavit listing all persons who might otherwise be entitled to file, claim or maintain a lien of any kind or character, and containing an averment that all of the said persons have been paid in full.
If any person refuses to furnish an actual re lease or receipt in full, Contractor may furnish a bond satisfactory to City to indemnify City against any claim or lien at no cost to City.
E. Acceptance by Contractor of payment of the final Progress Milestone payment pursuant to Section 7.D will constitute a waiver, release and discharge of any and all claims and demands of any kind or character which Contractor then has, or can subsequently acquire against City, its successors and assigns, for or on account of a ny matter or thing arising out of, or in any manner connected with, the performance of this Agreement. However, payment for the final Progress Milestone by City will not constitute a waiver, release or discharge of any claims or demands which City then ha s, or can subsequently acquire, against Contractor, its successors and assigns, for or on
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account of any matter or thing arising out of, or in any manner connected with, the performance of this Agreement.
Section 8. SCHEDULE FOR DELIVERY.
A. The time of Contractor’s per formance is of the essence for this Agreement. The Equipment will be delivered in accordance with the schedule set forth in Exhibit “B.” Contractor must immediately notify City in writing any time delivery is behind schedule or may not be completed on sc hedule. In addition to any other rights City may have under this Agreement or at law, Contractor shall pay City the sum of $[INSERT AMOUNT] per item of Equipment for each calendar day for which the item of Equipment is unavailable beyond the scheduled delivery date(s) specified in Exhibit “B.” B. In the event that the Equipment is part of a larger project or projects that require the coordination of multiple contractors or suppliers, then Contractor will fully cooperate in scheduling the delivery so that Cit y can maximize the efficient completion of such project(s).
Section 9. TAXES.
A. Contractor agrees to timely pay all sales and use tax (including any value added or gross receipts tax imposed similar to a sales and use tax) imposed by any federal, state or local taxing authority on the ultimate purchase price of the Equipment provided under this Agreement.
B. Contractor will withhold, and require its subcontractors, where applicable, to withhold all required taxes and contributions of any federal, state or local taxing authority which is measured by wages, salaries or other remuneration of its employees or the employees of its subcontractors. Contractor will deposit, or cause to be deposited, in a timely manner with the appropriate taxing authorities all amounts required to be withheld.
C. All other taxes, however denominated or measured, imposed upon the price of the Equipment provided hereunder, will be the responsibility of Contractor. In addition, all taxes assessed by any taxing jurisdiction based on Contractor property used or consumed in the provision of the Equipment such as and including ad valorem, use, personal property and inventory taxes will be the responsibility of Contractor.
D. Contractor will, upon written request, submit to City written evidence of any filings or payments of all taxes required to be paid by Contractor hereunder.
Section 10. INDEPENDENT CONTRACTOR.
Contractor enters into this Agreement as an independent contractor and not as an employee of City. Contractor shall have no power or authority by this Agreem ent to bind City in any respect. Nothing in this Agreement shall be construed to be inconsistent with this relationship or status. All employees, agents, contractors or
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subcontractors hired or retained by the Contractor are employees, agents, contractors or subcontractors of the Contractor and not of City. City shall not be obligated in any way to pay any wage claims or other claims made against Contractor by any such employees, agents, contractors or subcontractors or any other person resulting from performance of this Agreement.
Section 11. SUBCONTRACTS.
Unless otherwise specified, Contractor must obtain City’s written permission before subcontracting any portion of the Equipment. Except for the insurance requirements in Section 13.A, all subcontracts and orders for the purchase or rental of supplies, materials or equipment, or any other part of the Equipment, will require that the subcontractor be bound by and subject to all of the terms and conditions of the Agreement. No subcontract or order will relieve Contractor from its obligations to City, including, but not limited to Contractor’s insurance and indemnification obligations. No subcontract or order will bind City.
Section 12. TITLE AND RISK OF LOSS.
Unless otherwise agreed, City will have title to, and risk of loss of, all completed and partially completed portions of the Equipment upon delivery, as well as materials delivered to and stored on City property which are intended to become a part of the Equipment. However, Contractor will be liable for any loss or damage to the Equipment and/or the materials caused by Contractor or its subcontractors, their agents or employees, and Contractor will replace or repair said Equipment or materials at its own cost to the complete sa tisfaction of City. Notwithstanding the foregoing, in the event that the City has paid Contractor for all or a portion of the Equipment which remains in the possession of Contractor, then City shall have title to, and the right to take possession of, such Equipment at any time following payment therefor. Risk of loss for any Equipment which remains in the possession of Contractor shall remain with Contractor until such Equipment has been delivered or City has taken possession thereof. Contractor will have risk of loss or damage to Contractor’s property used in the construction of the Equipment but which does not become a part of the Equipment.
Section 13. INDEMNIFICATION.
A. Contractor shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence or willful misconduct of Contractor, its officials, officers, employees, agents, subcontractors and subconsultants arising out of or in connection with the Equipment or the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys’ fees and other related costs and expenses except such loss or damage which was caused by the sole negligence or willful misconduct of the City.
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B. Contractor’s defense obligation for any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its officials, officers, employees, agents or volunteers shall be at Contractor’s own cost, expense and risk. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding.
Contractor shall reimburse City and its officials, officers, e mployees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided.
C. Contractor’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers.
Section 14. INSURANCE.
A. General. Contractor shall take out and maintain:
1. Commercial General Liability Insurance, of at least $1,000,000 per occurrence/ $2,000,000 aggregate for bo dily injury, personal injury and property damage, at least as broad as Insurance Services Office Commercial General Liability most recent Occurrence Form CG 00 01;
2. Automobile Liability Insurance for bodily injury and property damage including coverage f or owned, non -owned and hired vehicles, of at least $1,000,000 per accident for bodily injury and property damage, at least as broad as most recent Insurance Services Office Form Number CA 00 01 covering automobile liability, Code 1 (any auto);
3. Workers’ Co mpensation in compliance with applicable statutory requirements and Employer's Liability Coverage of at least $1,000,000 per occurrence; and
4. Pollution Liability Insurance of at least $1,000,000 per occurrence and $2,000,000 aggregate shall be provided by t he Contractor if transporting hazardous materials.
5. If Contractor is also the manufacturer of any equipment included in the Equipment, Contractor shall carry Product Liability and/or Errors and Omissions Insurance which covers said equipment with limits of not less than $1,000,000.
B. Additional Insured; Primary; Waiver of Subrogation; No Limitation on Coverage. The policies required under this Section shall give City, its officials, officers, employees, agents or volunteers additional insured status. Such policies shall contain a provision stating that Contractor’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any additional insureds shall not be called upon to contribute to any loss, and shal l contain or be endorsed with a
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waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, e xcept with respect to the limits of liability.
Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance . Any available coverage shall be provided to the parties required to be named as additional insured pursuant to this Agreement.
C. Insurance Carrier . All insurance required under this Section is to be placed with insurers with a current A.M. Best’s rating no less than A-:VII, licensed to do business in California, and satisfactory to the City.
D. Evidence of Insurance . Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by the Agreement. The cert ificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and appro ved by the City before delivery commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
E. Subcontractors. All subcontractors shall meet the requirements of this Section before commencing work. In addition, Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
F. Freight. Contractor shall ensure that third party shippers contracted by Contractor have adequate insurance coverage for the shipped Equipment.
Section 15. LIENS.
A. Contractor, subcontractors and suppliers will not make, file or maintain a mechanic’s or other lien or claim of any kind or character against the Equipment, for or on account of any labor, materials, fixtures, tools, machinery, equipment, or any other things furnished, or any other work done or performance given under, arising out of, or in any manner connected with the Agreement (such liens or claims referred to as “Claims”); and Contractor, subcontractor and suppliers expressly waive and relinquish any and all rights which they now have, or may subsequently acquire, to file or maintain any Claim and Contractor, subcontractor and suppliers agree that this provision waiving the right of Claims will be an independent covenant.
B. Contractor will save and hold City harmless from and against any and all Claims that may be filed by a subcontractor, suppl ier or any other person or entity and Contractor will, at its own expense, defend any and all actions based upon such Claims and will pay all charges of attorneys and all costs and other expenses arising from such Claims.
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Section 16. TERMINATION OF AGREEMENT BY CITY.
A. Should Contractor at any time refuse or fail to deliver the Equipment with promptness and diligence, or to perform any of its other obligations under the Agreement, City may terminate Contractor’s right to proceed with the delivery of the Equipment by writ ten notice to Contractor . In such event City may obtain the Equipment by whatever method it may deem expedient, including the hiring of another contractor or other contractors and, for that purpose, may take possession of all materials, machinery, equipme nt, tools and appliances and exercise all rights, options and privileges of Contractor. In such case Contractor will not be entitled to receive any further payments until the Equipment is delivered. If City’s cost of obtaining the Equipment, including co mpensation for additional managerial and administrative services, will exceed the unpaid balance of the Agreement, Contractor will be liable for and will pay the difference to City.
B. City may, for its own convenience, terminate Contractor’s right to proceed with the delivery of any portion or all of the Equipment by written notice to Contractor.
Such termination will be effective in the manner specified in such notice, will be without prejudice to any claims which City may have against Contractor, and will not affect the obligations and duties of Contractor under the Agreement with respect to portions of the Equipment not terminated.
C. On receipt of notice under Section 16.B , Contractor will, with respect to the portion of the Equipment terminated, unless the notice states otherwise,
1. Immediately discontinue such portion of the Equipment and the placing of orders for materials, facilities, and supplies in connection with the Equipment,
2. Unless otherwise directed by City, make every reasonable effort to procure cancellation of all existing orders or contracts upon terms satisfactory to City; and
3. Deliver only such portions of the Equipment which City deems necessary to preserve and protect those portions of the Equipm ent already in progress and to protect material, plant and equipment at the Equipment site or in transit to the Equipment site.
D. Upon termination pursuant to Section 16.B, Contractor will be paid a pro rata porti on of the compensation in the Agreement for any portion of the terminated Equipment already delivered, including material and services for which it has made firm contracts which are not canceled, it being understood that City will be entitled to such material and services. Upon determination of the amount of said pro rata compensation, City will promptly pay such amount to Contractor upon delivery by Contractor of the releases of liens and affidavit, pursuant to Section 7.C.
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Section 17. MISCELLANEOUS PROVISIONS.
A. Delivery of Notices . All notices permitted or required under this Agreement shall be given to the respective parties at the following address or at such other address as the respective parties may provide in writing for this purpose:
CITY:
City of Fontana
8353 Sierra Avenue
Fontana, California 92335
Attn: [***INSERT NAME & DEPARTMENT***]
CONTRACTOR:
Alliance Building Solutions, Inc.
12520 High Bluff Drive, Suite 345
San Diego, California 92130
Attn: Brad Chapman
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
B. Assignment or Transfer . Contractor shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of the City, which will not be unreasonably withheld. Provided, however, that claims for money due or to become due Contractor from the City under this Agreement may be assigned to a financial institution or to a trustee in bankruptcy, without such approval. Notice o f any assignment or transfer, whether voluntary or involuntary, shall be furnished promptly to the City.
C. Successors and Assigns . This Agreement shall be binding on the successors and assigns of the Parties.
D. Amendment; Modification. No supplement, modific ation or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
E. Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
F. Governing Law . This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.
G. Interpretation. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party.
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H. No Third Party Beneficiaries . There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
I. Authority to Enter Agreement . Each Party warrants that the individuals who have signed this Agre ement have the legal power, right and authority to make this Agreement and bind each respective Party.
J. Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
K. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
L. City’s Right to Employ Other Contractors. City reserves its right to employ other contractors in connection with the Equipment.
M. Compliance with Law . Contractor shall comply with all applicable laws and regulations of the federal, state and local government and shall be responsible for obtaining any required licenses, permits or certif ications necessary to perform this Agreement. Contractor is responsible for all costs of clean up and/or removal of hazardous and toxic substances spilled as a result of its performance of this Agreement.
Contractor is aware of the requirements of Califor nia Labor Code Sections 1720 et seq. and 1770 et seq . (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. If the work being performed u nder this Agreement is 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 La ws. Contractor shall defend, indemnify and hold City, its 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 comply with the Prevailing Wa ge Laws. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of work under this Agreement, including any delay, shall be Contractor’s sole responsibility and Contrac tor shall indemnify City from liability arising out of the same. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sectio ns 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815), contractor registration (Labor Code Sections 1725.5 and 177 1.1) and debarment of contractors and subcontractors (Labor Code Sections 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 and to be registered with the Department of Industria l Relations shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1771.4, 1725.5 and 1771.1.
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N. Entire Agreement . This Agreement constitutes the entire agreement between the Parties relative to the Equipment specified herein. There are no understandings, agreements, conditions, representations, warranties or promises with respect to this Agreement, except those contained in or referred to in the writing.
O. Compliance with Funding Source Requirements . Funds from the Coronavirus State Fiscal Recovery Fund and/or the Coronavirus Local Fiscal Recovery Fund, together known as the Coronavirus State and Local Fiscal Recovery Funds (“CSLFRF”) program, will be used to fund all or a portion of this Agreement. As applicable, Contractor shall comply with all federal requirements including, but not limited to, the following, all of which are expressly incorporated herein by reference:
i. Sections 602 and 603 of the Social Security Ac t as added by Section 9901 of the American Rescue Plan Act of 2021 (“ARPA”);
ii. CSLFRF Final Rule, codified at 31 CFR Part 35;
iii. CSLFRF Guidance on Recipient Compliance and Reporting Requirement, the most current version;
iv. 2 C.F.R. Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, other than such provisions as the U.S.
Department of the Treasury may determine are inapplicable to the CSLFRF program and subject to such exceptions as may be otherwise provid ed by the U.S. Department of the Treasury;
v. Treasury Coronavirus Local Fiscal Recovery Fund Award Terms and Conditions; vi. Federal funding source requirements attached hereto as Exhibit “D” and incorporated herein by reference.
Subcontracts, if any, shall co ntain a provision making them subject to all of the provisions stipulated in this Agreement. With respect to any conflict between the Federal Contract Provisions and the Agreement and/or the provisions of state law and, except as otherwise required under federal law or regulation, the Federal Contract Provisions shall control.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR EQUIPMENT PURCHASE AGREEMENT
CITY OF FONTANA
By:
Matthew C. Ballantyne
City Manager
ALLIANCE BUILDING SOLUTIONS, INC.
By:
Attest:
By:
Germaine McClellan Key
City Clerk
By:
Phillip Burum
Deputy City Manager
Approved as to form:
Ruben Duran
City Attorney
By: _____________________________
Public Works Director
IN COMPLIANCE WITH CONTRACT INSURANCE REQUIREMENTS
By: ______________________________
Rakesha Thomas
Human Resources & Risk Management Director
IN COMPLIANCE WITH PURCHASING AND CONTRACT ADMINISTRATION POLICIES/PROCEDURES
___________________________________
Jessica Brown
Chief Financial Officer
Purchasing Office
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EXHIBIT “A”
EQUIPMENT SPECIFICATIONS
3 EQUIPMENT LISTING
Item Brand Model Quantity
1 WellAir Protect 900 (NV900) 325
2 WellAir Protect 200 (NV200) 325
3 WellAir Desk Stands 200
4 uHoo uHoo Aura Wall-Mounted Wifi 650
5 Installation WellAir Protect and Monitor 650
PROJECT LOCATION
The quantities are an estimate, and the final quantities will be determine before the first order is placed by the city. For a period of 12 months from the date of the purchase order, the awarded supplier will maintain the unit prices for each of the items if the City requests the extra equipment on an as -needed basis. Such as -needed purchases shall be ordered against a unique quote and purchase order.
Location Unit Quantities
City Hall DSO 120
City Hall East Annex 25
Community Service 60
Police Department 130
Public Works 25
Library 70
Senior Center 65
Art Depot 10
Civic Center Stage 15
Cypress Community Center 12
Don Day Community Center 10
Historical Society 2
4 Jessie Turner Aquatic Center 45
Haggen Police SUB 7
Heritage Community 18
Human Resource 18
Knopf Senior Center 8
Miller Community 10
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EXHIBIT “B”
DELIVERY SCHEDULE
The installation of this project will be
subcontracted out to Alliance Electrical Solutions
(AES), who is under the Alliance Companies
umbrella. AES is the electrical division within
Alliance that will provide turnkey implementation
services for this entire project. With over
combined 40 years of expertise and experience
self-performing all lighting and electrical work
translates to additional savings for the Customer.
AES holds its C-10 license.
The installation of the WellAir is very
straightforward and with the expertise of AES it
will have a very quick and streamlined process.
The same representatives mentioned above in
the previous section will be the main
representatives managing the installation
process including Jerry Gallego as the Field
Manager and Robby Bloss as the Senior Project
Manager and Cody Renwick as the Superintendent (for credentials please see above section B1). AES will run the install operations for both the WellAir and uHoo devices. The Protect 900 is wall mountable and only requires two anchors to be fixed on the wall, the device is then mounted onto the anchors. The uHoo Aura installation is dependent on the Cities I.T. infrastructure. AES will work closely with staff to provide the city all the proper support for a streamlines and seamless implementation of the devices.
SCHEDULE
The City of Fontana will be introduced to the project management team early in the project development process. The involvement, communication, and coordination between the project management team and City staff plays a vital role in a successful project implementation. The lead project manager will be involved in the entire project development and engineering process, including all preliminary meetings and site walks. This early involvement enables the project manager to have a thorough understanding of the City’s needs, scope specifications, timeline deadlines, staff preferences, and overall project implementation goals to ensure a very smooth and effective transition into project installation.
Once a scope is finalized and contracts have been executed, a project kick-off meeting will be held to begin the installation process. This will entail the following:
• Exchange of contact information kick-off meeting between city officials and ABS project management team
• Obtain site access information
o Keys
o Access Cars
o Operational Hours
• Gather additional site information
o Blueprints/Facility Layouts
o Fire-alarm Layouts
• Schedule final analysis site walks
Following kick-off meeting, ABS will schedule a final site walk with all subcontractors to confirm equipment/unit count specifications, equipment locations, and equipment details such as voltage, size, etc.
Project Implementation
The ABS implementation is approached in the outline below to guarantee a quality on time delivery with negligible disruptions to staff:
Program Plan
o Our team of experts will organize a master program that is coauthored with City staff that will put forth the best program at the most competitive costs with quick, quality, on time delivery.
Program Direction
o ABS will meet with City staff and outline essential roles, safety prerequisites, Code of Conduct principles, scope requirements, site access procedures, communication process’ and final schedules.
Program Implementation
o The ABS will work thoroughly with the implementation team to guarantee a smooth delivery. The execution is extremely important to ABS so we are dedicating Robby Bloss (principal) as the lead Project Manager who will be on site weekly and function as the Cities single point of contact.
Pre-Commissioning
o This will begin during the implementation as the measures are being installed. Start-up documentation is used as well as manual visual inspection to ensure proper operation. All manufacture guidelines are followed for calibration and tuning and will be verified.
Final Commissioning
o All unit performances will be verified monitored and recorded.
Project Scheduling
The City of Fontana will be provided with an installation schedule, also referred to as a Gantt Chart. This is the equipment installation breakout that will outline when each measure will be installed and at what sites. Here all installation deadlines and timelines will be provided. Any requested milestones or target completion dates from City staff will be incorporated in our implementation schedule. ABS will heavily coordinate with staff to fully understand and facility staffing schedules, facility hours of operation, holidays and other calendar items, along with any other simultaneous projects in order to create the most effective and efficient installation timeline.
Sample Schedule of Values
Sample Implementation Schedule
Following the commencement of project installation, the project management team will hold update meetings. These update meetings can be held in time increments in accordance with the City’s discretion. These update meetings will involve short and long-term deadline progress reports, addressing any issues that arise since the previous meeting, clarification on any equipment installation specifications, and to give general project feedback. The project manager will be continuously on site throughout project installation with extensive oversight throughout all operations sitewide. In addition to a Gannt Chart, a schedule of values will be provided. The schedule of values will provide the City with a full breakdown of all project billings and invoices that will be submitted throughout the progression of project completion, correlating with the installation schedule. The schedule will entail the billing dollar amounts, projected dates that billings will be received, along with detailed descriptions of how many items are included in each submission.
Our internal account management, engineering, and project management teams are constantly reviewing and coordinating through every process from start to finish, assuring smooth transitions between stated project milestones.
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EXHIBIT “C”
FEE SCHEDULE
E: PRICING AMOUNT
* Sales tax already included in pricing
Item Brand Model Quantity Cost
1. WellAir Protect 900 325
$659,750
2. WellAir Protect 200 325 $316,875
3. WellAir Desk Stand 200
$59,600
4. uHoo Aura 650 $776,750
5. Installation
WellAir Protect 900 125 $18,750
6. Installation
Aura Aura 650
Price dependent on
customers IT
equipment/
requirements
$2,030 ea
$975 ea
$298 ea
$1,195 ea
$150 ea
TOTAL $1,831,725
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EXHIBIT “D”
FEDERAL CONTRACT PROVISIONS
During the performance of th is Agreement, the Contractor shall comply with all applicable federal laws and regulations including, but not limited to, the Federal Contract Provisions in this Exhibit.
1. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APPENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (2 C.F.R. § 200.327)
(a) Appendix II to Part 200 (A); Appendix II to Part 200 (B): Remedies for Breach; Termination for Cause/Convenience. The Contract Documents include remedies for breach and termination for cause and convenience.
(b) Appendix II to Part 200 (C) – Equal Employment Opportunity: Except as otherwise provided under 41 C.F.R. Part 60, if this Agreement meets the definition of a “federally assisted construction contract” in 41 C.F.R. § 60 -1.3, then Contractor shall comply with the following equal opportunity clause, in accordance with Executive Order 11246 of September 24, 1965 entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967 and implementation regulations at 41 C.F.R. Chapter 60:
(i) The Contractor 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 affi rmative 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 transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to p ost in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(ii) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(iii) The Contractor will not discharge or in any othe r manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an 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 information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Contractor's legal duty to furnish information.
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(iv) 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 advi sing the said labor union or workers' representatives of the Contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(v) The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(vi) The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by r ules, 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. (vii) In the event of the Contractor's noncompliance with the nondiscrimination clauses of this Agreement or with any of the said rules, regulations, or orders, this Agreement 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 im posed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(viii) The Contractor will include the portion of the sentence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) 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, 19 65, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Contractor may request the U nited 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 federall y 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 t he 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 th e
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administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract o r contract modification subject to Executive Order 11246 of Se ptember 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance t o the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
(c) Appendix II to Part 200 (D) – Davis-Bacon Act: Not applicable to this Agreement since it is funded by CSLFRF.
(d) Appendix II to Part 200 (D) – Copeland “Antti-Kickback” Act: Not applicable to this Agreement since it is funded by CSLFRF.
(e) Appendix II to Part 200 (E) – Contract Work Hours and Safety Standards Act:
(i) If this Agreement is in excess of $100,000 and involves the employment of mechanics or laborers, Contractor shall comply with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regul ations (29 C.F.R. Part 5). Under 40 U.S.C. 3702, 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 th e 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 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or c ontracts for transportation or transmission of intelligence.
(ii) Overtime Requirements. No contractor or subcontractor contracting for any part of the Agreement work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one -half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (iii) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (ii) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to suc h territory), for
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liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (ii) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (ii) of this section.
(iv) Withholding for unpaid wages and liquidated damages. The City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Co ntractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally -assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor , such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (iii) of this section.
(v) Subcontracts. The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (ii) through (v) of this Section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (ii) through (v) of this Section. (f) Appendix II to Part 200 (F) – Rights to Inventions Made Under a Contract or Agreement:
(i) If the Federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the non -Federal entity wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimenta l, developmental, or research work under that “funding agreement,” the non -Federal entity must comply with the requirements of 37 C.F.R. Part 401 (Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contra cts and Cooperative Agreements), and any implementing regulations issued by the Federal awarding agency. (ii) The regulation at 37 C.F.R. § 401.2(a) currently defines “funding agreement” as any contract, grant, or cooperative agreement entered into between an y Federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental, or research work funded in whole or in part by the Federal government. This term also includes any assignment, substitution of parties, or subcontract of any type entered into for the performance of experimental, developmental, or research work under a funding agreement as defined in the first sentence of this paragraph.
(g) Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act: If this Agreement is in excess of $150,000, Contractor shall comply with all applicable standards, orders, or requirements issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387).
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(i) Pursuant to the Clean Air Act, (1) Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Contractor agrees to rep ort each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Cont ractor agrees to include these requirements in each subcontract exceeding $150,000.
(ii) Pursuant to the Federal Water Pollution Control Act, (1) Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Contractor agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awardi ng agency and the appropriate Environmental Protection Agency Regional Office, and (3) Contractor agrees to include these requirements in each subcontract exceeding $150,000. (h) Appendix II to Part 200 (H) – Debarment and Suspension: A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 C.F.R. part 1986 Comp., p. 189) and 12689 (3 C.F.R. 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. (i) This Agreement is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Contractor is required to verify that none of the Contractor, its principals (defined at 2 C.F.R. § 180.995), or its affil iates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). (ii) Contractor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to c omply with these regulations in any lower tier covered transaction it enters into.
(iii) This certification is a material representation of fact relied upon by City. If it is later determined that Contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment.
(iv) Contractor warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Contractor also agrees to verify that all subcontractors performing work under this Agreement are not debarred, disqualified, or otherwise prohibited from participation in accordance wi th the requirements above. Contractor further agrees to notify the City in writing immediately if Contractor or its subcontractors are not in compliance during the term of this Contract. (i) Appendix II to Part 200 (I) – Byrd Anti -Lobbying Act: If this Agreement is in excess of $100,000, Contractor shall have submitted and filed the required certification pursuant to the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1353). If at any time during the Agreement term funding exceeds $100,000.00, Contractor shall file with the City the Federal Standard Form
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LLL titled “Disclosure Form to Report Lobbying.” 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 n ot 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 31 U.S.C. 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 recipient who in turn will forward the certification(s) to the awarding agency. (j) Appendix II to Part 200 (J) – §200.323 Procurement of Recovered Materials:
(i) Contractor shall comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. part 247 that contain the highest percentage of recove red 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 maximizes energy and resource recovery; and establishing an affirmative procurement. (ii) In the performance of this Contract, the Contractor shall make maximum use of products containing recovered materials that are EPA -designated items unless the product cannot be acquired: Competitively within a timeframe providing for compliance with the contract performance schedule; Meeting contract performance requirements; or at a reasonable price.
(iii) Information about this requirement, along with the list of EPA -designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. (iv) The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.” (k) Appendix II to Part 200 (K) – §200.216 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment:
(i) Contractor shall not contract (or extend or renew a contract) to procure or obtain equipment, services, or systems 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 funded under this Contract. 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). (1) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and tel ecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
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(2) Telecommunications or video surveillance services provide d by such entities or using such equipment.
(3) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of th e 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.
(ii) See Public Law 115-232, section 889 for additional information. (l) Appendix II to Part 200 (L) – §200.322 Domestic Preferences for Procurement:
(i) Contractor shall, to the greatest extent practicable, purchase, acquire, or use 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 subcontracts
(ii) For purposes of this section:
(1) “Produced in the United States’’ means, for iron and steel products, that all manufacturing processes, from the initial melti ng stage through the application of coatings, occurred in the United States.
(2) ‘‘Manufactured products’’ means items and construction materials composed in whole or in part of nonferrous metals such as aluminum; plastics and polymer - based products such as po lyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
2. COMPLIANCE WITH U.S. DEPARTMENT OF THE TREASURY CORONAVIRUS
STATE AND LOCAL FISCAL RECOVERY FUND AWARD TERMS AND CONDITIONS (a) Maintenance of and Access to Record s. Contractor shall maintain records and financial documents sufficient to evidence compliance with section 603(c) of ARPA, Treasury’s regulations implementing that section, and guidance issued by Treasury regarding the foregoing. Contractor agrees to provide the CITY, Treasury Office of Inspector General and the Government Accountability Office, or any of their authorized representatives access to any books, documents, papers, and records (electronic an otherwise) of the Contractor which are directly pertinent to this Agreement for the purposes of conducting audits or other investigations.
Records shall be maintained by Contractor for a period of five (5) years after completion of the project.
(b) Compliance with Federal Regulations. Contractor agrees to comply with the requirements of section 603 of ARPA, regulations adopted by Treasury pursuant to section 603(f) of ARPA, and guidance issued by Treasury regarding the foregoing. Contractor also agrees to comply with all other applicable federal statutes, r egulations, and executive orders, including, without limitation, the following:
(i) Universal Identifier and System for Award Management (SAM), 2 C.F.R.
Part 25, pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 25 is hereby incorporated by reference.
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(ii) Reporting Subaward and Executive Compensation Information, 2 C.F.R.
Part 170, pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 170 is hereby incorporated by reference.
(iii) OMB Guidelines to Agencies on Governmentwide De barment and Suspension (Nonprocurement), 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 2 C.F.R. Part 180 and Treasury’s implementing regulation at 31 C.F.R. Part 19.
(iv) Recipient Integrity and Performance Matters, pursuant to which the award term set forth in 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference.
(v) Governmentwide Requirements for Drug-Free Workplace, 31 C.F.R. Part
20. (vi) New Restrictions on Lobbying, 31 C.F.R. Part 21. (vii) Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C. §§ 4601-4655) and implementing regulations. (c) Compliance w ith Federal Statutes and Regulations Prohibiting Discrimination.
Contractor agrees to comply with statutes and regulations prohibiting discrimination applicable to the CSLFRF program including, without limitation, the following:
(i) Title VI of the Civil Righ ts Act of 1964 (42 U.S.C. §§ 2000d et seq.) and Treasury’s implementing regulations at 31 C.F.R. Part 22, which prohibit 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. §§ 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 Rehabilitat ion Act of 1973, as amended (29 U.S.C. § 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. §§ 6101 et seq.), and T reasury’s implementing regulations at 31 C.F.R. Part 23, which prohibit discrimination on the basis of age in programs or activities receiving federal financial assistance. (v) Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. §§ 1 2101 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.
(d) False Statements. Contractor understands that making false statements or claims in connection with the C SLFRF program is a violation of federal law and may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and
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penalties, debarment from participating in federal awards or contracts, and/or any other remedy available by law.
(e) Hatch Act . If Contractor is a public agency, Contractor agrees to comply, as applicable, with the requirements of the Hatch Act (5 U.S.C. section 1501-1508 and 7324-7328), which limit certain political activities of State or local government employees whose principal employment is in connection with an activity financed in whole or in part by this federal assistance.
(f) Protections for Whistleblowers.
(i) In accordance with 41 U.S.C. § 4712, Contractor 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 violation of law, rule, or regulation related to a feder al contract (including the competition for or negotiation of a contract) or grant. (ii) The list of persons and entities referenced in the paragraph above includes the following:
(1) A member of Congress or a representative of a committee of Congress;
(2) An Inspector General;
(3) The Government Accountability Office;
(4) A Treasury employee responsible for contract or grant oversight or management;
(5) An authorized official of the Department of Justice or other law enforcement agency;
(6) A court or grand jury; or
(7) A management offici al or other employee of Contractor, or a subcontractor who has the responsibility to investigate, discover, or address misconduct. (g) Increasing Seat Belt Use in the United States. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Contractor is 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, and encourage its subcontractors to do the same (h) Reducing Text Messaging While Driving. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Contractor should encourage its employees and subcontractors to adopt and enforce policies that ban text messaging while driving, and Contractor should establish workplace safety policies to decrease accidents caused by distracted drivers.
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(i) Assurances of Compliance with Civil Rights Requirements. The Civil Rights Restoration Act of 1987 provides that the provisions of this assurance apply to the Contract, including, but not limited to, the following:
(i) Contractor ensures its current and future compliance 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 States on the ground of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at 31 CFR Part 22 and other pertinent executive orders such as Executive Order 13166; directives; circulars; policies; memoranda and/or guidance documents. (ii) Contractor acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency (LEP),” seeks to improve ac cess to federally assisted programs and activities for individuals who, because of national origin, are limited in their English proficiency. Contractor understands that the denial of access to persons to its programs, services and activities because of their limited proficiency in English is a form of national origin discrimination prohibited under Title VI of the Civil Rights Act of 1964.
Accordingly, Contractor shall initiate reasonable steps, or comply with Treasury’s directives, to ensure meaningful ac cess to its programs, services and activities to LEP persons. Contractor understands and agrees that meaningful access may entail providing language assistance services, including oral interpretation and written translation where necessary to ensure effective communication in the Project.
(iii) Contractor agrees to consider the need for language services for LEP persons during development of applicable budgets and when conducting programs, services and activities. As a resource, the Department of the Treasury has published its LEP guidance at 70 FR 6067. For more information on LEP, please visit http://www.lep.gov. (iv) Contractor acknowledges and agrees that compliance with this assurance constitutes a condition of continued receipt of federal financial assistance and is binding upon Contractor and Contractor’s successors, transferees and assignees for the period in which such assistance is provided.
(v) Contractor agrees to incorporate the foll owing language in every contract or agreement subject to Title VI and its regulations between the Contractor and the Contractor’s subcontractors, successors, transferees and assignees:
The subcontractor, successor, transferee and assignee shall comply wit h Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from excluding from a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, color, or national ori gin (42 U.S.C. § 2000d et seq.), as implemented by Department of the Treasury 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 extends protection to persons with “Limited English proficiency” in any program or activity receiving federal financial assistance, 42 U.S.C. § 2000d et seq., as implemented by Department of the Treasury Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and m ade a part of this contract (or agreement).
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(vi) Contractor understands and agrees that if any real property or structure is provided or improved with the aid of federal financial assistance by the Department of the Treasury, this assurance obligates the Con tractor, or in the case of a subsequent transfer, the transferee, for the period during which the real property or structure is used for a purpose for which the federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. If any personal property is provided, this assurance obligates the Contractor for the period during which it retains ownership or possession of the property. (vii) Contractor shall cooperate in any enforcement or compliance review activities by the Department of the Treasury of the aforementioned obligations. Enforcement may include investigation, arbitration, mediation, litigation, and monitoring of any settlement agreements that may result from these actions. Contractor shall comply w ith information requests, on-site compliance reviews, and reporting requirements. (viii) Contractor shall maintain a complaint log and inform the Department of the Treasury of any accusations of discrimination on the grounds of race, color, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Act of 1964 and implementing regulations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome. Contracto r must also inform the Department of the Treasury if Contractor has received no complaints under Title VI. (ix) Contractor must provide documentation of an administrative agency’s or court’s findings of non -compliance of Title VI and efforts to address the no n-compliance, including any voluntary compliance or other agreements between the Contractor and the administrative agency that made the finding. If the Contractor settles a case or matter alleging such discrimination, Contractor must provide documentation of the settlement. If Contractor has not been the subject of any court or administrative agency finding of discrimination, please so state.
(x) If Contractor makes sub -awards to other agencies or other entities, Contractor is responsible for assuring that sub-recipients also comply with Title VI and all of the applicable authorities covered in this assurance.
3. CONTRACTING WITH SMALL AND MINORITY FIRMS, WOMEN’S BUSINESS ENTERPRISE AND LABOR SURPLUS AREA FIRMS (2 C.F.R. § 200.321)
(a) Contractor shall be subject to 2 C.F.R. § 200.321 and will take affirmative steps to assure that minority firms, women’s business enterprises, and labor surplus area firms are used when possible and will not be discriminated against on the grounds of race, color, religious creed, sex, or national origin in consideration for an award. (b) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and women's business enterprises on solicitation lists;
(ii) Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources;
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(iii) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises;
(iv) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises; and (v) Using the services/assistance of the Small Business Administration (SBA), and the Minority Business Development Agency (MBDA) of the Department of Commerce.
Contractor shall submit evidence of compliance with the foregoing affirmative steps when requested by the City.