CITY OF FONTANA
PROFESSIONAL SERVICES AGREEMENT
TRACKING NUMBER:
Parties and Date.
This Agreement is made and entered into this ___ day of June, 2023, by and between the City of Fontana, 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 Quality Management Group, Inc., a Corporation with its principal place of business at 3105 E Guasti Road, Suite 100, Ontario, CA 91761 (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.” Recitals.
City. City is a municipal corporation organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.
Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is familiar with and experienced in providing property management services for properties that serve individuals and families who are homeless or at risk of homelessness, and the provision of such services to public clients, and further that Consultant has all appropriate licenses to provide such services in the State of California and the City.
Project. City desires to engage Consultant to render such services on the terms and conditions as set forth in this Agreement for purposes of reducing and eliminating homelessness in the City. City and Consultant agree that this Agreement is subject to requirements of funding received under state and federal law, including grant conditions referenced herein, and that City and Consultant shall reasonably cooperate to fulfill the requirements and conditions for the receipt and expenditure of such funding (“Funding Requirements”).
Terms.
Scope of Services and Term.
General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional consulting services necessary for the property management services more particularly described in the “Scope of Services” attached as Exhibit “A”, and the conditions stated therein and incorporated herein by reference (“Services”). All Services and related activities shall be in accordance with this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
Term. The term of this Agreement shall be for a period of one year from __________ 2023 to ____________, 2024 (“Term”), unless earlier terminated as provided herein. The City has the option, by giving written notice to Consultant, to extend the term for four (1) one-year periods (“Extended Term”), at which point the Agreement will expire and a new agreement will be required. Consultant shall perform its services in a prompt and timely manner within the term of this Agreement and shall commence performance upon receipt of written notice from the City to proceed (“Notice to Proceed”). The Notice to Proceed shall set forth the date of commencement of work.
Responsibilities of Consultant.
Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit “B” attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant’s conformance with the Schedule, City shall respond to Consultant’s submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. Consultant agrees and understands that the payment for Services is subject to the deadlines for expenditure of funds, if any, referenced in the Funding Requirements.
Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City, and in accordance with all requirements of the Scope of Services and any applicable Funding Requirements. Consultant understands and agrees to comply with all obligations of a “subrecipient” or “subgrantee,” if applicable, under any funding source referenced in this Agreement.
Compliance with the Drug-Free Workplace Act of 1990 (Gov. Code § 8350 et seq.) and the Drug–Free Workplace Act of 1988 (41 U.S.C. 701 et seq., as amended, 31 C.F.R. part 20).
Publishing a statement notifying employees or agents that unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited and specifying actions to be taken for violations.
Establishing a Drug-Free Awareness Program, as required by Government Code § 8355, subdivision (a)(2), 41 U.S.C. 701 et seq., and 31 C.F.R. part 20 to inform employees or agents about: (a) the dangers of drug abuse in the workplace; (b) Consultant’s policy of maintaining a drug-free workplace; (c) any available counseling, rehabilitation, and employee assistance program; and (d) penalties that may be imposed upon employees or agents for drug abuse violations.
Provide each employee or agent, as required by Government Code § 8355(a)(3), a copy of Consultant’s drug-free policy statement, and require each employee or agent agree and abide to the terms of the policy as part of the employment or agent contract.
Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services or a threat to the safety of persons or property, shall be promptly removed from the Services by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: Tim Johnson.
City’s Representative. The City hereby designates Valerie Gonzales, Housing Development Manager, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
Consultant’s Representative. Consultant hereby designates Tim Johnson, or his or her designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, consultants and other staff at all reasonable times.
Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Services by the Consultant and shall not be reemployed to perform any of the Services or any related work.
Period of Performance. Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or milestones described in any Scope of Services or Schedule of Performance attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
Laws and Regulations; Employee/Labor Certifications. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
Employment Eligibility; Consultant. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Consultant. Consultant also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Consultant shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Consultant shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Consultant’s compliance with the requirements provided for in Section 3.2.10 or any of its sub-sections.
Employment Eligibility; Subcontractors, Consultants, and Subconsultants. To the same extent and under the same conditions as Consultant, Consultant shall require all of its subcontractors, consultants, sub-subcontractors and subconsultants performing any work relating to the Services or this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 3.2.10.1.
Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Consultant verifies that they are a duly authorized officer of Consultant, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Consultant or its subcontractors, consultants, sub-subcontractors or subconsultants to meet any of the requirements provided for in Sections 3.2.10.1 or 3.2.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Consultant under Section 3.2.10.2); or (3) failure to immediately remove from the Services any person found not to be in compliance with such requirements.
Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to obtain the required liability insurance in accordance with law and this Agreement before commencing the performance of the Services.
Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, 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, age, sexual orientation, or military and veteran status. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City’s Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Although the SCAQMD and CARB limits and requirements are more broad, Consultant shall specifically be aware of their application to "portable equipment", which definition is considered by SCAQMD and CARB to include any item of equipment with a fuel-powered engine. Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
Water Quality.
Management and Compliance. To the extent applicable, Consultant’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the Santa Ana Regional Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State.
Liability for Non-compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Consultant or City to penalties, fines, or additional regulatory requirements. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Consultant’s non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers.
Training. In addition to any other standard of care requirements set forth in this Agreement, Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Consultant further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Consultant with a list of training programs that meet the requirements of this paragraph.
Insurance.
Time for Compliance. Consultant shall not commence the Services under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section.
Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another.
Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Consultant or the City may withhold amounts sufficient to pay premium from Consultant payments. In the alternative, the City may suspend or terminate this Agreement.
Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing the exact same coverage, the City of Fontana, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insured with respect to the Services or ongoing and complete operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of the City, before the City’s own primary insurance or self-insurance shall be called upon to protect it as a named insured. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section 3.2.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.2.11.3(A).
Automobile Liability. The automobile liability policy shall include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section 3.2.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.2.11.3(B).
Workers’ Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Consultant.
All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers and other additionally insureds.
Separation of Insureds; No Special Limitations; Waiver of Subrogation. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents and volunteers. All policies shall waive any right of subrogation of the insurer against the City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. Consultant shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents and volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
Subconsultant Insurance Requirements. Consultant shall not allow any subconsultants to commence work on any subcontract relating to the work under the Agreement until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. If requested by Consultant, the City may approve different scopes or minimum limits of insurance for particular subconsultants. The Consultant and the City shall be named as additional insureds on all subconsultants’ policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.
Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the City.
Verification of Coverage. Consultant shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates 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 provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
Reporting of Claims. Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement., Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
NON-DISCRIMINATION. During the performance of this Agreement, Consultant, its employees and agents, shall not deny the contract’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they discriminate unlawfully 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, age, sexual orientation, or military and veteran status. Consultant shall insure that the evaluation and treatment of employees and applicants for employment are free of such discrimination. Contractor and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12900 et seq.), the regulations promulgated thereunder (Cal. Code Regs., tit. 2, §11000 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Gov. Code §§11135-11139.5), and the regulations or standards adopted by the awarding state agency to implement such article. Consultant shall permit access by representatives of the Department of Fair Employment and Housing and the awarding state agency upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or Agency shall require to ascertain compliance with this clause. Consultant shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. (See Cal. Code Regs., tit. 2, §11105.) Consultant shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Agreement.
Fees and Payments.
Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit ”C” attached hereto and incorporated herein by reference. The total compensation for the initial one-year term shall not exceed _________________________________________ without written approval of City’s Representative. Extra Work may be authorized, as described below; and if authorized, said Extra Work will be compensated at the rates and manner set forth in this Agreement.
Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. The statement must provide any and all information City may reasonably require to comply with any Funding Requirements referenced in in the Scope of Services or elsewhere in this Agreement. City shall, within forty-five (45) days of receiving such statement, review the statement and pay all approved charges thereon.
Reimbursement Subject to Funding Requirements. Any monthly itemized statement must adequately document that the Services comply with the applicable Funding Requirements, as may be reasonably required by the City, and as set forth in Exhibit A.
Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City.
Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Services, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from City’s Representative.
Prevailing Wages. Consultant 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 prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. City has not made any representations or warranties to Consultant regarding the applicability of Prevailing Wages. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is One Thousand Dollars ($1,000) or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the project site. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees, volunteers 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 Wage Laws.
Service Rates. In the event that this Agreement is renewed pursuant to Section 3.1.2, if the Parties do not both agree to another Service Rate, the Service Rates shall be automatically adjusted each year at the time of renewal in accordance with the Consumer Price Index, All Urban Consumers, Los Angeles-Riverside-Orange Counties (“CPIU”) Program Funding Source Compliance. Consultant agrees and understands that any payments under this Agreement may be subject to a determination that the services comply with grant funding conditions or requirements and that the City may withhold or retain payment for services that fail to comply with any grant conditions or requirements.
Accounting Records.
Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City, or an official or agent of the State of California, or other appropriate agency, during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement as required by any funding source. Consultant must retain records related to services provided under this Agreement for a period of ten (10) years, or longer period as required by law or any Funding Requirements. On or before that date, the City may require Consultant continue to retain records or provide all records related to the services provided under this Agreement.
General Provisions.
Termination of Agreement.
Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause.
Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such documents and other information within fifteen (15) days of the request.
Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
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: Valerie Gonzales
Consultant
Quality Management Group
3105 E. Guasti Road, Suite 100
California, CA 91761
Attn: Tim Johnson____________
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.
Ownership of Materials and Confidentiality.
Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City's express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Services, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
Subcontractors. Consultant shall require all subcontractors to agree in writing that City is granted a non exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subcontractors, or those provided to Consultant by the City.
Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Agreement or another project, provided that any such use not within the purposes intended by this Agreement or unrelated this Agreement without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project unrelated to this Agreement, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.
Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use in the course of this Agreement by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
Confidentiality. All “Confidential Information,” ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by, received by, or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City’s name or insignia, photographs of the Services, or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. “Confidential Information” shall include, but not be limited to, all information or material that Consultant learns of or obtains while providing services to the City, its officials, employees or other agents, including any other consultant working on behalf of the City, under this Agreement that is or was confidential or privileged by virtue of it having been discussed or presented in a duly-noticed closed session meeting of the City Council, or otherwise privileged and/or confidential under applicable law, including but not limited to personnel information, confidential medical or health information, information pertaining to on-going or potential litigation, information learned in the context of the attorney-client relationship with the City Attorney or special counsel to the City. Confidential Information as defined includes, but is not limited to, all data, materials, products, technology, computer programs, specifications, manuals, business plans, software, marketing plans, financial information, internal processes and procedures, and other information disclosed or submitted, orally, in writing, or by any other media, to Consultant by City. Nothing herein shall require City to disclose any of its information to Consultant.
Consultant shall use and disclose Confidential Information only for the benefit of City and as is, or may be, necessary to perform his job responsibilities under this Agreement and in accordance with applicable law. Following the termination of this Agreement, Consultant shall not use or disclose any Confidential Information, except with the express written consent of City. Consultant’s obligations under this Section shall survive the termination and/or expiration of this Agreement.
Indemnification.
Scope of Indemnity. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold the City, its directors, 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 of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
Additional Indemnity Obligations. Consultant shall defend, with legal counsel chosen by City, at Consultant’s own cost, expense and risk, any and all claims, actions or other proceedings of every kind covered by Section 3.5.4.1 that may be brought or instituted against City or its directors, officials, officers, employees, volunteers and agents. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, volunteers and agents as party of any such claim, suit, action or other proceeding. Consultant shall also reimburse City for the cost of any settlement paid by City or its directors, officials, officers, employees, agents, or volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorneys’ fees and costs, including expert witness fees. Consultant shall reimburse City and its directors, officials, officers, employees, 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. Consultant’s obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, agents, or volunteers.
Consultant’s Initials: ______________
Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.5.6 Compliance with Government Orders. Consultant will take such actions as may be necessary to comply promptly with any and all governmental orders or other requirements affecting the Project, whether imposed by Federal, state, county or municipal authority, including any Funding Requirements. Nevertheless, Consultant shall take no such action so long as City is contesting, or has affirmed its intention to contest, any such order or requirement. Consultant will notify City in writing of all notices of such orders or other requirements, within seventy-two (72) hours from the time of their receipt.
Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
Attorney’s Fees. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney’s fees and all other costs of such action.
Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.
Time of Essence. Time is of the essence for each and every provision of this Agreement.
City’s Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Agreement or Services provided hereunder.
Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.
Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
Construction; References; Captions. 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. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
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.
No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
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.
Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
Counterparts. This Agreement may be executed in counterparts, including both counterparts that are executed on paper and counterparts that are in the form of electronic records and are executed electronically. An electronic signature means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including email transmitted electronic signatures. All executed counterparts shall constitute one agreement, and each counterpart shall be deemed an original. The parties hereby acknowledge and agree that electronic records and electronic signatures may be used in connection with the execution of this Agreement and electronic signatures or signatures transmitted by electronic mail in so-called pdf format shall be legal and binding and shall have the same full force and effect as if a paper original of this agreement had been delivered and signed by using a handwritten signature. City and Consultant (a) agree that an electronic signature, whether digital or encrypted, of a party to this Agreement is intended to authenticate this writing and have the same force and effect as a manual signature, (b) intend to be bound by the signatures (whether original, faxed or electronic) on any document sent or delivered by electronic mail or other electronic means, (c) are aware that the other party will rely on such signatures, and (d) hereby waive any defenses to the enforcement of the terms of this Agreement based on the foregoing forms of signatures. If this Agreement has been executed by electronic signature, all parties executing this document are expressly consenting under the Electronic Signatures in Global and National Commerce Act (“E-Sign”), and Uniform Electronic Transactions Act (“UETA”), that a signature transmitted by email or other electronic means shall constitute an Electronic Signature to an Electronic Record under both E-Sign and UETA with respect to this specific transaction.
Subcontracting. Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
Entire Agreement. This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each Party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement. Notwithstanding the foregoing, nothing in this Agreement shall supersede or cancel the separate agreement between City and Consultant regarding the [INSERT REFERENCE TO OTHER EXISTING CONTRACTS].
When funding for the Services is provided, in whole or in part, by an agency of the federal government, Consultant shall also fully and adequately comply with the provisions included in Exhibit “D” (Funding Requirements) attached hereto and incorporated herein by reference (“Funding Requirements”). With respect to any conflict between such Funding Requirements and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control. [signatures on next page]
SIGNATURE PAGE
TO
CITY OF FONTANA
Professional services agreement
track No. _________________
CITY OF FONTANA
By:
Matthew C. Ballantyne
City Manager
Quality Management Group, Inc., a California corporation By:
Name: Tim Johnson
____________________________
Its: President
Attest:
By:
City Clerk
Attest:
By:
Approved as to form:
Best Best & Krieger LLP
City Attorney
By: _____________________________
Phillip Burum
Deputy City Manager
By: ______________________________
Valerie Gonzales
Housing Development Manager
IN COMPLIANCE WITH CONTRACT INSURANCE REQUIREMENTS
By: ______________________________
Rakesha L. Thomas
Director of Human Resources
IN COMPLIANCE WITH PURCHASING AND CONTRACT ADMINISTRATION POLICIES/PROCEDURES Jessica Brown, Chief Financial Officer
Purchasing Office
EXHIBIT “A”
SCOPE OF SERVICES
Quality Management Group, Inc., a Corporation with its principal place of business at 3105 E Guasti Road, Suite 100, Ontario, CA 91761 (“Consultant”) shall provide services under this Agreement, as set forth herein:
It is a material term of this Agreement that all services provided by Consultant comply with the requirement of the funding requirements (“Funding Requirements”) that are a condition of funding awarded to the City of Fontana (“City”) as set forth below:
The City of Fontana has been awarded funds as part of the Family Homelessness Challenge Grant (“FHC Program”), which is funded through the Business, Consumer Services and Housing Agency of the State of California. All services provided under the FHC Program shall comply with the following:
All requirements pursuant to Chapter 8 (commencing with Section 50255) of Part 1 of Division 31 of the Health and Safety Code of California, and any regulations, guidance, or amendments thereto; and, All requirements as set forth in (1) the Family Homelessness Challenge Grant and Technical Assistance Program Standard Agreement, inclusive of all exhibits therein, and (2) the Program Work Plan, each of which is attached hereto as Attachments 1 and 2, respectively, and incorporated herein by reference.
The City of Fontana has also been awarded funds as part of the Homekey Program (“Homekey Program”), which is funded through the Department of Housing and Community Development of the State of California. All services provided under the Homekey Program shall comply with the following:
All requirements pursuant to Health and Safety Code §§ 50675.1.3 and 50675.1.4; All requirements of Standard Agreement (STD) 213, which is attached hereto as Attachment 3 and incorporated herein by reference.
Any other requirements for compliance with the FHC Program and the Homekey Program that may be determined by the State of California or the City, including but not limited to those requirements set forth in Exhibit “D”.
Eligible Clients. The eligible clients for the services described herein are individuals and families who are homeless or at risk of homelessness persons who are “homeless” as defined in Section 578.3 of Title 24 of the Code of Federal Regulations, inclusive of individuals and families who are homeless or at risk of homelessness (“Client” or “Clients”).
Compliance with Work Plan and implementing policies and procedures.
Consultant’s Services will comply with and be consistent with the activities set forth in the Work Plan, including: Street Outreach, Interim Shelter, Rapid Rehousing, Delivery of Permanent Housing, Service Coordination, Systems Support, Operating Subsidies, and Administrative Costs.
Consultant’s Services will comply with any and all policies and procedures adopted by City with regard to any property where services are provided under this Agreement, including but not limited to policies and procedures for implementing programs referenced under the Work Plan.
Program Properties. Consultant’s Services will support services for Eligible Clients in connection with housing opportunities at the following properties:
7714 Tamarind Avenue, Fontana California (“Bridge of Hope”) 8996 Olive Street, Fontana, California
8344 Bennett Avenue, Fontana, California.
Service Deliverables. Consultant shall provide the following Services:
Execute, enforce and administer the terms of all rental agreements, or other agreements in accordance with the Funding Requirements, between City and Clients in accordance with local, state, and federal laws, and shall provide copies of each rental agreement to the City.
Collect all rents, fees, and late charges due to City, and disburse security and other deposits payable to Clients.
Promptly advertise and lease all unit vacancies.
Qualify and screen Clients for qualifying income and rental fee limits based on guidelines as identified by the City in accordance with the Funding Requirements.
Create and implement an affirmative marketing plan and tenant selection procedure in compliance with the Fair Housing Act which ensures that prospective Clients are not discriminated against due to race, national origin, religion, familial status, etc.
Represent the City’s interests in all matters under any lease or other agreement with Clients.
Take digital photographs of the exterior of each property and submit them to the City on a quarterly basis.
Provide ground maintenance for any vacant parcels and/or coordinate the boarding up of vacant units on vacant parcels on an “as-needed” basis.
Perform and document annual inspections of both interior and exterior of all units in accordance with both the City’s Housing Quality Standards and the California Building Code, as required by the Funding Requirements.
Complete annual Leasehold Interest Reports and submit them to reporting agencies.
Consultant shall establish and administrate the following separate banking accounts (except as noted below) for City property finances as may be required by the City and/or Funding Requirements (“Operating Account”). These accounts shall be maintained in accordance with applicable law, shall be fully insured by the Federal Deposit Insurance Corporation and shall be in the City's name. These funds shall not be commingled with Consultant's funds or City's other funds. All revenue collected pursuant to this Agreement (other than security deposits) shall be credited to the General Operating Account, which need not be interest bearing.
Obtain and provide monthly reconciliations and bank statements for the Operating account, Security deposit account, if any, and any other account held for the City as of the end of the prior month.
Prepare and provide City with a monthly management report by the fifteenth (15th) of each month (or such other date as agreed upon in writing by City and Consultant) which shall include the following:
Summary of rents collected, Client delinquencies, unit vacancies, and status of waiting list, if applicable as of the last day of the prior month.
Summaries of expenditures and revenue based under the Funding Requirements for the previous month, with a schedule of accounts receivable and payable, and balance sheet.
Logs documenting monthly maintenance, preventative maintenance, and Client requested maintenance of units.
Logs of onsite property visits by property management representatives.
Accounting of monies collected from washer, dryer, and/or vending machines on the properties.
Summary and status of any Client evictions, in addition to all pending and current legal matters.
Manage and resolve disputes among Clients, in addition to documenting and keeping a record of communications with Clients on issues, complaints, and resolutions to same.
Manage properties in compliance with the requirements of the Crime Free Rental Housing Program.
Serving of Notices of Termination and terminations of tenancies as necessary, recovery of possession of premises, and recovery of delinquent rent and/or other sums due.
Commence legal action on behalf of City and/or settle, compromise, or provide releases on behalf of City following consultation and approval; make court appearances on behalf of City when necessary.
Systematically and promptly receive and investigate all service requests from Clients, or any other agent acting on behalf of the City, take action thereon as may be justified, and keep records of the same. Consultant shall provide emergency maintenance service on a 24 hour-a-day basis and report all maintenance emergencies to the City by the next business day.
Regularly monitor and perform repairs and/or maintenance of properties as needed. This shall include, but not be limited to, cleaning, painting, decorating, plumbing, carpentry, grounds care, and such other maintenance and repair work as may be necessary, subject to any limitations imposed by the City (including financial limitations) in addition to those contained herein. Subject to the City’s approval, Consultant shall enter into necessary agreements with subcontractors for maintenance, repairs, janitorial, pest control, and landscaping services. Incident hereto, the following provisions shall apply:
(i) Special attention will be given to preventative maintenance and, to the greatest extent feasible, the services of regular maintenance employees will be used. A preventive maintenance schedule shall be developed by Consultant for approval by the City. This schedule shall be updated annually. (ii) Subject to the City's prior approval, Consultant shall only contract with qualified independent contractors for the maintenance and repair of air-conditioning systems and elevators, and for extraordinary repairs beyond the capability of regular maintenance employees, in accordance with all requirements of the Agreement. Consultant shall only contract with independent contractors that have an active registration through the State of California Department of Industrial Relations. (iii) Consultant is authorized to purchase all materials, equipment, tools, appliances, supplies and services necessary for the proper maintenance and repair of the Project, provided any such purchase does not exceed $250 per incident. Any other purchase requires the prior written consent of City. (iv) Notwithstanding any of the foregoing provisions, the prior approval of the City will be required for any expenditure which exceeds $1,000 (one thousand dollars), in any one instance for labor, materials, or otherwise in connection with the maintenance and repair of the Project, except for recurring expenses within the limits of the operating budget or emergency repairs involving manifest danger to persons or property, or required to avoid suspension of any necessary service to the Project. In the latter event, Consultant will inform the City of the facts as promptly as possible. Additionally, any repairs that exceed the expenditure limit above will require a minimum of three (3) valid bids for the City’s review prior to work commencing.
Manage and/or oversee any modifications or improvements made to properties, and ensure that independent contractors conducting modifications or improvements possess the required licensing and insurance coverage.
Ensure that properties adhere to and remain in compliance with Fontana Municipal Code and/or other applicable state codes and guidelines.
Strictly enforce all state and local laws pertaining to loitering and criminal activity around properties.
Annually recertify Client’s income based on the City’s qualification standards to ensure continued eligibility and satisfy income recertification reporting requirements.
Provide assistance to City for scheduling capital improvements and rehabilitation of properties as necessary.
Utilities and Service Contracts. In accordance with the operating budget for the Project, Consultant will make arrangements for water, electricity, gas, fuel oil, sewage and trash disposal, vermin extermination, decorating, laundry facilities, computer software and services and/or licensing, internet access, fax and telephone services. Consultant will negotiate concession agreements, maintenance and service contracts, and will execute the same, identified thereon on behalf of the City, subject to City’s prior approval of all terms and conditions, including, but not limited to length of term and fees for such services. All said contracts shall be in the name of the Project or City and shall be the obligation of the City and not Consultant. All contracted equipment and services will survive the term of this Agreement and will remain an obligation of the Project/City and are not transferable to Consultant.
Bids and Purchase Discounts, Rebates, or Commissions. City and Consultant agree to obtain contract materials, supplies and services at the lowest possible cost and on the terms most advantageous to the Project and to secure and credit to the Project all discounts, rebates or commissions obtainable with respect to purchases, service contracts and other transactions on behalf of the Project. All bids, purchases, shall be subject to procurement, prevailing wage, and funding requirements.
Consultant shall solicit written cost estimates (i.e. bids) from at least three qualified contractors or suppliers for any work item which City estimates will cost $1,000 (one thousand dollars) or more and for any contract or ongoing supply or service arrangement which is estimated to exceed $5,000 (five thousand hundred dollars) per year. Consultant agrees to accept the bid which represents the lowest responsible price taking into account the bidder's reputation for quality of workmanship or materials and timely performance, and the timeframe within which the services or goods are needed. At start-up, Consultant will bid out the various major contracts, i.e., the exterminator service, landscape, property insurance, annual audit and major vendors. All initial bids will be reviewed by City prior to execution of the contracts. All renewals of contracts will be first reviewed by City. No contract shall exceed one (1) year in length, without prior approval from City, and contracts over one (1) year shall be terminable without penalty on thirty (30) days’ notice. For any contract or ongoing supply or service arrangement obtainable from more than one source and estimated to cost less than $1,000 (one thousand dollars), Consultant shall solicit verbal or written cost estimates, as necessary, to assure that the Project is obtaining services, supplies and purchases at the lowest possible estimate obtained. Copies of all required bids and documentation of all other written or verbal cost comparisons made by Consultant shall be made part of the Project's records and shall be retained as required by Section 3.4.1 of this Agreement. This documentation shall be subject to inspection by the City or their designee and Consultant agrees to submit such documentation upon request.
Audit. For any audit made in connection with this Agreement, City must execute an engagement letter and provide a copy to Consultant before Consultant will release documents and information to the auditor. All financial work completed by Consultant will be maintained in detailed, well-organized folders for review and audit purposes. At the end of each fiscal year, Consultant will provide the City, or an auditor, a year-end trial balance together with a complete report for the last month of the year and a year-to-date general ledger. Consultant will include in the report copies of insurance and property tax bills. Consultant will not provide schedules, lists, account analysis, mortgage or bank confirmations. Consultant will coordinate with auditors an acceptable time and office space for auditor’s fieldwork at Consultant’s office. Consultant will make staff available to answer questions. Consultant shall submit Federal and State Income Tax Returns received from the auditor and signed by City, and make all payments as directed by the auditor. Consultant will release books and records to site or storage upon receipt of a complete and final audit or review and adjusting journal entries, if any. To the extent that additional work is requested by the City or auditor that exceeds the scope of work detailed above, Consultant may charge an additional fee of $125.00 per hour for such work, subject to City approval.
Consultant shall coordinate with any and all employees, agents or other consultants of the City for purposes of carrying out the Program.
Consultant shall cooperate with the City to comply with all obligations for inputting and maintaining data into the Homeless Management Information System.
All referrals to assisted units shall be made through the local Coordinated Entry System or other comparable prioritization system based on greatest need, and in accordance with protocols that are developed and implemented in accordance with the local Continuum of Care and Program Requirements.
Consultant’s Initials: ___________
Exhibit A: Attachment 1
FHC STANDARD AGREEMENT
Exhibit A: Attachment 2
WORK PLAN
Exhibit A: Attachment 3
HOMEKEY STANDARD AGREEMENT 213
EXHIBIT “B”
SCHEDULE OF SERVICES
Consultant shall commence providing the Services on the Effective Date, in accordance with written notice from the City, the Schedule of Services set forth below, and the Budget attached as Exhibit C.
Services in connection with specific properties will commence as follows:
For 7714 Tamarind Avenue, Fontana California (“Bridge of Hope”), upon the Effective Date of this Agreement.
For 8996 Olive Street, Fontana, California and 8344 Bennett Avenue, Fontana, California, when City provides Consultant with written notice that those properties are available for Eligible Clients.
Consultant agrees and understands that the FHC Grant requires fifty percent (50%) of the City’s award to be spent by June 30, 2024 and one hundred percent (100%) to be spent by June 30, 2026. Failure to meet the Schedule of Services set forth above will result in damage to the City.
Consultant’s Initials: ___________
- ATTACHED BEHIND THIS PAGE -
[OR INSERT SCHEDULE]
EXHIBIT “C”
BUDGET
- ATTACHED BEHIND THIS PAGE –
[OR INSERT RATES & AUTHORIZED REIMBURSABLE EXPENSES]
EXHIBIT “D”
FUNDING REQUIREMENTS
- ATTACHED BEHIND THIS PAGE –
Funding Requirements for Homekey 2 Program funded by ARPA CSLFRF 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 and from the Homekey 2 program, will be used to fund all or a portion of the Agreement between Consultant and the City of Fontana to which this Exhibit is attached, including this Exhibit and all other incorporated documents (“Agreement”). As applicable, Consultant shall comply with all federal and state requirements (“Program Requirements”) including, but not limited to, the following, all of which are expressly incorporated herein by reference:
Sections 602 and 603 of the Social Security Act as added by Section 9901 of the American Rescue Plan Act of 2021 (“ARPA”); CSLFRF Final Rule, codified at 31 CFR Part 35;
CSLFRF Guidance on Recipient Compliance and Reporting Requirement, the most current version; 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 provided by the U.S. Department of the Treasury; Treasury Coronavirus State Fiscal Recovery Fund Award Terms and Conditions; The Multifamily Housing Program (Cal. Health & Safety Code §§ 50675 – 50675.15); and The Multifamily Housing Program Guidelines (Subchapter 4 of Chapter 7 of Title 25 of the California Code of Regulations (§§ 7300-73.47 ) Subcontracts, if any, shall contain a provision making them subject to all of the provisions contained in this Agreement. With respect to any conflict between the Funding Requirements and the Agreement and/or the provisions of state law and, except as otherwise required under federal law or regulation, the Funding Requirements shall control.
Consultant shall also comply with the following provisions:
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) Appendix II to Part 200 (A); Appendix II to Part 200 (B): Remedies for Breach; Termination for Cause/Convenience. The Agreement includes remedies for breach and termination for cause and convenience.
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 Consultant 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 Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Consultant 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 transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant 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.
The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
The Consultant will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an 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 Consultant's legal duty to furnish information.
The Consultant 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' representatives of the Consultant’s commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
The Consultant 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.
The Consultant 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.
In the event of the Consultant’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 Consultant may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (viii) The Consultant 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, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Consultant 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 Consultant becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Consultant may request the United States to enter into such litigation to protect the interests of the United States.
The Consultant 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. The Consultant 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 the discharge of the agency's primary responsibility for securing compliance.
The Consultant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the Consultant 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 to 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.
Appendix II to Part 200 (D) – Davis-Bacon Act: Not applicable to this Agreement since it is funded by the CSLFRF.
Appendix II to Part 200 (D) – Copeland “Anti-Kickback” Act: If the Services involve constructing, carrying out, completing, or repairing public buildings, or public works, Consultant must comply with the provisions of the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each vendor, contractor, subcontractor, or subrecipient shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. Contractor shall include this provision in all contracts between itself and any subcontractors in connection with the services performed under this Contract Appendix II to Part 200 (E) – Contract Work Hours and Safety Standards Act:
If this Agreement is in excess of $100,000 and involves the employment of mechanics or laborers, Consultant shall comply with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (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 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 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 contracts for transportation or transmission of intelligence.
Overtime Requirements. No contractor or subcontractor contracting for any part of the Contract 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.
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 Consultant and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such Consultant 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 such territory), for 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.
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 Consultant 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 Consultant or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (iii) of this section. (v) Subcontracts. The Consultant 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 Consultant 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:
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 experimental, 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, Contracts and Cooperative Agreements), and any implementing regulations issued by the Federal awarding agency.
The regulation at 37 C.F.R. § 401.2(a) currently defines “funding agreement” as any contract, grant, or cooperative agreement entered into between any 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, Consultant 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). (i) Pursuant to the Clean Air Act, (1) Consultant 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) Consultant 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 awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000. (ii) Pursuant to the Federal Water Pollution Control Act, (1) Consultant 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) Consultant 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 awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant 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.
This Agreement is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is required to verify that none of the Consultant, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (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).
Consultant 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 comply with these regulations in any lower tier covered transaction it enters into.
This certification is a material representation of fact relied upon by City. If it is later determined that Consultant 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.
Consultant warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Consultant also agrees to verify that all subcontractors performing work under this Agreement are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above. Consultant further agrees to notify the City in writing immediately if Consultant or its subcontractors are not in compliance during the term of this Agreement. (i) Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act: If this Agreement is in excess of $100,000, Consultant 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 Contract term funding exceeds $100,000.00, Consultant shall file with the City the Federal Standard Form LLL titled “Disclosure Form to Report Lobbying.” Consultants 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 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:
Consultant 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 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 maximizes energy and resource recovery; and establishing an affirmative procurement.
In the performance of this Agreement, the Consultant 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.
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.
The Consultant 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) Consultant 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 Agreement. 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 telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
Telecommunications or video surveillance services provided by such entities or using such equipment.
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 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. (ii) See Public Law 115-232, section 889 for additional information. (l) Appendix II to Part 200 (L) – §200.322 Domestic Preferences for Procurement:
Consultant 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 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 nonferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl 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 Records. Consultant 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. Consultant 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 Consultant which are directly pertinent to this Agreement for the purposes of conducting audits or other investigations. Records shall be maintained by Consultant for a period of five (5) years after completion of the project. (b) Compliance with Federal Regulations. Consultant 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. Consultant also agrees to comply with all other applicable federal statutes, regulations, and executive orders, including, without limitation, the following:
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.
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.
OMB Guidelines to Agencies on Governmentwide Debarment 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.
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.
Governmentwide Requirements for Drug-Free Workplace, 31 C.F.R. Part 20.
New Restrictions on Lobbying, 31 C.F.R. Part 21.
Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C. §§ 4601-4655) and implementing regulations. (c) Compliance with Federal Statutes and Regulations Prohibiting Discrimination. Consultant agrees to comply with statutes and regulations prohibiting discrimination applicable to the CSLFRF program including, without limitation, the following:
Title VI of the Civil Rights 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.
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.
Section 504 of the Rehabilitation 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.
The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.), and Treasury’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.
Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. §§ 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.
False Statements. Consultant understands that making false statements or claims in connection with the CSLFRF program 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 federal awards or contracts, and/or any other remedy available by law.
Hatch Act. If Consultant is a public agency, Consultant 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.
Protections for Whistleblowers.
In accordance with 41 U.S.C. § 4712, Consultant 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 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:
A member of Congress or a representative of a committee of Congress; An Inspector General;
The Government Accountability Office;
A Treasury employee responsible for contract or grant oversight or management; An authorized official of the Department of Justice or other law enforcement agency; A court or grand jury; or
A management official or other employee of Consultant, or a subcontractor who has the responsibility to investigate, discover, or address misconduct.
Increasing Seat Belt Use in the United States. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Consultant 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 Reducing Text Messaging While Driving. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Consultant should encourage its employees and subcontractors to adopt and enforce policies that ban text messaging while driving, and Consultant should establish workplace safety policies to decrease accidents caused by distracted drivers.
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:
Consultant 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.
Consultant acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency (LEP),” seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, are limited in their English proficiency. Consultant 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, Consultant shall initiate reasonable steps, or comply with Treasury’s directives, to ensure meaningful access to its programs, services and activities to LEP persons. Consultant 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.
Consultant 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.
Consultant acknowledges and agrees that compliance with this assurance constitutes a condition of continued receipt of federal financial assistance and is binding upon Consultant and Consultant’s successors, transferees and assignees for the period in which such assistance is provided.
Consultant agrees to incorporate the following language in every contract or agreement subject to Title VI and its regulations between the Consultant and the Consultant’s subcontractors, successors, transferees and assignees:
The subcontractor, successor, transferee and assignee shall comply with 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 origin (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 made a part of this contract (or agreement).
Consultant 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 Consultant, 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 Consultant for the period during which it retains ownership or possession of the property.
Consultant 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. Consultant shall comply with information requests, on-site compliance reviews, and reporting requirements.
Consultant 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. Consultant must also inform the Department of the Treasury if Consultant has received no complaints under Title VI.
Consultant must provide documentation of an administrative agency’s or court’s findings of non-compliance of Title VI and efforts to address the non-compliance, including any voluntary compliance or other agreements between the Consultant and the administrative agency that made the finding. If the Consultant settles a case or matter alleging such discrimination, Consultant must provide documentation of the settlement. If Consultant has not been the subject of any court or administrative agency finding of discrimination, please so state.
If Consultant makes sub-awards to other agencies or other entities, Consultant 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) Consultant 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.
Affirmative steps shall include:
Placing qualified small and minority businesses and women's business enterprises on solicitation lists; Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources; 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; Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises; and Using the services/assistance of the Small Business Administration (SBA), and the Minority Business Development Agency (MBDA) of the Department of Commerce.
Consultant shall submit evidence of compliance with the foregoing affirmative steps when requested by the City.
4. FUNDING SOURCE REQUIRED PROVISIONS (CSLFRF)
Compliance with Subpart D of 2 C.F.R. part 200. Materials, supplies and services procured to provide Services under this Agreement shall be procured, used, managed, and disposed in accordance with the requirements in Subpart D of 2 C.F.R. part 200.
Conflicts of Interest Prohibited (2 C.F.R. § 200.112). Pursuant to 2 C.F.R. § 200.112, Consultant must comply with the requirements, prohibitions, and limitations of Government Code § 1090, the Political Reform Act of 1974 (Government Code § 81000 et seq.), the City’s conflict of interest regulations, and state and federal common law regulating conflicts of interest.
Mandatory Disclosure (2 C.F.R. § 200.113, 41 U.S.C. § 2313). Consultant must disclose, in a timely manner, in writing to the City all violations of Federal criminal law involving fraud, bribery, or gratuity violations potentially affecting this Agreement. Failure to make required disclosures constitutes a breach of this Agreement.
Internal Controls (2 C.F.R. § 200.303). Consultant shall take reasonable measures to safeguard protected personally identifiable information and other information considered to be sensitive consistent with applicable Federal, State, and local laws regarding privacy and responsibility over confidentiality.
Accessibility and Nondiscrimination. Consultant shall adhere to the accessibility and nondiscrimination requirements set forth in state and federal law, including but not limited to the following:
The Unruh Civil Rights Act (Cal. Civ. Code § 51);
California Building Code Chapter 11A and 11B;
Uniform Federal Accessibility Standards;
24 C.F.R. Part 8, or HUD's modified version of the 2010 ADA Standards for Accessible Design (Alternative 2010 ADAS), HUD-2014-0042-0001, 79 F.R. 29671 (5/27/14) (commonly referred to as "the Alternative Standards" or "HUD Deeming Memo"); and 24 CFR part 8.26
Maintenance of and Access to Records. In addition to the requirements in paragraph 2(a), above:
If any litigation, claim, negotiation, audit, monitoring, inspection or other action commences during this required retention period, all records must be retained until a full and final resolution of the action Consultant must provide the City, State of California, Treasury Office of Inspector General and the Government Accountability Office, or their authorized representatives, shall have the right of access to records (electronic and otherwise) in order to conduct audits or other investigations.
Termination and Cancellation (CSLFRF T&C 3)
Notwithstanding Section 3.5.1 of this Agreement,
The City may terminate this Agreement for cause at any time by giving at least ten (10) calendar days’ advanced written notice to Consultant. “Cause” consist of Consultant’s breach of, or failure to satisfy, any of the terms or conditions of this Agreement. Cause includes but is not limited to the following:
(1) Consultant’s failure to satisfy or timely cure a breach or failure to satisfy any condition set forth in the Agreement. Failure to satisfy any of the Performance Milestones will constitute a breach of this Agreement. (2) Consultant furnished any untrue or misleading material fact or representation in connection with this Agreement; (3) Consultant conceals any material fact from the City related to this Agreement; (4) The City determines the objectives and requirements of this Agreement cannot be met in accordance with applicable timeframes.
The City may give written notice to the Consultant to cure the breach, violation, or default. If the breach, violation, or default is not cured to the City’s satisfaction within a reasonable time, as determined by the City in its sole and absolute discretion, then the City may declare a default under this Agreement and seek any and all remedies that are available under this Agreement, at law, or in equity.
The City may cancel this Agreement, in whole or in part, if (i) sufficient funds are not made available by the United States Government or the State of California; (ii) Congress or the Legislature enacts any restrictions, limitations, or conditions that impact this Agreement or the funding of this Agreement; (iii) Consultant fails to satisfy any of the Performance Milestones; or (iv) cancellation is otherwise permitted under state contracting law.
To cancel this Agreement pursuant to this paragraph, the City will endeavor to give fifteen (15) calendar days’ advance written notice to the Consultant. Consultant shall, within ten (10) calendar days’ after the City’s written notice, submit a final invoice to the City for services rendered up to, but not exceeding, the date of the written notice.
Remedies for Breach of this Agreement. In addition to any remedies for breach, violation, or default of any terms of this Agreement, the City may elect to pursue any remedy available at law or in equity, including but not limited to the following:
Repay to the City any amount which the State of California or the federal government determines to have been misused or are subject to repayment pursuant to section 603(e) of the Social Security Act; Modify any plans, budget, compensation terms, schedules, manner of providing Services, or take other actions directed or recommended by the State of California or federal government.
5. REQUIREMENTS FOR CONSTRUCTION CONTRACTOR, PROPERTY MANAGER, AND SUPPORTIVE SERVICES PROVIDER Property Manager. The requirements of this subsection 5(a) apply to Consultant if the Services include activities involving tenant selection, property management, rent collection, eviction, tenant income certification, and similar activities.
Consultant’s key personnel identified in the Agreement must have three or more years of experience providing the Services.
Consultant shall provide the Services in accordance with the Program Requirements, including but not limited to a property management plan that satisfies the Multifamily Housing Program and 25 C.F.R. § 7324.
Consultant shall provide the Services in accordance with the core components of Housing First, Cal. Welfare and Institutions Code § 8255.
In addition to the requirements in the Agreement, Consultant shall take referrals through the local Coordinated Entry System or comparable prioritization system based on greatest need and in collaboration with the local Continuum of Care. Consultant shall support Continuum of Care participation in the statewide Homeless Data Integration System and, consistent with state and federal law, shall disclose relevant data to the local Homeless Management Information System and comparable data collection systems.
Consultant shall provide Services in accordance with the tenant selection, income certification, rent standards, design features, and other Program Requirements, including but not limited to Article 2 of Subchapter 4 of Chapter 7 of Division 1 of Title 25 of the California Code of Regulations.
The affirmative marketing plan and tenant selection procedure required by Section 5 of this Agreement must ensure positive outreach and informational efforts to those who are least likely to know about and apply for the benefits of the Services. The affirmative marketing plan and tenant selection procedures must ensure prospective Clients are not discriminated against on the basis of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, age, medical condition, genetic information, citizenship, primary language, immigration status (except where explicitly prohibited by federal law), arbitrary characteristics, and all other classes of individuals protected from discrimination under federal or state housing laws, as well as individuals perceived to be a member of any of the preceding classes, and any individual or person associated with any of the preceding classes.
In addition to any other reporting requirements provided in this Agreement, Consultant shall provide information to City sufficient to conduct an independent audit in accordance with 25 C.C.R. § 7325 and to submit the annual Homekey Program and Expenditure Report, including but not limited to the following data:
(1) The number and demographics of individuals housed, or likely to be housed, using the funds. (2) The racial and ethnic composition of the tenants assisted. (3) The number of units, and the location of those units, for which operating subsidies have been, or are planned to be, capitalized under this Agreement. (4) Any lessons learned from the provision of the Services.
Materials, supplies and services procured to provide Services under this Agreement shall be procured, used, and disposed in accordance with the requirements in Subpart D of 2 C.F.R. part 200.
Operating budget. Within ninety (90) days prior to the end of each City fiscal year, Consultant shall submit a proposed operating budget which sets forth an estimate of operating income, operating expenses, any proposed rent increases, and an allocation of income and uses of income among units and spaces subject to and those not subject to the Program Requirements, if any.
Supportive Services Provider. The requirements of this subsection 5(b) apply to Consultant if the Services include activities involving case management, behavioral health services, physical health services, assistance obtaining benefits and essential documentation, education employment services, and similar supportive services.
Consultant’s key personnel identified in the Agreement must have three or more years of experience providing the Services.
Consultant shall take referrals through the local Coordinated Entry System or comparable prioritization system based on greatest need and in collaboration with the local Continuum of Care. Consultant shall support Continuum of Care participation in the statewide Homeless Data Integration System and, consistent with state and federal law, shall disclose relevant data to the local Homeless Management Information System and comparable data collection systems.
Consultant shall create if needed, and provide Services in accordance with, a supportive services plan that describes the on-site staffing plan proposed to deliver these Services, the approach to securing and/or connecting residents to off-site services including primary care and other needed physical health and behavioral health services as well as other tenancy supports.
Consultant shall support Continuum of Care participation in the statewide Homeless Data Integration System and, consistent with state and federal law, shall disclose relevant data to the local Homeless Management Information System and comparable data collection systems.
In addition to any other reporting requirements provided in this Agreement, Consultant shall provide information to City sufficient to conduct an independent audit in accordance with 25 C.C.R. § 7325 and to submit the annual Homekey Program and Expenditure Report, including but not limited to details of supportive services offered to Clients and lessons learned from the provision of the Services. -2-
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(BB&K: June 2005)
EXHIBIT “A”
SCHEDULE OF SERVICES
EXHIBIT “B”
SCHEDULE OF SERVICES
C
EXHIBIT “C”
BUDGET
D
EXHIBIT “D”
FUNDING REQUIREMENTS
Attestation of Consultant’s signature must be obtained when required by the by-laws, articles of incorporation or other laws, rules or regulations applicable to Consultant’s business entity.