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1 CITY OF FONTANA
PROFESSIONAL SERVICES AGREEMENT
DE-24-202-SP
This Agreement is made and entered into as of June 12th, 2024 by and between the City of Fontana, a public agency organized and operating under the laws of the State of California with its principal place of business at 8353 Sierra Avenue, Fontana, California 92335 (“City”), and TKE Engineering Inc., a corporation with its pr incipal place of business at 2305 Chicago Ave, Riverside CA 92507 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
RECITALS
A. City is a public agency of the State of Californ ia and is in need of professional services for the following project:
Engineering design services for Arrow Boulevard Sewer Main Project No. DE-24-202-SP
(hereinafter referred to as “the Project”).
B. Consultant is duly licensed and has the necessar y qualifications to provide such services.
C. The Parties desire by this Agreement to establis h the terms for City to retain Consultant to provide the services described herein.
AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Services.
Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.” This project consi sts of the conversion from septic to sewer system on Arrow Blvd between Ilex Street to Beech A venue, Cherry Avenue from Arrow Blvd to Foothill Blvd, and Beech Avenue from Arrow Blvd to Foothill Blvd per the City’s Master Plan of Sewer. The project’s infrastructure goal is to cons truct sewer mainlines to fully serve the identified locations including but not limited to r econstruction of curb, gutter, and ADA complaint curb ramps as a result of street rehabilitation imp rovements warranted by the project. The work shall be designed as phased work for bidding and co nstruction purposes. Sewer connections to existing properties will not be part of this project.
2. Compensation.
a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “B.” b. In no event shall the total amount paid for serv ices rendered by Consultant under this Agreement exceed the sum of $ 355,618. This amount is to cover all printing and related costs, and the City will not p ay any additional fees for printing expenses.
Periodic payments shall be made within 30 days of r eceipt of an invoice which includes a 99999.91910\40791408.1
2 detailed description of the work performed. Paymen ts to Consultant for work performed will be made on a monthly billing basis.
3. Additional Work.
If changes in the work seem merited by Consultant o r the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or tim e schedule. An amendment to this Agreement shall be prepared by the City and execute d by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
4. Maintenance of Records.
Books, documents, papers, accounting records, and o ther evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City.
5. Time of Performance
Consultant shall perform its services in a prompt a nd timely manner and shall commence performance upon receipt of written notice from the City to proceed (“Notice to Proceed”). Consultant shall complete the services required hereunder within Exhibit C. The Notice to Proceed shall set forth the date of commencement of work.
6. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyon d the reasonable control of the non- performing party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; ea rthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work s lowdowns, and other labor disturbances; sabotage or judicial restraint.
b. Should such circumstances occur, the non-perform ing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued p erformance and the efforts being made to resume performance of this Agreement.
7. Compliance with Law.
a. Consultant shall comply with all applicable laws , ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. b. If required, Consultant shall assist the City, a s requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. 99999.91910\40791408.1
3 c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.
8. Standard of Care
Consultant’s services will be performed in accordan ce with generally accepted professional practices and principles and in a mann er consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions.
9. Assignment and Subconsultant
Consultant shall not assign, sublet, or transfer th is Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer wi thout such consent shall be void and without legal effect and shall constitute grounds for termi nation. Subcontracts, if any, shall contain a provision making them subject to all provisions sti pulated in this Agreement. Nothing contained herein shall prevent Consultant from employing inde pendent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.
10. Independent Contractor
Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an emp loyee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided.
11. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured al l insurance required under this section. In addition, Consultant shall not allow any subcontrac tor to commence work on any subcontract until it has secured all insurance required under this section. a. Commercial General Liability
(i) The Consultant shall take out and maintain, dur ing the performance of all work under this Agreement, in am ounts not less than specified herein, Commercial General Liability Insurance, in a form a nd with insurance companies acceptable to the City.
(ii) Coverage for Commercial General Liability insu rance shall be at least as broad as the following:
(1) Insurance Services Office Commercial General Li ability coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must i nclude coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
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4 (4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX) exclu sion deleted
(7) Contractual Liability with respect to this Agre ement (8) Property Damage
(9) Independent Contractors Coverage
(iv) The policy shall contain no endorsements or p rovisions limiting coverage for (1) contractual liability; (2) cross l iability exclusion for claims or suits by one insured against another; (3) products/completed ope rations liability; or (4) contain any other exclusion contrary to the Agreement.
(v) The policy shall give City, its officials, off icers, employees, agents and City designated volunteers additional in sured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (vi) The general liability program may utilize eit her deductibles or provide coverage excess of a self-insured retention , subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. Automobile Liability
(i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-o wned and hired vehicles, in a form and with insurance companies acceptable to the City.
(ii) Coverage for automobile liability insurance sh all be at least as broad as Insurance Services Office Form Number CA 0 0 01 covering automobile liability (Coverage Symbol 1, any auto).
(iii) The policy shall give City, its officials, o fficers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the a utomobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.
c. Workers’ Compensation/Employer’s Liability
(i) Consultant certifies that he/she is aware of th e provisions of Section 3700 of the California Labor Code which req uires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply wit h such provisions before commencing work under this Agreement.
(ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the per formance of the work under this Agreement, the Consultant shall maintain full compensation ins urance for all persons employed directly by him/her to carry out the work contemplated under th is Agreement, all in accordance with the 99999.91910\40791408.1
5 “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Emp loyer’s Liability Coverage in amounts indicated herein. Consultant shall require all sub consultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section.
d. Professional Liability (Errors and Omissions)
At all times during the performance of the work und er this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy for m coverage specifically designed to protect against acts, errors or omissions of the Consultant . “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend.
e. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $1,000,000 per occurr ence/ $2,000,000 aggregate for bodily injury, personal injury, and property
damage
Automobile Liability $1,000,000 combined single l imit Employer’s Liability $1,000,000 per accident or d isease Professional Liability $1,000,000 per claim and a ggregate (errors and omissions)
(ii) Defense costs shall be payable in addition to the limits. (iii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverag e, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. A ny available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. f. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers c ertifying to the coverage of all insurance required herein. Such evidence shall include origi nal copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25- S or equivalent), together with required endorsemen ts. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additio nal insureds, where appropriate, the type and 99999.91910\40791408.1
6 amount of the insurance, the location and operation s to which the insurance applies, and the expiration date of such insurance.
g. Policy Provisions Required
(i) Consultant shall provide the City at least thir ty (30) days prior written notice of cancellation of any policy requir ed by this Agreement, except that the Consultant shall provide at least ten (10) days pri or written notice of cancellation of any such policy due to non-payment of premium. If any of th e required coverage is cancelled or expires during the term of this Agreement, the Consultant s hall deliver renewal certificate(s) including the General Liability Additional Insured Endorsemen t to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(ii) The Commercial General Liability Policy and Au tomobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintai ned by the City or any named insureds shall not be called upon to contribute to any loss.
(iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant s hall maintain such coverage continuously for a period of at least three years after the completi on of the work under this Agreement.
Consultant shall purchase a one (1) year extended r eporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement.
(iv) All required insurance coverages, except for t he professional liability coverage, shall contain or be endorsed to provide a waiver of subrogation in favor of the City, its officials, officers, employees, agents, a nd volunteers or shall specifically allow Consultant or others providing insurance evidence i n compliance with these specifications to waive their right of recovery prior to a loss. Cons ultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(v) The limits set forth herein shall apply separat ely to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.
Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Con sultant’s indemnification obligations to the City and shall not preclude the City from taking su ch other actions available to the City under other provisions of the Agreement or law.
h. Qualifying Insurers
(i) All policies required shall be issued by accept able insurance companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or com panies with a current A.M. Best's rating of no less than A :VII and admitted to transact in the business of insurance in the State of California, o r otherwise allowed to place insurance through surplus line brokers under applicable provi sions of the California Insurance Code or any federal law.
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7 i. Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any ap proval of said insurance by the City, is not intended to and shall not in any manner limit o r qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to thi s Agreement, including but not limited to, the provisions concerning indemnification.
(ii) If at any time during the life of the Agreemen t, any policy of insurance required under this Agreement does not co mply with these specifications or is canceled and not replaced, City has the right but n ot the duty to obtain the insurance it deems necessary and any premium paid by City will be prom ptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Con sultant payments. In the alternative, City may cancel this Agreement.
(iii) The City may require the Consultant to provid e complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor any of its officials, off icers, employees, agents or volunteers shall be personally responsible for a ny liability arising under or by virtue of this Agreement.
j. Subconsultant Insurance Requirements. Consultan t shall not allow any subcontractors or subconsultants to commence work o n any subcontract until they have provided evidence satisfactory to the City that the y have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Cit y as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exac t same coverage. If requested by Consultant, City may approve different scopes or mi nimum limits of insurance for particular subcontractors or subconsultants.
12. Indemnification .
a. To the fullest extent permitted by law, Consulta nt shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any a nd 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 acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other r elated costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
b. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance of “design p rofessional” services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consult ant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of 99999.91910\40791408.1
8 competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
13. California Labor Code Requirements.
a. Consultant is aware of the requirements of Cal ifornia Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “p ublic works” and “maintenance” projects (“Prevailing Wage Laws”). If the services are bein g performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees t o fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabiliti es, costs, penalties or interest arising out of any failure or alleged failure to comply with the P revailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to compl y with all California Labor Code provisions, which include but are not limited to prevailing wag es (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Lab or Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the La bor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a publi c works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. b. If the services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Co de Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such s ervices must be registered with the Department of Industrial Relations. Consultant sha ll maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a p ublic works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. c. This Agreement may also be subject to complian ce monitoring and enforcement by the Department of Industrial Relatio ns. It shall be Consultant’s sole responsibility to comply with all applicable regist ration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its offi cials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor.
14. Verification of Employment Eligibility.
By executing this Agreement, Consultant verifies t hat 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, and shal l require all subconsultants and sub- subconsultants to comply with the same.
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9 15. Reserved
16. Laws and Venue.
This Agreement shall be interpreted in accordance w ith the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situat ed in the County of San Bernardino, State of California.
17 Termination or Abandonment
a. City has the right to terminate or abandon any p ortion or all of the work under this Agreement by giving ten (10) calendar da ys written notice to Consultant. In such event, City shall be immediately given title and po ssession to all original field notes, drawings and specifications, written reports and other docum ents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work co mpleted prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services perf ormed during such task shall be the reasonable value of such services, based on an amou nt mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein.
Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provi de further services under this Agreement upon thirty (30) calendar days’ writ ten notice to City only in the event of substantial failure by City to perform in accordanc e with the terms of this Agreement through no fault of Consultant.
18 Documents. Except as otherwise provided in “Te rmination or Abandonment,” above, all original field notes, written reports, D rawings and Specifications and other documents, produced or developed for the Project sh all, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.
19. Organization
Consultant shall assign Estephany Monroy as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.
20. Limitation of Agreement.
This Agreement is limited to and includes only the work included in the Project described above.
21. Notice
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10 Any notice or instrument required to be given or de livered by this Agreement may be given or delivered by depositing the same in any Un ited States Post Office, certified mail, return receipt requested, postage prepaid, addressed to:
CITY:
City of Fontana
8353 Sierra Avenue
Fontana, California 92335
Attn: Estephany Monroy, Engineering
CONSULTANT:
TKE Engineering, Inc.
2305 Chicago Ave,
Riverside CA 92507
Michael Thornton
and shall be effective upon receipt thereof.
22. Third Party Rights
Nothing in this Agreement shall be construed to giv e any rights or benefits to anyone other than the City and the Consultant.
23. Equal Opportunity Employment.
Consultant represents that it is an equal opportuni ty employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other intere sts protected by the State or Federal Constitutions. 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.
24. Entire Agreement
This Agreement, with its exhibits, represents the e ntire understanding of City and Consultant as to those matters contained herein, an d supersedes and cancels any prior or contemporaneous oral or written understanding, prom ises or representations with respect to those matters covered hereunder. Each Party acknow ledges 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 bot h Parties hereto. This is an integrated Agreement.
25. Severability
The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the remaining provisions unenforceable, invalid or illegal.
26. Successors and Assigns
This Agreement shall be binding upon and shall inur e to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement. However, Consultant shall not assign or transfer by operatio n of law or otherwise any or all of its rights, 99999.91910\40791408.1
11 burdens, duties or obligations without the prior wr itten consent of City. Any attempted assignment without such consent shall be invalid and void.
27. Non-Waiver
None of the provisions of this Agreement shall be c onsidered waived by either Party, unless such waiver is specifically specified in writing.
28. Time of Essence
Time is of the essence for each and every provision of this Agreement.
29. City’s Right to Employ Other Consultants
City reserves its right to employ other consultants , including engineers, in connection with this Project or other projects.
30. Prohibited Interests
Consultant maintains and warrants that it has not e mployed 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 othe r consideration contingent upon or resulting from the award or making of this Agreement. For br each or violation of this warranty, City shall have the right to rescind this Agreement without li ability. For the term of this Agreement, no director, official, officer or employee of City, du ring the term of his or her service with City, shal l have any direct interest in this Agreement, or obta in any present or anticipated material benefit arising therefrom.
31. Federal Requirements
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” (Federal Requirements) atta ched hereto and incorporated herein by reference (“Federal Requirements”). With respect t o any conflict between such Federal Requirements and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control.
[SIGNATURES ON FOLLOWING PAGE]
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12 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
CITY OF FONTANA
By:
Matthew C. Ballantyne
City Manager
VENDOR NAME.
By:
Michael Thornton
President
Attest:
By:
Germaine McClellan Key
City Clerk
By:
By:
Phillip Burum
Deputy City Manager
Approved as to form:
Best Best & Krieger LLP
City Attorney
By: _____________________________
Gia Kim
Director of Engineering / City Engineer
IN COMPLIANCE WITH CONTRACT INSURANCE REQUIREMENTS
By: ______________________________
Rakesha Thomas
Human Resources & Risk Management Director
IN COMPLIANCE WITH PURCHASING AND CONTRACT ADMINIST RATION POLICIES/PROCEDURES
___________________________________
Jessica Brown
Chief Financial Officer
Purchasing Office
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13 EXHIBIT A
Scope of Services
This project consists of the conversion from septic to sewer system on Arrow Blvd between Ilex Street to Beech Avenue, Cherry Avenue from Arrow Bl vd to Foothill Blvd, and Beech Avenue from Arrow Blvd to Foothill Blvd per the City’s Master Plan of Sewer. The project’s infrastructure goal is to construct sewer mainlines to fully serve the identified locations including but not limited to reconstruction of curb, gutter and ADA c omplaint curb ramps as a result of street rehabilitation improvements warranted by the projec t. The work shall be designed as phased work for bidding and construction purposes. Sewer connections to existing properties will not be part of this project.
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14 EXHIBIT B
Schedule of Charges/Payments
Consultant will invoice City on a monthly cycle. C onsultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each task. Consultant will inform City regarding any out-of-scope work being performed by Consultant. This is a time-and- materials contract.
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15 EXHIBIT C
Activity Schedule
Items 1.2 thru 1.5 described above are scheduled to commence in 2024, or as determined by the date of Contract execution. First plan check submittal (60% Complete) for all the Construction Plans (unless noted otherwise) shall be delivered to the City of Fontana within 90 calendar days of receiving the notice to proceed. The plan will be reviewed by both the City of Fontana and the County of San Bernardino. The plan check process is assumed to require three checks (60%, 90% & 100% Submittal) with each plan check requiring approximately three-weeks for the City of Fontana and County of San Bernardino. Concurrent plan checks will be accepted.
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16 EXHIBIT D
Federal Requirements
Funds from the Coronavirus State Fiscal Recovery Fu nd and/or the Coronavirus Local Fiscal Recovery Fund, together known as the Coronavirus St ate and Local Fiscal Recovery Funds (“CSLFRF”) program, will be used to fund all or a portion of t his Agreement. As applicable, Consultant shall com ply with all federal requirements including, but not li mited to, the following, all of which are expressly incorporated herein by reference:
• Sections 602 and 603 of the Social Security Act a s 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 Repor ting Requirement, the most current version;
• 2 C.F.R. Part 200 – Uniform Administrative Requir ements, Cost Principles, and Audit Requirements for Federal Awards, other than such pr ovisions as the U.S. Department of the Treasury may determine are inapplicable to the CSLF RF program and subject to such exceptions as may be otherwise provided by the U.S. Department of the Treasury; • Treasury Coronavirus Local Fiscal Recovery Fund A ward Terms and Conditions; and Subcontracts, if any, shall contain a provision mak ing them subject to all of the provisions stipulated in this Agreement. With respect to any conflict between the Federal Contract Provisions an d the Agreement and/or the provisions of state law an d, except as otherwise required under federal law o r regulation, the Federal Contract Provisions shall control.
Consultant shall also comply with the following provisions:
1. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APP ENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACT S UNDER FEDERAL AWARDS (2 C.F.R. § 200.327)
(a) Appendix II to Part 200 (A); Appendix II to Part 20 0 (B): Remedies for Breach; Termination for Cause/Convenience. The Agreement i ncludes remedies for breach and termination for cause and convenience.
(b) Appendix II to Part 200 (C) – Equal Employment Oppo rtunity: 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 acc ordance 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 em ployee or applicant for employment because of race, color, religion, se x, sexual orientation, gender identity, or 99999.91910\40791408.1
17 national origin. The Consultant will take affirmati ve action to ensure that applicants are employed, and that employees are treated during emp loyment without regard to their race, color, religion, sex, sexual orientation, gender id entity, or national origin. Such action shall include, but not be limited to the following: Empl oyment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or t ermination; 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. (ii) The Consultant will, in all solicitations or advert isements for employees placed by or on behalf of the Consultant, state tha t all qualified applicants will receive consideration for employment without regard to race , color, religion, sex, sexual orientation, gender identity, or national origin.
(iii) The Consultant will not discharge or in any other m anner discriminate against any employee or applicant for employment be cause such employee or applicant has inquired about, discussed, or disclosed the compens ation 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 d iscloses the compensation of such other employees or applicants to individuals who do not o therwise have access to such information, unless such disclosure is in response to a formal c omplaint or charge, in furtherance of an investigation, proceeding, hearing, or action, incl uding an investigation conducted by the employer, or is consistent with the Consultant's legal duty to furnish information. (iv) The Consultant will send to each labor union or rep resentative 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. (v) The Consultant will comply with all provisions of E xecutive Order 11246 of September 24, 1965, and of the rules, regulation s, and relevant orders of the Secretary of Labor.
(vi) The Consultant will furnish all information and rep orts 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 p ermit access to his books, records, and accounts by the administering agency and the Secret ary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (vii) 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 G overnment contracts or federally assisted 99999.91910\40791408.1
18 construction contracts in accordance with procedure s 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 sent ence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) in every subcontract or purchase order unless exempted by rules, regulation s, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 1 1246 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 inv olved in, or is threatened with, litigation with a subcontractor or vendor as a resu lt of such direction by the administering agency, the Consultant may request the United State s to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it par ticipates in federally assisted construction work: Provided, That if the applicant so participating is a State o r local government, the above equal opportunity clause is not applicable to any a gency, instrumentality or subdivision of such government which does not participate in work on or under the Agreement.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations , and relevant orders of the Secretary of Labor, that it will furnish the administering agenc y and the Secretary of Labor such information as they may require for the supervision of such com pliance, and that it will otherwise assist the administering agency in the discharge of the agency 's primary responsibility for securing compliance.
The applicant further agrees that it will refrain f rom entering into any contract or contract modification subject to Executive Order 11246 of Se ptember 24, 1965, with a contractor debarred from, or who has not demonstrated eligibil ity 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 e qual opportunity clause as may be imposed upon contractors and subcontractors by the administ ering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Ord er. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or sus pend 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 fr om such applicant; and refer the case to the Department of Justice for appropriate legal proceedings. 99999.91910\40791408.1
19 (c) Appendix II to Part 200 (D) – Davis-Bacon Act: Not applicable to this Agreement since it is funded by the CSLFRF.
(d) Appendix II to Part 200 (D) – Copeland “Antti-Kickb ack” Act: Not applicable to this Agreement since it is funded by the CSLFRF.
(e) Appendix II to Part 200 (E) – Contract Work Hours and Safety Standards Act:
(i) If this Agreement is in excess of $100,000 and invo lves the employment of mechanics or laborers, Consultant shall comply w ith 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 wag es 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 co nstruction work and provide that no laborer or mechanic must be required to work in surrounding s or under working conditions which are unsanitary, hazardous or dangerous. These requireme nts do not apply to the purchases of supplies or materials or articles ordinarily availa ble on the open market, or contracts for transportation or transmission of intelligence.
(ii) Overtime Requirements. No contractor or subcontrac tor 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 f orty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (iii) Violation; liability for unpaid wages; liquidated d amages. 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 te rritory, to such District or to such territory), for liquidated damages. Such liquidated damages sha ll 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 r equired by the clause set forth in paragraph (ii) of this section.
(iv) Withholding for unpaid wages and liquidated damages . The City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Consultant or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any oth er federally-assisted contract subject to the 99999.91910\40791408.1
20 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 s atisfy any liabilities of such Consultant or subcontractor for unpaid wages and liquidated damag es as provided in the clause set forth in paragraph (iii) of this section.
(v) Subcontracts. The Consultant or subcontractor shal l 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 claus es 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:
(i) If the Federal award meets the definition of “fundi ng agreement” under 37 C.F.R. § 401.2(a) and the non-Federal entity wis hes to enter into a contract with a small business firm or nonprofit organization regarding t he substitution of parties, assignment or performance of experimental, developmental, or rese arch 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 Organizatio ns and Small Business Firms Under Government Grants, Contracts and Cooperative Agreem ents), and any implementing regulations issued by the Federal awarding agency.
(ii) The regulation at 37 C.F.R. § 401.2(a) currently de fines “funding agreement” as any contract, grant, or cooperative a greement entered into between any Federal agency, other than the Tennessee Valley Aut hority, and any contractor for the performance of experimental, developmental, or rese arch 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 perfor mance 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 Fed eral Water Pollution Control Act: If this Agreement is in excess of $150,000, Co nsultant 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 agree s 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 t o include these requirements in each subcontract exceeding $150,000.
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21 (ii) Pursuant to the Federal Water Pollution Control Act , (1) Consultant agrees to comply with all applicable standards, ord ers 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 t o the Federal awarding agency and the appropriate Environmental Protection Agency Regiona l Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000. (h) Appendix II to Part 200 (H) – Debarment and Suspens ion: A contract award (see 2 C.F.R. § 180.220) must not be made to parties lis ted on the government wide exclusions in the System for Award Management (SAM), in accordanc e with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 C.F.R. par t 1986 Comp., p. 189) and 12689 (3 C.F.R. part 1989 Comp., p. 235), “Debarment and Suspension .” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. (i) This Agreement is a covered transaction for purpose s of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is requir ed 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). (ii) Consultant must comply with 2 C.F.R. pt. 180, subp art C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to c omply with these regulations in any lower tier covered transaction it enters into.
(iii) This certification is a material representation of fact relied upon by City. If it is later determined that Consultant did not comp ly with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. (iv) Consultant warrants that it is not debarred, suspen ded, or otherwise excluded from or ineligible for participation in an y federal programs. Consultant also agrees to verify that all subcontractors performing work unde r this Agreement are not debarred, disqualified, or otherwise prohibited from particip ation in accordance with the requirements above. Consultant further agrees to notify the Cit y 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 fi led 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.” Consu ltants that apply or bid for an award exceeding $100,000 must file the required certifica tion. Each tier certifies to the tier above that it will not and has not used Federal appropriated f unds to pay any person or organization for influencing or attempting to influence an officer o r employee of any agency, a member of 99999.91910\40791408.1
22 Congress, officer or employee of Congress, or an em ployee of a member of Congress in connection with obtaining any Federal contract, gra nt or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying wit h non-Federal funds that takes place in connection with obtaining any Federal award. Such d isclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency. (j) Appendix II to Part 200 (J) – §200.323 Procurement of Recovered Materials:
(i) Consultant shall comply with section 6002 of the So lid Waste Disposal Act, as amended by the Resource Conservation and Re covery Act. The requirements of Section 6002 include procuring only items designated in gui delines 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 satisfac tory level of competition, where the purchase price of the item exceeds $10,000 or the value of t he quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement. (ii) In the performance of this Agreement, the Consultan t shall make maximum use of products containing recovered materi als that are EPA-designated items unless the product cannot be acquired: Competitively withi n a timeframe providing for compliance with the contract performance schedule; Meeting con tract performance requirements; or At a reasonable price.
(iii) Information about this requirement, along with the list of EPA-designate items, is available at EPA’s Comprehensive Procurem ent Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. (iv) 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 descr ibed in Public Law 115–232, section 889, covered telecommunications equipment is telecommuni cations 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 gover nment facilities, physical security surveillance of critical infrastr ucture, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications 99999.91910\40791408.1
23 Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
(2) Telecommunications or video surveillance services p rovided by such entities or using such equipment.
(3) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretar y of Defense, in consultation with the Director of the National Intelligence or the Direct or of the Federal Bureau of Investigation, reasonably believes to be an entity owned or contro lled by, or otherwise connected to, the government of a covered foreign country.
(ii) See Public Law 115-232, section 889 for additional information. (l) Appendix II to Part 200 (L) – §200.322 Domestic Preferences for Procurement:
(i) Consultant shall, to the greatest extent practicabl e, purchase, acquire, or use goods, products, or materials produced in the U nited States (including but not limited to iron, aluminum, steel, cement, and other manufactur ed products). The requirements of this section must be included in all subcontracts
(ii) For purposes of this section:
(1) “Produced in the United States’’ means, for iron an d steel products, that all manufacturing processes, from th e initial melting stage through the application of coatings, occurred in the United States. (2) ‘‘Manufactured products’’ means items and construct ion materials composed in whole or in part of nonferrou s metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride p ipe; aggregates such as concrete; glass, including optical fiber; and lumber.
2. COMPLIANCE WITH U.S. DEPARTMENT OF THE TREASURY COR ONAVIRUS STATE AND
LOCAL FISCAL RECOVERY FUND AWARD TERMS AND CONDITIONS
(a) Maintenance of and Access to Records. Consultant s hall maintain records and financial documents sufficient to evidence complian ce 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 a uthorized representatives access to any books, documents, papers, and records (electronic a n otherwise) of the Consultant which are directly pertinent to this Agreement for the purpos es of conducting audits or other investigations. Records shall be maintained by Con sultant for a period of five (5) years after completion of the project.
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24 (b) Compliance with Federal Regulations. Consultant ag rees to comply with the requirements of section 603 of ARPA, regulations ad opted by Treasury pursuant to section 603(f) of ARPA, and guidance issued by Treasury reg arding the foregoing. Consultant also agrees to comply with all other applicable federal statutes, regulations, and executive orders, including, without limitation, the following:
(i) Universal Identifier and System for Award Managemen t (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.
(ii) Reporting Subaward and Executive Compensation Infor mation, 2 C.F.R.
Part 170, pursuant to which the award term set fort h in Appendix A to 2 C.F.R. Part 170 is hereby incorporated by reference.
(iii) OMB Guidelines to Agencies on Governmentwide Debarm ent and Suspension (Nonprocurement), 2 C.F.R. Part 180, inc luding the requirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 C.F.R. Part 180, subpart B) that the award is subje ct to 2 C.F.R. Part 180 and Treasury’s implementing regulation at 31 C.F.R. Part 19.
(iv) Recipient Integrity and Performance Matters, pursua nt to which the award term set forth in 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference.
(v) Governmentwide Requirements for Drug-Free Workplace , 31 C.F.R. Part
20. (vi) New Restrictions on Lobbying, 31 C.F.R. Part 21. (vii) Uniform Relocation Assistance and Real Property Acq uisitions Act of 1970 (42 U.S.C. §§ 4601-4655) and implementing regulations.
(c) Compliance with Federal Statutes and Regulations Pr ohibiting Discrimination.
Consultant agrees to comply with statutes and regul ations prohibiting discrimination applicable to the CSLFRF program including, without limitation, the following:
(i) 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. Pa rt 22, which prohibit discrimination on the basis of race, color, or national origin under prog rams or activities receiving federal financial assistance.
(ii) The Fair Housing Act, Title VIII of the Civil Right s Act of 1968 (42 U.S.C. §§ 3601 et seq.), which prohibits discrimination in ho using on the basis of race, color, religion, national origin, sex, familial status, or disability.
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25 (iii) Section 504 of the Rehabilitation Act of 1973, as a mended (29 U.S.C. § 794), which prohibits discrimination on the basis o f disability under any program or activity receiving federal financial assistance.
(iv) The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.), and Treasury’s implementing regulations at 3 1 C.F.R. Part 23, which prohibit discrimination on the basis of age in programs or activities receiving federal financial assistance. (v) Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. §§ 12101 et seq.), which prohibits discrimin ation on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
(d) False Statements. Consultant understands that maki ng false statements or claims in connection with the CSLFRF program is a v iolation of federal law and may result in criminal, civil, or administrative sanctions, inclu ding fines, imprisonment, civil damages and penalties, debarment from participating in federal awards or contracts, and/or any other remedy available by law.
(e) Hatch Act. If Consultant is a public agency, Consu ltant 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 o r local government employees whose principal employment is in connection with an activity financ ed in whole or in part by this federal assistance.
(f) Protections for Whistleblowers.
(i) In accordance with 41 U.S.C. § 4712, Consultant may not discharge, demote, or otherwise discriminate against an employ ee in reprisal for disclosing to any of the list of persons or entities provided below, informa tion 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 contrac t or grant, a substantial and specific danger to public health or safety, or a violation of law, rul e, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant. (ii) The list of persons and entities referenced in the paragraph above includes the following:
(1) A member of Congress or a representative of a commi ttee of Congress;
(2) An Inspector General;
(3) The Government Accountability Office;
99999.91910\40791408.1
26 (4) A Treasury employee responsible for contract or gra nt oversight or management;
(5) An authorized official of the Department of Justice or other law enforcement agency;
(6) A court or grand jury; or
(7) A management official or other employee of Consulta nt, or a subcontractor who has the responsibility to investigate, discover, or address misconduct. (g) Increasing Seat Belt Use in the United States. Pur suant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Consultant is e ncouraged to adopt and enforce on-the-job seat belt policies and programs for their employees when operating company-owned, rented or personally owned vehicles, and encourage its subcontractors to do the same (h) Reducing Text Messaging While Driving. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Consultant should encourag e 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. (i) Assurances of Compliance with Civil Rights Requirem ents. The Civil Rights Restoration Act of 1987 provides that the provision s of this assurance apply to the Contract, including, but not limited to, the following:
(i) Consultant ensures its current and future complianc e with Title VI of the Civil Rights Act of 1964, as amended, which prohibi ts 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 gr ound 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 ord ers such as Executive Order 13166; directives; circulars; policies; memoranda and/or guidance documents. (ii) Consultant acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Profic iency (LEP),” seeks to improve access to federally assisted programs and activities for indi viduals who, because of national origin, are limited in their English proficiency. Consultant un derstands 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 Tit le VI of the Civil Rights Act of 1964.
Accordingly, Consultant shall initiate reasonable s teps, 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 e ntail providing language assistance services, including oral interpretation and written translation where necessary to ensure effective communication in the Project.
99999.91910\40791408.1
27 (iii) Consultant agrees to consider the need for language services for LEP persons during development of applicable budgets an d when conducting programs, services and activities. As a resource, the Department of th e Treasury has published its LEP guidance at 70 FR 6067. For more information on LEP, please visit http://www.lep.gov. (iv) Consultant acknowledges and agrees that compliance with this assurance constitutes a condition of continued receipt of fed eral financial assistance and is binding upon Consultant and Consultant’s successors, transferees and assignees for the period in which such assistance is provided.
(v) Consultant agrees to incorporate the following language in every contract or agreement subject to Title VI and its regulation s 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).
(vi) Consultant understands and agrees that if any real property or structure is provided or improved with the aid of federal fin ancial 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 pr operty 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 p ersonal property is provided, this assurance obligates the Consultant for the period during whic h it retains ownership or possession of the property.
(vii) Consultant shall cooperate in any enforcement or co mpliance 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. Cons ultant shall comply with information requests, on-site compliance reviews, and reporting requirements. (viii) Consultant shall maintain a complaint log and infor m the Department of the Treasury of any accusations of discrimination o n the grounds of race, color, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Act of 1964 and 99999.91910\40791408.1
28 implementing regulations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, inclu ding outcome. Consultant must also inform the Department of the Treasury if Consultant has received no complaints under Title VI. (ix) Consultant must provide documentation of an adminis trative 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 agreeme nts between the Consultant and the administrative agency that made the finding. If th e Consultant settles a case or matter alleging such discrimination, Consultant must provide docume ntation of the settlement. If Consultant has not been the subject of any court or administra tive agency finding of discrimination, please so state.
(x) If Consultant makes sub-awards to other agencies or other entities, Consultant is responsible for assuring that sub-rec ipients also comply with Title VI and all of the applicable authorities covered in this assurance.
3. CONTRACTING WITH SMALL AND MINORITY FIRMS, WOMEN’S BUSINESS ENTERPRISE AND LABOR SURPLUS AREA FIRMS (2 C.F.R. § 200.321)
(a) Consultant shall be subject to 2 C.F.R. § 200.321 and will take affirmative steps to assure that minority firms, women’s business enterp rises, and labor surplus area firms are used when possible and will not be discriminated against on the grounds of race, color, religious creed, sex, or national origin in consideration for an award. (b) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and women's business enterprises on solicitation lists;
(ii) Assuring that small and minority businesses, and wo men's business enterprises are solicited whenever they are potential sources; (iii) Dividing total requirements, when economically feas ible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises;
(iv) Establishing delivery schedules, where the requirem ent permits, which encourage participation by small and minority busin ess, and women's business enterprises; and (v) Using the services/assistance of the Small Business Administration (SBA), and the Minority Business Development Agency (MBDA) of the Department of Commerce.
Consultant shall submit evidence of compliance with the foregoing affirmative steps when requested by the City.