CITY OF FULLERTON
ARPA SUBRECIPIENT AGREEMENT
WITH
ILLUMINATION FOUNDATION
THIS AGREEMENT is made and entered into this _1_ day of November, 2022 ("Effective Date"), by and between the CITY OF FULLERTON, a California municipal corporation ("City"), and THE ILLUMINATION FOUNDATION, a California Nonprofit ("Subrecipient").
WITNESSETH:
A. City proposes to utilize the services of Subrecipient to provide certain homeless assistance and shelter services, as more fully described herein.
Subrecipient represents that it has that degree of specialized expertise contemplated within California Government Code section 37103, and holds all necessary licenses to practice and perform the services herein contemplated.
City and Subrecipient desire to contractually agree to the specific services described herein, and desire to set forth their rights, duties and liabilities in connection with the services to be performed.
No official or employee of City has a financial interest, within the provisions of Sections 1090-1092 of the California Government Code, in the subject matter of this Agreement.
Whereas on March 11, 2021 President Joseph R. Biden signed into law the American Rescue Plan Act of 2021 (hereinafter "ARPA"); and F. Whereas on September 20, 2022, the United States Department of the Treasury (hereinafter "US TREASURY") published and updated guidance regarding the allowable usage of the Coronavirus State and Local Fiscal Recovery Funds (hereinafter "SLFRF") to be disseminated to local governments in accordance with the ARPA; and Whereas the subrecipient has provided a proposal to house homeless individuals in conformance to Expenditure Category 2.16 "Housing Support: Services for Unhoused Persons" as referenced in the ARPA reporting guidelines; and
Whereas the subrecipient is subject to an audit pursuant to the Single Audit Act and 2 CFR part 200, subpart F regarding audit requirements and conformance to federal law; NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY SUBRECIPIENT
1.1. Scope of Services. Subrecipient shall provide the City homeless shelter bed services as more defined in the Services & Fees Schedule attached hereto as Exhibit "A" and incorporated herein by this reference. Such services shall be in conformance with reporting and compliance requirements set forth by law including the American Rescue Plan Act (ARPA). Subrecipient further agrees to comply with all reporting requirements that may be incurred in the process of completing the services outlined in Exhibit "A".
Illumination Foundation Subrecipient Agreement
1.2. Professional Practices. All professional services to be provided by Subrecipient pursuant to this Agreement shall be provided by personnel experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional subrecipients in similar fields and circumstances in accordance with sound professional practices. Subrecipient also warrants that it is familiar and will comply with all laws and regulations that may affect its performance of this Agreement including, but not limited to, ARPA, SLFRF, and 2 CFR Part 200; and shall advise City of any changes in any laws that may affect Subrecipient's performance of this Agreement.
1.3. Performance to Satisfaction of City. Subrecipient agrees to perform all the work to the reasonable satisfaction of the City, in accordance with the applicable professional standard of care and City specifications and within the hereinafter specified. Evaluations of the work will be done by the City Manager or his designee. If the quality of work is not satisfactory, City in its discretion has the right to:
(a) Meet with Subrecipient to review the quality of the service and resolve the matters of concern;
(b) Require Subrecipient to replicate service at no additional fee until it is satisfactory; and/or
(c) Terminate the Agreement as hereinafter set forth.
Warranty. Subrecipient warrants that it shall perform the services required by this Agreement in compliance with all applicable and non conflicting Federal and California employment laws, including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Subrecipient shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of Subrecipient's performance under this Agreement.
Non-discrimination. In performing this Agreement, Subrecipient shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code.
1.6. Non-Exclusive Agreement. Subrecipient acknowledges that City may enter into agreements with other subrecipients for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement.
1.7. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. Subrecipient may engage a subcontractors) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at Subrecipient's Illumination Foundation Subrecipient Agreement
Illumination Foundation Subrecipient Agreement
sole cost and expense.
1.8. Confidentiality. Employees of Subrecipient in the course of their duties may have access to financial, accounting, statistical, and personnel data of private individuals and employees of City. Subrecipient covenants that all data, documents, discussion, or other information developed or received by Subrecipient or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Subrecipient without written authorization by City. City shall grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Subrecipient's covenant under this Section shall survive the termination of this Agreement.
2.0. COMPENSATION AND BILLING
Compensation. Compensation. Subrecipient shall be paid in accordance with the fee schedule set forth in Exhibit "A" and Exhibit "B". In no circumstances will compensation for all service categories under Exhibit "A" exceed a total dollar amount of $584,000.00 Additional Services. Subrecipient may perform the additional services described in Exhibit "B" attached hereto and incorporated herein by this reference if specifically engaged to do so by City. Subrecipient shall not receive compensation for any services provided outside the scope of services specified in Exhibit "A" unless the City or the Project Manager for this Project, prior to Subrecipient performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. Additional services shall in no circumstances produce costs above or beyond a contractually agreed upon not to exceed limit for the lifetime of the agreement.
2.3. Method of Billing. Subrecipient may submit invoices to the City no more often than once a month. Said invoice shall be based on the total of all Subrecipient's services which have days from the date City receives said invoice. Each invoice shall describe in detail, the services performed, the date of performance, and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices.
Records and Audits. Records of Subrecipient's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City or its Project Manager for inspection and/or audit at mutually convenient times from the Effective Date of this Agreement until three (3) years after the termination date.
Subrecipient must provide City with a current W-9 form prior to the commencement of work under this Agreement. It is the Subrecipient's responsibility to provide to the City any revised or updated W-9 form during the term of this Agreement.
3.0. TIME OF PERFORMANCE
Commencement and Completion of Work. The professional services to be performed pursuant to this Agreement shall commence within five (5) days from the Effective Date of this Agreement. Failure to commence work in a timely manner and/or diligently pursue work to Illumination Foundation Subrecipient Agreement
Illumination Foundation Subrecipient Agreement
completion may be grounds for termination of this Agreement.
3.2. Excusable Delays. Neither party shall be responsible for delays or lack of laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a party.
4.0. TERM AND TERMINATION
Term. This Agreement shall commence on the Effective Date and continue through October 31, 2023 unless terminated as provided herein.
4.2. Notice of Termination. The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing written notice to Subrecipient.
The termination of this Agreement shall be deemed effective upon receipt of the notice of termination. In the event of such termination, Subrecipient shall immediately stop rendering services under this Agreement unless directed otherwise by the City. Subrecipient shall have the right to terminate this Agreement in the event the City is in material breach of any of its material obligations under this Agreement. Subrecipient shall provide the City with written notice of the breach, and the City shall have ninety (90) days from receipt of the notice to cure said breach. If the breach is not cured within the ninety (90) day period, Subrecipient shall have the right to terminate this Agreement immediately. Any termination under this paragraph shall not relieve the City of any obligation or liability already accrued
4.3. Compensation. In the event of termination, City shall pay Subrecipient for reasonable costs incurred and professional services satisfactorily performed up to and including the date of City's written notice of termination. Compensation for work in progress shall be prorated based on the percentage of work completed as of the effective date of termination in accordance with the fees set forth herein. In ascertaining the professional services actually rendered hereunder up to the effective date of termination of this Agreement, consideration shall be given to both completed work and work in progress, to complete and incomplete drawings, and to other documents pertaining to the services contemplated herein whether delivered to the City or in the possession of the Subrecipient.
4.4. Documents. In the event of termination of this Agreement, all documents prepared by Subrecipient in its performance of this Agreement including, but not limited to, finished or unfinished design, development and construction documents, data studies, drawings, maps and reports, shall be delivered to the City within ten (10) days of delivery of termination notice to Subrecipient, at no cost to City. Any use of uncompleted documents without specific written authorization from Subrecipient shall be at City's sole risk and without liability or legal expense to Subrecipient.
5.0. INSURANCE
Insurance Required. Subrecipient shall procure and maintain throughout the duration of this Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Subrecipient, its agents, representatives, employees or subcontractors. Subrecipient shall provide current evidence of the required insurance in a form acceptable to City and shall provide Illumination Foundation Subrecipient Agreement
Illumination Foundation Subrecipient Agreement
replacement evidence for any required insurance which expires prior to the completion, expiration, or termination of this Agreement.
Nothing in this section shall be construed as limiting in any way, the Indemnification and Hold Harmless clause contained herein in Section 6.8 or the extent to which Subrecipient may be held responsible for payments of damages to persons or property.
5.2. Minimum Scope and Limits of Insurance.
A. Commercial General Liability Insurance. Subrecipient shall maintain commercial general liability insurance coverage in a form at least as broad as ISO Form #CG 00 01, with a limit of not less than $1,000,000 each occurrence. If such insurance contains a general aggregate limit, it shall apply separately to the Agreement or shall be twice the required occurrence limit.
B. Business Automobile Liability Insurance. Subrecipient shall maintain business automobile liability insurance coverage in a form at least as broad as ISO Form # CA 00 01, with a limit of not less than $1,000,000 each accident. Such insurance shall include coverage for owned, hired and non-owned automobiles.
C. Workers' Compensation and Employers' Liability Insurance. Subrecipient shall maintain workers' compensation insurance as required by the State of California and employers' liability insurance with limits of not less than $1,000,000 each accident.
D. Professional Liability Insurance. Subrecipient shall maintain professional liability insurance appropriate to Subrecipient's profession with a limit of not less than $2,000,000.
Architects' and engineers' coverage shall be endorsed to include contractual liability. If policy is written as a "claims made" policy, the retro date of the policy shall be prior to the start of the contract work.
Deductibles and Self-Insured Retentions. Any deductible or self-insured retention must be declared to and approved by City.
5.4. Other Insurance Provisions. The required insurance policies shall contain or be endorsed to contain the following provisions:
Commercial General Liability. City, its elected or appointed officials, officers, employees and volunteers are to be covered as additional insureds with respect to liability arising out of work or operations performed by or on behalf of Subrecipient, including materials, parts or equipment furnished in connection with such work or operations. Such coverage as an additional insured shall not be limited to the period of time during which Subrecipient is conducting ongoing operations for City but rather, shall continue after the completion of such operations. The coverage shall contain no special limitations on the scope of its protection afforded to City, its officers, employees and volunteers.
B. Commercial General Liability. This insurance shall be primary insurance as respects City, its officers, employees and volunteers and shall apply separately to each insured against whom a suit is brought or a claim is made. Any insurance or self-insurance maintained by City, its officers, employees and volunteers shall be excess of this insurance and shall not contribute with it.
C. Professional Liability. If the Professional Liability policy is written on a Illumination Foundation Subrecipient Agreement
Illumination Foundation Subrecipient Agreement
"claims made" form, the Retroactive Date must be shown and must be before the date of the contract or beginning of contract work. The insurance must be maintained and evidence of insurance must be provided for at least (5) years after completion of the contract work. If the coverage is canceled or non-renewed and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Subrecipient must purchase "extended reporting coverage" for a minimum of five (5) years after completion of work.
D. Workers' Compensation and Employers' Liability Insurance. Insurer shall waive their right of subrogation against City, its officers, employees and volunteers for work done on behalf of City.
All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City.
If Subrecipient maintains higher limits or has broader coverage than the minimums shown above, City requires and shall be entitled to all coverage, and to the higher limits maintained by Subrecipient. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
F. Subcontractors. Subrecipient shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein and Subrecipient shall ensure that City is an additional insured on insurance required from subsubrecipients.
Special Risks or Circumstances. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances.
5.5 Acceptability of Insurers. All required insurance shall be placed with insurers acceptable to City with current BEST'S ratings of no less than A, Class VII. Workers' compensation insurance may be placed with the California State Compensation Insurance Fund All insurers shall be licensed by or hold admitted status in the State of California. At the sole discretion of City, insurance provided by non-admitted or surplus carriers with a minimum BEST'S rating of no less than A- Class X may be accepted if Subrecipient evidences the requisite need to the sole satisfaction of City.
5.6 Verification of Coverage. Subrecipient shall furnish City with certificates of insurance which bear original signatures of authorized agents and which reflect insurers names and addresses, policy numbers, coverage, limits, deductibles and self-insured retentions.
Additionally, Subrecipient shall furnish copies of all policy endorsements required herein. All certificates and endorsements must be received and approved by City before work commences.
City reserves the right to require at any time complete, certified copies of any or all required insurance policies and endorsements.
6.0. GENERAL PROVISIONS
6.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including Illumination Foundation Subrecipient Agreement
Illumination Foundation Subrecipient Agreement
exhibits to this Agreement.
6.2. Representatives. The City Manager or his designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement.
Subrecipient shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalf of Subrecipient called for by this Agreement, except as otherwise expressly provided in this Agreement.
6.3. Project Managers. City shall designate a Project Manager to work directly with Subrecipient in the performance of this Agreement.
Subrecipient shall designate a Project Manager who shall represent it and be its agent in all consultations with City during the term of this Agreement. Subrecipient or its Project Manager shall attend and assist in all coordination meetings called by City.
Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail.
IF TO SUBRECIPIENT: IF TO CITY:
Illumination Foundation City of Fullerton
1091 N Batvia Street 303 W. Commonwealth Ave.
Orange, CA 92867 Fullerton, CA 92832
Attn: Jack Toan, Co-CEO Attn: Daisy Perez
6.5. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof.
Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California.
6.7. Assignment. Subrecipient shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Subrecipient's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall Illumination Foundation Subrecipient Agreement
Illumination Foundation Subrecipient Agreement
be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Subrecipient of Subrecipient's obligation to perform all other obligations to be performed by Subrecipient hereunder for the term of this Agreement.
Indemnification and Hold Harmless. To the fullest extent of the law, Subrecipient agrees to defend, indemnify, hold free and harmless the City, its elected officials, officers, agents, and employees, at Subrecipient's sole expense, from and against claims, actions, suits or other legal proceedings brought against the City, its elected officials, officers, agents, and employees arising out of the performance of the Subrecipient, its employees, and/or authorized subcontractors, of the professional services undertaken pursuant to this Agreement. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by the Subrecipient, its employees, and/or authorized subcontractors, but shall be required whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors, omissions or misconduct of Subrecipient, its employees, and/or authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liability against the City, its elected officials, officers, agents, and employees based upon the work performed by Subrecipient, its employees, and/or authorized subcontractors under this Agreement, whether or not Subrecipient, its employees, and/or authorized subcontractors are specifically named or otherwise asserted to be liable. Notwithstanding the foregoing, the Subrecipient shall not be liable for the defense or indemnification of the City for claims, actions, complaints, or suits arising out of the sole negligence or willful misconduct of the City. This provision shall supersede and replace all other indemnity provisions contained either in the City's specifications or Subrecipient's Proposal, which shall be of no force and effect.
Independent Operator. Subrecipient is and shall be acting at all times as an independent operator and not as an employee of City. Subrecipient shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent.
Neither City nor any of its agents shall have control over the conduct of Subrecipient or any of Subrecipient's employees, except as set forth in this Agreement. Subrecipient shall not, at any time, or in any manner, represent that it or any of its or employees are in any manner agents or employees of City. Subrecipient shall secure, at its sole expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Subrecipient and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Subrecipient shall indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent operator relationship created by this Agreement. Subrecipient further agrees to indemnify and hold City harmless from any failure of Subrecipient to comply with the applicable worker's compensation laws. City shall have the right to offset against the amount of any fees due to Subrecipient under this Agreement any amount due to City from Subrecipient as a result of Subrecipient's failure to promptly pay to City any reimbursement or indemnification arising under this paragraph.
6.10. PERS Eligibility Indemnification. In the event that Subrecipient or any employee, agent, or subcontractor of Subrecipient providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Subrecipient shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Subrecipient or its employees, agents, or Illumination Foundation Subrecipient Agreement
Illumination Foundation Subrecipient Agreement
subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Subrecipient and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.
6.11. Cooperation. In the event any claim or action is brought against City relating to Subrecipient's performance or services rendered under this Agreement, Subrecipient shall render any reasonable assistance and cooperation which City might require.
6.12. Ownership of Documents. All findings, reports, CAD drawings, documents, information and data, including, but not limited to, computer tapes or discs, files and tapes furnished or prepared by Subrecipient or any of its subcontractors in the course of performance of this Agreement, shall be and remain the sole property of City. Subrecipient agrees that any such documents or information shall not be made available to any individual or organization without the prior consent of City. Any use of such documents for other projects not contemplated by this Agreement, and any use of incomplete documents, shall be at the sole risk of City and without liability or legal exposure to Subrecipient. City shall indemnify and hold harmless Subrecipient from all claims, damages, losses, and expenses, including attorneys' fees, arising out of or resulting from City's use of such documents for other projects not contemplated by this Agreement or use of incomplete documents furnished by Subrecipient. Subrecipient shall deliver to City any findings, reports, documents, information, data, in any form, including but not limited to, computer tapes, discs, files, audio tapes or any other Project related items as requested by City or its authorized representative, at no additional cost to the City.
6.13. Public Records Act Disclosure. Subrecipient has been advised and is aware that this Agreement and all reports, documents, information and data, including, but not limited to, computer tapes, discs or files furnished or prepared by Subrecipient, or any of its subcontractors, pursuant to this Agreement and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et seq.).
Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which Subrecipient informs City of such trade secret. The City will endeavor to maintain as confidential all information obtained by it that is designated as a trade secret. The City shall not, in any way, be liable or responsible for the disclosure of any trade secret including, without limitation, those records so marked if disclosure is deemed to be required by law or by order of the Court.
6.14. Conflict of Interest. Subrecipient and its officers, employees, associates and subsubrecipients, if any, will comply with all conflict of interest statutes of the State of California applicable to Subrecipient's services under this agreement, including, but not limited to, the Political Reform Act (Government Code Sections 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Subrecipient and its officers, employees, associates and subsubrecipients shall not, without the prior written approval of the City Representative, perform work for another person or entity for whom Subrecipient is not currently performing work that would require Subrecipient or one of its officers, employees, associates or subsubrecipients to abstain from a decision under this Agreement pursuant to a conflict of interest statute.
Illumination Foundation Subrecipient Agreement
Illumination Foundation Subrecipient Agreement
6.15. Responsibility for Errors. Subrecipient shall be responsible for its work under this Agreement. Subrecipient, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Subrecipient occurs, without prejudice to any other remedy to which City may be entitled to at law or equity, Subrecipient shall, at no cost to City, provide all necessary design drawings, estimates and other Subrecipient professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction. In addition, Subrecipient shall reimburse City for any and all costs, expenses and/or damages, if any, that the City has incurred due to the aforementioned error or omission.
6.16. Prohibited Employment. Subrecipient will not employ any regular employee of City while this Agreement is in effect.
6.17. Order of Precedence. In the event of an inconsistency in this Agreement and any of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent this Agreement incorporates by reference any provision of any document, such provision shall be deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, this Agreement shall govern over the document referenced.
6.18. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
6.19. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of City and Subrecipient and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement.
6.20. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
6.21. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
6.22. Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement.
6.23. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in Illumination Foundation Subrecipient Agreement
Illumination Foundation Subrecipient Agreement
respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
6.24. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance. Notwithstanding the foregoing, if the value of this Agreement, based upon the substantial benefit of the bargain for any party, is materially impaired, which determination made by the presiding court or arbitrator of competent jurisdiction shall be binding, then both parties agree to substitute such provision(s) through good faith negotiations.
6.25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement.
6.26. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so the parties hereto are formally bound to the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written.
CITY OF FULLERTON
hit so: 1/22/22
Eric Levitt, City Manager
SUBRECIPJENT
Date: 11/9/22
Jack Toan, Co-CE
71-1047686
Social Security or Taxpayer ID Number
APPROVED AS TO FORM:
Baron & Bettenhamar to
Baron J. Bettenhausen, Assistant City Attorne
Illumination Foundation Subrecipient Agreement
Illumination Foundation Subrecipient Agreement
EXHIBIT A
SERVICES & FEES
Illumination Foundation (IF) shall provide to the City specific services outlined as follows:
• Illumination Foundation will guarantee up to 20 beds at any given time for individuals referred to the shelter by the City of Fullerton Homeless Outreach Team and City • The City shall pay a daily per diem rate of $80 for the aforementioned 20 dedicated beds, totaling $1600.00 per day, known as the daily fee. The daily fee shall accrue for three hundred and sixty-five (365) days under the lifetime of the Agreement, totaling $584,000.00. The daily fee is guaranteed and incurred irrespective of whether the beds are occupied by individuals referred by the City of Fullerton Homeless Outreach Team and City Staff.
• To conform with the City's current practices and to retain outreach consistency, IF shall agree in utilizing convergant software solutions which City staff currently use including but not limited to such software as Outreach Grid, a separate, proprietary software which is used to document, classify, record, track, and report on shelter services provided.
• Illumination Foundation understands that funding for this agreement is provided for by the American Rescue Plan Act (ARPA), and is able to comply with any necessary reporting and audit requirements as mandated by Uniform Guidance, 2 CFR Part 200.
Illumination Foundation Subrecipient Agreement
EXHIBIT B
ADDITIONAL SERVICES & FEES
lumination Foundation (IF) shall provide to the City specific supplemental services outlined as follows:
• For any beds which are made available beyond the Exhibit "A" outlined 20 beds, the City shall pay a modified rate of $95.00 per bed.
• Such supplemental services will only be utilized in the event that City staff requires IF to make additional beds available for individuals specifically referred by City Staff. • IF and City understand that availability of supplemental beds is subject to change, and supplemental beds are provided on a case-by-case basis following the request from City staff.
• The $95,00 per bed rate shall only be incurred in the event that the entirety of the City's 20 obligated beds are not available due to existing referred individuals by City Staff, and City Manager, or his or her designee, have explicitly directed IF in writing to provide such supplemental services.
• Supplemental services shall in no circumstance produce costs which exceed the contractual limit, and City staff and IF shall jointly ensure compliance with the limitations of this one-year agreement.
Illumination Foundation Subrecipient Agreement
EXHIBIT C
CERTIFICATES OF INSURANCE