SUBRECIPIENT AGREEMENT
BETWEEN
CENTER FOR TRANSPORTATION AND THE ENVIRONMENT, INC.
AND
THE CITY OF GLENDALE
This Agreement is made on this ______ day of ______, 2025 by and between the Center for Transportation and the Environment (herein “CTE”), located at 730 Peachtree Street, Suite 450, Atlanta, GA 30308 and the City of Glendale (herein “CONTRACTOR”), located at 633 East Broadway, Suite 209, Glendale, CA 91206 both hereinafter referred to collectively as the “Parties” and individually as “Party,” and serves as the contract for the scope of work that CONTRACTOR agrees to provide under the Glendale Municipal Green Zone Project.
WHEREAS, CTE and CONTRACTOR partnered on a proposal (herein referred to as “Project Proposal”) to the Fiscal Year (FY) 2021-22 and FY 2022-2023 Advanced Technology Demonstration and Pilot Projects Grant solicitation issued by the California Air Resources Board (CARB) and the California Energy Commission’s (CEC) Zero-emission Vehicle Infrastructure (ZVI) Grant Program; WHEREAS, CTE, as the Prime Recipient, and CONTRACTOR, as a Subrecipient, were awarded both CARB and CEC Grants to deploy the Glendale Municipal Green Zone Construction Work Crew Project (herein “Project”);
WHEREAS, CTE desires to engage the CONTRACTOR, as a sub-grantee, to render the proposed services and support related to the Project; and
WHEREAS, CONTRACTOR possesses the essential experience, skills, and breadth of knowledge to perform such services; and
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:
The following attachments are incorporated and made part of this Agreement herein:
Attachment I: CONTRACTOR Statement of Work
Attachment II: CARB Grant Terms & Conditions (“CARB Agreement”) Attachment III:CEC Grant Terms & Conditions (“CEC Agreement”) Attachment IV: Project Proposal
1)SCOPE OF WORK / STANDARD OF PERFORMANCE
By executing this Agreement, CONTRACTOR agrees to perform and comply with the scope of work set forth in the Statement of Work (“Work”), attached and fully incorporated herein as Attachment I.
CONTRACTOR shall perform the scope of work specified in the time and manner described and in accordance with the terms and provisions of this Agreement. CONTRACTOR agrees to perform the scope of work with that standard of professional care, skill, and diligence normally provided in the performance of similar services and will obtain and maintain all required business and professional permits, licenses, and certificates required to perform such services. Any costs for failure to meet the foregoing standard or to correct otherwise defective work that requires re-performance of the work, shall be borne in total CONTRACTOR.
Exhibit 1E Exhibit 1
2) CARB/CEC FUNDING
a) CONTRACTOR acknowledges that this Agreement is funded in part by CARB and CEC. As such, CONTRACTOR shall comply with the CARB Grant Terms and Conditions, included in Attachment II and the CEC Grant Terms and Conditions, included in Attachment III, applicable to CONTRACTOR as a Subrecipient in performance of this Agreement. Without limiting the generality of the foregoing:
i. CONTRACTOR acknowledges and agrees that provisions of the CARB Agreement or CEC Agreement imposing an obligation on CTE to CARB or CEC shall be deemed to impose an obligation on CONTRACTOR to CTE.
i. CONTRACTOR shall not take any action or fail to take any action that would jeopardize CTE’s compliance with any CARB Agreement Term or Condition, any CEC Agreement Term or Condition, or any CARB or CEC Grant Solicitation term or condition. ii. Provisions, if any, in the CARB Agreement, in the CEC Agreement, or the CARB and/or CEC Grant Solicitation providing for indemnification or other hold harmless obligations by CTE to CARB and/or CEC shall be deemed to be an indemnification or hold harmless obligation by CONTRACTOR to CTE and CARB/CEC.
b) CONTRACTOR acknowledges, accepts, and agrees that the State of California, acting by and through the CARB and/or CEC, is an intended third-party beneficiary to any and all CONTRACTOR agreements, vouchers, contracts, subcontracts, awards, and grants with CTE where any CARB-provided funds are used or applied to pay or reimburse CONTRACTOR under this Project.
c) CONTRACTOR agrees to act in good faith and cooperate with CTE in completing and performing the duties and requirements of the CARB and CEC Agreements, to include but not limited to participation in project kick-offs, assistance with materials and reports for ongoing project coordination meetings and critical project review meetings, as well as participation and support of public outreach and workforce development events. 3) DOCUMENTS INCORPORATED BY REFERENCE
The documents below are incorporated by reference into this Agreement. These terms and conditions will govern in the event of a conflict, with the exception of the documents in subsection (f). Where this Agreement or California laws and regulations are silent or do not apply, the federal cost principles and acquisition regulations listed below will be utilized as guidance in determining whether reimbursement of claimed costs is allowable. Documents incorporated by reference include:
Solicitation Documents
a. The CEC and CARB funding solicitations under which this Agreement was awarded (to include the Sample Grant Agreements, if any, included in the solictations) b. The Project Proposal
Federal Cost Principles (applicable to state and local governments, Indian tribes, institutions of higher education, and nonprofit organizations)
c. 2 Code of Federal Regulations (CFR) Part 200, Subpart E (Sections 200.400 et seq.) Federal Acquisition Regulations (applicable to commercial organizations) d. 48 CFR, Ch.1, Subchapter E, Part 31, Subpart 31.2: Contracts with Commercial Organizations (supplemented by 48 CFR, Ch. 9, Subchapter E, Part 931, Subpart 931.2 for Department of Energy grants)
Nondiscrimination
e. 2 California Code of Regulations, Section 11099 et seq.: Contractor Nondiscrimination and Compliance
General Laws
f. Any applicable federal, state, or local laws or regulations
4)TERM OF AGREEMENT
The period of performance for this Agreement shall commence upon notification to CONTRACTOR by CTE that CARB has determined California Environmental Quality Act (CEQA) compliance has been achieved and the Grant Agreement can proceed. Services, work products and/or deliverables defined in CONTRACTOR’s Statement of Work shall be completed when CTE notifies CONTRACTOR that CARB and CEC have approved the final report or when the Grant is terminated or expires, whichever occurs first.
5)AGREEMENT AMOUNT
a) The total Agreement Amount to be paid CONTRACTOR for the scope of work defined under this Agreement shall not exceed $607,084. CONTRACTOR will invoice CTE for services provided, and/or services and equipment purchased, based on actual and allowable direct and indirect costs incurred in accordance with the budget submitted as part of the Project Proposal and in compliance with all applicable CEC and CARB Agreement Terms and Conditions and Grant Solicitations. CTE will reimburse CONTRACTOR within 10 days of CTE’s receipt of the money from CARB and/or CEC.
b) CONTRATOR Budget, as proposed in the Project Proposal, included in Attachment IV, will not be amended due to faulty estimations, increases in costs due to inflation or other reasons that have not been covered in the budget.
c) Allowable direct costs and indirect costs of CONTRACTOR are payable on a reimbursement basis only. The rates included in the Project Proposal are rate caps, or the maximum amount allowed to be billed. CONTRACTOR can only bill for actual expenses incurred at the CONTRACTOR’s actual rates not to exceed the rates specified in the Project Proposal Budget (e.g., direct labor rates, fringe benefit rates, and indirect rates). All CONTRACTOR indirect costs must be developed in accordance with generally accepted accounting principles and comply with the requirements set forth in the CEC and CARB Agreements. Costs identified as direct costs cannot also be indirect costs.
d) All CONTRACTOR expenditures must occur withing the approved term of this Agreement and must be made in accordance with the Budget and subject to CEC and CARB Grant terms and conditions, to include the Streamlining Grant Terms & Conditions, included in Exhibit C – Appendix 1 of the CEC Agreement. No reimbursement will be made for expenses that, in the judgement of the CTE, do not comply with this Agreement. 6) MATCH SHARE
Match Share means cash-match or in-kind (non-cash) match contributions that will be used in performance of this Agreement. CONTRACTOR agrees to provide a minimum of $1,073,703 in Match Share, of which $566,790 shall be in the form of cash and equipment, and $506,913 shall be in the form of in- kind labor. Furthermore, CONTRACTOR agrees to provide the minimum match share percentage of the total actual, allowed costs to-date (herein “Minimum Match Share Percentage”), even if the Agreement is terminated early or otherwise ends before Project completion. Without limiting any of CTE’s other rights or remedies, CONTRACTOR agrees that if it fails to provide the Minimum Match Share Percentage, and if requested by CTE, CONTRACTOR shall repay an amount to ensure CONTRACTOR provides, at a minimum, the Minimum Match Share Percentage. 7) RETENTION
In accordance with the retention requirements of the CARB and CEC Grant Terms and Conditions, up to ten percent of any CONTRACTOR payment request will be retained until the end of the Project. After the Project is complete and CEC and/or CARB has verified that the terms of the funding agreement has been fulfilled, the retention will be authorized for release by CTE.
8) TRAVEL AND PER DIEM
a) Any reimbursement for necessary travel and per diem must be at rates not to exceed those amounts paid to the State’s represented employees. Any travel not included in the original Project Proposal Budget shall require pre-approval from CTE. No travel outside the State of California will be reimbursed unless prior written authorization is obtained from CTE. b) For the purposes of payment, CONTRACTOR’s headquarters shall be considered the location of the CONTRACTOR’s office where the employees’ assigned responsibilities to this Project are permanently assigned.
c) Travel and per diem reimbursement amounts may be found online at:
https://www.calhr.ca.gov/employees/pages/travel-reimbursements.aspx. Reimbursement must be at the State travel and per diem amounts that are current as of the date costs are incurred by the CONTRACTOR.
d) CONTRACTOR must retain documentation of travel expenses in its financial records. The documentation must be listed by trip and include dates and times of departure and return, and departure and destination cities. Travel receipts, including for travel meals and incidentals, shall be submitted with payment requests requesting reimbursement from CTE. 9)INVOICES
a) CONTRACTOR will submit monthly invoices by the 10th day following each calendar month for the work performed during the preceding month. Each invoice shall be accompanied by a status report and shall contain appropriate supporting documentation providing evidence of hours worked and associated hourly rates, as well as any documentation of actual costs incurred and paid by CONTRACTOR in performing their scope of work under this Agreement. b) In addition, CONTRACTOR’s invoices shall provide a detailed summary of the Match Amounts (cash match or in-kind cost share) contributed. This detailed summary will include a cost breakdown of the costs incurred by Direct Labor, Labor Overhead, Direct Costs (such as Travel, Materials, and Subcontracts) and G&A Overhead. CONTRACTOR certifies that any cash match or in-kind Match Amounts submitted are separate from, and in addition to, any amounts billed and that no Match Amounts contributed are included in any of the reimbursable portion of the amounts billed.
c) Submission of an invoice to CTE shall indicate CONTRACTOR’s certification that the invoice is correct and proper for payment, and reimbursement for the submitted costs has not and will not be received from any other sources, including but not limited to a government entity (as defined in Attachment III) contract, subcontract or other procurement method. d) Invoices shall be submitted by mail or other delivery carrier to the Center for Transportation and the Environment, 730 Peachtree St., Suite 450, Atlanta, GA 30308 and by email to CTE’s designated recipient ([email protected]).
e) A final invoice must be submitted by CONTRACTOR 90 days prior to the end date of the Project (February 28, 2027). If this Agreement is terminated earlier, CONTRACTOR’s final invoice must be submitted within 30 days of the early termination date. Any invoices received after the final invoice deadline may not be reimbursed by CTE.
10)TERMINATION
This agreement may be terminated in whole or in part as follows:
A. Termination for Default
Either Party may terminate this Agreement if the other Party materially fails to comply with the terms and conditions of this Agreement and such failure is not corrected within fifteen (15) days following receipt of written notice from the non-breaching party. Upon termination for default of CONTRACTOR, CONTRACTOR shall be liable to CTE for any excess costs incurred in acquiring supplies and services similar to those terminated for default, and for any
other damages, to include liquidated damages as defined in Article 6, whether or not repurchase is effected. CTE may withhold any payments due to CONTRACTOR until such time as the exact amount of damages, if any, due to CTE from CONTRACTOR is determined.
B. Termination for Convenience/Project Termination
i. CTE may terminate this Agreement, in whole or in part, upon thirty (30) days written notification to CONTRACTOR setting forth the effective date of termination, and, in the case of partial termination, the portion to be terminated. ii. This Agreement may be terminated immediately by CTE, if CTE’s prime award supporting this Letter Agreement is terminated by CARB or CEC.
In the event of Termination for Convenience or Project Termination, CONTRACTOR will use all reasonable efforts to mitigate its expenses and obligations. CONTRACTOR shall be paid in accordance with this Agreement for all Work satisfactorily performed up to the effective date of termination, which shall not exceed the total Agreement Amount. Upon termination, CTE shall be entitled to all work and CONTRACTOR shall promptly deliver to CTE all copies of documentation and other information and data prepared or developed by CONTRACTOR under this Agreement and any property or equipment purchased under this Agreement, to include works already in progress, unless otherwise instructed by CTE. 11) LIQUIDATED DAMAGES
If CTE or the State of California determines, within its or their sole and absolute discretion, that CONTRACTOR is in breach or has breached any obligation to remain in compliance with this Agreement or any applicable federal, State, or local air quality rules, regulations, and statutes, then CONTRACTOR, immediately upon demand, will pay CTE (or to CARB or CEC, as requested), as recaptured funds or liquidated damages, the full amount of all Grant Funds received to date.
CONTRACTOR agrees that quantifying the losses arising from any breach is inherently difficult insofar as breach may cause the State of California or CTE irreparable, serious, or substantial harm or damage, including to taxpayers or to the environment. CONTRACTOR further stipulates that the agreed upon amount of recaptured funds or liquidated damages is not a penalty, but rather a reasonable measure of damages based upon experience and given the nature of the losses that may result from said breach. CONTRACTOR agrees that the recaptured funds or liquidated damages have been computed, estimated, and agreed upon by all Parties and represents an attempt to make a reasonable forecast of probable actual loss because of the difficulty of estimating with exactness the damages which will result. This obligation shall apply even if there is a concurrent noncompliance or violation of air quality rules, regulations or laws caused by a third party. The remedies set out in this paragraph are contractual in nature.
12) STOP WORK
CTE may, at any time, by written notice to CONTRACTOR, require CONTRACTOR to stop all or any part of the Work under this Agreement. Stop work orders may be issued for reasons such as a project exceeding budget, standard of performance, out of scope work, dispute, delay in project schedule, misrepresentations and the like.
a) Compliance. Upon receipt of such stop work order, CONTRACTOR shall immediately take all necessary steps to comply therewith and to stop the incurrence of costs allocable to CTE. If CONTRATOR chooses to continue to work on the Project after receiving a Stop Work order, CONTRACTOR will not be reimbursed for any expenditure incurred during the suspension in the event that CTE terminates the Agreement. If CTE rescinds the Stop Work order and does not terminate the Agreement, CTE will reimburse CONTRACTOR for any expenses incurred during the suspension that are reimbursable in accordance with this Agreement and CARB and CEC Terms and Conditions.
b) Canceling a Stop Work Order. CONTRACTOR shall resume the work only upon receipt of written instructions from CTE.
13)INSURANCE
CONTRACTOR must comply with all requirements outlined in the (A) General Provisions section and (B) Insurance Requirements section. No payment will be made under this Agreement until CONTRACTOR fully complies with all insurance requirements. (A) General Provisions
a. Coverage Term – Coverage needs to be in force for the complete Term of the Agreement. If insurance is set to expire during the Term of the Agreement, a new certificate must be received by CTE at least ten days prior to the expiration of this insurance. Any new insurance must comply with the original Agreement terms. b. Policy Cancellation or Termination & Notice of Non-Renewal – CONTRACTOR is responsible for notifying CTE and the State within five business days of any cancellation, non-renewal, or material change that affects required insurance coverage. New certificates of insurance are subject to the approval of CTE and/or the State and CONTRACTOR agrees no work or services will be performed prior to obtaining such approval. In the event that CONTRACTOR fails to keep in effect at all times the specified insurance coverage, CTE may, in addition to any other remedies it may have, terminate the Agreement upon the occurrence of such event, subject to the provisions of this Agreement. c. Premiums, Assessments and Deductibles – CONTRACTOR is responsible for any premiums, policy assessments, deductibles or self-insured retentions contained within their insurance program.
d. Primary Clause – All required insurance contained herein shall be primary, and not excess or contributory, to any other insurance carried by CTE or the State. e. Insurance Carrier Required Rating – All insurance companies must carry an AM Best rating of at least “A–” with a financial category rating of no lower than VI. If CONTRACTOR is self-insured for a portion or all of its insurance, review of financial information including a letter of credit may be required. f. Endorsements – All required insurance shall include the additional insured endorsements physically attached to all certificates of insurance and not substituted by referring to such coverage on the certificate of insurance. In addition, Waiver of Subrogation or Right to Recover endorsements in favor of CTE, the State of California, and the California Air Resources Board must be attached to each certificate of insurance. g. Inadequate Insurance – Inadequate or lack of insurance does not negate CONTRACTOR’s obligations under this Agreement or the Grant terms and conditions. h. Satisfying a Self-Insured Retention (SIR) - All policies with an SIR shall be endorsed to all the State to satisfy the SIR or Deductible at the State’s discretion. CTE, on behalf of the State, may deduct from any amounts otherwise due to CONTRACTOR to fund the SIR/deductible. Policies shall not contain any provision that limits the satisfaction of the SIR/deductible to the Named Insured. CONTRACTOR’s insurer may also eliminate the SIR/deductible in favor of CTE and the State’s interests. i. Use of Contractors or Subcontractors – In the case of CONTRACTOR’s utilization of any subcontractors to complete Scope of Work hereunder, CONTRACTOR shall include all subcontractors as insureds under the CONTRACTOR’s insurance or supply evidence of the subcontractor’s insurance to CTE and the State equal to policies, coverages, and limits required of the CONTRACTOR.
(B) Grant Insurance Requirements: CONTRACTOR and each subcontractor of CONTRACTOR shall display evidence of the following on a certificate of insurance which includes all the required endorsements, including additional insured endorsements and waiver of subrogation/right to recover endorsements. Failure to provide the certificates upon request will result in the termination of this Agreement. The following coverages must be evidenced on the certificates of insurance:
a. Commercial General Liability – CONTRACTOR, and each subcontractor, shall maintain general liability on an occurrence form with limits not less than $2,000,000 per occurrence for bodily injury and property damage liability combined with a $5,000,000 annual policy aggregate. A “per project aggregate” endorsement is required. The policy shall include coverage for liabilities arising out of premises, operations, independent contractors, products, completed operations, personal and advertising injury, and liability assumed under an insured contract or grant. This insurance shall apply separately to each insured against whom claim is made or suit is brought subject to CONTRACTOR's or a subcontractor’s limit of liability. For any work or activity performed or carried out in whole or in part using Grant Funds or to carry out any term or condition of this Agreement, each insurance policy must name “CTE and the State of California, the California Air Resources Board, and each of its and their officers, agents, and employees as additional insureds” by an endorsement that states the names exactly as stated above in this Agreement. A blanket additional insured endorsement is not acceptable. A Waiver of Subrogation or Right to Recover endorsement in favor of CTE and the State of California must also be attached to the certificate.
b. Automobile Liability – If CONTRACTOR or any subcontractor of CONTRACTOR will be using vehicles to complete the Project or driving a vehicle onto State property, automobile liability insurance is required. For vehicles used in a CARB-funded shared mobility services (e.g., electric bikes and scooters, carshare vehicles, shuttles, and buses), the CONTRACTOR and each subcontractor shall maintain motor vehicle liability with limits of not less than a $5,000,000 per accident. For any other vehicle that is not used in a CARB-funded shared mobility service (e.g., vehicles used for project planning, rebalancing, maintenance, marketing, outreach, or driving to events), the CONTRACTOR and each subcontractor shall maintain motor vehicle liability with limits of not less than $1,000,000 per accident. Such insurance shall cover liability arising out of a motor vehicle including owned, hired, and non-owned motor vehicles. At the request of CTE, the CONTRACTOR and each subcontractor must show proof of automobile liability. Failure to provide proof upon request will result in the termination of this Agreement. For any work or activity performed or carried out in whole or in part using Grant Funds or to carry out any term or condition of this Agreement, each insurance policy must name “CTE, the State of California, the California Air Resources Board, and each of its and their officers, agents, and employees as additional insureds” by an endorsement that states the names exactly as stated above in this Agreement. A blanket additional insured endorsement is not acceptable.
A Waiver of Subrogation or Right to Recover endorsement in favor of CTE and the State of California must also be attached to the certificate.
i. In the event that the Fleet Owner maintains business automobile liability insurance, the insurance policy must name “CTE, the State of California, the California Air Resources Board, and each of its and their officers, agents, and employees as additional insureds” by endorsement that states the names exactly as stated above in this Agreement. A blanket additional insured endorsement is not acceptable.
ii. By signing this Agreement, CONTRACTOR certifies that CONTRACTOR and any employees, subcontractors or servants possess valid automobile coverage in
accordance with California Vehicle Code Sections 16450 to 16457, inclusive.
CTE and/or the State reserves the right to request proof at any time. iii. In addition to the insurance requirements listed above, CONTRACTOR must supply specific coverage for Electric Bikes and Scooters, with a limit of at least $5,000,000. Proof of coverage can be submitted in two ways:
1. If coverage is from an Electric Bike and Scooter insurance carrier, only the certificate of insurance is required showing specific insurance for Electric Bikes and Scooters; OR,
2. If coverage is endorsed to the General Liability policy, insurance company must supply a separate endorsement showing proof of Electric Bike and Scooter Coverage.
iv. Either policy must name, by endorsement, “CTE, the State of California, the California Air Resources Board, and each of its and their officers, agents, and employees as additional insureds with respect to liability arising out of work or operations performed by or on behalf of any recipient of CARB funds including any electric bikes and scooters in connection with any such work or operations.” The endorsement must state the names exactly as stated above in this Agreement.
A blanket additional ensured endorsement is not acceptable. A Waiver of Subrogation or Right to Recover endorsement in favor of CTE and the State of California must also be attached to the certificate.
c. Workers Compensation and Employers Liability – CONTRACTOR and each subcontractor shall maintain statutory worker’s compensation and employer’s liability coverage for all its employees who will be engaged in the performance of this Agreement. In addition, employer’s liability limits of $1,000,000 are required. A Waiver of Subrogation or Right to Recover endorsement in favor of CTE and the State of California must be attached to the certificate.
d. Crime Insurance – Crime insurance requirements are negotiable at CARB’s sole discretion.
At a minimum, the maximum amount of funding that CONTRACTOR and each subcontractor will have on hand at any time should be covered. Coverage shall include but not be limited to employee dishonesty, theft, forgery or alteration, and inside/outside money and securities coverages including first and third party theft for State-owned or leased property in the care, custody, and/or control of the CONTRACTOR. The policy shall include as loss payee, CTE, the State of California, California Air Resources Board.
For any work or activity performed or carried out in whole or in part using Grant Funds or to carry out any term or condition of this Agreement, each insurance policy must name “CTE, the State of California, the California Air Resources Board, and each of its and their officers, agents, and employees as additional insureds” by an endorsement that states the names exactly as stated above in this Agreement. A blanket additional insured endorsement is not acceptable. A Waiver of Subrogation or Right to Recover endorsement in favor of CTE and the State of California must also be attached to the certificate. e. Non-Profit Organization with Volunteers Only (applicable to non-profit organizations only): A Volunteer Accident Insurance Policy with a limit not less than $1,000,000. The policy shall contain a waiver of subrogation in favor of CTE and the State of California, if such endorsement is available in the open market. Said policy shall be issued by an insurance company with a rating which is acceptable to the Department of General Services, Office of Risk, and Insurance Management. CTE and/or CARB reserves the right to review and adjust insurance requirements as necessary during the Term of this Agreement.
f. Cyber Liability coverage, with limits not less than $2,000,000 per occurrence or claim:
Coverage shall be sufficiently broad to respond to the duties and obligations as is
undertaken by CONTRACTOR under this Agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs, regulatory fines, and penalties, as well as credit monitoring expenses. The Policy shall include or be endorsed to include property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of CTE or the state of California in the care, custody, or control of the CONTRACTOR. For any work or activity performed or carried out in whole or in part using Grant Funds or to carry out any term or condition of this Agreement, each insurance policy must name “CTE, the State of California, the California Air Resources Board, and each of its and their officers, agents, and employees as additional insureds” by an endorsement that states the names exactly as stated above in this Agreement. A blanket additional insured endorsement is not acceptable. A Waiver of Subrogation or Right to Recover endorsement in favor of CTE and the State of California must also be attached to the certificate.
g. Professional Liability (Errors and Omissions): Insurance appropriate to the CONTRACTOR’s profession, with limit no less than $2,000,000 per occurrence or claim, $5,000,000 aggregate. For any work or activity performed or carried out in whole or in part using Grant Funds or to carry out any term or condition of this Agreement, each insurance policy must name “CTE, the State of California, the California Air Resources Board, and each of its and their officers, agents, and employees as additional insureds” by an endorsement that states the names exactly as stated above in this Agreement. A blanket additional insured endorsement is not acceptable. A Waiver of Subrogation or Right to Recover endorsement in favor of CTE and the State of California must also be attached to the certificate.
h. Self-insurance – If a CONTRACTOR has elected to be self-insured it must receive approval of its self-insurance program from the DGS Office of Risk and Insurance Management (ORIM). To obtain ORIM approval, CONTRACTOR must submit the following documents to ORIM.
i. Workers’ Compensation – CONTRACTOR will provide a copy of its Certificate of Consent to Self-Insure from the Department of Industrial Relations. ii. All Other – CONTRACTOR’s Risk Manager, or comparable position holder, shall provide a written description of the plan including what is covered, what is not covered, identify the financial limits of the plan, and identify the source of funds for financing the plan.
1. Provide the firm’s most recent audited annual financial statement including all accounting letters. The report must show the firm’s owner’s equity of at least $5,000,000 and annual profit of at least $500,000.
2. Provide a signed written statement from the firm’s CPA confirming the annual net profit for each of the prior 4 years has been at least $500,000.
i. Harbors, Ports, Waterways, Vessel, Watercraft -- If CONTRACTOR or any of the CONTRACTOR’s subcontractors (funded in whole or in part with any Grant Funds) will be working with, on, in or around any harbor, dock, marina, port or waterway or will be working with, building, designing, deploying, developing, operating or using any form of watercraft or vessel, then in addition to all other insurance coverage required in this
Agreement, the CONTRACTOR and said subcontractors shall also carry the following insurance coverage:
i. Marine General Liability (MGL) insurance, with no waterborne exclusions, and with a limit of not less than$5,000,000 per occurrence/$5,000,000 aggregate.
MGL shall include, at a minimum, coverage for:
1. Premises Liability
2. Contractual Liability
3. Products and Completed Operations
4. Bodily Injury and Property Damage
5. Vessel Owner/Operator Liability
6. Sudden and Accidental Pollution
7. Vessel Hull & Machinery (H&M)
8. Marina Operators Legal Liability
9. Terminal Operators/Wharfingers Liability with a limit of not less than $10,000,000 per claim/$10,000,000 aggregate.
10. United States Longshore and Harbor Workers Compensation Act (USL&H) with statutory limits, for work that will take place on or over a navigable waterway.
11. Maritime Employers Liability (MEL) with a limit of liability of not less than $1,000,000 per claim, for underwater or diving activity.
Grantee and Recipients shall only use commercially certified divers for underwater or diving activities.
12. Protection & Indemnity (P&I) (including crew and passengers) with a limit of liability of not less than $1,000,000 per claim for vessels carrying less than 25 persons (passengers or crew), and a limit of liability of not less than$10,000,000 per claim for vessels carrying greater than 25 persons (passengers or crew).
13. Vessel Pollution Liability with a limit of liability of not less than $1,000,000 per claim for vessels carrying less than 25 persons (passengers or crew), and a limit of liability of not less than $10,000,000 per claim for vessels capable of carrying greater than 25 persons (passengers or crew).
ii. For any work or activity performed or carried out in whole or in part using Grant Funds or to carry out any term or condition of this Agreement, each insurance policy must name “CTE, the State of California, the California Air Resources Board, and each of its and their officers, agents, and employees as additional insureds” by an endorsement that states the names exactly as stated above in this Agreement. A blanket additional insured endorsement is not acceptable. A Waiver of Subrogation or Right to Recover endorsement in favor of CTE and the State of California must also be attached to the certificate.
14)INDEMNIFICATION
CONTRACTOR agrees to indemnify, defend, and hold harmless the State of California, CTE and their officers, Board members (when applicable), employees, agents, representatives, and successors- in-interest from:
1) any and all claims, losses, and expenses, including reasonable attorneys’ fees, accruing or resulting to CONTRACTOR and to any and all CONTRACTOR’s subcontractors, materialmen, laborers, and any other person, firm, or corporation furnishing or supplying work, services, materials, or supplies in connection with the performance of this Agreement; and
2) from any and all claims, losses, and expenses, including reasonably attorneys’ fees, accruing or resulting to any person, firm, or corporation who may be injured or damaged by the CONTRACTOR in the performance of this Agreement or out of the operation of equipment that is purchased with funds from this Agreement.
CONTRACTOR shall ensure that the same or substantially and materially the same indemnification requirements in favor of CTE and the State of California are set out in each subcontractor agreement. 15) INDEPENDENT CONTRACTOR
CONTRACTOR, its agents, employees, affiliates, subcontractors, suppliers, officers, and assigns, if any, in their, its, his or her performance of this Agreement, shall act in an independent capacity and not as officers, employees or agents of CTE, CEC, CARB or the State of California.
CONTRACTOR, its officers, employees, agents, representatives, or subcontractors shall in no sense be considered employees or agents of CTE, nor shall CONTRACTOR, its officers, employees, agents, representatives, or subcontractors be entitled to or eligible to participate in any benefits, privileges, or plans, given or extended by CTE to its employees. CTE will not supervise, direct, or have control over, or be responsible for, CONTRACTOR’s or their subcontractor's means, methods, techniques, work sequences or procedures or for the safety precautions and programs incident thereto, or for any failure by them to comply with any local, state, or federal laws, or rules or regulations, including state minimum wage laws and OSHA requirements. CONTRACTOR shall promptly notify CTE of any material changes to subcontracts that affect the Agreement’s scope of work, deliverable schedule, and/or payment/cost schedule.
16) KEY PERSONNEL
CONTRACTOR’s key Project personnel, as identified in the Project Proposal, will participate in an initial Project kick-off meeting and periodic review meetings. Any changes to key personnel, require prior written approval from CTE, CARB, and CEC. Any work performed by new key personnel without prior written approval is at CONTRACTOR’s sole risk and may not be reimbursed.
17) INTELLECTUAL PROPERTY
CONTRACTOR grants CARB and CEC any and all rights and/or ownership of any webpage(s), websites, social media, patents, software, databases, program data, copyrights, tradenames, data, metadata, trademarks, computer programs, art or artwork, publications, writing, photos, images, sound recordings, film and other media or other intellectual property (collectively and each the “Intellectual Property”) developed, created or purchased using Grant Funds (in whole or part) for the purposes of administering or implementing the Project.
18) COMPLIANCE WITH AIR QUALITY LAWS
CONTRACTOR understands, acknowledges, and agrees that compliance with all applicable federal, State, and local air quality rules, regulations and statutes is a precondition to the receipt or use of any State funds provided by or through the California Air Resources Board (CARB), and is a continuing obligation for the consecutive five (5) years following receipt of any State funds on a rolling continuous basis. CONTRACTOR understands, acknowledges and agrees that a failure to comply in whole or in part with any local, State or federal air quality rules, regulations or statutes, or a failure to comply, in whole or in part, with any of the requirements or obligations under the Project or program, this Agreement, contract, subcontract, award, voucher, or grant (as applicable) is, in each instance, a material breach of the conditions under which State funds were provided or made available, and such breach will result in undue hardship and damages to CTE and the State of California some or all of which may be impossible to easily calculate.
19) CONFIDENTIAL INFORMATION / CONFIDENTIALITY
a) Definitions. For the purposes of this Section, the following terms shall have the meanings set forth below:
i) “confidential information” refers to information that CEC, CARB, or CTE has designated as confidential pursuant to Title 20 CCR Section 2505 et seq., information CEC, CARB, or CTE has otherwise deemed or stated to be confidential, and other information exempt from public disclosure under the provisions of the California Public Records Act or other applicable state or federal laws.
ii) “personal information” (PI) refers to information that meets the definition of “personal information” in California Civil Code section 1798. .3(a) or one of the data elements set forth in California Civil Code section 1798.29(g)(1) or (g)(2) iii) CEC’s “special terms for confidential information” refers to CEC’s special terms and conditions for the receipt of confidential information and personal information. b) CTE, CARB, and CEC Confidential Information. CONTRACTOR agrees to keep confidential any CTE, CARB, and CEC confidential information, to include all information, deliverables, and work products developed or collected pursuant to this Project, technical data, electronic files, and other written or oral information not in the public domain or not previously known and will not disclose any such data to any other party without prior written consent unless required by law.
CONTRACTOR shall use confidential information solely for the purpose of performing its obligations under this Agreement. Notwithstanding the above, in the event CONTRACTOR is required by deposition, interrogatory, subpoena, or request for documents under the California Public Records Act to disclose information or data received or generated under this Agreement, CONTRACTOR shall provide a prompt written notice prior to disclosure with sufficient time (no less than 10 calendar days) for the affected Party to challenge or stay any release in an appropriate court of law.
a) Storage and Handling. CONTRACTOR represents and warrants that its data and information security standards, tools, technologies, and procedures are sufficient to protect Project confidential information and in compliance with the obligations outlined in Article 13.13(w) of the Sample Carb Grant Agreement included in the Solicitation Package. b) Personal Information (PI).
i) If CONTRACTOR will receive confidential information or PI from CEC, CARB, or CTE for the performance of this Agreement, CONTRACTOR must first agree to and comply with CEC’s special terms for confidential information, included in the CEC Agreement. ii) CONTRACTOR must not share or request PI or application records or supporting documentation that personally identifies or describes an individual or individuals, without prior written permission from CTE and certification that it complies with all applicable storage, encryption, and management requirements in accordance with California State Administrative Manual 5350.1 and California Statewide Information Management Manual 5305-A.
c) CONTRACTOR shall comply with all CARB/CEC Agreement terms regarding confidential information and assumes all responsibility and liability for the security and confidentiality of PII and confidential information under its control and agrees that it shall be responsible for all costs incurred by CTE, CARB, or CEC due to a security incident resulting from the acts or omissions of CONTRACTOR or any of its employees, agents, officers, or subcontractors, including any acts or omissions resulting in an unauthorized disclosure, release, access, review, or destruction of data or information; or loss, theft or misuse of information or data developed or gathered pursuant to this Agreement. CONTRACTOR shall immediately notify CTE if it experiences a loss or breach and, where required by applicable law, to State or federal officials. d) CONTRACTOR must flow-down CEC’s special terms and conditions for confidential information to any subrecipients, subcontractors, vendors, or other project partners that will be provided access to confidential information before such access is granted.
e) Exceptions. Data gathered on actual emissions to the air as part of the demonstration Project cannot be protected from disclosure.
20) PUBLICATIONS
a) CARB Requirements
Where applicable, CONTRACTOR agrees to acknowledge the California Climate Investments (CCI) program and CARB as a funding source and adhere to the CCI Funding Guidelines as outlined in the California Climate Investments Messaging and Communications Guide (https://www.caclimateinvestments.ca.gov/logo-graphics-request). Below are specifics requirements for acknowledgement.
Contractor agrees to include the CCI funding boilerplate and logo (see Figure 1) on all outreach and public facing materials whenever projects funded, in whole or in part by this Grant Agreement, are publicized in any news media, websites, brochures, publications, audiovisuals, or other types of promotional material.
The acknowledgement must read as follows: ‘[PROGRAM/PROJECT NAME] is part of California Climate Investments, a statewide initiative that puts billions of Cap-and-Trade dollars to work reducing greenhouse gas emissions, strengthening the economy, and improving public health and the environment – particularly in disadvantaged communities.’ and whenever applicable, the Spanish translation acknowledgement: ‘[NOMBRE DEL PROGRAMA/PROYECTO]’ forma parte de las Inversiones del Clima de California, un iniciativa estatal que destine miles de millones de dólares de Cap-and-Trade para la reducción de gases de efecto invernadero, fortalecimiento de la economía y mejoramiento de la salud pública y el medio ambiente- especialmente en comunidades en desventaja.’ The CCI logo and name serves to bring under a single brand the many investments whose funding comes from the Greenhouse Gas Reduction Fund (GGRF). The logo represents a consolidated and coordinated initiative by the State to address climate change by reducing greenhouse gases, while also investing in disadvantaged communities and achieving many other co-benefits.
Figure 1: CCI logo
b) CEC Requirements.
No product or report produced as a result of work funded by this program shall be represented to be endorsed by the Energy Commission, and all such products or reports shall include the following statement:
LEGAL NOTICE
This document was prepared as a result of work sponsored by the California Energy Commission.
It does not necessarily represent the views of the Energy Commission, its employees, or the State of California. The Energy Commission, the State of California, its employees, contractors, and subcontractors make no warranty, express or implied, and assume no legal liability for the information in this document; nor does any party represent that the use of this information will not infringe upon privately owned rights.
21) CONFLICT OF INTEREST
By entering into this Agreement, CONTRACTOR is or may be a direct or indirect recipient (“Recipient”) of funds received from or provided by the California Air Resources Board (“CARB”), and as such certifies, represents and warrants that he, she, it is in compliance with all applicable State and federal conflict of interest laws on the date said Agreement is signed and shall remain in compliance with all such laws during the term of this Agreement, and during all extensions. Recipient further certifies, represents, and warrants that he, she, it has no interest, and shall not acquire any interest, direct or indirect, which will conflict with Recipient’s ability to impartially perform under, or complete any tasks outlined in this Agreement, the CARB/CEC Agreements, or the Project Proposal.
The Recipient acknowledges, understands, and accepts that Recipient must disclose any direct or indirect financial interest or situation which may pose an actual, apparent, or potential conflict of interest with its duties. The Recipient acknowledges, understands, and accepts that the nature and extent of any actual, apparent, or potential conflict of interest may be a basis for disqualification from receiving any funds or termination of this Agreement. The Recipient certifies, represents, and warrants that Recipient will immediately advise CTE in writing of any potential new conflicts of interest as they arise.
22) CERTIFICATIONS AND COMPLIANCE
a) During the performance of this Agreement, CONTRACTOR and its subcontractors, consultants and agents shall ensure that no person is, on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age (40 or over), mental disability, physical disability, medical condition, genetic information, marital status, veteran or military status, or sexual orientation, unlawfully denied full and equal access to the benefits of, or unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered under this Grant Agreement or funded with Grant Funds.
b) During the performance of this Grant Agreement, CONTRACTOR and its subcontractors, consultants, and agents shall not unlawfully discriminate against, harass, or allow harassment against any employee or applicant for employment, because of race, religious creed, color, national origin, ethnic group identification, ancestry, physical disability, mental disability, reproductive health decision making (e.g. family-care leave, medical-care leave, or pregnancy-disability leave), medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age (40 or over), sexual orientation, or veteran or military status, nor shall CONTRACTOR or any of its subcontractors, consultants or agents refuse to hire or employ any person or to refuse to select any person for a training program leading to employment, or bar or discharge any person from employment or from a training program leading to employment, or discriminate against any person in compensation or in terms, conditions, or privileges of employment because of race, religious creed, color, national origin, ethnic group identification, ancestry, physical disability, mental disability, reproductive health decision making (e.g. family- care leave, medical-care leave, or pregnancy-disability leave), medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age (40 or over), sexual orientation, or veteran or military status
c) CONTRACTOR and its subcontractors, consultants, and agents shall ensure that the evaluation and treatment of all persons receiving or applying for Grant Funds or participating in any Grant programs, projects, or activities, along with all respective employees and applicants for employment, are free of such discrimination and harassment.
d) CONTRACTOR and its subcontractors, consultants, and agents shall comply with the provisions of the California Fair Employment and Housing Act (Gov. Code section 12900 et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, title 2, section 10000 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code section 12990 (a)-(f), set forth in Chapter 5 of Division 4.1 of title 2 of the California Code of Regulations, are incorporated into this Agreement by this reference, and made part hereof as if set forth in full.
e) CONTRACTOR and its subcontractors, agents, and consultants shall give written notice of their respective obligations under this clause to labor organizations with which any may have a collective bargaining or other agreement. CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in all contracts, subcontracts, and agreements where work is performed to fulfill any term or condition of this Agreement. 23) PREVAILING WAGE
a)Compliance. CONTRACTOR, as a material term of this Agreement, shall be fully responsible for complying with all California public works requirements including but not limited to payment of prevailing wage. Therefore, as a material term of this Agreement, CONTRATOR must either:
i) Proceed on the assumption that the Project is a public work and ensure that:
(1) prevailing wages are paid; and
(2) the project budget for labor reflects these prevailing wage requirements; and (3) the project complies with all other requirements of prevailing wage law including but not limited to keeping accurate payroll records, and complying with all working hour requirements and apprenticeship obligations;
ii) Timely obtain a legally binding determination from DIR or a court of competent jurisdiction before work begins on the Project that the proposed Project is not a public work.
If CONTRACTOR is unsure whether the Project is a “public work” as defined in the California Labor Code, it may seek a determination from the California Department of Industrial Relations (DIR) or an appropriate court. If CONTRACTOR does not timely obtain a binding determination from DIR or a court of competent jurisdiction that the Project is not a public work, before commencing work, CONTRACTOR shall assume that the Project is a public work and that payment of prevailing wages is required and shall pay prevailing wages unless and until such time as the Project is subsequently determined to not be a public work by DIR or a court of competent jurisdiction.
b) Indemnification and breach. Any failure of CONTRACTOR or its subcontractors to comply with the Prevailing Wage requirements herein shall constitute a breach of this Agreement that excuses CTE’s performance of this Agreement, at CTE’s option, and shall be at CONTRACTOR’s sole risk. Furthermore, CONTRACTOR agrees to indemnify and hold harmless CTE, CARB, and CEC for any and all financial consequences arising out of or resulting from CONTRACTOR’s failure to pay prevailing wage or any CONTRACTOR’s subcontractors’ failure to pay prevailing wage.
c) Certification. CONTRACTOR shall certify to CTE on each request for payment, either that (1) prevailing wages were paid to eligible workers who provided labor for work covered by the payment request and that CONTRACTOR and all subcontractors otherwise complied with all California prevailing wage laws, or (2) that the Project is not a public work requiring the payment of prevailing wages. In the latter case, CONTRACTOR shall provide competent proof of a DIR or court determination that the Project is not a public work requiring the payment of prevailing wages.
24) REPORTING
CONTRACTOR acknowledges and agrees that this Project is subject to CEC and CARB project monitoring and reporting requirements, as further detailed in Attachments II and III. Required reporting includes, but is not limited to, Supporting Documentation, Status Reports, a Final Report, and Other Reporting, as defined in Article 9, Reporting and Documenting Expenditure of Grant Funds, of the CARB Grant Terms and Conditions and Article 6, Reports, of the CEC Grant Terms and Conditions. CONTRACTOR shall promptly and diligently comply with all reporting requests and provide CTE with any information, status, data, or results needed for any required monitoring. In addition, CONTRACTOR shall provide prompt notification of any circumstances that may place Project completion into jeopardy.
25) RECORDS AND AUDITS
a) Project Records. CONTRACTOR agrees that, at a minimum, its fiscal control and accounting procedures will be sufficient to permit tracing of Grant funds to a level of expenditure adequate to establish that such Grant funds have not been used in violation of CARB or CEC Grant Terms and Conditions. CONTRACTOR shall establish and maintain Project accounts in accordance with generally accepted accounting principles and CARB and CEC Grant terms and conditions including but not limited to those contained in Article 7.7, Article 7.8, Article 9 and Article 11 of the CARB Grant Terms and Conditions and Article 18 of the CEC Grant Terms and Conditions regarding fiscal management, Project records and adequate documentation of all significant actions relative to the Project. Such systems shall be sufficient to permit tracking of Project funds to a level of expenditure adequate to establish that such funds have not been used in violation of State law, CARB, or CEC Grant Terms and Conditions.
b) CONTRACTOR shall maintain records containing pertinent information (including billings, invoices, dates, length of time, services rendered, progress reports, records for nonexpendable personal property acquired with grant funds, etc.) for a period of five (5) years after expiration or termination of this Agreement.
c) Cooperation with Audits. CONTRACTOR agrees that CTE, CEC, CARB, the California Department of General Services, the California Department of Finance, the Bureau of State Audits, or any of their respective designated representatives shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement and all Grant Funds received. CONTRACTOR warrants, represents, and agrees to cooperate fully, without delay, in all audits, inquiries and investigations initiated by any of the above parties concerning or relating to compliance with local, State, or federal air quality laws, or this Agreement, including but not limited timely submission of any and all records requested and full cooperation with any on-site inspections.
d) Flow down. CONTRACTOR agrees to include a similar audit right of CTE and the State in any subcontracts related to performance of this Agreement.
26) SEPARATE ACCOUNTS
When holding Grant Funds, CONTRACTOR shall not commingle Grant Funds with any other accounts, revenues, grants, donations, or funds and must maintain all such grant or subgrant funds in a separate bank account designated specifically for the purposes of carrying out the intent and purpose for which said funds were provided. The bank account must be held in the name of the CONTRACTOR (the official legal entity’s name, and not a dba), and under no other name, person, or entity. Funds received are NOT the assets of the CONTRACTOR. Grant and subgrant funds shall not be used as collateral for or an obligation to any debt, loan or other commitments of CONTRACTOR, its officers, agents, assigns, contractors, subcontractors, subgrantees or affiliates. CONTRACTOR shall ensure that CTE is designated in writing as a third-party beneficiary of and to all such bank
accounts in which said funds are maintained or held. Any interest earned on any held funds must be expended on eligible program costs or returned to the funding agency. 27) OVERSIGHT AND ACCOUNTABILITY
a) CTE, or its designed, reserves the right to audit at any time during the duration of this Agreement CONTRACTOR’s costs of performing and to refuse payment of any reimbursable costs or expenses that in the opinion of CTE or its designee are unsubstantiated or unverified.
CONTRACTOR shall cooperate with CTE or its designee including, but not limited to, promptly providing all information and documents requested, such as all financial records, documents, and other information pertaining to reimbursable costs, and any matching costs and expenses. b) CONTRACTOR shall comply with all oversight responsibilities and CTE, CARB, CEC, or their designee may recoup Grant Funds that were received based on misinformation or fraud, or as otherwise allowed under any other term or condition of this Agreement, the CARB Grant Terms and Conditions, the CEC Grant Terms or Conditions, or State law. c) CONTRACTOR represents, warrants, and agrees that upon notification by CTE or its authorized representative of an overpayment, a wrongful payment, or a violation of or failure to comply with any of the CARB or CEC Grant Terms and Conditions, the terms of this Agreement, the Solicitation Document terms, voucher or program requirements or obligations, CONTRACTOR will, without challenge or delay, remit to CTE or its authorized representative the requested amount within 60 calendar days from the date of issuance of said notice. 28) EQUIPMENT/VEHICLE OWNERSHIP
a) All personal property (including Equipment) and all real property acquired by CONTRACTOR or any of its subcontractors during the Term of this Agreement using, in whole or in part, any Grant Funds, is, upon acquisition, the exclusive property of CARB or CEC (whichever Grant Funds were utilized). Equipment is defined as having a useful life of at least three years from the date of purchase, having an acquisition unit cost of at least $5,000, and includes any products, objects, vehicles, computers, Intellectual Property, hardware, licenses, vessels, engines, machinery, apparatus, implements, or tools purchased, used, or constructed within the Term. CEC or CARB, within their discretion, may elect to determine the normal useful life of any real or any personal property which may be more than three years. All such real and personal property shall be used solely for the purposes of carrying out the obligations of this Agreement. b) If requested by CARB or CEC, the real or personal property shall be returned upon cancellation, termination, or expiration of this Agreement, whichever occurs first, and CARB and/or CEC shall solely determine the future use of all such real and personal property (inclusive of Equipment).
CONTRACTOR understands that CARB/CEC will not make any claims as to ownership of any vehicles, vessels, equipment, or infrastructure funded by Grant Funds, unless CONTRACTOR fails to perform or fulfill their commitments as set out in the Project Proposal and/or the executed CARB/CEC Grant. After expiration or termination of the Agreement, all acquired real and personal property that remains the property of CONTRACTOR shall continue to be used exclusively for the benefit of the Project, and shall NOT be sold, repurposed, abandoned, transferred, disassembled, destroyed, donated, leased, or used as security for a debt or collateral for a loan.
c) Vehicle Charging Infrastructure and Equipment. If CONTRACTOR utilizes Grant funds under this Agreement to install electrical charging equipment for use by on-road transportation vehicles, CONTRACTOR must obtain and provide:
a. An Assembly Bill (AB) 841 Certification that certifies the Project will comply with all AB 841 (2020) requirements or describes why the AB 841 requirements do not apply to the Project. The certification shall be signed by CONTRACTOR’s authorized representative.
b. Electric Vehicle Infrastructure Training Program (EVITP) Certification Numbers of each EVITP certified electrician that will install electric vehicle charging infrastructure or equipment.
29) FORCE MAJEURE
Neither CTE nor CONTRACTOR shall be liable for or deemed to be in default for any delay or failure in performance under this Agreement or interruption of services resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy or hostile governmental action, strikes, labor disputes, pandemics, fire or other casualty, inability to obtain labor or materials or reasonable substitutes for labor or materials necessary for performance of the services, or other causes, except financial, that are beyond the reasonable control of CTE or CONTRACTOR. Notwithstanding the above, if the cause of the force majeure event is due to a Party’s own action or inaction, then such cause shall not excuse that Party from performance under this Agreement. If either party intends to invoke this clause to excuse or delay performance, the party invoking the clause must provide written notice to the other party immediately but no later than within fifteen (15) calendar days of when the force majeure event occurs and reasons that the force majeure event is preventing that party from or delaying that party in performing its obligations under this Agreement. CTE may terminate this Agreement immediately in writing without penalty in the event CONTRACTOR invokes this clause.
If this Agreement is not terminated by CTE pursuant to this clause, upon completion of the event of force majeure, CONTRACTOR must recommence the performance of its obligations under this Agreement. CONTRACTOR must also provide a revised schedule to minimize the effects of the delay caused by the event of force majeure. An event of force majeure does not relieve a party from liability for an obligation which arose before the occurrence of that event nor is any Party relieved from those obligations which survive termination of this Agreement. 30) SITE VISITS
CTE, CARB, CEC and/or their designees have the right to make site visits at reasonable times to review Project accomplishments and management control systems and to provide technical assistance, if required. CONTRACTOR must provide and must require subcontractors to provide reasonable facilities and assistance for the safety and convenience of the representatives in the performance of their duties. All site visits and evaluations must be performed in a manner that does not unduly interfere with or delay the work.
31) AMERICANS WITH DISABILITIES ACT (ADA)
CONTRACTOR must ensure that all products and services submitted to CTE and/or CARB or CEC, uploaded, or otherwise provided to or funded under this Agreement, or offered to or made available to the public by CONTRACTOR or any of its subcontractors, including but not limited to data, software, plans, drawings, specifications, reports, operating manuals, notes and other written or graphic work prepared in the course of performance of this Project (collectively, the “Work”), comply with Web Content Accessibility Guidelines 2.0 levels A and AA, and otherwise meet the accessibility requirements set forth in California Government Code Sections 7405 and 11135, the federal Americans with Disabilities Act (42 U.S.C. §12101 et seq.), and Section 508 of the federal Rehabilitation Act (29 U.S.C. §794d) and the regulations promulgated thereunder (36 C.F.R. Part 1194) (collectively, the “Accessibility Requirements”). For any Work provided in PDF format, CONTRACTOR, along with its subcontractors, shall also provide an electronic version in the original electronic format (for example, Microsoft Word or Adobe InDesign). CONTRACTOR agrees to respond to and resolve, at no cost to CTE, any complaint brought to its attention regarding accessibility of deliverables under this Agreement.
32) FUNDING PROHIBITIONS
CONTRACTOR may use or authorize the use of Project funds only in any manner that is consistent with applicable laws, including California Constitution, article XVI, section 5, article IX, section 8, and federal law. CTE and CARB reserve the right to obtain additional information from CONTRACTOR and others to determine compliance with California Constitution, article XVI, section 5 and article IX, section 8. Failure to provide any requested information may result in denial of Administrative Fees, Grant Funds, future or termination of this Agreement or any other agreements.
33) AUTHORIZED SIGNATURE
CONTRACTOR agrees and acknowledges that it has signed or has authorized the signing of this Agreement with CTE, and by doing so hereby declares under penalty of perjury, under the laws of the State of California, that all statements and responses made in said grant, proposal, award, and/or this Agreement are true and correct, with full knowledge that all statements and responses are subject to investigation and that any incomplete, unclear, false, or dishonest response may be grounds for disqualification from receiving any existing or further funding or participating in any programs or projects using the CARB-provided or CEC-provided funds, or from doing business with the State of California or with CTE. CONTRACTOR acknowledges, understands, and accepts that by providing or making any false statements or providing false information, CONTRACTOR may be in a violation of the California False Claims Act (Government Code Section 12650 et seq.). CONTRACTOR certifies, represents, and warrants that the individual signing on its, his or her behalf herein below is an authorized representative of CONTRACTOR with full power and legal authority to sign below and by said signature CONTRACTOR is bound to and will comply with all terms, conditions and obligations set forth in this Agreement, grant, voucher, application and/or contract, as applicable. 34)MISCELLANEOUS
A.Amendment. No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or agreement not incorporated in the Agreement is binding on any of the parties.
B.Assignment. Neither Party may assign, in whole or part, its respective rights or duties under this agreement to any third Party (except to a successor in interest to substantially all of the business of the assignor or those otherwise enumerated herein) without the prior written consent of the other Party.
C.Assurances. CTE reserves the right to seek further written assurances from CONTRACTOR that Work performed will be performed consistent with the terms of this Agreement.
D.Child Support Compliance Act. CONTRACTOR acknowledges that: (1) it recognizes the importance of child and family support obligations and shall fully comply with all applicable State and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with section 5200) of Part 5 of Division 9 of the Family Code; and (2) to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department.
E.Clayton Act, Cartwright Act Claims. CONTRACTOR assigns to CARB all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) and, where applicable, under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from or relating to any and all purchases of goods, materials, or services by CONTRACTOR relating to their CARB/CEC Grant Agreement obligations.
F.Compliance with Laws. CONTRACTOR must prepare and obtain any required permits and environmental documents and shall comply with all applicable federal, state, and local laws, ordinances, codes, regulations and orders of public authorities in the performance of this Agreement. For Work involving installation or construction services, CONTRACTOR agrees that only licenses professionals will be used to perform services under this Agreement where such services are called for and licensed professionals are required for those services under California law.
G.Counterparts. This Agreement may be executed and delivered in any number of counterparts, each of which, when executed and delivered, shall be deemed an original, and all of which together shall constitute the same contract.
H.Drug Free Workplace. By signing this Agreement, CONTRACTOR certifies under penalty of perjury under the laws of the State of California that CONTRACTOR will comply with the requirements of the Drug-Free Workplace Act of 1990 (Government Code Section 8350 et seq.) and will provide a drug-free workplace by taking the actions outlined in the CEC Agreement, Article 11, subsection c, Drug-Free Workplace Certification.
I.Due Diligence. CONTRACTOR agrees to take timely actions which, taken collectively, move this Project to completion.
J.Entire Agreement. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter of the Agreement and supersedes all previous oral and written agreements, understandings, and communications of the Parties relating to such matters.
K.Environmental Justice. In the performance of this Agreement, CONTRACTOR shall conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures the fair treatment of people of all races, cultures, and income levels, including minority populations and low-income populations of the State.
Equal access includes, but is not limited to, ensuring language barriers are fully addressed to the satisfaction of CARB and as otherwise required by local, state, or federal law.
L.Governing Law. This Agreement will be governed by and constructed in accordance with the laws of the State of California, USA, without regard to the conflict of laws principles thereof. Any action arising out of this Agreement shall be filed and maintained in the Superior Court in and for the County of Los Angeles, California, or in the United States District Court in and for the Central District of California.
M.Headings. Headings on the clauses of this Agreement are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Agreement.
N.Office of Foreign Asset Control. CONTRACTOR represents, warrants, and agrees that neither CONTRACTOR nor any of its subcontractors, affiliates, agents, employees, officers, representatives, or assigns are in violation of any federal law or laws pertaining to any entity or individual listed on any of the Office of Foreign Assets Control (“OFAC”) lists.
O.Order of Precedence. In the event of any inconsistency between the exhibits, attachments, specifications, or provisions which constitute this Agreement, the following order of precedence shall apply:
a. CARB Grant Agreement Cover Sheet
b. CARB/CEC Grant Terms and Conditions
c. This Agreement
d. CONTRACTOR Statement of Work
e. CARB/CEC Solicitation Packages
f. All other Exhibits incorporated into the Grant Agreement as listed on the Grant Agreement Cover Sheet
P.Priority Populations. CONTRACTOR, for the purposes of this Project, will ensure that the Project benefits designated priority populations, as identified by CalEnviroScreen 4.0.
Q.Russia Sanctions. On March 4, 2022, Governor Gavin Newsom issued Executive Order N-6- 22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. “Economic Sanctions” refers to sanctions imposed by the U.S. government in response to Russia’s actions in Ukraine, as well as any sanctions imposed under State law.
By their signature below, CONTRACTOR certifies that they are not a target of Economic Sanctions and understands and agrees that if it is later determined they are a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that it shall be grounds for termination of this Agreement.
R.Severability. Should any part of this agreement be rendered or declared invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity of any other provision, which shall remain in full force and effect.
S.Subcontracting. CONTRACTOR may subcontract with third party providers in performance of specific tasks included in CONTRACTOR’s Statement of Work. In the event that subcontractors are used, CONTRACTOR must notify CTE of the intent to use subcontractors and obtain CTE approval. CONTRACTOR shall ensure subcontractor adherence to the same quality standards and assurances required of CONTRACTOR, including adherence to applicable Federal Terms and Conditions and non-disclosure agreements.
T.Survival of Terms. CONTRACTOR acknowledges, agrees, and accepts that those terms, conditions, provisions, and exhibits which by their nature should survive termination, cancellation or expiration of the grant, award, contract, voucher, subcontract, or this Agreement, shall so survive, including but not limited to those sections and provisions pertaining to indemnity, records and audits, oversight and accountability, third party beneficiary status, return or recapture of funds, data security, insurance, confidentiality, and the general provisions.
U.Timeliness. Time is of the essence in this Agreement. CONTRACTOR shall proceed and complete their Work under the Project in an expeditious and timely manner.
V.Non-limitation. Nothing stated herein above in any way limits, prevents, or precludes the State of California or CTE from taking any enforcement action, exercising any police power, or prosecuting any violation of law against CONTRACTOR, its employees, officers, agents, assigns, representatives, contractors, subcontractors, affiliates, grantees, sub awardees, subgrantees, or any third parties.
W.Waiver. No waiver of any rights with respect to a default or other matter arising under this Agreement shall be held to be a waiver of any of rights with respect to any other default or matter. All remedies afforded in this Agreement shall be taken and construed as cumulative, that is, in addition to every other remedy provided therein or by law.
IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly authorized representatives on the day and year first written above.
Center for Transportation & the
Environment (CTE):
By:
Title:
Date:
Read, agreed to, and accepted by City of
Glendale:
By:
Title:
Date:
Enclosures:
Attachment I: CONTRACTOR Statement of Work
Attachment II: CARB Grant Terms & Conditions (“CARB Agreement”) Attachment III:CEC Grant Terms & Conditions (“CEC Agreement”) Attachment IV: Project Proposal
Attachment I: CONTRACTOR Statement of Work
Attachment II: CARB Grant Terms & Conditions (“CARB Agreement”)
Attachment III: CEC Grant Terms & Conditions (“CEC Agreement”)
Attachment IV: Project Proposal