362
CITY OF LATHROP — FOR THE PURCHASE OF SOFTWARE AND ENTERPRISE LICENSE AND MAINTENANCE SERVICE, CIP PS 23- 01
CONSULTANT shall be paid any uncontested sum due and payable within thirty 30) days of receipt of billings containing all information pursuant to Paragraph 5 below. Compensation for any task must be equal to or less than the percentage of task complete. In no event shall CONSULTANT be entitled to compensation for work not included in Exhibit "A", unless a written change order or authorization describing the extra work and payment terms has been executed by CITY' s authorized representative prior to the commencement of the work. Payment is made based on a time and materials basis.
3) Effective Date and Term
The effective date of this Agreement is March 11, 2024, and it shall terminate no later than March 31, 2034.
4) Independent Contractor Status
It is expressly understood and agreed by both parties that CONSULTANT, while engaged in carrying out and complying with any of the terms and conditions of this Agreement, is an independent contractor and not an employee of the CITY. As an independent contractor, CONSULTANT is responsible for controlling the means and methods to complete the scope of work described in Exhibit " A" to City' s satisfaction. CONSULTANT expressly warrants not to represent, at any time or in any manner, that CONSULTANT is an employee of the CITY. 5) Billings
CONSULTANT shall submit invoices for completed work on a monthly basis, or as otherwise agreed, providing without limitation, details as to amount of hours, individual performing said work, hourly rate, and indicating to what aspect of the Scope of Services said work is attributable. CONSULTANT' Sbills shall include a list of all tasks, a total amount due, the amounts previously billed, and the net amount due on the invoice. Except as specifically authorized by CITY, CONSULTANT shall not bill CITY for duplicate services performed by more than one person. In no event shall CONSULTANT submit any billing for an amount in excess of the rates or the maximum amount of compensation provided in section ( 2) for either task or for the entire Agreement, unless modified by a properly executed change order.
6) Advice and Status Reporting
CONSULTANT shall provide the CITY with timely reports, orally or in writing, of all significant developments arising during performance of its services hereunder, and shall furnish to CITY such information as is necessary to enable CITY to monitor the performance of this Agreement. CONSULTANT shall submit to CITY such reports, diagrams, drawings and other work products developed pursuant to the Scope of Services.
363
CITY OF LATHROP — FOR THE PURCHASE OF SOFTWARE AND ENTERPRISE LICENSE AND MAINTENANCE SERVICE, CIP PS 23- 01
7) Auditing
CITY reserves the right to periodically audit all charges made by CONSULTANT to CITY for services under this Agreement. Upon request, CONSULTANT agrees to furnish CITY, or a designated representative, with necessary information and assistance needed to conduct such an audit.
CONSULTANT agrees that CITY or its delegate will have the right to review, obtain and copy all records pertaining to performance of this Agreement. CONSULTANT agrees to provide CITY or its delegate with any relevant information requested and shall permit CITY or its delegate access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpose of determining compliance with the requirement. CONSULTANT further agrees to maintain such records for a period of three ( 3) years after final payment under this agreement. 8) Assignment of Personnel
capabilities
CONSULTANT
and on
acknowledges
the qualifications
that the
of CONSULTANT' s
CITY has relied
principals
on CONSULTANT' s
and staff as
identified in its proposal to CITY. The services shall be performed by, or under the direct supervision, of CONSULTANT' sAuthorized Representative: Ray Laigo.
CITY shall be notified by CONSULTANT of any change of its Authorized Representative, and CITY is granted the right of approval of all original, additional, and replacement personnel at CITY' ssole discretion, and shall be notified by CONSULTANT of any changes of CONSULTANT' sproject staff prior to any change.
CONSULTANT shall assign only competent personnel to perform services pursuant to this Agreement. If CITY asks CONSULTANT to remove a person assigned to the work called for under this Agreement, CONSULTANT agrees to do so immediately, without requiring the City to process a reason or explanation for its request. 9) Assignment and Subcontracting
It is recognized by the parties hereto that a substantial inducement to CITY for entering into this Agreement was, and is, the professional reputation and competence of CONSULTANT. Neither this Agreement nor any interest therein may be assigned by CONSULTANT without the prior written approval of CITY' S authorized representative. CONSULTANT shall not subcontract any portion of the performance contemplated and provided for herein, other than the subcontractors noted in the proposal, without prior written approval of the CITY' Sauthorized representative.
364
CITY OF LATHROP — FOR THE PURCHASE OF SOFTWARE AND ENTERPRISE LICENSE AND MAINTENANCE SERVICE, CIP PS 23- 01
10) Insurance
On or before beginning any of the services or work called for by any term of this Agreement, CONSULTANT, at its own cost and expense, shall carry, maintain for the duration of the Agreement, and provide proof thereof that is acceptable to the CITY the insurance specified in subsections (a) through (c) below with insurers and under forms of insurance satisfactory in all respects to the CITY. CONSULTANT shall not allow any subcontractor to commence work on any subcontract until all insurance required of the CONSULTANT has also been obtained for the subcontractor. Verification of this insurance shall be submitted and made part of this Agreement prior to execution.
a) Workers'
sole cost
Compensation.
and expense, maintain
CONSULTANT
Statutory
shall,
Workers'
at CONSULTANT' S
Compensation
Insurance and Employer' sLiability Insurance for any and all persons employed directly or indirectly by CONSULTANT. Said Statutory Workers' Compensation Insurance and Employer' sLiability Insurance shall be provided with limits of not less than one million dollars 1, 000,00). In the alternative, CONSULTANT may rely on a selfinsurance program to meet these requirements provided that the program of self- insurance complies fully with the provisions of the California Labor Code. The insurer, if insurance is provided, or the CONSULTANT, if a program of self- insurance is provided, shall waive all rights of subrogation against the CITY for loss arising from work performed under this Agreement.
b) Commercial General and Automobile Liability Insurance.
CONSULTANT, at CONSULTANT' Sown cost and expense, shall maintain commercial general and automobile liability insurance for the period covered by this Agreement in an amount not less than one million dollars ($ 1, 000,00) per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non -owned automobiles. Coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 ( ed. 11/ 88) and Insurance Services Office Automobile Liability form CA 0001 ( ed. 12/ 90) Code 1 ( any auto).
365
CITY OF LATHROP — FOR THE PURCHASE OF SOFTWARE AND ENTERPRISE LICENSE AND MAINTENANCE SERVICE, CIP PS 23- 01
Each of the following shall be included in the insurance coverage or added as an endorsement to the policy:
1) CITY, its officers, employees, agents, and volunteers are to be covered as insured with respect to each of the following:
liability arising out of activities performed by or on behalf of CONSULTANT, including the insider' s general supervision of CONSULTANT; products and completed operations of
CONSULTANT; premises owned, occupied or used by
CONSULTANT. The coverage shall contain no special
limitations on the scope of protection afforded to CITY, its officers, employees, agents, or volunteers.
ii) The insurance shall cover on an occurrence or an accident basis, and not on a claim made basis.
iii) An endorsement must state that coverage is primary insurance and that no other insurance affected by the CITY will be called upon to contribute to a loss under the coverage.
iv) Any failure of CONSULTANT to comply with reporting
provisions of the policy shall not affect coverage provided to CITY and its officers, employees, agents, and volunteers. v) Insurance is to be placed with California - admitted insurers with a Best' srating of no less than A: VII.
vi) Notice of cancellation or non -renewal must be received by CITY at least thirty days prior to such change.
c) Professional Liability. CONSULTANT, at CONSULTANT' Sown cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than Two Million Dollars ($ 2, 000,00) per claim made and per policy aggregate covering the licensed professionals' errors and omissions, as follows:
i) Any deductible or self -insured retention shall not exceed 250, 00 per claim.
ii) Notice of cancellation, material change, or non -renewal must be received by the CITY at least thirty days prior to such change shall be included in the coverage or added as an endorsement to the policy.
iii) The policy must contain a cross liability or severability of interest clause.
366
CITY OF LATHROP — FOR THE PURCHASE OF SOFTWARE AND ENTERPRISE LICENSE AND MAINTENANCE SERVICE, CIP PS 23- 01
iv) The following provisions shall apply if the professional liability coverages are written on a claims made form:
1. The retroactive date of the policy must be shown and must be before the date of the Agreement.
2. Insurance must be maintained and evidence of
insurance must be provided for at least five years after completion of the Agreement or the work, so long as
commercially available at reasonable rates.
3. If coverage is canceled or not renewed and it is not replaced with another claims made policy form with a
retroactive date that precedes the date of this
Agreement, CONSULTANT must provide extended
reporting coverage for a minimum of five years after
completion of the Agreement or the work. The CITY
shall have the right
cost, any extended
to
reporting
exercise
provisions
at the CONSULTANT' S
of the policy
should the CONSULTANT cancel or not renew the
coverage.
4. A copy of the claim reporting requirements must be
submitted to the CITY prior to the commencement of
any work under this Agreement.
d) Deductibles and Self -Insured Retentions. CONSULTANT shall disclose the self - insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. During the period covered by this Agreement, upon express written authorization of the CITY' s authorized representative, CONSULTANT may increase such deductibles or self -insured retentions with respect to CITY, its officers, employees, agents, and volunteers.
The CITY' s authorized representative may condition approval of an increase in deductible or self -insured retention levels upon a requirement that CONSULTANT procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them.
e) Notice of Reduction in Coverage. In the event that any coverage required under subsections ( a), (b), or (c) of this section of the Agreement is reduced, limited, or materially affected in any other manner, CONSULTANT shall provide written notice to CITY at CONSULTANT' Searliest possible opportunity and in no case later than five days after CONSULTANT is notified of the change in coverage.
367
CITY OF LATHROP — FOR THE PURCHASE OF SOFTWARE AND ENTERPRISE LICENSE AND MAINTENANCE SERVICE, CIP PS 23- 01
f) In addition to any other remedies CITY may have if CONSULTANT fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, CITY may, at its sole option:
1) Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
ii) Order CONSULTANT to stop work under this Agreement or withhold any payment which becomes due to CONSULTANT
hereunder, or both stop work and withhold any payment, until CONSULTANT demonstrates compliance with the
requirements hereof;
iii) Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies CITY may have and is not the exclusive remedy for CONSULTANT' Sbreach. 11) Indemnification - CONSULTANT' SResponsibility
As to the CONSULTANT' Swork hereunder, it is understood and agreed that ( a) CONSULTANT has the professional skills necessary to perform the work, (b) CITY relies upon the professional skills of CONSULTANT to perform the work in a skillful and professional manner, and ( c) CONSULTANT thus agrees to so perform.
Acceptance by CITY of the work performed under this Agreement does not operate as a release of said CONSULTANT from such professional responsibility for the work performed. It is further understood and agreed that CONSULTANT is apprised of the scope of the work to be performed under this Agreement and CONSULTANT agrees that said work can and shall be performed in a fully competent manner in accordance with the standard of care applicable to CONSULTANT' Sprofession.
CONSULTANT shall indemnify, defend, and hold CITY, its officers, employees, agents, and volunteers harmless from and against any and all liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused by the willful misconduct or negligent acts or omissions of CONSULTANT, its employees, subcontractors, or agents, or on account of the performance or character of this work, except for any such claim arising out of the negligence or willful misconduct of the CITY, its officers, employees, agents, or volunteers. It is understood that the duty of CONSULTANT to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance of insurance certificates and endorsements required under this Agreement does not relieve
368
CITY OF LATHROP — FOR THE PURCHASE OF SOFTWARE AND ENTERPRISE LICENSE AND MAINTENANCE SERVICE, CIP PS 23- 01
CONSULTANT from liability under this indemnification and hold harmless clause.
This indemnification and hold harmless clause shall apply whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages.
12) Licenses
If a license of any kind, which term is intended to include evidence of registration, is required of CONSULTANT, its employees, agents, or subcontractors by federal or state law, CONSULTANT warrants that such license has been obtained, is valid and in good standing, and CONSULTANT shall keep it in effect at all times during the term of this Agreement, and that any applicable bond has been posted in accordance with all applicable laws and regulations.
13) Business Licenses
CONSULTANT shall obtain and maintain a CITY of Lathrop Business License until all Agreement services are rendered and accepted by the CITY. 14) Termination
Either CITY or CONSULTANT may cancel this Agreement upon 30 days written notification to the other party. Upon termination, or completion of services under this Agreement, all information collected, work product and documents shall be delivered by CONSULTANT to CITY within ten ( 10) calendar days. 15) Funding
CONSULTANT agrees and understands that renewal of this agreement in subsequent years is contingent upon action by the City Council consistent with the appropriations limits of Article XIII ( B) of the California Constitution and that the Council may determine not to fund this agreement in subsequent years. 16) Notices
All contracts, appointments, approvals, authorizations, claims, demands, Change Orders, consents, designations, notices, offers, requests and statements given by either party to the other shall be in writing and shall be sufficiently given and served upon the other party if ( 1) personally served, ( 2) sent by the United States mail, postage prepaid, (3) sent by private express delivery service, or (4) in the case of a facsimile transmission, if sent to the telephone FAX number set forth below during regular business hours of the receiving party and followed with two ( 2) Days by delivery of a hard copy of the material sent by facsimile transmission. Personal service shall include, without limitation, service by delivery and service by facsimile transmission.
369
CITY OF LATHROP — FOR THE PURCHASE OF SOFTWARE AND ENTERPRISE LICENSE AND MAINTENANCE SERVICE, CIP PS 23- 01
To City: City of Lathrop
City Clerk
390 Towne Centre
Lathrop, CA 95330
Copy to: City of Lathrop
Department of Public Works
390 Towne Centre
Lathrop, CA 95330
MAIN: ( 209) 941- 7430
FAX: ( 209) 941- 7449
To Consultant:
17) Miscellaneous
SWARCO McCain, Inc.
2365 Oak Ridge Way
Vista, CA 92081
a) Consent. Whenever in this Agreement the approval or consent of a party is required, such approval or consent shall be in writing and shall be executed by a person having the express authority to grant such approval or consent. b) Contract Terms Prevail. All exhibits and this Agreement are intended to be construed as a single document. Should any inconsistency occur between the specific terms of this Agreement and attached exhibits, the terms of this Agreement shall prevail.
c) Controlling Law. The parties agree that this Agreement shall be governed and construed by and in accordance with the Laws of the State of California. d) Definitions. The definitions and terms are as defined in these specifications. e) Force Majeure. Neither party shall be deemed to be in default on account of any delay or failure to perform its obligations under this Agreement, which directly results from an Act of God or an act of a superior governmental authority.
f) Headings. The paragraph headings are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part of this Agreement.
g) Incorporation of Documents. All documents constituting the Agreement documents described in Section 1 hereof and all documents which may, from time to time, be referred to in any duly executed amendment hereto are by such reference incorporated in the Agreement and shall be deemed to be part of this Agreement.
370
CITY OF LATHROP — FOR THE PURCHASE OF SOFTWARE AND ENTERPRISE LICENSE AND MAINTENANCE SERVICE, CIP PS 23- 01
h) Integration. This Agreement and any amendments hereto between the parties constitute the entire Agreement between the parties concerning the Project and Work, and there are no other prior oral or written agreements between the parties that are not incorporated in this Agreement.
Modification of Agreement. This Agreement shall not be modified or be binding upon the parties unless such modification is agreed to in writing and signed by the parties.
Ownership of Documents. All documents, photographs, reports, analyses, audits, computer media, or other material documents or data, and working papers, whether or not in final form, which have been obtained or prepared under this Agreement, and which have been paid for in full by City for services required to produce said documents, shall be deemed the property of the CITY. Upon CITY' s request, CONSULTANT shall allow CITY to inspect all such documents during the CONSULTANT' sregular business hours.
k) Provision. Any agreement, covenant, condition, clause, qualification, restriction, reservation, term or other stipulation in the Agreement shall define or otherwise control, establish or limit the performance required or permitted or to be required of or permitted by either party. All provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions.
I) Severability. The invalidity in whole or part of any provision of this Agreement shall not void or affect the validity of any other provision of this agreement. If a court of competent jurisdiction finds or rules that any provision of this Agreement is void or unenforceable, the provisions of this Agreement not so affected shall remain in full force and effect. m) Status of CONSULTANT. In the exercise of rights and obligations under this Agreement, CONSULTANT acts as an independent contractor and not as an agent or employee of CITY.
CONSULTANT shall not be entitled to any rights and benefits accorded or accruing to the City Council members, officers or employees of CITY, and CONSULTANT expressly waives any and all claims to such right and benefits.
n) Successors and Assigns. The provisions of this Agreement shall inure to the benefit of, and shall apply to and bind, the successors and assigns of the parties.
o) Time of the Essence. Time is of the essence of this Agreement and each of
371
CITY OF LATHROP — FOR THE PURCHASE OF SOFTWARE AND ENTERPRISE LICENSE AND MAINTENANCE SERVICE, CIP PS 23- 01
its provisions. In the calculation of time hereunder, the time in which an act is to be performed shall be computed by excluding the first Day and including the last. If the time in which an act is to be performed falls on a Saturday, Sunday or any Day observed as a legal holiday by CITY, the time for performance shall be extended to the following Business Day. p)
q)
Venue. In the event that suit is brought by either party hereunder, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of San Joaquin or in the United States District Court for the Eastern District of California.
Recovery of Costs. The prevailing party in any action brought to enforce the terms of this Agreement or arising out of this Agreement may recover its reasonable costs, including reasonable attorney' sfees, incurred or expended in connection with such action against the non - prevailing party. 18) Notice to Proceed
Prior to commencing work under this agreement, CONSULTANT shall receive a written " Notice to Proceed" from CITY. A Notice to Proceed shall not be issued until all necessary insurances have been received. City shall not be obligated to pay CONSULTANT for any services prior to issuance of the Notice to Proceed. 19) Signatures
The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the CONSULTANT and the CITY. This agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
372
CITY OF LATHROP — FOR THE PURCHASE OF SOFTWARE AND ENTERPRISE LICENSE AND MAINTENANCE SERVICE, CIP PS 23- 01
Approved as to Form: City of Lathrop
City Attorney
Salvador Navarrete Date
Recommended for Approval: City of Lathrop
Assistant City Manager
Approved by:
Resolution No.
Consultant:
Michael King Date
City of Lathrop
390 Towne Centre Drive
Lathrop, CA 95330
Stephen J. Salvatore Date
City Manager
SWARCO McCain, Inc.
2365 Oak Ridge Way
Vista, CA 92081
Fed ID #
Business License #
Signature Date
Print Name and Title
373
EXHIBIT "P4 "
stco
Ray Laigo
SWARCO McCain, Inc.
2365 Oak Ridge Way
Vista, CA 92081
Attention: Brad Taylor, P. E., T. E. - City Engineer
Company/ Agency: City of Lathrop - Public Works Department Address: 390 Town Centre Dr.
Lathrop, CA 95330
Project Description:
Proposal Number:
Lathrop, CA - Transparity TMS Proposal ( revised 2/7/4) RL020624- 3 rev8
SWARCO McCain is pleased to provide this quotation on the following item( s):
Item It Qty Unit Description Unit Price
Central System Software - ' NP' . .
Sale Price
1 26 Each
On - P rem / Enterprise Transparity Traffic Management System (TMS) Licensing - qty: 26 this increases agency' stotal Transparity licenses to qty: 26 1, 200 31, 200
Professional Services/ Labor Items "'"
eio0r` tali
2 1 Lump
Project Management/ Administration/ Professional Services/ Labor:
Database creation and system map configuration
Assistance with communications cutover
5, 148 5, 148
3 26 Each Signal Performance Measure Setup / Configuration 330 8, 580 Training, Testing, and Maintenance
4 1 Lump Onsite Systems Acceptance and Validation Testing l''.. a' msl 4, 000 4, 000
5 1 year Transparity TMS Annual Maintenance for up to 26 locations ( recurring) twva. maal 7, 325 7, 325
Total 56, 253
PROPOSAL
February 27, 2024
To be paid according to the following Billing Schedule/ Milestones Transparity Traffic Management System ( TMS) Licensing
Deliverable: Billed at NTP
Billable Amount
31, 200
Completion of Transparity TMS installation, database creation, and system map configuration Deliverables: Transparity TMS system map with configured locations ( agency specified) and completed install sign - off sheet 5, 148
Completion of Signal Performance Measure Setup / Configuration Deliverables: Populated SPM reports for identified intersections 8, 580
Completion of Onsite Transparity Testing. This signals project completion and start of maintenance period.
Deliverables: Completed test document and project sign -off 11, 325
Scope Notes:
1. All labor is remote unless indicated otherwise. VPN or Internet access is required to provide remote support
2. Customer is responsible for ensuring that communications and detection is operational and for providing the network scheme, as applicable. Does not include field installation or timing conversion support. 3 On -site testing to be provided by Swarm McCain ITS Project Engineer. McCain requires up to 4-8 weeks advance notice for scheduling.
4. TMS Maintenance agreement covers a total of ten /101 hours that include telephone. email, or remote support and two ( 2) remote maintenance sessions each year Agreement is for a system with up to 16 licenses. As licenses increase, cost is subject to increase.
Proposal Notes:
1. All prices are in US Dollars. All payments to be made in US Dollars. Project will be billed per the schedule/ milestones 2 Purchase order (PO) must match line items in proposal.
3. Prices are firm for 30 days. Tax and freight are not included 4 All software available through remote download only.
5. Sale is subject to SWARCO McCain' sstandard terms and conditions.
The In/ ormonon contained in th, s document is intended for the person entry to which r is addressed and mayconto, n confidential and/ or legallyprivileged ma Nrial Any or entlnes other than the intended recipient is prohibited If you received this In error, please contact the sender and delete the material from ony computer. ev
N0TErtnu amount
dins notb do* etar
on, dlsseminatlon or other use of, or taking of onyoction in reliance upon, this infarmanon by persons 374
The Better Way. Every Day. Sl4 aI ODQ
Public Works Department
City of Lathrop
390 Towne Centre Drive
Lathrop, CA 95330
ATTACHMENT " C"
February 20, 2024
Subject: Sole Source Letter
To Whom It May Concern,
This letter establishes that the City of Lathrop, CA purchases products and services directly from SWARCO McCain Inc., located in Vista, CA.
Transparity TMS central software is the only central software that is fully compatible with the OMNI local controller software and all controllers installed accross the City. As the software developer, SWARCO McCain is the sole source of installation and maintenance of the Transparity TMS software, currently in use by the City of Lathrop. Working directly with SWARCO McCain' s ITS Services and Solutions team greatly reduces system down time and blind troubleshooting that could result with the lack of a product expert' sknowledge and proficiency.
Furthermore, SWARCO McCain' ssupport staff has fostered an excellent working relationship with the City' straffic operations personnel. SWARCO McCain' shistory of working with the City of Lathrop' straffic department provides an intimate familiarity of the City' straffic system needs that cannot be replicated by any other provider.
SWARCO McCain welcomes the opportunity to upgrade and support the City of Lathrop' scurrent central traffic management system and looks forward to collaborating with the agency in ensuring that their system is in optimum condition.
Sincerely,
Bob Ung,
Director of TTS Services and Solutions
SWARCO McCain, Inc.
www. swarco. com/ mccain
SWARCO McCain, Inc., 2365 Oak Ridge Way, Vista, CA 92081, USA T. +1 760-27- 8100, E. info. us@swarco. com
1/
375
PAGE LEFT
INTENTIONALLY
BLANK
376
ITEM 4. 11
CITY MANAGER' S REPORT
MARCH 11, 2024 CITY COUNCIL REGULAR MEETING
ITEM: CREATE CIP PS 24- 32 FOR MOSSDALE PAVEMENT
PREVENTATIVE MAINTENANCE AND APPROVE
BUDGET AMENDMENT
RECOMMENDATION: Adopt Resolution Creating CIP PS 24- 32 for Mossdale Pavement Preventative Maintenance and Approving
Budget Amendment
SUMMARY:
Staff is proposing to create Capital Improvement Project ( CIP) PS 24- 32 for Mossdale Pavement Preventative Maintenance ( Project) to maintain deteriorated pavement throughout the Mossdale community area. The Project scope of work consists of microsurfacing and re -striping multiple residential streets bounded by River Islands Parkway, Golden Valley Parkway, and the San Joaquin River.
Staff requests that City Council approve the creation of CIP PS 24- 32 for Mossdale Pavement Preventative Maintenance. Staff also requests the approval of a budget amendment transferring $ 10, 000 from the General Fund Street Repair Reserves 1010) to the CIP Project Fund ( 3310) to fund the planning and design engineering phase.
BACKGROUND:
Staff utilizes the City' s
Pavement Management System ( PMS) to evaluate the
condition of roadway sections and determine the pavement locations that are in need of maintenance, repair and rehabilitation. Through the PMS and field observations, staff has identified the need to maintain the pavement surface within the Mossdale community area.
The proposed Project includes resurfacing the existing pavement within the Mossdale residential area bordered by River Islands Parkway, Golden Valley Parkway, and the San Joaquin River as shown in Attachment B. The Project also consists of removing existing striping, and installing new signing, thermoplastic striping, markings, and legends.
Microsurfacing is applied in order to help preserve and protect the underlying pavement structure and provide a new driving surface. Ideal for residential areas, this treatment produces a cost- effective solution to alligator, transverse, longitudinal, and reflection pavement cracking.
377
CITY MANAGER' S REPORT PAGE 2
MARCH 11, 2024 CITY COUNCIL REGULAR MEETING
CREATE CIP PS 24- 32 FOR MOSSDALE PAVEMENT PREVENTATIVE
MAINTENANCE AND APPROVE BUDGET AMENDMENT
REASON FOR RECOMMENDATION:
Creation of CIP PS 24- 32 is needed to preserve the existing pavement structure and prolong the need for reconstruction. Microsurfacing is a paving treatment that produces a cost- effective solution to transverse, longitudinal, and reflection pavement cracking.
Approving the Project will allow the City to begin the planning and design of the improvements. Staff will complete the planning and design phases and return to Council at a later date to award a construction contract.
FISCAL IMPACT:
Sufficient funds were not allocated in the approved FY 23-4 budget. Therefore, staff is requesting the approval of a budget amendment transferring $ 10, 000 from the General Fund Street Repair Reserves ( 1010) to the CIP Project Fund ( 3310) as follows:
Decrease Street Repair Reserves
1010- 251- 03-0
Increase Transfer Out
1010- 9900-90- 9010
Increase Transfer In
3310- 9900- 393- 0000
Increase Appropriation
3310- 8000- 420- 10
ATTACHMENTS:
10, 000
10, 000
PS 24- 32 $ 10, 000
PS 24- 32 $ 10, 000
A. Resolution Creating CIP PS 24- 32 for Mossdale Pavement Preventative Maintenance, and Approving Budget Amendment
B. Project Location Map
378
CITY MANAGER' S REPORT PAGE 3
MARCH 11, 2024 CITY COUNCIL REGULAR MEETING
CREATE CIP PS 24- 32 FOR MOSSDALE PAVEMENT PREVENTATIVE
MAINTENANCE AND APPROVE BUDGET AMENDMENT
APPROVALS:
Angel • arca
Assistant Engineer
Brad Tylor
City Engineer
Cari
Finance Dir: or
Date
D2- 3/- 202` 1
Date
2/ ZI/ uza- 3
g/ dy
Date
Michael King Date
Assistant City Manager
2. /ZC./ z o2't
Z_- zo Lt -7
Salvador Navarrete Date
City Attorney
St-: en J. Salvatore Date
City Manager
379
RESOLUTION NO. 24-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LATHROP CREATING CIP PS 24- 32 MOSSDALE PAVEMENT PREVENTATIVE MAINTENANCE AND
APPROVING BUDGET AMENDMENT
WHEREAS, staff utilizes the City' s Pavement Management System ( PMS) to assess the condition of roadway sections and determine the pavement locations that are in need of maintenance, repair and rehabilitation; and WHEREAS, through the PMS and field observations, staff has identified the need to maintain the pavement surface within the Mossdale community area; and WHEREAS, staff is proposing to create Capital Improvement Project ( CIP) PS 24- 32 for Mossdale Pavement Preventative Maintenance ( Project) to maintain deteriorated pavement throughout the Mossdale community area; and WHEREAS, the Project scope of work consists of microsurfacing and re - striping multiple residential streets bounded by River Islands Parkway, Golden Valley Parkway, and the San Joaquin River; and
WHEREAS, microsurfacing is applied in order to help preserve and protect the underlying pavement structure and provide a new driving surface; and WHEREAS, ideal for residential areas, microsurfacing is a paving treatment that produces a cost- effective solution to alligator, transverse, longitudinal, and reflection pavement cracking; and
WHEREAS, staff requests that City Council approve the creation of CIP PS 24- 32 for Mossdale Pavement Preventative Maintenance; and WHEREAS, to create the project and fund the design engineering services, staff is also requesting the approval of a budget amendment transferring $ 10, 000 from the General Fund Street Repair Reserves ( 1010) to the CIP Project Fund 3310) as follows:
Decrease Street Repair Reserves
1010- 251- 03-0
Increase Transfer Out
1010- 9900-90- 9010
Increase Transfer In
3310- 9900- 393- 0000
Increase Appropriation
3310- 8000- 420- 10
10, 000
10, 000
PS 24- 32 $ 10, 000
PS 24- 32 $ 10, 000
380
WHEREAS, staff will complete planning and designing phases and return to Council at a later date to award a construction contract.
NOW, THEREFORE, BE IT RESOLVED, the City Council of the City of Lathrop does hereby approve the creation of CIP PS 24- 32 Mossdale Pavement Preventative Maintenance; and
BE IT FURTHER RESOLVED, that the City Council of the City of Lathrop also approves a budget amendment transferring $ 10, 000 from the General Fund Street Repair Reserves ( 1010) to the CIP Project Fund ( 3310) as detailed above. 381
The foregoing resolution was passed and adopted this 11th day of March 2024, by the following vote of the City Council, to wit:
AYES:
NOES:
ABSTAIN:
ABSENT:
Sonny Dhaliwal, Mayor
ATTEST:
Teresa Vargas, City Clerk Salvador Navarrete, City Attorney APPROVED AS TO FORM:
382
PROJECT LOCATION MAP
ATTACHMENT
i;3 .,
LEGEND
PROJECT LOCATION
383
PAGE LEFT
INTENTIONALLY
BLANK
384
ITEM 4. 12
CITY MANAGER' S REPORT
MARCH 11, 2024 CITY COUNCIL REGULAR MEETING
ITEM: AWARD SERVICE CONTRACT TO BEAR ELECTRICAL
SOLUTIONS, INC. FOR ON -CALL ELECTRICAL
SERVICES FOR FISCAL YEAR 2023-024
RECOMMENDATION: Adopt Resolution Awarding a Service Contract to Bear Electrical Solutions, Inc. for On -Call Electrical Services for Fiscal Year 2023-024
SUMMARY:
All City facilities providing essential services rely on electrical equipment and components that must function on a continuous basis. Various factors contribute to the failure of these components, requiring immediate or expedited on -call repair. The procurement of on - call electrical services is therefore critical to the City' s ability to minimize downtime of failed electrical equipment so that delivery of essential services is restored as soon as possible.
Staff advertised an informal bid solicitation package for the procurement of on -call electrical services on February 7, 2024, in accordance with Informal Bidding Procedures in California Public Contract Code ( PCC) 22034 and Lathrop Municipal Code ( LMC) 3.0. Public Works received and opened four ( 4) informal bids on February 27, 2024. Based on the review and evaluation, Bear Electrical Solutions, Inc. (Bear Electrical) was determined to be a responsible contractor and their bid of 39, 200 was determined to be the lowest responsive bid submitted for the sample project.
The on -call contract contemplated by this solicitation is commonly used by public agencies to contract for multiple small public works projects as the need arises without having to bid each project separately. This saves the agency time and money, especially for emergency projects. The proposed service contract with Bear Electrical is for an amount not to exceed $ 175, 000 over the life of the contract, with the option to carry the funds to as many as three optional one- year term extensions until budget is depleted. Staff will return to Council to request additional funds if needed.
Staff requests City Council award a service contract to Bear Electrical for on -call electrical services for an amount not to exceed $ 175, 000 over the life of the contract.
Sufficient funds were allocated in the approved FY 2023-4 budget to fund the first year FY 2023-4, of this contract and the three optional FY years.
BACKGROUND:
Electrical equipment and components such as pump motors, motor control circuits and starters, and power and data wiring are vital to the City' s delivery of water and 385
CITY MANAGER' S REPORT PAGE 2
MARCH 11, 2024 CITY COUNCIL REGULAR MEETING
AWARD SERVICE CONTRACT TO BEAR ELECTRICAL SOLUTIONS, INC. FOR ON -CALL ELECTRICAL SERVICES FOR FISCAL YEAR 2023-024
recycled water, handling of storm water and wastewater and maintenance of internal communications and data transmission. Time, weather, and use combine to wear out or damage these components, which are needed 24/ 7 to support the continuous delivery of essential City services.
The City proposes to obtain the on -call services of a qualified electrical contractor for the timely repair of inoperable electrical equipment and components critical to the delivery of many essential City services.
Staff prepared technical specifications for this service contract and solicited them for bid on February 7, 2024 in accordance with the informal bid procedures CA PCC 22034 and LMC 3.0.
The contract includes an option for the City and Contractor to execute up to three ( 3) additional one- year contract terms for FY 2024-5, FY 2025-6, and FY 2026-7 upon mutual agreement. The contract also includes a provision for an annual contract price increase of up to 5% due to inflation, subject to the Contractor' srequest and City' s concurrence.
Public Works received and opened four ( 4) informal bids, all determined to be responsive and from responsible bidders, were received and opened by Public Works on February 27, 2024. The bid results are summarized in Table 2 below:
Table 2: Summary of Bid Results
FY 2023-4 On -Call Electrical Services
Contractor Total Sample Base Bid
Bear Electrical Solutions, Inc. 39, 200
Bockmon & Woody Electric Co., Inc. 40, 300
Modesto Executive Electric, Inc. 42, 031
Fisher Electrical Integration, Inc. 58, 640
The bid results are based upon the solicitation' sbid schedule, which listed sample hours for regular and overtime labor and two types of service trucks, and a materials cost markup typical of an on -call electrical service request. The sample hours and materials cost basis of bid were used to determine the Contractor whose combined unit costs would typically provide the City with the lowest overall prices for on -call electrical services.
Staff reviewed and evaluated the bids, and determined that Bear Electrical' s bid of 39, 200 is the lowest bid. Staff requests City Council award a service contract to Bear Electrical for on -call electrical services for an amount not to exceed $ 175, 000 over the life of the contract. The optional years will not be above the City Manager' ssigning authority.
386
CITY MANAGER' SREPORT PAGE 3
MARCH 11, 2024 CITY COUNCIL REGULAR MEETING
AWARD SERVICE CONTRACT TO BEAR ELECTRICAL SOLUTIONS, INC. FOR ON -CALL ELECTRICAL SERVICES FOR FISCAL YEAR 2023-024
REASON FOR RECOMMENDATION:
The recommended contract will provide the City with on -call services for the timely repair of electrical equipment and components supporting the delivery of essential City services.
FISCAL IMPACT:
The proposed service contract with Bear Electrical is for an amount not to exceed 175, 000 over the life of the contract, with the option to carry the funds to as many as three optional one- year term extensions until budget is depleted. Staff will return to Council to request additional funds if needed.
Sufficient funds were allocated in the FY 2023-4 budget to fund the first term of this this contract.
ATTACHMENTS:
A. Resolution Awarding a Service Contract to Bear Electrical Solutions, Inc. for FY 2023- 24 On - Call Electrical Services
B. Service Contract with Bear Electrical Solutions, Inc. for FY 2023-4 On -Call Electrical Services
387
CITY MANAGER' SREPORT PAGE 4
MARCH 11, 2024 CITY COUNCIL REGULAR MEETING
AWARD SERVICE CONTRACT TO BEAR ELECTRICAL SOLUTIONS, INC. FOR ON - CALL ELECTRICAL SERVICES FOR FISCAL YEAR 2023-024
APPROVALS:
3-P24
Steven Hollenbeak Date
Assistant Engineer
3-4- 9024
en Reed Date
Senior Construction Manager
Brad ylor
City Engineer
4 Cari Jam
Director Finance
Date
3/ 4/ 00
Date
Michael King Date
Assistant City Manager
S ador Navarrete Date
City Attorney
Stephen J. Salvatore Date
City Manager
388
RESOLUTION NO. 24-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LATHROP AWARDING A SERVICE CONTRACT TO BEAR ELECTRICAL SOLUTIONS, INC. FOR ON -CALL
ELECTRICAL SERVICES
WHEREAS, electrical components supporting essential City facilities occasionally wear out or malfunction, requiring immediate repair to restore their operation; and
WHEREAS, the City therefore desires to procure on -call electrical services to effect the timely repair or replacement of inoperable electric components supporting essential City facilities ( Project); and
WHEREAS, the City does not have the resources to perform these services; and
WHEREAS, City staff prepared and solicited for bid a contract on February 7, 2024 for on -call electrical services in accordance with informal bidding procedures pursuant to California Public Contract Code 22034 and Lathrop Municipal Code 3.0; and
WHEREAS, the contract' sinitial term will expire on June 30, 2024 and contains options for extending the contract for up to three ( 3) additional one- year terms in FY 2024-5, FY 2025-6, and FY 2026-7 for a total sum not to exceed $ 175, 000 over the life of the contract; and
WHEREAS, a total of four ( 4) bids were received and opened by Public Works on February 27, 2024; and
WHEREAS, upon review and evaluation of the bids, the responsible bidder with the lowest responsive bid for the Project was determined to be Bear Electrical Solutions, Inc. (Bear Electrical) with a base bid of $ 39, 200; and WHEREAS, the proposed service contract with Bear Electrical is for an amount not to exceed $ 175, 000 over the life of the contract, with the option to carry the funds to as many as three optional one- year term extensions until budget is depleted.
Staff will return to Council to request additional funds if needed; and WHEREAS, sufficient funds were included in the FY 2023-4 budget to fund the first term of the contract.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Lathrop does hereby award a service contract to Bear Electrical Solutions, Inc. for an amount not to exceed $ 175, 000 over the life of the contract for on -call electrical services.
389
The foregoing resolution was passed and adopted this 11th day of March, 2024 by the following vote of the City Council, to wit:
AYES:
NOES:
ABSTAIN:
ABSENT:
Sonny Dhaliwal, Mayor
ATTEST: APPROVED AS, TO FORM:
Teresa Vargas, City Clerk Salvador Navarrete, City Attorney 390
ATTACHMENT
3 «
CITY OF LATHROP
GENERAL SERVICES AGREEMENT WITH BEAR ELECTRICAL SOLUTIONS, INC.
FOR
2023-024 ON -CALL ELECTRICAL SERVICES
THIS AGREEMENT, dated for convenience this 11th day of March, 2024 ( the Effective Date") is by and between Bear Electrical Solutions, Inc. ("CONTRACTOR") and the City of Lathrop, a California municipal corporation (" CITY"). In consideration of their mutual covenants, the parties hereto agree as follows:
1) Scope of Work
1. Subject to the terms and conditions of this Agreement, CONTRACTOR shall provide on - call electrical services, including Ethernet and fiber- optic cabling, not including fiber- optic cable splicing.
2. CITY' sPublic Works Director or their designee will call the CONTRACTOR at the phone number provided by the CONTRACTOR to request a scope of emergency or scheduled work.
3. CONTRACTOR shall respond to the request in compliance with Attachment A — Service Specifications for Emergency or Scheduled On -Call work, and provide a cost estimate for requested scope of work.
4. CONTRACTOR shall only begin work pursuant to this Agreement following Notice to Proceed and a Task Order from the CITY' sPublic Works Director or their designee.
5. CONTRACTOR and all employees and Subcontractors shall at all times during the performance of work pursuant to this agreement maintain a valid California C- 10 — Electrical Contractor' slicense.
6. CONTRACTOR and all employees and Subcontractors shall pass a Live Scan fingerprinting / criminal record check.
2) Compensation
CITY hereby agrees to pay CONTRACTOR a sum not to exceed $ 175, 000 for services rendered under this agreement, including any term extensions, on a time and materials unitary basis, for on - call electrical services, including Ethernet and fiber- optic cabling, not including fiber- optic cable splicing. CONTRACTOR shall be paid any uncontested sum due and payable within thirty (30) days of receipt of billings containing all information pursuant to Paragraph 5 below.
Compensation for any task must be equal to or less than the percentage of task complete. In no event shall CONTRACTOR be entitled to compensation for work not included in the Task Order, unless a written change order or authorization describing the extra work and payment terms has been executed by CITY' s authorized representative prior to the commencement of the work.
Payment is made based on a time and materials basis.
391
Contract rates shall remain fixed through June 30 of the current contract term. Any request by the CONTRACTOR for contract price adjustment thereafter shall be substantiated by supportive documentation correlated to the State of California Department of General Services California Construction Cost Index ( CCCI), and in no case greater than 5% above existing labor and vehicle rates. It is expressly understood that contract rate increases are not automatic nor guaranteed. All rate adjustment requests must be submitted in writing to the City' s Public Works Director no later
than April 30th of the current contract term to be included in the following contract term, and will not go into effect until July 1st of that same year. If considered, price adjustments due to an increase in said CCCI shall be calculated based upon the values for the month of February of the previous contract term and that of the current contract term. 3) Effective Date and Term
The effective date of this Agreement is March 11, 2024 and it shall terminate no later than June 30, 2024. The contract may be extended annually for up to three ( 3) consecutive one- year terms after the initial contract period, at the discretion and approval of the CITY, as follows:
Optional Term 1: July 1, 2024 -June 30, 2025
Optional Term 2: July 1, 2025 -June 30, 2026
Optional Term 3: July 1, 2026 -June 30, 2027
The CITY shall notify the CONTRACTOR in writing of its intent to extend the contract by June 1St of the current contract term.
4) Independent Contractor Status
It is expressly understood and agreed by both parties that CONTRACTOR, while engaged in carrying out and complying with any of the terms and conditions of this Agreement, is an independent contractor and not an employee of the CITY. As an independent contractor, CONTRACTOR is responsible for controlling the means and methods to complete the scope of work described in Section 1 of this contract to City' s satisfaction. CONTRACTOR expressly
warrants not to represent, at any time or in any manner, that CONTRACTOR is an employee of the CITY.
5) Billings
CONTRACTOR shall submit invoices for completed work on a monthly basis, or as otherwise agreed, providing without limitation, details as to amount of hours, individual performing said work, hourly rate, and indicating to what aspect of the Scope of Services said work is attributable.
CONTRACTOR' Sbills shall include a list of all tasks, a total amount due, the amounts previously billed, and the net amount due on the invoice. Except as specifically authorized by CITY, CONTRACTOR shall not bill CITY for duplicate services performed by more than one person. In no event shall CONTRACTOR submit any billing for an amount in excess of the rates or the maximum amount of compensation provided in section ( 2) for either task or for the entire Agreement, unless modified by a properly executed change order. 392
6) Advice and Status Reporting
CONTRACTOR shall provide the CITY with timely reports, orally or in writing, of all significant developments arising during performance of its services hereunder, and shall furnish to CITY such information as is necessary to enable CITY to monitor the performance of this Agreement.
CONTRACTOR shall submit to CITY such reports, diagrams, drawings and other work products developed pursuant to the Scope of Services.
7) Auditing
CITY reserves the right to periodically audit all charges made by CONTRACTOR to CITY for services under this Agreement. Upon request, CONTRACTOR agrees to furnish CITY, or a designated representative, with necessary information and assistance needed to conduct such an audit.
CONTRACTOR agrees that CITY or its delegate will have the right to review, obtain and copy all records pertaining to performance ofthis Agreement. CONTRACTOR agrees to provide CITY or its delegate with any relevant information requested and shall permit CITY or its delegate access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpose of determining compliance with the requirement. CONTRACTOR further agrees to maintain such records for a period of three ( 3) years after final payment under this agreement. 8) Assignment of Personnel
CONTRACTOR acknowledges that the CITY has relied on CONTRACTOR' s capabilities and on
the qualifications of CONTRACTOR' sprincipals and staff as identified in its proposal to CITY.
The services shall be performed by,
Authorized Representative: Robert Asuncion,
or under
Vice
the direct
President.
supervision,
CITY
of
shall
CONTRACTOR' s
be notified by
CONTRACTOR of any change of its Authorized Representative, and CITY is granted the right of approval of all original, additional, and replacement personnel at CITY' ssole discretion, and shall be notified by CONTRACTOR of any changes of CONTRACTOR' s project staff prior to any
change.
CONTRACTOR shall assign only competent personnel to perform services pursuant to this Agreement. If CITY asks CONTRACTOR to remove a person assigned to the work called for under this Agreement, CONTRACTOR agrees to do so immediately, without requiring the City to process a reason or explanation for its request.
9) Assignment and Subcontracting
It is recognized by the parties hereto that a substantial inducement to CITY for entering into this Agreement was, and is, the professional reputation and competence of CONTRACTOR. Neither this Agreement nor any interest therein may be assigned by CONTRACTOR without the prior written approval of CITY' Sauthorized representative. CONTRACTOR shall not subcontract any 393
portion of the performance contemplated and provided for herein, other than the subcontractors noted in the proposal, without prior written approval of the CITY' S authorized representative. 10) Insurance
Category 2 " Intermediate Risk"
Insurance Requirements
i. Commercial General Liability
a. Vendor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than two million dollars ($ 2, 000,0) per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/ location or the general aggregate limit shall be twice the required occurrence limit. Vendor' sgeneral liability policies shall be primary and shall not seek contribution from the City' scoverage, and be endorsed using Insurance Services Office form CG 20 10 ( or equivalent) to provide that City and its officers, officials, employees, and agents shall be additional insureds under such policies. For construction projects, an endorsement providing completed operations coverage for the additional insured, ISO form CG 20 37 ( or equivalent), is also required. b. Any failure to comply with reporting provisions of the policies by Vendor shall not affect coverage provided the City.
c. Coverage shall state that Vendor insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer' sliability.
d. Coverage shall contain a waiver of subrogation in favor of the City. ii. Business Automobile Liability
a. Vendor shall provide auto liability coverage for owned, non -owned, and hired autos using ISO Business Auto Coverage form CA 00 01 ( or equivalent) with a limit of no less than two million dollars ($ 2, 000,00) per accident. iii. Workers' Compensation and Employers' Liability- Statutory a. Vendor shall maintain Workers' Compensation Insurance and Employer' s Liability Insurance with limits of at least one million dollars ($ 1, 000,00). Vendor shall submit to City, along with the certificate of insurance, a waiver of subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.
Coverage can be waived by city, ifvendor, in writing, confirms not required to carry coverage)
394
iv. All Coverages
a. Each insurance policy required by the agreement shall be endorsed to state that coverage shall not be suspended, voided, cancelled, or reduced in limits except after thirty (30) days' prior written notice has been given to the City, except that ten ( 10) days' prior written notice shall apply in the event of cancellation for nonpayment of premium.
b. All self- insurance, self -insured retentions, and deductibles must be declared and approved by the City.
c. Evidence of Insurance - Prior to commencement ofwork, the Vendor shall furnish the City with certificates, additional insured endorsements, and waivers of subrogation evidencing compliance with the insurance requirements above. The Vendor must agree to provide complete, certified copies of all required insurance policies ifrequested by the City.
d. Acceptability of Insurers - Insurance shall be placed with insurers admitted in the State of California and with an AM Best rating of A- VII or higher. e. Subcontractors and Consultants - A category of risk and the applicable insurance requirements will be determined on a " per subcontractor" or " per consultant" basis, considering the particular work to be done by the subcontractor or consultant and the interrelationship of that work to other work being conducted by the Vendor. 11) Indemnification - CONTRACTOR' SResponsibility
As to the CONTRACTOR' Swork hereunder, it is understood and agreed that (a) CONTRACTOR has the professional skills necessary to perform the work, (b) CITY relies upon the professional skills of CONTRACTOR to perform the work in a skillful and professional manner, and ( c) CONTRACTOR thus agrees to so perform.
Acceptance by CITY of the work performed under this Agreement does not operate as a release of said CONTRACTOR from such professional responsibility for the work performed. It is further understood and agreed that CONTRACTOR is apprised of the scope of the work to be performed under this Agreement and CONTRACTOR agrees that said work can and shall be performed in a profession.
fully competent manner in accordance with the standard of care applicable to CONTRACTOR' S CONTRACTOR shall indemnify, defend, and hold CITY, its officers, employees, agents, and volunteers harmless from and against any and all liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused by the willful misconduct or negligent acts or omissions of CONTRACTOR, its employees, subcontractors, or agents, or on account of the performance or character of this work, except for any such claim arising out of the negligence or willful misconduct of the CITY, its officers, employees, agents, or volunteers. It is understood that the duty of CONTRACTOR to indemnify 395
and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance of insurance certificates and endorsements required under this Agreement does not relieve CONTRACTOR from liability under this indemnification and hold harmless clause.
This indemnification and hold harmless clause shall apply whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 12) Licenses
If a license of any kind, which term is intended to include evidence of registration, is required of CONTRACTOR, its employees, agents, or subcontractors by federal or state law, CONTRACTOR warrants that such license has been obtained, is valid and in good standing, and CONTRACTOR shall keep it in effect at all times during the term of this Agreement, and that any applicable bond has been posted in accordance with all applicable laws and regulations. 13) Business Licenses
CONTRACTOR shall obtain and maintain a CITY of Lathrop Business License until all Agreement services are rendered and accepted by the CITY. 14) Termination
Either CITY or CONTRACTOR may cancel this Agreement upon 30 days written notification to the other party. Upon termination, or completion of services under this Agreement, all information collected, work product and documents shall be delivered by CONTRACTOR to CITY within ten 10) calendar days.
15) Funding
CONTRACTOR agrees and understands that renewal of this agreement in subsequent years is contingent upon action by the City Council consistent with the appropriations limits ofArticle XIII B) of the California Constitution and that the Council may determine not to fund this agreement in subsequent years.
16) Notices
All contracts, appointments, approvals, authorizations, claims, demands, Change Orders, consents, designations, notices, offers, requests and statements given by either party to the other shall be in writing and shall be sufficiently given and served upon the other party if (1) personally served, (2) sent by the United States mail, postage prepaid, (3) sent by private express delivery service, or (4) in the case of a facsimile transmission, if sent to the telephone FAX number set forth below during regular business hours ofthe receiving party and followed with two (2) Days by delivery of a hard copy of the material sent by facsimile transmission. Personal service shall include, without limitation, service by delivery and service by facsimile transmission.
To City: City of Lathrop
City Clerk
390 Towne Centre
Lathrop, CA 95330
396
Copy to:
To CONTRACTOR:
17) Miscellaneous
City of Lathrop
Department of Public Works
390 Towne Centre
Lathrop, CA 95330
MAIN: ( 209) 941- 7430
FAX: ( 209) 941- 7449
Bear Electrical Solutions, Inc.
1252 State Street
Alviso, CA 95002
408.49. 5178
a) Consent. Whenever in this Agreement the approval or consent of a party is required, such approval or consent shall be in writing and shall be executed by a person having the express authority to grant such approval or consent.
b) Contract Terms Prevail. All exhibits and this Agreement are intended to be construed as a single document. Should any inconsistency occur between the specific terms of this Agreement and attached exhibits, the terms of this Agreement shall prevail. c) Controlling Law. The parties agree that this Agreement shall be governed and construed by and in accordance with the Laws of the State of California. d) Definitions. The definitions and terms are as defined in these specifications. e) Force Majeure. Neither party shall be deemed to be in default on account of any delay or failure to perform its obligations under this Agreement, which directly results from an Act of God or an act of a superior governmental authority.
0 Headings. The paragraph headings are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part of this Agreement. g) Incorporation of Documents. All documents constituting the Agreement documents described in Section 1 hereof and all documents which may, from time to time, be referred to in any duly executed amendment hereto are by such reference incorporated in the Agreement and shall be deemed to be part of this Agreement. h) Integration. This Agreement and any amendments hereto between the parties constitute the entire Agreement between the parties concerning the Project and Work, and there are no other prior oral or written agreements between the parties that are not incorporated in this Agreement.
397
Modification of Agreement. This Agreement shall not be modified or be binding upon the parties unless such modification is agreed to in writing and signed by the parties. j) Ownership of Documents. All documents, photographs, reports, analyses, audits, computer media, or other material documents or data, and working papers, whether or not in final form, which have been obtained or prepared under this Agreement, shall be deemed the property of the CITY.
k) Provision. Any agreement, covenant, condition, clause, qualification, restriction, reservation, term or other stipulation in the Agreement shall define or otherwise control, establish or limit the performance required or permitted or to be required of or permitted by either party. All provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions.
1) Severability. The invalidity in whole or part of any provision of this Agreement shall not void or affect the validity of any other provision of this agreement. If a court of competent jurisdiction finds or rules that any provision of this Agreement is void or unenforceable, the provisions of this Agreement not so affected shall remain in full force and effect. m) Status of CONTRACTOR. In the exercise ofrights and obligations under this Agreement, CONTRACTOR acts as an independent contractor and not as an agent or employee of CITY. CONTRACTOR shall not be entitled to any rights and benefits accorded or accruing to the City Council members, officers or employees of CITY, and CONTRACTOR expressly waives any and all claims to such right and benefits. n) Successors and Assigns. The provisions of this Agreement shall inure to the benefit of, and shall apply to and bind, the successors and assigns of the parties. o) Time of the Essence. Time is of the essence of this Agreement and each of its provisions.
In the calculation of time hereunder, the time in which an act is to be performed shall be computed by excluding the first Day and including the last. If the time in which an act is to be performed falls on a Saturday, Sunday or any Day observed as a legal holiday by CITY, the time for performance shall be extended to the following Business Day. p)
q)
Venue. In the event that suit is brought by either party hereunder, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of San Joaquin or in the United States District Court for the Eastern District of California.
Recovery of Costs. The prevailing party in any action brought to enforce the terms of this Agreement or arising out of this Agreement may recover its reasonable costs, including reasonable attorney' sfees, incurred or expended in connection with such action against the non -prevailing party.
18) Notice to Proceed
Prior to commencing work under this agreement, CONTRACTOR shall receive a written " Notice to Proceed" from CITY. A Notice to Proceed shall not be issued until all necessary insurances 398
have been received. City shall not be obligated to pay CONTRACTOR for any services prior to issuance of the Notice to Proceed.
19) Signatures
The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the CONTRACTOR and the CITY. This agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
Approved as to Form: City of Lathrop
City Attorney
Salvador Navarrete
Recommended for Approval: City of Lathrop
Assistant City Manager
Approved by:
Resolution No.
CONTRACTOR:
3 - S.--- z-C) --- K
Date
Michael King Date
City of Lathrop
390 Towne Centre Drive
Lathrop, CA 95330
Stephen J. Salvatore Date
City Manager
Bear Electrical Solutions, Inc.
1252 State Street
Alviso, CA 95002
Fed ID #
Business License #
Signature Date
Print Name and Title
399
EXHIBIT
SECTION 00300
FY 2023-024 ON -CALL ELECTRICAL SERVICES
CUPCCAA INFORMAL BID SOLICITATION BID PROPOSAL FORMS
BID PROPOSAL FORMS
TO: City of Lathrop
390 Towne Centre Drive
Lathrop, CA 95330
ATTENTION: Public Works Department
FOR: FY 2023-024 ON -CAL ELECTRICAL SERVICES
THE UNDERSIGNED, AS BIDDER, HEREBY AGREES AND DECLARES THAT:
LEGAL COMPLIANCE
The only persons or parties interested in this Bid as Principals are those named herein; that this Bid is made without collusion with any other person, firm, partnership, corporation, or association; that he has carefully examined the location ofthe proposed work and the Contract Documents; and he proposes and agrees that ifthis Bid is accepted he will contract with the City of Lathrop, in the form of the Contract as set forth in the Contract Documents for said project, to provide all the necessary labor, services, materials, and equipment, and to do all the work and furnish all the materials; and that he will accept in full payment therefore costs based upon rates as proposed in the following Bid Schedule.
SCHEDULE OF PRICES
All applicable permit fees, licensing costs, sales taxes, State, and/ orFederal, and any other taxes, patent rights, or royalties are included in the prices quoted in the Bid. All blank spaces must be filled in.
BASIS OF AWARD
The basis for award of the contract will be the total price of the Bid Schedule. The City of Lathrop reserves the right to award a $ 175, 000 not -to -exceed contract and reserves the right to award no work or a portion ofthe $ 175, 000 not -to -exceed contract value.
SEE INSTRUCTIONS TO BIDDERS -BIDS ON PAGE 00100- 2FOR DETAILS. 00300- 1
400
SECTION 00300
FY 2023-024 ON -CALL ELECTRICAL SERVICES
CUPCCAA INFORMAL BID SOLICITATION BED PROPOSAL FORMS
FY 2023-024 ON -CALL ELECTRICAL SERVICES
BID SCHEDULE
1. LABOR RATES
ITEM DESCRIPTION
HOURLY
RATE
EXAMPLE
HOURS
EXAMPLE
LABOR COST
1 Labor Rate*: 6: 00 AM —
6: 00 PM - Weekdays
125. 00 80 10, 000.0
2 Labor Rate*: After Hours —
Weekends & Holidays
195. 00 20 3, 900. 0
SEE ATTACHMENT "A" - SERVICE SPECIFICATIONS, SECTION C
1. TOTAL EXAMPLE LABOR COST: $ 13, 900. 0
2. VEHICLE RATES
ITEM DESCRIPTION
HOURLY
RATE
EXAMPLE
HOURS
EXAMPLE
VEHICLE COST
1 Pickup Truck 20. 00 80 1, 600. 0
2 Service Truck / Bucket
Truck
35. 00 20 700. 00
2. TOTAL EXAMPLE VEHICLE COST: $ 2, 300. 0
3. MATERIAL MARK- UP RATE
ITEM DESCRIPTION
MARK- UP
RATE
EXAMPLE
COST
EXAMPLE
MARKUP COST
1 Materials Mark -Up Rate 15. 00 % 20, 000 23, 000.
3. TOTAL EXAMPLE MARK- UP COST: $ 23, 000.
TOTAL SAMPLE BASE BID (SUM OF TOTALS 1-3): $ 39, 200. 0 TOTAL SAMPLE BASE BID IN WORDS: Thirty- NineThousand and Two Hundred Dollars and Zero Cents
A. MINIMUM HOURS FOR EMERGENCY CALL -OUT
ITEM DESCRIPTION MIN. # HOURS
1 Minimum Hours charged for labor and vehicle: 6: 00 AM to 6: 00 PM - Weekdays
2. 0
2 Minimum Hours charged for labor and vehicle: After Hours — Weekends & Holidays
2 0
00300- 2
401
PAGE LEFT
INTENTIONALLY
BLANK
402
ITEM 4. 13
CITY MANAGER' SREPORT
MARCH 11, 2024 CITY COUNCIL REGULAR MEETING
ITEM: AWARD CONSTRUCTION CONTRACT TO TRIP STOP
SIDEWALK REPAIR, INC. FOR CITYWIDE SIDEWALK
IMPROVEMENTS, CIP PS 24- 08
RECOMMENDATION: Adopt Resolution to Award Construction Contract to Trip Stop Sidewalk Repair Inc., for Citywide Sidewalk
Improvements, CIP PS 24- 08
SUMMARY:
On July 1, 2023, City Council approved the creation of Capital Improvement Project CIP) PS 24- 08 for the Citywide Sidewalk Improvements ( Project) and approved 176, 576 in the adopted bi- annual budget for Fiscal Years ( FY) 2023-4 and 2024/5. The goal of this Project is to establish Americans with Disabilities Act ( ADA) compliance by repairing trip hazards and providing safe pedestrian paths on City sidewalks, parks and facilities.
The informal bid solicitation package with plans and specifications for the construction of the Project was advertised and noticed to the registered contractor on January 30, 2024, in accordance with the Informal Bidding Procedures in California Public Contract Code ( PCC) 22034 and Lathrop Municipal Code ( LMC) 3.0. 060. The City received and opened three ( 3) informal bids on February 22, 2024. Based on the review and evaluation of the bids, the lowest responsive and responsible bidder for construction of the Project was determined to be Trip Stop Sidewalk Repair, Inc. with a bid of 69, 795.
Staff requests City Council adopt a Resolution ( Attachment A) awarding a construction contract to Trip Stop Sidewalk Repair Inc., for construction of the Project in the amount of $ 69, 795, and authorize a 10% construction contingency of $ 6, 979.
For a total not -to -exceed $ 76,74 for ( FY) 23-4 authorizing staff to spend up to this amount as necessary to accomplish the goals of this project.
Staff also requests Council' s approval to extend the contract for up to two ( 2) additional one year terms Optional Term 1: from July 1, 2024 to June 30, 2025, and Term 2: from July 1, 2025 to June 30, 2026, for a total project cost not -to exceed the remaining funds of $ 99, 802 that were approved in the bi- annual budget FY 2023- 24 and 2024-5. The additional term options will be enabled as necessary to fix all sidewalk trip hazards identified on the new sidewalk assessment conducted by Trip Stop Sidewalk Repair Inc. and will not exceed the City Manager' ssigning authority on either term.
BACKGROUND:
In 2021, a Citywide Trip Hazard Assessment was produced by Precision Concrete 403
CITY MANAGER' S REPORT PAGE 2
MARCH 11, 2024 CITY COUNCIL REGULAR MEETING
AWARD CONSTRUCTION CONTRACT TO TRIP STOP SIDEWALK REPAIR, INC.
FOR CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24- 08
Cutting dba Precision Emprise LLC ( Precision Concrete Cutting).
The Project aims to analyze the assessment study conducted by Precision Concrete Cutting and continue to repair damaged sidewalks. The scope Project includes slice - cutting concrete panel lifts prioritized by the City and a new citywide sidewalk trip hazard assessment. The City will have the option to extend the contract up to two 2) additional one year terms to remove trip hazards identified in the new assessments.
The bid solicitation package with plans and specifications for the construction of the Project was advertised on January 30, 2024 in accordance with the Informal Bidding Procedures in California Public Contract Code ( PCC) 22034 and Lathrop Municipal Code ( LMC) 3.0. 060.
Three ( 3) bids were received; each determined to be responsive and responsible bidders. The bid results are summarized in Table 1 below:
Table 1: Summary of Bid Results
Contractor Base Bid
Trip Stop Sidewalk Repair Inc. 69, 795
Precision Emprise LLC DBA Precision Concrete Cutting 173, 292 Westside Landscape and Concrete Inc. 179, 367
Staff requests City Council adopt a Resolution ( Attachment A) awarding a construction contract to Trip Stop Sidewalk Repair Inc., for construction of the Project in the amount of $ 69, 795 and authorize a 10% construction contingency of $ 6, 979 for a total not -to -exceed $ 76,74 and authorize staff to spend up to this amount as necessary to accomplish the goals of the project. Staff also requests Council' s approval to extend the contract for up to two ( 2) additional one year terms Optional Term 1: July 1, 2024 - June 30, 2025 and Term 2: July 1, 2025 - June 30, 2026 to continue to assess and fix sidewalk trip hazards for a total project cost not to exceed the remaining funds of $99, 802 that were approved in the bi- annual budget FY 2023- 24 and 2024-5. The additional term options will be enabled as necessary to fix all sidewalk trip hazards identified on the new sidewalk assessment conducted by Trip Stop Sidewalk Repair Inc.
REASON FOR RECOMMENDATION:
Awarding a construction contract to Trip Stop Sidewalk Repair Inc., will allow the Project to repair trip hazards, provide safe pedestrian paths through residential neighborhoods, parks and schools, and ensure ADA conformance.
FISCAL IMPACT:
Sufficient funds were allocated in the approved bi- annual FY 2023-4 and 2024-5 404
CITY MANAGER' S REPORT PAGE 3
MARCH 11, 2024 CITY COUNCIL REGULAR MEETING
AWARD CONSTRUCTION CONTRACT TO TRIP STOP SIDEWALK REPAIR, INC.
FOR CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24- 08
budget for CIP PS 24- 08 to award the contract; therefore, no budget amendment is needed.
ATTACHMENTS:
A. Resolution to Award Construction Contract to Trip Stop Sidewalk Repair Inc., for Citywide Sidewalk Improvements, CIP PS 24- 08
B. Construction Contract with Trip Stop Sidewalk Repair, Inc. for Citywide Sidewalk Improvements, CIP GG 24- 08
405
CITY MANAGER' S REPORT PAGE 4
MARCH 11, 2024 CITY COUNCIL REGULAR MEETING
AWARD CONSTRUCTION CONTRACT TO TRIP STOP SIDEWALK REPAIR, INC.
FOR CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24- 08
APPROVALS:
a s / dzia' t
Carlos Carrillo Date
Management Analyst
Ken Reed Date
Senior Construction Manager
Brad T ilor
City Engineer
Cari Jam
Director of Finance
Z 28/ Zoz -f
Date
a2e
Date
2/8/ Z0Zy
Michaba' King Date
Assistant City Mana
Salvador Navarrete Date
City Attorney
3. 6x• 14
Stephen J. Salvatore Date
City Manager
406
RESOLUTION NO. 24-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LATHROP TO AWARD CONSTRUCTION CONTRACT TO TRIP STOP SIDEWALK REPAIR INC. FOR THE CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24-8
WHEREAS, on July 1, 2023, City Council approved the creation of Capital Improvement Project ( CIP) PS 24- 08 for the Citywide Sidewalk Improvements Project) and allocated $ 176, 576 through the Adopted bi- annual budget Fiscal Years FY) 2023-4 and 2024-5; and
WHEREAS, the goal of this Project is to establish Americans with Disabilities Act ( ADA) compliance by repairing trip hazards and providing safe pedestrian paths on City sidewalks, parks and facilities; and
WHEREAS, the Project scope of work includes slice - cutting concrete panel lifts prioritized by the City and a citywide sidewalk trip hazard reassessment; and WHEREAS, the informal bid solicitation package with plans and specifications for the construction of the Project was advertised on January 30, 2024 in accordance with the Informal Bidding Procedures in California Public Contract Code ( PCC) 22034 and Lathrop Municipal Code ( LMC) 3.0. 060; and
WHEREAS, the City received and opened three ( 3) informal bids on February 22, 2024. Based on the review and evaluation of the bids, the lowest responsive and responsible bidder for construction of the Project was determined to be Trip Stop Sidewalk Repair, Inc. with a bid of $69, 795; and
WHEREAS, staff requests City Council award a construction contract to Trip Stop Sidewalk Repair Inc., for construction of the Project in the amount of $ 69, 795 and authorize a 10% construction contingency of $ 6, 979 for a total not -to -exceed 76,74 for FY 23-4 authorizing staff to spend up to this amount as necessary to accomplish the goals of the project; and
WHEREAS, staff also requests Council' s approval to extend the contract for up to two ( 2) additional one year terms Optional Term 1: from July 1, 2024 to June 30, 2025, and Term 2: from July 1, 2025 to June 30, 2026, for a total project cost not -to exceed the remaining funds of $ 99, 802 that were approved in the bi- annual budget FY 2023-4 and 2024-5; and
WHEREAS, the additional term options will be enabled as necessary to fix all sidewalk trip hazards identified on the new sidewalk assessment conducted by Trip Stop Sidewalk Repair Inc. and will not exceed the City Manager' ssigning authority on either term.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Lathrop hereby approves a construction contract to Trip Stop Sidewalk Repair Inc. for the Citywide Sidewalk Improvements, CIP GG 24- 08 for a cost of $ 69, 795; and 407
BE IT FURTHER RESOLVED, that the City Council of the City of Lathrop hereby approves a 10% construction contingency of $ 6, 979. For a total not -to -exceed 76,74 for FY 23-4 authorizing staff to spend up to this amount as necessary to accomplish the goals of the Project; and
BE IT FURTHER RESOLVED, that the City Council of the City of Lathrop authorizes staff to extend the contract for up to two ( 2) additional one year terms Optional Term 1: from July 1, 2024 to June 30, 2025, and Term 2: from July 1, 2025 to June 30, 2026, for a total project cost not -to exceed the remaining funds of 99, 802 that were approved in the bi- annual budget FY 2023-4 and 2024-5. 408
The foregoing resolution was passed and adopted this 11th day of March 2024, by the following vote of the City Council, to wit:
AYES:
NOES:
ABSTAIN:
ABSENT:
Sonny Dhaliwal, Mayor
ATTEST: APPROVED AS TO FORM:
Teresa Vargas, City Clerk Salvador Navarrete, City Attorney 409
SECTION 00500 ATTACHMENT
1. lb ..
CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24- 08
CUPCCAA INFORMAL BID SOLICITATION
CONTRACT
This Contract, dated March 11, 2024 is entered into by and between the City of Lathrop, a municipal corporation of the State of California ( City), and Trip Stop Sidewalk Repair Inc.
Contractor), whose Taxpayer Identification Number is
For and in consideration of the following covenants, terms and conditions, City and Contractor ( the parties) agree:
1. Term. The first term of this agreement shall commence on, and be binding on the parties on, the date of execution of this Agreement, and shall expire on June 30, 2024, subject to the earlier termination of this Agreement. This contract may be extended by the City Manager at his sole discretion for up to two (2) additional one- year terms as follows.
Optional Term 1: July 1, 2024 — June 30, 2025
Optional Term 2: July 1, 2025 — June 30, 2026
The City shall notify the Contractor in writing of its intent to extend the contract by June 1 of the current contract term
2. Pricing Stability for Optional Years. In the event that the City chooses to exercise the option for the 2nd and 3rd year, it is agreed that the pricing for these optional years will remain fixed at the rate established for the initial one year term. The contractor agrees not to raise the contract prices for the optional years, providing cost stability and predictability for the City.
3. General Scope of Project and Work. Construction Documents for Citywide Sidewalk Improvements, CIP PS 24- 08 (Project). Contractor shall furnish labor, services, materials and equipment in connection with the construction of the Project and complete the Work in accordance with the covenants, terms and conditions of this Contract to the satisfaction of City.
The work to be performed under this contract includes:
The removal and disposal of identified trip hazards in attachment ( A) (Unrepaired Sidewalk Reports). The Unrepaired Sidewalk Reports contain a list of sidewalks that have a vertical deviation of 3/" or more. The horizontal saw cutting of the concrete shall be made with horizontally -oriented circular blade embedded with diamond grit ( No Grinding) and provide a smooth transition between concrete panels for compliance with the Americans with Disabilities Act ( ADA). The cut areas shall be uniform, flat, and straight at the backline, have a non -slip finish and minimized scarring of the adjacent concrete.
Once the unrepaired sidewalks on attachment A have been addressed, a new sidewalk trip hazard assessment shall be made of areas 1- 4 in the approximate survey limit map attachment ( B). The sidewalk trip hazard assessment shall contain 00500- 1
410
SECTION 00500
CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24- 08
CUPCCAA INFORMAL BID SOLICITATION
GIS compatible survey data to include GPS latitude and longitude coordinates of all identified concrete deviations, street names, and measurement of the deviation in Inch- Feet and the cost of repair.
Saw cutting to remove trip hazards will be paid for as a function of the product of the cut depth (in.) and length of cut ( ft.) thusly: the average depth of cut (( max + min)/ 2) (inches) x
length of cut ( feet). Payment for this item
shall include full compensation for conforming to these requirements for sidewalk trip hazard cutting, removal and disposal of all concrete cut from sidewalks.
The Trip Hazard assessment Report will be paid on a lump sum basis. The lump sum cost for this bid item shall include full compensation for providing a trip hazard assessment containing the following data: GIS compatible survey data to include GPS latitude and longitude coordinates of all identified vertical deviations in concrete sidewalks greater than '/" one -quarter inch), street names, measurement of the vertical displacement in.) and approximate length of horizontal cut ( ft.) needed to restore ADA compliance, and the estimated cost of repair. Refer to attachment B Area 1- 4 for survey limits.
Any task necessary to accomplish the aforementioned tasks.
The work shall be completed within 80 working days following issuance of Notice to Proceed.
The Work shall be complete, and all appurtenant work, materials, and services not expressly shown or called for in the Construction Documents which may be necessary for the complete and proper construction of the Work in good faith shall be performed, furnished, and installed by the Contractor as though originally specified or shown. The Contractor will be compensated for actual work performed in accordance with the unit prices and provisions contained in these Construction Documents.
Base Bid Total: $69, 795 (Sixtynine - Thousand Seven Hundred Ninety Five dollars and zero cents)
3. Construction Documents. This Contract shall include the Construction Documents which are on file with the Public Works Department and are hereby incorporated by reference i.e. Project Specifications, Project Plans, addenda, certification of insurance, workers compensation certification, and Warranty Bond Acknowledgement) and the Bid Documents submitted by on February 15, 2024. For the
purposes of construing, interpreting and resolving inconsistencies between the provisions of this Contract, these documents and the provisions thereof are set forth in the order of precedence described in Article 3 of the General Conditions. 00500- 2
411
SECTION 00500
CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24- 08
CUPCCAA INFORMAL BID SOLICITATION
4. Compensation. In consideration of Contractor' s
performance of its obligations hereunder,
City shall pay to Contractor the amount set forth in Contractor' sBid in accordance with the provisions of this Contract and upon the receipt of written invoices and all necessary supporting documentation within the time set forth in the Construction Documents.
Contractor hereby shall not be permitted to invoice the City nor accept compensation for work not yet complete. In no event, shall the Contractor be entitled to payment for work not included in the approved scope of work, a written task order, or change order signed by the City' s
Public Works Director prior to commencement of any work.
5. Insurance. On or before the Date of Execution, Contractor shall obtain and maintain the policies of insurance coverage described in Section 5. 2 of the General Conditions on terms and conditions and in amounts as may be required by the City. City shall not be obligated to take out insurance on Contractor' s
personal property or the personal property of any
person performing labor or services or supplying materials or equipment under the Project.
Contractor shall furnish City with the certificates of insurance and with original endorsements affecting coverage required under this Contract on or before the Date of Execution. The certificates and endorsements for each insurance policy shall be signed by a
person who is authorized by that insurer to bind coverage in its behalf. Proof of insurance shall be mailed to the Project Manager to the address set forth in Section 15 of this Contract.
6. Indemnification. Contractor agrees to protect, defend, indemnify and hold City, its City Council members, officers, employees, engineer, and construction manager harmless from and against any and all claims, demands, liabilities, losses, damages, costs, expenses, liens, penalties, suits, or judgments, arising in whole or in part, directly or indirectly, at any time from any injury to or death of persons or damage to property as a result of the willful or negligent act or omission of Contractor, or which results from Contractor' s noncompliance
with any Law respecting the condition, use, occupation or safety of the Project site, or any part thereof, or which arises from Contractor' sfailure to do anything required under this Contract or for doing anything which Contractor is required not to do under this Contract, or which arises from conduct for which any Law imposes strict liability on Contractor in the performance of or failure to perform the terms and conditions of this Contract, except as may arise from the sole willful or negligent act or omission of City or any of its City Council members, officers, employees. This indemnification shall extend to any and all claims, demands, or liens made or filed by reason of any construction, renovation, or remodeling work performed by Contractor under this Contract at any time during the term of this Contract, or arising thereafter.
7. Assumption of Risk. Contractor agrees to voluntarily assume any and all risk of loss, damage, or injury to the property of Contractor which may occur in, on, or about the Project site at any time and in any manner, excepting such loss, injury, or damage as may be caused by the sole willful or negligent act or omission of City or any of its City Council members, officers, or employees.
8. Waiver. The acceptance of any payment or performance, or any part thereof, shall not operate as a waiver by City of its rights under this Contract. A waiver by City of any breach of any part or provision of this Contract by Contractor shall not operate as a waiver or 00500- 3
412
SECTION 00500
CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24- 08
CUPCCAA INFORMAL BID SOLICITATION
continuing waiver of any subsequent breach of the same or any other provision, nor shall any custom or practice which may arise between the parties in the administration of any part or provision of this Contract be construed to waive or to lessen the right of City to insist upon the performance of Contractor in strict compliance with the covenants, terms and conditions of this Contract.
9. Compliance with Laws. Contractor shall comply with all Laws now in force or which may hereafter be in force pertaining to the Project and Work and this Contract, with the requirement of any bond or fire underwriters or other similar body now or hereafter constituted, with any discretionary license or permit issued pursuant to any Law of any public agency or official as well as with any provision of all recorded documents affecting the Project site, insofar as any are required by reason of the use or occupancy of the Project site, and with all Laws pertaining to nondiscrimination and affirmative action in employment and hazardous materials.
DEPARTMENT OF INDUSTRIAL RELATIONS- COMPLIANCE MONITORING UNIT DIR Registration.
a) Contractor and Subcontractor Compliance. Strict compliance with DIR registration requirements pursuant to Labor Code Section 1725. 5 is a material obligation of the Contractor under the Contract Documents. The foregoing includes without limitation, compliance with DIR Registration requirements at all times during performance of the Work by the Contractor and all Subcontractors of any tier. The failure of the Contractor and all Subcontractors of every tire to be DIR registered at all times during the performance of the Work is the Contractor' sdefault of a material obligation of the Contractor under the Contract Documents.
b) No Subcontractor Performance of Work Without DIR Registration. No portion of the Work is permitted to be performed by a Subcontractor of any tier unless the Subcontractor is a DIR Registered contractor.
c) Contractor Obligation to Verify Subcontractor DIR Registration Status. An affirmative and on -going obligation of the Contractor under the Contract Documents is the Contractor' sverification that all Subcontractors, of all tiers, are at all times during performance of Work in full and strict compliance with DIR Registration requirements.
The Contractor shall not permit or allow any Subcontractor of any tier to perform any Work without the Contractor' sverification that all such Subcontractors are in full and strict compliance with DIR Registration requirements.
d) Contractor Obligation to Request Substitution of Non- DIR Registered Subcontractor. If any Subcontractor identified in the Contractor' sSubcontractor List submitted with the Contractor' s
proposal for the Work is not DIR Registered at the time of opening of proposals for the Work or if a Subcontractor' sDIR registration lapses prior to or during a 00500- 4
413
SECTION 00500
CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24- 08
CUPCCAA INFORMAL BID SOLICITATION
Subcontractor' s
performance ofWork, the Contractor shall request the CITY' s consent to substitute the non- DIR registered Subcontractor pursuant to Labor Code Section 1771.(c)( 3) and/ or Labor Code Section 1771.(d).
Certified Payroll Records
a) Compliance with Labor Code Section 1771. 4and 1776. A material obligation of the Contractor under the Contract Documents is: (i) the Contractor' sstrict compliance with the requirements pursuant to Labor Code Section 1771. 4 and 1776 for preparation and submittal of Certified Payroll Records (" CPR"); and ( ii) the Contractor' senforcement of CPR preparation and submittal for all Subcontractors of every tier. b) Express Condition Precedent to Payment of Contact Price. Strict compliance with CPR requirements established pursuant to Labor Code Section 1776 is an express condition precedent to the CITY' sobligation to: (i) process any request for payment of any portion of the Contract Price; or ( ii) to disburse any portion ofthe Contract Price to the Contractor.
The Contractor shall demonstrate strict compliance with CPR preparation and submittal requirements by delivery to the CITY of electronic files or hard copies of all CPR' s submitted by the Contractor and/ or Subcontractors for Work pursuant to Labor Code Section 1771. 4 and 1776 concurrently with the submittal thereof to the Labor Commissioner. The CITY: (i) shall not be obligated to process or disburse any portion of the Contract Price; or ( ii) shall not be deemed in default of the CITY' s obligations under
the Contract Documents unless the Contractor' sdemonstrates strict compliance with CPR preparation and submittal requirements.
c) PWR Monitoring and Enforcement. During the Work pursuant to Labor Code Section 1771. 4(a)(), the Department of Industrial Relations shall monitor and enforce the obligation of the Construction and Subcontractors of every tier to pay the laborers performing any portion of the work the PWR established for the classification of work/ labor performed.
RECORD OF WAGES PAID: INSPECTION
Pursuant to Labor Code section 1776, Contractor stipulates the following:
a) Contractor and each subcontractor shall keep an accurate payroll record, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her in connection with the public work under the Facilities lease and Construction Provisions. Such records shall be on forms provided by the Division of Labor Standards Enforcement or shall contain the same information of such forms. The payroll records may consist of payroll data that are maintained as computer records, if printouts contain the same information as the forms provided by the division and the printouts are verified as specified in subdivision ( a) of Labor Code section 1776.
00500- 5
414
SECTION 00500
CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24- 08
CUPCCAA INFORMAL BID SOLICITATION
b) The payroll records enumerated under subdivision ( a) shall be certified and shall be available for inspection at all reasonable hours at the principal office of Contractor on the following basis:
1)A certified copy of an employee' spayroll record shall be made available for inspection or furnished to such employees or his or her authorized representative on request.
2) A certified copy of all payroll records enumerated in subdivision ( a) shall be made available for inspection or furnished upon request to a representative of the CITY,
the Division of Labor Standards Enforcement, and Division of Apprenticeship Standards of the Department of Industrial Relations.
3)A certified copy of all payroll records enumerated in subdivision ( a) shall be made available upon request by the public for inspection or copies thereof. However, a request by the public shall be made through either the CITY, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement. If the requested payroll records have not been provided pursuant to paragraph ( 2), the requesting party shall, prior to being provided the records, reimburse the costs of preparation by Contractor, subcontractors, and the entity through which the request was made. The public shall not be given access to such records at the principal office of Contractor.
c) Contractor shall file a certified copy of the records enumerated in subdivision ( a) with the entity that requested such records within ten ( 10) days after receipt of the written request. d) Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency, by the CITY, the Division of Apprenticeship Standards, or the division of Labor Standards Enforcement shall be marked or obliterated in such a manner as to prevent disclosure of an individual' sname, address and social security number. The name and address of contractor awarded the contract or performing the contract shall not be marked or obliterated.
e) Contractor shall inform the CITY of the location of the records enumerated under subdivision ( a), including the street address, city, and county, and shall, within ( 5) working days, provide a notice of a change of location and address. f) In the event of noncompliance with the requirements of this Article, Contractor shall have ten ( 10) days in which to comply subsequent to receipt of written notice specifying in what respects Contractor must comply with this Article. Should noncompliance still be evident after such 10 -day period, Contractor shall pay a penalty ofOne- Hundred Dollars ($ 100. 00) to the CITY for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Apprenticeship Standards 00500- 6
415
SECTION 00500
CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24- 08
CUPCCAA INFORMAL BID SOLICITATION
or the Division of Labor Standards Enforcement, such penalties shall be withheld from the progress payment then due.
The responsibility for compliance with this Article shall rest upon Contractor.
10. Bonds. As a condition precedent to City' s obligation to pay compensation to Contractor, and on or before the date of Execution, Contractor shall furnish to the Project Manager the Bonds as required under Section 00700 - 5. 1A.
11. Representations and Warranties. In the supply of any materials and equipment and the rendering of labor and services during the course and scope of the Project and Work, Contractor represents and warrants:
1) Any materials and equipment which shall be used during the course and scope of the Project and Work shall be vested in Contractor;
2) Any materials and equipment which shall be used during the course and scope of the Project and Work shall be merchantable and fit to be used for the particular purpose for which the materials are required;
3) Any labor and services rendered and materials and equipment used or employed during the course and scope of the Project and Work shall be free of defects in workmanship for a period of one ( 1) year after the recordation of the Notice of Substantial Completion, or, if no such notice is required to be filed, on the date that final payment is made hereunder;
4) Any manufacturer' swarranty obtained by Contractor shall be obtained or shall be deemed obtained by Contractor for and on behalf of City. 5) Any information submitted by Contractor prior to the award of Contract, or thereafter, upon request, whether or not submitted under a continuing obligation by the terms of the Contract to do so, is true and correct at the time such information is submitted or made available to the City;
6) Contractor has not colluded, conspired, or agreed, directly or indirectly, with any person in regard to the terms and conditions of Contractor' sBid, except as may be permitted by the Notice to Contractors;
7)
8)
Contractor has the power and the authority to enter into this Contract with City, that the individual executing this Contract is duly authorized to do so by appropriate resolution, and that this Contract shall be executed, delivered and performed pursuant to the power and authority conferred upon the person or persons authorized to bind Contractor;
Contractor has not made an attempt to exert undue influence with the Project Manager or any other person who has directly contributed to City' s decision to award the Contract to Contractor;
00500- 7
416
SECTION 00500
CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24- 08
CUPCCAA INFORMAL BID SOLICITATION
9) There are no unresolved claims or disputes between Contractor and City which would materially affect Contractor' sability to perform under the Contract; 10) Contractor has furnished and will furnish true and accurate statements, records, reports, resolutions, certifications, and other written information as may be requested of Contractor by City from time to time during the term of this Contract; 11) Contractor and any person performing labor and services under this Project is duly licensed as a contractor with the State of California as required by California Business & Professional Code Section 7028, as amended; and 12) Contractor has fully examined and inspected the Project site and has full knowledge of the physical conditions of the Project site.
12. Assignment. This Contract and the performance required hereunder is personal to Contractor, and it shall not be assigned by Contractor. Any attempted assignment shall be null and void.
13. Claims of Contractor. All claims pertaining to extra work, additional charges, or delays within the Contract Time or other disputes arising out of the Contract shall be submitted by Contractor in accordance with the General Conditions.
14. Audits by City. During the term of this Contract and for a period of not less than three ( 3) years after the expiration or earlier termination of this Contract, City shall have the right to audit Contractor' sProject -related and Work -related writings and business records, as such terms are defined in California Evidence Code Sections 250 and 1271, as amended, during the regular business hours of Contractor, or, if Contractor has no such hours, during the regular business hours of City.
15. Notices. All contracts, agreements, appointments, approvals, authorizations, claims, demands, Change Orders, consents, designations, notices, offers, requests and statements given by either party to the other shall be in writing and shall be sufficiently given and served upon the other party if (1) personally served, ( 2) sent by the United States mail, postage prepaid, (3) sent by private express delivery service, or (4) in the case of a facsimile transmission, if sent to the telephone FAX number set forth below during regular business hours of the receiving party and followed with two (2) days by delivery of a hard copy of the material sent by facsimile transmission, in accordance with ( 1), (2) or ( 3) above.
Personal service shall include, without limitation, service by delivery and service by facsimile transmission.
To City: City of Lathrop
City Clerk
390 Towne Centre Drive
Lathrop, CA 95330
00500- 8
417
SECTION 00500
CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24- 08
CUPCCAA INFORMAL BID SOLICITATION
16. Miscellaneous
1)
8)
Copy to:
To Contractor:
Phone:
Fax:
ATTN:
City of Lathrop
Department of Public Works
390 Towne Centre Drive
Lathrop, CA 95330
PHONE: ( 209) 941- 7363
FAX: (209) 941- 7449
ATTN: Senior Construction Manager
Bailee Disclaimer. The parties understand and agree that City does not purport to be Contractor' sbailee, and City is, therefore, not responsible for any damage to the personal property of Contractor.
Consent. Whenever in this Contract the approval or consent of a party is required, such approval or consent shall be in writing and shall be executed by a person having the express authority to grant such approval or consent.
Controlling Law. The parties agree that this Contract shall be governed and construed by and in accordance with the Laws of the State of California.
Definitions. The definitions and terms are as defined in these specifications.
Force Majeure. Neither party shall be deemed to be in default on account of any delay or failure to perform its obligations under this Contract, which directly results from an Act of God or an act of a superior governmental authority.
Headings. The paragraph headings are not a part of this Contract and shall have no effect upon the construction or interpretation of any part of this Contract.
Incorporation of Documents. All documents constituting the Construction Documents described in Section 3 hereof and all documents which may, from time to time, be referred to in any duly executed amendment hereto are by such reference incorporated in this Contract and shall be deemed to be part of this Contract.
Integration. This Contract and any amendments hereto between the parties constitute the entire contract between the parties concerning the Project and Work, and there are no other prior oral or written contracts between the parties that are not incorporated in this Contract.
00500- 9
418
SECTION 00500
CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24- 08
CUPCCAA INFORMAL BID SOLICITATION
9) Modification of Contract. This Contract shall not be modified or be binding upon the parties unless such modification is agreed to in writing and signed by the parties. 10) Provision. Any contract, covenant, condition, clause, qualification, restriction, reservation, term or other stipulation in the Contract shall define or otherwise control, establish, or limit the performance required or permitted or to be required of or permitted by either party. All provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions.
11) Resolution. Contractor shall submit with its Bid a copy of any corporate or partnership resolution or other writing, which authorizes any director, officer or other employee or partner to act for or on behalf of Contractor or which authorizes Contractor to enter into this Contract.
12) Severability. If a court of competent jurisdiction finds or rules that any provision of this Contract is void or unenforceable, the provisions of this Contract not so affected shall remain in full force and effect.
13) Status of Contractor. In the exercise of rights and obligations under this Contract, Contractor acts as an independent contractor and not as an agent or employee of City. Contractor shall not be entitled to any rights and benefits accorded or accruing to the City Council members, officers or employees of City, and Contractor expressly waives any and all claims to such rights and benefits. 14) Successors and Assigns. The provisions of this Contract shall inure to the benefit of, and shall apply to and bind, the successors and assigns of the parties. 15) Time of the Essence. Time is of the essence of this Contract and each of its provisions. In the calculation of time hereunder, the time in which an act is to be performed shall be computed by excluding the first Day and including the last. If the time in which an act is to be performed falls on a Saturday, Sunday, or any Day observed as a legal holiday by City, the time for performance shall be extended to the following Business Day.
16) Venue. In the event that suit is brought by either party hereunder, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of San Joaquin or in the United States District Court for the Eastern District of California.
17) Recovery of costs. The prevailing party in any action brought to enforce the terms of this Contract or arising out of this Contract, including the enforcement of the indemnity provision( s), may recover its reasonable costs, including reasonable attorney' sfees, incurred or expended in connection with such action against the non -prevailing party.
18) Contractor and subcontractors must comply with all applicable standards, orders, or requirements issued under Section 306 of the Clean Air Act (42 USC 1857( h)), Section 508 of the Clean Water Act (33 USC1368), Executive Order 11738, and Environmental Protection Agency Regulations at 40 CFR Part 15. 00500- 1
419
SECTION 00500
CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24- 08
CUPCCAA INFORMAL BID SOLICITATION
19) Contractors and subcontractors must comply with mandatory standards and policies relating to the energy efficiency which are contained in the State Energy Conservation Plan issued in compliance with the Energy Policy and Conservation ACT (Public Law 94- 163, 89 stat 871).
20) The Contractor shall provide access to the site for the Environmental Protection Agency and its duly authorized representatives, and the City. 21) If during the course of construction evidence of deposit of historical or archaeological interest is found, the Contractor shall cease operation affecting the find and shall notify the City, who shall notify the EPA and the State Historic Preservation Officer. No further disturbance of the deposits shall ensue until the Contractor has been notified by the City that construction may proceed. The City will issue a notice to proceed only after the state official has surveyed the find and made a determination to the EPA and the City. Compensation to the contractor, if any, for lost time or changes in construction to avoid the find, shall be determined in accordance with changed conditions or change order provisions of the Construction Documents.
22) Notice to Proceed. Prior to commencing work under this Contract, CONTRACTOR shall receive a written " Notice to Proceed" from CITY. A Notice to Proceed shall not be issued until all necessary bonds and insurances have been received. City shall not be obligated to pay CONTRACTOR for any services prior to issuance of the Notice to proceed.
23) Signatures. The individuals executing this Contract represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Contract on behalf of the respective legal entities of the CONTRACTOR and the CITY. This Contract shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
24) This project is a public works project: Contractor shall comply with requirements of California Labor Code § 1700 and following, and prevailing wages shall be paid for work performed on this project.
25) The statutory provisions for penalties for failing to comply with the State of California wage and labor laws will be enforced, as well as that for failing to pay prevailing wages.
EXHIBITS:
EXHIBIT A: Contractor' sSubmitted Bid Packet
Certification of insurance, performance and payment bonds, and worker' s compensation certification shall be furnished to the City by the Contractor after City Council' sapproval with resolution.
00500- 11
420
SECTION 00500
CITYWIDE SIDEWALK IMPROVEMENTS, CIP PS 24- 08
CUPCCAA INFORMAL BID SOLICITATION
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above stated in Lathrop, California.
CONTRACTOR:
By:
Name:
Title:
CITY OF LATHROP
APPROVED AS TO FORM:
By:
Salvador Navarrete, City Attorney
RECOMMENDED FOR APPROVAL:
By:
Michael King, Assistant City Manager
APPROVED:
By:
Stephen J. Salvatore, City Manager
END OF SECTION)
00500- 12
421
EXHIBIT " A "
SECTION 00300
CITYWIDE SIDEWALK IMPROVEMENTS, CIF PS 24- 08
CUPCCAA INFORMAL BID SOLICITATION BID PROPOSAL FORMS
CITYWIDE SIDEWALK IMPROVEMENTS, PS 24- 08
BID SCHEDULE
Term 1
BID
ITEM
DESCRIPTION QUANTITY UNITS
UNIT
PRICE
EXTENDED
TOTAL
1 Mobilization to all worksites 1 LS
No Charge
0 2
Traffic Control and advanced Notification
to residents at all worksites
1 LS N/ A 0 / N/ A
3 Saw Cutting to Remove Trip Hazard %"
and above
2970 IN -FT 23. 50 69, 795. 00
4 Assessment, Trip Hazard Inventory and
Data Provision
1 LS No Charge 0
TOTAL BID: $ $ 69, 795. 00
TOTAL BID IN WORDS: Sixty Nine Thousand Seven Hunded Ninety Five Dollars and No Cents 00300- 2
422
ITEM 4. 14
CITY MANAGER' SREPORT
MARCH 11, 2024 CITY COUNCIL REGULAR MEETING
ITEM:
RECOMMENDATION:
AUTHORIZE ACCEPTANCE OF A SB 1383 LOCAL
ASSISTANCE GRANT FROM THE DEPARTMENT
OF RESOURCES RECYCLING AND RECOVERY
CALRECYCLE)
Adopt a Resolution Authorizing the Acceptance
of a SB 1383 Local Assistance Grant from the
Department of Resources, Recycling, and
Recovery ( CalRecycle) to Reduce Organic
Waste
SUMMARY:
City staff looks to identify ways to additionally fund waste reduction opportunities within the City of Lathrop to remain in compliance with state mandates. The Department of Resources Recycling and Recovery ( CalRecycle) offers grants to assist with the costs associated with resources and implementation of state mandates related to waste reduction. The funds will be awarded in Fiscal Year 2024-5 and the grant will be included in next year' s budget. The funding will enable the City to effectively market, promote and educate residents about organic waste reduction.
BACKGROUND:
Public Resources Code section 48000 et seq. authorizes CalRecycle to administer various grant programs in furtherance of the State of California' s efforts to reduce, recycle, and reuse solid waste generated in the state, thereby preserving landfill capacity, and protecting public health and safety and the environment. In furtherance of this authority, CalRecycle is required to establish procedures governing the application, awarding, and management of the grants.
The City of Lathrop applied for grant funding from CalRecycle. The SB 1383 Local Assistance Grant Program provides funding in support of Senate Bill 1383, the Shortlived Climate Pollutant Reduction Act of 2016 that aims to reduce organic waste. The City originally requested $ 51, 200 towards Education, Equipment and Record Keeping based upon CalRecycle grant application criteria. The City of Lathrop was awarded 98,34.
RECOMMENDATION:
Staff recommends Council to authorize the acceptance of the awarded SB 1383 Local Assistance Grant Program for Fiscal Year 2022-3 in the amount of $ 98,34 from CalRecycle and authorizes staff to spend the funds in accordance with program requirements.
423
CITY MANAGER' S REPORT PAGE 2
MARCH 11, 2024 CITY COUNCIL REGULAR MEETING
AUTHORIZE ACCEPTANCE OF A SB 1383 LOCAL ASSISTANCE GRANT FROM
THE DEPARTMENT OF RESOURCES RECYCLING AND RECOVERY
CALRECYCLE) TO FUND ORGANIC WASTE REDUCTION
FISCAL IMPACT:
Accepting the grant funds would not result in any anticipated fiscal impacts. The grant program does not have any matching requirements. The funds will be awarded in Fiscal Year 2024-5 and the grant will be included in next year' s budget. The funding will enable the City to effectively market, promote and educate residents about organic waste reduction.
ATTACHMENT:
A. Resolution Authorizing the Acceptance of a SB 1383 Local Assistance Grant from the Department of Resources, Recycling, and Recovery ( CalRecycle) which Authorizes Staff to Spend the Funds in Accordance with Program Requirements
424
CITY MANAGER' SREPORT PAGE 3
MARCH 11, 2024 CITY COUNCIL REGULAR MEETING
AUTHORIZE ACCEPTANCE OF A SB 1383 LOCAL ASSISTANCE GRANT FROM
THE DEPARTMENT OF RESOURCES RECYCLING AND RECOVERY
CALRECYCLE) TO FUND ORGANIC WASTE REDUCTION
APPROVALS:
Todd Sebastian
Director of Parks and Recreation
Cari Jam
Director/ o Finance
3..' 72
Date
Date
3/ 5-/ wLz, z
Michael King Date
Assistant City Manager
3 • 5-• 2c. Zy
3 - aril. (7/
Salvador Navarrete Date
City Attorney
3.( .'24
Step en J. Salvatore Date
City Manager
425
RESOLUTION NO. 24 -
Adopt a Resolution Authorizing the Acceptance of a SB 1383 Local Assistance Grant Program from the Department of Resources, Recycling, and Recovery ( CalRecycle) to Reduce Organic Waste
WHEREAS, City staff looks to identify ways to additionally fund waste reduction opportunities within the City of Lathrop to remain in compliance with state mandates; and
WHEREAS, The Department of Resources Recycling and Recovery CalRecycle) offers grants to assist with the costs associated with resources and implementation of state mandates related to waste reduction.; and WHEREAS, Public Resources Code sections 48000 et seq. authorize the Department of Resources Recycling and Recovery ( CalRecycle) to administer various grant programs ( grants) in furtherance of the State of California' s (state) efforts to reduce, recycle and reuse solid waste generated in the state thereby preserving landfill capacity and protecting public health and safety and the environment; and WHEREAS, in furtherance of this authority CalRecycle is required to establish procedures governing the application, awarding, and management of the grants; and WHEREAS, The City of Lathrop applied for the SB 1383 Local Assistance Grant Program which provides funding in support of Senate Bill 1383, the Short- lived Climate Pollutant Reduction Act of 2016; and
WHEREAS, The City of Lathrop was awarded $ 98,34.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Lathrop does hereby accept the awarded SB 1383 Local Assistance Grant Program for Fiscal Year 2022-3 in the amount of $ 98,34 from CalRecycle which authorizes staff to spend the funds in accordance with program requirements. 426
The foregoing resolution was passed and adopted this 11th day of March 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Sonny Dhaliwal, Mayor
ATTEST: APPROVED AS TO FORM:
Teresa Vargas, City Clerk Salvador Navarrete, City Attorney 427
Department of Resources Recycling and Recovery ( CalRecycle) Narrative Proposal
SB 1383 Local Assistance Grant Program
Fiscal Year 2022-3
Instructions
The Narrative Proposal document describes the details of the proposed project. All responses must be provided within the greyed -out text box under each prompt in this document. Utilizing a document or form other than the official CalRecycle Narrative Proposal document, or tampering with the CalRecycle version, will subject the applicant to disqualification from the SB 1383 Local Assistance Grant Program.
Each section of this form must have a
response. If a question does not apply to the
proposed project use the response field to explain why it is not applicable. Ensure the narrative responses are concise, detailed, and address each portion of the question.
Information presented must be consistent with tasks line items included in the Budget, and any other supporting documentation submitted. Refer to the Application Guidelines and Instructions for further information.
After completing this document, save it, and upload it to the Documents Tab of your application in the Grants Management System ( GMS).
Applicant Name: City of Lathrop
Project Description
1. Provide a clear and detailed description of the proposed grant project that will be implemented as a direct result of receiving grant funds, including a description of the edible food recovery activities, if applicable.
The City of Lathrop is looking to set up educational resources at all our City -Wide Special Events to increase our outreach and education to Lathrop residents regarding SB 1383 requirements. This would include a logoed pop- up, flag and tablecloth for a booth set up specifically at each event with Solid Waste and Recycling information including SB 1383.
Additionally, funds would go directly to a Solid Waste and Recycling booklet that would be mailed to each residence, multi -residential and commercial occupant within the jurisdiction. Information specific to SB1383 and edible food recovery would be included along with QR codes and links directly to the CalRecycle website. Information regarding Edible Food Recovery would also be included.
The purchase of a three bin trailer - trash, recycling, organic waste would be wrapped with colorful insight on what items go in what bin and QR codes to visit for more information on organic waste reduction. Ideally the trailer would be Narrative Proposal
SB 1383 Local Assistance Grant, Fiscal Year 2022-3 1
428
Department of Resources Recycling and Recovery ( CalRecycle) positioned at all Special Events and used throughout the City to engage waste reduction and as a way to help eliminate contamination.
The City of Lathrop would like to continue to work with EcoHero to provide school wide assemblies on an annual basis in which children in grades k-5 learn the importance of source separating and organic waste reduction.
Through these outreach activities we hope to reach a significant number of our jurisdiction and highlight the City of Lathrop' scommitment to waste reduction.
Last, but not least, funds would be invested into the purchase of a tablet and Zabble software to assist with lip flip route reviews and tracking.
Budget
1. Provide a clear and detailed explanation of the costs you have included in the Budget template. Explain why the included costs are necessary for implementing the proposed grant project.
Cit of Lathrop Information Booth for Solid Waste and Recyling:
750 Logoed pop- u
200 Flag
250 Tablecloth
Cohesive branding for informational booth at all Special Events.
Solid Waste and Recycling booklet:
1000 Graphic Artist
5, 000 Printing Costs
3, 000 Mailing Costs
Mailer to all residential and commercial users providing information and links for waste reduction.
Three bin trailer - trash, recycling, organic waste:
21, 000 Trailer including shipping
7, 000 Wrap
Large three bin travel system to allowing the ability to mobilize at Special Events to assist with decreasing contamination and increase compliance.
EcoHero Assemblies:
8, 000
School assemblies for grades k-5
addressing organic waste reduction.
Tablet and Software:
2, 500 Tablet
2, 500 Software
The tablet and software will allow for the streamlining of lid flips and route review tracking.
Narrative Proposal
SB 1383 Local Assistance Grant, Fiscal Year 2022-3 2
429
Department of Resources Recycling and Recovery (CalRecycle) Jobs
1. Will the proposed grant project create new jobs? If yes, how many new positions will be created and how many hours per week will each position be working? List each new position and include job title, hourly wage, weekly hours to be worked, and a brief description of each position.
N/ A
2. Will the proposed grant project supplement the current salary for one or more existing positions? If yes, list each existing position receiving grant funding and include job title, weekly hours to be worked, and a brief description of each position.
N/ A
Note: Each position, funded in whole or in part by grant funds, must be included in the Budget.
Edible Food Recovery
1. Will funds be used for edible food recovery? If not, please explain why.
The Solid Waste and Recycling booklet would also contain information for Tier 1 and Tier 2 generators on the Edible Food Recovery component of SB 1383 along with addressed of local food banks and distribution centers.
2. Provide the name and address of all organizations associated with grant project activities involving edible food recovery. For example, if you are partnering with a local food bank to recover and distribute food, please list the address of the food bank here. If you are partnering with multiple organizations, please list all names and addresses.
N/ A
Narrative Proposal
SB 1383 Local Assistance Grant, Fiscal Year 2022-3 3
430
CalRecycle Grants Management System ( GMS)
GMSWeb Budget Summary
Lead Participant: City of Lathrop
Cycle Name: SB 1383 Local Assistance Grant Program
Cycle Code: OWR4 Fiscal Year: 2022-3
Grant Number: OWR4- 22- 0404
Total Budget Amount: $ 51, 200. 0 Amount Awarded: $98,34. 00 Education
Budget Amount: $ 17, 000.
Budget Detail: Special Solid Waste & Recycling Magazine Graphic Artist $ 1000
Printing $ 5000
Mailing $ 3000
Eco Hero School Assembly $ 8000
Budget Updates:
Equipment
Budget Amount: $31, 700. 0
Budget Detail: Three Bin Traveling Trailer for Events $ 21, 000 Trailer Wrap $ 7, 000
Pop- u Canopy for Events $ 750
Table Cloth for Events $ 250
Flag for Events $ 200
Tablet $ 2500
Budget Updates:
Record Keeping
Budget Amount: $2, 500. 0
Budget Detail: Zabble software - lid flip route review
Budget Updates:
https:// secure. ca (recycle. ca. gov/ Grants/ Grant/ Gra ntBudgets. aspx? Grant) D=27913 Date Generated: March 4, 2024 2: 59 PM Page 1 of 1
431
Fw: [** EXTERNAL**] SB1383 Local Assistance Grant Program ( OWR4) — City of Lathrop — Award Notification
Mon
Melissa
3/ 4/ 2024
Stathakopoulos <
10: 02 AM
mstathakopoulos@ci. lathrop. ca. us>
To:odd Sebastian < tsebastian@ci. lathrop. ca. us>; Sydney Foster < sfoster@ci. lathrop. ca. us> B 2 attachments ( 558 KB)
Procedures and Requirements - SB1383 Local Assistance Grant ( FY2022- 23). pdf; Terms and Conditions - SB1383 Local Assistance Grant ( FY2022- 23). pdf;
Thank you,
Cityof
t
mot4•
PARKS & RECREATION
WI
Cmating Active Recreation Experiences
MELISSA STATHAKOPOULOS
OFFICE ( 209) 941- 7370
DIRECT ( 209) 941- 7364
mstathakopoulos@ci. lathrop. ca. us
RECREATION MANAGER
Parks & Recreation 1 Solid Waste & Recycling
390 Towne Centre Dr.
Lathrop, CA 95330
Sent:
From: Batavia, Ashraf@CalRecycle < Ashraf. Batavia@CalRecycle. ca. gov> Monday, February 26, 2024 8: 56 AM
To:
Cc: Stephen
Melissa Stathakopoulos <
Salvatore < ssalvatore@ci. lathrop. ca. us>
mstathakopoulos@ci. lathrop. ca. us>
Subject: [** EXTERNAL**] SB1383 Local Assistance Grant Program ( OWR4) — City of Lathrop — Award Notification Congratulations! The Department of Resources Recycling and Recovery ( CalRecycle) approved awards for the SB1383 Local Assistance Grant Program, FY 2022-3. The Grant Award package consists of the following:
Exhibit A — Terms and Conditions
Exhibit B — Procedures and Requirements
Your specific award amount is: $98,34.
The grant award is subject to the conditions as stated in the Request for Approval of Awards for SB1383 Local Assistance Grant Program.
1. If the recommended grantee does not pay or bring current all outstanding debts or scheduled payments owed to CalRecycle within 60 calendar days of the date of this letter, then the proposed grantee will not have met the required conditions, and the award will be void.
2. The recommended grantee is responsible for submitting all outstanding documents required by CalRecycle during the application process, as well as those identified in the Application Guidelines and Instructions, prior to the release of funding.
3. The recommended grantee must have a valid Resolution in place within 60 days of the date of the award email.
432
Please note that your budget and activities have not yet been approved. I will be reaching out to you in the next few weeks to revise your budget and discuss eligible and ineligible costs.
Please do not incur costs until after a budget has been approved. If costs are incurred prior to budget approval, they will be considered ineligible.
A formal Grant Agreement will not be sent out. The Application Certification submitted with your application will act as the agreement for this program.
Please retain all Grant Award package documents, which include Exhibits A and B for your records.
If you have any questions, please contact me at (916) 341- 6205 or Ashraf. Batavia@CalRecycle. ca. gov.
I look forward to your participation in this grant program.
Sincerely,
Ashraf Batavia 1 Grant Manager
Department of Resources Recycling and Recovery (CalRecycle) Financial Resources Management Branch
1001 I Street, Sacramento, CA 95814
916) 341- 6205
433
Exhibit A
Terms and Conditions
SB 1383 Local Assistance Grant Program
Fiscal Year 2022-3
The following terms used in this Grant Agreement ( Agreement) have the meanings given to them below, unless the context clearly indicates otherwise:
CalRecycle" means the Department of Resources Recycling and Recovery.
Director" means the Director of CalRecycle or his or her designee.
Grant Agreement" and " Agreement" means all documents comprising the agreement between CalRecycle and the grantee for this grant.
Grant Manager" means CalRecycle staff person responsible for monitoring the grant.
Grantee" means the recipient of funds pursuant to this Agreement.
Program" means the SB 1383 Local Assistance Grant Program.
State" means the State of California, including, but not limited to, CalRecycle and/ or its designated officer.
Air or Water Pollution Violation
The grantee shall not be:
a) In violation of any order or resolution not subject to review promulgated by the State Air Resources Board or an air pollution control district. b) Out of compliance with any final cease and desist order issued pursuant to Water Code Section 13301 for violation of waste discharge requirements or discharge prohibitions.
c) Finally determined to be in violation of provisions of federal law relating to air or water pollution.
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 into this Agreement is binding on any of the parties. This Agreement may be amended, modified or augmented by mutual consent of the parties, subject to the requirements and restrictions of this paragraph.
Americans with Disabilities Act
The grantee assures the state that it complies with the Americans with Disabilities Act of 1990 ( ADA) (42 U. S. C.§ 12101 et seq.), which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA.
CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 1 434
Assignment, Successors, and Assigns
a) This Agreement may not be assigned by the grantee, either in whole or in part, without CalRecycle' sprior written consent.
b) The provisions of this Agreement shall be binding upon and inure to the benefit of CalRecycle, the grantee, and their respective successors and assigns.
Audit/ Records Access
The grantee agrees that CalRecycle, the Department of Finance, the Bureau of State Audits, or their designated representative( s) shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. The grantee agrees to maintain such records for possible audit for a minimum of three ( 3) years after final payment date or grant term end date, whichever is later, unless a longer period of records retention is stipulated, or until completion of any action and resolution of all issues which may arise as a result of any litigation, dispute, or audit, whichever is later. The grantee agrees to allow the designated representative( s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, the grantee agrees to include a similar right of the State to audit records and interview staff in any contract or subcontract related to performance of this Agreement.
It may be helpful to share the Terms and Conditions ( Exhibit A) and Procedures and Requirements (Exhibit B) with your finance department, contractors and subcontractors.
Examples of audit documentation include, but are not limited to: expenditure ledger, payroll register entries and time sheets, personnel expenditure summary form, travel expense log, paid warrants, contracts, change orders, invoices, and/ or cancelled checks.]
Authorized Representative
The grantee shall continuously maintain a representative vested with signature authority authorized to work with CalRecycle on all grant -related issues. The grantee shall, at all times, keep the Grant Manager informed as to the identity and contact information of the authorized representative.
Availability of Funds
CalRecycle' sobligations under this Agreement are contingent upon and subject to the availability of funds appropriated for this grant.
Bankruptcy/ Declaration of Fiscal Emergency Notification If the grantee files for protection under Chapter 9 of the U. S. Bankruptcy Code 11 U. S. C. §901 et seq.) or declares a fiscal emergency at any time during the Grant Term, the grantee shall notify CalRecycle within 15 days of such filing or declaration, pursuant to the procedures set forth in the section entitled " Communications" herein.
CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 2 435
Charter Cities
If the grantee is a charter city, a joint powers authority that includes one or more charter cities, or the regional lead for a regional program containing one or more charter cities, the grantee shall not receive any grant funding if such funding is prohibited by Labor Code section 1782. If it is determined that Labor Code section 1782 prohibits funding for the grant project, this Agreement will be terminated and any disbursed grant funds shall be returned to CalRecycle.
Child Support Compliance Act
For any agreement in excess of $ 100, 00, the grantee acknowledges that:
a) The grantee 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 Family Code Section 5200 et seq.
b) The grantee, 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.
Communications
All communications from the grantee to CalRecycle shall be directed to the Grant Manager. All notices, including reports and payment requests, required by this Agreement shall be given in writing by email, letter, or fax to the Grant Manager as identified in the Procedures and Requirements ( Exhibit B). If an original document is required, prepaid mail or personal delivery to the Grant Manager is required following the email or fax.
Compliance
The grantee shall comply fully with all applicable federal, state, and local laws, ordinances, regulations, and permits. The grantee shall provide evidence, upon request, that all local, state, and/ orfederal permits, licenses, registrations, and approvals have been secured for the purposes for which grant funds are to be expended. The grantee shall maintain compliance with such requirements throughout the Grant Term. The grantee shall ensure that the requirements of the California Environmental Quality Act are met for any approvals or other requirements necessary to carry
contractors
out the
and
terms
subcontractors
of this Agreement.
have all
The
local,
grantee
state,
shall
and/ or
ensure
federal
that all of grantee' s
permits, licenses,
registrations, certifications, and approvals required to perform the work for which they are hired. Any deviation from the requirements of this section shall result in nonpayment of grant funds.
Conflict of Interest
The grantee needs to be aware of the following provisions regarding current or former state employees. If the grantee has any questions on the status of any person CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 3 436
rendering services or involved with this Agreement, CalRecycle must be contacted immediately for clarification.
Current State Employees ( Pub. Contract Code, § 10410):
a) No officer or employee shall engage in any employment, activity, or enterprise from which the officer or employee receives compensation or has a financial interest and which is sponsored or funded by any state agency, unless the employment, activity, or enterprise is required as a condition of regular state employment. b) No officer or employee shall contract on his or her own behalf as an independent contractor with any state agency to provide goods or services.
Former State Employees ( Pub. Contract Code, § 10411):
a) For the two- year period from the date he or she left state employment, no former state officer or employee may enter into a contract in which he or she engaged in any of the negotiations, transactions, planning, arrangements or any part of the decision -making process relevant to the contract while employed in any capacity by any state agency.
b) For the twelve- month period from the date he or she left state employment, no former state officer or employee may enter into a contract with any state agency if he or she was employed by that state agency in a policy -making position in the same general subject area as the proposed contract within the twelve month period prior to his or her leaving state service.
If the grantee violates any provisions of above paragraphs, such action by the grantee shall render this Agreement void. ( Pub. Contract Code, § 10420).
Contractors/ Subcontractors
The grantee will be entitled to make use of its own staff and such contractors and subcontractors as are mutually acceptable to the grantee and CalRecycle. Any change in contractors or subcontractors must be mutually acceptable to the parties.
Immediately upon termination of any such contract or subcontract, the grantee shall notify the Grant Manager.
Nothing contained in this Agreement or otherwise, shall create any contractual relation between CalRecycle and any contractors or subcontractors of grantee, and no agreement with contractors or subcontractors shall relieve the grantee of its responsibilities and obligations hereunder. The grantee agrees to be as fully responsible to CalRecycle for the acts and omissions of its contractors and subcontractors and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the grantee. The grantee' s obligation to pay its contractors and subcontractors is an independent obligation from CalRecycle' sobligation to make payments to the grantee. As a result, CalRecycle shall have no obligation to pay or to enforce the payment of any moneys to any contractor or subcontractor.
Copyrights
Grantee retains title to any copyrights or copyrightable material produced pursuant to this Agreement. grantee hereby grants to CalRecycle a royalty -free, nonexclusive, CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 4 437
transferable, world-ie license to reproduce, translate, and distribute copies of any and all copyrightable materials produced pursuant this Agreement, for nonprofit, noncommercial purposes, and to have or permit others to do so on CalRecycle' s behalf.
Grantee is responsible for obtaining any necessary licenses, permissions, releases or authorizations to use text, images, or other materials owned, copyrighted, or trademarked by third parties and for extending such licenses, permissions, releases, or authorizations to CalRecycle pursuant to this section.
Corporation Qualified to do Business in California
When work under this Agreement is to be performed in California by a corporation, the corporation shall be in good standing and currently qualified to do business in the State.
Doing business" is defined in Revenue and Taxation Code Section 23101 as actively engaging in any transaction for the purpose of financial or pecuniary gain or profit.
Discharge of Grant Obligations
The grantee' sobligations under this Agreement shall be deemed discharged only upon acceptance of the final report by CalRecycle. If the grantee is a non- profit entity, the grantee' sBoard of Directors shall accept and certify as accurate the final report prior to its submission to CalRecycle.
Disclaimer of Warranty
CalRecycle makes no warranties, express or implied, including without limitation, the implied warranties of merchantability and fitness for a particular purpose, regarding the materials, equipment, services or products purchased, used, obtained and/ or produced with funds awarded under this Agreement, whether such materials, equipment, services or products are purchased, used, obtained and/ or produced alone or in combination with other materials, equipment, services or products. No CalRecycle employees or agents have any right or authority to make any other representation, warranty or promise with respect to any materials, equipment, services or products, purchased, used, obtained, or produced with grant funds. In no event shall CalRecycle be liable for special, incidental or consequential damages arising from the use, sale or distribution of any materials, equipment, services or products purchased or produced with grant funds awarded under this Agreement.
Discretionary Termination
The Director shall have the right to terminate this Agreement at his or her sole discretion at any time upon 30 days written notice to the grantee. Within 45 days of receipt of written notice, grantee is required to:
a) Submit a final written report describing all work performed by the grantee. b) Submit an accounting of all grant funds expended up to and including the date of termination.
c) Reimburse CalRecycle for any unspent funds.
Disputes
In the event of a dispute regarding performance under this Agreement or interpretation of requirements contained therein, the grantee may, in addition to any other remedies CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 5 438
that may be available, provide written notice of the particulars of such dispute to the Branch Chief of Financial Resources Management Branch, Department of Resources Recycling and Recovery, PO Box 4025, Sacramento, CA 95812- 4025. Such written notice must contain the grant number.
Unless otherwise instructed by the Grant Manager, the grantee shall continue with its responsibilities under this Agreement during any dispute.
Drug -Free Workplace Certification
The person signing this Agreement on behalf of the grantee certifies under penalty of perjury under the laws of California, that the grantee will comply with the requirements of the Drug -Free Workplace Act of 1990 ( Gov. Code, § 8350 et seq.) and will provide a drug -free workplace by taking the following actions:
a) Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited and specifying actions that will be taken against employees for violations. b) Establish a drug -free awareness program to inform employees about all of the following:
1) The dangers of drug abuse in the workplace.
2) The grantee' spolicy of maintaining a drug -free workplace. 3) Any available counseling, rehabilitation, and employee assistance programs. 4) Penalties that may be imposed upon employees for drug abuse violations. c) Require that each employee who works on the grant:
1) Receive a copy of the drug -free policy statement of the grantee. 2) Agrees to abide by the terms of such statement as a condition of employment on the grant.
Failure to comply with these requirements may result in suspension of payments under the Agreement or termination of the Agreement or both and grantee may be ineligible for award of any future State agreements if CalRecycle determines that the grantee has made a false certification, or violated the certification by failing to carry out the requirements as noted above.
Effectiveness of Agreement
This Agreement is of no force or effect until signed by both parties.
Entire Agreement
This Agreement supersedes all prior agreements, oral or written, made with respect to the subject hereof and, together with all attachments hereto, contains the entire agreement of the parties.
Environmental Justice
In the performance of this Agreement, the grantee 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.
CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 6 439
Failure to Perform as Required by this Agreement
CalRecycle will benefit from the grantee' sfull compliance with the terms of this Agreement only by the grantee' s:
a) Investigation and/ or application of technologies, processes, and devices which support reduction, reuse, and/ orrecycling of wastes.
b) Cleanup of the environment.
c) Enforcement of solid waste statutes and regulations, as applicable.
Therefore, the grantee shall be in compliance with this Agreement only if the work it performs results in:
a) Application of information, a process, usable data or a product which can be used to aid in reduction, reuse, and/ or recycling of waste.
b) The cleanup of the environment.
c) The enforcement of solid waste statutes and regulations, as applicable.
If the Grant Manager determines that the grantee has not complied with the Grant Agreement, the grantee may forfeit the right to reimbursement of any grant funds not already paid by CalRecycle, including, but not limited to, the 10 percent withhold.
In addition to forfeiture of grant funds, failure to perform as required by this Agreement may impact Grantee' seligibility for future grants offered by CalRecycle.
Force Majeure
Neither CalRecycle nor the grantee, its contractors, vendors, or subcontractors, if any, shall be responsible hereunder for any delay, default, or nonperformance of this Agreement, to the extent that such delay, default, or nonperformance is caused by an act of God, weather, accident, labor strike, fire, explosion, riot, war, rebellion, sabotage, flood, or other contingencies unforeseen by CalRecycle or the grantee, its contractors, vendors, or subcontractors, and beyond the reasonable control of such party.
Forfeit of Grant Funds/ Repayment of Funds Improperly
Expended
If grant funds are not expended, or have not been expended, in accordance with this Agreement, or if real or personal property acquired with grant funds is not being used, or has not been used, for grant purposes in accordance with this Agreement, the Director, at his or her sole discretion, may take appropriate action under this Agreement, at law or in equity, including requiring the grantee to forfeit the unexpended portion of the grant funds, including, but not limited to, the 10 percent withhold, and/ or to repay to CalRecycle any funds improperly expended.
Generally Accepted Accounting Principles
The grantee is required to use Generally Accepted Accounting Principles in documenting all grant expenditures.
Grant Manager
The Grant Manager' sresponsibilities include monitoring grant progress, and reviewing and approving Grant Payment Requests and other documents delivered to CalRecycle pursuant to this Agreement. The Grant Manager may monitor grantee performance to CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 7 440
ensure that the grantee expends grant funds appropriately and in a manner consistent with the terms and conditions contained herein. The Grant Manager does not have the authority to approve any deviation from or revision to the Terms and Conditions Exhibit A) or the Procedures and Requirements ( Exhibit B), unless such authority is expressly stated in the Procedures and Requirements ( Exhibit B).
Grantee Accountability
The grantee is ultimately responsible and accountable for the manner in which the grant funds are utilized and accounted for and the way the grant is administered, even if the grantee has contracted with another organization, public or private, to administer or operate its grant program. In the event an audit should determine that grant funds are owed to CalRecycle, the grantee is responsible for repayment of the funds to CalRecycle.
Grantee' sIndemnification and Defense of the State
The grantee agrees to indemnify, defend and save harmless the state and CalRecycle, and their officers, agents and employees from any and all claims and losses accruing or resulting to any and all contractors, subcontractors, suppliers, 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 from any and all claims and losses accruing or resulting to any person, firm or corporation who may be injured or damaged by the grantee as a result of the performance of this Agreement.
Grantee' sName Change
A written amendment is required to change the grantee' s name as listed on this Agreement. Upon receipt of legal documentation of the name change, CalRecycle will process the amendment. Payment of Payment Requests presented with a new name cannot be paid prior to approval of the amendment.
In Case of Emergency
In the event of an emergency, or where there is an imminent threat to public health and safety or the environment, the grantee may choose, at its own risk, to incur grant - eligible expenses not previously included in the approved Budget, subject to subsequent approval by the Grant Manager of both the Budget change and the need to implement the Budget change on an emergency basis. The grantee shall notify the Grant Manager of the emergency and the Budget change at the earliest possible opportunity. CalRecycle reserves the right to accept or reject determination that the circumstances constituted an
the grantee' s
emergency or a threat to public
health and safety or the environment. If the Grant Manager determines that the circumstances did not constitute an emergency or a threat to public health or safety, the Budget change will be disallowed.
CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 8 441
Limited Waiver of Sovereign Immunity and Consent to
Jurisdiction
The Grantee expressly and irrevocably waives sovereign immunity ( and any defenses based thereon) in favor of CalRecycle, but not as to any other person or entity, as to any dispute which specifically arises under this Agreement and not as to any other action, matters or disputes.
The Grantee does not waive its sovereign immunity with respect to ( i) actions by third parties, except for parties acting on behalf of, under authorization from the Grantee or CalRecycle, or (ii) disputes between the Grantee and CalRecycle which do not specifically arise under this Agreement. The Grantee further agrees that exhaustion of tribal administrative remedies, including before any tribal court, shall not be required prior to proceeding to filing a complaint in the appropriate court of law; and The Grantee and CalRecycle agree that any monetary damages awarded or arising under this Agreement shall be exclusively limited to actual direct damages incurred based on obligations contained in this Agreement that have been demonstrated with substantial certainty and which do not, in any event, exceed the total amount of the award under this Agreement. The Grantee and CalRecycle agree not to assert any claim for damages, injunctive, or other relief which is not consistent with the provisions of this Agreement; and
The Grantee and CalRecycle may seek, and the Grantee may seek after it has exhausted any available remedy through the Government Claims Program and the Program so approves, judicial review for breach of contract in the State Superior Court for Sacramento County, including any appellate proceedings. The Grantee and CalRecycle expressly consent to the jurisdiction of such Court, provided that:
a) No person or entity other than the Grantee and CalRecycle is a party to the action, unless failure to join a third party would deprive the court of jurisdiction; provided, however, that nothing herein shall be construed to constitute a waiver of the sovereign immunity of the Grantee or CalRecycle in respect to any such third party. b) The judgment so entered has the same force and effect as, and is subject to all the provisions of law relating to, a judgment in a civil action, and may be enforced like any other judgment of the court in which it is entered.
Nothing in this Agreement shall be construed to constitute a waiver of the sovereign immunity of the Grantee with respect to intervention by any additional party not deemed an indispensable party to the proceeding. Unless otherwise agreed by the Grantee and CalRecycle, any dispute resolution meetings or communications, or mediation, shall be in the context of a settlement discussion to potential litigation and remain confidential to the extent not prohibited by applicable law.
CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 9 442
No Agency Relationship Created/ Independent Capacity
The grantee and the agents and employees of grantee, in the performance of this Agreement, shall act in an independent capacity and not as officers or employees or agents of CalRecycle.
No Waiver of Rights
CalRecycle shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by CalRecycle. No delay or omission on the part of CalRecycle in exercising any rights shall operate as a waiver of such right or any other right. A waiver by CalRecycle of a provision of this Agreement shall not prejudice or constitute a waiver of CalRecycle' sright otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by CalRecycle, nor any course of dealing between CalRecycle and grantee, shall constitute a waiver of any of CalRecycle' srights or of any of grantee' sobligations as to any future transactions. Whenever the consent of CalRecycle is required under this Agreement, the granting of such consent by CalRecycle in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of CalRecycle.
Non -Discrimination Clause
a) During the performance of this Agreement, grantee and its contractors shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment on the bases enumerated in Government Code Section 12900 et seq.
b) The person signing this Agreement on behalf of the grantee certifies under penalty of perjury under the laws of California that the grantee has, unless exempted, complied with the nondiscrimination program requirements (Gov. Code, § 12990, subd. (a -f) and California Code of Regulations, Title 2, Section 8103). (Not applicable to public entities.)
Order of Precedence
The performance of this grant shall be conducted in accordance with the Terms and Conditions ( Exhibit A), Procedures and Requirements ( Exhibit B), Project Summary/ Statement of Use, Work Plan, and Budget of this Agreement, or other combination of Exhibits specified on the Grant Agreement Coversheet attached hereto collectively referred to as " Terms"). Grantee' sCalRecycle- approved Application Grantee' sApplication) is hereby incorporated herein by this reference. In the event of conflict or inconsistency between the articles, exhibits, attachments, specifications or provisions that constitute this Agreement, the following order of precedence shall apply:
a) Grant Agreement Coversheet and any Amendments thereto b) Terms and Conditions
c) Procedures and Requirements
d) Project Summary/ Statement of Use
e) Budget
f) Work Plan
g) Grantee' sApplication
h) All other attachments hereto, including any that are incorporated by reference.
CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 10 443
Ownership of Drawings, Plans and Specifications
The grantee shall, at the request of CalRecycle or as specifically directed in the Procedures and Requirements ( Exhibit B), provide CalRecycle with copies of any data, drawings, design plans, specifications, photographs, negatives, audio and video productions, films, recordings, reports, findings, recommendations, and memoranda of every description or any part thereof, prepared under this Agreement. Grantee hereby grants to CalRecycle aroyalty -free, nonexclusive, transferable, world-ie license to reproduce, translate, and distribute copies of any and all such materials produced pursuant to this Agreement, for nonprofit, non- cmmercial purposes, and to have or permit others to do so on CalRecycle' sbehalf.
Payment
a) The approved Budget, if applicable, is attached hereto and incorporated herein by this reference and states the maximum amount of allowable costs for each of the tasks identified in the Work Plan, if applicable, which is attached hereto and incorporated herein by this reference. CalRecycle shall reimburse the grantee for only the work and tasks specified in the Work Plan or the Grantee' sApplication at only those costs specified in the Budget and incurred in the term of the Agreement. b) The grantee shall carry out the work described in the Work Plan or in the Grantee' s Application in accordance with the approved Budget, and shall obtain the Grant Manager' s
written approval of any changes or modifications to the Work Plan, approved project as described in the Grantee' sApplication or the approved Budget prior to performing the changed work or incurring the changed cost. If the grantee fails to obtain such prior written approval, the Director, at his or her sole discretion, may refuse to provide funds to pay for such work or costs. c) The grantee shall request reimbursement in accordance with the procedures described in the Procedures and Requirements ( Exhibit B). d) Ten percent will be withheld from each Payment Request and paid at the end of the grant term, when all reports and conditions stipulated in this Agreement have been satisfactorily completed. Failure by the grantee to satisfactorily complete all reports and conditions stipulated in this Agreement may result in forfeiture of any such funds withheld pursuant to CalRecycle' s10 percent) retention policy. e) Lodgings, Meals and Incidentals: Grantee' sPer Diem eligible costs are limited to the amounts authorized in the California State Administrative Manual ( contact the Grant Manager for more information).
f) Payment will be made only to the grantee.
g) Reimbursable expenses shall not be incurred unless and until the grantee receives a Notice to Proceed as described in the Procedures and Requirements ( Exhibit B).
Personnel Costs
If there are eligible costs pursuant to Exhibit B, Procedures and Requirements, any personnel expenditures to be reimbursed with grant funds must be computed based on actual time spent on grant -related activities and on the actual salary or equivalent hourly wage the employee is paid for his or her regular job duties, including a proportionate CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 11 444
share of any benefits to which the employee is entitled, unless otherwise specified in the Procedures and Requirements ( Exhibit B).
Real and Personal Property Acquired with Grant Funds
a) All real and personal property, including equipment and supplies, acquired with grant funds shall be used by the grantee only for the purposes for which CalRecycle approved their acquisition for so long as such property is needed for such purposes, regardless of whether the grantee continues to receive grant funds from CalRecycle for such purposes. In no event shall the length of time during which such property, including equipment and supplies, acquired with grant funds, is used for the purpose for which CalRecycle approved its acquisition be less than five (5) years after the end of the grant term, during which time the property, including equipment and supplies, must remain in the State of California.
b) Subject to the obligations and conditions set forth in this section, title to all real and personal property acquired with grant funds, including all equipment and supplies, shall vest upon acquisition in the grantee. The grantee may be required to execute all documents required to provide CalRecycle with a security interest in any real or personal property, including equipment and supplies, and it shall be a condition of receiving this grant that CalRecycle shall be in first priority position with respect to the security interest on any such property acquired with the grant funds, unless pre - approved in writing by the Grant Manager that CalRecycle will accept a lower priority position with respect to the security interest on the property. Grantee shall inform any lender( s) from whom it is acquiring additional funding to complete the property purchase of this grant condition.
c) The grantee may not transfer Title to any real or personal property, including equipment and supplies, acquired with grant funds to any other entity without the express authorization of CalRecycle. Grantee' sviolation of this provision shall result in Grantee' sreimbursement to CalRecycle of the amount of grant funds used to purchase said equipment and supplies.
d) CalRecycle will not reimburse the grantee for the acquisition of equipment that was previously purchased with CalRecycle grant funds, unless the acquisition of such equipment with grant funds is pre -approved in writing by the Grant Manager. In the event of a question concerning the eligibility of equipment for grant funding, the burden will be on the grantee to establish the pedigree of the equipment.
Reasonable Costs
A cost is reasonable if, in its nature or amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the cost. Consideration will be given to:
a) Whether the cost is of a type generally recognized as ordinary and necessary for the performance of the grant.
b) The restraints or requirements imposed by such factors as generally accepted sound business practices, arms -length bargaining, federal and state laws and regulations, and the terms and conditions of this Agreement.
c) Whether the individuals concerned acted with prudence in the circumstances, considering their responsibilities to the organization, its members, employees, clients, and the public at large.
CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 12 445
d) Significant deviations from the established practices of the organization which may unjustifiably increase the grant costs.
Recycled -Content Paper
All documents submitted by the grantee must be printed double -sided on recycled - content paper containing 100 percent post -consumer fiber. Specific pages containing full color photographs or other ink -intensive graphics may be printed on photographic paper.
Reduction of Waste
In the performance of this Agreement, grantee shall take all reasonable steps to ensure that materials purchased or utilized in the course of the project are not wasted. Steps should include, but not be limited to: the use of used, reusable, or recyclable products; discretion in the amount of materials used; alternatives to disposal of materials consumed; and the practice of other waste reduction measures where feasible and appropriate.
Reduction of Waste Tires
Unless otherwise provided for in this Agreement, in the performance of this Agreement, for all purchases made with grant funds, including, but not limited to equipment and tire - derived feedstock, the grantee shall purchase and/ or process only California waste tires and California waste tire -derived products. As a condition of final payment under this Agreement, the grantee must provide documentation substantiating the source of the tire materials used during the performance of this Agreement to the Grant Manager.
Reimbursement Limitations
Under no circumstances shall the grantee seek reimbursement pursuant to this Agreement for a cost or activity that has been or will be paid for through another funding source. The grantee shall not seek reimbursement for any costs used to meet cost sharing or matching requirements of any other CalRecycle funded program.
All costs charged against the Agreement shall be net of all applicable credits. The term applicable credits" refers to those receipts or reductions of expenditures that operate to offset or reduce expense items that are reimbursable under this Agreement. Applicable credits may include, but are not necessarily limited to, rebates or allowances, discounts, credits toward subsequent purchases, and refunds. Grantee shall, where possible, deduct the amount of the credit from the amount billed as reimbursement for the cost, or shall deduct the amount of the credit from the total billed under a future invoice.
Reliable Contractor Declaration
Prior to authorizing any contractor or subcontractor to commence work under this Grant, the grantee shall submit to CalRecycle a Reliable Contractor Declaration ( CalRecycle 168) from the contractor or subcontractor, signed under penalty of perjury, disclosing whether of any of the events listed in Section 17050 of Title 14, California Code of Regulations, Natural Resources ( https:// www. calrecycle. ca. gov/ laws/ regulations/ title14), Division 7, has occurred with respect to the contractor or subcontractor within the CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 13 446
preceding three ( 3) years. If a contractor is placed on CalRecycle' s Unreliable List after
award of this Grant, the grantee may be required to terminate that contract.
Remedies
Unless otherwise expressly provided herein, the rights and remedies hereunder are in addition to, and not in limitation of, other rights and remedies under this Agreement, at law or in equity, and exercise of one right or remedy shall not be deemed a waiver of any other right or remedy.
Self -Dealing and Arm' s Length Transactions
All expenditures for which reimbursement pursuant to this Agreement is sought shall be the result of arm' s -length transactions and not the result of, or motivated by, self -dealing on the part of the grantee or any employee or agent of the grantee. For purposes of this provision, " arm' s -length transactions" are those in which both parties are on equal footing and fair market forces are at play, such as when multiple vendors are invited to compete for an entity' sbusiness and the entity chooses the lowest of the resulting bids.
Self -dealing" is involved where an individual or entity is obligated to act as a trustee or fiduciary, as when handling public funds, and chooses to act in a manner that will benefit the individual or entity, directly or indirectly, to the detriment of, and in conflict with, the public purpose for which all grant monies are to be expended.
Severability
If any provisions of this Agreement are found to be unlawful or unenforceable, such provisions will be voided and severed from this Agreement without affecting any other provision of this Agreement. To the full extent, however, that the provisions of such applicable law may be waived, they are hereby waived to the end that this Agreement be deemed to be a valid and binding agreement enforceable in accordance with its terms.
Site Access
The grantee shall allow the state to access sites at which grant funds are expended and related work being performed at any time during the performance of the work and for ninety ( 90) days after completion of the work, or until all issues related to the grant project have been resolved.
Stop Work Notice
Immediately upon receipt of a written notice from the Grant Manager to stop work, the grantee shall cease all work under this Agreement.
Termination for Cause
CalRecycle may terminate this Agreement and be relieved of any payments should the grantee fail to perform the requirements of this Agreement at the time and in the manner herein provided. In the event of such termination, CalRecycle may proceed with the work in any manner deemed proper by CalRecycle. All costs to CalRecycle shall be deducted from any sum due the grantee under this Agreement. Termination pursuant to CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 14 447
this section may result in forfeiture by the grantee of any funds retained pursuant to CalRecycle' s 10 percent retention policy.
Time is of the Essence
Time is of the essence to this Agreement.
Tolling of Statute of Limitations
The statute of limitations for bringing any action, administrative or civil, to enforce the terms of this Agreement or to recover any amounts determined to be owing to CalRecycle as the result of any audit of the grant covered by this Agreement shall be tolled during the period of any audit resolution, including any appeals by the grantee to the Director.
Union Organizing
By signing this Agreement, the grantee hereby acknowledges the applicability of Government Code Sections 16645, 16645. 2, 16645. 8, 16646, 16647, and 16648 to this Agreement and hereby certifies that:
a) No grant funds disbursed by this grant will be used to assist, promote, or deter union organizing by employees performing work under this Agreement.
B) If the grantee makes expenditures to assist, promote, or deter union organizing, the grantee will maintain records sufficient to show that no state funds were used for those expenditures, and that grantee shall provide those records to the Attorney General upon request.
Venue/ Choice of Law
a) All proceedings concerning the validity and operation of this Agreement and the performance of the obligations imposed upon the parties hereunder shall be held in Sacramento County, California. The parties hereby waive any right to any other venue. The place where the Agreement is entered into and place where the obligation is incurred is Sacramento County, California. b) The laws of the State of California shall govern all proceedings concerning the validity and operation of this Agreement and the performance of the obligations imposed upon the parties hereunder.
Waiver of Claims and Recourse against the State
The grantee agrees to waive all claims and recourse against the state, its officials, officers, agents, employees, and servants, including, but not limited to, the right to contribution for loss or damage to persons or property arising out of, resulting from, or in any way connected with or incident to this Agreement. This waiver extends to any loss incurred attributable to any activity undertaken or omitted pursuant to this Agreement or any product, structure, or condition created pursuant to, or as a result of, this Agreement.
CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 15 448
Work Products
Grantee shall provide CalRecycle with copies of all final products identified in the Work Plan. Grantee shall also provide CalRecycle with copies of all public education and advertising material produced pursuant to this Agreement.
Workers' Compensation/ Labor Code
The grantee is aware of Labor Code Section 3700, which requires every employer to be insured against liability for Workers' Compensation or to undertake self- insurance in accordance with the Labor Code, and the grantee agrees to comply with such provisions before commencing the performance of the work of this Agreement.
CalRecycle' s
Non -Competitive Grant Terms and Conditions — Revised 6/ 21/022 16 449
CalRecycle
September 2023
Department of Resources Recycling and Recovery
Exhibit B
Procedures and Requirements SB 1383
Local Assistance Grant Program
Fiscal Year 2022-3
Copies of these Procedures and Requirements must be shared with both the Finance Department and the staff responsible for implementing the grant activities.
Procedures and Requirements
SB 1383 Local Assistance Grant Program ( FY 2022-3) 1
450
Table of Contents
Introduction 3
Milestones 3
Grants Management System ( GMS) 3
Accessing the Grant 3
Contact Updates 4
Prior to Commencing Work 5
Reliable Contractor Declaration 5
Grant Term 6
Eligible Costs 6
Ineligible Costs 7
Modifications 8
Acknowledgements 8
Reporting Requirements 9
Electronic and Original Signatures 10
Progress Report 10
Final Report 10
Grant Payment Information 10
Reporting and Documentation 11
Audit Considerations 13
Procedures and Requirements
SB 1383 Local Assistance Grant Program ( FY 2022-3) 2
451
Introduction
The Department of Resources Recycling and Recovery ( CalRecycle) administers the SB 1383 Local Assistance Grant Program. These Procedures and Requirements describe project and reporting requirements, report due dates, report contents, grant payment conditions, eligible and ineligible project costs, project completion and closeout procedures, and records and audit requirements.
In a Regional Grant, the term " grantee" used throughout this document refers to the Lead Participant ( Lead). The Lead is designated to act on behalf of all Non -Lead Participant( s). The Lead manages the grant, is responsible for the performance of the grant and all required documentation and administers the grant funds to its Non - Lead Participants on its behalf.
This document is attached to, and incorporated by reference, into the Grant Agreement.
Milestones
Notice to Proceed Date: Grant Term Begins on the date that CalRecycle sends the award email.
October 1, 2024: Progress Report 1 Due
April 1, 2025: Progress Report 2 Due
October 1, 2025: Progress Report 3 Due
April 1, 2026: Final Report Due
April 1, 2026: Grant Term End
Grants Management System (GMS)
GMS is CalRecycle' sweb -based grant application and Grants Management System.
Access to GMS is secure; grantees must log in using a WebPass. WebPass accounts are tied to a specific email address. If an email address changes, or if it becomes inactive, the grantee must create a new WebPass account to continue accessing GMS.
Establish or manage a WebPass at CalRecycle' s
WebPass page
https:// secure. calrecycle. ca. gov/ WebPass/).
Accessing the Grant
Grantees must too in to GMS ( https:// secure. calrecycle. ca. gov/ Grants) using their web pass. After logging in, locate the grant in the My Awarded/ Open Grants table and select the Grant Management link. The Grant Management Module includes the following sections:
Summary tab: Shows approved budget, paid and remaining amounts. (This section is available to the grantee in read- only mode.) Payment Request tab: Grantee requests reimbursement.
Reports tab: Grantee uploads required reports.
Procedures and Requirements
SB 1383 Local Assistance Grant Program ( FY 2022-3) 3
452
Documents tab: Grantee uploads all other grant documents that are not supporting documents to a payment request or a report. This section also provides access to documents that were uploaded within other sections of GMS.
Follow the instructions in GMS to work in the system. The following sections describe the reports, transactions, and supporting documents CalRecycle requires.
Contact Updates
Access to the grant is limited to those listed in the Contacts tab of the Application Module with the "Allow Access" check box marked. A contact may be listed but not granted access by not checking the box. Please note, if a contact is granted access to a grant they will be able to edit contacts, submit payment requests, upload reports, and view all documents. Those with access may update contact information for all contact types except Signature Authority. Email the assigned Grant Manager regarding any changes to Signature Authority information.
Procedures and Requirements
SB 1383 Local Assistance Grant Program ( FY 2022-3) 4
453
Prior to Commencing Work
Prior to commencing work under this grant, the grantee' s Grant Manager or primary
contact and authorized grant Signature Authority should review the Terms and Conditions ( Exhibit A) and the Procedures and Requirements ( Exhibit B) to identify key grant administrative requirements. Evaluation of the grantee' scompliance with these requirements is a major focus of grant audits.
Reliable Contractor Declaration
Prior to authorizing a contractor or subcontractor to commence work under this grant, the grantee shall submit to the Grant Manager a declaration from the contractor or subcontractor, signed under penalty of perjury, stating that within the preceding three 3) years, none of the events listed in section 17050 of Title 14 https:// www. calrecycle. ca. gov/ Laws/ Regulations/ Title14/), California Code of Regulations, Natural Resources, Division 7, has occurred with respect to the contractor or subcontractor. The grantee must submit this form for each contractor and subcontractor working under the grant.
If a contractor or subcontractor is placed on the CalRecycle Unreliable Contractor List https:// www. calrecycle. ca. gov/ Funding/ Unreliability/) after award of this grant, the grantee may be required to terminate the contract. Obtain the Reliable Contractor Declaration form ( CalRecycle 168) from CalRecycle' sGrant Forms web page https:// www. calrecycle. ca. gov/ Funding/ Forms/).
The grantee must upload a scanned copy of each signed Reliable Contractor Declaration form in GMS. To upload the form:
1. Go to the Reports tab.
2. Click on Reliable Contractor Declaration under Report Type.
3. Click the Add Document button.
4. Select Reliable Contractor Declaration in the Document Type drop down box, enter a document title, click the Browse button to search and upload the document, and then Save.
5. Click on the Submit Report button.
For further instructions regarding GMS, including login directions, see the " Grants Management System" section ( above).
Procedures and Requirements
SB 1383 Local Assistance Grant Program ( FY 2022-3) 5
454
Grant Term
The Grant Term begins on the date CalRecycle sends the award email, which is the formal notification from CalRecycle authorizing the grantee to begin the grant project and ends on April 1, 2026. The grantee must make all grant -eligible program expenditures and incur all grant -eligible costs within this period. Expenditures made or costs incurred prior to the grant term start date or after the end date are not eligible for reimbursement.
The Final Report is due on April 1, 2026.
Eligible Costs
Grantees may incur eligible costs only during the Grant Term, which starts on the date CalRecycle sends the award email and ends on April 1, 2026. ( All grant expenditures must be for activities, products, and costs specifically included in the approved Budget.
Costs must be incurred after the term start date and before the end of the Grant Term All services must be provided, and goods received during this period in order to be eligible costs. Invoices for goods and services must be paid by the grantee prior to the inclusion of those goods or services in the progress report.
Eligible costs are limited to the following:
Personnel
Consultants
Safety Equipment
Vehicles/ Trucks/ Trailers
o Vehicles/ tractors/ trailers, turf tires, forklifts or compost slingers Note: The Grantee needs to own and control all items if they do not have a service agreement with a food recovery facility/ hub, however the Grantee may allow a food recovery facility/ hubto use the vehicle for grant implementation purposes.
Mobile pantries
Education and Outreach materials
o Print Media
o Television, radio, video, and social media
o Materials offered in other languages
Door -to -Door Outreach
Signage
Conferences and symposiums ( requires Grant Manager pre -approval) Recordkeeping or tracking software
o Software to match donor with food bank
o Recordkeeping/ reporting software
o Procurement tracking software
o Apps for food recovery
o Mobile app development
Inspections and Enforcement
Training
o Mileage
o Educational materials
Procedures and Requirements
SB 1383 Local Assistance Grant Program ( FY 2022-3) 6
455
Tablet/ Electronic Devices ( seven inches or more measured diagonally) used for the purposed of organic tracking and Education and Outreach o Maximum price of $500 ( excluding sales tax) and limit to one ( exceptions may be approved on a case -by -case basis)
o Accessories used for security, protection, and charging Equipment
o Food dehydrator
o Personal protection equipment
o Food distribution — including refrigeration, coolers, and packing materials.
Note: The Grantee needs to own and control all items if they do not have a service agreement with a food recovery facility/ hub, however the Grantee may allow a food recovery facility/ hubto use the vehicle for grant implementation purposes.
Bins and lids
o Includes, but is not limited to, curbside, small household food waste pail, labeling, and liners
Procurement of recovered/ recycled organic products
Food safety certification
Cameras to prevent contamination
Edible Food Recovery projects
o Grantees are encouraged to use a percentage of grant funds for Edible Food Recovery projects.
Food Waste Prevention projects
o Projects that prevent food waste from being generated and becoming waste that is normally destined for landfills. Examples of food waste prevention projects include, but are not limited to:
Modernizing production and handling practices to prevent and reduce food preparation waste.
Identifying and modifying ordering practices that result in measurable decreases in food waste.
Creating and expanding education and outreach programs that result in quantifiable reductions in food waste.
Ineligible Costs
Any costs not directly related to SB 1383 implementation are ineligible for reimbursement. The grantee should contact the Grant Manager if clarification is needed. Ineligible costs include, but are not limited to:
Costs incurred prior to the Term Start Date
Development, purchase, or distribution of strictly promotional give- away items Stuff We All Get, (SWAG) (https:// calrecycle. ca. gov/ funding/ acronyms/ swag/) Purchase or lease of land or buildings
Equipment or services not directly related to grant implementation Food liquefiers
Food recovery facility rent ( without service agreement) Disposal costs
Costs currently covered by or incurred under any other CalRecycle loan, grant, or contract
Cell phones
Procedures and Requirements
SB 1383 Local Assistance Grant Program ( FY 2022-3) 7
456
o Purchase of data plans and/ or mobile service plans/ hotspots Costs related to website host and web page domain
Audit expenses
Sponsorship or licensing fees for events/ programs
Food or beverages ( e.g., as part of meetings, workshops, or events) Travel costs exceeding the state -approved rates for mileage, per diem, lodging, etc.
o Refer to the Memorandum for travel policies
o Reimbursement
https:// www. calhr.a. gov/ employees/ Pages/ travel- reimbursements. aspx). rates are subject to change at any time by the State of California without prior notification.
Personnel costs not directly related to grant activities Fines or penalties due to violation of federal, state, or local laws, ordinances, or regulations
Any costs for construction projects by charter cities prohibited by Labor Code section 1782.
Any costs not consistent with local, state, or federal laws, guidelines, and regulations
Costs deemed unreasonable or not related to the project by the Grant Manager The total amount of indirect costs charged to the grant shall not exceed 10 percent of the grant funds reimbursed. These costs are expenditures not capable of being assigned or not readily itemized to a particular project or activity but considered necessary for the operation of the organization and the performance of the program. The costs of operating and maintaining facilities, accounting services, and administrative salaries as well as contractor' sindirect costs in their contracts, are examples of indirect costs. All indirect costs charged to the grant must be associated with grant activities.
Modifications
The grantee must submit any proposed revision( s) to the Budget in writing to the Grant Manager. The grantee may not incur costs or make expenditures based on the revision without first receiving the Grant Manager' s
written approval. Proposed revisions must
be clearly marked in the Budget document and must be accompanied by a summary of proposed changes or modifications, including justification for the proposed changes. If approved, the Grant Manager will upload the revised Budget to GMS and notify the grantee. The grantee may submit proposed revisions in conjunction with a Progress Report, but they cannot be submitted as part of the Progress Report. The grantee should retain the approval document( s) for audit purposes. See the "Audit Record/ Acess" section of the Terms and Conditions ( Exhibit A).
Acknowledgements
The grantee shall acknowledge CalRecycle' ssupport each time a project funded, in whole or in part, by this Agreement is publicized in any medium, including news media, brochures, or other types of promotional materials. The acknowledgement of CalRecycle' ssupport must incorporate the CalRecycle logo. Initials or abbreviations for CalRecycle shall not be used. The Grant Manager may approve deviation from this requirement on a case -by -case basis where such deviation is consistent with CalRecycle' s
Communication Strategy and Outreach Plan. Please contact your Grant Manager for the CalRecycle logo.
Procedures and Requirements
SB 1383 Local Assistance Grant Program ( FY 2022-3) 8
457
The following items require acknowledgement of funding from CalRecycle and pre - approval from the CalRecycle Grant Manager prior to incurring the expense:
All television, radio and video scripts
Functional premiums, if the per unit price is greater than $ 6. 00 Advertisements
Audio and/ or visual material
Brochures
Newspaper ads
Pamphlets
Other outreach
All publicity and education materials must include the following:
1. " Funded by a grant from CalRecycle." Exception: The acknowledgement line is not required on small items where space constraints would not allow for this line or if it would interfere with the message.
o There are two acceptable Spanish translations: " Financiado por una beca del CalRecycle" or "Patrocinado por fondos del CalRecycle." For other languages, the Grantee must work with a certified translator or person fluent in reading and writing that language. All exceptions must be pre - approved in writing by the CalRecycle Grant Manager.
2. CalRecycle logo ( https:// www. calrecycle. ca. gov/allery/) as reflected on the CalRecycle website, can be obtained from the Office of Public Affairs at opa( a7calrecycle. ca. gov.
3. Press Releases — the only requirement is to place the name of "CalRecycle" as an acknowledgement in the body of the release.
Reporting Requirements
The Grant Agreement requires three Progress Reports and a Final Report; however, the Grant Manager may require additional Progress Reports at any time during the Grant Term. Failure to submit the Final Report with appropriate documentation by the due date may result in rejection of the report and/ or forfeiture by the grantee of claims for costs incurred that might otherwise have been eligible for grant funding.
The grantee must upload all reports in GMS. For further instructions regarding GMS, including login directions, see the " Grants Management System" section ( above).
To upload a report:
1. Go to the Reports tab.
2. Click on the appropriate Report Type.
3. Click on the Add Document button.
4. Choose the Document Type, enter a document title, click the Browse button to search and upload the document, and then Save.
Select the Back button to upload another document and continue the process until all required documents as listed below are uploaded.
The maximum allowable file size for each document is 35MB.
The maximum character limit is 60.
Do not include special characters in file names.
5. Click the Submit Report button to complete your report submittal. The Submit Report button will not be enabled until all required reporting documents are uploaded.
Procedures and Requirements
SB 1383 Local Assistance Grant Program ( FY 2022-3) 9
458
The reports must be current, include all required sections and documents, and must be approved by the Grant Manager before any Payment Request can be processed.
Failure to comply with the specified reporting requirements may be considered a breach of the Grant Agreement and may result in the termination of the Grant Agreement, rejection of the Payment Request, and/ or forfeiture by the grantee of claims for costs incurred that might otherwise have been eligible for grant funding. The grantee must report any problems or delays immediately to the Grant Manager.
Electronic and Original Signatures
CalRecycle requires certified e -Signature on documents or forms that certify legally binding information.
Note: E -signatures must include the first and last name of the Signature Authority, be in the Adobe Digital ID format (or through another certified digital signature program) and cannot be the " Fill and Sign" function within Adobe. Any documents using the " Fill and Sign" method is considered incomplete and may be sent back to the grantee.
If you have questions, email grantassistance( a) calrecycle. ca. gov.
Progress Report
The grantee must submit a Progress Report by the due dates listed in the Milestones Section of this document. CalRecycle will provide the reporting template at a later date.
These reports should cover grant activities that occurred within the specified reporting period.
Final Report
The Final Report is due April 1, 2026. The reporting template will be provided at a later date. This report should cover grant activities from the Term Start Date through April 1, 2026. The grantee must include the following items in the Final Report:
The Grant Number, grantee' sname, and Grant Term.
The following disclaimer statement on the cover page:
The statements and conclusions of this report are those of the grantee and not necessarily those of the Department of Resources Recycling and Recovery CalRecycle), its employees, or the State of California. The state makes no warranty, express or implied, and assumes no liability for the information contained in the succeeding text."
Grant Payment Information
CalRecycle will only make grant payments to the grantee. It is the grantee' s responsibility to pay all contractors and subcontractors for purchased goods and services. CalRecycle will make payments to the grantee as promptly as fiscal procedures permit.
The grantee must provide a Reliable Contractor Declaration ( CalRecycle 168) https:// www. calrecycle. ca. gov/ Funding/ forms/) signed under penalty of perjury by the grantee' scontractors and subcontractors in accordance with the " Reliable Contractor Declaration" section of the Terms and Conditions ( Exhibit A). The declaration must be received and approved by the Grant Manager prior to Procedures and Requirements
SB 1383 Local Assistance Grant Program ( FY 2022-3) 10
459
commencement of work. See the " Reliable Contractor Declaration" section in Terms and Conditions ( Exhibit A) for more information.
Reporting and Documentation
The grantee must submit all expenditures in GMS. For further instructions regarding GMS, including login directions, see the " Grants Management System" section ( above).
Please refer to the " Milestones" section ( above) for required due dates.
To submit Supporting Documentation:
1. Go to the Payment Request tab.
2. Click on the Create a Payment Request button.
a. Choose Advance Reconcile for the Transaction Type and enter the amount spent in each budget subcategory.
b. When the transaction is complete, click the Save button. c. After the transaction is saved, the Upload Supporting Documents button will appear in the lower right corner.
3. Click the Upload Supporting Documents button.
a. Choose the Document Type, enter a document title, click the Browse button to search and upload the document, and then Save. b. Select the Back button to upload another document and continue this process until all required supporting documents as listed below are uploaded.
c. The maximum allowable file size for each document is 35MB. d. The maximum character limit is 60.
4. Do not include special characters in file names. Click the Submit Transaction button, located on the transaction page, to complete your payment request. The Submit Transaction button will not be enabled until all required supporting documents are uploaded.
Note: Once a transaction is saved, select the transaction number from the Payment Request tab to access it again. Please do not create multiple transactions for the same requested funds.
Supporting Documentation
Expenditure Itemization Summary ( EIS)
o All expenditures must be itemized and arranged by the reporting and expenditure categories as contained in the grantee' sBudget tab. o Grantees are required to maintain supporting documentation pertaining to the EIS and may be required to provide them at the request of the Grant Manager at any time.
Note: CalRecycle will provide a template at a later date.
Certification Document
o The Signature Authority will need to certify under penalty of perjury that information provided in the EIS is correct.
Note: CalRecycle will provide a template at a later date.
Personnel Expenditure Summary (PES) (CalRecycle 165)
o A Personnel Expenditure Summary should be submitted if salaries are included. Salaries include government taxes and benefits.
Procedures and Requirements
SB 1383 Local Assistance Grant Program ( FY 2022-3) 11
460
o Document personnel expenditures based on actual time spent on grant activities and actual amounts paid to personnel.
Travel Expense Log ( CalRecycle 246)
o A Travel Expense Log should be submitted if vehicle mileage is included for reimbursement in the payment request. Only travel expenses directly related to the implementation of the grant can be claimed. Mileage will be reimbursed at the State rate.
Cost and Payment Documentation
o Acceptable cost and payment documentation must include at least one of each of the following.
Invoices, receipts, or purchase orders must include the vendor' s name and telephone number, address, description of goods or services purchased, amount due, and date. The claimed expenses should be highlighted and identified with applicable task number on each invoice.
o Proof of payment may include:
copy of cancelled check( s) that shows an endorsement from the banking institution
invoice( s) showing a zero balance, or stamped " paid" with a check number, date paid, and initials
accounting system report from local government if it contains the vendor name, date of invoice, invoice number, check number or internal ID, and date amount was paid
bank statement( s) along with a copy of the endorsed check or invoice showing the check number
copy of an electronic funds transfer confirmation
copy of a credit card statement( s)
o The Grant Manager may require additional cost and payment documentation as necessary to verify eligible costs.
Most forms listed above are available on the CalRecycle Grant Forms web page https:// www. calrecycle. ca. gov/ Funding/ Forms).
Unspent Funds
Funds that are unspent at the end of the grant term must be returned by check to CalRecycle by April 1, 2026. Checks should be made payable to the Department of Resources Recycling and Recovery. Checks must contain the Grant Number ( i.e., OWR4- 22-) ox(), specify " SB 1383 Local Assistance Grant Unspent Funds," and be mailed to:
CalRecycle Accounting
SB 1383 Local Assistance Grant Unspent Funds
PO Box 4025
Sacramento, CA 95812- 4025
Unspent funds due to CalRecycle but left unpaid may result in ineligibility for future grant and payment program funding. If there are questions or other issues related to expenditures, work with your Grant Manager to resolve these issues.
Procedures and Requirements
SB 1383 Local Assistance Grant Program ( FY 2022-3) 12
461
Audit Considerations
The grantee agrees to maintain records and supporting documentation pertaining to the performance of this grant subject to possible audit for a minimum of three ( 3) years after final payment date or Grant Term end date, whichever is later. CalRecycle may stipulate a longer period of records retention in order to complete any action and/ or resolution of all issues which may arise as a result of any litigation, dispute, or audit, whichever is later.
Examples of audit documentation include, but are not limited to, competitive bids, grant amendments if any relating to the Budget or Work Plan, copies of any agreements with contractors or subcontractors if utilized, expenditure ledger, payroll register entries, time sheets, personnel expenditure summary form, travel expense log, paid warrants, contracts and change orders, samples of items and materials developed with grant funds, invoices, and cancelled checks. Please refer to the Terms and Conditions Exhibit A) for more information.
Procedures and Requirements
SB 1383 Local Assistance Grant Program ( FY 2022-3) 13
462
ITEM 4. 15
CITY MANAGER' S REPORT
March 11, 2024 CITY COUNCIL REGULAR MEETING
ITEM: APPROVAL OF ADDITIONAL INDUSTRIAL SOLID
WASTE LICENSES FOR RA RA TRUCKING, INC.,
CALIFORNIA MATERIALS, INC., AND CAL -WASTE
RECOVERY SYSTEMS FOR THE REMAINDER OF
FISCAL YEAR 2023-4
RECOMMENDATION: 1. Adopt a Resolution to Approve Annual Industrial Solid Waste License for Ra Ra Trucking, Inc., for the
Remainder of Fiscal Year 2023-4
2. Adopt a Resolution to Approve Annual Industrial
Solid Waste License for California Materials, Inc.,
for the Remainder of Fiscal Year 2023-4
3. Adopt a Resolution to Approve Annual Industrial
Solid Waste License for Cal -Waste Recovery
Systems, for the Remainder of Fiscal Year 2023-4
SUMMARY:
The Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 ( AB939), has acknowledged that it is within the public interest to authorize and require local agencies to make adequate provisions for solid waste management. The process requires cities and other local agencies to implement plans for source reduction, reuse, and recycling as part of their integrated waste management practices.
In an effort to comply with said legislation, the City of Lathrop adopted Municipal Code Chapter 8. 16 (Garbage Collection and Disposal). Lathrop Municipal Code Section 8. 16.40 requires any company that collects industrial solid waste in the City of Lathrop to annually apply for an Industrial Solid Waste Removal License.
The City' s current industrial solid waste haulers are Delta Container Corporation subsidiary of Allied Waste of San Joaquin County dba Republic Services, Inc.), Stockton Scavengers, Ground Force Enterprises, and Tony and Sons Trucking. Staff requests the approval of additional annual industrial solid waste licenses for Ra Ra Trucking, Inc., California Materials, Inc., and Cal -Waste Recycling Systems for the remainder of fiscal year 2023-4.
BACKGROUND:
Lathrop Municipal Code 8. 16. 140, Section ( A) requires any company who collects and removes industrial solid waste within the City of Lathrop to apply annually for an industrial solid waste removal license.
463
CITY MANAGER' SREPORT PAGE 2
March 11, 2024 CITY COUNCIL REGULAR MEETING
APPROVAL OF ADDITIONAL INDUSTRIAL SOLID WASTE LICENSES FOR RA RA TRUCKING, INC., CALIFORNIA MATERIALS, INC., AND CAL -WASTE RECOVERY SYSTEMS FOR THE REMAINDER OF FISCAL YEAR 2023-4 Ra Ra Trucking, Inc., California Materials, Inc., and Cal -Waste Recycling Systems will be required to pay an annual license fee in the sum of two thousand five hundred dollars ($ 2, 500) and the standard eleven percent ( 11%) of their annual gross receipts and a ninety- two dollar ($ 92) license administration fee, which is set forth by Lathrop Municipal Code 8. 16.40.
Ra Ra Trucking, Inc., California Materials, Inc., and Cal - Waste Recycling Systems have submitted their annual license application, fee, bonds, insurance, locations serviced, and their financial status report.
REASON FOR RECOMMENDATION:
To continue our efforts to meet the terms of the AB939 legislation, and continue implementing plans for source reduction, reuse, and recycling as part of our integrated waste management practices, staff recommends that City Council approve Industrial Solid Waste Removal Licenses for Ra Ra Trucking, Inc., California Materials, Inc., and Cal -Waste Recycling Systems.
FISCAL IMPACT:
Revenue received from these companies will be deposited into the Franchise Tax - Solid Waste Industrial revenue account number 1010-5- 10- 319- 05-5.
The license administration fees in the amount of ninety- two dollars ($ 92) received from these companies will be deposited into Parks and Recreation account number 1010- 3- 01-41-.
The annual license fee in the amount of two thousand five hundred dollars ($ 2, 500) received from these companies will be deposited into the Franchise Tax -Solid Waste Industrial revenue account number 1010-5- 10- 319- 05-5.
ATTACHMENTS:
A. Resolution to Approve Annual Industrial Solid Waste License for Ra Ra Trucking, Inc., for the Remainder of Fiscal Year 2023-4 B. Resolution to Approve Annual Industrial Solid Waste License for California Materials, Inc., for the Remainder of Fiscal Year 2023-4 C. Resolution to Approve Annual Industrial Solid Waste License for Cal -Waste Recycling Systems for the Remainder of Fiscal Year 2023-4 D. Industrial Refuse Collection Application from Ra Ra Trucking, Inc.
E. Industrial Refuse Collection Application from California Materials, Inc.
F. Industrial Refuse Collection Application from Cal -Waste Recycling Systems 464
CITY MANAGER' S REPORT PAGE 3
March 11, 2024 CITY COUNCIL REGULAR MEETING
APPROVAL OF ADDITIONAL INDUSTRIAL SOLID WASTE LICENSES FOR RA RA TRUCKING, INC., CALIFORNIA MATERIALS, INC., AND CAL -WASTE RECOVERY SYSTEMS FOR THE REMAINDER OF FISCAL YEAR 2023-4 APPROVALS:
Todd Sebastian
Director of Parks and Recreation
Cari Jame
Finance Di eitor
3r 5.
Date
3)I011)
Date
3 •6. zoZY
Michael King Date
Assistant City Manager
Salvador Navarrete
City Attorney
Stephen J. Salvatore
City Manager
Fork
3.- 2oZy
Date
Date
3•Cs, •2ozY
465
RESOLUTION NO. 24-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LATHROP APPROVING THE ANNUAL INDUSTRIAL SOLID WASTE LICENSE FOR RA RA TRUCKING, INC.
FOR THE REMAINDER OF FISCAL YEAR 2023-4
WHEREAS, Lathrop Municipal Code 8. 16.40, Section ( A) requires any company which collects and removes industrial solid waste within the City of Lathrop to annually apply for an industrial solid waste removal license; and WHEREAS, the City' scurrent haulers are Delta Container Corporation, Ground Force Enterprises, Stockton Scavengers, and Tony and Sons Trucking; and WHEREAS, Staff requests the additional approval of the annual industrial solid waste license for Ra Ra Trucking, Inc.; and
WHEREAS, Ra Ra Trucking, Inc. will be required to pay an annual license fee in the amount of two thousand five hundred dollars ($ 2, 500) and the standard eleven percent ( 11%) of their annual gross receipts and a ninety- two dollar ($ 92) license administration fee, which is set forth by Lathrop Municipal Code 8. 16. 140; and WHEREAS, to continue our efforts to meet the terms of the AB939 legislation and continue implementing plans for source reduction, reuse, and recycling as part of their integrated solid waste management practices, staff recommends that City Council approve the Industrial Solid Waste Removal License for Ra Ra Trucking, Inc.; and WHEREAS, the following monies, received from this company will be deposited as follows:
Annual gross receipt monies received will be deposited into the Franchise Tax - Solid Waste Industrial revenue account number 1010-5- 10- 319- 05-5; License administration fee in the amount of ninety- twodollars ($ 92) will be deposited into Parks and Recreation account number 1010- 3- 01-41-; Annual license fee in the amount of two thousand five hundred dollars ($ 2, 500) received will be deposited into the Franchise Tax -Solid Waste Industrial revenue account number 1010-5- 10- 319- 05-5.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Lathrop does hereby approve the Industrial Solid Waste License for the remainder of FY 23-4 with Ra Ra Trucking, Inc.
466
The foregoing resolution was passed and adopted this 11th day of March 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Sonny Dhaliwal, Mayor
ATTEST: APPROVED AS TO FORM:
Teresa Vargas, City Clerk Salvador Navarrete, City Attorney 467
RESOLUTION NO. 24-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LATHROP APPROVING
THE ANNUAL INDUSTRIAL SOLID WASTE LICENSE FOR CALIFORNIA MATERIALS, INC. FOR THE REMAINDER OF FISCAL YEAR 2023-4 WHEREAS, Lathrop Municipal Code 8. 16. 140, Section ( A) requires any company which collects and removes industrial solid waste within the City of Lathrop to annually apply for an industrial solid waste removal license; and WHEREAS, the City' scurrent haulers are Delta Container Corporation, Ground Force Enterprises, Stockton Scavengers, and Tony and Sons Trucking; and WHEREAS, Staff requests the additional approval of the annual industrial solid waste license for California Materials, Inc.; and
WHEREAS, California Materials, Inc. will be required to pay an annual license fee in the amount of two thousand five hundred dollars ($ 2, 500) and the standard eleven percent ( 11%) of their annual gross receipts and a ninety- two dollar ($ 92) license administration fee, which is set forth by Lathrop Municipal Code 8. 16. 140; and WHEREAS, to continue our efforts to meet the terms of the AB939 legislation and continue implementing plans for source reduction, reuse, and recycling as part of their integrated solid waste management practices, staff recommends that City Council approve the Industrial Solid Waste Removal License for California Materials, Inc.; and WHEREAS, the following monies received from this company will be deposited as follows:
Annual gross receipt monies received will be deposited into the Franchise Tax - Solid Waste Industrial revenue account number 1010-5- 10- 319- 05-5; License administration fee in the amount of ninety- two dollars ($ 92) will be deposited into Parks and Recreation account number 1010- 3- 01-41-; Annual license fee in the amount of two thousand five hundred dollars ($ 2, 500) received will be deposited into the Franchise Tax -Solid Waste Industrial revenue account number 1010-5- 10- 319- 05-5.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Lathrop does hereby approve the Industrial Solid Waste License for the remainder of FY 23-4 with California Materials, Inc.
468
The foregoing resolution was passed and adopted this 11th day of March 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Sonny Dhaliwal, Mayor
ATTEST: APPROVED AS TO FORM:
Teresa Vargas, City Clerk Salvador Navarrete, City Attorney 469
RESOLUTION NO. 24-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LATHROP APPROVING
THE ANNUAL INDUSTRIAL SOLID WASTE LICENSE FOR CAL -WASTE RECYCLING SYSTEMS FOR THE REMAINDER OF FISCAL YEAR 2023-4 WHEREAS, Lathrop Municipal Code 8. 16.40, Section ( A) requires any company which collects and removes industrial solid waste within the City of Lathrop to annually apply for an industrial solid waste removal license; and WHEREAS, the City' scurrent haulers are Delta Container Corporation, Ground Force Enterprises, Stockton Scavengers, and Tony and Sons Trucking; and WHEREAS, Staff requests the additional approval of the annual industrial solid waste license for Cal -Waste Recycling Systems; and
WHEREAS, Cal -Waste Recycling Systems will be required to pay an annual license fee in the amount of two thousand five hundred dollars ($ 2, 500) and the standard eleven percent ( 11%) of their annual gross receipts and a ninety- two dollar 92) license administration fee, which is set forth by Lathrop Municipal Code
8. 16.40; and
WHEREAS, to continue our efforts to meet the terms of the AB939 legislation and continue implementing plans for source reduction, reuse, and recycling as part of their integrated solid waste management practices, staff recommends that City Council approve the Industrial Solid Waste Removal License for Cal - Waste Recycling Systems; and
WHEREAS, the following monies received from this company will be deposited as follows:
Annual gross receipt monies received will be deposited into the Franchise Tax - Solid Waste Industrial revenue account number 1010-5- 10- 319- 05-5; License administration fee in the amount of ninety- two dollars ($ 92) will be deposited into Parks and Recreation account number 1010- 3- 01-41-; Annual license fee in the amount of two thousand five hundred dollars ($ 2, 500) received will be deposited into the Franchise Tax -Solid Waste Industrial revenue account number 1010-5- 10- 319- 05-5.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Lathrop does hereby approve the Industrial Solid Waste License for the remainder of FY 23-4 with Cal -Waste Recycling Systems.
470
The foregoing resolution was passed and adopted this 11th day of March 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Sonny Dhaliwal, Mayor
ATTEST: APPROVED AS TO FORM:
Teresa Vargas, City Clerk Salvador Navarrete, City Attorney 471
ATTACHMENT
City of
Parks and Recreation Department 390 Towne Centre Drive, Lathrop, CA 95330 Phone ( 209) 941- 7370
ww. ci. lathrop. ca. us
INDUSTRIAL REFUSE COLLECTION
LICENSE APPLICATION
COMPANY NAME: RARA Trucking, Inc.
ADDRESS: 210 Umbarger Rd. San Jose, CA 95111
PHONE/ FAX
EMAIL:
669- 233- 6489 / 408- 516-953
rara_ trucking@yahoo. com, susana. rivas@raratrucking. com The following license requirements are setfirth by the City ofLathrop Municipal Code, Title 8 Health & Safety, Chapter 8. 16 Garbage Collection & Disposal, Section 8. 16.40 Industrial Solid Waste Removal — License Required.
PROPOSED CUSTOMERS LIST (Names and Addresses):
SIGNED STATEMENTS FROM NEW INDUSTRIAL CUSTOMERS ADDRESSED TO CITY ( See Municipal Code section 8. 16.40. 2):
NUMBER, KIND, AND CAPACITY OF VEHICLES AND OTHER EQUIPMENT Must be in compliance with all applicable air pollution control laws):
ORIGINAL PERFORMANCE BOND OR OTHER SECURITY ATTACHED ($ 25, 000) - OR -
MOST RECENT FINANCIAL STATEMENT AND/ OR AUDIT
The applicant shall provide proof of financial ability to provide service contemplated by the application)
INSURANCE CERTIFICATE NAMING THE CITY, ITS OFFICES AND EMPLOYEES
AS AN ADDITIONAL INSURED
See Municipal Code section 8. 16.40. for Insurance Requirements):
LICENSE FEE ENCLOSED ($ 2, 500)
ADMINISTRATION FEE ($ 92)
CHECK IF
ENCLOSED
X
X
X
X
X
X
472
City of
Parks and Recreation Department 390 Towne Centre Drive, Lathrop, Cpl 95330 Phone ( 209) 941 -? 370
www. ci. lathrop. ca. us
TYPE OF WASTE REMOVAL SERVICE:
Transportation of solid waste - crashed wood, scrap metal, cardboard The following definitions are set forth by the City of Lathrop Municipal Code, Title 8 Health & Safety, Chapter 8. 16 Garbage Collection & Disposal, Section 8. 16. 010 "Industrial solid waste" means solid waste originating from mechanized manufacturing facilities, factories, refineries and publicly operated treatment works.
APPLICANT SIGNATURES:
01/ 26/024
SIGNATURE DATE
Raul A Rivas
PRINT NAME
President
TITLE
PROCESSED BY:
I\r"{ 41ISSA STATHAKOP LOS
MANAGER
PARKS AND RECREATION DEPARTMENT
APPROVED BY:
TODD SEBA N DATE
DATE
DIRECTOR
PARKS, RECREATION & FLEET SERVICES
473
Testa, Inc. Master Services Agreement
This Master Services Agreement (" MSA") is entered into by and between Testa, Inc., a Delaware corporation with offices at 3500 Deer Creek Road, Palo Alto, California, 94304 (" Testa") and the service provider identified below Supplier") effective as of the date signed below by Testa and govern Supplier' s performance, and Tesla' s purchase, of services.
1. THE SERVICES
1. Authorization of Services. The " Services" are the following, as they may be supplemented, modified or replaced during the Term: ( a) the functions described in an Agreement as functions for which Supplier is responsible; and ( b) any functions related to the foregoing that are not specifically described in an Agreement but are required for the provision of the Services thereunder. Supplier shall provide, and Testa and/ orits Affiliates may purchase, Services pursuant to an Approved Work Order using the form attached hereto as Schedule A. Supplier shall not perform any Services until Testa and/ or its Affiliate issues a Purchase Order which incorporates the terms of the applicable Approved Work Order. Upon Supplier' sacceptance of such Purchase Order, the terms of the applicable Approved Work Order, together with the terms in the other Agreement Documents, will become a binding agreement ( an Agreement") between Supplier and Testa and/ or its Affiliate.
1. 2 Obligation to Provide the Services, Generally. Starting on the Effective Date, or any later date that may be specified in writing for any specific Services, and continuing during the Term, Supplier will perform the Services in accordance with the terms of the Agreement. The Services may be received by Tesla, any of Tesla' s Affiliates, and any third party supplier or business partner of Testa ( each. a " Service Recipient").
1. 3 Services Not Exclusive. Supplier is a non- exclusive provider of Services. Testa and its Affiliates have no obligation to order or purchase any Services. The extent and quantity of Services purchased shall be determined by Testa. Testa may purchase from any third party services that are identical or similar to the Services described in the Agreement. Supplier will cooperate and coordinate with Tesla or any other service providers selected by Testa as reasonably required for Testa or the service provider to perform services for which it is responsible.
1. 4 Relationship of the Parties. Supplier is an independent contractor and is not an agent, servant, employee, legal representative, partner or joint venturer of Tesla or any Affiliate of Tesla. Nothing in this MSA or any Agreement shall be deemed to create a
joint venture or partnership between Supplier and Testa or any of Tesla' s Affiliates.
Supplier has the sole right and obligation to supervise, manage, and direct all work to be performed by Supplier Personnel under the Agreement. Supplier has no authority to represent or bind Testa.
2. PERFORMANCE
2. 1 Time of Performance. Supplier will complete all Services diligently, in a timely manner, and in accordance
with the time schedules set forth in the Agreement. Time is of the essence with respect to the provision of Services.
Supplier will promptly notify Tesla in writing upon becoming aware of any circumstances that may reasonably be expected to jeopardize the timely completion of any Services. Supplier will use Commercially Reasonable Efforts to avoid or minimize any delays in performance and will inform Testa of (a) the steps Supplier is taking or will take to do so and ( b) the projected completion time.
2. Manner of Performance. Supplier will perform the Services at the Testa Facilities listed or described in the Agreement. Supplier will manage and successfully perform, complete and deliver the Services in accordance with the Agreement. In cases where the Agreement does not prescribe or otherwise performance of the Services, Supplier will render the Services in accordance with regulate the manner of Supplier' s
Supplier' sprevailing practices, which will not be less favorable to Tesla than the established best practices followed by the leading providers of similar services.
2. 3 Responsibility for Supplying Certain Resources. The Agreement will define each Party' sresponsibility including financial responsibility) for providing equipment, facilities, third -party services and other resources expected to be required for the Services. If Testa has financial responsibility for any resource that is acquired by Supplier on Tesla' sbehalf under an Agreement, Supplier will obtain Tesla' sprior written approval of the terms on which the resource is to be acquired, including the terms of any associated contract.
2. 4 Performance Criteria. Supplier' s performance of the Services will be measured as specified in the Agreement. The Charges may be subject to adjustment based on the assessment of its performance to the extent provided in the Agreement.
474
2. 5 Acceptance Tests. If and to the extent set forth in the Agreement, the Services will be subject to acceptance tests which are reasonably specified by Tesla and/ or mutually agreed in writing by the Parties. Supplier will notify Tesla in writing when it believes the Services are ready for acceptance testing and shall assist Testa in performing such tests. Testa shall determine whether the Services have passed the applicable acceptance tests and notify Supplier of its determination. If Tesla determines that the Services have not passed the acceptance tests, Supplier shall have fifteen ( 15) days ( or such longer period as the Parties may agree) to resubmit such Services for acceptance testing.
Tesla shall not be liable, and Supplier shall not invoice Testa, for any Services which have not passed the applicable acceptance tests.
2. 6 Reporting. If required by Testa, on or before the fifteenth ( 15`') day of each month during the Term, Supplier shall provide a written progress report detailing ( a) Supplier' sactivities and performance against any Service Levels in the preceding month, (b) progress towards milestones, and ( c) any actual or anticipated delays that might affect completion of Services in accordance with the applicable project plan or timeline under the Agreement.
2. 7 Compliance with Laws and Testa Policies.
a) Supplier will, at its cost and expense, obtain all necessary regulatory approvals, licenses, and permits collectively. " Permits") applicable to its business and comply with all Laws applicable to its business or the performance of its obligations under each Agreement, as such Laws may be revised from time to time. Supplier shall provide copies of any such Permits at Tesla' s request. To the extent Supplier ( or any of its subcontractors) makes payments to any government official or any other person under an Agreement on behalf of Testa, Supplier will maintain true, accurate and complete books and records concerning any such payments, including the purpose of each transaction.
b) Supplier will comply with, and perform the Services in compliance with, all Laws pertaining to:
i) occupational safety and health; ( ii) protection of persons and property from death, injury or damage; (iii) the environment and the use, handling, storage, labeling and disposal of toxic or hazardous materials; (iv) labor and employment, including equal employment opportunity; (v) tax; (vi) workmen' s compensation and unemployment
insurance, ( vii) money laundering, anti - terrorism, trade embargos, and economic sanctions; and ( viii) to the extent relevant to Supplier' s of Services, Laws withrespect Supplier' sperformance to ( a) data privacy, data protection, and consumer privacy and ( b) anti - bribery and anti - corruption.
c) To the extent not prohibited by Law, Supplier will promptly notify Testa in writing of any investigation or inquiry into whether Supplier ( or any of its subcontractors) is charged with failing to comply with any Laws that may or will impact. or are otherwise applicable to, Supplier' s performance under an Agreement. d) Supplier will comply with any Tesla policies, standards, rules, and procedures ( collectively, " Testa Policies") applicable to performance of the Services or the Testa Facility that are disclosed to Supplier in writing, as such Testa Policies may be revised from time to time.
2. 8 Suspension of Performance. Testa may, at any time, direct Supplier to suspend all or any part of the work for not more than 180 days. In the event of a suspension, Testa may, in its sole discretion, reimburse Supplier for reasonable and actual additional costs incurred solely and directly as a result of the suspension, provided that a detailed claim with supporting documentation of such costs is submitted to Testa within 30 days after the end ofthe suspension.
Supplier agrees to provide Testa a good faith estimate of its suspension costs upon request.
2. 9 Corrective Action. With reference to Section 2. 4 (Performance Criteria), if Supplier fails to meet one or more performance criteria with respect to the Services, Supplier will: (i) promptly investigate and report on the root cause of the problem; ( ii) remedy the cause of the failure and resume meeting the affected performance criteria; iii) implement and notify Testa of measures taken by Supplier to prevent recurrences if the failure is otherwise likely to recur; and ( iv) make written recommendations to Testa for improvements in procedures.
3. SUPPLIER PERSONNEL AND SUBCONTRACTING
3. 1 General Requirements for Supplier Personnel.
a) Supplier will assign an adequate number of Supplier Personnel to perform the Services who are properly educated, trained, familiar with and fully qualified for the Services they are assigned to perform ( including, without limitation, licensed in the relevant regions to provide work that requires a license). Supplier will assign sufficient supervisory personnel to provide adequate liaison with Testa. Supplier will manage, supervise and provide direction to Supplier Personnel and cause them to comply with the obligations and restrictions applicable to Supplier under the Agreement. Supplier is responsible for the acts and omissions of Supplier Personnel under or relating to each Agreement. Supplier is responsible for validating the identity of and ensuring that Supplier Personnel assigned to
475
perform Services ( 1) have the legal right to work in the country( ies) in which they are assigned to work, and ii) conform to all applicable Testa Policies with respect to personal and professional conduct ( including the wearing of an identification badge and adhering to general safety, dress, behavior, and security practices). b) Prior to assigning any Supplier Personnel to perform any Services, Supplier shall perform background checks of the personnel. Such background checks may have been performed as part of Supplier' sstandard pre - employment screening process and will, to the extent permitted by applicable Law, include the following: (i) education verification; ii) prior employment verification for all employees; (iii) social security verification; and ( iv) felony and misdemeanor criminal checks. Testa may require Supplier to provide written evidence of successful background checks on Supplier Personnel at any time. Unless prohibited by law, Supplier may not assign any person to perform Services for Testa who was convicted of a crime without Tesla' s prior written consent.
3. 2 Key Supplier Positions. " Key Supplier Positions" means those positions designated as such in the applicable Agreement. Supplier will cause each of the Supplier Personnel filling the Key Supplier Positions to devote substantially full time and effort to the provision of the Services during the period of assignment. The appointment, removal and replacement of any person to a Key Supplier Position may only be made with Tesla' s prior written
approval, which will not be unreasonably withheld.
3. Approval and Removal of Supplier Personnel. Testa may approve all Supplier Personnel assigned to perform Services that are charged on a time and materials basis. Tesla may require Supplier to replace any Supplier Personnel whose performance, in Tesla' s reasonable judgment, has been unsatisfactory. Supplier will be liable for any expenses associated with the replacement of any Supplier Personnel under this Section.
3. 4 Subcontracting.
a) Subject to Section 3.4(b), Supplier may not subcontract or delegate the performance of any part of the Services without Tesla' s
prior written consent, which Testa may withhold in its sole discretion. If Tesla approves a subcontractor that is an Affiliate of Supplier, such approval is subject to the subcontractor remaining an Affiliate of Supplier. Testa may require Supplier to replace any previously approved subcontractor whose performance, in the reasonable judgment of Tesla, has been unacceptable. Supplier is responsible for managing all subcontractors and is responsible for all subcontractors to the same extent as if the subcontracted Services were retained by Supplier.
Supplier will be Tesla' ssole point of contact regarding the Services and all subcontracted Services, including for payment. Supplier shall include in subcontracts any provisions of the Agreement that may be applicable to performance of the subcontract and all other provisions intended for the protection of Testa. b) Supplier may, in the ordinary course of business, utilize third party services or products that are not dedicated to performance of Services for Tesla and that are not material to any particular function constituting a part of the Services. Supplier may also engage individual independent contractors to supplement its employee workforce. Such arrangements do not constitute Subcontracting for the purposes of this Section. Supplier will nevertheless be responsible for such parties.
4. CHARGES
4. 1 Charges, Generally. The Agreement sets forth ( or will set forth) the unit rates and charges payable to Supplier for performing the Services and the associated invoicing and payment procedures and terms thereunder ( collectively, the " Charges"). Testa will not be required to pay Supplier any amounts under an Agreement other than the Charges payable to Supplier under, and calculated in accordance with, the Agreement.
4. 2 Invoicing.
a) Supplier shall submit invoices to the Testa entity which entered into the Agreement on a monthly basis in accordance with the method of electronic communication specified by such Tesla entity. All invoices must reference the Agreement/ release number ( where applicable), contain an itemization of amounts for Services rendered during the applicable invoice period ( including, if applicable and requested by Tesla, a separate break -down of charges for goods
and services used by Supplier in performance of the Services, and detailed time card entries with respect to Services that are charged on a time & materials basis), and must comply with the provisions of the Agreement and such other reasonable requirements as may be prescribed by Testa and/ or its Affiliate from time to time. All invoices and payments will be in local currency of the country in which the Service Recipients receive the Services. b) Payment of Supplier' sinvoices shall be due within 60 days of receipt of each invoice by Testa or its Affiliate; provided, however, that ( i) Testa or its Affiliate may withhold payment of any invoiced charges that Testa disputes in good faith; (ii) payment of any Charges shall not be deemed an approval of such Charges, and Testa may later dispute
476
such Charges; and ( iii) payment of Charges shall not relieve Supplier of any of its warranties or other obligations under the Agreement. The Parties shall work in good faith to resolve any disputed Charges. c) If Supplier owes Testa a credit or other amount under the Agreement ( e.g., for delay or failure to achieve a milestone), Supplier will pay that amount by check or wire transfer within 45 days. d) Charges, if any, that Supplier fails to invoice to Testa within 120 days of the date that such Charges should have been billed to Testa will not be payable by Testa. In the case of third party charges for which Testa is responsible for paying or reimbursing Supplier, the 120 -day period will not begin to run until Supplier has been invoiced for such charges by the applicable third party.
4. 3 Incidental and Out -of -Pocket Expenses.
a) Unless expressly provided otherwise in an Agreement, Testa is not responsible for any additional costs or expenses of any nature incurred by Supplier in connection with the provisions of the Services, including travel expenses, clerical or administrative personnel, long distance telephone charges, etc. (" Incidental Expenses"). To the extent that an Agreement requires Testa to reimburse Supplier for Incidental Expenses, Testa is not responsible for any such reimbursement unless the expenses are ( 1) approved in writing, in each instance, in advance by Testa; ii) substantiated by appropriate receipts and related documentation; and ( iii) in compliance with Tesla' s corporate
travel policies and procedures, as amended from time to time in Tesla' s sole discretion. In no event will Testa be liable for payment of any Incidental Expenses that exceed Supplier' stotal fees under an Agreement by 10% or more. b) " Out -of -Pocket Supply Expenses" are the reasonable, demonstrable and actual out-f- pocket expenses incurred by Supplier for equipment, materials, or supplies required for performance of the Services and specified in writing by Testa as reimbursable, and " Out -of -Pocket Service Expenses" are the reasonable, demonstrable and actual out-f- pocket expenses incurred by Supplier for services ( such as with tier 2 service providers) required for performance of the Services and specified in writing by Testa as reimbursable (" Out -of -Pocket Expenses" refers collectively to Out -of -Pocket Supply Expenses and Out -of -Pocket Service Expenses). Out -of -Pocket Expenses are to be determined net of all rebates, discounts and allowances received by Supplier, and shall not include Supplier' sactual or allocated overhead costs, administrative expenses or other mark- ups.
4. Taxes.
a) This Section 4. sets forth the allocation of responsibility between the Parties for taxes arising out of or in relation to an Agreement. Except as otherwise expressly provided in this Section 4., each Party remains solely responsible for taxes imposed or assessed on such Party and its Affiliates ( or their activities), including taxes assessed on such Party' s and its Affiliates' ( i) property, franchise, income, and business and occupational taxes ( or similar in nature) on its business activities, and ( ii) for employer -related taxes with respect to its personnel ( e.g. employee taxes, workers compensation and unemployment insurance). Each Party agrees to reasonably cooperate with the other to enable each to more accurately determine its own tax liability and to minimize such liability to the extent legally permissible.
b) The only taxes for which Testa will be responsible for paying Supplier are the Service - Related Taxes applicable to the Services under an Agreement. Any Service - Related Tax Supplier is responsible for collecting from Testa and paying to the applicable tax authority will be paid by Testa on a pass -through expense basis ( i.e., at Supplier' s actual direct cost, without any uplift or other mark- up). If Testa is exempt from any Service -Related Tax, it will provide Supplier with a
copy of the applicable tax exemption certificate, and Supplier will not bill, charge, or credit Testa for such tax.
c) Supplier' sinvoices shall: ( i) include any Service - Related Taxes; ( ii) include a breakout between taxable and non- taxable Charges; and ( iii) show the tax rate, the value against which the tax rate is applied, and the total amount of tax due. All invoices must comply with local invoice requirements. If Supplier is responsible for failing to invoice Testa for applicable Service - Related Taxes or failing to pay such taxes to the applicable taxing authorities in a timely
manner, Supplier will have financial responsibility for the uncharged or unpaid Service - Related Taxes and any associated penalties and interest. d) Withholding Taxes. If laws, rules or regulations require the withholding of income taxes or other taxes imposed upon payments set forth in this Section 4, Testa shall make such withholding payments as required and subtract such withholding payments from the payments. Testa shall submit appropriate proof of payment of the withholding taxes to the Supplier within a reasonable period of time. At the request of Supplier. Testa shall give Supplier such reasonable assistance, which shall include the provision of appropriate certificates of such deductions made together with other supporting documentation as may be required by the relevant tax authority, to enable
477
Supplier to claim exemption from such withholding or other tax imposed or obtain a repayment thereof or reduction
thereof and shall upon request provide such additional documentation from time to time as is reasonably required to confirm the payment of tax.
5. TESLA RESPONSIBILITIES
5. 1 Testa Responsibilities, Generally. To facilitate Supplier' s performance of the Services, Testa will, at its own cost and expense, perform those tasks and fulfill those responsibilities of Tesla as set forth in the Agreement (" Testa Responsibilities"). Supplier' sperformance of the Services may be dependent in some circumstances on Tesla' s timely and effective performance of the Tesla Responsibilities and timely decisions and approvals by Testa.
5. 2 Savings Clause. Tesla' s failure to perform any of the Testa Responsibilities ( or cause them to be performed) will not constitute grounds for termination by Supplier except as provided in Section 8. 4 (Termination by Supplier); provided, however, that Supplier' s nonperformance of its obligations under an Agreement will be excused if and to the extent ( 1) such nonperformance results from Tesla' sfailure to perform any Testa Responsibilities, and ( ii) Supplier provides Testa with reasonable notice of such nonperformance and, if requested by Testa, uses Commercially' Reasonable Efforts to perform notwithstanding Tesla' s failure to perform. If Supplier' s use of Commercially Reasonable Efforts to perform in such a circumstance would cause Supplier to incur significant uncompensated expenses,
failure
Supplier may notify Tesla. In that case, Supplier' s obligation to continue its efforts to work around Tesla' s to perform will be subject to Testa agreeing to reimburse Supplier for its incremental uncompensated expenses.
5. 3 Access to Tesla Systems and Facilities.
a) From time to time and at Tesla' s sole discretion, Testa may provide Supplier with access to proprietary computer systems and technologies owned and operated by Tesla and/ or its affiliates to facilitate the Services ( the Systems"). Supplier will only use the Systems for the business purposes of Tesla. Tessa may periodically monitor all uses of the Systems as allowed by law and review user access records maintained by Supplier. Supplier' s users will have no expectation of privacy when using the Systems. Supplier shall be solely responsible for obtaining and maintaining the hardware and software it uses which are necessary to properly access the Systems and perform the Services.
b) Tesla will provide to Supplier Personnel assigned to work at a Tesla Facility the reasonable use ofthe facility. The access to and use of Tesla Facilities granted hereunder does not constitute a leasehold, usufruct, or other property interest in favor of Supplier. Testa retains all of its right, title and interest in and to the Testa Facility. Supplier will use the Tesla Facility for the sole purpose of providing the Services. Supplier will be responsible for any damage to the Testa Facility caused by Supplier Personnel. Supplier will permit Tesla and its agents and representatives to enter into those portions of Tesla Facility that are occupied by Supplier Personnel at any time and, when those portions of the Testa Facility are no longer required for performance of the Services, Supplier will return them to Tesla in substantially the same condition as they were in when Supplier began use of them, subject to reasonable wear and tear.
6. CONFIDENTIALITY
6. 1 Confidentiality. Tesla' smutual non -disclosure agreement as of the Effective Date or, ifapplicable, the signed non -disclosure agreement then in effect between the Parties (" NDA") sets forth the Parties' respective confidentiality obligations hereunder. The NDA is hereby incorporated by reference in this MSA, and the terms and conditions of the NDA will continue in force throughout the duration of this MSA. Tesla' sConfidential Information is deemed to include information relating to the research and development of products, including application and usage, methods of manufacture, methods of design, trade secrets, business plans, including current and future implementation plans or plans regarding forecasts and product roadmaps, future orders for product including specifications, quantities and timing, customers, finances and personnel data related to the business or affairs of Tesla, the existence of any relationship or business dealings between Tessa and Supplier, the existence and terms of the MSA and each Agreement, and all Intellectual Property Rights owned or separately licensed by Testa.
6. 2 Data Security. Supplier will: (i) establish, implement and maintain commercially reasonable safeguards against the destruction, loss, alteration and unauthorized access and use of Tesla Data in the possession or control of Supplier ( or its Subcontractors) that are no less rigorous than those maintained by Tesla as of the Effective Date and are no less rigorous than those maintained by Supplier for its own data of a similar nature; and ( information and data
ii) comply with Tesla' s
security policies as disclosed to Supplier from time to time. No later than the fifth day of each month, Supplier will deliver to Testa a copy of all Testa Data in its possession or control in the form and format requested by Testa.
478
7. INTELLECTUAL PROPERTY RIGHTS
7. 1 Testa Material. " Testa Material' means all information systems and technology, software, documentation, prototypes, tools, methods, forms, processes, workflows, data, compilations, designs, manuals, specifications and other material owned, licensed to, or developed by Testa ( or its Affiliates) that is made available to Supplier Personnel for use in rendering the Services. Subject to any limitations or restrictions set forth in agreements between Tesla ( or its Affiliate) and third party licensors of Tesla Material, Testa grants Supplier a limited, nonexclusive, nontransferable, no -charge license during the Term to Use the Testa Material in location( s) approved by Testa for the sole purpose of providing the Services. When Testa Material is no longer required for performance of the Services, or in any event upon expiration or termination of the applicable Agreement, Supplier will return it to Testa in an agreed format or, at Tesla' selection, destroy it and certify the destruction of all copies in Supplier' s (and possession or control.
any Subcontractor' s)
7. 2 Developed Material. Subject to Section 7. 3, Testa will own all Intellectual Property Rights in and have the sole right to use all Deliverables and other work product created by Supplier Personnel for Testa under each Agreement collectively, " Developed Material"). Developed Material will be deemed to be works made for hire owned by Testa upon their creation. To the extent that any such Developed Material is not deemed to be a work made for hire and the property of Testa by operation of Law, Supplier irrevocably' assigns, transfers and conveys to Testa, without further consideration, all of its right, title and interest ( including all Intellectual Property Rights) in and to such Developed Material. Supplier shall execute ( and cause its employees to execute) such documents or take such actions as Testa may reasonably request to perfect Tesla' s
ownership of Developed Material. Supplier will promptly disclose the creation of Developed Material to Tesla. Tesla grants to Supplier a fully paid -up, royalty -free, nonexclusive license
during the Term to Use such Developed Material solely as necessary to perform the Services, and to sublicense Subcontractors involved in rendering the applicable Services during the Term to Use such Developed Material solely as necessary to perform Services on Supplier' sbehalf.
7. 3 Supplier Material. Tesla' s
ownership of Developed Material that incorporates any material created and owned by Supplier ( or its Subcontractor) outside the performance of Services (" Supplier Material') will be subject to Supplier' s (or its applicable Subcontractor' s) ownership of such Supplier Material. Unless otherwise agreed in a Separate written license agreement executed by the Parties, Supplier grants to Testa ( and its Affiliates) a non- exclusive. royalty -free, perpetual, irrevocable, transferable, fully paid - up, world-ie license to Use, sublicense and distribute Supplier Material that is incorporated into any Developed Material or is reasonably required to Use any Developed Material in a cost- effective manner ( e.g., tools). Supplier shall obtain Tesla' s written approval prior to incorporating any Supplier Material into any Developed Material.
7. 4 Third Party Material. Supplier will not incorporate any third party proprietary materials, information or intellectual property (" Third Party Material') into Developed Material, including all Deliverables or other work product to be delivered to Testa, unless Supplier has obtained for Testa a perpetual, worldwide, fully paid -up, royalty - free, non- exclusive license permitting Testa and its Affiliates to use, sublicense and distribute such Third Party Material in the conduct of their normal business operations.
7. 5 Open Source Code. Supplier represents and warrants that it will not incorporate any Open Source Code into a Deliverable or other work product to be delivered to Testa without Tesla' s express, prior written consent.
7. 6 Intellectual Property Rights Agreements with Supplier Personnel. Supplier is responsible for having in place with all Supplier Personnel ( either directly or indirectly through their respective employers) such agreements respecting Intellectual Property Rights as are necessary to comply with this Section 7 ( Intellectual Property Rights).
7. Licenses and Rights Survive Bankruptcy. All licenses and rights of Use granted under or pursuant to this MSA and each Agreement shall be deemed to be licenses to rights in " intellectual property" for the purposes of Section 365( n) of the United States Bankruptcy Code.
7. 8 No Interference. Nothing in this MSA or any Agreement will be deemed to prevent Supplier from carrying on its business or developing for itself or others materials that are similar to or competitive with those produced as a result of the Services provided they do not contain or disclose any Confidential Information or proprietary information of Testa or otherwise infringe or constitute a misappropriation of Tesla' s Intellectual Property Rights.
8. TERM AND TERMINATION
8. 1 Duration. This MSA will come into effect when signed by both Parties and shall remain in effect until terminated under this Section or by mutual written agreement of the Parties. The term of each Agreement will be set forth in the applicable Purchase Order and/ or Approved Work Order ( such period is the " Term").
479
8. 2 Termination, Generally. This MSA and each Agreement may only be terminated as provided in this Section 8. Termination by a Party will be without prejudice to any other rights and remedies available to a Party. Testa will not be obliged to pay any termination charges or demobilization fees in connection with the termination of this MSA or of any Agreement.
8. 3 Termination by Testa. Testa may terminate this MSA and/ or an Agreement as follows: (a) for default without affording Supplier any additional time or opportunity to cure: ( i) if Supplier commits a breach of Section 6 Confidentiality) of this MSA; ( ii) as provided in Section 12 ( Force Majeure) of this MSA; ( iii) if Supplier violates any Testa Policies of which Supplier has been given notice or applicable Laws; (iv) if Supplier breaches Section 9. 4 Debarment) of this MSA; or ( v) if Supplier commits multiple breaches of the Agreement, none of which is necessarily a material breach, but which Tesla determines have had an aggregate effect comparable to that of a material breach; b) if Supplier has breached any material obligation under the Agreement and does not cure the breach within 15 days after receiving notice of it from Testa, provided that Supplier will not be afforded any additional time or opportunity to cure if Supplier has previously breached the same material obligation; or ( c) for convenience ( i.e., without cause) at any time by giving Supplier at least 30 days' prior written notice specifying the terminated Services and designating the termination date and paying the agreed termination charge set forth in the applicable Agreement, if any.
8. 4 Termination by Supplier. If Testa fails to pay Supplier when due undisputed Charges totaling at least two months' Charges under an Agreement and fails to make such payment within 45 days after the date Tesla receives notice of non- payment from Supplier, Supplier may terminate that Agreement as of a date specified in a written notice of termination referencing this Section and expressly stating Supplier' sintent to terminate the Agreement. Supplier may not suspend performance of the Services during the Term for any reason.
8. 5 Operational Transition. Upon termination or expiration of the Agreement. Supplier will deliver to Testa and/ or a subsequent supplier any remaining property of Testa in Supplier' s possession, including reports. data, work product, and Confidential Information ( alternatively, as requested by Testa, Supplier will destroy such property). and certify that all such Testa property has been removed from Supplier' ssystems, premises and control and either returned or destroyed. All materials in electronic form shall be delivered to Testa on such media and in such file format as Tesla may direct.
9. REPRESENTATIONS AND WARRANTIES OF SUPPLIER
9. 1 Performance of Services. Supplier represents and warrants that it will perform all Services ( i) in accordance with the Agreement; ( ii) in a good, professional and workmanlike manner, free from defects in material and workmanship and in accordance with industry standards; ( iii) in strict accordance with Supplier' sspecifications, samples or other descriptions provided to Testa or approved or adopted by Tesla; (iv) in compliance with all applicable Laws; (v) efficiently and in a cost- effective manner subject to the requirements of the Agreement; and ( vi) using qualified personnel with suitable training, education, experience and skill to perform the Services in accordance with timing and other requirements of the Agreement.
9. 2 Non -Infringement. Supplier represents and warrants that: (a) the Services will not infringe or misappropriate any Intellectual Property Rights of any third party; (b) Supplier has all rights and licenses necessary to convey to Tesla the ownership of ( or license rights to Use) as required under the Agreement, all Intellectual Property Rights in Deliverables, Developed Materials and other materials provided to Testa; and ( c) no Deliverables or other materials provided to Testa, nor their use by Tesla will infringe or constitute an infringement or misappropriation of any Intellectual Property Rights of any third party.
9. 3 Malware. Supplier represents and warrants that it will not introduce Malware into Tesla' s or any of its Affiliates' systems and that Supplier will exercise Commercially Reasonable Efforts to prevent Malware from being so introduced. If Malware is found to have been introduced into Tesla' s or any of its Affiliates' systems as a result of a breach of the foregoing warranty, Supplier will, at no additional charge, assist Testa in eradicating the Malware and reversing its effects and, if the Malware causes a loss of data or operational efficiency, to assist Tesla in mitigating and reversing such losses.
9. 4 Debarment. At all times throughout the Term, Supplier represents and warrants that it shall not be:
a) debarred, suspended, excluded or disqualified from doing business with the United States Government; or ( b) listed on the Excluded Parties List System maintained by the General Services Administration of the United States Government ( found at www. epls. gov); or ( c) an entity with which U. S. entities are prohibited from transacting business of the type contemplated by the Agreement or with which U. S. entities must limit their interactions to types approved by the Office of Foreign Assets Control, Department of the Treasury (" OFAC"), such as by Law, executive order, trade embargo, economic sanction, or lists published by OFAC. Supplier agrees to immediately notify Testa in
480
writing in the event Supplier breaches any of its representations and warranties or has reason to believe that it will become in breach of any of such representations and warranties.
10. INSURANCE
10. Types of Insurance. At all times throughout the Term, Seller shall procure and maintain ( and shall cause each subcontractor to maintain), at its sole cost and expense, and upon request furnish to Tesla a certificate evidencing the following insurance: (a) commercial general liability insurance with minimum coverage of at least One Million Dollars ($ 1, 000,00) combined single limit per occurrence for bodily injury and/ or property damage, as well as contractual liability coverage and naming Testa as an additional insured; ( b) employer' sliability insurance with minimum coverage of at least One Million Dollars ($ 1, 000,00); (c) automobile liability insurance on all owned, non - owned and/ or hired vehicles with minimum coverage of at least One Million Dollars ($ 1, 000,0) combined single limit per occurrence for bodily injury and/ or property damage, and physical damage insurance for the actual cash value of each such vehicle; (d) if applicable, all risk property perils insurance covering the full replacement value of Testa Property while in Seller' s care, custody, or control and naming Tesla as loss payee; and ( e) errors and omissions liability insurance covering liability for loss or damage due to an act, error, omission or negligence, with a minimum limit per event of One Million Dollars ($ 1, 000,0). Seller shall also comply with all applicable workers' compensation and/ or other Laws that may accrue in favor of any Seller Personnel in all locales where Seller Personnel perform( s) in connection with the Agreement.
10. 2 Insurance, Generally. Supplier will be responsible for all deductibles and retentions with regard to its insurance. In the case of loss or damage or other event that requires notice or other action under the terms of any insurance coverage described above, Supplier will be solely responsible for taking such action. Supplier will provide Testa with contemporaneous notice and such other reasonable and relevant information as Testa may request regarding the event. The policies shall: (a) be primary and not contributory with any liability coverage carried by Tesla or any Affiliate of Tesla; (b) name Testa and any other entity reasonably requested by Tesla as additional insureds; (c) provide for severability of interests; (d) provide for waiver of subrogation; (e) be with one or more insurance companies rated A minus or better ( as determined by A. M. Best & Company), and licensed to do business in the locations where Services are to be performed; and ( f) require the insurer to give Tesla at least 30 days' prior written notice of any restrictive change, non - renewal or cancellation that may affect Tesla' s rights thereunder. Supplier will furnish to Testa a certificate evidencing such coverage, upon request.
11. INDEMNIFICATION
11. Indemnification by Supplier. Supplier will indemnify, defend and hold harmless Tesla, its Affiliates and their respective officers, directors, employees, agents and representatives ( collectively, " Testa Indemnitees"), from any and all losses arising from, in connection with, or based on allegation of any of the following: ( a) any Claim by, on behalf of or relating to Supplier Personnel; ( b) any Claim that, if obligations under Section 6 ( Confidentiality); (c) any Claim that, if true, true,
would
would
arise from
constitute
or be
a
attributable
breach of
to
Supplier' s
a breach
of Supplier' s obligations under Section 2. 7 (Compliance with Laws and Tesla Policies); (d) any Claim that, if true, would arise from or be attributable to a breach of Supplier' s obligations under Section 9. 2 (Non - Infringement); (e) any Claim for death or bodily injury, or the damage, loss or destruction of real or tangible personal property of third parties ( including employees of Tesla and Supplier and their respective subcontractors) caused by the tortious conduct of Supplier, any Supplier Personnel, or any of Supplier' sthird - party suppliers; and ( f) the inaccuracy or untruthfulness of any representation or warranty made by or on behalf of Supplier in the Agreement.
11. 2 Infringement Claims. If any item used by Supplier to reasonable opinion is likely to become, the subject of an infringement provide
or
the Services becomes, or in Supplier' s
misappropriation Claim, Supplier will at its
expense, in addition to indemnifying Tesla Indemnitees as provided in this Section 11 ( Indemnification) and to the other rights Tesla may have under the Agreement, ( i) promptly secure the right to continue using the item, or ( ii) if this cannot be accomplished with Commercially Reasonable Efforts, then replace or modify the item to make it non - infringing or without misappropriation; provided, however, that any such replacement or modification may not degrade the performance or quality of the affected components of the Services or disrupt Tesla' s business operations, or ( iii) if neither of the foregoing can be accomplished by Supplier with Commercially Reasonable Efforts, then upon at least 180 days' prior written notice to Testa, Supplier may remove the item from the Services, in which case the Charges will be equitably adjusted to reflect such removal. If removal of the item from Services causes material loss or degradation of the Services, such loss or degradation will constitute a material breach of the Agreement by Supplier in respect of which Tesla may exercise its termination and other rights and remedies.
11. 3 Indemnification Procedures. Tesla will give Supplier prompt written notice of any Claim for which indemnification is sought under this Section 11. Failure to give notice will not diminish Supplier' sobligation under
481
this Section if Supplier has or receives knowledge of the existence of such Claim by any other means or if the failure does not materially prejudice Supplier' s ability to defend the Claim. Supplier may select legal counsel to represent Tesla ( said counsel to be reasonably satisfactory to Tesla) and otherwise control the defense of such Claim. If Supplier elects to control the defense of such Claim, Tesla may participate in the defense at its own expense. If Supplier, within a reasonable time after receipt of such notice, fails to defend Tesla, Tesla may undertake the defense of, and compromise or settle, the Claim on behalf and at the risk of Supplier. If the Claim is one that cannot by its nature be defended solely by Supplier, Tesla will make available information and assistance as Supplier may reasonably request at Supplier' sexpense. Supplier may not, without the prior written consent of Tesla, (i) consent to the entry of any judgment or enter into any settlement that provides for injunctive or other non - monetary relief affecting any Tesla Indemnitee, or ( ii) consent to the entry of any judgment or enter into any settlement unless such judgment or settlement provides for an unconditional and full release of the Tesla Indemnitees and does not diminish any of Tesla' s rights under the Agreement or result in additional fees or charges to Tesla.
12. LIABILITY
12. Limitation of Liability and Exclusions.
a) Except as provided in Section 12.(c) below, each Party' stotal liability to the other Party in connection with the Agreement, whether in contract or in tort ( including for breach of warranty, negligence and strict liability in tort), will be limited as follows: ( i) Supplier' sliability to Tesla shall not exceed an amount equal to the greater of one million dollars ($ 1, 000,00 USD) or the Charges paid or payable to Supplier pursuant to the Agreement for proper performance of the Services for the 12 months prior to the month in which the most recent event giving rise to liability occurred; and ( ii) Tesla' s
liability to Supplier shall not exceed an amount equal to the Charges paid or payable to Supplier pursuant to the Agreement for proper performance of the Services. b) Except as provided in Section 12.(c) below, neither Party will be liable to the other for any consequential, incidental, indirect or punitive damages, or any loss of revenue, business, savings or goodwill, regardless of the form of action or the theory of recovery, even if it has been advised of the possibility of such damages. c) The limitations and exclusions set forth in Sections 12. and I2. 1(b) will not apply with respect to:
i) damages attributable to intentional torts, unlawful conduct or gross negligence; (ii) Claims that are the subject of indemnification pursuant to Section 11 ( Indemnification); ( iii) damages attributable to Supplier' s breach of its obligations with respect to Tesla Confidential Information; ( iv) intentional misappropriation or intentional infringement of a Party' sIntellectual Property Rights; or ( v) damages attributable to Supplier' s wrongful cessation or abandonment of the Services.
d) The Parties agree that the following will be considered direct damages: ( i) costs and expenses of recreating or reloading any lost, stolen, corrupted or damaged Tesla Data; (ii) costs and expenses of implementing a work - around in respect of a failure to provide any Services as required by the Agreement; ( iii) straight time, overtime and related expenses, including overhead allocations for employees, wages and salaries of additional employees, travel expenses, overtime expenses, telecommunications charges and similar charges, incurred in connection with clauses ( i) and ii) above due to Supplier' sfailure to perform in accordance with the Agreement; (iv) costs and expenses incurred for Tesla ( or its Affiliates) to bring the Services in- house or to contract to obtain services similar to the Services from an alternate source, including the costs and expenses associated with the retention of external consultants and legal counsel to assist with any re -sourcing; (v) damages suffered by any Tesla Affiliate that would be direct damages if they had instead been suffered by Tesla; and ( vi) payments, fines, penalties or interest imposed by a governmental body or regulatory entity to the extent caused by Supplier.
12. 2 - Force Majeure Event" means an event beyond the reasonable control of a Party that delays or prevents the Party from performing its obligations under the Agreement, provided that ( a) the non -performing Party is without fault in causing or failing to prevent the event, and ( b) the event cannot be circumvented through the use of commercially reasonable alternative sources, workaround plans or other means. The affected Party will promptly notify the other Party of any Force Majeure Event and of its plans and efforts to implement a work -around, in which case the affected Party will be excused from further performance of the affected obligations as long as the Force Majeure Event continues. The affected Party will continue to use Commercially Reasonable Efforts to perform to the extent possible and will comply with any applicable disaster recovery obligations. The affected Party will notify the other Party promptly when the Force Majeure Event has abated. If a Force Majeure Event prevents performance of the Services under an Agreement or Project for more than thirty consecutive days, then Tesla may terminate the Agreement or Project as of a date specified by Tesla in a written notice of termination to Supplier, in which case Tesla will pay the Charges for all Services actually performed, but will not be liable for payment of any early termination charges or demobilization costs for the terminated Services.
482
13. DISPUTE RESOLUTION
13. Informal Dispute Resolution. In the event any disputes, differences or controversies arise between the Parties, out of or in relation to or in connection with the provisions of this MSA or any Agreement, the Parties shall thoroughly explore all possibilities for an amicable settlement.
13. 2 Jurisdiction and Venue.
a) Any dispute arising out of or relating to an Agreement that is not resolved through negotiation will be settled exclusively by final and binding arbitration conducted in accordance with the then - current Commercial Arbitration Rules of the Judicial Arbitration and Mediation Services/ Endispute ("JAMS"). The existence, content and result of the arbitration shall be held in confidence by the Parties, their representatives, any other participants, and the arbitrator.
The arbitration will be conducted by a single arbitrator selected by agreement of the Parties or, failing such agreement, appointed in accordance with the JAMS rules. The arbitrator shall be experienced in agreements for services similar to the Services. Any demand for arbitration and any counterclaim will specify in reasonable detail the facts and legal grounds forming the basis for the claimant' srequest for relief and will include a statement of the total amount of damages claimed, if any, and any other remedy sought by the claimant. The arbitration will be conducted in the English language in Palo Alto, California. Each Party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator may, in their discretion. award reasonable costs and fees to the prevailing Party. The arbitrator will have full power and authority to determine issues of arbitrability and to interpret or construe the applicable provisions of the Agreement and to fashion appropriate remedies for breaches thereof ( including interim or permanent injunctive relief); provided that the arbitrator will not have any right or authority: (i) in excess of the authority of a court having jurisdiction over the Parties and the dispute would have absent this arbitration agreement; (ii) to award damages in excess of the types and limitation of damages found in the Agreement; or ( iii) to modify the terms of the Agreement. The award of the arbitrator will be issued within thirty (30) days of the completion of the hearing, shall be in writing, and shall state the reasoning on which the award is based. Judgment upon the award rendered in the arbitration may be entered in any court of competent jurisdiction. Each Party will have the right to apply at any time to a judicial authority for appropriate injunctive relief
or other interim or conservatory measures), and by doing so will not be deemed to have breached its agreement to arbitrate or to have impaired the powers reserved to the arbitrator. b) Subject to Section 13. 2(a), for any litigation arising out of or relating to this MSA or an Agreement. regardless of the form of action or the Party that initiates it, the Parties irrevocably and unconditionally submit to the exclusive jurisdiction of and venue in the United States District Court for the Northern District of California or, if that court does not have jurisdiction, the Superior Court of the State ofCalifornia, County of Santa Clara. The Parties irrevocably and unconditionally waive any objection to the laying of venue in such courts. The Parties further consent to the jurisdiction of any state or federal court with subject matter jurisdiction located within a district that encompasses assets of a Party against whom a
judgment ( or award) has been rendered for the enforcement of the j udgment ( or award) against the assets of such Party.
14. MISCELLANEOUS
14. Waiver. No failure or delay by a Party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by an authorized representative of the waiving Party. If a Party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy that Party may have.
14. 2 Remedies Cumulative. All remedies provided in the Agreement are cumulative and in addition to and not in lieu of any other remedies available to a Party under the Agreement, at law, or in equity.
14. 3 Assignment. Supplier may not assign, transfer or otherwise convey or delegate any of its rights or duties under the Agreement to any other Party ( except to the successor in a merger or acquisition of Supplier) without the prior written consent of Testa, and any attempt to do so will be void. The Agreement shall be binding upon the respective successors and permitted assigns of the Parties.
14. 4 Governing Law. This MSA and each Agreement will be interpreted and construed in accordance with the substantive laws of California and the United States generally applicable therein, without regard to any provisions of its choice of law rules that would result in a different outcome.
14. 5 Audits and Records. During business hours and upon reasonable advance notice, Testa and its agents may inspect, examine and audit the records and data of Supplier ( and its subcontractors) that pertain to the Services to verify ( a) the accuracy of Supplier' sinvoices. and ( b) Supplier' scompliance with the Agreement. In support of the
483
foregoing right, Supplier will keep and maintain ( i) financial records relating to the Agreement in accordance with generally accepted accounting principles, ( ii) records substantiating Supplier' sinvoices, (iii) records pertaining to Supplier' scompliance with the Agreement, and ( iv) such other operational records pertaining to performance of the Services as Supplier keeps in the ordinary course of its business. Supplier will retain such records for the longer of three ( 3) years after the Term ends or as required by applicable Laws. Supplier will make such records available to Testa and its auditors for examination and copying upon request.
14. 6 Notices. All formal notices, requests, demands, approvals and communications under this MSA and each Agreement ( other than routine operational communications) ( collectively, `'Notices") will be in writing and may be served either ( i) in person or ( ii) by registered or certified mail with proof of delivery, addressed to the Party at the addresses set forth below. Notices given as described in the preceding sentence will be considered received on the day of actual delivery. A Party may change its address or designee for notification purposes by giving the other Party prior written notice of the new address or designee in the manner provided above. The Parties may mutually agree that certain types of routine approvals and notices of a non - legal nature may be given by electronic mail.
In the case of Testa:
Testa, Inc.
3500 Deer Creek Road, Palo Alto, CA 94304
Attn:
With a
copy to:
Testa, Inc.
3500 Deer Creek Road, Palo Alto, CA 94304
Attn: Legal Department
In the case of Supplier:
RARA Trucking, Inc.
653 N. 21st. ST, San Jose, CA. 95112
Attn: Raul Rivas
Note: If no information is listed here for
Supplier, notices shall be sent to the attention of
the Supplier representative who signs this MSA.)
14. 7 Interpretation. Section references are to sections of the document in which the reference is contained and will be deemed to refer to and include all subsections of the referenced section. The section headings in this MSA are for reference purposes only and may not be construed to modify or restrict any of the terms of the Agreement. This MSA and each Agreement will be deemed to have been written by both Parties. This MSA is written in the English language, and the English text of this MSA and of each Agreement shall prevail over any translation hereof. Unless the context requires otherwise, (i) "including" (and any of its derivative forms) means including but not limited to, ii) "may" means has the right, but not the obligation to do something and - may not" means does not have the right to do something, and ( iii) "will" and " shall" are expressions of command, not merely expressions of future intent or expectation.
14. 8 Order of Precedence. In the event of a conflict between or among the documents comprising an Agreement, the following order of precedence will apply ( documents listed in descending order of priority): this MSA; NDA; the Approved Work Order; and other schedules. Notwithstanding the foregoing, an Approved Work Order may amend or override this MSA if and to the extent that the Approved Work Order of the MSA and
specifically identifies the affected provision( s)
expressly states that the Parties intend to amend or override such provision( s) for purposes of that Agreement.
14. 9 Severability. If any provision of an Agreement Document is held invalid by a court with jurisdiction over the Parties, such provision will be severed and the remainder of the Agreement Documents will remain in full force and effect.
14.0 Third Party Beneficiaries. This MSA and each Agreement is entered into solely between Supplier and Testa and/ or its Affiliate and, except for the Parties' indemnification obligations under Section 11 ( Indemnification) and the Service Recipients, will not be deemed to create any rights in, or any obligations to, any third parties.
14.1 Survival. Any provision of the Agreement that contemplates or governs performance or observance subsequent to termination or expiration thereof will survive the expiration or termination thereof for any reason, including the following Sections: 6 ( Confidentiality), 7 ( Intellectual Property Rights), 9 ( Representations and Warranties of Supplier), 11 ( Indemnification), 12 ( Liability), and 14. 5 (Audits and Records).
14.2 Entire Agreement. The Agreement, including all Agreement Documents, constitutes the entire agreement between the Parties with respect to its subject matter and merges, integrates and supersedes all prior and contemporaneous agreements and understandings between the Parties, whether written or oral, concerning its subject matter. Any terms and conditions on any order or written notification from either Party that purport to vary or
484
supplement the Agreement shall not be effective or binding on the other Party. This MSA and any Agreement may be amended or modified solely in a writing signed by a duly authorized representative of each Party.
14.3 Defined Terms. Terms used in this MSA or in an Agreement with initial capitalization have the meanings specified where used or in this Section 14.3.
a) " Affiliate" means with respect to an entity, any other entity or person controlling, controlled by, or under common control with, such entity. For purposes of this definition, "control" means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies or operations of an entity, whether through ownership of voting securities, by contract or otherwise. b) " Agreement Documents" means this MSA, the applicable Approved Work Order and Purchase Order, documents referenced in any of the foregoing, and any other additional written agreements which pertain to the Services and are signed by authorized representatives of both Parties. c) " Anti -Bribery Laws" means the United States Foreign Corrupt Practices Act of 1977, the United Kingdom Bribery Act of 2010, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions ( in each case, as amended from time to time) and all other applicable national, regional, provincial, state, municipal or local laws and regulations that prohibit the bribery of, or the providing of unlawful gratuities, facilitation payments or other benefits to, any government official or any other person. d) " Change" means any material change to the scope of, Charges for, or other contractual commitments of a Party with respect to, the Services being provided by Supplier. e) " Change Order" means a mutually agreed Change to the scope, timing, manner or cost of performing the Services pursuant to an Agreement. A change order may not modify the terms of this MSA. f) " Claim" means any demand, or any civil, criminal, administrative or investigative claim, action or proceeding ( include arbitration) asserted, commenced or threatened against an entity or person by an unaffiliated third party. For the purposes of this definition, an employee of either Party is considered an unaffiliated third party. g) " Commercially Reasonable Efforts" means taking all such steps and performing in such a manner as a well managed company would undertake where it was acting in a determined, prudent and reasonable manner to achieve a particular desired result for its own benefit.
h) " Deliverable" means any work product identified as a ' Deliverable' in writing by the Parties. 1) " Effective Date" has the meaning given in the Agreement. j) " Intellectual Property Rights" means all ( i) patents, patent applications, patent disclosures and inventions whether patentable or not), (ii) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names, and registrations and applications for the registration for any of them, together with all goodwill associated with any of them, (iii) copyrights and copyrightable works ( including computer programs and mask works) and registrations and applications for registration, ( iv) trade secrets, know- hw and other confidential information, v) waivable or assignable rights of publicity, waivable or assignable moral rights, (vi) unregistered and registered design rights and any applications for registration, and ( vii) database rights and all other forms of intellectual property, such as data. k) " Law( s) " means any statute, regulation, ordinance, rule, order, decree or governmental requirement enacted, promulgated or imposed by any governmental authority at any level ( e.g., municipal, county, province, state or national). For clarity, " Law( s)" includes all Anti -Bribery Laws. 1) " Malware" means program code or programming instruction( s) or set() of instructions intentionally designed to disrupt, disable, harm, interfere with or otherwise adversely affect computer programs, data files or operations, or other code typically described as a virus, Trojan horse, worm, back door or other type of harmful code. m) " Open Source Code" means software that requires as a condition of its use, modification or distribution, that it be disclosed or distributed in source code form or made available at no charge, including, without limitation, software licensed under the GNU General Public License ( GPL) or the GNU Lesser/ Library GPL. n) " Party" means either Tesla or Supplier, as required by the context. o) " Productive Hour" means an hour of productive work by Supplier Personnel in performing Services excluding breaks, travel time, idle time, sick time, vacation, etc.). Time spent on the following activities does not constitute Productive Hours and will not be billed to Tesla: ( i) travel time to and from the work site for the performance
485
of the Services, unless expressly authorized by Testa in writing; ( 11) vacation time, holidays, sick leave and other forms of personal leave; (iii) time spent on Supplier administrative matters; ( iv) time spent on marketing and sales activities, including preparation of proposals to Testa; (v) time spent on negotiation of Agreement Documents; and ( vi) time spent attending courses, seminars and Supplier meetings not related to the Services. p) " Project" means a
group of related functions or activities that spans multiple days, weeks, or months and builds cumulatively toward the achievement of defined target outcomes or objectives. A Project typically has multiple phases or life -cycle stages and involves written project plans with defined interim milestones and deliverables to measure progress toward the achievement of its target outcomes or objectives. The Services provided for each Tesla Facility will be deemed a separate Project for purposes of the Agreement. q) " Service Lever' means a standard of performance with respect to the Services. r) " Service Level Credit" means a monetary credit potentially payable to Testa in respect of a Service Level Default.
s) " Service Level Default" means a failure of Supplier to meet a Service Level during the applicable measurement period, provided that the failure is not excused pursuant to Sections 5. 2 (Savings Clause) or 12. 2 (Force Majeure). Service Level Credits will not be construed as a penalty or as liquidated damages for a Service Level Default and, accordingly, they will not be deemed to constitute Tesla' s remedy, exclusive or otherwise, for any
damages caused by a Service Level Default. Supplier irrevocably waives any claim or defense that Service Level Credits are not enforceable or that they constitute a sole and exclusive remedy of Tesla with respect to a Service Level Default.
t) " Service - Related Taxes" means, for each Project, transactional taxes in respect of the Services that Supplier is legally responsible to collect and remit to the applicable taxing authorities and for which Testa is responsible for paying or reimbursing Supplier, and does not include any taxes that are assessed on any goods or services used or consumed by Supplier ( or its Subcontractors) in providing the Services where the tax is imposed on Supplier' s (or its Subcontractor' s) acquisition or use of the goods or services in its provision of the Services. u) " Supplier Personnel" means any personnel furnished by Supplier to perform any part of the Services. including employees and independent contractors of Supplier, its Affiliates and subcontractors. v) " Testa Data" means all data and information regarding Testa, its customers and suppliers that is either:
i) furnished, disclosed or otherwise made available to Supplier Personnel, directly or indirectly, by or on behalf of Testa pursuant to an Agreement; or ( ii) collected or created by Supplier Personnel on behalf of Tesla in the course of performing the Services. Testa Data will be deemed to be Confidential Information that is subject to the NDA. w) " Testa Facility" means, collectively, the Testa facility or real property at which Supplier will perform Services and the reasonable office space, furniture, fixtures, equipment, hardware, software, telephones, office supplies, and other facility resources to be provided or made available by Testa to Supplier Personnel who are assigned by Supplier to work on Testa premises by mutual agreement of the Parties, as evidenced in the applicable Agreement. x) " Use" means the right to use, execute, display, copy, perform, distribute copies of, maintain, modify, enhance, and create derivative works of software or other copyrighted or copyrightable works. y) " Work Order" means the form of document that will be used to authorize Supplier to perform Services by mutual agreement of the Parties. When duly executed by the authorized representatives of both Parties, a Work Order becomes an " Approved Work Order."
486
Intending to be legally bound, each of the undersigned parties has caused its duly authorized representative to execute this MSA as of the date signed below by Testa.
Testa, Inc.
By: Digitally signed by
q. , IcA. vm
Printed DN:
Title:
cn= cferngno@tesra. com
Date: 2017. 08.2
07: 42: 31 -07'0'
Date:
Supplier
By: / 6.‘., 2
Printed: Raul Rivas
Title: President
Date: July 28, 2017
Company: RARA Trucking, Inc.
Address: 210 Umbarger Rd. San Jose, CA 95111
487
SCHEDULE A
APPROVED WORK ORDER NO. FOR SERVICES
1. Introduction. This Work Order (" Work Order") is issued under and pursuant to the Master Services Agreement by and between Testa, Inc. ("Testa") and Supplier. Capitalized terms used but not defined in this Work Order will have the meanings given them in the MSA. The Term of this Work Order shall be from ' date' the " Effective Date") through [ date].
2. Services and Performance Measurement.
a) With reference to Section 1 ( Services) of the MSA, Supplier will perform the following Services pursuant to this Work Order [ describe services, any required resources, wo 1) eliverahlcs, and any deadlines or milestones':
Transportation - Trucking Services
b) With reference to Section 2. 4 (Performance Criteria) of the MSA, Supplier will perform the Services in accordance with the following Service Levels ( if any). and Supplier will credit or pay Testa the corresponding Service Level Credit for each Service Level Default [ define metrics applicable to services and list any credits parable for Future to achieve each metric]:
3. Acceptance Tests. With reference to Section 2. 5 (Acceptance Tests) of the MSA, the Services must pass the following acceptance tests ( if any):
4. Charges. With reference to Section 4 ( Charges) of the MSA, Testa will pay Supplier for performance of the Services under this . Work Order as follows . . cce price time and ma crzal , and any deadlines or inilesumes).
See attachment
5. Additional Services. Testa may request additional services after the Effective Date. Unless otherwise agreed by the Parties in writing, the fees for such services will be calculated by multiplying the Productive Hours by the applicable agreed billing rates set forth in the Supplier Rate Card. [ Supplier to provide resource rate card].
6. Facilities. With reference to Section 2. (Manner of Performance) of the MSA and if applicable, Supplier will perform the Services under this Work Order at or from the following facilities: Tessa - Fremont Facilities
7. Key Supplier Positions. With reference to Section 3. 2 (Key Supplier Positions) of the MSA, the Key Supplier Positions for purposes of this Work Order, if any, are:
8. Service - Specific Terms. Annex 1 ( Additional Service Terms) hereto set forth additional terms and conditions which may apply for purposes of this Work Order, if and to the extent applicable to the Services to be performed hereunder.
Intending to be legally bound, each of the undersigned parties has caused its duly authorized representative to execute this Approved Work Order as of the date last entered below.
Testa Entity:
By:
Printed:
Title:
Date:
Supplier
By: / eCGi,[; 4. /eiA&
Printed: Raul Rivas
Title:
Date:
President
July 28, 2017
Company: RARA Trucking, Inc.
Address: 210 Umbarger Rd. San Jose, CA 95111
Master Services Agreement Schedule A
Page A- 1
488
ANNEX 1 — ADDITIONAL SERVICE TERMS
This Annex 1 sets forth additional terms that are incorporated by reference into the Agreement, if and to the extent applicable to Supplier' s performance of, and/ or Tesla' s purchase of, the Services described therein.
1. Consulting Services. With reference to Sections 6. 1 (Confidentiality) and 7. 3 (Supplier Material) of the MSA, no information ( such as specifications, drawings, sketches, models, samples, tools, computer or other apparatus programs, technical or business information or data, written, oral or otherwise) furnished by Supplier to Testa under the Agreement shall be considered to be confidential or proprietary to Supplier; provided, however, that the foregoing shall not apply with respect to any third party IT or Network Security OEM product or related service specification or product sample that is, prior to disclosure to Testa, ( a) approved in advance and in writing by Tesla' s IT Department, and ( b) provided to Tesla' s IT Department and expressly identified by Supplier as such.
2. Facilities Services.
2. 1 Responsibility for Supplying Certain Resources. With reference to Section 2. 3 of the MSA and except as otherwise expressly provided in the Agreement, Supplier will be responsible at its expense for: (a) connecting to utility services at the Testa Facility as required for the Services, which may include provision of required wiring, piping, valves, bus plugs, transformers, meters, disconnect switches, temporary feeders, power and lighting outlets, and other connections, and disconnecting from such utility services after completing the Services; and ( b) providing and maintaining all temporary facilities and utilities required for the Services and, subject to Section 2.(b) of this Annex 1 with respect to improvements, removing such facilities and utilities after completing the Services. including 1) temporary construction roads and ramps, ( ii) main ladders and runways, ( iii) temporary light and power ( e.g., via portable generator), (iv) weather and heat protection for all such equipment and work areas ( e.g., temporary walls, partitions, or protective coverings), and ( v) temporary heating equipment, including fuel. Any power and lighting system must produce 120 - volt power, have at least two weatherproof sockets ( one for 150 -watt lamp and one for 150 - watt power extension or additional lamp), produce adequate light, and be installed so as not to interfere with operations of the Testa Facility. Any temporary welder power hookups must conform to the requirements of the National Electric Code, Articles 305 and 364- 6.
2. Access to and Use of Tesla Facilities.
a) Subject to Supplier' sobligations herein and to any applicable legal restrictions, Testa will manage and maintain the following at the Tesla Facility, as applicable: building and property electrical systems, water, sewer, lights, heating, ventilation and air conditioning (- 1-/ VAC') systems, physical security services and general custodial/ landscape services ( including monitoring and maintaining the uninterruptible power supply (" UPS") system). Supplier shall be responsible for providing all other facilities and support required for the Services. b) Supplier will use the Testa Facilities in an efficient manner and for the sole purpose of providing the Services.
Supplier will permit Testa and its agents and representatives to enter into those portions of Testa premises that are occupied by Supplier Personnel at any time, and to inspect any and all equipment and materials such as construction job boxes, storage containers and trucks. Supplier shall not use hazardous materials at the Testa Facility except as required for performance of the Services expressly described in the Agreement and in compliance with applicable Laws. Supplier will be responsible for any damage to the Tesla Facilities caused by Supplier Personnel ( including damage to any and all utility lines). Supplier shall not make improvements or changes involving structural, mechanical, or electrical alterations to the Tesla Facility without Tesla' s prior written consent, which Testa may withhold in its sole discretion. At Tesla' s option, any improvements to the Testa Facility shall become the property of Tesla and Seller shall execute such documentation as Testa reasonably requires to perfect Tesla' s ownership thereof.
If Tesla does not elect to take title thereto Supplier shall remove the same at the end of the use of the Tesla Facility and shall repair any damage caused by such installation and removal. Supplier has made itself familiar with the Tesla Facility and assumes all risks and hazards encountered in accessing and using such Tesla Facility. Except as expressly set forth in the Agreement, Supplier hereby releases Tesla of all liability related to accessing and using the Testa Facility.
c) As a continuing condition of Supplier' s use of and access to the Testa Facility, Supplier shall ensure that no third party obtains any lien or other right in the Testa Facility and hereby waives and relinquishes, and agrees to obtain from any third parties who might claim any such lien ( including without limitation mechanic' sliens) or right a written waiver and relinquishment of all rights, if any, to any lien, right, or remedy with respect to the Testa Facility. The provisions of this Section 2.(c) are a bargained - for consideration essential to the Agreement.
2. 3 Insurance. Supplier shall obtain and maintain at its own cost and expense ( and cause each subcontractor to maintain) policies for the following insurance coverages in accordance with Section 10. of the MSA, if and to the Master Services Agreement Annex 1
Page A- 1-
489
extent applicable to the Services: (a) if the Services include remediation of or exposure to hazardous materials ( e.g., asbestos -containing materials, contaminated soil, etc.), contractor' s pollution liability with minimum coverage of at
least One Million Dollars ($ 1, 000,0) per occurrence and Two Million Dollars ($ 2, 000,00) aggregate for bodily injury, personal injury and property damage; and ( b) if the Services involve use of a helicopter or other aircraft, aviation liability insurance with minimum coverage of at least Five Million Dollars ($ 5, 000,00) per occurrence.
3. Information Technology Services.
3. 1 Access to Tesla Systems and Facilities. With reference to Section 5. 3 of the MSA, each employee, agent or Subcontractor of Supplier having access to Tesla Systems shall: ( a) be assigned a separate User ID by Supplier and only use that ID when logging on to the Systems; ( b) log off the Systems immediately upon completion of each session of service; (c) not allows unauthorized individuals to access the Systems; ( d) keep strictly confidential the User ID and password and all other information that enables such access; (e) not reuse a compromised password ( e.g., a
password that has become known to anyone else at any time, including in an emergency); (f) only utilize such access to the Systems to perform his or her obligations to Tesla; (g) comply with Tesla' s encryption requirements or other
service policies instituted by Tesla from time to time; (h) not perform any unauthorized exploring or mining of the Systems; and ( 1) only have access to the portion of the Systems necessary to perform Supplier' sobligations.
3. 2 Supplier Audits. Supplier will conduct its own Audits pertaining to the Services consistent with the audit practices of well managed companies that perform services similar to the Services. If applicable, Supplier will perform a security Audit at least annually and will cause a SSAE 16 SOC 1 Type 11 audit ( or equivalent audit) (- SSAE 16 Audit") to be conducted annually for each shared services facility at or from which Services are provided. The SSAE 16 Audit will be conducted in accordance with Tesla' s control requirements as communicated by Tesla. Supplier will permit Tesla to participate in the planning of each SSAE 16 Audit, will confer with Tesla as to the scope and timing of the Audit and will accommodate Tesla requirements and concerns to the extent practicable. Each SSAE 16 Audit will be scheduled so as to facilitate annual compliance reporting by Tesla and the Service Recipients under the Sarbanes- Oxley Act of 2002 and any regulations promulgated under it. Supplier will provide Tesla and its independent Auditors with a summary of the SSAE 16 Audit Findings as soon as reasonably possible, and in any event within thirty ( 30) days after completion of the Audit report. To the extent the resulting Audit report reveals an actual or potential adverse effect on Testa and/ or the Service Recipients, Supplier will correct any errors or problems identified in the Audit report as soon as reasonably possible.
3. Deliverables and Related Documentation.
a) Supplier warrants that each Deliverable will not, from the time of delivery to Tesla through the period ending one year after Tesla' s final acceptance of the Deliverable, deviate in any material respect from the specifications for such Deliverable set forth or referred to in the applicable Agreement. If the Deliverable is or becomes part of a System or environment for which Supplier has ongoing maintenance and support responsibility, Supplier' s maintenance and support obligations for such System or environment will include providing maintenance and support for the Deliverable. If Tesla notifies Supplier of a breach of this warranty, Supplier will promptly correct and redeliver the affected Deliverable at no additional charge to Tesla within a reasonable period of time, and in any event in accordance with any applicable time period specified in the applicable Agreement. b) Supplier warrants that any Software or system documentation developed for Tesla will ( by or on behalf of Supplier i) accurately and with reasonable comprehensiveness describe the operation, functionality and use of the Software or system, and ( ii) accurately describe in terms understandable to a typical system user the functions and
features of the Software or system and the procedures for exercising such functions and features. If Tesla notifies Supplier of a breach of this warranty within the applicable warranty period, Supplier will correct and redeliver the affected documentation at no additional charge to Tesla within a reasonable period of time, and in any event within thirty (30) days after receiving Tesla' s notice.
c) Supplier warrants that any Deliverables and other components of the Services that are intended to interact or otherwise work together as part ofa functioning system as indicated in their specifications or the applicable Agreement under which they are to be produced, will be compatible and will properly inter -operate and work together as components of an integrated system.
Master Services Agreement Annex 1
Page A -I-2
490
San Jose, January 26, 2024
Proposed Customer List
Vehicles & Equipment
City of Lathrop — Parks and Recreation Dpt.
Attn. Melissa Stathakopoulos
Manager
Dear Melissa,
We are hereby submitting the documents and information requested to apply for a license as Industrial Hauler of Solid Waste.
CUSTOMER LIST
Testa
700 D' Arcy Pkwy. Lathrop, CA 95330
18250 Murphy Pkwy., Lathrop, CA 95330
TRUCK LIST
2011 KW TRACTO R 1XKDDP9X5BJ290591 9E16376
2011 VOLV TRACTOR 4V4NC9EH8BN297934 9F80095
2011 KW TRACTOR 2XKBD59X4B M 290621 9G 17768
2012 FRHT TRACTOR 1FUJGEDVOCSBU7281 9E75204
2013 FRHT TRACTOR 1FUJGLDR2DSBT2791 9F07599
2013 MACK TRACTOR 1M1AW08Y3DM005348 73786R2
2013 VOLV TRACTOR 4V4NC9EH8DN149012 9F80078
2012 VOLV TRACTOR 4V4NC9EJ1CN538821 9E84753
2012 PTRB TRACTOR 1XPHD49XOCD151981 9E66006
For any questions or additional information, please contact us to any of the following numbers:
Wendy Rivas — CFO — Phone: 669- 233- 6490
Susana Rivas — Office Manager — Phone: 669- 233- 6489
Thank you,
Raul A Riva
491
COLONIAL SURETY COMPANY
Duncannon, Pennsylvania
Administrative Office: 123 Tice Blvd., Suite 250, Woodcliff Lake, New Jersey 07677
GENERAL POWER OF ATTORNEY
of the Commonwealth
Know all Men
of
by These Presents, That COLONIAL SURETY COMPANY, a corporation duly organized and existing under the laws make, constitute and appoint
Pennsylvania and having an administrative office in Woodcliff Lake, Bergen County, NJ does by these presents Wayne Nunziata or Michael Bonfante and the State of New of Woodcliff Lake Jersey its true and lawful Attorney( s)- in- Fact, with full power and stead, to execute, authority hereby conferred in its name, place and acknowledge and deliver.
Any and All Bonds
and to bind the Company thereby as fully and to the same extent as if such bonds were signed by the President, sealed with the corporate seal of the Company, hereby ratifying and under and by authority of the
confirming all that the said Attorney( s)- in- Fact may do in the premises. Said appointment is made 25th day of July, 1950.
following resolution adopted by the Board of Directors of the Colonial Surety Company at a meeting held on the full power and
Be It
authority
Resolved,
to
that
appoint
the President, any Vice -President, any Secretary or any Assistant Secretary shall be and is hereby vested with any one or more suitable persons as Attorney( s)- in- Fact to Company subject to the represent and act for and on behalf of the following provisions:
Section 1. Attorney -in -Fact. Attorney -in -Fact may be given full power and Company, to execute, authority for and in the name of and on behalf of the acknowledge and deliver, any and all bonds, recognizances, contracts, agreements of conditional or obligatory indemnity and other undertakings and any and all notices and documents canceling or thereunder, terminating the Company' sliability and any such instruments so executed by any such Attorney - in -Fact shall be binding upon the Company as if President and sealed." signed by the n Witness Whereof, Colonial Surety Company has caused these presents to be and its signed by its corporate seal to be hereto affixed the 30th day of March , A. D., 2023.
State of New Jersey
County of Bergen SS. By
On this 30th day of March
Theresa La Monica
Wayne Nunziata
Wayne Nunziata, President
executed the within instrument as
acknowledged to me that the corporation executed it.
President
THERESA LA MONICA
A Notary Public of New Jersey
My Commission Expires September 9, 2025
President
COLONIAL SURETY COMPANY
in the year 2023, before me
a notary public, personally appeared
personally known to me to be the person who
on behalf of the corporation therein named and
Theresa La Monica Notary Public
1, the undersigned President of Colonial Surety Company, hereby certify that the above and foregoing is a full, true and correct copy
of the Original Power of Attorney issued by said Company, and do hereby further certify that the said Power of Attorney is still in force and effect.
GIVEN under my hand and the seal of said Company, at Woodcliff Lake, New Jersey this January , 2024 Original pnnted with Blue and/ or Black ink.
For verification of the authenticity of this Power of Attorney you may call ( 201) 573- 8788 and ask for the Power of Attorney Berk. Please refer to the above named individuals) and details of the bend to which the power is attached.
Form S- 100-01 (Rev 03/ 23)
26th
day of
Wayne Nunziata, President
492
State of New Jersey
County of Bergen
On this 26th day of January, 2024 before me, Thomas J Moscarello, a Notary Public, personally came Michael Bonfante, known to me to be the Attorney -in - Fact of Colonial Surety Company, the corporation described in the within instrument, and 1 acknowledge that he executed the within instrument as the act of said Colonial Surety Company in accordance with authority duly conferred upon him by said Company.
Thomas J Moscarello
Notary Public of New Je
My CommisMen Expires Marc 028
Thomas Moscarello, Notary Public
493
Colonial Surety Company
Duncannon, Pennsylvania
Inc 1930 -
Balance Sheet as at December 31, 2022
Cash & Invested Assets:
Cash
Cash Equivalents
Common Stocks*
Bonds*
Receivables for Securities
Total Cash & Invested Assets
Other Assets:
Accrued Investment Income
Premiums Receivable
Funds field — Collateral
Reinsurance Recoverable
Net Deferred Tax Assets
Other Assets
Total Admitted Assets
9, 057, 792
3, 519, 458
9, 757, 005
49, 594, 003
100, 00
72, 028, 258
493, 74 I
20, 448, 949
5, 406, 668
5, 295, 919
830, 542
1, 024
104, 505, 101
Liabilities:
Outstanding Losses & Loss Expenses
Unearned Premiums
Funds Held
Reinsurance Payable
Accrued Expenses
Income Taxes Payable
Payable to Parents, Subs & Affiliates
Miscellaneous Liabilities
Total Liabilities
Capital & Surplus:
Common Capital Stock
Additional Paid in Capital
Unassigned Surplus
Total Capital & Surplus
Total Liabilities, Capital &
Surplus
4, 119, 774
18, 018,52
5, 412, 876
9, 118, 420
609, 482
2, 146, 546
2, 314, 262
11, 364
41, 750,76
S 4, 000,00
1, 000,00
57, 754, 325
62, 754, 325
104, 505, 101
Bonds and stocks are valued on basis approved by National Association of Insurance Commissioners.
STATE OF NEW JERSEY }
COUNTY OF BERGEN }
I, Wayne Nunziata, President of Colonial Surety Company, do hereby certify that the foregoing is a full, true and correct copy of the Financial Statement of said Company, as of December 31. 2022. ss.:
IN WITNESS WHEREOF, I have
of
signed this statement at Woodcliff Lake, New Jersey, this 7th day April, 2023. eL.&>,(
Wayne Nunziat President
Theresa La Monica. Notary Public
THERESA LA MONICA
A Notary Public of New Jersey
My Commission Expires September 9, 2025
494
COLONIAL SURETY COMPANY
Inc 1930-
123 Tice Boulevard, Suite 250
Woodcliff Lake, NJ 07677
201- 573- 888
BOND NUMBER: CSC -118801
LICENSE/ PRMIT BOND
KNOW ALL PERSONS BY THESE PRESENTS that we,
RARA Trucking Inc. San Jose. CA
hereinafter called the Principal) as Principal, and COLONIAL SURETY COMPANY, a corporation with principal offices at Woodcliff Lake, New Jersey ( hereinafter called the Surety) as Surety, are held and firmly bound unto City of Lathrop . Lathrop , CA
hereinafter called the Obligee), in the penal sum of
Twenty Five Thousand Dollars and No Cents ($ 25. 0001,
for the payment of which well and truly to be made we do hereby bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
Signed and sealed this 26th day of January. 2024.
WHEREAS, the said Principal has made or is about to make application to said Obligee for [a license as] or [ a permit to] Recycling/ Trash Hauler for a term beginning on January 26th. 2024 and ending on January 26th. 2025.
NOW THEREFORE, if the Principal shall indemnify the Obligee against any loss directly arising by reason of the failure of said Principal to comply with the laws or ordinances under which such license or permit is granted, or any lawful rules or regulations pertaining thereto, then this obligation shall be void: otherwise to be and remain in full force and effect.
PROVIDED, HOWEVER. AND UPON THE FOLLOWING EXPRESS CONDITIONS:
1. This bond shall remain in full force during the term of said license or permit unless cancelled in accordance with paragraph 2 below; but if said license or permit was issued for a term of one year or any other specific term, and said license or permit is renewed for one or more specific terms, this bond shall be and is hereby extended to cover during such additional term or terms. In no event, however, shall the liability of the Surety be cumulative from year to year or from period to period, nor exceed the penal sum written in the first paragraph of this bond.
2. This bond may be terminated or cancelled by Surety by giving 30 days prior noti e in writing from Surety to Principal and said Obligee, such notice to be given by certified mail. Such termination or cancellation + II not affect liability incurred or accrued under this bond to the effective date of such termination or cancellation.
By
c, incipal
COLONIAL SURETY COMPANY
Seal)
By `.- ( Seal)
Wayne Nunziata, President
Form M300- 110 (Rev 9/ 89)
Original printed with Blue and/ or Black ink.
For verification of the authenticity of this Bond/ Policy you may call (201) 573- 8788. 495
COLONIAL SURETY COMPANY
Inc 1930 -
123 Tice Boulevard, Suite 250
Woodcliff Lake, NJ 07677
201- 573- 8788
BOND NUMBER: CSC -118801
LICENSE/ PERMIT BOND
KNOW ALL PERSONS BY THESE PRESENTS that we,
RARA Trucking Inc. San Jose. CA
hereinafter called the Principal) as Principal, and COLONIAL SURETY COMPANY, a corporation with principal offices at Woodcliff Lake, New Jersey ( hereinafter called the Surety) as Surety, are held and firmly bound unto City of Lathrop . Lathrop . CA
hereinafter called the Obligee), in the penal sum of
Twenty Five Thousand Dollars and No Cents ( 525. 000),
for the payment of which well and truly to be made we do hereby bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
Signed and sealed this 26th day of January, 2024.
WHEREAS, the said Principal has made or is about to make application to said Obligee for [ a license as] or [a permit to) Recycling/ Trash Hauler
for a term beginning on January 26th. 2024 and ending on January 26th. 2025.
NOW THEREFORE, if the Principal shall indemnify the Obligee against any loss directly arising by reason of the failure of said Principal to comply with the laws or ordinances under which such license or permit is granted, or any lawful rules or regulations pertaining thereto, then this obligation shall be void; otherwise to be and remain in full force and effect.
PROVIDED, HOWEVER, AND UPON THE FOLLOWING EXPRESS CONDITIONS:
1. This bond shall remain in full force during the term of said license or permit unless cancelled in accordance with paragraph 2 below; but if said license or permit was issued for a term of one year or any other specific term, and said license or permit is renewed for one or more specific terms, this bond shall be and is hereby extended to cover during such additional term or terms. In no event, however, shall the liability of the Surety be cumulative from year to year or from period to period, nor exceed the penal sum written in the first paragraph of this bond.
2. This bond may be terminated or cancelled by Surety by giving Q days prior notice in writing from Surety to Principal and said Obligee, such notice to be given by certified mail. Such termination or cancellation shall not affect liability incurred or accrued under this bond to the effective date of such termination or cancellation.
By ( Seal) RARA Trucking Inc, Principal
By
COLONIAL SURETY COMPANY
Michael Bonfante, Attorney -In -Fact
Form M300- 110 (Rev 9/ 89)
Original printed with Blue and/ orBlack ink.
For verification of the authenticity of this Bond/ Policy you may call ( 201) 573- 8788.
Seal)
496
i'A% IL CAKLI CERTIFICATE OF LIABILITY INSURANCE DATE( MM1/ 17/ 024 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BELOW.
REPRESENTATIVE
THIS CERTIFICATE
OR PRODUCER,
OF INSURANCE
AND THE CERTIFICATE
DOES NOT
HOLDER.
CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER( S),
HOLDER. THIS
BY THE POLICIES
AUTHORIZED
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy( ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer
PRODUCER
rights to the certificate holder in lieu of such endorsement( s).
AMERICAN ARROW INSURANCE SVCS, INC.
6550 VAN BUREN ROAD STE. B
RIVERSIDE, CA 92503
LICENSE# OL95341
CONTACT JERL1IO RutuAJ
NAME'
PHONE
A/ C, No, Ext):
855-32- 1092 FAX 909- 354-628 I ( A/ C, No):
E- MADDRESS' sruelas@americanarrowins. com
INSURER( S) AFFORDING COVERAGE NAIL
INSURER A : PENNSYLVANIA MANUFACTURERS 12262
INSURED
RARA TRUCKING, INC.
P. O. BOX 7353
SAN JOSE, CA 95150
Cr1VGRAr_ CC ... ....._
INSURER B :
AMERICAN SUMMIT INSURANCE CO 19623
INSURER C
INSURER D :
INSURER E :
INSURER F :
rccViOlUN NUMtitK: THIS
INDICATED.
CERTIFICATE
EXCLUSIONS
INSR
IS TO CERTIFY
NOTWITHSTANDING
THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD MAY BE
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
AND CONDITIONS
ISSUED
OF
OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
LTR
X
TYPE OF INSURANCE
ADOL
INSD
SUER
WVD POLICY NUMBER
POLICY EFF
MM/ DD/ YYYY)
POLICY EXP
MM/ DD/ YYYY) LIMITS
COMMERCIAL GENERAL LIABILITY
A X
302401- 0473975Y 1/9/ 2024 1/9/ 2025 EACH OCCURRENCE 1, 000,00 CLAIMS - MADE OCCUR DAMAGE To RENTED
PREMISES ( Ea occurrence) 50, 000
MED EXP ( Any one person) 5, 000
J
GEN' L AGGREGATE
PERSONAL 8 ADV INJURY 1, 000,00
LIMIT APPLIES
IPROPER
GENERAL AGGREGATE 2. 000,00
POLICY J JECT LOC
PRODUCTS - COMP/ OP AGG
OTHER:
1. 000.00
S
AUTOMOBILE LIABILITY
ANY AUTO
ASCA001000052e-' u1 3/ 19/ 2023 3/ 19/ 2024 ECc ea Dnt) SINGLE LIMIT Ea accide 1, 000,00
B OWNED X SCHEDULED
X
BODILY INJURY ( Per person)
AUTOS ONLY
HIRED
AAUTOS
NON -OWNED
BODILY INJURY jPer accident) S
AAUTOS ONLY X AUTOS ONLY PROPERTY DAMAGE
Per accident)
UMBRELLA LIAB
EXCESS LIAB
OCCUR
EACH OCCURRENCE
CLAIMS - MADE
AGGREGATE
DED RETENTION $
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY
ANY PROPRIETOR/ PARTNER/ EXECUTIVE
OFFICER/ MEMBER EXCLUDED?
Mandatory in NH)
If yes. describe under
DESCRIPTION OF OPERATIONS below
Y / N
N / A
PER i OTHSTATUTE ER
E. L. EACH ACCIDENT S
E. L. DISEASE - EA EMPLOYEE S
E. L. DISEASE - POLICY LIMIT
A
MOTOR TRUCK CARGO
TRAILER INTERCHANGE
812301- 0473975Y
812301- 0473975Y
11/3/ 2023
11/3/ 2023
11/3/ 2024
11/3/ 2024
100, 00 LIMIT / $ 1, 000
30, 000 LIMIT/ $1, 000
CONTAINERS & DRY FREIGHT
DEDUCTIBLE
DEDUCTIBLE
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES ( ACORD 101, Additional Remarks Schedule, may be attached if more space is required) THE CITY OF LATHROP ITS OFFICES AND EMPLOYEES ARE NAMED AS ADDITIONAL INSURED. ENDORSEMENT TO FOLLOW BY COMPANY.
CFRTII- ICATG Lan! nco
ON
CITY OF LATHROP
390 Towne Centre Drive
Lathrop, CA 95330
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
ACORD 25 ( 2016/ 03)
1988- 2015 ACORD CORPORATION. All rights reserved.
The ACORD name and logo are registered marks of ACORD
497
Policy Number: ASCA0010000528- 01
THIS ENDORSEMENT CHANGES THE POLICY— PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - EXCESS
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
MOTOR CARRIER COVERAGE FORM
Name of person or organization:
THE CITY OF LATHROP ITS OFFICERS AND EMPLOYEES ARE NAMED AS ADDITIONAL INSURED. 390 Towne Centre Drive
Lathrop, CA 95330
With respect to SECTION II — LIABILITY COVERAGE only, Who is An Insured ( Section II(A)( 1)) is amended to include as an additional insured the person( s) or organization( s) shown in the Schedule above.
The insurance provided hereby to the Additional Insured( s) is limited as follows:
1. The coverage afforded hereby is excess over any other valid and collectible insurance, whether such other insurance is primary, excess, contingent, or otherwise. Where the Additional Insured has valid and collectible insurance in excess of a self -insured retention, this insurance is excess over the combined limits of such insurance and the self -insured retention. Where the Additional Insured does not have valid and collectible insurance applicable to a claim that would be covered by the policy, the Additional Insured shall have a self - insured retention of the first million dollars of any covered loss and the insurance afforded hereby shall be excess over such self -insured retention.
2. The coverage afforded hereby to such additional insured is limited to imputed liability specifically resulting from the conduct of the Named Insured for which the additional insured was held liable.
3. The limits of insurance applicable to the insurance afforded hereby are those specified in the written agreement or in the Declarations or Schedules of this policy, whichever is less. The limits of insurance applicable to the insurance afforded hereby are not inclusive and not in addition to the limits of insurance shown in the Declarations or Schedules of this policy.
4. Any coverage provided under this endorsement for any additional insured will never be broader than coverage provided to any named insured.
Any other policy terms, conditions, limitations, exclusions, and definitions apply to this endorsement.
ASIC AUTO CW 00 05 03 21 " Includes copyrighted material of Insurance Services Office, Inc. with its permission" Page 1 of 1 498
ATTACHMENT
City of
Parks and Recreation Department 390 Towne Centre Drive, Lathmp, CA 95330 Phone (209) 941- 7370
www. a, lathrop. ca. us
INDUSTRIAL REFUSE COLLECTION
LICENSE APPLICATION
COMPANY NAME: 1rQLiCnkt6 , n
ADDRESS: ebleoU S. aktlSk 4M M (* I
PHONE/ FAX QD9i- 4T) --} AU
EMAIL: m[\% k N. XAV CkIS • WA
Thefollowing license requirements are setforth by the City ofLathrop Municipal Code, Title 8 Health & Safety, Chapter 8. 16 Garbage Collection & Disposal, Section 8. 16.40 Industrial Solid Waste Removal — License Required
PROPOSED CUSTOMERS LIST ( Names and Addresses):
SIGNED STATEMENTS FROM NEW INDUSTRIAL CUSTOMERS ADDRESSED TO CITY ( See Municipal Code section 8. 16.40. 2):
NUMBER, KIND, AND CAPACITY OF VEHICLES AND OTHER EQUIPMENT Must be in compliance with all applicable air pollution control laws):
ORIGINAL PERFORMANCE BOND OR OTHER SECURITY ATTACHED ($ 25, 000) - OR -
MOST RECENT FINANCIAL STATEMENT AND/ OR AUDIT
The applicant shall provide proof of financial ability to provide service contemplated by the application)
INSURANCE CERTIFICATE NAMING THE CITY, ITS OFFICES AND EMPLOYEES
AS AN ADDITIONAL INSURED
See Municipal Code section 8. 16.40. for Insurance Requirements):
LICENSE FEE ENCLOSED ($ 2, 500)
ADMINISTRATION FEE ($ 92)
CHECK IF
ENCLOSED
Page t
499
City of
Parks and Recreation Department
TYPE OF WASTE REMOVAL SERVICE:
Popjre0p- 1in or 1I> OY\ s
390 Towne Centre Drive, Lathrop, CA 95330
Phone ( 209) 941- 7370
www. cilathrop. ca. us
The following definitions are set forth by the City of Lathrop Municipal Code, Title 8 Health & Safety, Chapter 8. 16 Garbage Collection & Disposal, Section 8. 16. 010 "Industrial solid waste" means solid waste originating from mechanized manufacturing facilities, factories, refineries and publicly operated treatment works.
APPLICANT SI TURES:
SIGNATUR
PROCESSED BY:
gkk2r tci
LISSA STATHAKOP OS
MANAGER
PARKS AND RECREATION DEPARTMENT
APPROVED BY:
DTEt12I24
2 c
2O' L-'-
DATE
3 , Lt. v
TODD SEB IAN DATE
DIRECTOR
PARKS, RECREATION & FLEET SERVICES