Newark City Council
June 22, 2023

AGENDA
Thursday, June 22, 2023
7:00 P.M.

A. ROLL CALL
B. PRESENTATIONS

1. Introduction of employee

2. Alameda County Fire Department Presentation
C. PUBLIC COMMENT
The public is invited to address the City Council on any item not listed on the agenda.

Public Comments are generally limited to 5 minutes per speaker. Please note that State law prohibits the Council from acting on non-agenda items.

D. CONSENT CALENDAR
Consent Calendar items are considered to be routine and may be approved by one motion. There will be no separate discussion on these items unless there is a request by a Council Member, a staff member, or a member of the public to remove an item for separate discussion and action.

1. Approval of Audited Demands

2. Approval of June 8, 2023 minutes

3. Adopt a resolution amending the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 to fund a CivicSpark Fellow to assist with the development of an update to the City's Climate Action Plan

4. Adopt a resolution related to Newark Police Department wellness program to approve agreements with Public Safety Family Counseling Group and Sigma Tactical Wellness, to authorize sole-source exemptions for Sigma Tactical Wellness and Mindbase LLC, and to approve an amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024

5. Adopt a resolution to authorize the City Manager to submit a proposal on behalf of the City Council to the Board of State and Community Corrections for the Organized Retail Theft Prevention Grant Program

6. Adopt a resolution accepting a grant of up to $40,000 through the California Automated Permit Processing Program for implementation of an automated solar permitting program (SolarAPP+) and approving an amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024

7. Adopt a resolution authorizing the City Manager to execute a three-year cooperation agreement for fiscal years 2024-2026 with Alameda County for participation in the Alameda County Urban County for the Community Development Block Grant (CDBG) Program

8. Adopt a resolution authorizing the City Manager to execute a Contractual Equipment and Services Agreement with Owen Equipment for the purchase of a Vactor catch basin cleaner, authorization for outfitting by Classic Graphics and amending the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024

9. Approve the plans and specifications and adopt a resolution accepting the bid and awarding the contract for the Base Bid and Additive Alternate Bid No. 1 to VSS International, Inc. for FY 2022-2023 Rubberized Cape Seal and Slurry Seal Program, Project No. 1301 and amending the 2022-2024 Biennial Budget and Capital Improvement Plan; Exempt from CEQA review per CEQA Guidelines Section 153013

10. Adopt a resolution approving the second amendment to the Contractual Services Agreement with Orion Security and amend the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024

11. Adopt a resolution authorizing the City Manager to enter into a Contractual Services Agreement with Cintas Corporation for uniform rental and laundry services

12. Adopt a resolution authorizing the City Manager to execute the Fourth Amendment to the Contractual Services Agreement with 4Leaf Inc. to provide temporary professional planning services

13. Adopt a resolution authorizing the City Manager to execute Contractual Services Agreements for on-call support services with 4Leaf, Inc., BPR Consulting Group, LLC., Bureau Veritas North America, Inc., CSG Consultants, Inc., and True North Compliance Services, Inc. for the Building Inspection Division and amendment of the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024

14. Adopt a resolution establishing the Fiscal Year 2024 Tax Appropriations Limit

15. Adopt a resolution approving an amendment to the Contractual Services Agreement with Gachina Landscape Management, Inc. to increase the contractual not-to-exceed amount for additional landscape maintenance services and amendment of the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 Packet Page 2

16. Adopt a resolution authorizing the City Attorney to execute a Certification and Mutual Indemnification Agreement with the County of Alameda for Fiscal Year 2024

17. Adopt a resolution approving the City's Investment Policy

18. Adopt a resolution authorizing the continued investment of monies into the Local Agency Investment Fund (LAIF) and designating officers authorized to sign on the account

19. Year-end Budget Review and approval of a resolution amending the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2023 E. PUBLIC HEARINGS

1. Hearing (continued from June 8, 2023) to consider approval of DR2021-006, a Resolution approving Design Review and Vesting Tentative Map for an 8-unit for-sale condominium residential development comprised of (4) two-unit dwellings located at 36952 Mulberry Street (APNs 92-29-21 and 92-29-22)
F. OTHER BUSINESS

1. Adopt resolutions for approval of Annual Engineer's Reports, intention to levy and collect assessments and setting a public hearing for July 13, 2023, for Landscaping and Lighting District Nos. 1, 2, 4, 6, 7, 10, 11, 13, 15, 16, 17, 18 and 19 for Fiscal Year 2024 in accordance with the provisions of the Landscaping and Lighting Act of 1972

2. Adopt a resolution for approval of the Road Repair and Accountability Act of 2017 (Senate Bill 1) Fiscal Year 2023-2024 Project List

3. Waive full reading, conduct second reading by title only, and adopt an ordinance adding Chapter 8.44, "Sustainable Foodware", to the Newark Municipal Code.

4. Adopt a resolution approving a fund balance and reserve policy

5. Waive full reading and, by title only, introduce ordinances repealing and replacing Chapter

3.04, “Purchasing System” of Title 3 “Revenue and Finance” of the Newark Municipal Code in its entirety and adding Chapter 3.05, “Informal Bid Procedures” to Title 3 “Revenue and Finance” of the Newark Municipal Code; adopt a resolution electing to become subject to the Uniform Public Construction Cost Accounting Act; and adopt a resolution establishing expenditure authority
G. CITY COUNCIL MATTERS
City Council Members report on attendance at intergovernmental agency meetings, conferences, and seminars since the last meeting. City Council Members may also announce upcoming events and coordinate attendance; report on local events attended since the last meeting; and make brief comments on issues of concern.

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H. CLOSED SESSION

1. Closed Session pursuant to Government Code Section 54957, Public Employee Performance Evaluation, Title: City Manager

2. Closed session for conference with Labor Negotiator pursuant to California Government Code Section 54957.6. Agency Designated Representative: Mayor Hannon, Unrepresented employee: City Manager Benoun
I. ADJOURNMENT

MEETING INFORMATION
Members of the public may attend the meeting in person, virtually via Zoom, or watch it via YouTube or Cable Channel 26. The ability to participate and observe via Zoom, YouTube or Cable Channel 26 is predicated on those technologies being available and functioning without technical difficulties.  Should those platforms not be available, or become non-functioning, or should the City Council otherwise encounter technical difficulties that make those platforms unavailable, the City Council will proceed with business in person unless otherwise prohibited by law.

How to view the meeting remotely:

Livestream online at YouTube: https://www.youtube.com/@cityofnewark3077/streams Copy/paste the YouTube URL into your browser if the link does not automatically open.

How to participate in the meeting remotely, via Zoom Webinar:

From a PC, Mac, iPad, iPhone or Android device: Zoom Meeting https://us06web.zoom.us/j/87346377183 From a telephone dial 1- 669-900-9128, Webinar ID Number 873 4637 7183 Provide live, remote public comments, when the Mayor calls for comments. Use the raise your hand feature in Zoom to be called upon by the City Clerk.

For frequently asked Zoom questions, please go to Agendas and Minutes and select the Frequently Asked Questions link.

No question shall be asked of a council member, city staff, or an audience member except through the Mayor. No person shall interrupt the meeting. Any person who refuses to carry out instructions given by the Mayor for the purpose of maintaining order may be guilty of an infraction and may result in removal from the meeting.

Council Meeting Access/Materials:

The agenda packet is available for review at Agendas and Minutes. The packet is typically posted to the City website the Friday before the meeting, but no later than 72 hours before the meeting.

Pursuant to Government Code 54957.5, supplemental materials distributed less than 72 hours before this meeting, to a majority of the City Council, will be made available for public inspection at this meeting and will be posted at www.newark.org/departments/city-manager-s-office/agendas-minutes and will concurrently be made available for public inspection during regular business hours at the David W. Smith City Hall, 37101 Newark Boulevard, Newark CA. Materials prepared by City staff and distributed during the meeting are available for public inspection at the meeting or after the meeting if prepared by some other person. Documents related to closed session items or are exempt from disclosure will not be made available for public inspection. For those persons who require special accommodations, please contact the City Clerk at least two days prior to the meeting at City Clerk or 510-578-4266.

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Item  B. 1.

DATE 06/22/2023
TO Honorable Mayor and City Council Members
FROM Sheila Harrington, City Clerk
SUBJECT    Introduction of employee
Siobhan Henderson joined the Finance Department in May as an Accounting Assistant I. Ms. Henderson will be introduced at the City Council meeting.

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Item  B. 2.

DATE 06/22/2023
TO Honorable Mayor and City Council Members
FROM Sheila Harrington, City Clerk
SUBJECT    Alameda County Fire Department Presentation
Fire Chief Willie McDonald will give a presentation to the City Council on the Alameda County Fire Department (ACFD).  The presentation will highlight resources and programs, current initiatives, fire season forecast, and the ACFD Strategic Business Plan for 2023 to 2033. A copy of the presentation is attached to the staff report.

Attachments
Presentation
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Item  D. 1.

DATE 06/22/2023
TO Honorable Mayor and City Council Members
FROM Krysten Lee, Finance Director
SUBJECT    Approval of Audited Demands
Attachments
Audited Demands 5.25.23
Audited Demands 6.1.23
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Item  D. 2.

DATE 06/22/2023
TO Honorable Mayor and City Council Members
FROM Sheila Harrington, City Clerk
SUBJECT    Approval of June 8, 2023 minutes
Attachments
Minutes
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City of Newark | Newark City Council
Mayor Michael K. Hannon | Vice Mayor Maria “Sucy” Collazo | Council Members: Luis L. Freitas, Mike Bucci, and Matthew Jorgens

Minutes
Thursday, June 8, 2023
7:00 P.M.

Alexander and Andrew from Boy Scout Troop 186 led the Pledge of Allegiance.

A. ROLL CALL
Mayor Hannon called the meeting to order at 7:00 p.m. Vice Mayor Collazo, Council Members Bucci, Freitas, and Jorgens were present.

B. PRESENTATIONS

1. Proclaiming June 8, 2023, as Arbor Day in Newark
Mayor Hannon presented the Arbor Day proclamation to Assistant Maintenance Superintendent Hornbeck.

C. PUBLIC COMMENT
No one requested to speak.

D. CONSENT CALENDAR
Council Member Bucci moved, Vice Mayor Collazo seconded, to approve Consent Calendar Items D.1 through D6, that the resolutions and ordinances be numbered consecutively, and that reading of the titles suffice for adoption. The motion passed, 5 AYES.

1. Approval of Audited Demands
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Page No. 2
City of Newark City Council Minutes June 8, 2023

2. Approval of May 25, 2023 minutes

3. Waive full reading, conduct second reading by title only, and adopt an ordinance establishing a Planned Development Overlay District at 38288- 38594 Cedar Boulevard
Ordinance No. 542

4. Adopt a resolution approving Amendment No. 1 to the Contractual Services Agreement with Pakpour Consulting Group for engineering project management services related to Central Avenue Overpass, Project No. 1014 and approving an amendment to the biennial budget
Resolution No. 11509
Contract No. 22048

5. Adopt a resolution authorizing the City Manager to execute Contractual Services Agreements, in a form approved by the City Attorney, with Interactive Resources, Inc., The KPA Group, and Verde Design for on-call architectural services
Resolution No. 11510
Contract No. 23034 to 23036

6. Adopt a resolution approving Amendment No. 2 to the Contractual Services Agreement with Fehr & Peers for additional traffic engineering and transportation planning services and amendment of the 2022-2024 Biennial Budget and Capital Improvement Plan
Resolution No. 11511
Contract No. 20040
E. PUBLIC HEARINGS

1. Motion to continue the public hearing to consider approval of DR2021-006, a resolution approving Design Review and Vesting Tentative Map for an 8-unit forsale condominium residential development comprised of four (4) two-unit dwellings located at 36952 Mulberry Street (APNs 92-29-21 and 92-29-22) to June 22, 2023
Motion Approved
Assistant City Manager Hovorka stated that staff required additional time and recommended opening and continuing the hearing to June 22, 2023.

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Page No. 3
City of Newark City Council Minutes June 8, 2023
Mayor Hannon opened the public hearing at 7:09
No one requested to speak.

Mayor Hannon closed the public hearing. At 7:10 p.m.

Council Member Freitas moved, Vice Mayor Collazo seconded, via motion, to continue the public hearing to June 22, 2023. The motion passed, 5 AYES.

F. OTHER BUSINESS

1. Adopt a resolution approving Amendment No.1 to the Contractual Services Agreement with West Coast Arborists, Inc. for additional tree maintenance services and amendment of the 2022-2024 Biennial Budget and Capital Improvement Plan
Resolution No. 11512
Contract No. 19016
Vice Mayor Collazo stated that she would recuse herself from this item due to a pending tree removal request near her residence.

Vice Mayor Collazo left the City Council Chambers.

Assistant City Manager Hovorka gave the staff report recommending approval.

No one from the public requested to speak.

Council Member Bucci moved, Council Member Jorgens seconded to adopt the resolution approving Amendment No.1 to the Contractual Services Agreement with West Coast Arborists, Inc. for additional tree maintenance services and amendment of the 2022-2024 Biennial Budget and Capital Improvement Plan.

The motion passed 4 AYES, 1 RECUSED.

Vice Mayor Collazo returned to the City Council Chambers.

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Page No. 4
City of Newark City Council Minutes June 8, 2023

2. Introduction of an ordinance adding Chapter 8.44, Sustainable Foodware Ordinance, to the Newark Municipal Code to regulate the use of disposable foodware to improve the health and safety of the Newark community and environment. This item is exempt from CEQA per CEQA Guidelines Sections 15061(b)(3) and 15308
Ordinance Introduced
Vice Mayor Collazo stated that she would recuse herself from this item due to an economic conflict of interest as owner of the Mexico Tortilla Factory.

Vice Mayor Collazo left the City Council Chambers.

Environmental Services Manager Scanlin gave the presentation recommending approval. Presentation on file with the City Clerk.

No one from the public requested to speak.

Council Member Bucci moved, Council Member Jorgens seconded to introduce the ordinance adding Chapter 8.44, Sustainable Foodware Ordinance, to the Newark Municipal Code to regulate the use of disposable foodware to improve the health and safety of the Newark community and environment. The motion passed 4 AYES, 1 RECUSED.

Vice Mayor Collazo returned to the City Council Chambers.

G. CITY COUNCIL MATTERS
Council Member Jorgens encouraged the public to fill out the various surveys on the City website.

Council Member Bucci congratulated the Newark schools graduates and commended the Boys Scouts in the audience.

Vice Mayor Collazo thanked her colleagues for introducing the Sustainable Foodware Ordinance. She stated it was National Ocean Day. She complimented local restaurant Bear Bitez and encouraged everyone to try it. The annual Mariachi Festival would be held on Sunday, July 16. Shop Newark.

Mayor Hannon complimented the variety of cultural events in the City. He announced the Groovin at the Grove concert series. He stated that he wanted to try Bear Bitez, but they ran out of food the day he visited.

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Page No. 5
City of Newark City Council Minutes June 8, 2023
H. CLOSED SESSION
I. ADJOURNMENT
Mayor Hannon adjourned the meeting at 7:30 p.m.

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Item  D. 3.

DATE 06/22/2023
TO Honorable Mayor and City Council Members
FROM James Scanlin, Environmental Services Manager
SUBJECT    Adopt a resolution amending the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 to fund a CivicSpark Fellow to assist with the development of an update to the City's Climate Action Plan
SUMMARY AND RECOMMENDATION
Staff is planning to develop an update to the City's Climate Action Plan (CAP) in Fiscal Year 2024, but lacks the necessary personnel resources to accomplish this major undertaking. Staff recommends that the City Council adopt a resolution to amend the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 to provide a CivicSpark Fellow to assist with development of an update to the City's CAP.

BACKGROUND
The City adopted a Climate Action Plan (CAP) in 2010 to address the threats posed by climate change. The CAP set targets for greenhouse gas (GHG) emissions reductions for 2012, 2015, and 2020. In 2015 the Governor signed Executive Order B-30-15 which set aggressive targets for GHG reductions for 2030 and 2050. Updating its CAP will allow the City to align with the State's targets and to prioritize and effectively implement actions to reduce GHG emissions to protect the community and the environment.

DISCUSSION/ANALYSIS
Staff is planning to release a Request for Proposals in July to select a consultant with experience in CAP development and GHG emissions analysis to assist with the development of the updated CAP. As existing staffing resources are limited, bringing on a CivicSpark Fellow to provide in-house assistance with CAP development would be very useful.

CivicSpark is an AmeriCorps program dedicated to building capacity for local public agencies to address community resilience issues such as climate change. CivicWell (formerly, Local Government Commission), a California nonprofit, public benefit corporation, administers CivicSpark on behalf of AmeriCorps. CivicWell recruits college graduates interested in pursuing a career in environmental policy or science to become CivicSpark Fellows (Fellows), then matches Fellows with local government agencies.

The Fellow would contract directly with CivicWell. CivicWell would handle payroll and related administration.

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The CivicSpark Fellows program provides a low-cost and low-risk opportunity to acquire additional in-house staffing resources to assist in the development of the City's updated CAP. CivicWell would conduct outreach to recruit potential candidates and promote the opportunity on its website. The City would then interview interested potential Fellows. Many Bay Area agencies have utilized and continue to utilize CivicSpark Fellows including the cities of Alameda, Albany, Berkeley, Dublin, Oakland, Piedmont, and San Leandro as well as StopWaste. From the repeated use of the program, and staff's discussions with agencies using the program, it is clear that there are many qualified applicants.  The Fellowship would start an 11-month term in September 2023, ending August 2024. The development of the updated CAP provides a great opportunity for a Fellow as the time frame lines up with the term of the program and there is a well-defined deliverable - the Climate Action Plan.

The total cost to the City would not exceed $31,000.  An Agreement for Services with CivicWell is within the City Manager's approval authority pending sufficient budgetary funding.

FISCAL IMPACT
Funding from Development Maintenance Impact Fees (Fund 625) unappropriated fund balance will be necessary prior to execution of an Agreement for Services.  Therefore, staff recommends an amendment of the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 to appropriate $31,000 to the general contractual services account (625.90.091.910.6221).

REVIEW AND APPROVAL
Prepared by - James Scanlin, Environmental Services Manager Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - Lenka Hovorka, Assistant City Manager
Attachments
Resolution
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RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWARK AMENDING THE 2022-2024 BIENNIAL BUDGET

AND CAPITAL IMPROVEMENT PLAN TO PROVIDE A

CIVICSPARK FELLOW TO ASSIST WITH THE
DEVELOPMENT OF AN UPDATE TO THE CITY’S CLIMATE

ACTION PLAN
WHEREAS, the City developed a Climate Action Plan in 2010 and intends to update its Climate Action Plan to establish greenhouse gas reduction targets for 2030 and 2025; and
WHEREAS, additional resources are needed to complete the update to the Climate Action Plan in a timely manner; and
WHEREAS, CivicSpark is a program of the federal AmeriCorps program that provides staffing resources to local governments to assist with the development and implementation of climate action plans; and
WHEREAS, CivicWell (formerly, Local Government Commission) administers the CivicSpark program for AmeriCorps; and
WHEREAS, execution of an Agreement for Services of Independent Contractor with CivicWell, in a form approved by the City Attorney, to provide assistance with the update to the City’s Climate Action Plan for a not to exceed amount of $31,000 is within the City Manager’s approval authority pending sufficient budgetary funding; and WHEREAS, a budget amendment is necessary to allocate additional funding for this scope of activity.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newark hereby approves an amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan for the allocation of $31,000.00 of unappropriated Community Development Maintenance Fees (Account 625.3000) to Contractual Services (Account 625.90.091.910.6221).

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Item  D. 4.

DATE 06/22/2023
TO Honorable Mayor and City Council Members
FROM Michelle Griese, Lieutenant
SUBJECT    Adopt a resolution related to Newark Police Department wellness program to approve agreements with Public Safety Family Counseling Group and Sigma Tactical Wellness, to authorize sole-source exemptions for Sigma Tactical Wellness and Mindbase LLC, and to approve an amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 SUMMARY AND RECOMMENDATION
The City of Newark Police Department is committed to improving employee wellness through programs intended to improve physical and mental health and fitness.  The wellness program aims to reduce employee injury and mitigate stressors that are unique to law enforcement personnel.  The Department’s wellness program currently includes peer support, critical incident stress management, a chaplain, an on-duty workout program, and providing ergonomic desk options.

Staff recommends that the City Council increase the Police Department wellness program budget for Fiscal Year 2024 from $13,000 to $70,000, an increase of $57,000, to purchase wellness services that will further improve employee physical and mental health and fitness, aid in employee retention, and assist in recruitment.  Purchased with the funds will be cardiac/metabolic screening that will correlate known risk factors, genetics and occupational stressors that are characteristic of law enforcement; improved first responder mental health services and multi-level training; and first responder mental health focused technology.  Staff also recommends that the City Council authorize the City Manager to execute agreements with Public Safety Family Counseling Group and Sigma Tactical Wellness and authorize sole-source exemptions for Sigma Tactical Wellness and Mindbase LLC.

BACKGROUND
The Police Department developed a wellness program aiming to reduce employee injury and mitigate stressors that are unique to law enforcement.  The Department’s wellness program currently includes peer support, critical incident stress management, a Chaplain, and an on-duty workout program.

PEER SUPPORT TEAM:

The Department currently has a peer support team comprised of eight members: one Lieutenant, one Sergeant, five officers, and one dispatcher.  Peer support members receive initial training to learn how to identify potential stressors and behavior, conduct critical incident stress defusing and assist with critical incident stress debriefing.  The peer support members are offered quarterly training to maintain their knowledge and skill.

PSYCHOLOGICAL SERVICES:

The Department contracts with the Public Safety Family Counseling Group to provide critical incident stress management consultation and response services.  These services include: critical incident stress debriefings, crisis management briefings, on-site response, crisis intervention, and consultation as necessary following extraordinary events in the City; short-term individual crisis intervention; provide ongoing training, oversight and consultation to the peer support team; coordinate with staff to offer critical incident stress management support education services for line, supervisory and management staff as requested; and be available by phone for consultation or call-out 24 hours a day, 7 days a Packet Page 59
week.  The maximum number of contracted hours is 60 per year.  The current budget for wellness programming is $13,000 and is solely to cover the contract for critical incident stress management and training.

With psychological services contracted for 60 hours per year, there are limitations for Department use.

The limited hours are conserved for use during acute critical incident management and to treat acute stress post-incident. Preventative measures and maintenance of skills are rarely accommodated because training and maintaining wellness and resiliency skills could consume the bulk of the hours.

CHAPLAIN PROGRAM:

The Department has one volunteer chaplain.  The mission of the chaplain is to provide counseling or emotional support to members of the Department, their families, and members of the public.  The chaplain can be on-call to assist when requested and attend training related to services provided.  The chaplain has been particularly beneficial supporting staff through loss of life events for their family or friends.

ON-DUTY WORKOUT PROGRAM:

The final component of the Department wellness program is the on-duty workout program.  Current policy permits sworn staff to work out on duty.  Utilization of the program assists staff with managing stress related to calls for service and maintaining operational fitness needs.  To permit on-duty workouts, the Department maintains a workout room equipped with cardiovascular exercise equipment, plyometric equipment, weights, and self-defense training equipment.

CARDIOMETABOLIC HEALTH ASSESSMENTS:

The Department does not currently have a provider for law enforcement focused cardiac and metabolic assessments for staff.  Cardiac and metabolic assessments provide staff members with a current understanding of their health and fitness levels and specifically measure for effects of stressors attributable to a career in policing.

INTEGRATED WELLNESS TECHNOLOGY:

The Department does not currently have wellness focused technology.  In the culture of policing, there can be a stigma associated with seeking help for a work or personal life issue.  Wellness technology can provide wellness-based information, assessments, and training via a mobile device application.

Law enforcement wellness technology also can interface with a Computer Aided Dispatch (CAD) system and use the call data to determine calls for service that may negatively impact staff and could compound as calls for service continue.  Such a system would notify peer support members to contact the employee and conduct an initial assessment.

DISCUSSION/ANALYSIS
Staff recommends that the City Council increase the Police Department wellness program budget from $13,000 to $70,000, an increase of $57,000 for Fiscal Year 2024, with an intent to continue these services on an ongoing basis. Purchasing wellness services will further improve employee physical and mental health and fitness, aid in employee retention, and assist in recruitment.  Purchased with the funds will be cardiac/metabolic screening that will correlate known risk factors, genetics and occupational stressors that are characteristic of law enforcement; improve first responder mental health services and multi-level training; and first responder mental health focused technology. “Policing is a difficult and stressful job, with higher physical and mental health risks than many other professions.  Studies have shown that when officers’ physical and mental health issues go unaddressed, job performance decreases, decision-making abilities are impaired, and agency costs increase” (Forum, 2018).  The Department recognizes these challenges and wishes to increase and enhance the wellness program to further provide for the mental and physical wellness of staff.

PSYCHOLOGICAL SERVICES:

Enhancing the Department’s wellness program begins with improving the psychological services Packet Page 60
provided.  Staff recommends that the City Council approve a contract with the Public Safety Family Counseling Group.  The contract will include no annual hours cap.  With the change to no annual hours limitation, the Department will add the following to the services that were provided in the previous contract: introductory briefing trainings; pre-academy wellness and resiliency training with employee and family; psychological and resilience based training for all staff (8-hours), supervisor training (2-hours), and command staff training (1-hour); counseling sessions with law enforcement specialty counselors, without referral, for all staff (10-sessions/year); post-retirement counseling sessions (5/employee); and counseling sessions for employees with long-term workers' compensation claims (5/employee).

CARDIOMETABOLIC HEALTH ASSESSMENTS:

The final wellness recommendation is law enforcement focused cardiac and metabolic assessments for staff.  Cardiac and metabolic assessments provide each staff member with a current understanding of their health and fitness levels and specifically measure for effects of stressors attributable to a career in policing.  “Police officers have an elevated risk of death relative to the general population overall and for specific causes” (John M. Violanti, 2016).  A study utilizing police officers from Buffalo, New York found the average life expectancy of officers was 21.9 years less than the average life expectancy of the U.S. population.  The average life expectancy of someone in the United States in 2020 was 77 years (Centers for Disease Control and Prevention, 2022).  This study suggests that the average life expectancy of police officers is around 55 years.  Possible reasons for shorter life expectancy among police include stress, shift work, obesity, and hazardous environmental work exposures.

With police officers eligible to retire at 50 or 57 years, and considering possible life expectancy, the need for annual health assessments is paramount.  Unfortunately, regular doctor visits and annual checkups are designed utilizing the average life expectancy of a person in the United States, not respective of their career and stressors.  Staff recommends contracting with a law enforcement focused cardiac/metabolic screening program annually.  The assessment should include a comprehensive cardiac assessment to evaluate heart health, metabolic assessment to determine nutritional health, provide exercise and nutritional recommendations, along with a medical evaluation.  Upon completion of an assessment, staff will understand what health, nutrition, fitness, or wellness modifications are needed to improve overall health and wellness.

The Department conducted a search for cardiac/metabolic assessment providers and identified Sigma Tactical Wellness as the only screening program designed for law enforcement that incorporates advanced cardiovascular biomarker detection, cardiac imaging, and cardiopulmonary exercise testing to assess comprehensive health, fitness, and wellness.

The primary service offered is cardiac/metabolic assessments.  The assessment includes cardiac biomarker analysis via blood analysis; carotid ultrasound; cardiopulmonary exercise stress test; development of an individualized diet and exercise prescription; and medical evaluation.

The secondary service offered is the Sigma HeartStart Program which includes the advanced blood analysis, and consultation with mid-level clinician and registered dietitian.

Staff recommends conducting cardiac/metabolic assessments every three years.  On years two and three the Sigma HeartStart Program is recommended so employees can determine the effectiveness of modifications and determine next steps.

INTEGRATED WELLNESS TECHNOLOGY:

Integrated wellness technology for policing is the third recommendation to improve the overall mental health of staff.  “It’s estimated that 18-24% of dispatchers and 35% of police officers suffer from PTSD” (Weaver, 2021).  The need for mental health services is extremely important for law enforcement staff.

Seeking help is often stigmatized in the profession.  An integrated wellness technology addresses this challenge.  Via a mobile app, staff will have the ability to access: the roster and contact information for peer support staff; department clinician services contact information; third party clinicians’ information; Packet Page 61
self-care information and assessments; track mental fitness; access the suicide hotline; and conduct self-driven wellness training.  The wellness technology will integrate with CAD/RMS to provide real-time proactive detection and support. Peer support members will be able to provide support directly to those that respond to critical or stressful incidents, as identified by the application.  This technology will be confidential and anonymous but provide aggregate information to the Department.

The Department conducted a search for integrated wellness technology and conducted demonstrations of the technology.  The Department identified the Mindbase application as the only wellness technology specifically for law enforcement that integrates with Computer Aided Dispatch (CAD) and the Records Management System (RMS) and provides a portal for peer support members to address critical and/or stressful responses with Department staff.

FISCAL IMPACT
The wellness program enhancements recommended above require additional funding of $55,920 for Fiscal Year 2024. Staff recommends that the City Council approve a budget amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024, increasing the Police Department wellness program budget from $13,000 to $70,000. This includes $1,080 contingency funds for minor contract adjustments, should they be needed. The table below shows the breakdown of each new wellness program component, and the total cost for all new components. The tables that follow provide a brief description of each new component and each individual component cost. Three years of program costs are being provided, as the intent is for these services is to be ongoing and to take advantage of cost savings achieved with longer term contracts. Fiscal Years 2025 and 2026 funding will be requested during the regular budget process to develop the 2024-2026 Biennial Budget and Capital Improvement Plan and cannot be expended without City Council approval of the budget.

TOTAL ANNUAL WELLNESS PROGRAM COSTS:

PSYCHOLOGICAL SERVICES:

The Public Safety Family Counseling Group, Inc provides “on-call/standby status for the delivery of Critical Incident Stress Management and Crisis Intervention services for law enforcement agencies following the International Critical Incident Stress Foundation (ICISF) protocols.”  The Public Safety Family Counseling Group, Inc programs address the three ICISF phases of crisis intervention including pre-incident education and preparation, critical incident response, and post-incident recovery and intervention.

The cost of the contract with Public Safety Family Counseling Group, Inc is $25,000 per year for a term of three years.

CARDIOMETABOLIC HEALTH ASSESSMENTS:

Sigma Tactical Wellness utilizes “novel testing modalities that have been proven effective in over 6500 law enforcement officers … from across the United States.”  This selected vendor is the only supplier of this proprietary item.

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The cost of the Sigma Tactical Wellness cardiac/metabolic assessment provider is $799 per person.

The cost of the HeartStart program is $299 per person.  Staff recommends permitting up to 40 employees to participate in the full cardiometabolic assessment and 40 employees participate in the HeartStart program the first year.  The total cost is$43,920 for the first year.  The cost for year two would be $43,920 to allow the remaining employees to participate in the full cardiometabolic assessment and the employees that participated in the year one full cardiometabolic assessment to participate in the Sigma HeartStart Program.  The cost for year three would be $23,920 to allow all Department employees to participate in the Sigma HeartStart program.

INTEGRATED WELLNESS TECHNOLOGY:

The Department conducted a search for integrated wellness technology and conducted demonstrations of the technology.  The Department identified the Mindbase application as the only wellness technology specifically for law enforcement that integrates with CAD/RMS and provides a portal for peer support members to address critical and/or stressful responses with Department staff.  This selected vendor is the only supplier of this proprietary item.

The annual cost of the application is $9,500.  The first-year integration and support total cost is $5,350.

The cost of Mindbase’s integrated wellness technology is estimated to be $14,850 for the first year.

Year 2 and Year 3’s annual support would cost $475 and $500 respectively.

On March 23, 2023, City Council accepted an Officer Wellness and Mental Health Grant via Resolution Number 11476.  The grant provided funding in the amount of $34,402.05.  The Police Department plans to utilize these grant funds to fund the majority of the cost of the Integrated Wellness Technology.

REVIEW AND APPROVAL
Prepared by - Michelle Griese, Police Lieutenant
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Prepared by - Michelle Griese, Police Lieutenant
Reviewed by - Gina Anderson, Police Chief
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - Lenka Hovorka, Assistant City Manager
Attachments
Public Safety Family Counseling Group estimate
Sigma Tactical Wellness Delivery Proposal
Mindbase quote CA-220908B
RIMS to mindbase integration quote
City Council Resolution No 11476
Wellness Program Resolution
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Public Safety Family Counseling Group, INC. (Consultant) Exhibit A – Scope of Services and Compensation

SCOPE OF SERVICES
The primary purpose of this service contract is the ongoing support, training, and oversight of the Newark Police Department (City) peer support team, Critical Incident Stress Management (CISM) programs, and facilitation of the emotional wellness of City personnel while providing 24/7/365 response and support services to City and its employees.

SERVICES

1. 24/7 On-Call/Standby Availability

1.1. Consultant will be available 24 hours a day, 7 days a week for Crisis Response and Stabilization Services for City and City’s personnel.

2. Unlimited Crisis Response and Stabilization services. Such services may include, but are not limited to critical incident stress debriefings, crisis management briefings, on-site response, crisis intervention, and in person consultation as necessary following extraordinary events encountered by City’s personnel or impacting the performance of City personnel’s duties. Crisis Response and Stabilization services also include Consultant’s expert response to and intervention with personnel experiencing a suicidal crisis.

2.1. Crisis Response and Stabilization Services may be rendered at City’s offices, in the field, at Consultant’s offices, virtually, or any other location as deemed necessary and approved by Consultant.

2.2. In the event that Consultant is requested to respond to an active scene or incident, City personnel shall accompany Consultant when requested.

2.3. In the event of a catastrophic incident, loss of life, significant injury to personnel, or other major incident, Critical Incident Stress Management services will be extended to spouses and significant others of City personnel.

3. Individual Crisis Stabilization and Counseling Services

3.1. Consultant will provide Individual Crisis Stabilization and Counseling Services as requested for City personnel, including 24/7 availability as needed.

3.2. Consultant will provide first responder specialized support and individual crisis intervention and, as necessary, appropriate professional referrals to City’s employee assistance program or other suitable venue as necessary subject to the terms of 3.2.2 below.

3.2.1.Individual crisis intervention is defined as up to ten (10) one-hour, one-on-one crisis intervention sessions per year without the need for referral or authorization from City. Such sessions may be provided either in-person at Consultant’s offices or virtually.

3.2.2. In the event that employee self-refers, or is directed or referred by City, because of a suicidal crisis, services shall be rendered without regard to session or time limits until one Packet Page 65
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of the following occurs. The suicidal crisis is stabilized, abated, or the affected employee is referred to a higher level or other suitable care. Sessions in excess of the 10 sessions allotted under the base contract shall be billed to the City as specified in Additional Service Fees section 15.

3.2.3.Referrals to third party services such as employee assistance programs, outside wellness training, or recovery/treatment retreats are not covered under this Agreement and are subject to other agreements between City and the third-party provider.

3.2.4.Additional Individual Crisis Intervention and Stabilization services may be rendered on a case-by-case basis as requested and authorized by City and approved by Consultant.

3.3. Consultant will provide up to three (3) individual transition specialized sessions for retired personnel or individuals separated from employment for any reason in order to help with the adjustment from active to retired status. Said sessions shall occur within one year of the employee’s separation from service and within the term of this Agreement.

3.4. Consultant will provide up to one (1) individual sessions for employees placed on administrative leave in order to facilitate healthy coping and transition through any related process. Sessions will specifically focus on preparing personnel to return to duty following administrative leave or, where warranted, their transition out of the Department.

3.5. Consultant will provide one (1) session for any new hire and their spouse or significant other while the employee is in a POST Basic Academy in order to facilitate resiliency and successful completion of their training. This session should occur either just prior to or within the first two weeks of starting the academy. One (1) additional session may be offered to the new employee when entering the Field Training Program.

4. Workers Compensation

4.1. While Consultant does not accept Workers Compensation cases, Consultant will provide up to one (1) individual sessions for injured personnel with the specific goal of facilitating healthy coping and transition through any related process.

4.2. The Consultant shall not treat, diagnose, or otherwise engage or interfere in any part of the formal Workers Compensation process, treatment, or legal process. Consultant shall not provide reports of these sessions to the City or any other party without a properly executed release, legal mandate, or court order.

5. Telephone, email, and virtual Consultations

5.1. Expert collaboration with City Personnel regarding issues related to Critical Incident Stress, crisis intervention, education needs, organizational matters, disciplinary matters, terminations, or separation from service, and other psychological services as requested.

5.2. Provide on-going consultation to the City’s Peer Support Team on topics including, but not limited to, program development, team selection, and team operations.

5.3. Consult with City Personnel regarding critical incident stress management support education services for line, supervisory, and management staff as requested.

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5.4. Unlimited telephone, email, and virtual consultations are provided under this agreement.

6. Peer Support Team Member Services

6.1. Consultant will provide, upon City’s request, one (1), one-on-one check-in appointments per year for each peer support team member, coordinator, and liaisons for the purpose of fostering professional wellness in their assigned role and to support positive wellness habits.

7. Training Services

7.1. Program Presentations

7.1.1.Consultant will conduct, upon City’s request, up to four (4) patrol briefing presentations for the purpose of introducing Consultant’s firm, services, and program goals. Consultant will periodically solicit and compile peer support team member nominations following a blind nomination process as requested by City.

7.1.2.City agrees to plan for professional, non-sworn, and other administrative personnel to attend one of the aforementioned trainings.

7.2. Command Presentation and Training

7.2.1.Consultant will conduct, upon City’s request, one (1), one hour presentation for Command Staff as requested in order to familiarize them with CISM and peer support team program goals and operations.

7.3. Management/Supervisory Presentation and Training

7.3.1.Consultant will conduct, upon City’s request, one (1), two hour presentation for supervisory staff as requested in order to familiarize them with CISM and peer support team program goals and operations.

7.4. Line Personnel Training

7.4.1.Consultant will provide, upon City’s request, up to two (2), four-hour training blocks per year covering CISM, wellness, and resiliency for line level personnel.

7.4.2.Training will be presented at City facilities or facilities arranged and paid for by City.

7.5. Regional Peer Support Continuing Education Training

7.5.1.Participation in Regional Peer Support Continuing Education Training for all City designated liaisons, coordinators, and peers is included.

7.5.2.Participating agencies share a rotating responsibility for hosting Regional Peer Support and Coordinator Meetings. Responsibility for hosting said trainings and meetings is split among participating agencies on a rotating basis.

7.5.3.Regional training may be offered in person or via a virtual electronic platform.

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7.5.4.Regional Training does not include any conference or other similar training that may be provided by Consultant to multiple agencies where an attendance fee is required.

7.6. Peer Led Trainings

7.6.1.Consultant shall design and supply one (1), 15-minute training program designed to be presented by peer support team members during briefing or other short format gatherings.

This training program shall be designed to enhance resiliency, increase mental wellness, and/or address specific problems within the agency or industry as a whole (i.e., healthy alcohol consumption, dealing with personal crisis, available CISM resources). Consultant will train designated personnel in the delivery of this training program.

7.6.2.Consultant shall design and supply one (1) new hire training and orientation program designed to be presented by peer support team members during the first few weeks of a new employee’s orientation to the City. These training programs shall be designed to increase stress awareness, understand the negative impacts of long-term stressors, enhance resiliency, increase mental wellness, orient new employees to peer support and other wellness resources within and outside of the agency, and/or address specific topics as requested by City. Consultant will train designated personnel in the delivery of this training program.

7.7. All training requests must be submitted at least 90 days in advance. City agrees to work cooperatively with Consultant to schedule requested training during mutually agreeable times.

7.8. International Critical Incident Stress Foundation (ICISF) certified courses are subject to additional fees and service requirements. Related terms and fees shall be agreed upon prior to any ICISF course being scheduled and may be approved by the Chief of Police or their designee.

8. Meetings

8.1. Consultant may, upon request by City, attend up to two (2) regular peer support team meetings exclusively for City’s peer support team members. Said meetings shall be set up by a Peer Support Team Coordinator or Liaison and should occur at least once per quarter. These meetings may be held/attended in-person or virtually.

8.2. Consultant may, upon request by City, attend up to two (2) Command Staff meetings as requested for the purpose of discussing and making recommendations as to CISM, wellness, and peer support needs within the Department.

8.3. Consultant may, upon request by City, attend up to one (1) Supervisory Staff meetings as requested for the purpose of discussing and making recommendations as to CISM, wellness, and peer support needs within the Department.

8.4. Having Consultant periodically attend Command and Supervisory meetings provides the opportunity to embed wellness and mental health resources within the culture of the Department thereby enhancing the acceptance and delivery of Consultant’s resources. It also allows for the discussion of sensitive or challenging issues facing the Department, as well as the identification of future challenges. Clinical presence at the command level helps serve as a reminder of the importance of wellness and resiliency that can then be modeled to the rest of the Department in order to enhance and promote a culture of resiliency and wellness. Additionally, it allows for the Packet Page 68
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presentation of current research, industry trends, and other pertinent information in a timely manner allowing for rapid implementation and response to emerging issues.

9. Policy Development and Review

9.1. Upon request, Consultant will supply City with a Sample Peer Support Policy and assist City personnel with review and recommendations for creating a comprehensive Peer Support Team and CISM Policy.

9.2. City shall have their own City Attorney and/or risk manager review any recommended policy prior to implementation. City is responsible for ensuring that any proposed policy is compliant with city, state, and federal law.

10. When City requests services to be rendered onsite, City shall make suitable space available to Consultant. When suitable space is not available, City shall make other location arrangements appropriate for the services to be rendered.

11. When Consultant is unavailable or unable to render services as indicated above, Consultant shall make necessary arrangements for referral to appropriate mental health professionals for coverage and make contact information available to City personnel.

12. Consultant shall not be responsible for computer, video, audio, or other technological needs for City or City’s personnel to attend training or access services.

COMPENSATION

13. City shall compensate Consultant a flat base fee of $25,000.00 per annum (Fiscal Year) for all services outlined under Scope of Services Sections 1 through 12, subject to the following provisions.

13.1.Services may be rendered in-person, via telephone, email, or virtual platform based on the specific circumstances, nature, and needs of the service, City, and Consultant. Response services shall be provided in-person except under extraordinary circumstances.

13.2.Regional Peer Support Continuing Education Training may be provided in person or virtually and may be rescheduled, postponed, or cancelled for extraordinary events.

13.3.In the extraordinary circumstance that Consultant is unavailable or unable to provide 24/7 standby/on-call availability, Consultant shall make necessary arrangements with appropriate mental health professionals for coverage and any expense incurred by Consultant in doing so shall be the sole responsibility of Consultant.

ADDITIONAL SERVICE FEES

14. Additional Individual Counseling Services per section 4.2.3.

14.1.The rate for in office counseling services under this section shall be $250.00 per session hour, billable in 30-minute increments with a one (1) hour minimum.

14.2. A session hour is defined as 50-minute period of counseling services.

15. ICISF Licensed training courses are subject to the following additional approximated fees.

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15.1.ICISF Registration and Licensing $300 per course

15.2.Materials Fees $150 per person

15.3.ICISF Certificates $10 per course, per person

15.4.Training courses hosted by anyone other than City are not included within the scope of this Agreement and are subject to an additional fee. Fees for outside training are set by the host entity and City shall be responsible for any determination to send and all related costs for sending personnel to any outside training.

ADDITIONAL SERVICE TERMS

16. Cancellation. Due to legal and ethical requirement surrounding patient abandonment, any action resulting in the cancellation of this Agreement shall be initiated in writing by the cancelling party at least 30 days prior to the final date of service in order to allow for termination or transition of the clinical relationship between Consultant and any City personnel seeking care.

16.1.The final day of service under this Agreement shall fall upon the last day of the month.

16.2.Upon cancellation, all fees for services performed prior to cancellation shall become due and payable within 30 days of receipt of a final invoice for services rendered through the final date of service and all account hours are forfeit.

17. Other Legal Services. Services rendered under this Agreement do not include expert witness fees, deposition, court fees, representation, or testimony for or during any legal or formal administrative proceeding. Fees related to any actual or proposed action in any proceeding start at $500.00 per hour and are subject to a minimum advanced deposit prior to any required appearance.

18. Copyright and Right of Use. Any and all work, artwork, copy, posters, billboards, photographs, videotapes, audiotapes, systems designs, software, reports, designs, specifications, drawings, diagrams, surveys, source codes or any original works of authorship created by Consultant or its subcontractors or subconsultants in connection with services performed under this Agreement shall be deemed the exclusive intellectual or otherwise licensed property of Consultant and Consultant shall retain all rights therein except where provided by a separate agreement.

19. Works for Hire and Work Products. Services rendered under this Agreement are not considered Works for Hire or Work Products. As such, anything produced or created by Consultant shall retain ownership and control over everything produced or created.

20. HIPAA Requirements. Confidentiality of Consultant’s services and records are governed by State and Federal statues, court decisions, ethical standards, and generally accepted business practices for their profession. Notwithstanding any other section of this Agreement, no record or other identifying information, including but not limited to HIPAA protected information shall be released without a valid court order, written authorization from the individual(s) affected by the information release, or other legal authority compelling release of such information.

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investment of Consultant’s time, efforts, and resources in order to maintain the required confidentially of records subject to audit or inspection and as such, shall be considered billable time outside of the scope of this Agreement at the rate of $250.00 per hour. This section shall supersede all other sections and shall survive termination, cancellation, or expiration and remain in effect indefinitely.

21. Confidentiality of Information. City shall not disclose any confidential or proprietary information received from Consultant, including but not limited to client information, to anyone except City’s employees who require access to the information to access Consultant’s services without adaptation by Consultant.

21.1.Notwithstanding the foregoing, Consultant recognizes that City is obligated to comply with the California Public Records Act (California Government Code §§ 6252 et seq.) and that records in the possession of the City may be required to be disclosed. The City will assert exemptions as allowed, including protecting personal contact information and other confidential information as allowed by the Public Records Act.

21.2.If the City receives a Public Records Act request for documents related to the Consultant, it will promptly notify the Consultant of such request. The Consultant may then seek to assert protections and privileges in court, as it may deem appropriate. The Consultant shall notify the City within 5 days if it will seek judicial intervention. If it does not, the City will release the requested documents. Nothing herein prohibits the City from asserting any exemptions to disclosure that it deems appropriate.

21.3.Parties further agree to exercise at least the same care, control, and security over records, documents, and/or confidential information obtained from the other party as they would for their own records, documents, and/or confidential information.

22. Billing and Invoices. Consultant shall invoice the City at the commencement of the contract and monthly thereafter utilizing standard accounting practices to be payable within thirty (30) days.

Failure to invoice the City within the billing month shall not be reason for nonpayment nor constitute a waiver of fees due to Consultant; however, Consultant shall provide an invoice for services prior to payment by the City.

22.1.Consultant shall endeavor to provide a monthly utilization statement to the City no later than the 15th day of each month following the month in which services are provided. The utilization will include a description of services rendered and the date on which such services were provided. In addition, the monthly statement will provide a running account of hours utilized and remaining hours on account. Due to HIPAA restrictions individual client information shall not be included in accounting information. Utilization statements may be combined with monthly invoices for convenience.

22.2.Failure of the City to pay any outstanding invoice within 90 days of receipt shall be grounds for cancellation of this contract by Consultant and forfeiture of fees paid by City and any services yet to be provided to City except where other payment arrangements are agreed to in writing.

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22.3.City shall ensure timely requests for and utilization of Consultant’s services. All services not utilized within a single Service Period of this Agreement are non-refundable and will be lost as of June 30th of each year this Agreement remains in effect. Failure of City to utilize Consultant’s services in a timely manner shall not be cause for default, refund, or extension of time.

23. Shall Not Exceed Figures. Any shall not exceed figure put into place related to this Agreement shall be sufficient to cover the face value of this Agreement over the entire time this Agreement is in place.

Such figures shall also include a reasonable overage amount to cover any additional services outlined in this Agreement.

24. Force Majeure. Except with respect to failure to pay any amount due under this Agreement, nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, natural disaster, pandemic, death of Provider, public protest or riot, governmental acts that are not caused by or within the control of the nonperforming party, order or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.

25. Third Party Insurance Verification. Neither Consultant nor Consultant’s insurance providers are able to comply with demands from or supply documents to Third Party Insurance Verification services that City may or may not contract with to verify independent contractors’ insurance policies.

In the event that City utilizes such services, City shall designate a City staff member to collect insurance documents from Consultant and resolve any verification requirements.

26. Agreement Term. The term of this Agreement shall be July 1, 2023, through June 30, 2026. The term shall be divided into two Service Periods for the purposes of administration of compensation and delivery of services. The Service Periods shall run from July 1 through June 30.

26.1.The fees outlined in this Agreement shall increase by 7.5% per year each year this Agreement remains in effect.

26.2.The term of this Agreement may be extended or altered by amendment.

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4285 CR 3270
Kempner, TX 76539
501 358 2112
[email protected]
Sigma Tactical Wellness Delivery Proposal
Sigma Tactical Wellness has pioneered a novel system of cardiometabolic screening which incorporates advanced cardiovascular biomarker detection, cardiac imaging, and cardiopulmonary exercise testing to identify coronary disease before it takes a toll on an officer’s life. Our unique testing modalities have been proven to be effective in identifying and eliminating the risks of the number one killer of men and women in uniform – heart disease.

There is absolutely no question that the number one killer of active and retired law enforcement officers and fire fighters is heart disease. The average age of a police officer who suffers a heart attack is 46, and the life expectancy of men and women in uniform is more than 20 years less than the general population. Published data shows that, between the ages of 55 and 60, the chance of a civilian dying from a heart attack is 1.6%. However, within populations of police officers and fire fighters, it is 56%. Moreover, fire-fighters are 16x more likely to die from an inservice line-of-duty heart attack than other occupations within public safety.

Through our aggressive screening strategy, early, pre-clinical heart disease markers were detected in otherwise fit appearing men and women as early as age 30. Once identified, the progression of heart disease can be halted. It should be noted that standard risk modeling (most commonly found in other wellness programs) often DOES NOT identify those at increased risk and can result in catastrophic misdiagnosis.

Police officers and fire-fighters also suffer from obesity, diabetes, and hypertension at rates that are much higher than their civilian counterparts. National statistical data shows that the obesity rate for police officers is 48% which is 20% higher than what is seen in the civilian sector. The rampant obesity epidemic creates concomitant diabetes, high blood pressure, sleep disorders, and significant musculoskeletal issues such as back, knee, and hip pain.

The Facets of Sigma Tactical Wellness:

Cardiac biomarker analysis
Sigma Wellness has developed a comprehensive cardiac laboratory screening evaluation along with an individualized nutritional and exercise prescription. The screening consists of noninvasive imaging as well as advanced lipid panel, and inflammatory biomarker analysis which can be used to predict the likelihood of a heart attack.

Metabolic Analysis with Exercise and Nutritional Modification Secondly, a cardiopulmonary exercise stress test is performed on a stationary bicycle. This test measures functional capacity, the presence of any ischemia (lack of blood flow to the heart muscle) and utilizes a technique known as indirect calorimetry. Officers are shown the current state of their nutritional status and are guided through the development of an individualized diet and exercise prescription. This type of personalized exercise and nutritional intervention has been shown to be effective in providing each participating officer a full understanding of how to enhance physical and mental performance. This guidance creates improvement in fitness, mental-focus, and alertness. Furthermore, due to the significant rates of obesity in lawenforcement, a strong emphasis on weight optimization is used and has proven successful in Packet Page 73
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providing the tools individual officers need to achieve and maintain a healthy body mass index (BMI).

Medical Evaluation
Finally, direct consultation with a physician or licensed medical professional (physician’s assistant/nurse practitioner) will be performed. During this consultation, each officer will have all their tests reviewed and treatment strategies will be established. The participant will leave with a full understanding of his or her cardiac risk, their metabolic status, and the steps that can be taken to help ensure a long and healthy career and retirement. Comprehensive written results and recommendations will be provided for the participants to share with their personal health care providers.

Deployment Plan
A repeat partial screening analysis should be done on a thirty-six-month rotation so that effects of program adherence, changes in on-duty performance, and cost/benefits can be evaluated.

This includes all of the following components:
• Active electrocardiogram (ECG) with physician interpretation and evaluation • Cardiometabolic stress test with expiratory gas analysis – determines contributions of fat and carbohydrate into total daily energy expenditure (indirect calorimetry) • Advanced lipid panel including cardiac inflammatory biomarker analysis – also includes overview of hematology, liver/kidney function, thyroid, PSA (men), HbA1c (diabetes) • Carotid Intima-media thickness ultrasound (CIMT) – performed on-site and interpreted in real-time
• Consultation with a mid-level clinician (Advanced-practice nurse/practitioner or physician’s assistant)
• Consultation with exercise physiologist
• In-depth nutritional analysis based on individual results of cardiometabolic testing • Aggregated data report prepared and delivered to command staff containing 20 different data points as a cross-section of personnel health status COST: $799.00
(Includes $99.00 for carotid intima-media ultrasound as replacement of off-site coronary calcium score)
Civilians, spouses, and non-sworn personnel who may not be covered under the departmental funding model are welcome to participate. For convenience, Sigma Tactical Wellness can accept Flexible Spending Accounts as a form of payment.

Fire-Specific Cancer Screening
Members of fire-service are at an increased risk for certain types of cancer when compared to other members of public safety. In 2017, the Institute for Occupational Safety and Health (NIOSH) noted a 9% increase in cancer diagnosis and a 14% increase in cancer related deaths in fire-fighters when compared to the general population. Sigma Tactical Wellness employs a comprehensive immunological overview which has been shown to expose many types of cancer Packet Page 74
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common to members of fire-service before other, more expensive, methods of detection (ultrasound). This not only reduces costs, but also reduces complexity by eliminating the need for multiple off-site medical visits.

Sigma HeartStart Program
HeartStart is specifically designed for individuals not wishing to undergo the full on-site screening experience (above) and/or for those wishing to participate without coordination through their department or agency, but who still desire to experience Sigma’s proven methodologies in detection of early stage heart disease.

HeartStart includes the following components:
• Advanced lipid panel including cardiac inflammatory biomarker analysis – also includes overview of hematology, liver/kidney function, thyroid, PSA (men), HbA1c (diabetes) • 20min Consultation with a mid-level clinician (Advanced-practice nurse/practitioner or physician’s assistant)
• 30min Consultation with Registered Dietician (with coordination from Quest Diagnostics) COST: $299.00
Estimated Cost Savings component
As an example, in a population of 200 police officers, based on our observed results, approximately 100 will have evidence of coronary artery disease, 80-160 will be clinically obese and approximately 60 will have evidence of undiagnosed hypertension and or diabetes.

The Commission of the Accreditation for Law Enforcement Agencies (CALEA) has placed the cost of an in-service heart attack between $450,000- $750,000. If assuming only 10% of the 100 officers with detected coronary plaque will have disease progression resulting in a heart attack within 5 years (low estimate), the total cost to the tax-payers ranges between $4.5 million to $7.5 million.

Based upon calculations from the 2019 Society of Actuaries, if the cost of untreated obesity is factored into the five-year analysis, there is an additional $1.22 million associated with overall health care, workmanship compensation, and disability cost.

Aside from the obvious cost-savings inherent in cardiovascular prevention, we have documented a 28% reduction in body fat percentage in overweight individuals, and a 29% reduction in body fat percentage in obese individuals (as much as 40lbs weight loss in some cases within compliant individuals). Most of the weight reduction is seen within the first 12 months of program adherence.

Total Cost Savings (200 officers) = $5.7m – $8.7m over 5 years There have other substantial benefits and health savings. In conjunction with reduced health insurance-related expenses, Sigma has documented a significant reduction in worker’s compensation claims over the last 5 years as measured by The Colorado Inter-Governmental Packet Page 75
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Risk Sharing Agency (CIRSA). The cost savings have been so dramatic, that CIRSA currently agrees to cover 50% of the cost of screening their members.

It is critical to note that one indirect result of Sigma Wellness participation, which still permeates through populations of participants is the rate of successful tobacco cessation and alcohol use reduction. According to Sigma Wellness data, 91% of smokers and nearly 98% of overconsumers of alcohol significantly reduced their usage or quit altogether.

In Summary
Sigma Tactical Wellness incorporates novel testing modalities that have been proven effective in over 6500 law enforcement officers and fire-fighters from across the United States. It is through this aggressive and cutting-edge technology that the rates of heart attack, obesity, and other metabolic illness can be drastically reduced if not eliminated. This strategy allows participants to return home at the end of their shifts and enables them to enjoy a retirement that they have worked so hard for. It is also well understood that prevention of injury and illness saves countless dollars. This cost savings is more important than ever in the current environment of increased scrutiny of law enforcement funding.

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Proposal For:

Presented By:

Newark Police Department
Mindbase, LLC
Proactive Peer
Support Platform
www.getmindbase.com
Packet Page 77

TERM DESCRIPTION UNIT PRICE TOTAL
3 Year Mindbase Integrated Peer Support Platform for Public Safety – (site license for Newark Police Department- annual subscription) $9,500 $28,500 3 Year Family + Retiree Wellness/Support App (site license – annual subscription) Incl Incl
Implementation Services $0 $0
3 Year On-going support and training Incl Incl
SUBTOTAL $28,500
SALES TAX 0.00
TOTAL DUE $28,500
Estimated 4th Year Cost: $9,785
This Subscription Agreement (the “Agreement”) is entered into by and between Mindbase LLC (Mindbase) and the Agency identified on this agreement. Terms and Conditions of this agreement are listed in Exhibit B. Following expiration of the Initial Term, the Term of Service shall automatically renew for successive periods of one (1) year (“Renewal Term”) unless and until either party gives the other party written notice of non-renewal at least 60 days prior to the next scheduled renewal date. Mindbase may change the Fee for any Renewal Term upon written notice to Customer at least ninety (90) days prior to the next scheduled renewal date. Payment for services is Net 30.

Newark Police Department Mindbase
Signature: _______________________________ Signature: _______________________________ Name: __________________________________ Name: Caleb Jenson Title: ___________________________________ Title: VP, Growth and Partnerships Date: ___________________________________ Date: ___________________________________ Billing Contact Email: ______________________________________________________________________ PO Box 4201
Logan, UT 84323
Phone: (888) 270-6463
QUOTE # CA-220908B
DATE : 09-08-2022
EXPIRES : 07-31-2023
TO:

Lt. Michelle Griese
Newark Police Department
37077 Newark Blvd.

Newark, CA 94560
Phone: 510-578-4345
FROM:

Caleb Jenson
Mindbase, LLC
PO Box 4201
Logan, UT 84323
Phone: (435) 512-3586
COMMENTS OR SPECIAL INSTRUCTIONS:

Mindbase will provide Newark Police Department (customer) an Integrated Peer Support Platform consisting of 1) Agency Mobile Application (iOS & Android) + Family Wellness/Support App 2) Integrated CAD/RMS Wellness dashboard for analytics and reporting 3) One on-boarding session for administration personnel 4) Ongoing account management and support equal to the duration of the relationship and/or termination of services by customer.

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Auto generate debrief lists based on incident response. Make sure debriefs are occurring when they need to, ensuring all individuals are accounted for.

A comprehensive App compliments the Mindbase Admin
dashboard, providing a suite of clinically validated wellness sessions and high impact learning modules all designed
specifically for First Responders, First Responder Families, and Retirees. Ensure that your personnel have all the tools in their hand to build resilience and be mentally well.

Help in the palm of your hand...

Proactive We know peer support is not your only assignment. The Mindbase Platform helps teams keep track of which individuals most likely experienced elevated levels of trauma and should be reached out to, as well as who they have already talked to. Ensuring that no one is left to fight alone.

Leverage the power of your data...

Actionable Insights By automating monthly stat sheets, peer teams now have more accurate data to make decisions on. Track and manage your effectiveness as a peer team and provide the right support at the right time to your peers.

No One Left Behind
A Comprehensive Wellness Platform
Mindbase provides the only comprehensive CAD/RMS/JMS data driven and proactive mental health and wellness platform on the market today. Mindbase believes in improving mental health by bringing people, knowledge, and intelligent technology together. Comprised of two connected components, the co-branded Mindbase platform provides all the necessary wellness tools for early detection and intervention in an iOS and Android driven application, and a cloud-based, web-accessed agency peer support administration portal.

Wellness App
Engagement Tools Challenges are a great way to drive engagement and conversations. The Mindbase Wellness App comes with the ability to deploy fitness and nutrition challenges to create a rewarding and interactive experience for personnel.

Assessment Tools Personal, confidential assessments provide users with the ability to self check and track their progress, connect with peer support team members, or clinicians as needed.

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The Mindbase app is built on a multi-platform development framework.

This allows end users to access the portal on iOS, Android, or most web browsers. Platforms officially supported by Mindbase include:

Mindbase Technology
iOS v12 or greater
Android v8 (Oreo) or greater
Safari v14 or greater
Chrome v102 or greater
Firefox v91 or greater
Edge v100 or greater
The administration portal is built as a cloud native web application that is designed to be viewed on a larger form factor, such as a computer monitor, but uses a responsive design so that it will also be functional on a mobile device. The platform is designed to be hosted in the AWS GovCloud, with specific roles and permissions given to the site administrators to manage and configure the system. All server hardware and operating systems are to be administered by the Mindbase team.

Always Available
The Mindbase App is available 24/7, delivering clinician backed wellness resources for law enforcement, 911 professionals, fire and EMS and any other current or retired employee of public safety agencies. The app is designed to support the families first responders; access and communication with Mindbase proprietary and agency defined content; local, regional or statewide peer support personnel; agency contracted and/or culturally competent clinicians; local, state, or national resources and hotlines; periodic and agency defined assessments; individualized emotional fitness tracker; and agency defined personnel support plans to drive engagement. Additionally, peer team tracking, customizable data indicators, and advanced monitoring and support are all available through the peer support administration portal.

Privacy and Confidentiality
Mindbase takes privacy and security very seriously. Our goal is to provide beneficial resources to first responders in a completely anonymous manner. The app is secured by a username and password along with an agency code. The username and password are used to communicate directly with an individual through the app.

App usage data is never displayed by individual. Anonymized app usage data can be viewed by the site administrator(s), and the anonymous data may be used by Mindbase to determine if content should be added, removed or updated. The administration portal is secured by a username and password with roles and permissions assigned by the site administrator(s).

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"We used a wellness app from another
company that has been in the
business for many years, but after
seeing the Mindbase platform, I feel
like it is already light-years ahead of
our previous vendor."
Katie Hill
Eureka Police Department
What our customers
are saying:

Create a Culture of Wellness
Taking care of those that take care of everyone else. Mindbase believes that people are your most important asset. With recruiting & retention trending negatively nationwide, an agency without a culture of wellness is at a significant disadvantage. Using Mindbase technology tools to establish peer support initiatives and standardize your wellness program can improve your agencies' culture. Well trained, long tenured, & healthy employees are key to supporting each other through the challenges of public safety demands.

The Mindbase Platform provides agencies with a comprehensive, one stop shop for their wellness programs. Within the app, agencies can easily share their Peer Support Team members, clinicians, and other resources available to support department personnel.

We owe it to our men and women in uniform to protect not just their physical health, but their mental health as well. Lives depend on it. "
- Sheriff Rosie Rivera
Salt Lake County, UT
"Thank you Mindbase for taking the
time to get to know the challenges in
Monterey County and offering a
solution to enhance the wellness of
the Emergency Communications Dept.
and our families."
Lee Ann Magoski
Monterey Co CA 911
"The Mindbase platform is such a valuable tool for our department to have quick and easy access to peer support and professional help. Our team now has the ability to help us remember to do our check-ins and figure out what we can do for our people. The app has so many self-help options to help us all learn and grow."
Race Black - Brigham City UT
Fire Department
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Exhibit B
Mindbase Master Services Agreement
The following terms and conditions apply to all Subscription Services purchased by Customer.

Capitalized terms used but not defined herein shall have the meaning set forth in Mindbase’s General Terms and Conditions, available at: https://getmindbase.com/terms-of-service. In the event of any inconsistency or conflict between Mindbase Master Services Agreement and those contained herein, the Terms and Conditions contained in this Exhibit B shall control.

1. Agreement.

1.1. Scope; Agreement Documents. This Subscription Software Agreement governs Customer’s purchase of cloud-based software as a service products and other software which is licensed to Customer by Mindbase on a subscription basis (“Subscription Software”) and related services, which may be recurring or one-time (“Services”) provided by Mindbase.

Subscription Software and Services are collectively referred to as the “Software and Services”.

Additional terms and conditions applicable to specific Software and Services are set forth in one or more addenda attached to this Subscription Software Agreement (each an “Addendum”, and collectively the “Addenda”). In addition, the Parties may agree upon statements of work, schedules, technical specifications, and other ordering documents setting forth the Software and Services to be purchased by Customer and provided by Mindbase and additional rights and obligations of the Parties (the “Ordering Documents”). To the extent required by applicable procurement law, a proposal submitted by Mindbase in response to a competitive procurement process will be included within the meaning of the term Ordering Documents.

This Subscription Software Agreement, the Addenda, and any Ordering Documents collectively form the Parties’ “Agreement”.

1.2. Order of Precedence. Each Addendum will control with respect to conflicting terms in this Subscription Software Agreement, but only as applicable to the Software and Services described in such Addendum. Each Ordering Document will control with respect to conflicting terms in this Subscription Software Agreement or any Addenda, but only as applicable to the Software and Services described on such Ordering Document.

2. Subscription Software.

2.1. Delivery. During the applicable Subscription Term (as defined below), Mindbase will provide to Customer the Subscription Software set forth in an Ordering Document, in accordance with the terms of the Agreement. Mindbase will provide Customer advance notice (which may be provided electronically) of any planned downtime. Delivery will occur upon Customer’s receipt of credentials required for access to the Subscription Software or upon Mindbase otherwise providing access to the Subscription Software. If agreed upon in an Ordering Document, Mindbase will also provide Services related to such Subscription Software.

2.2. Modifications. Mindbase may modify the Subscription Software, recurring Services and any related systems so long as their functionality (as described in the applicable Ordering Document) is not materially degraded. Documentation (as defined below) for the Subscription Packet Page 82
Software may be updated to reflect such modifications.

2.3. User Credentials. If applicable, Mindbase will provide Customer with administrative user credentials for the Subscription Software, and Customer will ensure such administrative user credentials are accessed and used only by Customer’s employees with training on their proper use. Customer will protect, and will cause its Authorized Users to protect, the confidentiality and security of all user credentials, including any administrative user credentials, and maintain user credential validity, including by updating passwords. Customer will be liable for any use of the Subscription Software through such user credential (including through any administrative user credentials), including any changes made to the Subscription Software or issues or user impact arising therefrom. To the extent Mindbase provides Services to Customer in order to help resolve issues resulting from changes made to the Subscription Software through user credentials, including through any administrative user credentials, or issues otherwise created by Authorized Users, such Services will be billed to Customer on a time and materials basis, and Customer will pay all invoices in accordance with the payment terms below.

2.4. Beta Services. If Mindbase makes any beta version of a software application (“Beta Service”) available to Customer, Customer may choose to use such Beta Service at its own discretion, provided, however, that Customer will use the Beta Service solely for purposes of Customer’s evaluation of such Beta Service, and for no other purpose. Customer acknowledges and agrees that all Beta Services are offered “as-is” and without any representations or warranties or other commitments or protections from Mindbase. Mindbase will determine the duration of the evaluation period for any Beta Service, in its sole discretion, and Mindbase may discontinue any Beta Service at any time. Customer acknowledges that Beta Services, by their nature, have not been fully tested and may contain defects or deficiencies.

2.5. Customer Obligations. Customer will ensure that information Customer provides to Mindbase in connection with receipt of Software and Services are accurate and complete in all material respects. Customer will make timely decisions and obtain any required management approvals that are reasonably necessary for Mindbase to provide the Software and Services and perform its other duties under this Agreement. Unless the applicable Ordering Document states otherwise, Mindbase may rely upon and is not required to evaluate, confirm, reject, modify, or provide advice concerning any assumptions or Customer information, decisions, or approvals described in this Section. If any assumptions in the Ordering Documents or information provided by Customer prove to be incorrect, or if Customer fails to perform any of its obligations under this Agreement, Mindbase’s ability to perform its obligations may be impacted and changes to the Agreement, including the scope, Fees, and performance schedule may be required.

2.6. Documentation. Software and Services may be delivered with documentation for the equipment, software, or data that specifies technical and performance features, capabilities, users, or operation, including training manuals, and other deliverables, such as reports, specifications, designs, plans, drawings, analytics, or other information (collectively, “Documentation”). Documentation is and will be owned by Mindbase, unless otherwise expressly agreed in an Addendum or Ordering Document that certain Documentation will be owned by Customer. Mindbase hereby grants Customer a limited, royalty-free, worldwide, Packet Page 83
non-exclusive license to use the Documentation solely for its internal business purposes in connection with the Software and Services.

2.7. Authorized Users. “Authorized Users” are Customer’s employees, full-time contractors engaged for the purpose of supporting the Software and Services that are not competitors of Mindbase, spouses and significant others, retirees, and the entities (if any) specified in an Ordering Document or otherwise approved by Mindbase in writing (email from an authorized Mindbase signatory accepted), which may include affiliates or other Customer agencies.

Customer may not make the Services available to the public or any unauthorized third party.

The Services are owned by Mindbase and your use of them must be in accordance with these Terms.

2.8. Support of Downloaded Clients. The Mindbase Wellness App is available in the iOS App Store and Google Play store for download. Authorized Users may install the app on their mobile device(s) or access content through a web browser. Mindbase may update the current version of its client at any time, including for bug fixes, product improvements, and feature updates.

2.9. Export Control. Customer, its employees, and any other Authorized Users will not access or use the Software and Services in any jurisdiction in which the provision of such Software and Services is prohibited under applicable laws or regulations (a “Prohibited Jurisdiction”), and Customer will not provide access to the Software and Services to any government, entity, or individual located in a Prohibited Jurisdiction. Customer represents and warrants that (a) it and its Authorized Users are not named on any U.S. government list of persons prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) it and its Authorized Users are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) Customer will not permit its Authorized Users to access or use the Subscription Software or Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) Customer and its Authorized Users will comply with all applicable laws regarding the transmission of technical data exported from the U.S. and the country in which Customer, its employees, and the Authorized Users are located.

3. Term and Termination.

3.1. Subscription Terms. The duration of Customer’s subscription to the first Subscription Software and any recurring Services ordered under this Subscription Software Agreement (or the first Subscription Software or recurring Service, if multiple are ordered at once) will commence upon delivery of such Subscription Software (and recurring Services, if applicable) and will continue for a twelve (12) month period or such longer period identified in an Ordering Document (the “Initial Subscription Period). Following the Initial Subscription Period, Customer’s subscription to the Subscription Software and any recurring Services will automatically renew for additional twelve (12) month periods (each, a “Renewal Subscription Year”), unless either Party notifies the other Party of its intent not to renew at least thirty (30) days before the conclusion of the then-current Subscription Term. (The Initial Subscription Period and each Renewal Subscription Year will each be referred to herein as a “Subscription Term”.) Mindbase may increase Fees prior to any Renewal Subscription Year. In such case, Mindbase will notify Customer of such proposed increase no later than thirty (30) days prior to commencement of such Renewal Subscription Year. Unless otherwise specified in the Packet Page 84
applicable Ordering Document, if Customer orders any additional Subscription Software or recurring Services under this Subscription Software Agreement during an in-process Subscription Term, the subscription for each new Subscription Software or recurring Service will (a) commence upon delivery of such Subscription Software or Service, and continue until the conclusion of Customer’s then-current Subscription Term (a “Partial Subscription Year”), and (b) automatically renew for Renewal Subscription Years thereafter, unless either Party notifies the other Party of its intent not to renew at least thirty (30) days before the conclusion of the then-current Subscription Term. Thus, unless otherwise specified in the applicable Ordering Document, the Subscription Terms for all Subscription Software and recurring Services hereunder will be synchronized.

3.2. Term. The term of this Subscription Software Agreement (“Term”) will commence on the Effective Date and continue until the expiration or termination of all Subscription Terms under this Subscription Software Agreement, unless this Subscription Software Agreement is earlier terminated in accordance with the terms herein.

3.3. Termination. For Default. Following expiration of the Initial Term, the Term of Service shall automatically renew for successive periods of one (1) year (“Renewal Term”) unless and until either party gives the other party written notice of non-renewal at least 60 days prior to the next scheduled renewal date. Either Party may terminate the Agreement or the applicable Addendum or Ordering Document if the other Party breaches a material obligation under the Agreement and does not cure such breach within thirty (30) days after receipt of notice of the breach or fails to produce a cure plan within such period of time. Notwithstanding the foregoing, Mindbase may terminate the Agreement (or any Addendum or Ordering Documents hereunder), or suspend delivery of Subscription Software or Services, immediately upon notice to Customer if (a) Customer breaches Section 10.3 – Subscription Software License, Section 10.4 – End User Licenses, or Section 10.5 – Customer Restrictions of this Subscription Software Agreement, or any other provision related to Subscription Software license scope or restrictions set forth in an Addendum or Ordering Document, or (b) it determines that Customer’s use of the Subscription Software poses, or may pose, a security or other risk or adverse impact to any Subscription Software, Mindbase, Mindbase’s systems, or any third party (including other Mindbase customers). Customer acknowledges that Mindbase made a considerable investment of resources in the development, marketing, and distribution of the Subscription Software and Documentation, and that Customer’s breach of the Agreement will result in irreparable harm to Mindbase for which monetary damages would be inadequate.

If Customer breaches this Agreement, in addition to termination, Mindbase will be entitled to all available remedies at law or in equity (including immediate injunctive relief).

3.4. Addenda; Ordering Documents. Each Addendum and Ordering Document may be separately terminable as set forth therein.

3.5. Suspension of Services. Mindbase may terminate or suspend any Software and Services under an Ordering Document if Mindbase determines: (a) the related Subscription Software license has expired or has terminated for any reason; (b) Customer fails to make any payments when due; or (c) Customer fails to comply with any of its other obligations or otherwise delays Mindbase’s ability to perform; (d) Mindbase plans to cease offering the applicable Subscription Software or Service to customers.

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3.6. Effect of Termination or Expiration. Upon termination for any reason or expiration of this Subscription Software Agreement, an Addendum, or an Ordering Document, Customer and the Authorized Users will stop use of any Subscription Software and return or destroy (at Mindbase’s option) all Mindbase Confidential Information in their possession or control and, as applicable, provide proof of such destruction. If Customer has any outstanding payment obligations under this Agreement, Mindbase may accelerate and declare all such obligations of Customer immediately due and payable by Customer. Notwithstanding the reason for termination or expiration, Customer must pay Mindbase for Software and Services already delivered. Customer has a duty to mitigate any damages under this Agreement, including in the event of default by Mindbase and Customer’s termination of this Agreement.

4. Payment and Invoicing.

4.1. Fees. Unless otherwise provided in an Ordering Document, Customer will prepay an annual subscription fee for each Subscription Software and recurring Service, and pay any fees specified for other Services provided hereunder in accordance with the applicable Addendum or Ordering Document (the “Fees”), before the commencement of each Subscription Term. For any Partial Subscription Year, the applicable annual subscription Fee will be prorated based on the number of months in the Partial Subscription Year. The annual subscription Fee for Subscription Software and recurring Services may include certain one-time Fees, such as startup fees, license fees, or other fees set forth in an Ordering Document. Mindbase will have the right to suspend the Subscription Software and any recurring Services if Customer fails to make any payments when due. Fees may be changed by Mindbase at any time, except that Mindbase will not change the applicable Fees during a Subscription Term.

4.2. Taxes. The Fees do not include any excise, sales, lease, use, property, or other taxes, assessments, duties, or regulatory charges or contribution requirements (collectively, “Taxes”), all of which will be paid by Customer, except as exempt by law, unless otherwise specified in an Ordering Document. If Mindbase is required to pay any Taxes, Customer will reimburse Mindbase for such Taxes (including any interest and penalties) within thirty (30) days after Customer’s receipt of an invoice therefore. Mindbase will be solely responsible for reporting taxes on its income and net worth.

4.3. Invoicing; Payment. Customer will pay Fees upon the earlier of (a) thirty (30) days prior to the commencement of the applicable Subscription Term, and (b) within thirty (30) days of the applicable invoice date, or as otherwise specified in the applicable Addendum or Ordering Document. Late payments will be subject to interest charges, commencing upon the due date.

Mindbase may invoice electronically via email, and Customer agrees to receive invoices via email. Customer acknowledges and agrees that a purchase order or other notice to proceed is not required for payment for Software and Services.

5. Additional Terms and Conditions

5.1. Except as set forth above, this Agreement is subject to Mindbase’s General Terms and Conditions, available at: https://getmindbase.com/terms-of-service

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To:

From:

Subject:

Date:

Caleb Jenson of Mindbase on behalf of Newark Police Department Tamera Melrose
Quotation for RIMS Software
June 2, 2023
The following is a quotation for RIMS software based upon your recent request.

Item Price
RIMS to Mindbase Link $3,000
Installation Completed via Remote Access and Phone. $1,900 Annual Support and Updates – First Year $450
Annual Support and Updates – Second Year $475
Annual Support and Updates – Third Year $500
TOTAL $6,325
This quotation is for RIMS software only and does not include any hardware or third-party software that may be required to support this interface.

The purpose of this interface will be to link RIMS with the Mindbase public safety mental health software application. RIMS will perform a daily push of call data, along with the personnel involved. including officers/deputies and dispatchers. Please refer to the attached RIMS to Mindbase technical documentation for further information about this interface.

This quote is valid for 90 days and may change thereafter. If you have any questions, please call me at 800-474-2565. Thank you for your continued interest in RIMS.

By signing and accepting this quote, I agree that I have signature authority on behalf of my department and/or organization and this signature will be an electronic representation of my signature for all purposes when I use them on documents, including legally binding contracts – just the same as a wet ink signature on paper.

_______________________________________________________ _________________________ Authorized by: Name and Title Packet Page 87 Date:

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Packet Page 89
RESOLUTION NO. XXXXX

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK APPROVING AGREEMENTS WITH PUBLIC

SAFETY FAMILY COUNSELING GROUP FOR CRITICAL

INCIDENT STRESS MANAGEMENT AND EMOTIONAL

WELLNESS SUPPORT SERVICES SIGMA TACTICAL

WELLNESS FOR CARDIOMETABOLIC HEALTH
ASSESSMENTS; AUTHORIZING SOLE-SOURCE
EXEMPTIONS TO THE CITY’S FORMAL BIDDING

REQUIREMENTS FOR THE AGREEMENT WITH SIGMA

TACTICAL WELLNESS AND FOR AN AGREEMENT WITH

MINDBASE LLC FOR A WELLNESS SUPPORT
APPLICATION; AND APPROVING A BUDGET
APPROPRIATION OF $57,000
WHEREAS, the City of Newark has been committed to enhancing wellness services within the police department that enables staff to improve employee physical and mental health and fitness, aid in employee retention, and assist in recruitment; and WHEREAS, staff is seeking City Council approval to enter into three year agreements with Public Safety Family Counseling Group for critical incident stress management programs, oversight of the peer support team, and training programs and with Sigma Tactical Wellness for cardiometabolic screening, exercise and nutritional modification and medical evaluation; and WHEREAS, Sigma Tactical Wellness is the sole developer and provider of a novel system of cardiometabolic screening for law enforcement; and
WHEREAS, Mindbase, LLC is the sole developer and provider of wellness technology specifically for law enforcement that integrates with computer aided dispatch and the records management system to provide a portal for peer support members to address critical and stressful responses to incidents with law enforcement staff; and
WHEREAS, pursuant to the City of Newark Purchasing Rules and Regulations, Section

10.b, formal bidding procedures shall not apply in the event that the City Council makes certain findings and declarations; and
WHEREAS, the City Council, having reviewed and considered the facts related to the services from Sigma Tactical Wellness and Mindbase, LLC finds and declares as to both vendors, as set forth below, and as required by the Purchasing Rules and Regulations, that:

1. Formal bids would work an incongruity and would be unavailing in affecting the final results since there is one vendor to provide the necessary equipment as required by the City, and therefore there is no comparable competitive product for which a competitive bid could be provided; and

2. Formal bids would not produce any advantage to the City since, as stated above, a formal bid would produce only a single bid from one vendor for the desired product; Packet Page 90
Resolution No. XXXXX 2
or,

3. It is practically impossible to obtain what is required through the formal bidding process, because, as stated above, multiple competitive bids for the desired product cannot be obtained; and
WHEREAS, as described above in this Resolution, the proposed agreements with Sigma Tactical Wellness and Mindbase, LLC are exempt from formal bidding as sole-source exemptions.

NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Newark that the foregoing recitals are true and correct and are hereby incorporated as though fully set forth herein.

BE IT FURTHER RESOLVED that the City Council of the City of Newark hereby authorizes the City Manager to execute an agreement, in a form approved by the City Attorney, with Public Safety Family Counseling Group in the not-to-exceed amount of $75,000 for the procurement of on-call law enforcement crisis response and stabilizations services, law enforcement specific counseling services, oversight of law enforcement peer support team, and training services.

BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby authorize the City Manager to execute an agreement, in a form approved by the City Attorney, with Sigma Tactical Wellness in the not-to-exceed amount of $132,000 for the procurement of a novel system of cardiometabolic screening for law enforcement.

BE IT FURTHER RESOLVED that the City Council of the City of Newark hereby approves a total appropriation of $57,000 for the purchase of wellness services from Public Safety Family Counseling Group, Sigma Tactical Wellness, and Mindbase, LLC for three years which will be funded by the unappropriated fund balance:

From: Description Account Amount
Unappropriated Fund Balance 110.3000 $57,000
To: Description Account Amount
General Contractual Services 110.30.030.300.6221 $57,000 BE IT FURTHER RESOLVED that the City Council of the City of Newark hereby authorizes the City Manager to take all actions necessary to effectuate the intent of this Resolution.

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Item  D. 5.

DATE 06/22/2023
TO Honorable Mayor and City Council Members
FROM Jolie Macias, Captain
SUBJECT    Adopt a resolution to authorize the City Manager to submit a proposal on behalf of the City Council to the Board of State and Community Corrections for the Organized Retail Theft Prevention Grant Program
SUMMARY AND RECOMMENDATION
The California Board of State and Community Corrections (BSCC) Organized Retail Theft Prevention Grant Program is accepting proposals for grant funding that will assist the City in addressing the increase in catalytic converter theft. The grant program requires that the City Council submit the application to BSCC. Staff recommends that the City Council adopt a resolution to authorize the City Manager to serve as Authorized Officer to submit a proposal on behalf of the City Council to the State of California Board of State and Community Corrections for the Organized Retail Theft Prevention Grant Program.

BACKGROUND
The State Budget Act of 2022 (Senate Bill 154, Chapter 43, Statutes of 2022) established the Organized Retail Theft Prevention Grant Program. Funding is available to California city police departments, sheriff departments, and probation departments to support local law enforcement agencies in preventing and responding to organized retail theft, motor vehicle or motor vehicle accessory theft, or cargo theft. Proposals are due to BSCC by July 7, 2023. The Organized Retail Theft Prevention Grant Program Proposal Instruction Packet is attached for reference.

DISCUSSION/ANALYSIS
Permissible uses of grant funds include, but are not limited to, purchase of technology or other equipment to assist with strategies for preventing or responding to crime.

These funds shall be used to supplement and not supplant existing funds for these activities. Organized Retail Theft Prevention Grant Program funds shall be used to support new program activities or to augment or expand existing program activities but shall not be used to replace existing funds. The proposal will include data demonstrating the nature and scale of both motor vehicle theft and motor vehicle accessory theft, specifically focusing on catalytic converter theft, within the City of Newark. As of the writing of this report, the City has received 148 reports of catalytic converter thefts, which indicates a continuance of a trend of increasing catalytic converter thefts each of the last three years.

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The proposal will include clearly defined and measurable objectives for this grant. It will also include a description of how the funds will be used to achieve the stated objectives and will provide a discussion of how research and evidence will be used to indicate that the proposed activities would likely achieve the intended objectives.

FISCAL IMPACT
There is $242,250,000 appropriated in the FY2023-2024 and 2024-2025 State Budget Acts for this program. Medium Scope and Large Scope Projects are available. Medium Scope grant awards are up to $6,125,000, with total available funding of $85,750,000.

Large Scope grant awards are up to $15,650,000, with a total available funding of $156,500,000.  Proposals selected for funding will be under agreement from October 1, 2023, through December 31, 2026. An additional six months will be included in the term of the agreement for finalizing and submitting a required evaluation report and financial audit.

There is no immediate fiscal impact with associated with this item. If approved to move forward with this action, the department will return to City Council at a later date for grant award acceptance with details of the grant agreement, audits, reporting, and any budget impacts upon acceptance.

REVIEW AND APPROVAL
Prepared by - Jolie Macias, Police Captain
Reviewed by - Gina Anderson, Chief of Police
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - Lenka Hovorka, Assistant City Manager
Attachments
Resolution BSCC Grant
Grant Proposal Instructions
Packet Page 93
RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING THE CITY MANAGER TO SUBMIT

A PROPOSAL ON BEHALF OF THE CITY COUNCIL TO THE

STATE OF CALIFORNIA BOARD OF STATE AND

COMMUNITY CORRECTIONS FOR THE ORGANIZED

RETAIL THEFT PREVENTION PROGRAM
WHEREAS, the City of Newark is experiencing a trend of increasing catalytic converter thefts, like other area cities in the Bay Area; and
WHEREAS, the City of Newark for the Newark Police Department desires to participate in the Organized Retail Theft Prevention Grant Program funded through the State Budget Act and administered by the Board of State and Community Corrections (hereafter referred to as the BSCC) to address vehicle and car parts theft.

NOW, THEREFORE, BE IT RESOLVED that the City Manager be authorized on behalf of the City Council to submit the grant proposal for this funding and sign the Grant Agreement with the BSCC, including and amendments thereof.

BE IT FURTHER RESOLVED that grant funds received hereunder shall not be used to supplant expenditures controlled by this body.

BE IT FURTHER RESOLVED that the City of Newark agrees to abide by the terms and conditions of the Grant Agreement as set forth by the BSCC.

BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby authorize the City Manager to take all actions necessary to effectuate the intent of this Resolution.

Packet Page 94
Organized Retail Theft Prevention
Grant Program
Release Date: April 14, 2023
Letter of Intent due: May 15, 2023
Proposals Due: July 7, 2023
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Table of Contents | Page 1
Part I: Grant Information
Background Information................................................................................................. 1 Contact Information........................................................................................................ 1 Proposal Due Date and Submission Instructions........................................................... 1 Virtual Bidders’ Conference ........................................................................................... 2 Notice of Intent to Apply................................................................................................. 2 Scoring Panel ................................................................................................................ 3 Description of the Grant................................................................................................. 3 Funding Information..................................................................................................... 10 Data Collection, Reporting, and Evaluation Requirements .......................................... 12 General Grant Requirements....................................................................................... 13 Overview of the RFP Process...................................................................................... 17 Part II: Proposal Instructions
Proposal Narrative Instructions.................................................................................... 20 Proposal Budget Instructions ....................................................................................... 24 Part III: Appendixes
Appendix A: Senate Bill 154 ........................................................................................ 27 Appendix B: Project Work Plan.................................................................................... 30 Appendix C: Glossary of Terms ................................................................................... 32 Appendix D: Grantee Assurance for Non-Governmental Organizations ...................... 35 Appendix E: Local Impact Letter(s).............................................................................. 37 Appendix F: Letter(s) of Commitment .......................................................................... 38 Appendix G: Certification of Compliance with BSCC Polices on Debarment, Fraud, Theft and Embezzlement ...................................................................................................... 39 Appendix H: Governing Board Resolution ................................................................... 40 Table of Contents
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Proposal Instruction Packet | Page 1
Background Information
The State Budget Act of 2022 (Senate Bill 154, Chapter 43, Statutes of 2022) established the Organized Retail Theft Prevention Grant Program. Funding is available to California city police departments, sheriff departments, and probation departments to support local law enforcement agencies in preventing and responding to organized retail theft, motor vehicle or motor vehicle accessory theft, or cargo theft.

Contact Information
This Request for Proposal (RFP) Instruction Packet provides the necessary information to prepare a proposal to the Board of State and Community Corrections (BSCC) for the Organized Retail Theft Prevention Grant Program.

The BSCC staff cannot assist the applicant or its partners with the preparation of the proposal. Any questions concerning this RFP, the proposal process, or the submission process must be submitted by email to: [email protected].

The BSCC will accept and respond to written questions until June 12, 2023. A frequently asked questions and answers (FAQs) document will be posted to the BSCC website and periodically updated through June 16, 2023.

Proposal Due Date and Submission Instructions
Organized Retail Theft Prevention Grant Program proposals must be received by 5:00 P.M. (PST) on Friday, July 7, 2023.

Submission Instructions
Applications for the Organized Retail Theft Prevention Grant Program must be submitted through the BSCC-Submittable Application portal. The BSCC-Submittable Application portal, Organized Retail Theft Prevention Grant Program Application, and all required attachments are available on the BSCC website.

To apply for this funding opportunity, applicants must create a free Submittable account OR use an existing Submittable account when prompted. After an account is established, applicants may proceed with the application process. As part of the submission process, applicants will be required to download mandatory forms that must be completed, signed, and uploaded to the BSCC-Submittable Application portal. All required documents are available on the BSCC website.

The BSCC-Submittable Application will not allow submissions after 5:00 p.m. (PST) on July 7, 2023. Please allow sufficient time to begin and submit your application. If the BSCC does not receive a submission by 5:00 p.m. (PST) on July 7, 2023, the proposal will not be considered for funding. Applicants are strongly advised to submit proposals well in advance of the due date and time to avoid disqualification.

PART I: GRANT INFORMATION
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Proposal Instruction Packet | Page 2
Once you have successfully submitted your application and all required attachments, you will receive an email acknowledging your application has been received. If you experience challenges with your submission, please email the BSCC at: [email protected]. Be advised that applicants contacting the BSCC at the close of the submission due date/time may not receive timely responses. Please allow sufficient time for BSCC staff to provide technical assistance.

Virtual Bidders’ Conference
Prospective applicants are invited to attend a virtual Bidders’ Conference. Attendance at the virtual Bidders’ Conference is not a requirement. The purpose of this Bidders’ Conference is to answer technical questions from prospective bidders (applicants) and provide clarity on RFP instructions. Topics may include, but are not limited to, proposal submission instructions, eligibility, funding, and an overview of the rating factors. Bidders’ Conference details are listed below:

Organized Retail Theft Prevention Grant Program
Virtual Bidders’ Conference
Thursday, May 11, 2023, at 10:00 A.M.

Public access options for this meeting include:

Join by Zoom:
• https://us02web.zoom.us/j/86328175681?pwd=M0hTVVJ2SCtTbWFRUWxiW mtXRVRLQT09
• Meeting ID: 863 2817 5681| Passcode: 959280
Call In:
• 1-669-900-9128
• Meeting ID: 863 2817 5681| Passcode: 959280
Notice of Intent to Apply
Prospective applicants are asked (but not required) to submit a non-binding letter indicating their intent to apply. These letters aid the BSCC in planning for the proposal evaluation process. Please submit your letter in Microsoft Word or as a PDF.

There is no formal template for the letter, but it should include the following information:

1. Name of the applicant entity;

2. Name of a contact person; and

3. A brief statement indicating the applicant’s intent to submit a proposal.

Failure to submit a Letter of Intent is not grounds for disqualification. Prospective applicants that submit a Letter of Intent and decide later not to apply will not be penalized.

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Proposal Instruction Packet | Page 3
Please email your non-binding Letter of Intent to Apply by Monday, May 15, 2023. Please identify the email subject line as “ORT Letter of Intent” and submit the letter to:

[email protected].

Scoring Panel
To ensure successful program design and implementation, the BSCC uses Executive Steering Committees (ESC) and Scoring Panels to inform decision making related to the Board’s programs. The BSCC’s ESCs and Scoring Panels are composed of subject matter experts, community partners, and interested parties representing both the public and private sectors. The BSCC makes every attempt to include diverse representation on its ESCs and Scoring Panels, in breadth of experience, geography and demographics.

The Organized Retail Theft Prevention Grant Program will convene a Scoring Panel. The Scoring Panel will read and rate submissions and develop funding recommendations for the Board. The Board may approve, reject, or revise those recommendations. Members of the Scoring Panel are not paid for their time but are reimbursed for travel expenses incurred to attend meetings. If the BSCC is unable to convene a full Scoring Panel, BSCC staff may rate proposals. Please check the BSCC website for updated information on the Scoring Panel.

Conflicts of Interest
Existing law prohibits any grantee, subgrantee, partner, or like party participating on the Organized Retail Theft Prevention Grant Program Scoring Panel from receiving funds from the grants awarded under this RFP. Applicants who are awarded grants under this RFP are responsible for reviewing the Scoring Panel membership roster and ensuring that no grant dollars are passed through to any entity represented by any member of the Scoring Panel.

Description of the Grant
The Organized Retail Theft Prevention Grant Program was established in Senate Bill 154 (SB 154) (Appendix A). Per SB 154:

Grant funds shall be used to support local law enforcement agencies in preventing and responding to organized retail theft, motor vehicle or motor vehicle accessory theft, or cargo theft. Permissible uses of grant funds include, but are not limited to, purchase of technology or other equipment to help deter strategies for preventing or responding to crime. These funds shall be used to supplement and not supplant existing funds for these activities.

All entities receiving grant funding shall be required to comply with all applicable privacy laws and regulations.

Grants shall be made on a competitive basis to localities that can demonstrate, using data, that organized retail theft, motor vehicle or motor Packet Page 100
Proposal Instruction Packet | Page 4
vehicle accessory theft, or cargo theft pose a significant problem in their jurisdictions.

An applicant shall submit a proposal, in a form prescribed by the Board of State and Community Corrections, which shall include, but not be limited to, the following:
a) Data demonstrating the nature and scale of the specific crime problem, which the applicant proposes to address using grant funds. b) Clearly defined and measurable objectives for this grant. c) A description of how the applicant proposes to use the grant funds to achieve the stated objectives, including any plans to coordinate or collaborate with other entities such as public agencies, community organizations, or retailers.
d) A discussion of research or other evidence indicating that the proposed activities would likely achieve the intended objectives. e) A discussion of how the applicant plans to sustain the proposed activities after grant funds expire or an explanation of why proposed activities are limited term in nature.
f) A description of existing or proposed policies to limit racial bias in utilizing these funds.
g) If proposing an investment in surveillance technologies, a description of existing or proposed policies to govern the use of those technologies, including how the applicant will comply with applicable privacy laws and secure any data collected or stored.

The Board of State and Community Corrections shall post to its public website all applications received.

In awarding grants, the Board of State and Community Corrections shall give preference to applicants whose grant proposals demonstrate the greatest need for additional resources and likelihood of success in reducing organized retail theft, motor vehicle or motor vehicle accessory theft, and cargo theft.

In support of these efforts, each applicant will develop a Project Work Plan that identifies measurable project goals, objectives, and commensurate timelines (Appendix B). Please reference the Glossary of Terms (Appendix C) to view key definitions for this RFP.

Eligibility to Apply
Eligible applicants are California police departments, sheriff departments, and probation departments.

Applications must be submitted by the City Council, Board of Supervisors, or the Chief County Administrative Officer. Eligible applicants may not submit more than one (1) proposal for funding consideration. However, two (2) or more applicants may submit a Packet Page 101
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collaborative proposal (e.g., multi-agency proposal). The agencies and jurisdictions comprising the collaborative application are not required to be contiguous.

Lead Public Agency
All applicants are required to designate a Lead Public Agency (LPA) to serve as the coordinator for all grant activities. The LPA is a governmental agency with local authority within the applicant city or county. The applicant may choose to fill the role of LPA itself or it may designate a department, agency, or office under its jurisdiction to serve as the LPA. The role of the LPA is to coordinate with local government agencies and nongovernmental organizations to ensure successful implementation of the grant program.

The LPA is responsible for data collection and management, invoices, meeting coordination (virtual and/or in-person) and will serve as the primary point of contact with the BSCC.

Eligible Activities
Applicants must propose activities, strategies, or programs that address a minimum of one (1) of the following Program Purpose Areas (PPAs):
• PPA 1: Organized Retail Theft
• PPA 2: Motor Vehicle or Motor Vehicle Accessory Theft • PPA 3: Cargo Theft
Applicants may implement new activities, strategies, or programs, OR expand existing activities, strategies, or programs (without supplanting funds - see supplanting definition in the General Grant Requirements).

Organized Retail Theft Prevention Grant - Program Purpose Areas (PPA) PPA 1: Organized Retail Theft
For the purposes of the PPA, the definition of organized retail theft is adopted from Penal Code section 490.4.

Organized Retail Theft is defined as acting in concert with one or more persons to steal merchandise from one or more merchant’s premises or online marketplace with the intent to sell, exchange, or return the merchandise for value, acting in concert with 2 or more persons to receive, purchase, or possess merchandise knowing or believing it to have been stolen, acting as the agent of another individual or group of individuals to steal merchandise from one or more merchant’s premises or online marketplaces as part of a plan to commit theft, or recruiting, coordinating, organizing, supervising, directing, managing, or financing another to undertake acts of theft.

All proposed activities, strategies, or programs must have a link to the Organized Retail Theft Prevention Grant Program as described in the authorizing legislation and this RFP.

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For the purposes of this PPA, eligible activities, strategies, or programs, include but are not limited to:
• Programs that promote collaboration and coordination between law enforcement and retailers to reduce organized retail theft.
• Programs that promote collaboration and coordination between law enforcement and District Attorney Offices to prosecute organized retail theft. • Development of organized retail theft policies and procedures, memorandum of understanding (MOU), and/or formal agreements between law enforcement and retailers.
• Deployment of law enforcement officers and taskforces to combat organized retail theft.
• Use of proactive approaches to minimize organized retail theft risks (e.g., anti-theft devices, use of cameras and security systems).
• Use of databases, equipment, software, and technology to combat organized retail theft.

PPA 2: Motor Vehicle or Motor Vehicle Accessory Theft
For purposes of this PPA, the definition of motor vehicle theft shall have the same meaning as California Vehicle Code section 10851, which defines vehicle theft or the unlawful taking of a vehicle as when any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing. Motor vehicle theft may also include violations of Penal Code section 487, subdivision (d)(1).

Motor vehicle accessory theft may include the theft of any part of the vehicle or accessory thereof, including, but not limited to, violations of Penal Code sections 487 and 488.

For the purposes of this PPA, eligible activities, strategies, or programs, include but are not limited to:
• Investigations of motor vehicle and motor vehicle accessory theft. • Motor vehicle theft prevention public awareness campaigns. • Programs that deter motor vehicle or motor vehicle accessory theft. • Use of databases, equipment, software, and technology to track stolen motor vehicles and/or motor vehicle accessories to combat organized retail theft.

PPA 3: Cargo Theft
For purposes of this PPA, cargo theft shall mean the unlawful taking of any cargo including, but not limited to, goods, chattels, money, or baggage that constitutes, in whole or in part, a commercial shipment of freight moving in commerce, from any pipeline system, railroad car, motor truck, or other vehicle, or from any tank or storage facility, station house, platform, or depot, or from any vessel or wharf, or from any aircraft, air terminal, airport, aircraft terminal or air navigation facility, or from any intermodal container, intermodal chassis, trailer, container freight station, warehouse, freight distribution facility, or freight consolidation facility. For purposes of this definition, cargo shall be deemed as moving in commerce at all points between the point of origin and the Packet Page 103
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final destination, regardless of any temporary stop while awaiting transshipment or otherwise. Cargo theft shall also include violations of Penal Code section 487h.

For the purposes of this PPA, eligible activities, strategies, or programs, include but are not limited to:
• Investigations of cargo theft.
• Programs that promote collaboration and coordination between law enforcement and commercial cargo operators (trains, truck, busses, etc.) to reduce organized cargo theft.
• Programs that promote collaboration and coordination between commercial cargo operators and District Attorney Offices to prosecute organized cargo theft. • Use of databases, equipment, software, and technology to prevent and track stolen cargo.

Grant Period
Proposals selected for funding will be under agreement from October 1, 2023 to June 1, 2027 with the BSCC. The grant agreement service period covers October 1, 2023 and ends on December 31, 2026. However, an additional six (6) months (January 1, 2027, to June 1, 2027) will be included in the term of the grant agreement for the sole purposes of finalizing and submitting a required Local Evaluation Report and finalizing and submitting a required financial audit.

A visual illustration of the grant agreement period is provided below:

October 1, 2023 to June 1, 2027
Implementation Service Delivery Service Delivery Service Delivery Data Evaluation/ Closeout
Up to 6-Months Year 1 Year 2 Year 3 Up to 6-Months
October 1, 2023 -
April 1, 2024
Start Date -
December 31, 2024
January 1, 2025 -
December 31, 2025
January 1, 2026 -
December 31, 2026
January 1, 2027, -
June 1, 2027
Implementation
period for hiring,
procurement, and
other activities that
facilitate a timely
start.

Grantees who do not
need the full
implementation
period can begin
service delivery at
any time once under
contract.

Service delivery and data collectionService delivery and data collectionService delivery and data collection Data analysis and
evaluation period to
analyze data
gathered during the
service delivery
period.

Only expenses
incurred for
evaluation efforts
may be incurred in
this period.

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Criteria for Non-Governmental Organizations
Applicants for the Organized Retail Theft Prevention Grant Program may elect to partner, contract, or establish agreements with non-governmental organizations (NGOs)1 in the implementation of their program. All NGOs must adhere to terms described on the following page.

All applicants must complete, sign, and submit the BSCC Grantee Assurance for NonGovernmental Organizations (Appendix D). Once under contract, grantees must submit an updated Grantee Assurance for Non-Governmental Organizations throughout the life of the grant agreement for any additional NGOs that receive funds through subcontracts after awards are made. The BSCC will not reimburse for costs incurred by NGOs that do not meet the BSCC’s requirements.
1 For the purposes of this RFP, NGOs include nonprofit and for-profit community-based organizations, faith-based organizations, evaluators (except government institutions such as universities), grant management companies, and any other non-governmental agency or individual.

Eligibility Criteria for Non-Governmental Organizations Providing Services with BSCC Grant Funds
Any non-governmental organization that receives Organized Retail Theft Prevention Grant Program funds (as either a subgrantee or subcontractor) must:
• Have been duly organized, in existence, and in good standing for at least six (6) months prior to the effective date of its fiscal agreement with the BSCC or with the Organized Retail Theft Prevention Grant Program grantee; o Non-governmental entities that have recently reorganized or have merged with other qualified non-governmental entities that were in existence prior to the six (6) month date are also eligible, provided all necessary agreements have been executed and filed with the California Secretary of State prior to the start date of the grant agreement with the BSCC or the start date of the grantee subcontractor fiscal agreement; • Be registered with the California Secretary of State’s Office, if applicable; • Have a valid Employer Identification Number (EIN) or Taxpayer ID (if sole proprietorship);
• Have a valid business license, if applicable;
• Have no outstanding civil judgments or liens;
• Have any other state or local licenses or certifications necessary to provide the services requested (e.g., facility licensing by the Department of Health Care Services), if applicable; and
• Have a physical address within California. (An agent for service of process with a California address is insufficient.)
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Local Impacts
The Organized Retail Theft Prevention Grant Program encourages collaboration, communication, and innovation to combat organized retail theft. In supporting this approach, proposed projects may have impacts on retailers and local government agencies that prevent projects from operating as intended (e.g., increased law enforcement presence in retail spaces, increased referrals to the District Attorney’s Office, overlapping or duplicative public awareness campaigns, etc.) As a part of the application, each Lead Agency will be required to acknowledge any anticipated impacts from the implementation of the proposed project (Attachment E).

Written Agreement from Key Partners
If the success of the applicant’s proposed activity, strategy, or program relies on the participation of an outside agency or organization (i.e., an entity other than the applicant or LPA), the applicant must include a Letter of Commitment. Letter(s) of Commitment should reflect that the outside agency or organization is aware of the proposed project, is committed to ensuring the success of the project, their role, and agrees to participate.

Examples of key roles played by outside entities could include the following:
• Data Collection Partnerships
• Referral Sources
• Service Delivery Location
A Letter of Commitment must include the name of the outside entity, be signed by the executive officer, department head, or other authorized representative, and be dated within three (3) months of the proposal submission to the BSCC. Outdated letters or letters that speak to a partnership or grant activities outside of the activities listed in this proposal, will not be accepted. See Appendix F for a sample Letter of Commitment.

A Letter of Commitment is not required if the applicant has determined that an outside agency or organization is not critical to the launch or ongoing implementation of the proposed program.

Policies Limiting Racial Bias
Applicants must provide a description of existing or proposed policies to limit racial bias when utilizing these funds. Applicants will be required to upload existing or proposed policies in a Microsoft Word Document or PDF via the BSCC-Submittable Application portal. (Appendix A, Provision 5(f).)
Policies on Surveillance Technology
Applicants proposing an investment in surveillance technologies must provide a description of existing or proposed policies to govern the use of those technologies, including how the applicant will comply with applicable privacy laws and secure any data collected or stored. Applicants will be required to upload existing or proposed policies in a Microsoft Word Document or PDF via the BSCC-Submittable Application portal. (Appendix A, Provision 5(g).)
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Organizational Capacity and Coordination
Applicants will be rated, in part, on how well they demonstrate they have the experience, a staffing plan, and any partnerships necessary to implement the proposed strategy. If an applicant is unable to identify staff and/or subcontractors until after the grant is awarded, the applicant should explain, at a minimum, the process and criteria by which they will select staff and/or subcontractors after the award. Distinct from administrative staff and partners, applicants must also demonstrate how they plan to ensure that the staff who deliver the services have backgrounds and experience that are relevant to the proposed strategy and/or target population.

Funding Information
This RFP makes $242,250,0002 available competitively to city police, county sheriffs’ departments, and probation departments to support local law enforcement agencies in preventing and responding to organized retail theft, motor vehicle or motor vehicle accessory theft, or cargo theft.

Funding Categories
Recognizing that applicants have different capacities, resources, and needs, there are two categories within which applicants will compete. An applicant may apply in either the Medium or Large Scope Category. This means Medium Scope Projects will compete against other Medium Scope Projects and Large Scope Projects will compete against other Large Scope Projects for funding.

The maximum an applicant may apply for is up to $6,125,000 in the Medium Scope category OR up to $15,650,000 in the Large Scope category. Applicants may apply for any dollar amount up to and including the maximum grant amount identified in each category. An illustration of the funding categories, maximum grant award, and total available funding by category is provided below:

Funding Categories Maximum Grant Award Total Available Funding Medium Scope Up to $6,125,000 $85,750,000
Large Scope Up to $15,650,000 $156,500,000
Total Funding Available for Competitive Grants: $242,250,000 *NOTE: Funding must last for the entirety of the grant (October 1, 2023 to June 1, 2027).* Multi-Agency Partnerships
Applicants may apply for funding as part of a multi-agency partnership (two or more agencies). The agencies and jurisdictions comprising the collaborative application are not required to be contiguous. One (1) Lead Public Agency must be identified on behalf of the partnership.
2 Provided funding is appropriated in the FY 2023-2024 and 2024-25 State Budget Acts.

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Multi-agency partnerships (Medium Scope or Large Scope) may apply for up to the maximum grant award in that category multiplied by the number of partnering applicants.

For Example:
• Four (4) eligible applicants in the Medium Scope category may submit one application for up to $24,500,000
o $6,125,000 (Medium Scope Max) x 4 (# of Agencies) = $24,500,000 • Two (2) eligible applicants in the Large Scope category may submit one application for up to $31,300,000
o $15,650,000 (Large Scope Max x 2 (# of Agencies) = $31,300,000 Funding Decisions
Applicants will compete for funds within the Medium or Large Scope Category. Proposals will be evaluated, scored, and a ranked list of all scored proposals will be generated. The BSCC will move down the ranked lists to fund all qualified applicants in each of the two funding categories until all funds in that category are exhausted. Applicants that fall at the cut-off point may be offered a partial award if there are not sufficient remaining funds to make a full award.

If funding remains in one or more categories, the following will occur:
• Funds remaining in the Medium Scope Category after all qualified applicants in that category have been fully funded, will be used to fund any additional qualified applicants in the Large Scope Category.
• Funds remaining in the Large Scope Category after all qualified applicants in that category have been fully funded, will be used to fund any additional qualified applicants in the Medium Scope Category.

If an applicant or grantee relinquishes an award, BSCC has authority to offer that award to the next qualifying applicant(s) on the ranked list.

Eligible Funding Activities
Organized Retail Theft Prevention Grant Program funds must address at least one (1) Program Purpose Areas (PPAs) as identified in the Eligible Activities section. To support local law enforcement agencies in preventing and responding to organized retail theft, motor vehicle or motor vehicle accessory theft, or cargo theft, eligible expenses for this RFP include, but are not limited to, the following:
• Automated License Plate Readers
• Cameras
• Case Management Systems
• Computers/Laptops/Tablets
• Databases
• Investigative Software
• Online and Print Advertising
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• RFI Tracker/Tracking Devices
• Routers/Modems/Hotspots
• Staff expenses, including overtime
• Vehicles
Please note, the above list is not intended to be exhaustive. All proposed expenses must have a link to the Organized Retail Theft Prevention Grant Program as described in the authorizing legislation and this RFP.

Match Requirement
No match is required for the Organized Retail Theft Prevention Grant Program.

Data Collection, Reporting, and Evaluation Requirements Projects selected for funding will be required to submit a Local Evaluation Plan and Local Evaluation Report. Applicants are encouraged, but not required, to use outside evaluators to ensure objective and impartial evaluations. This may include, but is not limited to, community colleges, universities, and research organizations.

Required Set-Aside for Evaluation Efforts
Grantees are required to set aside at least $75,000 but not more than 5% percent of the total grant award for data collection and evaluation efforts, including data collection for the Quarterly Progress Reports and statewide evaluation (see below) and the development of the Local Evaluation Plan and Local Evaluation Report.

Local Evaluation Plan
The purpose of the Local Evaluation Plan is to ensure that projects funded by the BSCC can be evaluated. Grantees will be expected to include a detailed description of how the applicant will assess the effectiveness of the proposed program in relationship to each of its goals and objectives identified in the proposal. A relationship between the goals and objectives identified in the proposal should be apparent in the Local Evaluation Plan.

The Local Evaluation Plan should describe the evaluation design or model that will be used to evaluate the effectiveness of the project component(s), with the project goals and the project objectives clearly stated. Applicants should also address process and outcome evaluations. Once submitted, any modifications to the Local Evaluation Plan must be approved in advance by the BSCC. More detailed instructions on the Local Evaluation Plan will be made available to successful applicants. The Local Evaluation Plan is due no later than April 1, 2024.

Local Evaluation Report
Following project completion, grantees are required to complete a Local Evaluation Report. The Local Evaluation Report must be in a format prescribed by the BSCC. The purpose of the Local Evaluation Report is to determine whether the overall project (including each individual component) was effective in meeting the goals laid out in the Local Evaluation Plan.

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To do this, the grantee must assess and document the effectiveness of the activities that were implemented within each individual project component. These activities should have been identified in the previously submitted Local Evaluation Plan. More detailed instructions on the Local Evaluation Report will be made available to successful applicants. The Local Evaluation Report is due no later than June 1, 2027.

Statewide Evaluation
BSCC Research will conduct a statewide evaluation of the impact of the initiatives supported by the grant funding including the outcomes and objectives that were achieved.

The evaluator will: develop the research methodology for the statewide evaluation; design and develop instruments for collecting and evaluating data from grantees; provide ongoing technical assistance to grantees for data collection and evaluation activities; compile, screen and analyze data obtained from grantees; and develop a final report on the impact of the program. As a condition of award, grantees agree to collect data requested for the evaluation (this may include standardized Quarterly Progress Report format with specified baseline, output, and/or outcome measures) and fully cooperate and share information within timelines set for the evaluation.

General Grant Requirements
Audit Requirements
Grantees are required to provide the BSCC with a financial audit that covers the service delivery period of the grant (October 1, 2023 - December 31, 2026). The audit report will be due no later than June 1, 2027. The financial audit shall be performed by a Certified Public Accountant or a participating county or city auditor that is organizationally independent from the participating county or city’s project financial management functions. Expenses for the final audit may be reimbursed for actual costs up to $25,000.

In addition, the BSCC reserves the right to call for a program or financial audit at any time between the execution of the grant agreement and three (3) years following the end of the grant period. The Department of General Services, the California State Auditor, the Department of Finance, or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this grant.

BSSC Grant Agreement
Applicants approved for funding by the BSCC Board are required to enter into a Grant Agreement with the BSCC. Grantees must agree to comply with all terms and conditions of the Grant Agreement. A sample Grant Agreement for the Organized Retail Theft Prevention Grant Program is available on the BSCC website.

The Grant Agreement start date is expected to be October 1, 2023. Grant Agreements are considered fully executed only after they are signed by both the grantee and the BSCC and the BSCC is in receipt of all required attachments including documentation of signing authority. Work, services, and encumbrances cannot begin prior to the Grant Agreement start date. Any work, services and encumbrances that occur after the start Packet Page 110
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date but prior to Grant Agreement execution may not be reimbursed. Grantees and all subgrantees are responsible for maintaining their Grant Agreement, all invoices, records, and relevant documentation for the life of the grant cycle plus three (3) years after the final payment under the contract.

Debarment, Fraud, Theft or Embezzlement
It is the policy of the BSCC to protect grant funds from unreasonable risks of fraudulent, criminal, or other improper use. As such, the Board will not enter into contracts or provide reimbursement to applicants that have been:

1. Debarred by any federal, state, or local government entities during the period of debarment; or

2. Convicted of fraud, theft, or embezzlement of federal, state, or local government grant funds for a period of three years following conviction.

Furthermore, the BSCC requires grant recipients to provide an assurance that there has been no applicable debarment, disqualification, suspension, or removal from a federal, state, or local grant program on the part of the grantee at the time of application and that the grantee will immediately notify the BSCC should such debarment or conviction occur during the term of the Grant contract.

BSCC also requires that all grant recipients include, as a condition of award to a subgrantee or subcontractor, a requirement that the subgrantee or subcontractor will provide the same assurances to the grant recipient. If a grant recipient wishes to consider a subgrantee or subcontractor that has been debarred or convicted, the grant recipient must submit a written request for exception to the BSCC along with supporting documentation. All applicants must complete an assurance certifying they are compliant with the BSCC’s policies on debarment, fraud, theft, and embezzlement (Appendix G).

Governing Board Resolution
Successful applicants will be required to submit a Resolution from their Governing Board before the grant award can be finalized and funds awarded. A signed resolution is not required at the time of proposal submission, but applicants are advised that no financial invoices will be processed for reimbursement until the Governing Board Resolution has been received by the BSCC. A sample Governing Board Resolution can be found in (Appendix H).

Grantee Orientation
Following the start of the grant period, BSCC staff will conduct a Virtual Grantee Orientation (October 2023, date to be determined). The purpose of this mandatory session is to review the program requirements, invoicing, and budget modification processes, data collection and reporting requirements, as well as other grant management and monitoring activities. Typically, the Project Director, Financial Officer, and Day-to-Day Contact must attend. Grantees are also strongly encouraged to include the individual tasked with Data Collection and Evaluation. Award recipients will be provided additional details regarding the Grantee Orientation in October 2023.

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Invoices
Disbursement of grant funds occurs on a reimbursement basis for costs incurred during a reporting period. The State Controller’s Office (SCO) will issue the warrant (check) to the individual designated on the Applicant Information Form as the Financial Officer for the grant. Grantees must submit invoices to the BSCC on either a monthly or quarterly basis through an online process no later than 45 days following the end of the invoicing period. Grantees will make their choice between monthly or quarterly invoicing prior to grant agreement execution.

Grantees must maintain adequate supporting documentation for all costs claimed on invoices. BSCC staff will conduct a desk review, which requires grantees to submit electronic documentation to support all grant funds claimed during the invoicing period.

In addition, BSCC staff may conduct on-site monitoring visits that include a review of documentation maintained as substantiation for project expenditures with grant funds.

Additional information about invoicing can be found in the BSCC Grant Administration Guide.

Monitoring
The BSCC staff will monitor each project to assess whether the project is in compliance with grant requirements and making progress toward grant objectives. As needed, monitoring visits may also occur to provide technical assistance on fiscal, programmatic, evaluative, and administrative requirements. For your reference, a Comprehensive Monitoring Visit checklist can be found on the Corrections Planning and Grants Program website.

Quarterly Progress Reports
Grant award recipients are required to submit quarterly progress reports to the BSCC.

Progress reports are a critical element in BSCC’s monitoring and oversight process.

Grantees who are unable to demonstrate that they are making sufficient progress toward project goals and objectives and that funds are being spent in accordance with the Grant Agreement could be subject to the withholding of funds. Once grants are awarded, BSCC will work with grantees to create custom progress reports.

Supplanting
Supplanting is the deliberate reduction in the amount of federal, state, or local funds being appropriated to an existing program or activity because grant funds have been awarded for the same purposes. Supplanting is strictly prohibited for all BSCC grants. Organized Retail Theft Prevention Grant Program funds shall be used to support new program activities or to augment or expand existing program activities but shall not be used to replace existing funds. It is the responsibility of the grantee to ensure that supplanting does not occur. The grantee must keep clear and detailed financial records to show that grant funds are used only for allowable costs and activities.

Travel
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Travel is usually warranted when personal contact by project staff is the most appropriate method of conducting project-related business. Travel to and from training conferences may also be allowed. The most economical method of transportation, in terms of direct expenses to the project and the employee's time away from the project, must be used.

Projects are required to include sufficient per diem and travel allocations for project related personnel, as outlined in the Grant Award, to attend any mandated BSCC training conferences or workshops outlined in the terms of the program. • Units of Government
Units of government may follow either their own written travel and per diem policy or the State’s policy. Units of government that plan to use cars from a state, county, city, district carpool, or garage may budget either the mileage rate established by the carpool or garage, or the state mileage rate, not to exceed the loaning agency rate.
• Non-Governmental Organizations (NGOs)
An NGO receiving BSCC funds must use the California State travel and per diem policy, unless the Grantee’s written travel policy is more restrictive than the State's, in which case it must be used. Reimbursement is allowed for the cost of commercial carrier fares, parking, bridge, and road tolls, as well as necessary taxi, bus, and streetcar fares.
• Out-of-State Travel
Out-of-state travel is restricted and only allowed in exceptional situations. Grantees must receive written BSCC approval prior to incurring expenses for out-of-state travel. Even if previously authorized in the Grant Award, Grantees must submit to the BSCC a separate formal request (on Grantee letterhead) for approval. Out-ofstate travel requests must include a detailed justification and budget information.

In addition, California prohibits travel, except under specified circumstances, to states that have been found by the California Attorney General to have discriminatory laws. The BSCC will not reimburse for travel to these states unless the travel meets a specific exception under Government Code section 11139.8, subdivision (c). For additional information, please see: https://oag.ca.gov/ab1887.

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Overview of the RFP Process
Confirmation of Receipt of Proposal
Upon submission of a proposal, applicants will receive a confirmation email from the BSCC stating that the proposal has been received.

Disqualification
Disqualification - PLEASE REVIEW CAREFULLY
The following will result in an automatic disqualification:
• Submission is not received by 5:00 P.M. (PST) on Friday, July 7, 2023 • Applicant does not meet the Eligibility Criteria
• Application, and all required attachments, are not submitted via the BSCCSubmittable Application portal • Budget Attachment is incomplete (e.g., impacted fields are not completed) • Funding request exceeds allowable amount in the Medium or Large Scope category
• Attachment(s) are illegible
• Attachment(s) will not open, or the file(s) are corrupted NOTE: Disqualification means that the proposal will not move forward to the Scoring Panel for the Proposal Rating Process, and, therefore, will NOT be considered for funding.

Proposal Rating Process
Unless disqualified, proposals will advance to the Scoring Panel for funding consideration.

Proposals will be evaluated in accordance with the BSCC’s Grant Proposal Evaluation Process (link) and as described below. The Scoring Panel will read and assign ratings to each proposal in accordance with the prescribed rating factors listed in the table below.

Scoring Panel members will base their ratings on how well an applicant addresses the criteria listed under each rating factor within the Proposal Narrative and Budget Sections.

Scoring Panel ratings, once submitted to the BSCC, will be final.

At the conclusion of this process, applicants will be notified of the Board’s funding recommendations. It is anticipated that the Board will act on the recommendations at its meeting on September 14, 2023. Applicants and their partners are not to contact members of the Scoring Panel or the BSCC Board to discuss proposals.

Rating Factors
The Rating Factors that will be used and the maximum points allocated to each rating factor are shown in the table below. Applicants are asked to address each of these rating factors as a part of their proposal. A percent of total value is assigned to each Rating Factor, correlating to its importance within the overall project (see Percent of Total Value column).

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Rating Factors Point
Range
Percent of Total
Value
Weighted Rating
Factor Score
1 Project Need 0-5 20% 40
2 Project Description 0-5 35% 70
3 Project Organizational
Capacity and Coordination 0-5 15% 30
4 Project Evaluation and
Monitoring 0-5 10% 20
5 Project Budget 0-5 20% 40
Maximum Proposal Score: 100% 200
Raters will rate an applicant’s response to each Rating Factor on a scale from 0 to 5, according to the Six-Point Rating Scale shown below. For each Rating Factor, the rating point received is then weighted according to the “Percent of Total Value” column associated with the Rating Factor to arrive at the final Weighted Rating Factor Score. The Weighted Rating Factor Scores are then added together for a final overall proposal score.

The maximum possible proposal score is 200.

Senate Bill 154 requires the BSCC to give preference to applicants whose grant proposals demonstrate the greatest need for additional resources and likelihood of success in reducing organized retail theft, motor vehicle or motor vehicle accessory theft, and cargo theft. In fulfillment of this request, 110 out of a total of 200 points is allocated between the Project Need and Project Description categories.

Six Point Rating Scale
Not Responsive
0 Poor
1 Fair
2 Satisfactory
3 Good
4 Excellent
5 The response
fails to
address the
criteria.

The response
addresses the
criteria in a
very
inadequate
way.

The response
addresses the
criteria in a
non-specific or
unsatisfactory
way.

The
response
addresses
the criteria in
an adequate
way.

The response
addresses the
criteria in a
substantial
way.

The response
addresses the
criteria in an
outstanding
way.

Summary of Key Dates
The following table shows the key dates for the Organized Retail Theft Prevention Grant Program.

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Activity Date
Present the RFP for BSCC Board approval April 13, 2023
Release the RFP April 14, 2023
Bidders’ Conference May 11, 2023
Letter of Intent Due to the BSCC May 15, 2023
Proposals Due to the BSCC July 7, 2023
Proposal Rating Process and Development of
Funding Recommendations
July-August 2023
BSCC Board Considers Funding Recommendations September 14, 2023 Notices to Applicants September 15, 2023
Grant Period Begins October 1, 2023
Mandatory New Grantee Orientation October 2023
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This document/section contains the necessary information for completing the Organized Retail Theft Prevention Grant Program Application. The Application and all required attachments are provided on the BSCC website.

Proposal Narrative and Budget Sections
The five rating factors that will be addressed in the Proposal Narrative and the Proposal Budget sections, are shown below
Rating Factor Percent
Value Addressed In:
1 Project Need 20%
Proposal
Narrative
2 Project Description 35%
3 Project Organizational Capacity and
Coordination 15%
4 Project Evaluation and Monitoring 10%
5 Project Budget 20% Proposal
Budget
Proposal Narrative Instructions
Applicants will complete the Proposal Narrative by accessing the BSCC-Submittable application portal and responding to a series of prompts. The Proposal Narrative must address the Project Need, Project Description, Project Organizational Capacity and Coordination, and Project Evaluation and Monitoring Rating Factors. Please do not include website links, charts, tables, or graphs when responding.

Each Rating Factor has a character limit as shown below:

Rating Factor Total
Characters
Microsoft Word
Equivalent*
1 Project Need 6,711 Up to 3 (Three) Pages
2 Project Description 11,185 Up to 5 (Five) Pages
3 Project Organizational Capacity
and Coordination 4,474 Up to 2 (Two) Pages
4 Project Evaluation and Monitoring 4,474 Up to 2 (Two) Pages *Assumes text is in a Microsoft Word document in Arial 12-point font with one-inch margins on all four sides and at 1.5-line spacing.

PART II: PROPOSAL INSTRUCTIONS
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Character Counter
The BSCC-Submittable application portal includes an automatically enabled character counter. This feature shows the number of characters used and the remaining number of characters before the limit is met. If the limit is exceeded, a red prompt will appear with the message "You have exceeded the character limit". Applicants are prohibited from submitting the Organized Retail Theft Prevention Grant Program Application until they comply with all character limit requirements.

Bibliography
Applicants may, but are not required to, include a bibliography containing citations, using either the Modern Language Association (MLA) or American Psychological Association (APA) style in the “OPTIONAL Bibliography” field on the BSCC-Submittable application page. The bibliography may not exceed 2,218 total characters (includes punctuation, numbers, spaces, and any text). In Microsoft Word, this is approximately one (1) page in Arial 12-point font with one-inch margins on all four sides and at 1.5-line spacing.

Required Attachments
In addition to addressing the Proposal Narrative criteria, the following attachments must be completed and uploaded in the identified fields in the BSCC-Submittable application portal at the time of submission:
• Project Work Plan (Appendix B).
• Grantee Assurance for Non-Governmental Organizations (Appendix D). • Local Impact Letter(s) If Applicable (Appendix E)
• Letter(s) of Commitment If Applicable (Appendix F)
• Certification of Compliance with BSCC Policies on Debarment, Fraud, Theft, and • Embezzlement (Appendix G)
• Governing Board Resolution Optional (Appendix H)
Proposal Narrative Rating Factors
Section 1: Project Need (Percent Value – 20%)
Within this section, address the criteria that defines the Project Need Rating Factor (see table below) in a cohesive, comprehensive, and concise narrative format.

Project Need: The applicant described a need that is pertinent to the intent of the grant. The elements that comprise this Rating Factor are listed below. Addressing each element does not in itself merit a high rating; rather, although each element is to be addressed (when applicable), it is the quality of the response to each that will be evaluated. The response will be evaluated with a single rating based on a scale of 0-

5. 1.1 Describe the need(s) to be addressed, the process used to determine the need(s), and how the need is related to the intent of the grant program.

1.2 Identify the conditions or elements that contribute to the need (e.g., service gaps, geographic location, accessibility).

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1.3 Use relevant local qualitative and/or quantitative data with citations to demonstrate the nature and scale of the specific theft problem (organized retail, motor vehicle, motor vehicle accessory, and/or cargo) and provide a compelling justification for grant funds.

Section 2: Project Description (Percent Value – 35%)
Within this section address the criteria that defines the Project Description Rating Factor (see table below) in a cohesive, comprehensive, and concise narrative format.

Project Description: The applicant provided a description of the project that is related to the identified need and the intent of the grant. The elements that comprise this Rating Factor are listed below. Addressing each element does not in itself merit a high rating; rather, although each element is to be addressed (when applicable), it is the quality of the response to each that will be evaluated. The response will be evaluated with a single rating based on a scale of 0-5.

2.1 Describe the proposed project that will address the need(s) identified in the Project Need section. The description should include:
• the proposed activities/services/interventions of the project including how they will be delivered and the length and duration.
• the target area and/or population which will be the focus of the project, including how and why it was selected.
• how the proposed activities/services/interventions will address the Project Need and the intent of the grant program.
• plans to coordinate or collaborate with other entities, if any, such as public agencies (e.g., law enforcement, non-law enforcement, prosecutors’ offices), community organizations, or retailers.

2.2 Describe the proposed project’s goals, objectives, and impact that includes a relationship to the identified need(s) and intent of the grant program. • The completed Project Work Plan (Appendix B) is appropriate for the proposed project aligning with the identified need(s) and intent of the grant program.
• The completed Project Work Plan identifies the top goals and objectives (see Appendix C for definitions) and how those will be achieved in terms of the activities, responsible staff/partner agencies, process and outcome measures, data sources, and start and end dates.

2.3 Describe the rationale for the proposed activities/services/interventions including research or other evidence indicating that the intended goals and objectives are likely to be achieved.

2.4 Describe existing or proposed policies to:
• govern the use of surveillance technology (if applicable) including complying with applicable privacy laws/regulations and securing any data collected or stored.

2.5 Describe existing or proposed policies to:
• limit racial bias.

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Section 3: Project Organizational Capacity & Coordination (Percent Value – 15%) Within this section, address the criteria that define the Project Organizational Capacity and Coordination Rating Factor (see table below) in a cohesive, comprehensive, and concise narrative format.

Project Organizational Capacity and Coordination: The applicant described their organization’s ability to implement the proposed project. The elements that comprise this Rating Factor are listed below. Addressing each element does not in itself merit a high rating; rather, although each element is to be addressed (when applicable), it is the quality of the response to each that will be evaluated. The response will be evaluated with a single rating based on a scale of 0-5.

3.1 Describe the applicant’s ability to administer the proposed project. In the descriptions include:
• the applicant’s staffing required and available to operate the project including staff qualifications and training.
• the extent to which existing staff resources will be utilized. • project management and oversight to ensure the proposed project is implemented as intended.

3.2 Describe any partner agency(ies) or coordination with other agencies necessary to implement the proposed project. If partners are to be selected after the grant is awarded, specify the process and criteria for selecting the partner agency(ies). The description of partners should include:
• their involvement/role that is aligned with the proposed project. • their credentials, involved personnel, experience and capability to conduct the project, and the value the partners add to the proposed project.
• the plan to coordinate with these partners.
• key partners’ letters of commitment provided as attachments (Attachment G).

3.3 Describe the timeline for the execution of contracts or memorandums of understanding with any partner agency(ies) and the implementation of involvement/role to provide services or activities such that they are in a reasonable timeframe to support the project. Include a description of the readiness to proceed, if funded.

3.4 Describe the management structure and decision-making process for the proposed project.

3.5 Describe the plans to sustain the proposed project after grant funds expire or why the proposed project is limited in term.

Section 4: Project Evaluation and Monitoring (Percent Value – 10%) Within this section, address the criteria that define the Project Evaluation and Monitoring Rating Factor (see table below) in a cohesive, comprehensive, and concise narrative format.

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Project Evaluation and Monitoring: The applicant described how it will monitor and evaluate the effectiveness of the proposed project. The elements that are to comprise this Rating Factor are listed below. Addressing each element does not itself merit a high rating; rather, although each element is to be addressed, it is the quality of the response to each that is to be evaluated. The response will be evaluated with a single rating based on a scale of 0-5.

4.1 Describe the plan to determine the qualified internal staff and/or external partner or entity that will conduct the project evaluation and how monitoring activities will be incorporated in the various phases of the project (e.g., start-up, implementation, service delivery period).

4.2 Identify and define the process measures and outcome measures that are quantifiable and are in line with the intent of the proposed project and the objectives listed in the Work Plan.

4.3 Describe the preliminary plan for monitoring the project to ensure the project components are implemented as intended.

4.4 Describe the preliminary plan for collecting and evaluating data, including baseline data, related to the process measures and outcome measures identified in 4.2. Describe a plan for entering into data sharing agreements, if necessary.

4.5 Describe the research design or methodology that will allow for an assessment of whether the strategy implemented achieved the intended outcomes.

Proposal Budget Instructions
As part of the application process, applicants are required to complete and upload a Proposal Budget Table and Budget Narrative (Budget Attachment) in the budget section of the BSCC-Submittable application page. The Budget Attachment is provided on the BSCC website.

Applicants should be aware that budgets will be subject to review and approval by the BSCC staff to ensure all proposed costs listed within the budget narrative are allowable and eligible for reimbursement. Regardless of any ineligible costs that may need to be addressed post award, the starting budget for the reimbursement invoices and the total amount requested will be the figures used for the Standard Grant Agreement.

Applicants are solely responsible for the accuracy and completeness of the information entered in the Proposal Budget Table and Budget Narrative. Detailed instructions for completing the Budget Attachment are listed on the Instructions tab of the Excel workbook. All project costs must be directly related to the objectives and activities of the project. The Budget Table must cover the entire grant period.

For additional guidance related to grant budgets, refer to the BSCC Grant Administration Guide.

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Proposal Budget Rating Factor
Section 5: Project Budget (Percent Value – 15%)
The following items are rated as part of this section and must be addressed by the applicant in the Budget Attachment.

Project Budget: The applicant provided a complete Budget Attachment (Budget Table and Budget Narrative) for the proposed project. The elements against which the Budget Attachment will be rated are listed below. Addressing each element does not in itself merit a high rating; rather, although each element is to be addressed (when applicable), it is the quality of the response to each that will be evaluated. The response will be evaluated with a single rating based on a scale of 0-5.

5.1 Provide complete and detailed budget information in the Budget Attachment (Budget Table and Budget Narrative) that for each section:
• includes a brief explanation justifying each expense. • ensures expenses are appropriate for the grant’s intent, the project’s goals, and planned activities.

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Appendixes
This section includes the following appendixes:
• Appendix A: Senate Bill 154
• Appendix B: Project Work Plan
• Appendix C: Glossary of Terms
• Appendix D: Grantee Assurance for Non-Governmental Organizations • Appendix E: Local Impact Letter(s)
• Appendix F: Letter(s) of Commitment
• Appendix G: Certification of Compliance with BSCC Policies on Debarment, Fraud, Theft, and Embezzlement
• Appendix H: Governing Board Resolution
PART III: APPENDIXES
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Appendix A: Senate Bill 154
5227-117-0001—For local assistance, Board of State and Community Corrections ........................ 85,000,000
Schedule:
(1)
4945-Corrections Planning
and Grant Programs
........................ 85,000,000
Provisions:

1. The amount appropriated in this item shall be for competitive grants for city police, county sheriffs’ departments, and probation departments. These law enforcement agencies may apply
individually or on behalf of a group of entities that includes other law enforcement agencies or non-law-enforcement entities, including, but not limited to, community-based organizations or prosecutors’ offices.

2. Grant funds shall be used to support local law enforcement agencies in preventing and responding to organized retail theft, motor vehicle or motor vehicle accessory theft, or cargo theft.

Permissible uses of grant funds include, but are not limited to, purchase of technology or other equipment to help deter strategies for preventing or responding to crime. These funds shall be used to supplement and not supplant existing funds for these activities.

3. All entities receiving grant funding shall be required to comply with all applicable privacy laws and regulations.

4. Grants shall be made on a competitive basis to localities that can demonstrate, using data, that organized retail theft, motor vehicle or motor vehicle accessory theft, or cargo theft pose a significant problem in their jurisdictions.

5. An applicant shall submit a proposal, in a form prescribed by the Board of State and Community Corrections, which shall include, but not be limited to, the following:
(a)
Data demonstrating the nature and scale of the specific crime problem, which the applicant proposes to address
using grant funds.

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(b) Clearly defined and measurable objectives for this grant. (c)
A description of how the applicant proposes to use the grant funds to achieve the stated objectives, including any plans to coordinate or collaborate with other entities such as public agencies, community organizations, or retailers.
(d)
A discussion of research or other evidence indicating that the proposed activities would likely achieve the intended
objectives.
(e)
A discussion of how the applicant plans to sustain the
proposed activities after grant funds expire or an explanation of why proposed activities are limited term in nature.
(f)
A description of existing or proposed policies to limit racial bias in utilizing these funds.
(g)
If proposing an investment in surveillance technologies, a description of existing or proposed policies to govern the use of those technologies, including how the applicant will comply with applicable privacy laws and secure any data collected or stored.

6. The Board of State and Community Corrections shall post to its public website all applications received.

7. In awarding grants, the Board of State and Community Corrections shall give preference to applicants whose grant proposals demonstrate the greatest need for additional resources and likelihood of success in reducing organized retail theft, motor vehicle or motor vehicle accessory theft, and cargo theft.

8. Each grantee shall report to the Board of State and Community Corrections, in a form and at intervals prescribed by the board, their progress in achieving the grant objectives.

9. The Board of State and Community Corrections shall, by no later than 90 days following the close of each grant cycle, prepare and submit a report to the Legislature in compliance with Section 9795 of the Government Code regarding the impact of the initiatives supported by the grant. This report, at minimum, shall include: (a) Grant recipients and the amount awarded to each; (b) How the funding was used; (c) What outcomes and objectives were achieved.

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10. Upon order of the Director of Finance, up to 5 percent of the amount appropriated in Schedule (1) shall be transferred to Schedule (1) of Item 5227-001-0001 for costs to administer the grant program. Funds transferred pursuant to this provision are available for encumbrance or expenditure until June 30, 2027.

11. Any unspent funds identified in Schedule (1) shall revert to the General Fund as of June 30, 2027.

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Applicants must complete a Project Work Plan. This Project Work Plan identifies measurable goals and objectives, process and outcome measures, activities and services, responsible parties for those activities and services, data sources and estimated timelines. Completed plans should (1) identify the project’s top goals and objectives; (2) identify how the goal(s) will be achieved in terms of the activities, responsible staff/partners, and start and end dates, process and outcome measures; and (3) provide goals and objectives with a clear relationship to the need and intent of the grant. As this grant term is for three (3) years, the Project Work Plan must attempt to identify activities/services and estimate timelines for the entire grant term. A minimum of one goal and corresponding objectives, process measures, etc. must be identified.

Applicants must use the Project Work Plan provided below. You will be prompted to upload this document to the BSCC-Submittable Application.
(1) Goal: >
Objectives (A., B., etc.) >
Process Measures and
Outcome Measures:
>
Project activities that support the identified goal and objectives: Responsible staff/partners Timeline Start Date End Date
> > > >
List data and sources to be used to measure outcomes: > Appendix B: Project Work Plan
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(2) Goal: >
Objectives (A., B., etc.) >
Process Measures and
Outcome Measures:
>
Project activities that support the identified goal and objectives: Responsible staff/partners Timeline Start Date End Date
> > > >
List data and sources to be used to measure outcomes: > (3) Goal: >
Objectives (A., B., etc.) >
Process Measures and
Outcome Measures:
>
Project activities that support the identified goal and objectives: Responsible staff/partners Timeline Start Date End Date
> > > >
List data and sources to be used to measure outcomes: > Packet Page 128
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Appendix C: Glossary of Terms
Case Management
A collaborative process which assesses, plans, implements, coordinates, monitors, and evaluates the options and services required to meet an individual's health needs.3 Community-Based Organization
For this RFP, a Community-Based Organization is an organization located in the State of California that has been determined by the IRS to have 501(c)(3) status (i.e., nonprofit).

Evaluations (Process and Outcomes)
Process Evaluation4
The purpose of the process evaluation is to assess how program activities are being carried out in accordance with goals and objectives. Process measures are designed to answer the question: “What is the program actually doing and is this what we planned it to do?”
Examples of process measures could include:
• Project staff have been recruited, hired, and trained according to the proposal. • Activities/strategies have been implemented on time according to the proposal. • Number of interagency agreements entered into by the program compared to the number planned.
• Number of trainings conducted.
• Number of neighborhood meetings conducted.

Outcome Evaluation5
The purpose of the outcome evaluation is to identify whether the program “worked” in terms of achieving its goals and objectives. Outcome measures are designed to answer the question: “What results did the program produce?”
Examples of outcome measures include:
• Results of pre/post surveys (e.g., changes in the reported confidence/trust in law enforcement among community members).
• Implementation of regular, ongoing community forums where community dialogue takes place.
• Changes in policies at the Lead Agency level to reflect procedural justice principles.

In an evidence-based practice approach, outcome evaluations must include not only the measures but also analysis of the extent to which the measured results can be attributed to the program rather than to coincidence or alternative explanations. 3 Source: National Institute of Health 4 Justice Research and Statistics Association, Juvenile Justice Evaluation Center. (2003, June). Juvenile Justice Program Evaluation: An overview (Second Edition) p. 7. Retrieved from http://www.jrsa.org/njjec/publications/program-evaluation.pdf 5 Id at pp. 7-8.

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Evidence-based / Promising Practices
Evidence-based practices are programs and strategies that have been found effective at improving outcomes, using rigorous scientific research methods. Programs and strategies may be evidence-based across all populations, or only for particular cultures and identities.

Promising practices are programs and strategies that have shown some positive results and potential for improving outcomes. They may have evidence from use in real-world settings, a strong theoretical framework, and/or expert opinion, but have not been fully replicated in scientific studies. Depending on the level of scientific evidence, these are sometimes referred to as “evidence-informed,” "research-supported," or “emerging” practices.

Financial Audit
A financial audit provides assurances that an organization’s financial statements are free of material misstatement based upon the application of generally accepted accounting principles.

Goals and Objectives
Goals and objectives are terms in common use, sometimes used interchangeably because both refer to the intended results of program activities. Goals are longer-term than objectives, more broadly stated and govern the specific objectives to which program activities are directed.

In proposals, goals are defined by broad statements of what the program intends to accomplish, representing the long-term intended outcome of the program.6 Examples of goal statements:7
• To reduce the number of serious and chronic juvenile offenders. • To divert nonviolent juvenile offenders from state juvenile correctional institutions. • To restore the losses suffered by the victims of crimes.

Objectives are defined by statements of specific, measurable aims of program activities.8 Objectives detail the tasks that must be completed to achieve goals.9 Descriptions of objectives in the proposals should include three elements:10

1. Direction – the expected change or accomplishment (e.g., improve, maintain);

2. Timeframe – when the objective will be achieved; and 6 Justice Research and Statistics Association, Juvenile Justice Evaluation Center. (2003, June). Juvenile Justice Program Evaluation: An overview (Second Edition). Retrieved from http://www.jrsa.org/njjec/publications/program-evaluation.pdf. See also New York State Division of Criminal Justice Services. A Guide to Developing Goals and Objectives for Your Program. Retrieved from . 7 Id. at p. 4.
8 National Center for Justice Planning. Overview of Strategic Planning. Where Do We Want to Be? Goals and Objectives. Retrieved from http://ncjp.org/strategic-planning/overview/where-do-we-want-be/goals-objectives. 9 Id.; see supra fn 1. 10 Justice Research and Statistics Association, Juvenile Justice Evaluation Center. (2003, June). Juvenile Justice Program Evaluation: An overview (Second Edition) p. 5. Retrieved from http://www.jrsa.org/njjec/publications/program-evaluation.pdf.

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3. Target Population– who is affected by the objective.

Examples of program objectives:11
• By the end of the program, young, drug-addicted juveniles will recognize the longterm consequences of drug use. o To place eligible juveniles in an intensive supervision program within two weeks of adjudication to ensure offender accountability and community safety.
o To ensure that juvenile offenders carry out all the terms of the mediation agreements they have worked out with their victims by program completion.

Qualitative Data
Data/information that is based on written or spoken narratives. The purpose of qualitative data/information is to explain and gain insight and understanding of events through collection of narrative data/information.

Quantitative Data
Data/information that is based on numbers and mathematical calculations. The purpose of quantitative data is to explain, predict, and/or control events through focused collection of numerical data.
11 Id.

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Appendix D: Grantee Assurance for Non-Governmental Organizations The Organized Retail Theft Prevention Grant Program Request for Proposals (RFP) includes requirements that apply to non-governmental organizations (NGOs)12 providing services with grant funds. Grantees are responsible for ensuring that all contracted third parties continually meet these requirements as a condition of receiving funds. The RFP describes these requirements as follows:

Any non-governmental organization that receives Organized Retail Theft Prevention Grant Program funds (as either a subgrantee or subcontractor) must:
• Have been duly organized, in existence, and in good standing for at least six (6) months prior to the effective date of its fiscal agreement with the BSCC or with the Organized Retail Theft Prevention Grant Program grantee;
o Non-governmental entities that have recently reorganized or have merged with other qualified non-governmental entities that were in existence prior to the six (6) month date are also eligible, provided all necessary agreements have been executed and filed with the California Secretary of State prior to the start date of the grant agreement with the BSCC or the start date of the grantee subcontractor fiscal agreement;
• Be registered with the California Secretary of State’s Office, if applicable; • Have a valid Employer Identification Number (EIN) or Taxpayer ID (if sole proprietorship); • Have a valid business license, if applicable;
• Have no outstanding civil judgments or liens;
• Have any other state or local licenses or certifications necessary to provide the services requested (e.g., facility licensing by the Department of Health Care Services), if applicable; and
• Have a physical address within California. (An agent for service of process with a California address is insufficient.)
Completing the NGO Assurance (Following Page)

1. Provide the name of the Applicant Agency (the Grantee),

2. List all contracted parties (if known),

3. Check Yes or No to indicate if each contracted part meets the requirements

4. Sign and Submit to the BSCC
NOTE: If the name of the contracted party is unknown or if there will be no contracted parties.

Write N/A in the “Name of Contracted Party” field and sign the document. 12 For the purposes of this RFP, NGOs include nonprofit and for-profit community-based organizations, faith-based organizations, evaluators (except government institutions such as universities), grant management companies, and any other non-governmental agency or individual.

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Organized Retail Theft Prevention Grant Program
Non-Governmental Organization Assurances
Name of Applicant:

Name of Contracted Party Address Email / Phone Meets All Requirements

Yes ☐ No ☐

Yes ☐ No ☐

Yes ☐ No ☐

Yes ☐ No ☐
*Grantees are required to update this list and submit it to BSCC any time a new third-party contract is executed after the initial assurance date. Grantees shall retain (on-site) applicable source documentation for each contracted party that verifies compliance with the requirements listed in the RFP. The BSCC will not reimburse for costs incurred by any third party that does not meet the requirements listed above and for which the BSCC does not have a signed grantee assurance on file.

A signature below is an assurance that all requirements listed above have been met.

AUTHORIZED SIGNATURE
This document must be signed by the person who is authorized to sign the Grant Agreement.

NAME OF AUTHORIZED OFFICER

TITLE

TELEPHONE NUMBER

EMAIL ADDRESS

STREET ADDRESS

CITY

STATE

ZIP CODE

APPLICANT’S SIGNATURE (Blue Ink Only) DATE

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The Organized Retail Theft Prevention Grant Program encourages collaboration, communication, and innovation to combat organized retail theft. In supporting this approach, proposed projects may have impacts on retailers and local government agencies that prevent projects from operating as intended (e.g., increased law enforcement presence in retail spaces, increased referrals to the District Attorney’s Office, overlapping or duplicative public awareness campaigns, etc.)
To acknowledge any anticipated impacts, each Lead Public Agency is required to:
• Identify each agency agency(ies) that reasonably could be expected to be impacted by this grant project;
• Submit a Letter of Agreement signed by both the Lead Public Agency and the impacted agency agency(ies) that includes the following:
o The name of the Organized Retail Theft Prevention Grant Program project and a brief project description;
o A description of how the Organized Retail Theft Prevention Grant Program project might impact retailers and local government agencies; and o An explanation of how the Lead Public Agency and the impacted agency(ies) will work together to address stated impacts.

Note: If the Lead Public Agency concludes that the Organized Retail Theft Prevention Grant Program project will not impact any other agency agency(ies), the Lead Public Agency must include a letter to that effect.

Appendix E: Local Impact Letter(s)
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If the success of the applicant’s proposed activity, strategy, or program relies on the participation of an outside agency or organization (i.e., an entity other than the applicant or LPA), the applicant must include a Letter of Commitment. Letter(s) of Commitment should reflect that the outside agency or organization is aware of the proposed project, is committed to ensuring the success of the project, their role, and agrees to participate. [To be submitted on letterhead of the OUTSIDE ENTITY]
To: Board of State and Community Corrections
Re: The Organized Retail Theft Prevention Grant Program Date: [must be within 3 months of proposal submission]
This letter is being submitted to document that [NAME OF THE OUTSIDE ENTITY] agrees to partner on the Organized Retail Theft Prevention Grant Program proposal being submitted by [NAME OF APPLICANT].

As a part of this grant, [NAME OF OUTSIDE ENTITY] agrees to [DESCRIBE THE NATURE OF THE PARTNERSHIP, I.E. WHAT THE OUTSIDE ENTITY IS AGREEING TO DO, ETC.].

Signed by,
Name, Title
[must be the Executive Officer, Department Head, or other Authorized Representative of the Outside Entity]
Appendix F: Letter(s) of Commitment
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Appendix G: Certification of Compliance with BSCC Polices on Debarment, Fraud, Theft and Embezzlement
It is the policy of the BSCC to protect grant funds from unreasonable risks of fraudulent, criminal, or other improper use. As such, the Board will not enter into contracts or provide reimbursement to applicants that have been:

1. debarred by any federal, state, or local government entities during the period of debarment; or

2. convicted of fraud, theft, or embezzlement of federal, state, or local government grant funds for a period of three years following conviction.

Furthermore, the BSCC requires grant recipients to provide an assurance that there has been no applicable debarment, disqualification, suspension, or removal from a federal, state or local grant program on the part of the grantee at the time of application and that the grantee will immediately notify the BSCC should such debarment or conviction occur during the term of the Grant contract.

BSCC also requires that all grant recipients include, as a condition of award to a subgrantee or subcontractor, a requirement that the subgrantee or subcontractor will provide the same assurances to the grant recipient. If a grant recipient wishes to consider a subgrantee or subcontractor that has been debarred or convicted, the grant recipient must submit a written request for exception to the BSCC along with supporting documentation.

By checking the following boxes and signing below, applicant affirms that:
[ ] I/We are not currently debarred by any federal, state, or local entity from applying for or receiving federal, state, or local grant funds.
[ ] I/We have not been convicted of any crime involving theft, fraud, or embezzlement of federal, state, or local grant funds within the last three years. We will notify the BSCC should such debarment or conviction occur during the term of the Grant contract. [ ] I/We will hold subgrantees and subcontractors to these same requirements.

A grantee may make a request in writing to the Executive Director of the BSCC for an exception to the debarment policy. Any determination made by the Executive Director shall be made in writing.

AUTHORIZED SIGNATURE
This document must be signed by the person who is authorized to sign the Grant Agreement.

NAME OF AUTHORIZED OFFICER

TITLE

TELEPHONE NUMBER

EMAIL ADDRESS

STREET ADDRESS

CITY

STATE

ZIP CODE

APPLICANT’S SIGNATURE (Blue Ink Only)
X
DATE

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Before grant funds can be reimbursed, a grantee must either (1) submit a resolution from its Governing Board that delegates authority to the individual authorized to execute the grant agreement or (2) provide sufficient documentation indicating that the prospective grantee has been vested with plenary authority to execute grant agreements (e.g., County Board of Supervisors delegating such authority to an Agency head).

Below is assurance language that, at a minimum, must be included in the resolution submitted to the Board of State and Community Corrections.

WHEREAS the (insert name of Local Government) desires to participate in the Organized Retail Theft Prevention Grant Program funded through the State Budget Act and administered by the Board of State and Community Corrections (hereafter referred to as the BSCC).

NOW, THEREFORE, BE IT RESOLVED that the (insert title of designated official) be authorized on behalf of the (insert name of Governing Board) to submit the grant proposal for this funding and sign the Grant Agreement with the BSCC, including any amendments thereof.

BE IT FURTHER RESOLVED that grant funds received hereunder shall not be used to supplant expenditures controlled by this body.

BE IT FURTHER RESOLVED that the (insert name of Local Government) agrees to abide by the terms and conditions of the Grant Agreement as set forth by the BSCC.

Passed, approved, and adopted by the (insert name of Governing Board) in a meeting thereof held on (insert date) by the following:

Ayes:

Notes:

Absent:

Signature: _______________________________________ Date: _________________ Typed Name and Title: ___________________________________________________ ATTEST: Signature: _______________________________ Date: _________________ Typed Name and Title: ___________________________________________________ Appendix H: Governing Board Resolution
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Item  D. 6.

DATE 06/22/2023
TO Honorable Mayor and City Council Members
FROM Matthew Farrell, Chief Building Official
SUBJECT    Adopt a resolution accepting a grant of up to $40,000 through the California Automated Permit Processing Program for implementation of an automated solar permitting program (SolarAPP+) and approving an amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024
SUMMARY AND RECOMMENDATION
Senate Bill 379 requires most California cities and counties to implement an automated solar permitting program. Senate Bill 129 appropriated funds for the California Automated Permit Processing Program (CalAPP) to provide grant funding to aid cities and counties with the cost for implementing an automated permitting platform. Staff recommends that the City Council, by resolution, authorize acceptance of up to $40,000 in CalAPP grant funds and amend the 2022-2024 Biennial Budget and Capital Improvement Plan.

BACKGROUND
The California Energy Commission emphasizes that meeting California's clean energy goals requires new renewable energy and storage resources, including residential solar and storage projects.  Existing law, under Government Code section 65850.5, requires that California cities and counties approve applications to install solar energy systems through the issuance of a building permit or similar nondiscretionary permit, subject to specified exceptions.  Local jurisdictions must also develop a streamlined permitting process for installing small residential rooftop solar energy systems. Senate Bill 379 (Wiener) was signed into law in 2022 and is intended to increase access and adoption of residential solar and energy storage projects by supporting instantaneous plan review practices and creating consistent processes across the State.

SB 379 specifically requires cities and counties of a certain size to implement an online, automated permitting platform.  The platform must verify code compliance and issue permits in real time or allow local jurisdictions to issue permits in real time for a residential solar energy system, and a residential energy storage system paired with a solar energy system.  The City of Newark is subject to these requirements and must complete implementation by September 30, 2024.

California Senate Bill 129 appropriated $20 Million for the California Automated Permit Processing Program (CalAPP) to provide grant funding to aid cities and counties with Packet Page 138
the cost for implementing an automated permitting platform. This funding can be used to offset personnel costs and any equipment utilized to implement the platform.  Funds can also be used for up to three years of maintenance and subscription costs for permit tracking software in support of the adopted permitting platform.   Based on its population, the City of Newark is eligible for $40,000 in grant funding.  SolarAPP+ is a commonly used platform by other jurisdictions to meet the requirements of SB 379.

DISCUSSION/ANALYSIS
Building Inspection Division staff have evaluated the options for an automated permit processing platform and have found no equivalent option other than SolarAPP+ that Newark could implement that would provide the cursory review of permit documentation necessary to satisfy SB 379 requirements. While Newark's current software and future portal for permit tracking may be able to issue permits immediately as the law requires, there is no plan review process that could occur in real time based on the permit documentation submitted.  Without the plan review capabilities of SolarAPP+, an unnecessary added burden and time constraint for field inspections of solar projects would be created, resulting in increased costs to contractors and homeowners as well as additional staff time on each project.  Staff reviewed and evaluated SolarAPP+ and it can be programmed to follow local ordinances and amendments to the code for plan reviews, thus saving time for staff, contractors and the community once implemented.

Implementation time should take approximately 20 staff hours from various members of the Information Technology, Finance, and Building Inspection Departments to set up and implement the platform. The total time for implementation should be approximately two months with at least one month for testing before the entire program is rolled out to the public. Staff recommends utilizing grant funds for eligible and reimburseable costs. The California Automated Permit Processing Program (CalAPP) was created to provide grant funding to local jurisdictions. The City of Newark qualifies for a CalAPP grant of up to $40,000 for implementation of a selected automated permit processing program to meet State requirements.

FISCAL IMPACT
By accepting this grant the City Council will need to amend the 2022-2024 Biennial Budget and Capital Improvement Plan increasing State Grant revenues (account 4792) by $40,000 to the Miscellaneous State Grant Fund (Fund 492). Year-end transfers will be made out of Fund 492 to reimburse various funds for previously budgeted eligible expenditures.

REVIEW AND APPROVAL
Prepared by - Matthew Farrell, Chief Building Official
Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - Lenka Hovorka, Assistant City Manager
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Attachments
Resolution
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(062217 jir1)
RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING THE ACCEPTANCE THE

CALIFORNIA AUTOMATED PERMIT PROCESSING
PROGRAM GRANT FUND AND AMENDING THE 2022-2024

BIENNIAL BUDGET AND CAPITAL IMPROVEMENT PLAN
FOR FISCAL YEAR 2024
WHEREAS, pursuant to Senate Bill 379, the City is required to implement an automated permit processing program for the expeditious review and issuance of permits for residential solar energy systems and residential solar energy storage systems; and WHEREAS, the California Automated Permit Processing Program (CalAPP) was created to aid jurisdictions with grand funding in adopting and implementing the required automated permit processing program; and
WHEREAS, based on staff review of available automated permit processing programs, SolarAPP+ is the only viable option for use by the City of Newark Building Inspection Division; and
WHEREAS, the City qualifies for a grant funding through CalAPP in the amount of up to $40,000 to implement SolarAPP+; and
WHEREAS, the City will submit for reimbursement of qualified expenditures for said grant funds.

NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Newark does hereby authorize the acceptance of CalAPP grant funding of up to $40,000 for implementation of SolarAPP+.

BE IT FURTHER RESOLVED that the City Council of the City of Newark approves an amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 as follows:

Increase: 492.60.062.620.4792 Misc. State Grant $40,000 Increase: 492.00.000.000.9999 Transfers Out $40,000
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Item  D. 7.

DATE 06/22/2023
TO Honorable Mayor and City Council Members
FROM Art Interiano, Deputy Community Development Director SUBJECT    Adopt a resolution authorizing the City Manager to execute a three-year cooperation agreement for fiscal years 2024-2026 with Alameda County for participation in the Alameda County Urban County for the Community Development Block Grant (CDBG) Program
SUMMARY AND RECOMMENDATION
The City is currently part of the Urban County, a group of cities within Alameda County that have a population under 50,000 persons. As part of the Urban County, the city receives annual grant funding, which provides for community projects. Every three years, the federal government requires that each Urban County member sign a 3-year agreement with Alameda County.

Staff recommends that the City Council by resolution, authorize the City Manager to execute a three-year cooperation agreement with Alameda County for participation in the Alameda County Urban County Community Development Grant (CDBG) Program.

BACKGROUND
In 2020, the City Council agreed to participate with the jurisdictions of Albany, Dublin, Emeryville, Piedmont, and unincorporated areas of Alameda County, in the Alameda County Urban County (Urban County) program for fiscal years 2021-2023 in order to qualify for annual funding under the United States Department of Housing and Urban Development (HUD) Community Development Block Grant (CDBG) Program. Most jurisdictions within the Urban County program have a population of less than 50,000 persons, but together have a collective population greater than 200,000 persons (the City of Dublin's population exceeds 50,000 people, but elects to remain in the Urban County). The Urban County program provides smaller jurisdictions with the opportunity to participate in CDBG programs. The Urban County program is administered by Alameda County. The current three-year agreement expires at the end of Fiscal Year 2023.

DISCUSSION/ANALYSIS
In order to continue as a member of the Urban County, the City of Newark and Packet Page 142
In order to continue as a member of the Urban County, the City of Newark and Alameda County need to execute a new three-year cooperative agreement for fiscal years 2024-2026. This agreement generally provides that the City and County will work together to undertake community renewal and housing assistance activities, that the City will receive a share of Urban County CDBG funds each year, that both the City and the County will follow the rules established by HUD, and that the County will administer the program for the City. A copy of the three-year agreement between Newark and Alameda County is attached. There are no significant changes in terms between the current and proposed agreements. As part of the agreement, Newark may not withdraw from the Urban County during the three-year period.

If the result from Census 2030 indicates that Newark’s population exceeds 50,000 persons, the City would likely not participate in the Urban County any longer and instead apply to become a CDBG entitlement city with the ability to manage its own CDBG policies, programs, and projects.

FISCAL IMPACT
There is no fiscal impact with this item.

REVIEW AND APPROVAL
Prepared by - Art Interiano, Deputy Community Development Director Reviewed by - Steven Turner, Community Development Director Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - Lenka Hovorka, Assistant City Manager
Attachments
CDBG 3 Year Cooperation Agreement Resolution
CDBG 3 Year Agreement v2
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RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF NEWARK AUTHORIZING THE CONTINUED

PARTICIPATION IN THE ALAMEDA COUNTY

URBAN COUNTY FOR COMMUNITY

DEVELOPMENT BLOCK GRANT FUNDS AND

AUTHORIZING EXECUTION OF THE COOPERATION

AGREEMENT BETWEEN THE CITY OF NEWARK

AND COUNTY OF ALAMEDA REGARDING

PARTICIPATION IN THE ALAMEDA COUNTY

URBAN COUNTY FOR COMMUNITY BLOCK GRANT
FUNDS
WHEREAS, the Congress of the United States has enacted the Housing and Community Development Act of 1974 and Federal regulations have been adopted pursuant thereto, hereinafter called the “Act”; and
WHEREAS, Title I of the Act consolidates previously separate grant programs for open space, public facility loans, water and sewer grants, urban renewal, model cities, rehabilitation loans, and affordable housing into a program called the Community Development Block Grant (“CDBG”) program; and
WHEREAS, Title I makes available entitlement grants to cities whose 2020 Census population exceeds 50,000 persons and to counties that qualify as an urban county; and
WHEREAS, the term "urban county" means any county within a metropolitan area which:
(1) is authorized under state law to undertake essential community development and housing assistance activities in its incorporated areas which are not units of general local government; and
(2) has a combined population of 200,000 or more in such unincorporated areas and in its included units of local government:
(A) in which it has authority to undertake essential community development and housing assistance activities and which do not elect to have their population excluded; or
(B) with which it has entered into cooperation agreements to undertake or to assist in the undertaking of essential community development and housing assistance activities; and
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WHEREAS, the Department of Housing and Urban Development (“HUD”) has made a determination that the County of Alameda has the essential powers to operate as an urban county; and
WHEREAS, four cities (Albany, Emeryville, Newark and Piedmont) in Alameda County have a 2020 Census population of less than 50,000 and desire to participate in the Alameda County Urban County; and one city has a population over 50,000 (Dublin) and desires to participate in the Alameda County Urban County; and WHEREAS, the five participating cities combined with the unincorporated portions of the County of Alameda to form a combined 2020 Census population of 200,000 or more persons, thereby qualifying as an urban county, and becoming eligible for CDBG funds; and
WHEREAS, pursuant to HUD requirements, these same five cities must execute cooperation agreements with the County of Alameda, wherein the parties agree to participate in the Urban County for the duration of the three-year funding cycle.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newark hereby resolves, declares, determines and orders as follows:

SECTION 1. The City Council of the City of Newark hereby authorizes the continued participation of the City of Newark in the Alameda County Urban County.

SECTION 2. The City Council of the City of Newark hereby authorizes the City Manager to execute a cooperation agreement with Alameda County in order to continue the City’s participation in the Urban County.

SECTION 3. This resolution shall take effect immediately upon its adoption.

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Item  D. 8.

DATE 06/22/2023
TO Honorable Mayor and City Council Members
FROM Tonya Connolly, Maintenance Superintendent
SUBJECT    Adopt a resolution authorizing the City Manager to execute a Contractual Equipment and Services Agreement with Owen Equipment for the purchase of a Vactor catch basin cleaner, authorization for outfitting by Classic Graphics and amending the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 SUMMARY AND RECOMMENDATION
The Maintenance Division of the Public Works Department has identified a need to replace existing catch basin cleaning equipment.  The existing catch basin cleaner is approximately twenty years old and at the end of its useful life.  The Maintenance Division has researched and selected a 2100i Vactor catch basin cleaner as a recommended suitable replacement unit.  An amendment to Fiscal Year 2024 Equipment Replacement budget would be necessary for this purchase.

Staff recommends that the City Council authorize the City Manager to execute a Contractual Equipment and Services Agreement with Owen Equipment for the purchase of the 2100i Vactor catch basin cleaner through Sourcewell Contract No. 101221 and authorize outfitting of the equipment by Classic Graphics.  Staff further recommends an amendment of the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024.

BACKGROUND
The City of Newark Maintenance Division is in need of replacement of the existing catch basin cleaning equipment.  The current unit is more than 20 years old, requires significant ongoing maintenance that reduces efficiency within the Division, and has reached the end of its useful life.  The City of Newark has more than 1,700 catch basins that require heavy cleaning, some twice per year or more, by the Maintenance Division and other resources to remove debris, sediments, and blockages from pipes and infrastructure.  Catch basins and storm sewer systems are crucial in managing stormwater and preventing pollution.

Vactor catch basin cleaners provide versatility and can be effectively utilized for various tasks.  Catch basin cleaners excel in potholing operations, allowing for safe soil excavation and the location of underground utilities without causing damage.

Additionally, catch basin cleaners play a vital role in stormwater management by ensuring catch basins are clear and functioning properly, thereby helping to prevent flooding.  Catch basin cleaners are well-suited for industrial cleaning tasks, efficiently Packet Page 152
removing sludge and other contaminants.  By utilizing catch basin cleaners, the need for manual entry into confined spaces is significantly reduced, minimizing workers' exposure to hazardous materials.  This improvement in worker safety leads to a substantial decrease in the risks associated with accidents and injuries.

An intergovernmental procurement process (also known as "piggybacking") is an alternative option to Newark's formal bidding process.  By piggybacking onto another agency's contract, the City would save the cost and time associated with an additional formal bid process but be able to be assured of competitive set prices established by another agency's formal bidding process.

DISCUSSION/ANALYSIS
The Maintenance Division has researched and selected a 2100i Vactor catch basin cleaner as a recommended suitable replacement unit.  This unit provides all of the necessary capabilities required by the Division.  The unit is equipped with a 12-yard debris box and can hold up to 1,300 gallons of water.  Sourcewell received bids for sewer vacuum trucks (storm/sewer trucks), hydro-excavation, and municipal pumping equipment. Vactor was selected by Sourcewell and was issued Contract No. 1011221.

Vactor was selected because it met the specifications issued by Sourcewell and submitted the lowest bid.  Owen Equipment is the local distributor of Vactor catch basin units.

Utilizing Sourcewell, the City of Elk Grove, California, entered into a procurement contract with Owen Equipment for the purchase of a combination single engine sewer cleaner with positive displacement vacuum system mounted on a heavy-duty truck chassis.  The competitive process used by the City of Elk Grove has been reviewed by the City of Newark Public Works Department and satisfies Newark's requirements for the proposed equipment replacement purchase.

Based on the City of Elk Grove contract with Owen Equipment, the purchase cost would be $671,000 for a Vactor catch basin cleaner.  The cost does not include outfitting which is estimated not to exceed $10,000.  The outfitting cost is based on specialized vendor quotes for the installations of lights, cone holders, cargo boxes, and logos.

FISCAL IMPACT
The proposed purchase requires an amendment to the 2022-20224 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 to allocate funds from unallocated equipment replacement (701.3000) to the Fiscal Year 2024 Equipment Replacement Program (701.87.701.800.8050) in the amount of $681,000 for the purchase and outfitting of a replacement catch basin cleaner.

REVIEW AND APPROVAL
Prepared by - Tonya Connolly, Maintenance Superintendent Packet Page 153
Prepared by - Tonya Connolly, Maintenance Superintendent Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - Lenka Hovorka, Assistant City Manager
Attachments
Resolution
Contractural Services Agreement
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(TCR1)
RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING THE CITY MANAGER TO

EXECUTE A CONTRACTUAL EQUIPMENT AND SERVICES

AGREEMENT WITH OWEN EQUIPMENT FOR THE

PURCHASE OF A VACTOR CATCH BASIN CLEANER,

AUTHORIZATION FOR OUTFITTING BY CLASSIC
GRAPHICS, AND AMENDING THE 2022-2024 BIENNIAL

BUDGET AND CAPITAL IMPROVEMENT PLAN FOR
FISCAL YEAR 2024
WHEREAS, the Maintenance Division of the Public Works Department has identified a need for replacement of the existing catch basin cleaning equipment which has reached the end of its useful life; and
WHEREAS, the 2100i Vactor catch basin cleaner would satisfy the Maintenance Division needs for this replacement in Fiscal Year 2024 through the Equipment Replacement Program; and
WHEREAS, Sourcewell issued a contract for the 2100i Vactor catch basin cleaner and Owen Equipment is the local distributor; and
WHEREAS, the City of Newark would be participating in an intergovernmental procurement process (also known as “piggybacking”) with Owen Equipment as the holder of the City of Elk Grove procurement contract to purchase a Vactor catch basin cleaner at a cost of $671,000; and
WHEREAS, the proposed Vactor catch basin cleaner would require equipment outfitting based on quotes from Classic Graphics, not to exceed $10,000, not to exceed a combined total cost of $681,000; and
WHEREAS, a budget amendment is necessary to fund the replacement of this equipment in Fiscal Year 2024 through the Equipment Replacement Program.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newark does hereby authorize the purchase of a 2100i Vactor from Owen Equipment in the amount not to exceed $671,000, as replacement catch basin cleaner for the Maintenance Division of the Public Works Department and outfitting by Classic Graphics for a total amount not to exceed $681,000.

BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby authorize the City Manager to execute a Contractual Equipment and Service Agreement with Owen Equipment for the purchase of the 2100i Vactor from Owen Equipment in a form approved by the City Attorney.

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(TCR1)
BE IT FURTHER RESOLVED that the City Council of the City of Newark does hereby approve an amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 to appropriate an additional $681,000 for this purchase using existing unallocated equipment replacement program funds as follows:

Account Description Amount
From: 701.3000 Unallocated Fund Balance $681,000
To: 701.87.701.800.8050 Equipment Replacement Program $681,000 Packet Page 156

CONTRACTUAL EQUIPMENT AND SERVICES AGREEMENT
This Contractual Equipment and Service Agreement (hereinafter “Agreement”) is made and entered into this day of , 2023 by and between the CITY OF NEWARK, a municipal corporation (“City”), and OWEN EQUIPMENT SALES, a CALIFORNIA CORPORATION, dba OWEN EQUIPMENT (“Consultant”), collectively the “Parties”.

W I T N E S S E T H:

WHEREAS, City requested proposals to provide a combination single engine sewer cleaner with positive displacement vacuum system mounted on a heavy-duty truck chassis (the “Equipment”) to City as described in Exhibit “A” attached hereto and incorporated herein.

WHEREAS, in response to City’s request, Consultant submitted a proposal and, after negotiations, Consultant agreed to provide the Equipment more particularly described in Exhibit “A” (“Services”), in return for the compensation described in this Agreement and Exhibit “B”.

WHEREAS, in reliance upon Consultant’s documentation of its qualifications, as set forth in Exhibit “C”, City finds that Consultant has demonstrated the requisite qualifications, experience, training, and expertise to provide the requested Equipment. .

NOW, THEREFORE, the Parties hereto agree as follows:

1. CONSULTANT’S SERVICES. Consultant shall provide the Equipment described, and in the time, place, and manner specified in Exhibit “A” in accordance with the terms and conditions of this Agreement. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit “A”, the Agreement shall control.

2. TIME FOR PERFORMANCE. Time is of the essence in the performance of Services under this Agreement and Consultant shall generally adhere to the schedule set forth in Exhibit “A”; provided, that City shall grant reasonable extensions of time for the provision of such Equipment occasioned by governmental reviews of Consultant’s work product or other unavoidable delays occasioned by circumstances, provided, further, that such unavoidable delays shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, Consultant’s officers or employees. Any Equipment for which times for delivery are not specified in this Agreement shall be provided and completed by Consultant in a reasonably prompt and timely manner based upon the circumstances and direction communicated to Consultant.

Consultant acknowledges the importance to City of City’s performance schedule and agrees to put forth its best professional efforts to provide the Equipment under this Agreement in a manner consistent with that schedule. City understands, however, that Consultant’s performance must be governed by sound professional practices.

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3. COMPENSATION.

A. “Not to Exceed” Compensation. City shall compensate Consultant for the Equipment provided by Consultant hereunder in an amount set forth in Exhibit “B”. The payments specified in Exhibit “B” shall be the only payments to be made to Consultant for the Equipment provided pursuant to this Agreement.

Notwithstanding the foregoing, the combined total of compensation and costs payable hereunder shall not exceed the sum of six hundred seventy thousand seven hundred fifty-nine and 59/100 Dollars ($670,759.59) unless the performance of services and/or reimbursement of costs and expenses in excess of said amounts have been approved in advance of performing such services or incurring such costs and expenses by City, evidenced in writing authorizing such additional amount.

B. Method of Billing.

Consultant shall submit all billings for the Equipment to City in the manner specified in Exhibit “B”; or, if no manner is specified in Exhibit “B”, then according to the usual and customary procedures and practices which Consultant uses for billing clients similar to City.

Invoices shall be sent to:

City of Newark
Attn: Finance Department
37101 Newark Blvd.

Newark, CA 94560
Upon delivery of the Equipment, City shall sign off and acknowledge that all terms and conditions have been satisfactorily met; upon which, unless waived by City in writing, Consultant shall prepare an itemized statement, briefly describing the items billed.

C. Payment. Upon receipt of an invoice, City shall make payments to Consultant at such other times as may be specified in Exhibit “B”, for the Equipment, which is delivered in accordance with this Agreement to the satisfaction of City.

4. ADDITIONAL SERVICES. In the event City desires the performance of additional services not otherwise specified in this Agreement, such services shall be authorized by written task order approved in advance of the performance thereof. Such task order shall include a description of the services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefore, the time of performance thereof, and such other matters as the Parties deem appropriate for the accomplishment of such services. Except to the extent modified by a task order, all other terms and conditions of this Agreement shall be deemed incorporated in each such task order.

5. INDEPENDENT CONSULTANT. At all times during the term of this Agreement, Consultant shall be, and is an independent consultant and shall not be an employee or agent of City. Consultant shall not be entitled to any benefit, right, or compensation other than that provided in this Agreement.

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Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.

6. RESERVED

7. FACILITIES AND EQUIPMENT. Consultant shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing the Equipment.

8. INFORMATION AND DOCUMENTATION.

A. Information from City. City has made an effort to provide Consultant with all information necessary for Consultant to provide the Equipment. If Consultant believes additional information is required, Consultant shall promptly notify City and City will provide to Consultant all relevant non-privileged information in City’s possession.

9. CONFLICTS OF INTEREST PROHIBITED. Consultant (including its employees, agents, and subconsultants) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement. Consultant shall comply with all requirements of the Political Reform Act (California Government Code Section 81000, et seq.) and other laws relating to conflicts of interest, including: (a) Consultant shall not make or participate in a decision made by City if it is reasonably foreseeable that the decision may have a material effect on Consultant’s economic interest, and (b) if required by law, Consultant shall file financial disclosure forms with the City Clerk. If Consultant maintains or acquires a conflicting interest, any contract with City (including this Agreement) involving Consultant’s conflicting interest may be terminated by City.

10. NONDISCRIMINATION. Consultant shall comply with all applicable federal, state, and local laws regarding nondiscriminatory employment practices, whether or not said laws are expressly stated in this Agreement. Consultant shall not discriminate against any employee or applicant because of race, color, religious creed, national origin, physical disability, mental disability, medical condition, marital status, sexual orientation, sex, age, or any other basis, as defined in California Civil Code Section 51.

11. COMPLIANCE WITH LAW AND STANDARD OF CARE. Consultant shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this Agreement.

Consultant shall perform Services using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals, with a level of experience and training similar to Consultant, performing under circumstances similar to those required by this Agreement.

12. RESERVED.

13. RESERVED.

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14. INSURANCE. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, his agents, representatives, subconsultants, or employees.

A. Verification of Coverage.

Consultant shall furnish City with original certificates of insurance and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by City before work commences.

Proof of Insurance shall be mailed to the following address or any subsequent address as may be directed in writing by the City Risk Manager:

CITY OF NEWARK
Attn: Risk Manager
37101 Newark Boulevard
Newark, CA 94560
City reserves the right to require and obtain complete, certified copies of all required insurance policies and endorsements at any time. Failure to exercise this right at any time shall not constitute a waiver of right to exercise later. Consultant shall immediately furnish City with certificates of renewal for each policy that is renewed during the term of this Agreement.

B. Minimum Scope of Insurance.

Coverage shall be at least as broad as:

1. Insurance Services Office Form Number CG 00 01covering Commercial General Liability on an occurrence basis, including products and completed operations, property damage, bodily injury, and personal and advertising injury; and

2. Insurance Services Office Form Number CA 00 01 covering Code 1, (any auto), or Code 8 (hired) and Code 9 (non-owned) if consultant has no owned autos; and

3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance; and

4. Errors and Omissions Liability insurance appropriate to the Consultant’s profession. Architects’ and Engineers’ coverage is to be endorsed to include contractual liability.

C. Minimum Limits of Insurance.

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It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements and/or limits shall be available to the Additional Insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of and Insurance policy or proceeds available to the named Insured; whichever is greater.

Consultant shall maintain limits no less than:

1. General Liability:
(including products and
completed operations,
property damage, bodily
injury, and personal and
advertising injury)
$2,000,000 per occurrence for
bodily injury, personal injury, and
property damage. 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.

2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.

3. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.

4. Errors and Omissions
Liability:
$1,000,000 per occurrence or
claim; $2,000,000 aggregate.

D. Claims Made Policies.

For all “claims made” coverage, in the event that Consultant changes insurance carriers Consultant shall purchase “tail” coverage or otherwise provide for continuous coverage covering the Term of this Agreement and not less than five (5) years thereafter. Proof of such “tail” or other continuous coverage shall be required at any time that the Consultant changes to a new carrier.

E. Wasting Policies.

No policy required by this paragraph 14 shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense).

F. Remedies.

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 exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:

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1. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;

2. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or

3. Terminate this Agreement.

G. Acceptability of Insurers.

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City Risk Manager. All insurance companies providing coverage to Consultant shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California.

H. Other Insurance Provisions.

The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

1. Additional Insureds. City, its officers, officials, directors, employees and volunteers (“Additional Insureds”) are to be covered as insureds with respect to liability arising out of work or operations performed by or on behalf of Consultant; including materials, parts or equipment furnished in connection with such work or operations.

2. Primary Coverage. For any claims related to Services, Consultant’s insurance coverage shall be primary insurance as respects City, its officers, officials, directors, employees, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, directors, employees, or volunteers shall be excess of Consultant’s insurance and shall not be contribute with it. Consultant’s policy will not seek contribution from the City’s insurance or self-insurance.

3. Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled during the term of this Agreement without notice to City.

4. Civil Code § 2782. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the California Civil Code.

5. Deductibles and Self-Insured Retentions (SIR). All deductibles and self-insured retentions must be disclosed to the City Risk Manager for approval and shall not reduce the limits of liability. Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named Insured or the City.

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6. Subconsultants. Consultant shall include all subconsultants as insureds under its policies or shall require and verify separate certificates and endorsements have been obtained for each subconsultant. All coverages for subconsultants shall be subject to all of the requirements stated herein.

7. Waiver of Subrogation. With respect to Workers’ Compensation and Employer’s Liability Coverage, the insurer shall agree to waive all rights of subrogation against City, its officers, officials, directors, employees, and volunteers for losses arising from work performed by Consultant for City.

8. Coverage is Material Element. Maintenance of proper insurance coverage in conformity with the provision of this paragraph 14 is a material element of this Agreement and failure to maintain or renew coverage or to provide evidence of coverage or renewal may be treated by City as a material breach of this Agreement.

9. Variation. The City Risk Manager may approve a variation in these insurance requirements upon a determination that the coverage, scope, limits, and form of such insurance are either not commercially available or that City’s interests are otherwise fully protected. Any variation granted shall be done in writing and shall be made a part of this Agreement as Appendix “A”.

15. REPORTING DAMAGES. If any damage (including but not limited to death, personal injury or property damage) occurs in connection with the performance of this Agreement, Consultant shall immediately notify the City Risk Manager’s office by telephone at 510-578-4428, and Consultant shall promptly submit to the City’s Risk Manager and the City’s Administrator (see paragraph 19, herein below) a written report (in a form acceptable to City) with the following information: (a) name(s) and address(es) of the injured or deceased person(s), (b) name(s) and address(es) of witnesses, (c) name(s) and address(es) of Consultant’s insurance company(ies), and (d) a detailed description of the damage(s) and whether any City property was involved.

16. INDEMNIFICATION/SAVE HARMLESS. To the fullest extent permitted by law, the Consultant shall: (1) immediately defend, and (2) indemnify City, its, officers, officials, directors, employees, and volunteers from and against all liabilities regardless of nature or type arising out of or resulting from Consultant’s breach of its obligations nder this Agreement, or any negligent or wrongful act or omission of Consultant or Consultant’s officers, employees, agents, or subconsultants. Liabilities subject to the duties to defend and indemnify include, without limitation all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. Consultant’s obligation to indemnify applies except to the extent it is adjudicated that its liability was caused by the active negligence or willful misconduct of an indemnified party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, Consultant’s indemnification obligation shall be reduced in proportion to the established comparative liability of the indemnified party.

In the event that Consultant or any employee, agent, or subconsultant of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as Packet Page 163
an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.

The duty to defend is a separate and distinct obligation from Consultant’s duty to indemnify. Consultant shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel approved by City immediately upon tender to Consultant of the claim in any form or at any stage of an action or proceeding, whether or not liability is established.

An allegation or determination of comparative active negligence or willful misconduct by an indemnified party does not relieve the Consultant from its separate and distinct obligation to defend City. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Consultant asserts that liability is caused in whole or in part by the negligence or willful misconduct of the indemnified party. If it is finally adjudicated that liability was caused by the active negligence or willful misconduct of an indemnified party, Consultant may submit a claim to City for reimbursement of reasonable attorneys’ fees and defense costs.

The review, acceptance or approval of Consultant’s work or work product by any indemnified party shall not affect, relieve or reduce Consultant’s indemnification or defense obligations. This paragraph survives completion of Services or the termination of this contract.

The provisions of this paragraph are not limited by and do not affect the provisions of this contract relating to insurance.

Consultant/Subconsultant’s responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement.

17. LICENSES, PERMITS, ETC. Consultant represents and warrants to City that it has all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required for Consultant to engage in its business. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to engage in its business.

In addition to the foregoing, Consultant shall obtain and maintain during the term hereof a valid City of Newark Business License.

18. TERM/TERMINATION.

A. The term of this Agreement shall commence upon the date first hereinabove written and shall expire upon completion of performance of Services hereunder by Consultant.

B. Notwithstanding the provisions of paragraph 18 Section A above, City may terminate this Agreement at any time and without cause upon written notification to Consultant.

Consultant may cancel this Agreement upon thirty (30) days’ written notice to City and shall include in such notice the reasons for cancellation. In the event of such termination, City shall compensate Consultant for Services rendered and reimburse Consultant for costs and expenses Packet Page 164
incurred, to the date of termination, calculated in accordance with the provisions of paragraph 3.

In ascertaining the Services actually rendered to the date of termination, consideration shall be given both to completed work and work in process of completion. Nothing herein contained shall be deemed a limitation upon the right of City to terminate this Agreement for cause, or otherwise to exercise such rights or pursue such remedies as may accrue to City hereunder.

19. CONTRACT ADMINISTRATION. This Agreement shall be administered by TONYA CONNOLLY of the City of Newark (“Administrator”). All correspondence shall be directed to or through the Administrator or his/her designee.

20. NOTICES. Written notices required or convenient hereunder shall be delivered personally or by depositing the same with the United States Postal Service, first class (or equivalent) postage prepaid and addressed, in the case of Consultant, to:

OWEN EQUIPMENT CITY OF NEWARK

JEFFREY GREENLEE TONYA CONNOLLY
Consultant Administrator
Address: Owen Equipment
Attn: Jeffrey Greenlee
1085 Horizon Drive
Fairfield, CA
City of Newark
Attn: Tonya Connolly
37101 Newark Boulevard
Newark, CA 94560

21. PARAGRAPH HEADINGS. Paragraph headings used herein are for convenience only and shall not be deemed to be a part of such paragraphs and shall not be construed to change the meaning thereof.

22. EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference incorporated herein.

23. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the Parties’ intent under this Agreement.

24. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Alameda.

25. ATTORNEY’S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.

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26. ASSIGNABILITY. Neither Consultant nor City shall subconsult, assign, sell, mortgage, hypothecate, or otherwise transfer their respective interests or obligations in this Agreement without the express prior written consent of the non-transferring party.

27. MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both Parties.

28. WAIVERS. Waiver of breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.

29. ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the Parties concerning the Services. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all.

30. 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 Consultant and City. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns.

31. COVENANT AGAINST CONTINGENT FEES. Consultant hereby warrants that Consultant has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement, and Consultant has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, City shall have the right to annul this Agreement without liability or, at City’s discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.

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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and year first hereinabove written.

CITY OF NEWARK, Owen Equipment Sales
a municipal corporation a California corporation
By By
David J. Benoun, City Manager Consultant
Date Date
Printed Name
Attest:

Sheila Harrington, City Clerk
Date
Approved as to form:

Kristopher J. Kokotaylo, City Attorney
Date
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EXHIBIT A

SCOPE OF SERVICES
Consultant shall deliver a Vactor 2100i combination single engine sewer cleaner with positive displacement vacuum system mounted on a heavy-duty truck chassis at a mutually agreed upon date with City and no later than 60 days following execution of the contract.

Pricing includes a 60-month manufacturer extended warranty.

Reference is made to Sourcewell “Solicitation Number: RFP #101221 Contract” attached hereto and incorporated herein by reference.

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101221-SCA
Rev. 3/2021 1
Solicitation Number: RFP #101221

CONTRACT
This Contract is between Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 (Sourcewell) and Sewer Equipment Co. of America, 1590 Dutch Rd., Dixon, IL 61021 (Supplier).

Sourcewell is a State of Minnesota local government unit and service cooperative created under the laws of the State of Minnesota (Minnesota Statutes Section 123A.21) that offers cooperative procurement solutions to government entities. Participation is open to eligible federal, state/province, and municipal governmental entities, higher education, K-12 education, nonprofit, tribal government, and other public entities located in the United States and Canada.

Sourcewell issued a public solicitation for Sewer Vacuum, Hydro-Excavation, and Municipal Pumping Equipment with Related Accessories and Supplies from which Supplier was awarded a contract.

Supplier desires to contract with Sourcewell to provide equipment, products, or services to Sourcewell and the entities that access Sourcewell’s cooperative purchasing contracts (Participating Entities).

1. TERM OF CONTRACT
A. EFFECTIVE DATE. This Contract is effective upon the date of the final signature below.

B. EXPIRATION DATE AND EXTENSION. This Contract expires November 29, 2025, unless it is cancelled sooner pursuant to Article 22. This Contract may be extended one additional year upon the request of Sourcewell and written agreement by Supplier.

C. SURVIVAL OF TERMS. Notwithstanding any expiration or termination of this Contract, all payment obligations incurred prior to expiration or termination will survive, as will the following: Articles 11 through 14 survive the expiration or cancellation of this Contract. All rights will cease upon expiration or termination of this Contract.

2. EQUIPMENT, PRODUCTS, OR SERVICES
A. EQUIPMENT, PRODUCTS, OR SERVICES. Supplier will provide the Equipment, Products, or Services as stated in its Proposal submitted under the Solicitation Number listed above. 
















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101221-SCA
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Supplier’s Equipment, Products, or Services Proposal (Proposal) is attached and incorporated into this Contract.

All Equipment and Products provided under this Contract must be new and the current model.

Supplier may offer close-out or refurbished Equipment or Products if they are clearly indicated in Supplier’s product and pricing list. Unless agreed to by the Participating Entities in advance, Equipment or Products must be delivered as operational to the Participating Entity’s site.

This Contract offers an indefinite quantity of sales, and while substantial volume is anticipated, sales and sales volume are not guaranteed.

B. WARRANTY. Supplier warrants that all Equipment, Products, and Services furnished are free from liens and encumbrances, and are free from defects in design, materials, and workmanship.

In addition, Supplier warrants the Equipment, Products, and Services are suitable for and will perform in accordance with the ordinary use for which they are intended. Supplier’s dealers and distributors must agree to assist the Participating Entity in reaching a resolution in any dispute over warranty terms with the manufacturer. Any manufacturer’s warranty that extends beyond the expiration of the Supplier’s warranty will be passed on to the Participating Entity.

C. DEALERS, DISTRIBUTORS, AND/OR RESELLERS. Upon Contract execution and throughout the Contract term, Supplier must provide to Sourcewell a current means to validate or authenticate Supplier’s authorized dealers, distributors, or resellers relative to the Equipment, Products, and Services offered under this Contract, which will be incorporated into this Contract by reference. It is the Supplier’s responsibility to ensure Sourcewell receives the most current information.

3. PRICING
All Equipment, Products, or Services under this Contract will be priced at or below the price stated in Supplier’s Proposal.

When providing pricing quotes to Participating Entities, all pricing quoted must reflect a Participating Entity’s total cost of acquisition. This means that the quoted cost is for delivered Equipment, Products, and Services that are operational for their intended purpose, and includes all costs to the Participating Entity’s requested delivery location.

Regardless of the payment method chosen by the Participating Entity, the total cost associated with any purchase option of the Equipment, Products, or Services must always be disclosed in the pricing quote to the applicable Participating Entity at the time of purchase.

A. SHIPPING AND SHIPPING COSTS. All delivered Equipment and Products must be properly packaged. Damaged Equipment and Products may be rejected. If the damage is not readily apparent at the time of delivery, Supplier must permit the Equipment and Products to be 
















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returned within a reasonable time at no cost to Sourcewell or its Participating Entities.

Participating Entities reserve the right to inspect the Equipment and Products at a reasonable time after delivery where circumstances or conditions prevent effective inspection of the Equipment and Products at the time of delivery. In the event of the delivery of nonconforming Equipment and Products, the Participating Entity will notify the Supplier as soon as possible and the Supplier will replace nonconforming Equipment and Products with conforming Equipment and Products that are acceptable to the Participating Entity.

Supplier must arrange for and pay for the return shipment on Equipment and Products that arrive in a defective or inoperable condition.

Sourcewell may declare the Supplier in breach of this Contract if the Supplier intentionally delivers substandard or inferior Equipment or Products.

B. SALES TAX. Each Participating Entity is responsible for supplying the Supplier with valid taxexemption certification(s). When ordering, a Participating Entity must indicate if it is a taxexempt entity.

C. HOT LIST PRICING. At any time during this Contract, Supplier may offer a specific selection of Equipment, Products, or Services at discounts greater than those listed in the Contract.

When Supplier determines it will offer Hot List Pricing, it must be submitted electronically to Sourcewell in a line-item format. Equipment, Products, or Services may be added or removed from the Hot List at any time through a Sourcewell Price and Product Change Form as defined in Article 4 below.

Hot List program and pricing may also be used to discount and liquidate close-out and discontinued Equipment and Products as long as those close-out and discontinued items are clearly identified as such. Current ordering process and administrative fees apply. Hot List Pricing must be published and made available to all Participating Entities.

4. PRODUCT AND PRICING CHANGE REQUESTS
Supplier may request Equipment, Product, or Service changes, additions, or deletions at any time. All requests must be made in writing by submitting a signed Sourcewell Price and Product Change Request Form to the assigned Sourcewell Supplier Development Administrator. This approved form is available from the assigned Sourcewell Supplier Development Administrator.

At a minimum, the request must:
x Identify the applicable Sourcewell contract number;
x Clearly specify the requested change;
x Provide sufficient detail to justify the requested change; 
















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x Individually list all Equipment, Products, or Services affected by the requested change, along with the requested change (e.g., addition, deletion, price change); and x Include a complete restatement of pricing documentation in Microsoft Excel with the effective date of the modified pricing, or product addition or deletion. The new pricing restatement must include all Equipment, Products, and Services offered, even for those items where pricing remains unchanged.

A fully executed Sourcewell Price and Product Change Request Form will become an amendment to this Contract and will be incorporated by reference.

5. PARTICIPATION, CONTRACT ACCESS, AND PARTICIPATING ENTITY REQUIREMENTS

A. PARTICIPATION. Sourcewell’s cooperative contracts are available and open to public and nonprofit entities across the United States and Canada; such as federal, state/province, municipal, K-12 and higher education, tribal government, and other public entities.

The benefits of this Contract should be available to all Participating Entities that can legally access the Equipment, Products, or Services under this Contract. A Participating Entity’s authority to access this Contract is determined through its cooperative purchasing, interlocal, or joint powers laws. Any entity accessing benefits of this Contract will be considered a Service Member of Sourcewell during such time of access. Supplier understands that a Participating Entity’s use of this Contract is at the Participating Entity’s sole convenience and Participating Entities reserve the right to obtain like Equipment, Products, or Services from any other source.

Supplier is responsible for familiarizing its sales and service forces with Sourcewell contract use eligibility requirements and documentation and will encourage potential participating entities to join Sourcewell. Sourcewell reserves the right to add and remove Participating Entities to its roster during the term of this Contract.

B. PUBLIC FACILITIES. Supplier’s employees may be required to perform work at governmentowned facilities, including schools. Supplier’s employees and agents must conduct themselves in a professional manner while on the premises, and in accordance with Participating Entity policies and procedures, and all applicable laws.

6. PARTICIPATING ENTITY USE AND PURCHASING
A. ORDERS AND PAYMENT. To access the contracted Equipment, Products, or Services under this Contract, a Participating Entity must clearly indicate to Supplier that it intends to access this Contract; however, order flow and procedure will be developed jointly between Sourcewell and Supplier. Typically, a Participating Entity will issue an order directly to Supplier or its authorized subsidiary, distributor, dealer, or reseller. If a Participating Entity issues a purchase order, it may use its own forms, but the purchase order should clearly note the applicable Sourcewell 
















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contract number. All Participating Entity orders under this Contract must be issued prior to expiration or cancellation of this Contract; however, Supplier performance, Participating Entity payment obligations, and any applicable warranty periods or other Supplier or Participating Entity obligations may extend beyond the term of this Contract.

Supplier’s acceptable forms of payment are included in its attached Proposal. Participating Entities will be solely responsible for payment and Sourcewell will have no liability for any unpaid invoice of any Participating Entity.

B. ADDITIONAL TERMS AND CONDITIONS/PARTICIPATING ADDENDUM. Additional terms and conditions to a purchase order, or other required transaction documentation, may be negotiated between a Participating Entity and Supplier, such as job or industry-specific requirements, legal requirements (e.g., affirmative action or immigration status requirements), or specific local policy requirements. Some Participating Entities may require the use of a Participating Addendum; the terms of which will be negotiated directly between the Participating Entity and the Supplier. Any negotiated additional terms and conditions must never be less favorable to the Participating Entity than what is contained in this Contract.

C. SPECIALIZED SERVICE REQUIREMENTS. In the event that the Participating Entity requires service or specialized performance requirements not addressed in this Contract (such as ecommerce specifications, specialized delivery requirements, or other specifications and requirements), the Participating Entity and the Supplier may enter into a separate, standalone agreement, apart from this Contract. Sourcewell, including its agents and employees, will not be made a party to a claim for breach of such agreement.

D. TERMINATION OF ORDERS. Participating Entities may terminate an order, in whole or in part, immediately upon notice to Supplier in the event of any of the following events:

1. The Participating Entity fails to receive funding or appropriation from its governing body at levels sufficient to pay for the equipment, products, or services to be purchased; or

2. Federal, state, or provincial laws or regulations prohibit the purchase or change the Participating Entity’s requirements.

E. GOVERNING LAW AND VENUE. The governing law and venue for any action related to a Participating Entity’s order will be determined by the Participating Entity making the purchase.

7. CUSTOMER SERVICE
A. PRIMARY ACCOUNT REPRESENTATIVE. Supplier will assign an Account Representative to Sourcewell for this Contract and must provide prompt notice to Sourcewell if that person is changed. The Account Representative will be responsible for:


















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x Maintenance and management of this Contract;
x Timely response to all Sourcewell and Participating Entity inquiries; and x Business reviews to Sourcewell and Participating Entities, if applicable.

B. BUSINESS REVIEWS. Supplier must perform a minimum of one business review with Sourcewell per contract year. The business review will cover sales to Participating Entities, pricing and contract terms, administrative fees, sales data reports, supply issues, customer issues, and any other necessary information.

8. REPORT ON CONTRACT SALES ACTIVITY AND ADMINISTRATIVE FEE PAYMENT A. CONTRACT SALES ACTIVITY REPORT. Each calendar quarter, Supplier must provide a contract sales activity report (Report) to the Sourcewell Supplier Development Administrator assigned to this Contract. Reports are due no later than 45 days after the end of each calendar quarter. A Report must be provided regardless of the number or amount of sales during that quarter (i.e., if there are no sales, Supplier must submit a report indicating no sales were made).

The Report must contain the following fields:
x Participating Entity Name (e.g., City of Staples Highway Department); x Participating Entity Physical Street Address;
x Participating Entity City;
x Participating Entity State/Province;
x Participating Entity Zip/Postal Code;
x Participating Entity Contact Name;
x Participating Entity Contact Email Address;
x Participating Entity Contact Telephone Number;
x Sourcewell Assigned Entity/Participating Entity Number; x Item Purchased Description;
x Item Purchased Price;
x Sourcewell Administrative Fee Applied; and
x Date Purchase was invoiced/sale was recognized as revenue by Supplier.

B. ADMINISTRATIVE FEE. In consideration for the support and services provided by Sourcewell, the Supplier will pay an administrative fee to Sourcewell on all Equipment, Products, and Services provided to Participating Entities. The Administrative Fee must be included in, and not added to, the pricing. Supplier may not charge Participating Entities more than the contracted price to offset the Administrative Fee.

The Supplier will submit payment to Sourcewell for the percentage of administrative fee stated in the Proposal multiplied by the total sales of all Equipment, Products, and Services purchased 
















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by Participating Entities under this Contract during each calendar quarter. Payments should note the Supplier’s name and Sourcewell-assigned contract number in the memo; and must be mailed to the address above “Attn: Accounts Receivable” or remitted electronically to Sourcewell’s banking institution per Sourcewell’s Finance department instructions. Payments must be received no later than 45 calendar days after the end of each calendar quarter.

Supplier agrees to cooperate with Sourcewell in auditing transactions under this Contract to ensure that the administrative fee is paid on all items purchased under this Contract.

In the event the Supplier is delinquent in any undisputed administrative fees, Sourcewell reserves the right to cancel this Contract and reject any proposal submitted by the Supplier in any subsequent solicitation. In the event this Contract is cancelled by either party prior to the Contract’s expiration date, the administrative fee payment will be due no more than 30 days from the cancellation date.

9. AUTHORIZED REPRESENTATIVE
Sourcewell's Authorized Representative is its Chief Procurement Officer.

Supplier’s Authorized Representative is the person named in the Supplier’s Proposal. If Supplier’s Authorized Representative changes at any time during this Contract, Supplier must promptly notify Sourcewell in writing.

10. AUDIT, ASSIGNMENT, AMENDMENTS, WAIVER, AND CONTRACT COMPLETE A. AUDIT. Pursuant to Minnesota Statutes Section 16C.05, subdivision 5, the books, records, documents, and accounting procedures and practices relevant to this Agreement are subject to examination by Sourcewell or the Minnesota State Auditor for a minimum of six years from the end of this Contract. This clause extends to Participating Entities as it relates to business conducted by that Participating Entity under this Contract.

B. ASSIGNMENT. Neither party may assign or otherwise transfer its rights or obligations under this Contract without the prior written consent of the other party and a fully executed assignment agreement. Such consent will not be unreasonably withheld. Any prohibited assignment will be invalid.

C. AMENDMENTS. Any amendment to this Contract must be in writing and will not be effective until it has been duly executed by the parties.

D. WAIVER. Failure by either party to take action or assert any right under this Contract will not be deemed a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right. Any such waiver must be in writing and signed by the parties.

















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E. CONTRACT COMPLETE. This Contract represents the complete agreement between the parties. No other understanding regarding this Contract, whether written or oral, may be used to bind either party.For any conflict between the attached Proposal and the terms set out in Articles 1-22 of this Contract, the terms of Articles 1-22 will govern.

F. RELATIONSHIP OF THE PARTIES. The relationship of the parties is one of independent contractors, each free to exercise judgment and discretion with regard to the conduct of their respective businesses. This Contract does not create a partnership, joint venture, or any other relationship such as master-servant, or principal-agent.

11. INDEMNITY AND HOLD HARMLESS

Supplier must indemnify, defend, save, and hold Sourcewell and its Participating Entities, including their agents and employees, harmless from any claims or causes of action, including attorneys’ fees incurred by Sourcewell or its Participating Entities, arising out of any act or omission in the performance of this Contract by the Supplier or its agents or employees; this indemnification includes injury or death to person(s) or property alleged to have been caused by some defect in the Equipment, Products, or Services under this Contract to the extent the Equipment, Product, or Service has been used according to its specifications. Sourcewell’s responsibility will be governed by the State of Minnesota’s Tort Liability Act (Minnesota Statutes Chapter 466) and other applicable law.

12. GOVERNMENT DATA PRACTICES
Supplier and Sourcewell must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to all data provided by or provided to Sourcewell under this Contract and as it applies to all data created, collected, received, stored, used, maintained, or disseminated by the Supplier under this Contract.

13. INTELLECTUAL PROPERTY, PUBLICITY, MARKETING, AND ENDORSEMENT A. INTELLECTUAL PROPERTY

1. Grant of License. During the term of this Contract:
a. Sourcewell grants to Supplier a royalty-free, worldwide, non-exclusive right and license to use thetrademark(s) provided to Supplier by Sourcewell in advertising and promotional materials for the purpose of marketing Sourcewell’s relationship with Supplier.
b. Supplier grants to Sourcewell a royalty-free, worldwide, non-exclusive right and license to use Supplier’s trademarks in advertising and promotional materials for the purpose of marketing Supplier’s relationship with Sourcewell.

2. Limited Right of Sublicense. The right and license granted herein includes a limited right of each party to grant sublicenses to their respective subsidiaries, distributors, dealers, 
















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resellers, marketing representatives, and agents (collectively “Permitted Sublicensees”) in advertising and promotional materials for the purpose of marketing the Parties’ relationship to Participating Entities. Any sublicense granted will be subject to the terms and conditions of this Article. Each party will be responsible for any breach of this Article by any of their respective sublicensees.

3. Use; Quality Control.
a. Neither party may alter the other party’s trademarks from the form provided and must comply with removal requests as to specific uses of its trademarks or logos.
b. Each party agrees to use, and to cause its Permitted Sublicensees to use, the other party’s trademarks only in good faith and in a dignified manner consistent with such party’s use of the trademarks. Upon written notice to the breaching party, the breaching party has 30 days of the date of the written notice to cure the breach or the license will be terminated.

4. As applicable, Supplier agrees to indemnify and hold harmless Sourcewell and its Participating Entities against any and all suits, claims, judgments, and costs instituted or recovered against Sourcewell or Participating Entities by any person on account of the use of any Equipment or Products by Sourcewell or its Participating Entities supplied by Supplier in violation of applicable patent or copyright laws.

5. Termination. Upon the termination of this Contract for any reason, each party, including Permitted Sublicensees, will have 30 days to remove all Trademarks from signage, websites, and the like bearing the other party’s name or logo (excepting Sourcewell’s pre-printed catalog of suppliers which may be used until the next printing). Supplier must return all marketing and promotional materials, including signage, provided by Sourcewell, or dispose of it according to Sourcewell’s written directions.

B. PUBLICITY. Any publicity regarding the subject matter of this Contract must not be released without prior written approval from the Authorized Representatives. Publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Supplier individually or jointly with others, or any subcontractors, with respect to the program, publications, or services provided resulting from this Contract.

C. MARKETING. Any direct advertising, marketing, or offers with Participating Entities must be approved by Sourcewell. Send all approval requests to the Sourcewell Supplier Development Administrator assigned to this Contract.

D. ENDORSEMENT. The Supplier must not claim that Sourcewell endorses its Equipment, Products, or Services.

















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14. GOVERNING LAW, JURISDICTION, AND VENUE
The substantive and procedural laws of the State of Minnesota will govern this Contract. Venue for all legal proceedings arising out of this Contract, or its breach, must be in the appropriate state court in Todd County, Minnesota or federal court in Fergus Falls, Minnesota.

15. FORCE MAJEURE
Neither party to this Contract will be held responsible for delay or default caused by acts of God or other conditions that are beyond that party’s reasonable control. A party defaulting under this provision must provide the other party prompt written notice of the default.

16. SEVERABILITY
If any provision of this Contract is found by a court of competent jurisdiction to be illegal, unenforceable, or void then both parties will be relieved from all obligations arising from that provision. If the remainder of this Contract is capable of being performed, it will not be affected by such determination or finding and must be fully performed.

17. PERFORMANCE, DEFAULT, AND REMEDIES
A. PERFORMANCE. During the term of this Contract, the parties will monitor performance and address unresolved contract issues as follows:

1. Notification. The parties must promptly notify each other of any known dispute and work in good faith to resolve such dispute within a reasonable period of time. If necessary, Sourcewell and the Supplier will jointly develop a short briefing document that describes the issue(s), relevant impact, and positions of both parties.

2. Escalation. If parties are unable to resolve the issue in a timely manner, as specified above, either Sourcewell or Supplier may escalate the resolution of the issue to a higher level of management. The Supplier will have 30 calendar days to cure an outstanding issue.

3. Performance while Dispute is Pending. Notwithstanding the existence of a dispute, the Supplier must continue without delay to carry out all of its responsibilities under the Contract that are not affected by the dispute. If the Supplier fails to continue without delay to perform its responsibilities under the Contract, in the accomplishment of all undisputed work, the Supplier will bear any additional costs incurred by Sourcewell and/or its Participating Entities as a result of such failure to proceed.

B. DEFAULT AND REMEDIES. Either of the following constitutes cause to declare this Contract, or any Participating Entity order under this Contract, in default:

1. Nonperformance of contractual requirements, or

2. A material breach of any term or condition of this Contract. 
















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The party claiming default must provide written notice of the default, with 30 calendar days to cure the default. Time allowed for cure will not diminish or eliminate any liability for liquidated or other damages. If the default remains after the opportunity for cure, the non-defaulting party may:
x Exercise any remedy provided by law or equity, or
x Terminate the Contract or any portion thereof, including any orders issued against the Contract.

18. INSURANCE

A. REQUIREMENTS. At its own expense, Supplier must maintain insurance policy(ies) in effect at all times during the performance of this Contract with insurance company(ies) licensed or authorized to do business in the State of Minnesota having an “AM BEST” rating of A- or better, with coverage and limits of insurance not less than the following:

1. Workers’ Compensation and Employer’s Liability.

Workers’ Compensation: As required by any applicable law or regulation.

Employer's Liability Insurance: must be provided in amounts not less than listed below:

Minimum limits:
$500,000 each accident for bodily injury by accident
$500,000 policy limit for bodily injury by disease
$500,000 each employee for bodily injury by disease

2. Commercial General Liability Insurance. Supplier will maintain insurance covering its operations, with coverage on an occurrence basis, and must be subject to terms no less broad than the Insurance Services Office (“ISO”) Commercial General Liability Form CG0001 (2001 or newer edition), or equivalent. At a minimum, coverage must include liability arising from premises, operations, bodily injury and property damage, independent contractors, products-completed operations including construction defect, contractual liability, blanket contractual liability, and personal injury and advertising injury. All required limits, terms and conditions of coverage must be maintained during the term of this Contract.

Minimum Limits:
$1,000,000 each occurrence Bodily Injury and Property Damage $1,000,000 Personal and Advertising Injury
$2,000,000 aggregate for Products-Completed operations
$2,000,000 general aggregate

3. Commercial Automobile Liability Insurance. During the term of this Contract, Supplier will maintain insurance covering all owned, hired, and non-owned automobiles in limits of liability not less than indicated below. The coverage must be subject to terms 
















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no less broad than ISO Business Auto Coverage Form CA 0001 (2010 edition or newer), or equivalent.

Minimum Limits:
$1,000,000 each accident, combined single limit

4. Umbrella Insurance. During the term of this Contract, Supplier will maintain umbrella coverage over Employer’s Liability, Commercial General Liability, and Commercial Automobile.

Minimum Limits:
$2,000,000

5. Network Security and Privacy Liability Insurance. During the term of this Contract, Supplier will maintain coverage for network security and privacy liability. The coverage may be endorsed on another form of liability coverage or written on a standalone policy. The insurance must cover claims which may arise from failure of Supplier’s security resulting in, but not limited to, computer attacks, unauthorized access, disclosure of not public data – including but not limited to, confidential or private information, transmission of a computer virus, or denial of service.

Minimum limits:
$2,000,000 per occurrence
$2,000,000 annual aggregate
Failure of Supplier to maintain the required insurance will constitute a material breach entitling Sourcewell to immediately terminate this Contract for default.

B. CERTIFICATES OF INSURANCE. Prior to commencing under this Contract, Supplier must furnish to Sourcewell a certificate of insurance, as evidence of the insurance required under this Contract. Prior to expiration of the policy(ies), renewal certificates must be mailed to Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 or sent to the Sourcewell Supplier Development Administrator assigned to this Contract. The certificates must be signed by a person authorized by the insurer(s) to bind coverage on their behalf.

Failure to request certificates of insurance by Sourcewell, or failure of Supplier to provide certificates of insurance, in no way limits or relieves Supplier of its duties and responsibilities in this Contract.

C. ADDITIONAL INSURED ENDORSEMENT AND PRIMARY AND NON-CONTRIBUTORY INSURANCE CLAUSE. Supplier agrees to list Sourcewell and its Participating Entities, including their officers, agents, and employees, as an additional insured under the Supplier’s commercial general liability insurance policy with respect to liability arising out of activities, “operations,” or “work” performed by or on behalf of Supplier, and products and completed operations of Supplier. The policy provision(s) or endorsement(s) must further provide that coverage is 
















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primary and not excess over or contributory with any other valid, applicable, and collectible insurance or self-insurance in force for the additional insureds.

D. WAIVER OF SUBROGATION. Supplier waives and must require (by endorsement or otherwise) all its insurers to waive subrogation rights against Sourcewell and other additional insureds for losses paid under the insurance policies required by this Contract or other insurance applicable to the Supplier or its subcontractors. The waiver must apply to all deductibles and/or self-insured retentions applicable to the required or any other insurance maintained by the Supplier or its subcontractors. Where permitted by law, Supplier must require similar written express waivers of subrogation and insurance clauses from each of its subcontractors.

E. UMBRELLA/EXCESS LIABILITY/SELF-INSURED RETENTION. The limits required by this Contract can be met by either providing a primary policy or in combination with umbrella/excess liability policy(ies), or self-insured retention.

19. COMPLIANCE
A. LAWS AND REGULATIONS. All Equipment, Products, or Services provided under this Contract must comply fully with applicable federal laws and regulations, and with the laws in the states and provinces in which the Equipment, Products, or Services are sold.

B. LICENSES. Supplier must maintain a valid and current status on all required federal, state/provincial, and local licenses, bonds, and permits required for the operation of the business that the Supplier conducts with Sourcewell and Participating Entities.

20. BANKRUPTCY, DEBARMENT, OR SUSPENSION CERTIFICATION
Supplier certifies and warrants that it is not in bankruptcy or that it has previously disclosed in writing certain information to Sourcewell related to bankruptcy actions. If at any time during this Contract Supplier declares bankruptcy, Supplier must immediately notify Sourcewell in writing.

Supplier certifies and warrants that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from programs operated by the State of Minnesota; the United States federal government or the Canadian government, as applicable; or any Participating Entity. Supplier certifies and warrants that neither it nor its principals have been convicted of a criminal offense related to the subject matter of this Contract. Supplier further warrants that it will provide immediate written notice to Sourcewell if this certification changes at any time. 
















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21. PROVISIONS FOR NON-UNITED STATES FEDERAL ENTITY PROCUREMENTS UNDER

UNITED STATES FEDERAL AWARDS OR OTHER AWARDS
Participating Entities that use United States federal grant or FEMA funds to purchase goods or services from this Contract may be subject to additional requirements including the procurement standards of the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, 2 C.F.R. § 200. Participating Entities may have additional requirements based on specific funding source terms or conditions. Within this Article, all references to “federal” should be interpreted to mean the United States federal government.

The following list only applies when a Participating Entity accesses Supplier’s Equipment, Products, or Services with United States federal funds.

A. EQUAL EMPLOYMENT OPPORTUNITY. Except as otherwise provided under 41 C.F.R. § 60, all contracts that meet the definition of “federally assisted construction contract” in 41 C.F.R. § 60-

1.3 must include the equal opportunity clause provided under 41 C.F.R. §60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. §, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 C.F.R. § 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The equal opportunity clause is incorporated herein by reference.

B. DAVIS-BACON ACT, AS AMENDED (40 U.S.C. § 3141-3148). When required by federal program legislation, all prime construction contracts in excess of $2,000 awarded by nonfederal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. § 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 C.F.R. § 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-federal entity must report all suspected or reported violations to the federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by Department of Labor regulations (29 C.F.R. § 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-federal entity must report all suspected or reported violations to the federal awarding agency. Supplier must be in compliance with all applicable Davis-Bacon Act provisions. 
















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C. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (40 U.S.C. § 3701-3708). Where applicable, all contracts awarded by the non-federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. §§ 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. § 5).

Under 40 U.S.C. § 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. This provision is hereby incorporated by reference into this Contract. Supplier certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Supplier must comply with applicable requirements as referenced above.

D. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT. If the federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 C.F.R. § 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency. Supplier certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Supplier must comply with applicable requirements as referenced above.

E. CLEAN AIR ACT (42 U.S.C. § 7401-7671Q.) AND THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. § 1251-1387). Contracts and subgrants of amounts in excess of $150,000 require the non-federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. § 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. § 1251- 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).

Supplier certifies that during the term of this Contract will comply with applicable requirements as referenced above.

F. DEBARMENT AND SUSPENSION (EXECUTIVE ORDERS 12549 AND 12689). A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 C.F.R. §180 that implement Executive Orders 12549 (3 C.F.R. § 1986 Comp., p. 189) and 12689 (3 C.F.R. § 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names 
















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of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. Supplier certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency.

G. BYRD ANTI-LOBBYING AMENDMENT, AS AMENDED (31 U.S.C. § 1352). Suppliers must file any required certifications. Suppliers must not have used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Suppliers must disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the non-federal award. Suppliers must file all certifications and disclosures required by, and otherwise comply with, the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352).

H. RECORD RETENTION REQUIREMENTS. To the extent applicable, Supplier must comply with the record retention requirements detailed in 2 C.F.R. § 200.333. The Supplier further certifies that it will retain all records as required by 2 C.F.R. § 200.333 for a period of 3 years after grantees or subgrantees submit final expenditure reports or quarterly or annual financial reports, as applicable, and all other pending matters are closed.

I. ENERGY POLICY AND CONSERVATION ACT COMPLIANCE. To the extent applicable, Supplier must comply with the mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.

J. BUY AMERICAN PROVISIONS COMPLIANCE. To the extent applicable, Supplier must comply with all applicable provisions of the Buy American Act. Purchases made in accordance with the Buy American Act must follow the applicable procurement rules calling for free and open competition.

K. ACCESS TO RECORDS (2 C.F.R. § 200.336). Supplier agrees that duly authorized representatives of a federal agency must have access to any books, documents, papers and records of Supplier that are directly pertinent to Supplier’s discharge of its obligations under this Contract for the purpose of making audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to Supplier’s personnel for the purpose of interview and discussion relating to such documents.

L. PROCUREMENT OF RECOVERED MATERIALS (2 C.F.R. § 200.322). A non-federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation 
















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and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. § 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

M. FEDERAL SEAL(S), LOGOS, AND FLAGS. The Supplier not use the seal(s), logos, crests, or reproductions of flags or likenesses of Federal agency officials without specific pre-approval.

N. NO OBLIGATION BY FEDERAL GOVERNMENT. The U.S. federal government is not a party to this Contract or any purchase by an Participating Entity and is not subject to any obligations or liabilities to the Participating Entity, Supplier, or any other party pertaining to any matter resulting from the Contract or any purchase by an authorized user.

O. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS. The Contractor acknowledges that 31 U.S.C. 38 (Administrative Remedies for False Claims and Statements) applies to the Supplier’s actions pertaining to this Contract or any purchase by a Participating Entity.

P. FEDERAL DEBT. The Supplier certifies that it is non-delinquent in its repayment of any federal debt. Examples of relevant debt include delinquent payroll and other taxes, audit disallowance, and benefit overpayments.

Q. CONFLICTS OF INTEREST. The Supplier must notify the U.S. Office of General Services, Sourcewell, and Participating Entity as soon as possible if this Contract or any aspect related to the anticipated work under this Contract raises an actual or potential conflict of interest (as described in 2 C.F.R. Part 200). The Supplier must explain the actual or potential conflict in writing in sufficient detail so that the U.S. Office of General Services, Sourcewell, and Participating Entity are able to assess the actual or potential conflict; and provide any additional information as necessary or requested.

R. U.S. EXECUTIVE ORDER 13224. The Supplier, and its subcontractors, must comply with U.S.

Executive Order 13224 and U.S. Laws that prohibit transactions with and provision of resources and support to individuals and organizations associated with terrorism.

S. PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT. To the extent applicable, Supplier certifies that during the term of this Contract it will comply with applicable requirements of 2 C.F.R. § 200.216. 
















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T. DOMESTIC PREFERENCES FOR PROCUREMENTS. To the extent applicable, Supplier certifies that during the term of this Contract will comply with applicable requirements of 2 C.F.R. § 200.322.

22. CANCELLATION
Sourcewell or Supplier may cancel this Contract at any time, with or without cause, upon 60 days’ written notice to the other party. However, Sourcewell may cancel this Contract immediately upon discovery of a material defect in any certification made in Supplier’s Proposal. Cancellation of this Contract does not relieve either party of financial, product, or service obligations incurred or accrued prior to cancellation.

Sourcewell Sewer Equipment Co. of America
By: __________________________ By: __________________________ Jeremy Schwartz Shawn Bondele
Title: Chief Procurement Officer Title: Inside Sales Manager Date: ________________________ Date: ________________________ Approved:

By: __________________________
Chad Coauette
Title: Executive Director/CEO
Date: ________________________
























 















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Packet Page 200

EXHIBIT B

PAYMENT
A one-time payment of $670,759.59 will be due thirty (30) days after receipt of equipment specified in Exhibit A.

Packet Page 201
Item  D. 9.

DATE 06/22/2023
TO Honorable Mayor and City Council Members
FROM Michael Carmen, Assistant Engineer
SUBJECT    Approve the plans and specifications and adopt a resolution accepting the bid and awarding the contract for the Base Bid and Additive Alternate Bid No. 1 to VSS International, Inc. for FY 2022-2023 Rubberized Cape Seal and Slurry Seal Program, Project No. 1301 and amending the 2022-2024 Biennial Budget and Capital Improvement Plan; Exempt from CEQA review per CEQA Guidelines Section 153013 SUMMARY AND RECOMMENDATION
Bids for FY 2022-2023 Rubberized Cape Seal and Slurry Seal Program, Project No. 1301 were opened on May 23, 2023. The low monetary bidder, VSS International, Inc. provided a responsive bid, is experienced in this type of project, and is a responsible contractor.  Staff recommends that the City Council, by motion, approve the plans and specifications and, by resolution, accept the bid and award the contract for the Base Bid and Additive Alternative Bid No. 1 to VSS International, Inc., in the amount of $1,716,000 for FY 2022-2023 Rubberized Cape Seal and Slurry Seal Program, Project No. 1301 and amend the 2022-2024 Biennial Budget and Capital Improvement Plan. Staff also recommends including an additional $184,000 in construction contingency, bringing the recommended allocation for the project to $1,900,000.

BACKGROUND
FY 2022-2023 Rubberized Cape Seal and Slurry Seal Program, Project No. 1301 combines asphalt rubberized cape seal and slurry seal projects to encourage better unit prices.  The application of asphalt rubberized cape seal and slurry seal are considered preventative maintenance treatments for roadway pavement which involve the application of sealant materials and are designed to extend pavement life.  Asphalt rubberized cape seal consists of a rubberized chip seal topped with traditional slurry seal.  To produce a rubberized chip seal, waste tires are ground into crumb rubber granules and mixed with asphalt cement to create an asphalt rubber binder.  The asphalt rubber binder is used as the initial layer of oil in which aggregate chips are embedded to provide greater resistance to cracking, oxidation, and aging than traditional chip seals. Slurry seal consists of a thin overcoat inclusive of water, asphalt emulsion, aggregate, and additives designed to protect the underlying pavement structure and provide a new driving surface.  Rubberized cape seal extends pavement life an additional eight to twelve years and slurry seal extends pavement life an additional five to seven years before a mill and fill, overlay, or full reconstruction are required.  Rubberized cape seal and slurry seal are less intensive than a typical pavement reconstruction, but more cost-effective, which allows for a greater number of Packet Page 202
streets to be treated.  The quick application and dry time of cape seal and slurry seal also minimize impacts to local traffic.

On October 14, 2021, the City Council adopted a resolution authorizing staff to submit an application for the Rubberized Pavement Grant Program administered by the California Department of Resources Recycling and Recovery (CalRecycle).  In May 2022, CalRecycle awarded the City a grant for up to $75,000 based on a reimbursement rate of $1 per square yard of rubberized cape seal applied.  The proposed 79,355 square yards of asphalt rubber cape seal to be applied with this project will result in the City receiving $75,000 in grant reimbursement and diverts approximately 5,000 tires from entering local landfills.

The combined project scope of work includes approximately 79,355 square yards of asphalt rubber cape seal, 310,665 square feet of type II polymer modified asphalt emulsion slurry seal, and patch paving of streets that will receive the asphalt rubber cape seal.

The proposed slurry seal treatment of Newark Boulevard between Thornton Avenue and Central Avenue also provides the opportunity to upgrade the existing Class II bike lanes to Class IV separated bike lanes in both directions as identified in the City’s Pedestrian and Bicycle Master Plan.  Class IV separated bikeways differ from standard bicycle lanes in that they provide a horizontal separation between the bike lane and adjacent traffic lane while also introducing a vertical separation element to further minimize interactions between bicyclists and vehicles. Safety improvements would also be installed at various transition and conflict zones by incorporating high visibility “green” pavement markings per the latest guidelines and recommendations developed by Caltrans, the National Association of City Transportation Officials (NACTO) and the Federal Highway Administration (FHWA).

The project also includes one Additive Alternate Bid Item which would include black-colored aggregate instead of the more typical grey-colored aggregate in the slurry seal mixture.  Use of black-colored aggregate allows the slurry seal to maintain a darker appearance for a longer period, resulting in a better color-contrast and improved visibility of pavement striping and markings on the roadways.

Streets that will receive asphalt rubberized cape seal with FY 2022-2023 Rubberized Cape Seal and Slurry Seal Program, Project No. 1301 include:

Street Cape Seal Limits
Alpine Street Mowry Avenue – Benecia Avenue
Arden Street Thornton Avenue – Plummer
Avenue
Benicia Avenue Alpine Street – Ebbetts Street
Birch Street North of Thornton Avenue – End
Blackwood Drive Dupont Avenue – Darvon Street
Packet Page 203
Cabernet Avenue Haley Street – Orleans Drive
Castillon Drive Tourraine Drive – Brittany Avenue
Cinnabar Court Birch Street – End
Ebbetts Street Benecia Avenue – Truckee Court
Elmwood Avenue  Darvon Avenue – Charles Street
Fair Avenue  Mayhews Landing Road – Hafner
Street
Fair Avenue Newark Boulevard – Mayhews
Landing Road
Fair Court Fair Court – End
Flintwood Drive Dupont Avenue – End
Greenpoint Court Greenpoint Street – End
Greenpoint Street Civic Terrace Avenue –
Greenpoint Court
Jacaranda Court Jacaranda Drive – End
Jacaranda Drive Smith Avenue – Birch Street
Lakewood Court Lakewood Drive – End
Lakewood Drive Blackwood Drive – Lakewood
Court
Levi Street Benecia Avenue – Truckee Court
Montcalm Avenue Park End – Cherry Street
Montcalm Avenue Cherry Street – La Salle Drive
Plummer Avenue  Cherry Street – End
Quartz Place Levi Street – Northeast End
Rosewood Drive Dalewood Drive – Ruschin Drive
San Antonio Street Milani Avenue – San Antonio Way
San Antonio Way San Antonio Street – Cedar
Boulevard
St. Isabel Avenue Cedar Boulevard – End
St. Mary Street Milani Avenue to St. Mark Avenue
Truckee Court Ebbetts Street - End
Streets that will receive a slurry seal with FY 2022-2023 Rubberized Cape Seal and Slurry Seal Program, Project No. 1301 include:

Street Slurry Seal Limits
Acorn Place Mandarin Avenue – End
Aleppo Drive Enterprise Drive – Mandarin Avenue
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Galletta Drive Plummer Avenue – Plummer Avenue
Mandarin Avenue Aleppo Drive – Aleppo Drive
Guava Place Guava Drive – End
Newark Boulevard Thornton Avenue – Central Avenue

DISCUSSION/ANALYSIS
Bids for FY 2022-2023 Rubberized Cape Seal and Slurry Seal Program, Project No. 1301 were opened on May 23, 2023.  The City received a total of four bids as follows:

Bidder Base Bid
Base Bid
Plus Additive
Alternate Bid
No.1
VSS
International,
Inc.
$1,716,000.00
$1,716,000.00
DooLittle
Construction,
LLC
*$1,709,470.40
$1,719,719.00
American
Pavement
Systems
$1,775,748.10
$1,796,245.30
Pavement
Coatings Co. $1,905,998.85 $1,936,744.65
Engineer’s
Estimate $1,395,763.30 $1,436,757.70
*Mathematical Error-Corrected
After an analysis of the bids received, staff concluded that the high bid prices were most likely the result of the competitive bidding climate and heightened material, oil, and construction costs, in addition to the high demand for asphalt repairs such as patch paving due to the recent heavy storms experienced in California this past winter. As stated in the Project Specifications, determination of the low monetary bidder was based on the Base Bid plus Additive Alternative Bid No. 1.  The lowest monetary bidder, VSS International, Inc., submitted a responsive bid and is experienced in this type of project. Based on the bid submitted by VSS International, Inc., staff recommends the addition of Additive Alternate Bid No. 1 (Substitution of Black Aggregate) to the construction contract.  As detailed below, there are sufficient funds for this project to include the recommended Additive Alternate Bid No. 1.

FISCAL IMPACT
In addition to the $1,716,000 contract amount, staff recommends including an Packet Page 205
In addition to the $1,716,000 contract amount, staff recommends including an additional $184,000 in construction contingency, equivalent to approximately ten percent (10%) of the contract amount, to account for material testing and other unanticipated construction costs.  The added contingency would bring the recommended allocation for the project to $1,900,000.  $75,000 of the total allocation would be reimbursed to the City by the Rubberized Pavement Grant Program administered by the California Department of Resources Recycling and Recovery (CalRecycle).

The 2022-2024 Biennial Budget and Capital Improvement Plan includes funding in the amount of $500,000 for FY 2022-2023 Rubberized Cape Seal and Slurry Seal Program, Project 1301 using Highway Users Tax Account funds. Further, staff recommends that the City Council approve an amendment of the 2022-2024 Biennial Budget and Capital Improvement Plan to reallocate funds from previously approved projects as follows:

Description                       Expenditure                                                        Amount To:   Gas Tax – HUTA      Fund 201.90.091.910.6221.CIP001301            $1,400,000 Fr:    Gas Tax – HUTA      Fund 201.90.091.910.6221.CIP001238            $   319,370 Gas Tax – HUTA      Fund 201.90.091.910.6221.CIP001300           $1,080,630 With this reallocation, the 2022-2024 Biennial Budget and Capital Improvement Plan will include sufficient funding for FY 2022-2023 Rubberized Cape Seal and Slurry Seal Program, Project 1301 using Highway Users Tax Account (Gas Tax) funds.

ENVIRONMENTAL/PLANNING COMMISSION REVIEW
The repair and maintenance of existing facilities is categorically exempt under the California Environmental Quality Act (CEQA) section 15301 (Existing Facilities).

REVIEW AND APPROVAL
Prepared by – Michael Carmen, Assistant Engineer
Reviewed by – Jayson Imai, Assistant City Engineer
Reviewed by – Soren Fajeau, Public Works Director
Reviewed by – Krysten Lee, Finance Director
Reviewed by – Kristopher J. Kokotaylo, City Attorney
Approved by – Lenka Hovorka, Assistant City Manager
Attachments
Resolution
Public Works Contract Agreement
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RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK ACCEPTING THE BID AND AWARDING THE

CONTRACT FOR THE BASE BID AND ADDITIVE
ALTERNATE BID NO. 1 TO VSS INTERNATIONAL, INC. FOR
THE FY 2022-2023 RUBBERIZED CAPE SEAL AND SLURRY
SEAL PROGRAM, PROJECT NO. 1301 AND AMENDMENT OF
THE 2022-2024 BIENNIAL BUDGET AND CAPITAL

IMPROVEMENT PLAN
WHEREAS, the Public Works Department invited sealed bids for the construction of public improvements for FY 2022-2023 Rubberized Cape Seal and Slurry Seal Program, Project No. 1301 (the “Project”); and
WHEREAS, the City has, upon due notice, received a total of four bids for the Project that were reviewed by staff for responsiveness and responsibility; and WHEREAS, as stated in the Project Specifications, determination of the low monetary bidder was based on the Base Bid plus Additive Alternate Bid No. 1; and WHEREAS, VSS International, Inc. was determined to be the lowest responsible bidder with a Base Bid plus Additive Alternate Bid No. 1 of $1,716,000; and WHEREAS, staff also recommends allocating an additional $184,000 in construction contingency, which would bring the total allocation for Project No. 1301 to $1,900,000.

NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Newark does hereby find that VSS International, Inc. is the lowest responsive and responsible bidder for FY 2022-2023 Rubberized Cape Seal and Slurry Seal Program, Project No. 1301, in the City of Newark.

BE IT FURTHER RESOLVED that the City Council does hereby accept said bid of said company and does hereby authorize the City Manager of the City of Newark to execute an agreement with said company, in a form approved by the City Attorney, for the construction of FY 2022-2023 Rubberized Cape Seal and Slurry Seal Program, Project No. 1301, according to the plans, specifications, and terms of said bid for the Base Bid plus Additive Alternate Bid No. 1 in an amount not to exceed $1,716,000.

BE IT FURTHER RESOLVED that the City Council does hereby approve a construction contingency in the amount of $184,000, resulting in a total allocation of $1,900,000 for the Project, with funding through Highway Users Tax Account funds and grant funds received from the Rubberized Pavement Grant Program administered by the California Department of Resources and Recycling and Recovery (CalRecycle).

BE IT FURTHER RESOLVED that the City Council does hereby approve an amendment of the 2022-2024 Biennial Budget and Capital Improvement Plan to reallocate funds from previously approved projects as follows:

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Description Expenditure Amount
To: Gas Tax – HUTA Fund 201.90.091.910.6221.CIP001301 $1,400,000 Fr: Gas Tax – HUTA Fund 201.90.091.910.6221.CIP001238 $319,370 Gas Tax – HUTA Fund 201.90.091.910.6221.CIP001300 $1,080,630 BE IT FURTHER RESOLVED that the City Council does hereby authorize the City Manager, or their designee, to execute any change orders necessary to account for material testing and other unanticipated construction costs within the total allocation for the Project.

BE IT FURTHER RESOLVED that the City Manager is authorized to take any actions necessary to effectuate the intent of this Resolution.

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Item  D. 10.

DATE 06/22/2023
TO Honorable Mayor and City Council Members
FROM Roya Gonzalez, Administrative Analyst
SUBJECT    Adopt a resolution approving the second amendment to the Contractual Services Agreement with Orion Security and amend the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024
SUMMARY AND RECOMMENDATION
As City staff continue to work on implementing long-term security solutions at City Hall, the temporary security guard services currently in place are recommended to remain for an extended period of time. Staff recommends that City Council authorize the City Manager to amend the existing Contractual Services Agreement with Orion Security to increase the not-to-exceed amount by $55,000 for a total not-to-exceed amount of $132,999 and amend the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 to appropriate $55,000 from the general fund for this agreement.

BACKGROUND
In early 2022, staff engaged consultants to conduct security assessments of each of the City facilities to assess the need for enhanced security such as interior and exterior cameras, panic buttons, and additional key card and other controlled entrance measures. To provide interim security at City Hall, the City entered into an agreement with Orion Security on July 13, 2022 in an amount not to exceed $49,999. Because the long-term security measures were more complex than originally expected, the first amendment to the contract was approved on January 12, 2023, to increase the not-to-exceed amount by $28,000 for a total not-to-exceed amount of $77,999 which would fund security guard services through the end of June 2023.

DISCUSSION/ANALYSIS
The long-term security measures have continued to grow in complexity and have taken longer than expected. Fortunately, the City retained the services of Client First to complete the design and prepare the documents necessary to solicit bids for the installation of the long-term security measures. The design documents are expected to be completed by the end of summer 2023. Once the design is complete the City will solicit bids for the implementation of the long-term security solutions. The bid process and implementation is anticipated to take approximately six months to complete. While staff continue to work on executing the final security measures, funding is needed to keep security guard services at City Hall in place through March 2024.

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FISCAL IMPACT
Staff requests authorization to amend the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 to appropriate $55,000 from the general fund for this agreement.

REVIEW AND APPROVAL
Prepared by - Roya Gonzalez, Administative Analyst
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - Lenka Hovorka, Assistant City Manager
Attachments
713_Reso_Orion_amendment2
Amendment No. 2
Contractual Service Agreement
Amendment No. 1
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RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING THE CITY MANAGER TO
EXECUTE AMENDMENT NO. 2 TO THE CONTRACTUAL

SERVICES AGREEMENT WITH ORION SECURITY TO

PROVIDE SPECIALIZED PROFESSIONAL SERVICES
(TEMPORARY SECURITY GUARD SERVICES) AND
APPROVING AN AMENDMENT TO THE 2022-2024

BIENNENIAL BUDGET AND CAPITAL IMPROVEMENT
PLAN
WHEREAS, on July 13, 2022 the City entered into a Contractual Services Agreement C22041 (the “Agreement”) with Orion Security (the “Consultant”) to provide specialized professional services (temporary security guard services); and WHEREAS, on January 12, 2023 City Council authorized the first amendment of the Agreement increasing the total not-to-exceed amount by $28,000 for a total not-to-exceed amount of $77,999;
WHEREAS, the City finds that the scope of services described in the Agreement continue to be necessary; and
WHEREAS, staff has identified the need to amend the Agreement to increase the not-toexceed amount; and WHEREAS, Section 27, Modifications, of the Agreement allows the Parties to amend the Agreement provided that the amendment is in writing signed by the Parties; and WHEREAS, the Parties desire to amend the Agreement, Section 3. A to increase the “Not to Exceed” Compensation amount; and
WHEREAS, an amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 will be necessary to appropriate funds for this Agreement.

NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Newark hereby authorizes the City Manager to execute Amendment No. 2 to the Contractual Services Agreement with Orion Security to increase the not-to-exceed amount by $55,000 for a total notto-exceed amount of $132,999, in a form approved by the City Attorney.

BE IT FURTHER RESOLVED that the City Council does hereby authorize an amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 by appropriating $55,000 as follows:

TO: 110.20.020.200.6221 CMO Contractual Services $55,000 FR: 110.3000 Unappropriated Fund Balance $55,000
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1 SECOND AMENDMENT TO THE CONTRACTUAL

SERVICES AGREEMENT BETWEEN THE CITY OF

NEWARK AND ORION SECURITY
This Second Amendment to Contractual Services Agreement C22041 between the City of Newark, a municipal corporation, ("City") and Orion Security, a Type “C” Corporation ("Consultant") (sometimes referred to as "Parties") dated July 13, 2022 (the “Agreement”), is entered into as of , 2023 for the provision of specialized professional services (security guard services).

RECITALS
WHEREAS, the Parties executed the Agreement for the provision of specialized professional services (security guard services); and
WHEREAS, Section 27, Modifications, of the Agreement allows the Parties to amend the Agreement provided that the amendment is in writing signed by the Parties; and WHEREAS, the Parties desire to amend the Agreement, Section 3.A to increase the “Not to Exceed” Compensation amount; and
WHEREAS, City staff is authorized to execute this Amendment in a form approved by the City Attorney.

NOW, THEREFORE, the Parties hereby agree as follows:

1. Section 3.A. "Not to Exceed" Compensation, of the Agreement, is amended to increase the not to exceed compensation by $55,000, for a total not to exceed amount of $132,999 (from a previous not to exceed amount of $77,999.).

2. With the exception of the foregoing, all other terms and conditions in the Agreement, as amended, remain in force and effect.

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2 City of Newark Consultant
David J. Benoun Authorized Representative
City Manager Stantec Consulting Services, Inc.

Dated: Dated:

Attest:

Sheila Harrington
City Clerk
Approved as to Form:

KristopherJ. Kokotaylo
City Attorney
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Item  D. 11.

DATE 06/22/2023
TO Honorable Mayor and City Council Members
FROM Tonya Connolly, Maintenance Superintendent
SUBJECT    Adopt a resolution authorizing the City Manager to enter into a Contractual Services Agreement with Cintas Corporation for uniform rental and laundry services SUMMARY AND RECOMMENDATION
The City of Newark regularly utilizes outside firms to provide rental and cleaning of uniforms for Maintenance Division personnel, towels for the Service Center Equipment Shop, towels for the Silliman Activity and Family Aquatic Center, floor mats for six City facilities and related services.  The current uniform rental and laundry services agreement expires June 30, 2023.

Staff recommends that the City Council authorize the City Manager to enter into a Contractual Services Agreement with Cintas Corporation for uniform rental and laundry services beginning Fiscal Year 2024.

BACKGROUND
The 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 includes funding for the ongoing rental and cleaning of uniforms for Maintenance Division personnel, towels for the Service Center Equipment Shop, towels for the Silliman Activity and Family Aquatic Center, floor mats for six City facilities and related services.  A uniform rental and laundry program offers numerous benefits: it enhances employee satisfaction, projects a professional image, promotes safety and cleanliness, and contributes to environmental sustainability by reducing the need for purchasing new uniforms and promoting reuse through regular cleaning and maintenance.

Standardized uniforms enhance public perception and allows the public and colleagues to easily recognize authorized personnel. By opting for a rental program instead of purchasing uniforms, towels, and floor mats, the initial investment is more manageable, reducing costs substantially. Uniform and laundry services providers assume responsibility for regular uniform cleaning, maintenance, repairs and replacement.

DISCUSSION/ANALYSIS
The City of Newark regularly utilizes outside firms to provide uniform rental and laundry services and a new services contract is needed beginning Fiscal Year 2024.  The Maintenance Division of the Public Works Department prepared and released a competitive Request for Proposals (RFP) in accordance with the City's Purchasing Rules and Regulations.  The RFP specified that selection would be made based upon Packet Page 272
the proposed cost for services, experience of staff and maintenance team, proposed methodology, quality control program, proficiency with billing practices, financial stability of company, quality and completeness of proposals, and other factors.

Staff received three (3) proposals on or before February 28, 2023, from the following businesses:

Aramark Uniform Services
Cintas Corporation
Mission Linen Supply
Cintas Corporation provided the lowest cost, most comprehensive proposal for the requested services, supplemented by a detailed presentation that satisfied the stated selection criteria.  Cintas Corporation has successfully provided services of a similar nature to other public entities including AC Transit, County of Santa Clara, Silicon Valley Power, and Valley Transit Authority.  Based on staff's analysis, Cintas Corporation would provide the best overall value to the City for uniform rental and laundry services.  Cintas has a Uniform Advantage Program which would allow staffing to refresh uniforms on a more frequent basis.  Staff is therefore recommending the selection of Cintas Corporation to provide uniform rental and laundry services for Fiscal Years 2024, 2025 and 2026.

The Contractual Services Agreement would begin July 1, 2023, and expire on June 30, 2026, with options for renewal of up to two (2) additional one (1) year terms upon mutual consent of the City and Cintas Corporation as authorized by the City Manager, subject to available funding levels to be approved by the City Council.  Under the terms of the agreement, Cintas Corporation would provide the requested services in the amount not to exceed $129,000 for Fiscal Years 2024, 2025, and 2026.  Should the City and Cintas agree to an extension of the agreement, the not-to-exceed amounts for Fiscal Years 2027 and 2028 would be $46,000 and $48,000, respectively, for a total not-to-exceed amount of $223,000.

FISCAL IMPACT
There is no fiscal impact associated with this action, as the 2022-2024 Biennial Budget and Capital Improvement Plan, for Fiscal Year 2024, includes sufficient funding for uniform rentals and laundry services under the proposed agreement. Future years' funding will be included in future Biennial Budget and Capital Improvement Plans when presented to City Council for approval.

REVIEW AND APPROVAL
Prepared by - Tonya Connolly, Maintenance Superintendent Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - Lenka Hovorka, Assistant City Manager
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Attachments
Resolution
Contractual Services Agreement
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RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING THE CITY MANAGER TO

EXECUTE A CONTRACTUAL SERVICES AGREEMENT

WITH CINTAS CORPORATION IN AN AMOUNT NOT TO
EXCEED $129,000 TOTAL FOR AN INTIAL TERM OF THREE
(3) YEARS WITH AN OPTION TO EXTEND FOR TWO (2)
ADDIITONAL ONE (1) YEAR PERIODS FOR AN
INCREASED TOTAL AMOUNT NOT TO EXCEED $223,000
WHEREAS, the City prepared and released Requests for Proposals (RFP) for rental of uniforms and laundry services from Cintas Corporation; and WHEREAS, the City received proposals under each RFP from three firms that were evaluated by staff based upon the proposed cost for services, experience of staff and maintenance team, proposed methodology, quality control program, proficiency with billing practices, financial stability of company, quality and completeness of proposals and other factors; and WHEREAS, based on the evaluations, staff determined that Cintas Corporation is the most qualified firm to provide rental of uniforms for the Maintenance Division personnel, towels for the Service Center Equipment Shop, towels for the Silliman Aquatic and Family Aquatic Center, floor mats for six City facilities and related services.

NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Newark does hereby approve a Contractual Services Agreement with Cintas Corporation in an amount not to exceed $129,000 for uniform and laundry services for an initial term of three (3) years through Fiscal Year 2026.

BE IT FURTHER RESOLVED that the City Council does hereby authorize the City Manager of the City of Newark to sign the Contractual Services Agreement, attached hereto.

BE IT FURTHER RESOLVED that the City Manager is hereby authorized to renew the aforementioned Contractual Services Agreement for up to two (2) additional one (1) year terms upon mutual consent of the City and Cintas Corporation under the terms of the agreement, with additional amounts not to exceed $46,000 and $48,000 each, respectively, for Fiscal Years 2027 and 2028, for a revised total amount not to exceed $223,000.

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1 CONTRACTUAL SERVICES AGREEMENT

CONSULTANTS
This Service Agreement (hereinafter “Agreement”) is made and entered into this day of , 2023 by and between the CITY OF NEWARK, a municipal corporation (“City”), and CINTAS, a California corporation (“Consultant”), collectively the “Parties”.

W I T N E S S E T H:

WHEREAS, City requested proposals to perform the services generally including: Uniform rentals and laundry services, including uniforms for Maintenance Division personnel, towels for the Service Center Equipment Shop, towels for the Silliman Activity and Family Aquatic Center, floor mats for six City facilities and related services.

WHEREAS, in response to City’s request, Consultant submitted a proposal and, after negotiations, Consultant agreed to perform the Services more particularly described in Exhibit “A” (“Services”), in return for the compensation described in this Agreement and Exhibit “B”.

WHEREAS, in reliance upon Consultant’s documentation of its qualifications, as set forth in Exhibit “C”, City finds that Consultant has demonstrated the requisite qualifications, experience, training, and expertise to perform the requested Services.

NOW, THEREFORE, the Parties hereto agree as follows:

1. CONSULTANT’S SERVICES. Consultant shall perform Services described, and in the time, place, and manner specified in Exhibit “A” in accordance with the terms and conditions of this Agreement. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit “A”, the Agreement shall control.

2. TIME FOR PERFORMANCE. Consultant shall generally adhere to the schedule set forth in Exhibit “A”; provided, that City shall grant reasonable extensions of time for the performance of such Services occasioned by governmental reviews of Consultant’s work product or other unavoidable delays occasioned by circumstances, provided, further, that such unavoidable delays shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, Consultant’s officers or employees. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by Consultant in a reasonably prompt and timely manner based upon the circumstances and direction communicated to Consultant.

Consultant acknowledges the importance to City of City’s performance schedule and agrees to put forth its best professional efforts to perform its Services under this Agreement in a manner consistent with that schedule. City understands, however, that Consultant’s performance must be governed by sound professional practices.

3. COMPENSATION.

A. “Not to Exceed” Compensation. City shall compensate Consultant for all Services performed by Consultant hereunder in an amount based upon Consultant’s hourly or other rates set forth in Exhibit Packet Page 276
2 “B”. The payments specified in Exhibit “B” shall be the only payments to be made to Consultant for Services rendered pursuant to this Agreement.

Notwithstanding the foregoing, the combined total of compensation and costs payable hereunder shall not exceed the sum of One Hundred Twenty-Nine Thousand and No/100 Dollars ($129,000.00) combined for Fiscal Years 2024, 2025 and 2026 unless the performance of services and/or reimbursement of costs and expenses in excess of said amounts have been approved in advance of performing such services or incurring such costs and expenses by City, evidenced in writing authorizing such additional amount. Pursuant to Section 18 of this Agreement, Services may be renewable by Task Order for up to two additional one-year periods. In this event, the total of compensation and costs payable hereunder shall not exceed an additional Forty-Six Thousand and No/100 Dollars ($46,000.00) for Fiscal Year 2027 and an additional Forty-Eight Thousand and No/100 Dollars ($48,000.00) for Fiscal Year 2028, for a combined total of compensation and costs payable for Fiscal Years 2024 through 2028 of Two Hundred Twenty-Three Thousand and No/100 Dollars (223,000.00).

B. Method of Billing. To request payment, Consultant shall submit monthly invoices to City identifying Services performed and the charges therefore (including an identification of personnel who performed Services, hours worked, hourly rates, and reimbursable expenses), based upon Consultant’s billing rates (set forth on Exhibit “B” hereto).

Consultant shall submit all billings for said Services to City in the manner specified in Exhibit “B”; or, if no manner is specified in Exhibit “B”, then according to the usual and customary procedures and practices which Consultant uses for billing clients similar to City.

Invoices shall be sent to:

City of Newark
Attn: Service Center
37440 Filbert Street
Newark, CA 94560
Upon completion of Services, City shall sign off and acknowledge that all terms and conditions have been satisfactorily met; upon which, unless waived by City in writing, Consultant shall prepare an itemized statement, briefly describing by task and/or labor category the items billed.

C. Payment. Upon receipt of an invoice, City shall make payments to Consultant on a monthly basis, or at such other times as may be specified in Exhibit “B”, for Services, which are performed in accordance with this Agreement to the satisfaction of City.

D. Consultant’s Failure to Perform. In the event that Consultant performs Services that do not comply with the requirements of this Agreement, Consultant shall, upon receipt of written notice from City, reperform the services (without additional compensation to Consultant). If Consultant’s failure to perform in accordance with this Agreement causes damages to City, Consultant shall reimburse City for the damages incurred (which may be charged as an offset to Consultant’s payment).

4. ADDITIONAL SERVICES. In the event City desires the performance of additional services not otherwise included within Services, such services shall be authorized by written task order approved in advance of the performance thereof. Such task order shall include a description of the services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefore, the time of performance thereof, and such other matters as the Parties deem appropriate for the accomplishment of such services. Except to Packet Page 277
3 the extent modified by a task order, all other terms and conditions of this Agreement shall be deemed incorporated in each such task order.

5. INDEPENDENT CONSULTANT. At all times during the term of this Agreement, Consultant shall be, and is an independent consultant and shall not be an employee or agent of City. Consultant shall not be entitled to any benefit, right, or compensation other than that provided in this Agreement. City shall have the right to control Consultant only insofar as the results of Consultant’s Services; however, City shall not have the right to control the means by which Consultant accomplishes Services rendered pursuant to this Agreement.

Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.

6. PERSONNEL. Consultant understands that, in entering into this Agreement, City has relied upon Consultant’s ability to perform in accordance with its representations regarding the qualifications of Consultant, including the qualifications of its Authorized Representative, its designated personnel, and its Subconsultants, if any, identified in Exhibit “C”. Therefore, Consultant shall not replace its Authorized Representative, or any of the designated personnel or Subconsultants identified in Exhibit “C”, without the prior written consent of City. All Services shall be performed by, or under, the direct supervision of Consultant’s Authorized Representative.

Consultant agrees to include with all Subconsultants in their subcontract the same requirements and provisions of this Agreement including the indemnity and Insurance requirements to the extent they apply to the scope of the Subconsultant’s work. Subconsultants hired by Consultant agree to be bound to Consultant and City in the same manner and to the same extent as Consultant is bound to City under this Agreement.

Subconsultant further agrees to include these same provisions with any Sub-subconsultant. A copy of this Agreement’s Indemnity and Insurance provisions will be furnished to the Subconsultant upon request. The Consultant shall require all Sub-subconsultants to provide a valid certificate of insurance and the required endorsements included in this Agreement prior to commencement of any Services and will provide proof of compliance to the City.

In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any of Consultant’s designated personnel or Subconsultants, Consultant shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons.

7. FACILITIES AND EQUIPMENT. Consultant shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing Services.

8. INFORMATION AND DOCUMENTATION.

A. Information from City. City has made an effort to provide Consultant with all information necessary for Consultant’s performance of Services. If Consultant believes additional information is required, Consultant shall promptly notify City and City will provide to Consultant all relevant non-privileged information in City’s possession.

B. Consultant’s Accounting Records. Consultant shall maintain all accounting records related to this Agreement in accordance with generally accepted accounting principles and state law requirements, and in no event for less than four (4) years. Consultant’s accounting records shall include, at a minimum, all documents which support Consultant’s costs and expenses related to this Agreement, including personnel, subconsultants’ invoices and payments, and reimbursable expenses. Consultant’s accounting records shall be made available to City within a reasonable time after City’s request, during normal business hours.

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4 C. Ownership of Work Product. All original documents prepared by Consultant (including its employees and subconsultants) for this Agreement (“Work Product”), whether complete or in progress, are the property of City and shall be given to City at the completion of Consultant’s Services, or upon demand of City.

Consultant shall have a right to make and keep copies of the Work Product except for any confidential information.

Consultant shall not reveal the Work Product or the confidential information contained in the Work Product, or make it available, to any third party without the prior written consent of City.

9. CONFLICTS OF INTEREST PROHIBITED. Consultant (including its employees, agents, and subconsultants) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement. Consultant shall comply with all requirements of the Political Reform Act (California Government Code Section 81000, et seq.) and other laws relating to conflicts of interest, including: (a) Consultant shall not make or participate in a decision made by City if it is reasonably foreseeable that the decision may have a material effect on Consultant’s economic interest, and (b) if required by law, Consultant shall file financial disclosure forms with the City Clerk. If Consultant maintains or acquires a conflicting interest, any contract with City (including this Agreement) involving Consultant’s conflicting interest may be terminated by City.

10. NONDISCRIMINATION. Consultant shall comply with all applicable federal, state, and local laws regarding nondiscriminatory employment practices, whether or not said laws are expressly stated in this Agreement. Consultant shall not discriminate against any employee or applicant because of race, color, religious creed, national origin, physical disability, mental disability, medical condition, marital status, sexual orientation, sex, age, or any other basis, as defined in California Civil Code Section 51.

11. COMPLIANCE WITH LAW AND STANDARD OF CARE. Consultant shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this Agreement. Consultant shall perform Services using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals, with a level of experience and training similar to Consultant, performing under circumstances similar to those required by this Agreement.

12. RESERVED.

13. RESERVED.

14. INSURANCE. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, his agents, representatives, subconsultants, or employees.

A. Verification of Coverage.

Consultant shall furnish City with original certificates of insurance and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by City before work commences.

Proof of Insurance shall be mailed to the following address or any subsequent address as may be directed in writing by the City Risk Manager:

CITY OF NEWARK
Attn: Risk Manager
Packet Page 279
5 37101 Newark Boulevard
Newark, CA 94560
City reserves the right to require and obtain complete, certified copies of all required insurance policies and endorsements at any time. Failure to exercise this right at any time shall not constitute a waiver of right to exercise later. Consultant shall immediately furnish City with certificates of renewal for each policy that is renewed during the term of this Agreement.

B. Minimum Scope of Insurance.

Coverage shall be at least as broad as:

1. Insurance Services Office Form Number CG 00 01covering Commercial General Liability on an occurrence basis, including products and completed operations, property damage, bodily injury, and personal and advertising injury; and

2. Insurance Services Office Form Number CA 00 01 covering Code 1, (any auto), or Code 8 (hired) and Code 9 (non-owned) if consultant has no owned autos; and

3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance; and

4. Errors and Omissions Liability insurance appropriate to the Consultant’s profession. Architects’ and Engineers’ coverage is to be endorsed to include contractual liability.

C. Minimum Limits of Insurance.

It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements and/or limits shall be available to the Additional Insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of and Insurance policy or proceeds available to the named Insured; whichever is greater.

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6 Consultant shall maintain limits no less than:

1. General Liability:
(including products and
completed operations, property
damage, bodily injury, and
personal and advertising injury)
$2,000,000 per occurrence for bodily
injury, personal injury, and property
damage. 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.

2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.

3. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.

4. Errors and Omissions Liability: $1,000,000 per occurrence or claim; $2,000,000 aggregate.

D. Deductibles and Self-Insured Retentions.

Any deductibles or self-insured retentions must be declared to and approved by the City Risk Manager. At the option of City, either: (1) the insurer shall reduce or eliminate such deductibles or selfinsured retentions as respects to City, its officers, officials, directors, employees, contractors, agents, and volunteers, or (2) Consultant shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses in an amount specified by the City Risk Manager or designee.

E. Claims Made Policies.

For all “claims made” coverage, in the event that Consultant changes insurance carriers Consultant shall purchase “tail” coverage or otherwise provide for continuous coverage covering the Term of this Agreement and not less than five (5) years thereafter. Proof of such “tail” or other continuous coverage shall be required at any time that the Consultant changes to a new carrier.

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7 F. Wasting Policies.

No policy required by this paragraph 14 shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense).

G. Remedies.

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 exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:

1. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;

2. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or

3. Terminate this Agreement.

H. Acceptability of Insurers.

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City Risk Manager. All insurance companies providing coverage to Consultant shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California.

I. Other Insurance Provisions.

The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

1. Additional Insureds. City, its officers, officials, directors, employees and volunteers (“Additional Insureds”) are to be covered as insureds with respect to liability arising out of work or operations performed by or on behalf of Consultant; including materials, parts or equipment furnished in connection with such work or operations.

2. Primary Coverage. For any claims related to Services, Consultant’s insurance coverage shall be primary insurance as respects City, its officers, officials, directors, employees, and volunteers.

Any insurance or self-insurance maintained by City, its officers, officials, directors, employees, or volunteers shall be excess of Consultant’s insurance and shall not be contribute with it. Consultant’s policy will not seek contribution from the City’s insurance or self-insurance.

3. Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled during the term of this Agreement without notice to City.

4. Civil Code § 2782. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the California Civil Code.

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8 5. Deductibles and Self-Insured Retentions (SIR). All deductibles and self-insured retentions must be disclosed to the City Risk Manager for approval and shall not reduce the limits of liability.

Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named Insured or the City.

6. Subconsultants. Consultant shall include all subconsultants as insureds under its policies or shall require and verify separate certificates and endorsements have been obtained for each subconsultant. All coverages for subconsultants shall be subject to all of the requirements stated herein.

7. Waiver of Subrogation. With respect to Workers’ Compensation and Employer’s Liability Coverage, the insurer shall agree to waive all rights of subrogation against City, its officers, officials, directors, employees, and volunteers for losses arising from work performed by Consultant for City.

8. Coverage is Material Element. Maintenance of proper insurance coverage in conformity with the provision of this paragraph 14 is a material element of this Agreement and failure to maintain or renew coverage or to provide evidence of coverage or renewal may be treated by City as a material breach of this Agreement.

9. Variation. The City Risk Manager may approve a variation in these insurance requirements upon a determination that the coverage, scope, limits, and form of such insurance are either not commercially available or that City’s interests are otherwise fully protected. Any variation granted shall be done in writing and shall be made a part of this Agreement as Appendix “A”.

15. REPORTING DAMAGES. If any damage (including but not limited to death, personal injury or property damage) occurs in connection with the performance of this Agreement, Consultant shall immediately notify the City Risk Manager’s office by telephone at 510-578-4428, and Consultant shall promptly submit to the City’s Risk Manager and the City’s Administrator (see paragraph 19, herein below) a written report (in a form acceptable to City) with the following information: (a) name(s) and address(es) of the injured or deceased person(s), (b) name(s) and address(es) of witnesses, (c) name(s) and address(es) of Consultant’s insurance company(ies), and (d) a detailed description of the damage(s) and whether any City property was involved.

16. INDEMNIFICATION/SAVE HARMLESS. To the fullest extent permitted by law, the Consultant shall: (1) immediately defend, and (2) indemnify City, its, officers, officials, directors, employees, and volunteers from and against all liabilities regardless of nature or type to the extent arising out of or resulting from any negligent or wrongful act or omission of Consultant or Consultant’s officers, employees, agents, or subconsultants in the performance of Consultant’s Services. Liabilities subject to the duties to defend and indemnify include, without limitation all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. Consultant’s obligation to indemnify applies to the extent due to its negligence or wrongful act or omission. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, Consultant’s indemnification obligation shall be reduced in proportion to the established comparative liability of the indemnified party.

In the event that Consultant or any employee, agent, or subconsultant of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.

The duty to defend is a separate and distinct obligation from Consultant’s duty to indemnify.

Consultant shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel Packet Page 283
9 approved by City immediately upon tender to Consultant of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. An allegation or determination of comparative active negligence or willful misconduct by an indemnified party does not relieve the Consultant from its separate and distinct obligation to defend City. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Consultant asserts that liability is caused in whole or in part by the negligence or willful misconduct of the indemnified party. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful misconduct of an indemnified party, Consultant may submit a claim to City for reimbursement of reasonable attorneys’ fees and defense costs.

The review, acceptance or approval of Consultant’s work or work product by any indemnified party shall not affect, relieve or reduce Consultant’s indemnification or defense obligations. This paragraph survives completion of Services or the termination of this contract. The provisions of this paragraph are not limited by and do not affect the provisions of this contract relating to insurance.

Consultant/Subconsultant’s responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement.

17. LICENSES, PERMITS, ETC. Consultant represents and warrants to City that it has all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required for Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. In addition to the foregoing, Consultant shall obtain and maintain during the term hereof a valid City of Newark Business License.

18. TERM/TERMINATION.

A. The initial term of this contract shall be July 1, 2023 to June 30, 2026. If both the City and Consultant agree, this contract is renewable by Task Order for up to two (2) one (1) year periods, as authorized by the Public Works Director subject to available funding to be approved in advance by the City Council.

B. Notwithstanding the provisions of Section 18 Paragraph A above, City may terminate this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon thirty (30) days’ written notice to City and shall include in such notice the reasons for cancellation.

In the event of such termination, City shall compensate Consultant for Services rendered and reimburse Consultant for costs and expenses incurred, to the date of termination, calculated in accordance with the provisions of paragraph

3. In ascertaining the Services actually rendered to the date of termination, consideration shall be given both to completed work and work in process of completion. Nothing herein contained shall be deemed a limitation upon the right of City to terminate this Agreement for cause, or otherwise to exercise such rights or pursue such remedies as may accrue to City hereunder.

19. CONTRACT ADMINISTRATION. This Agreement shall be administered by TONYA CONNOLLY of the City of Newark (“Administrator”). All correspondence shall be directed to or through the Administrator or his/her designee.

20. NOTICES. Written notices required or convenient hereunder shall be delivered personally or by depositing the same with the United States Postal Service, first class (or equivalent) postage prepaid and addressed, in the case of Consultant, to:

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10 CINTAS CITY OF NEWARK

DON LEE TONYA CONNOLLY
Consultant Administrator
Address: Cintas
Attn: Don Lee
48400 Fremont Blvd.

Fremont, CA 94538
City of Newark
Attn: Tonya Connolly
37101 Newark Boulevard
Newark, CA 94560

21. PARAGRAPH HEADINGS. Paragraph headings used herein are for convenience only and shall not be deemed to be a part of such paragraphs and shall not be construed to change the meaning thereof.

22. EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference incorporated herein.

23. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the Parties’ intent under this Agreement.

24. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Alameda. If the damages, injury, loss or claim is caused by the negligence of both parties, the apportionment of said damages, injury, loss or claim shall be shared between both parties based upon the comparative degree of each party’s negligence and each party shall be responsible for its own defense and its own cost including but not limited to the cost of defense, attorney’s fees and witness’s fees and expenses incident thereto.

25. ATTORNEY’S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.

26. ASSIGNABILITY. Neither Consultant nor City shall subconsult, assign, sell, mortgage, hypothecate, or otherwise transfer their respective interests or obligations in this Agreement without the express prior written consent of the non-transferring party.

27. MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both Parties.

28. WAIVERS. Waiver of breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.

29. ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the Parties concerning the Services. This Agreement Packet Page 285
11 supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral.

The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all.

30. 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 Consultant and City. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns.

31. COVENANT AGAINST CONTINGENT FEES. Consultant hereby warrants that Consultant has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement, and Consultant has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, City shall have the right to annul this Agreement without liability or, at City’s discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.

Customer agrees it bears sole responsibility for selecting the flame-resistant clothing and fabrics (“FRC”) under this Agreement determining whether such items are appropriate for use by its employees and agents in their applicable work environment(s). Company acknowledges that company has made no representation, warranty, or covenant with respect to the flame-resistant qualities or other characteristics of the FRC or with respect to their fitness or suitability for this or any other purpose. Company makes no representation whether the FRC constitutes appropriate personal protective equipment for the environment(s) to which customer’s employees or agents may be exposed or to the FRC’s ability to protect users from injury or death. Customer agrees to notify all employees and other agents of customer who may wear or will be wearing the FRC that it is not designated for substantial heat exposure or for use around open flames. Customer acknowledges that compliance with any and all OSHA or other similar regulations or requirements relating to personal protective equipment is the sole responsibility of customer.

Further, customer releases company from any and all liability that results or may result from the use of the garments, including but not limited to any alleged failure of the FRC to function as flame-resistant or provide protection against fire and/or heat. Customer hereby agrees to defend, indemnify and hold harmless Company from any claims and damages arising out of or associated with this Agreement or resulting from customer’s or its employees’ use of the FRC.

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12 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and year first hereinabove written.

CITY OF NEWARK, CINTAS,
a municipal corporation a California Corporation
By By
David J. Benoun, City Manager Amanda Smith, Government Account Manager Date Date
Attest:

Sheila Harrington, City Clerk
Date
Approved as to form:

Kristopher J. Kokotaylo, City Attorney
Date
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CSA 3/13 r. 4/15 -13-

EXHIBIT A

SCOPE OF SERVICES
Cintas
Item - Specifications Quantity Bid Price Weekly Monthly City Hall
first aid cabinet 2 $ 682.00 $ 30.00 $ 120.00
4x6 grey mat - lobby (seasonal) 2 $ 3.43 $ 6.86 $ 27.44 3x4 grey mat - rear door (seasonal) 1 $ 2.65 $ 2.65 $ 10.60 TOTAL $ 39.51 $ 158.04
Silliman
Aquatic
Center
first aid cabinet 1 $ 341.00 $ 15.00 $ 60.00
bar towel 300 $ 0.14 $ 45.50 $ 182.00
dust mop 14 $ 0.90 $ 12.60 $ 50.40
3x4 grey mat 3 $ 2.65 $ 7.95 $ 31.80
4x6 grey mat 2 $ 3.43 $ 6.86 $ 27.44
TOTAL $ 87.91 $ 351.64
Community
Center
3x4 grey mat 5 $ 2.65 $ 13.25 $ 53.00
4x6 grey mat 3 $ 3.43 $ 10.29 $ 41.16
3x4 grey mat 4 $ 2.65 $ 10.60 $ 42.40
TOTAL $ 34.14 $ 136.56
Senior
Center
first aid cabinets 1 $ 341.00 $ 15.00 $ 60.00
bar towels 20 $ 0.14 $ 5.70 $ 22.80
3x10 grey mat 1 $ 4.22 $ 4.22 $ 16.88
4x6 grey mat 2 $ 3.43 $ 6.86 $ 27.44
3x5 kleen scrape mat 1 $ 2.60 $ 2.60 $ 10.40
TOTAL $ 34.38 $ 137.52
Police
Department
24x50 bath towel 100 $ 0.93 $ 98.30 $ 393.20
16x27 steam towel 60 $ 0.80 $ 52.72 $ 210.88
3x10 grey mat 1 $ 4.22 $ 4.22 $ 16.88
4x6 grey mat 1 $ 3.43 $ 3.43 $ 13.72
3x5 kleen scrape mat 1 $ 2.60 $ 2.60 $ 10.40
TOTAL $ 161.27 $ 645.08
Service
Center
first aid cabinet 2 $ 682.00 $ 30.00 $ 120.00
orange shop towel 100 $ 0.13 $ 17.00 $ 68.00
blue shop towel 50 $ 0.12 $ 7.80 $ 31.20
fender covers 4 $ 1.18 $ 6.72 $ 26.88
3x4 grey mat 3 $ 2.65 $ 7.95 $ 31.80
4x6 grey mat 1 $ 3.43 $ 3.43 $ 13.72
Carhartt Active Jacket 42 $ 1.13 $ 47.33 $ 189.34
Streets - Carhartt E-Vis workshirt 44 $ 1.18 $ 51.92 $ 207.68 Streets - Carhartt Flex Pants 44 $ 0.45 $ 19.93 $ 79.73 Parks - Kakhi Carhartt Flex Shirt 88 $ 0.43 $ 37.49 $ 149.95 Parks - Charcoal Carhartt Pants 88 $ 0.45 $ 39.86 $ 159.46 Fleet - Navy Lab Coat 33 $ 0.29 $ 9.54 $ 38.15
Fleet - Grey Carhartt Shirt 33 $ 0.43 $ 14.06 $ 56.23
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CSA 3/13 r. 4/15 -14-
Fleet - Charcoal Carhartt Pant 33 $ 0.45 $ 14.95 $ 59.80 Bldgs. Navy Carhartt FR Shirts 33 $ 0.56 $ 18.48 $ 73.92 Bldgs. Navy Carhartt FR Pants 33 $ 0.63 $ 20.79 $ 83.16 376 Carhartt Jacket 42 $ 0.19 $ 7.98 $ 31.92
Uniform Advantage 429 $ 0.09 $ 38.61 $ 154.44
Prep Advantage 429 $ 0.05 $ 21.45 $ 85.80
Emblem Advantage 176 $ 0.06 $ 10.56 $ 42.24
TOTAL $ 425.85 $ 1,703.41
overall % discount 18%
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CSA 3/13 r. 4/15 -15-

EXHIBIT B

PAYMENT
Contractor will submit delivery weekly list and a monthly invoice to the City no later than twenty-one days following each month end. Contractor’s invoice will indicate the quantities and types/descriptions of all delivered items at each location. The City will remit payment for services rendered no later than thirty (30) days from the date the invoice was received by the City. This will be the only form of payment.

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EXHIBIT C

QUALIFICATIONS
Cintas has demonstrated its ability to perform the desired scope of services required under the agreement.

Cintas has been in business since 1929 and continues to provide value added service. Cintas channels servant-led passion and uses it for boots-on-the-ground community service, financial support of numerous not-for-profits and nurturing a mindset among all employee-partners. Cintas has 400 locations across the United States.

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Item  D. 12.

DATE 06/22/2023
TO Honorable Mayor and City Council Members
FROM Art Interiano, Deputy Community Development Director SUBJECT    Adopt a resolution authorizing the City Manager to execute the Fourth Amendment to the Contractual Services Agreement with 4Leaf Inc. to provide temporary professional planning services
SUMMARY AND RECOMMENDATION
The City has relied upon professional consultants to provide services and experience that City staff are unable to provide and to increase capacity during busy periods or when staff resources are low. In August 2021, the City entered into a Contractual Service Agreement (CSA) with 4Leaf Inc. to provide temporary professional planning services in order to complete necessary Planning Division-related tasks. 4Leaf has provided these services since September 2021. Since then, the City Council has approved three amendments to this agreement which combined have totaled $380,150. Staff has evaluated the business need for 4Leaf services for the remainder of calendar year 2023 and has concluded that the services are required to maintain a high level of customer service within the Planning Division. Staff recommends approval of a fourth amendment to the existing CSA, increasing the “not-to-exceed” amount by $119,600 for an amended total not-to-exceed amount of $499,750. The scope of services would remain the same. This increase can be accommodated within the approved Fiscal Year 2024 Planning Division Professional Services budget.

Staff recommends that the City Council approve a resolution authorizing the City Manager to execute the fourth amendment to the Contractual Services Agreement with 4Leaf Inc. to provide temporary professional planning services.

BACKGROUND
The City has relied upon professional consultants to provide services and experience that city staff are unable to provide, such as technical traffic and circulation studies and environmental review services, as well as capacity during busy periods or when staff resources are low. For example, the city currently has several contractual services agreements with consultants for on-call professional city planning services, code enforcement services as well as Public Works construction inspection and civil engineering development plan review services. These consultant services agreements provide the city with the flexibility to address service, and experience needs while maintaining high customer service levels. 4Leaf has been providing professional planning services to the Community Development Department since 2021 as part of a Contractual Service Agreement (CSA).

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Contractual Service Agreement (CSA).

DISCUSSION/ANALYSIS
The need for augmentation to current staff services continues for the Community Development Department (CDD). For the Planning Division to manage the current workload and address the needs of both short and long-range planning, there is an ongoing need for professional services. The 4Leaf staff is assigned to assist the Planning Division in providing customer services and plan review functions. These functions would have been difficult for the existing staff to perform and achieve the high service levels that are expected by the community.  Having this assistance allows the Associate and Senior Planners to focus on moderate and complex work tasks. As a result, there is still a business need for a consultant to perform certain services and plan review tasks, such as processing single-family design reviews and accessory dwelling unit project applications.

Staff recommends that the City amend the existing CSA to increase the “not-to-exceed” amount by $119,600 (a value representing approximately 1040 hours of consultant staff services) thereby extending the services for approximately 6 months. The scope of services would remain the same. Examples of services include responding to inquiries regarding technical planning matters at the public counter, responding to phone and/or email inquiries, processing entitlement applications, and completing building permit plan checks.

FISCAL IMPACT
The total not-to-exceed amount for the 4Leaf fourth contract amendment would be increased by $119,600 for a total not-to-exceed amount of $499,750. The costs for this service can be accommodated in the 2022-2024 Biennial Budget in FY 2024 for Planning Division Professional Services. The agreement and fourth amendment were prepared in accordance with the City’s Purchasing Rules and Regulations.

REVIEW AND APPROVAL
Prepared by -  Art Interiano, Deputy Community Development Director Reviewed by - Steven Turner, Community Development Director Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - Lenka Hovorka, Assistant City Manager
Attachments
4th CSA Agreement with 4Leaf for Planning Services
4Leaf Original CSA
4Leaf 1st Amendment to CSA
4Leaf 2nd Amendment to CSA
4Leaf 3rd Amendment to CSA v2
Resolution
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1 FOURTH AMENDMENT TO THE CONTRACTUAL

SERVICES AGREEMENT BETWEEN THE CITY OF
NEWARK AND 4LEAF, INC.

This Fourth Amendment to Contractual Services Agreement between the City of Newark, a municipal corporation, ("City") and 4LEAF, INC., a Type “C” Corporation ("Consultant") (sometimes referred to as "Parties") dated August 31, 2021 (the “Agreement”), is entered into as of _______ ___, 2023 for the provision of temporary professional planning services.

RECITALS
WHEREAS, the Parties executed the Agreement for the provision of temporary professional planning services to provide technical assistance by individuals possessing experience consistent with minimum qualifications provided by the City; and
WHEREAS, Section 27, Modifications, of the Agreement allows the Parties to amend the Agreement provided that the amendment is in writing signed by the Parties; and WHEREAS, the parties previously executed an amendment to the Agreement to increase the amount of compensation pursuant to the Agreement, in an agreement dated March 18, 2023; and WHEREAS, the Parties desire to amend the Agreement, Section 3.A to increase the “Not to Exceed” Compensation amount; and
WHEREAS, City staff is authorized to execute this Amendment in a form approved by the City Attorney.

NOW, THEREFORE, the Parties hereby agree as follows:

1. Section 3.A. "Not to Exceed" Compensation, of the Agreement, is amended to increase the not to exceed compensation by $119,600, for a total not to exceed amount of $499,750 (from a previous not to exceed amount of $380,150).

2. The Agreement’s Exhibit B (Payment) is amended as outlined in the new Payment (Exhibit 1), attached hereto and incorporated herein by reference.

3. With the exception of the foregoing, all other terms and conditions in the Agreement, as amended, remain in force and effect.

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2 City of Newark Consultant
_________________________________ _________________________________ David J. Benoun Kevin Duggan
City Manager President
4LEAF, Inc.

Dated: ___________________________ Dated: ___________________________ Attest:
__________________________________
Sheila Harrington
City Clerk
Approved as to Form:
__________________________________
Kristopher J. Kokotaylo
City Attorney
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3 EXHIBIT 1

PAYMENT
Consultant will provide the individual performing at the Assistant Planner level at the hourly rate of $110/hour for an amount not to exceed $380,150.

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RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING THE CITY MANAGER TO

EXECUTE THE FOURTH AMENDMENT TO THE
CONTRACTUAL SERVICES AGREEMENT WITH 4LEAF INC.

TO PROVIDE TEMPORARY PROFESSIONAL PLANNING

SERVICES
WHEREAS, On August 31, 2021, the City of Newark awarded a Contractual Services Agreement (the “Agreement”) to 4LEAF Inc. (the “Consultant”) to provide temporary professional planning services; and
WHEREAS, pursuant to Resolution No. 11,327 the City Council approved an amendment to the Agreement to increase the amount of compensation (the “First Amendment”); and WHEREAS, pursuant to Resolution No. 11,371 the City Council approved an amendment to the Agreement to increase the amount of compensation (the “Second Amendment”); and WHEREAS, pursuant to Resolution No. 11,469 the City Council approved an amendment to the Agreement to increase the amount of compensation (the “Third Amendment”); and WHEREAS, the City finds that the scope of services described in the Agreement continue to be necessary and desires to amend the Agreement to provide additional funding for the existing scope of services to be provided by the Consultant.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newark that the City Manager is hereby authorized to execute the Fourth Amendment to the Contractual Services Agreement with 4LEAF Inc., in a form approved by the City Attorney, to provide technical assistance by individuals possessing experience consistent with minimum qualifications provided by the City and to increase the not to exceed amount of the Agreement by $119,600 for a total not to exceed amount of $499,750.

BE IT FURTHER RESOLVED that the City Manager is hereby authorized to take all other actions consistent with this Resolution, including any necessary revisions to the scope of work for the Agreement, in a form approved by the City Attorney, that are within the total not to exceed amount of $499,750.

BE IT FURTHER RESOLVED, that the adopted 2022-2024 Biennial Budget and Capital Improvement Plan, includes appropriations for Fiscal Year 2024 in the Planning Division’s professional services budget in an amount to accommodate the requested fourth amendment compensation.

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Item  D. 13.

DATE 06/22/2023
TO Honorable Mayor and City Council Members
FROM Matthew Farrell, Chief Building Official
SUBJECT    Adopt a resolution authorizing the City Manager to execute Contractual Services Agreements for on-call support services with 4Leaf, Inc., BPR Consulting Group, LLC., Bureau Veritas North America, Inc., CSG Consultants, Inc., and True North Compliance Services, Inc. for the Building Inspection Division and amendment of the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 SUMMARY AND RECOMMENDATION
The City of Newark Building Inspection Division currently has two Contractural Service Agreements for plan review and inspection services, both of which are set to expire at the end of the current fiscal year.  Staff released a Request for Qualifications (RFQ) and 11 firms submitted responses. Staff reviewed the responses and conducted interviews of the potential personnel that would be assisting the division and concluded five firms would best meet the needs of the Building Inspection Division, given the high demand for these services in the current market.

Staff recommends that the City Council, by resolution, authorize the City Manager to execute Contractural Service Agreements with 4Leaf, Inc., BPR Consulting Group, Bureau Veritas North America, Inc., CSG Consultants, and True North Compliance Services, each with a not-to-exceed amount of $300,000 per fiscal year, and amend the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 to increase professional services an additional $75,000 to a total of $300,000.

BACKGROUND
The Building Inspection Division has consistently utilized multiple Contractural Services Agreements for plan review and inspection services to help provide staff support as needed based on the demands for service. These agreements are an essential component to the Division's customer service delivery objectives.  There are currently two firms under contract with the City, one for on-call plan check services with Bureau Veritas and one for on-call inspection services with 4Leaf.  Both agreements are set to expire on June 30, 2023.  In addition to typical building plan review and inspection needs, there are four large identified projects currently in the entitlement phase that will likely require these outside services in the upcoming fiscal year.

Staff released a Request for Qualifications (RFQ) per the City's Purchasing Rules and Regulations earlier this year.  RFQs were sent to firms previously under contract with the City and to firms that expressed interest in providing this scope of services to the Packet Page 337
City.  The RFQ document specified that selection would be made based on the quality and completeness of submission as well as a firm’s experience with engagements of similar scope and complexity, satisfaction of previous clients, and proposed rate schedules.

DISCUSSION/ANALYSIS
Staff received eleven (11) statements of qualifications for On-Call Building Inspection Services following release of the RFQ.  The statements of qualifications were evaluated and ranked according to the selection criteria identified in the RFQ.  Staff also conducted interviews of the potential personnel that would be assisting the Building Inspection Division.  Based on the evaluation of the RFQ submissions and these interviews, staff concluded that five firms, 4Leaf, Inc., BPR Consulting Group, Bureau Veritas North America, Inc., CSG Consultants, and True North Compliance Services would best meet the needs of the Building Inspection Division.

The proposed change from the current model of two agreements to up to five agreements provides the City with the flexibility to call for service from multiple firms based on specific project needs and customer demands. Staff has recently witnessed that individual firms can get backlogged in service requests and these limitations can negatively impact customer service delivery for the City.  Due to the nature of the current industry, requests for limited term or on-call inspection services are becoming more difficult to fulfill in a timely manner.  The expansion to five firms under contract would allow for greater flexibility in helping the Building Inspection Division consistently provide its desired level of customer service.

All agreements are proposed for an initial three-year period with the City Manager authorized to extend each contract two times at one-year intervals each.  The not-to-exceed amount for each agreement per fiscal year is proposed to be $300,000.

This provides the Building Inspection Division with the most flexibility to utilize individual firms based on current availability and fluctuating needs for services.

Staff is also recommending an amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024 to increase professional services an additional $75,000 to a total of $300,000. Staff will diligently monitor expenditures of each agreement to ensure the aggregate total of all five agreements does not exceed the proposed budget of $300,000 in Fiscal Year 2024, if the budget amendment is approved ($225,000 if the budget amendment is not approved).

FISCAL IMPACT
A budget increase of $75,000 is needed for Building Inspection Division professional services in the 2022-2024 Biennial Budget and Capital Improvement Plan for Fiscal Year 2024.  This increase, if ultimately expended, would be off-set by anticipated increased plan review and inspection services fees associated with future development projects.

REVIEW AND APPROVAL
Prepared by - Matthew Farrell, Chief Building Official
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Prepared by - Matthew Farrell, Chief Building Official
Reviewed by - Soren Fajeau, Public Works Director
Reviewed by - Krysten Lee, Finance Director
Reviewed by - Kristopher J. Kokotaylo, City Attorney
Approved by - Lenka Hovorka, Assistant City Manager
Attachments
Resolution RFQ Building Inspection
4Leaf CSA
BPR CSA
BVNA CSA
CSG CSA
TNCS CSA
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RESOLUTION NO.

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

NEWARK AUTHORIZING THE CITY MANAGER TO

EXECUTE CONTRACTUAL SERVICES AGREEMENTS

WITH VARIOUS CONSULTANTS FOR ON-CALL BUILDING

CONSTRUCTION INSEPCTION AND DEVELOPMENT PLAN
REVIEW SERVICES, AND AMENDING THE 2022-2024
BIENNIAL BUDGET FOR FISCAL YEAR 2024 TO PROVIDE

ADDITIONAL FUNDING FOR SAID CONTRACTURAL

SERVICE AGREEMENTS
WHEREAS, the City issued Requests for Qualifications for on-call Inspection and Plan Check Services to assist the City with maintaining service levels; and WHEREAS, a total of eleven statements of qualifications were received and evaluated by staff on the proposed cost for services, qualification and experience of firm and staff assigned to this project, the firms understanding of the City’s desires and general approach to completing the work, and other factors including availability; and
WHEREAS, based on staff’s evaluations, 4Leaf, Inc., BPR Consulting Group, LLC., Bureau Veritas North America, Inc., CSG Consultants, Inc., and True North Compliance Services, Inc. were determined to be the firms who will provide the best overall service to the City; and
WHEREAS, the Public Works Department requires additional funding for Building Inspection Division Professional Services in the amount of $75,000 for Fiscal Year 2024; and WHEREAS, the costs for additional funding for said Building Inspection Contractual Services will be offset from revenues from construction permit fees and other development fees associated with the projects for which said contractual services will be provided.

NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Newark hereby authorizes the City Manager to execute Contractual Services Agreements, each in a form approved by the City Attorney, with 4 Leaf, Inc., BPR Consulting Group, LLC., Bureau Veritas North America, Inc., CSG Consultants, Inc., and True North Compliance Services, Inc in an amount not to exceed $300,000 each, per fiscal year, for an initial term of three (3) years.

BE IT FURTHER RESOLVED that specific consultant work activities shall be authorized by the City Manager or their designee with individual Task Orders, and all such activities are subject to prior budgetary funding authorization by the City Council.

BE IT FURTHER RESOLVED that the City Manager is hereby authorized to extend the proposed Contractual Services Agreements to for up to two (2) additional one (1) year terms.

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BE IT FURTHER RESOLVED that the City Council does hereby authorize an amendment to the 2022-2024 Biennial Budget and Capital Improvement Plan for the fiscal year 2024 as follows:

TO: 120.60.062.620.6221 General Contractual Services $75,000 FR: 120.3000 Unallocated Fund Balance $75,000
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CSA 3/13 r. 6/30/15 -1-

CONTRACTUAL SERVICES AGREEMENT

CONSULTANTS
This Service Agreement (hereinafter “Agreement”) is made and entered into this day of , 20 by and between the CITY OF NEWARK, a municipal corporation (“City”), and 4 LEAF, INC., a Corporation (“Consultant”), collectively the “Parties”.

W I T N E S S E T H:

WHEREAS, City requested proposals to perform the services generally including:

ONCALL INSPECTION AND PLAN REVIEW SERVICES.

WHEREAS, in response to City’s request, Consultant submitted a proposal and, after negotiations, Consultant agreed to perform the “Services” more particularly described in Exhibit “A”, in return for the compensation described in this Agreement and Exhibit “B”.

WHEREAS, in reliance upon Consultant’s documentation of its qualifications, as set forth in Exhibit “C”, City finds that Consultant has demonstrated the requisite qualifications, experience, training, and expertise to perform the requested Services.

NOW, THEREFORE, the Parties hereto agree as follows:

1. CONSULTANT’S SERVICES. Consultant shall perform Services described, and in the time, place, and manner specified in Exhibit “A” in accordance with the terms and conditions of this Agreement. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit “A”, the Agreement shall control.

2. TIME FOR PERFORMANCE. Time is of the essence in the performance of Services under this Agreement and Consultant shall generally adhere to the schedule set forth in Exhibit “A”; provided, that City shall grant reasonable extensions of time for the performance of such Services occasioned by governmental reviews of Consultant’s work product or other unavoidable delays occasioned by circumstances, provided, further, that such unavoidable delays shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, Consultant’s officers or employees. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by Consultant in a reasonably prompt and timely manner based upon the circumstances and direction communicated to Consultant.

Consultant acknowledges the importance to City of City’s performance schedule and agrees to put forth its best professional efforts to perform its Services under this Agreement in a manner consistent with that schedule. City understands, however, that Consultant’s performance must be governed by sound professional practices.

3. COMPENSATION.

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A. “Not to Exceed” Compensation. City shall compensate Consultant for all Services performed by Consultant hereunder in an amount based upon Consultant’s hourly or other rates set forth in Exhibit “B”. The payments specified in Exhibit “B” shall be the only payments to be made to Consultant for Services rendered pursuant to this Agreement.

Notwithstanding the foregoing, the combined total of compensation and costs payable hereunder shall not exceed the sum of Three Hundred Thousand and No/100 Dollars ($300,000.00) per fiscal year unless the performance of services pursuant to City Council Resolution No. , and/or reimbursement of costs and expenses in excess of said amounts have been approved in advance of performing such services and/or incurring such costs and expenses, evidenced in writing as Additional Services by Task Order (see Section 4.

Additional Services of this Agreement).

B. Method of Billing. To request payment, Consultant shall submit monthly invoices to City identifying Services performed and the charges therefore (including an identification of personnel who performed Services, hours worked, hourly rates, and reimbursable expenses), based upon Consultant’s billing rates (set forth on Exhibit “B” hereto).

Consultant shall submit all billings for said Services to City in the manner specified in Exhibit “B”; or, if no manner is specified in Exhibit “B”, then according to the usual and customary procedures and practices which Consultant uses for billing clients similar to City.

Invoices shall be sent to:

City of Newark
Public Works Department
37101 Newark Blvd.

Newark, CA 94560
Upon completion of Services, City shall sign off and acknowledge that all terms and conditions have been satisfactorily met; upon which, unless waived by City in writing, Consultant shall prepare an itemized statement, briefly describing by task and/or labor category the items billed.

C. Payment. Upon receipt of billing, City shall make payments to Consultant on a monthly basis, or at such other times as may be specified in Exhibit “B”, for Services, which are performed in accordance with this Agreement to the satisfaction of City.

D. Consultant’s Failure to Perform. In the event that Consultant performs Services that do not comply with the requirements of this Agreement, Consultant shall, upon receipt of written notice from City, re-perform the services (without additional compensation to Consultant). If Consultant’s failure to perform in accordance with this Agreement causes damages to City, Consultant shall reimburse City for the damages incurred (which may be charged as an offset to Consultant’s payment).

4. ADDITIONAL SERVICES. In the event City desires the performance of additional services not otherwise included within Services, such services shall be authorized by written Task Order approved in advance of the performance thereof. Such Task Order shall Packet Page 343
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include a description of the services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefore, the time of performance thereof, and such other matters as the Parties deem appropriate for the accomplishment of such services.

Except to the extent modified by a Task Order, all other terms and conditions of this Agreement shall be deemed incorporated in each such task order. City Manager shall have approval authority up to a maximum of 10% of the Not to Exceed Compensation or $30,000, whichever is greater for such Additional Services.

5. INDEPENDENT CONSULTANT. At all times during the term of this Agreement, Consultant shall be, and is an independent consultant and shall not be an employee or agent of City. Consultant shall not be entitled to any benefit, right, or compensation other than that provided in this Agreement. City shall have the right to control Consultant only insofar as the results of Consultant’s Services; however, City shall not have the right to control the means by which Consultant accomplishes Services.

Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.

6. PERSONNEL. Consultant understands that, in entering into this Agreement, City has relied upon Consultant’s ability to perform in accordance with its representations regarding the qualifications of Consultant, including the qualifications of its Authorized Representative, its designated personnel, and its subconsultants, if any, identified in Exhibit “C”.

Therefore, Consultant shall not replace its Authorized Representative, or any of the designated personnel or subconsultants identified in Exhibit “C”, without the prior written consent of City.

All Services shall be performed by, or under, the direct supervision of Consultant’s Authorized Representative.

In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any of Consultant’s designated personnel or subconsultants, Consultant shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons.

7. FACILITIES AND EQUIPMENT. Consultant shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing Services.

8. INFORMATION AND DOCUMENTATION.

A. Information from City. City has made an effort to provide Consultant with all information necessary for Consultant’s performance of Services. If Consultant believes additional information is required, Consultant shall promptly notify City and City will provide to Consultant all relevant non-privileged information in City’s possession.

B. Consultant’s Accounting Records. Consultant shall maintain all accounting records related to this Agreement in accordance with generally accepted accounting principles and state law requirements, and in no event for less than four (4) years. Consultant’s accounting records shall include, at a minimum, all documents which support Consultant’s costs Packet Page 344
CSA 3/13 r. 6/30/15 -4-
and expenses related to this Agreement, including personnel, subconsultants’ invoices and payments, and reimbursable expenses. Consultant’s accounting records shall be made available to City within a reasonable time after City’s request, during normal business hours.

C. Ownership of Work Product. All original documents prepared by Consultant (including its employees and subconsultants) for this Agreement (“Work Product”), whether complete or in progress, are the property of City and shall be given to City at the completion of Consultant’s Services, or upon demand of City. Consultant shall have a right to make and keep copies of the Work Product except for any confidential information. Consultant shall not reveal the Work Product or the confidential information contained in the Work Product, or make it available, to any third party without the prior written consent of City.

9. CONFLICTS OF INTEREST PROHIBITED. Consultant (including its employees, agents, and subconsultants) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement. Consultant shall comply with all requirements of the Political Reform Act (California Government Code Section 81000, et seq.) and other laws relating to conflicts of interest, including: (a) Consultant shall not make or participate in a decision made by City if it is reasonably foreseeable that the decision may have a material effect on Consultant’s economic interest, and (b) if required by law, Consultant shall file financial disclosure forms with the City Clerk. If Consultant maintains or acquires a conflicting interest, any contract with City (including this Agreement) involving Consultant’s conflicting interest may be terminated by City.

10. NONDISCRIMINATION. Consultant shall comply with all applicable federal, state, and local laws regarding nondiscriminatory employment practices, whether or not said laws are expressly stated in this Agreement. Consultant shall not discriminate against any employee or applicant because of race, color, religious creed, national origin, physical disability, mental disability, medical condition, marital status, sexual orientation, sex, age, or any other basis, as defined in California Civil Code Section 51.

11. COMPLIANCE WITH LAW AND STANDARD OF CARE. Consultant shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this Agreement. Consultant shall perform Services using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals, with a level of experience and training similar to Consultant, performing under circumstances similar to those required by this Agreement.

12. INSURANCE. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, his agents, representatives, subconsultants, or employees.

A. Verification of Coverage.

Consultant shall furnish City with original certificates and amendatory endorsements effecting coverage required by this clause. All certificates and endorsements are to be received and approved by City before work commences. City reserves the right to require Packet Page 345
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complete, certified copies of all required insurance policies, including endorsements that affect the coverage required by these specifications at any time. Consultant shall immediately furnish City with certificates of renewal for each policy that is renewed during the term of this Agreement.

B. Minimum Scope of Insurance.

Coverage shall be at least as broad as:

1. Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001).

2. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto), or Code 8 (hired) and 9 (non-owned) if consultant has no owned autos.

3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.

4. Errors and Omissions Liability insurance appropriate to the Consultant’s profession. Architects’ and Engineers’ coverage is to be endorsed to include contractual liability.

C. Minimum Limits of Insurance.

Consultant shall maintain limits no less than:

1. General Liability:
(including products-completed
operations, personal and
advertising injury)
$1,000,000 per occurrence for bodily
injury, personal injury, and property
damage. If Commercial General
Liability insurance or other form
with a general aggregate limit is
used, either the general aggregate
limit shall apply separately to this
project/location or the general
aggregate limit shall be twice the
required occurrence limit.

2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.

3. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.

4. Errors and Omissions Liability: $1,000,000 per occurrence or claim.

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D. Deductibles and Self-Insured Retentions.

Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to City, its officers, officials, directors, employees, and volunteers, or (b) Consultant shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.

E. Claims Made Policies.

For all “claims made” coverage, in the event that Consultant changes insurance carriers Consultant shall purchase “tail” coverage or otherwise provide for continuous coverage covering the Term of this Agreement and not less than five (5) years thereafter. Proof of such “tail” or other continuous coverage shall be required at any time that the Consultant changes to a new carrier.

F. Wasting Policies.

No policy required by this paragraph 12 shall include a “wasting” policy limit (ie. limit that is eroded by the cost of defense).

G. Remedies.

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 exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:

1. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;

2. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or

3. Terminate this Agreement.

H. Acceptability of Insurers.

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to City.

I. Other Insurance Provisions.

The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

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1. Additional Insureds. City, its officers, officials, directors, employees and volunteers are to be covered as insureds with respect to liability arising out of work or operations performed by or on behalf of Consultant; including materials, parts or equipment furnished in connection with such work or operations.

2. Primary Insurance. For any claims related to these Services, Consultant’s insurance coverage shall be primary insurance as respects City, its officers, officials, directors, employees, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, directors, employees, or volunteers shall be excess of Consultant’s insurance and shall not be contribute with it.

3. Notice of Cancellation. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to City.

Similarly, no major change in coverage, expiration, or nonrenewal will be made during the term of this Agreement.

4. Civil Code § 2782. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the California Civil Code.

5. Qualifications. All insurance companies providing coverage to Consultant shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California.

6. Subconsultants. Consultant shall include all subconsultants as insured under its policies or shall furnish separate certificates and endorsements for each subconsultant.

All coverages for subconsultants shall be subject to all of the requirements stated herein.

7. Waiver of Subrogation. With respect to Workers’ Compensation and Employer’s Liability Coverage, the insurer shall agree to waive all rights of subrogation against City, its officers, officials, directors, employees, agents, and volunteers for losses arising from work performed by Consultant for City.

8. Coverage is Material Element. Maintenance of proper insurance coverage in conformity with the provision of this paragraph 12 is a material element of this Agreement and failure to maintain or renew coverage or to provide evidence of coverage or renewal may be treated by City as a material breach of this Agreement.

9. Variation. The Risk Manager of City may approve a variation in these insurance requirements upon a determination that the coverage, scope, limits, and form of such insurance are either not commercially available or that City’s interests are otherwise fully protected. Any variation granted shall be done in writing and shall be made a part of this Agreement as Appendix “A”.

13. REPORTING DAMAGES. If any damage (including but not limited to death, personal injury or property damage) occurs in connection with the performance of this Packet Page 348
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Agreement, Consultant shall immediately notify the City Risk Manager’s office by telephone at 510-578-4428, and Consultant shall promptly submit to the City’s Risk Manager and the City’s Administrator (see paragraph 18, hereinbelow) a written report (in a form acceptable to City) with the following information: (a) name(s) and address(es) of the injured or deceased person(s), (b) name(s) and address(es) of witnesses, (c) name(s) and address(es) of Consultant’s insurance company(ies), and (d) a detailed description of the damage(s) and whether any City property was involved.

14. INDEMNIFICATION/SAVE HARMLESS. To the fullest extent permitted by law, the Consultant shall: (1) immediately defend, and (2) indemnify City, its, officers, officials, directors, employees, and volunteers from and against all liabilities regardless of nature or type arising out of or resulting from Consultant’s performance of Services, or any negligent or wrongful act or omission of Consultant or Consultant’s officers, employees, agents, or subcontractors. Liabilities subject to the duties to defend and indemnify include, without limitation all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. Consultant’s obligation to indemnify applies unless it is adjudicated that its liability was caused by the sole active negligence or sole willful misconduct of an indemnified party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, Consultant’s indemnification obligation shall be reduced in proportion to the established comparative liability of the indemnified party.

The duty to defend is a separate and distinct obligation from Consultant’s duty to indemnify. Consultant shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel approved by City immediately upon tender to Consultant of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. An allegation or determination of comparative active negligence or willful misconduct by an indemnified party does not relieve the Consultant from its separate and distinct obligation to defend City. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Consultant asserts that liability is caused in whole or in part by the negligence or willful misconduct of the indemnified party. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful misconduct of an indemnified party, Consultant may submit a claim to City for reimbursement of reasonable attorneys’ fees and defense costs.

The review, acceptance or approval of Consultant’s work or Work Product by any indemnified party shall not affect, relieve or reduce Consultant’s indemnification or defense obligations. This paragraph survives completion of Services or the termination of this contract.

The provisions of this paragraph are not limited by and do not affect the provisions of this contract relating to insurance.

It shall be a requirement under this agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to the Additional Insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or Packet Page 349
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(2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater.

15. LICENSES, PERMITS, ETC. Consultant represents and warrants to City that it has all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required for Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. In addition to the foregoing, Consultant shall obtain and maintain during the term hereof a valid City of Newark Business License.

16. TERM/TERMINATION.

A. The term of this Agreement shall commence upon the date first hereinabove written and shall expire in three (3) years from said date or the Agreements may be extended up to two (2) additional one (1) year terms as authorized by the City Manager.

B. Notwithstanding the provisions of paragraph 16 section A above, either party may terminate this Agreement without cause by giving written notice thereof not less than ten (10) days prior to the effective date of termination, which date shall be included in said notice. In the event of such termination, City shall compensate Consultant for Services rendered and reimburse Consultant for costs and expenses incurred, to the date of termination, calculated in accordance with the provisions of paragraph 3. In ascertaining the Services actually rendered to the date of termination, consideration shall be given both to completed work and work in process of completion. Nothing herein contained shall be deemed a limitation upon the right of City to terminate this Agreement for cause, or otherwise to exercise such rights or pursue such remedies as may accrue to City hereunder.

17. CONTRACT ADMINISTRATION. This Agreement shall be administered by PUBLIC WORKS DIRECTOR of the City of Newark (“Administrator”). All correspondence shall be directed to or through the Administrator or his/her designee.

18. NOTICES. Written notices required or convenient hereunder shall be delivered personally or by depositing the same with the United States Postal Service, first class (or equivalent) postage prepaid and addressed, in the case of Consultant, to:
4LEAF, INC. CITY OF NEWARK
Kevin Duggan CHIEF BUILDING OFFICIAL
President Administrator
Address: 4Leaf, Inc
Attn: Kevin Duggan
2126 Rheem Dr
Pleasanton, Ca 94588
City of Newark
Attn: Chief Building Official
37101 Newark Boulevard
Newark, CA 94560
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19. PARAGRAPH HEADINGS. Paragraph headings used herein are for convenience only and shall not be deemed to be a part of such paragraphs and shall not be construed to change the meaning thereof.

20. EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference incorporated herein.

21. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the Parties’ intent under this Agreement.

22. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Alameda.

23. ATTORNEY’S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.

24. ASSIGNABILITY. Neither Consultant nor City shall subconsult, assign, sell, mortgage, hypothecate, or otherwise transfer their respective interests or obligations in this Agreement without the express prior written consent of the non-transferring party.

25. MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both Parties.

26. WAIVERS. Waiver of breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.

27. ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the Parties concerning the Services. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all.

28. 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 Consultant and City. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns.

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29. COVENANT AGAINST CONTINGENT FEES. Consultant hereby warrants that Consultant has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement, and Consultant has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, City shall have the right to annul this Agreement without liability or, at City’s discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and year first hereinabove written.

CITY OF NEWARK, 4Leaf, Inc.
a municipal corporation a California Corporation
By By
City of Newark Consultant (Signature & Title)
Date Date
Printed Name
Attest:

City Clerk
Date
Approved as to form:

City Attorney
Date
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EXHIBIT A

SCOPE OF SERVICES
Plan Checking, On Call inspection services – The consultant shall provide all equipment, services, and work required to review and inspect building plans and permit applications, including, but not limited to, major building permit construction documents and perform requested services. The type of improvements to be reviewed and inspected include but are not limited to commercial, industrial, and residential construction drawings for new construction, additions, tenant improvements, or alterations.

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EXHIBIT B

PAYMENT
SECTION E: FEE SCHEDULE
FY2023-2024 FEE SCHEDULE & BASIS OF CHARGES

FOR THE CITY OF NEWARK
A. All Rates are Subject to Basis of Charges

PLAN REVIEW COST STRUCTURE NOTES
Complete Plan Review Percentage: 70%
Partial Plan Review Percentage: 40%
(Inclusive of all disciplines except Fire
and Civil which are billed on an hourly
basis)
Hourly Plan Review: $125 Non-Structural
Review
$160 Structural Review
Fee includes:
➢ Initial review and two (2)
rechecks. Hourly charges apply after
three (3) or more rechecks.
➢ Shipping, courier, and electronic
service.
➢ Plan Review services subject to
2hr minimum fee.

1. Building
Chief Building Official ............................................................................................ $170/hour Structural PlanReview Engineer............................................................................. $160/hour Non-Structural Plans Examiner ............................................................................... $125/hour Mechanical & Plumbing Plans Examiner................................................................ $140/hour Electrical Plans Examiner........................................................................................ $160/hour Certified Access Specialist (CASp) Inspector ........................................................ $160/hour Certified Access Specialist (CASp) Plans Examiner.............................................. $160/hour Senior Combination Building Inspector (Building Inspector III) ........................... $135/hour Commercial Building Inspector (Building Inspector II) ........................................ $120/hour Residential Building Inspector (Building Inspector I) ........................................... $105/hour Permit Manager ....................................................................................................... $110/hour Senior Permit Technician......................................................................................... $95/hour Permit Technician.................................................................................................. $85/hour Clerk/Administrator.................................................................................................. $70/hour Civil Plan Review (Grading, Improvement Plans) ................................................. $160/hour Supervising Inspector ofRecord ............................................................................. $165/hour Inspector of Record (Including DSA/OSHPD) ....................................................... $155/hour Packet Page 354
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Project Manager..................................................................................................... $175/hour Principal-in-Charge ............................................................................................... $245/hour GoFormz Software ................................................................................................. $50/user monthly

2. Fire
Fire ProtectionEngineer(FPE) ......................................................................................... $195/hour Fire Prevention Officer ..................................................................................................... $155/hour Fire Plans Examiner ........................................................................................................... $155/hour Fire Inspector ..................................................................................................................... $140/hour Fire Inspector ..................................................................................................................... $120/hour

3. Public Works Inspection (Prevailing Wage) *
Civil Plan Review (Grading, Improvement Plans) .......................................................... $160/hour Certified Access Specialist (CASp) Inspector (Regular time) ……….…….………….. $160/hour Certified Access Specialist (CASp) Plans Examiner …………….……………...…….. $160/hour Public Works Inspector (Regular Time) …………………………...……………..…… $153/hour Public Works Inspector Apprentice ……………………………….…...……………… $99/hour *If selected, we can provide a more detailed list of Public Works roles based on the project.

B. BASIS OF CHARGES
Rates are inclusive of “tools of the trade” such as forms, telephones, and consumables. • All invoicing will be submitted monthly.
• Staff Augmentation work (excluding plan review) is subject to 4-hour minimum charges unless stated otherwise. Services billed in 4-hour increments.
• Most plan reviews will be done in 10 business days or less and 5 business days or less for re-checks. This is not inclusive of holidays or the day of the pick-up of plans.
• Expedited reviews will be billed at 1.5x the plan review fee listed in the fee schedule. Return time will be within seven (7) days of receipt of the plans from the City.
• Plan review of deferred submittals & revisions will be billed at the hourly rates listed.
• All plan review services will be subject to a $250.00 minimum fee if percentage-based fee or 2-hour minimum charge if hourly rates apply.

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• Larger complex plan reviews can be negotiated to achieve the best possible pricing.
• All plan review services are billed on a percentage basis and includes the initial review and 2 rechecks.
• Plan reviews will be billed on an hourly basis only after the initial review and 2 rechecks unless otherwise agreed upon on a case-bycase basis. • Fire and Civil Reviews are billed on an hourly basis and are not included in our plan review percentage.
• 4LEAF assumes that these rates reflect the FY2023-2024 contract period. There will be a 3% escalation for FY2024-2025, FY2025-2026 • Overtime and Premium time will be charged as follows:
- Regular time (work begun after 5AM or before 4PM) 1x hourly rate - Nighttime (work begun after 4PM or before 5AM) 1.125x hourly rate
- Overtime (over 8-hour M-F or Saturdays) 1.5x hourly rate - Overtime (over 8 hours Sat or 1st 8-hour Sun) 2x hourly rate - Overtime (over 8 hours Sun or Holidays) 3x hourly rate • Overtime will only be billed with prior authorization of the Director or other designated City personnel.
• All work with less than 8 hours rest between shifts will be charged the appropriate overtime rate.
• Mileage driven during the course of Inspections will be charged at cost plus 20%.
• Payment due on receipt. All payments over 30 days will be assessed a

1.5% interest charge.
• Client shall pay attorneys’ fees, or other costs incurred in collecting delinquent amounts.
• Client agrees that 4LEAF’s liability will be limited to the value of services provided.
• In accordance with California’s Meal Break and Rest Break Law requirements, Client will be billed one (1) additional hour per day at the regular rate for each missed meal or rest break due to Client-directed tasks Packet Page 356
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EXHIBIT C

QUALIFICATIONS
This firm has demonstrated its ability to support Newark’s Building Inspection Division quality and level of service through the past 6 years and their references, interviews, and qualifications of available staff.

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CONTRACTUAL SERVICES AGREEMENT

CONSULTANTS
This Service Agreement (hereinafter “Agreement”) is made and entered into this day of , 20 by and between the CITY OF NEWARK, a municipal corporation (“City”), and BPR CONSULTING GROUP, LLC., a Limited Liability Company (“Consultant”), collectively the “Parties”.

W I T N E S S E T H:

WHEREAS, City requested proposals to perform the services generally including:

ONCALL INSPECTION AND PLAN REVIEW SERVICES.

WHEREAS, in response to City’s request, Consultant submitted a proposal and, after negotiations, Consultant agreed to perform the “Services” more particularly described in Exhibit “A”, in return for the compensation described in this Agreement and Exhibit “B”.

WHEREAS, in reliance upon Consultant’s documentation of its qualifications, as set forth in Exhibit “C”, City finds that Consultant has demonstrated the requisite qualifications, experience, training, and expertise to perform the requested Services.

NOW, THEREFORE, the Parties hereto agree as follows:

1. CONSULTANT’S SERVICES. Consultant shall perform Services described, and in the time, place, and manner specified in Exhibit “A” in accordance with the terms and conditions of this Agreement. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit “A”, the Agreement shall control.

2. TIME FOR PERFORMANCE. Time is of the essence in the performance of Services under this Agreement and Consultant shall generally adhere to the schedule set forth in Exhibit “A”; provided, that City shall grant reasonable extensions of time for the performance of such Services occasioned by governmental reviews of Consultant’s work product or other unavoidable delays occasioned by circumstances, provided, further, that such unavoidable delays shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, Consultant’s officers or employees. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by Consultant in a reasonably prompt and timely manner based upon the circumstances and direction communicated to Consultant.

Consultant acknowledges the importance to City of City’s performance schedule and agrees to put forth its best professional efforts to perform its Services under this Agreement in a manner consistent with that schedule. City understands, however, that Consultant’s performance must be governed by sound professional practices.

3. COMPENSATION.

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A. “Not to Exceed” Compensation. City shall compensate Consultant for all Services performed by Consultant hereunder in an amount based upon Consultant’s hourly or other rates set forth in Exhibit “B”. The payments specified in Exhibit “B” shall be the only payments to be made to Consultant for Services rendered pursuant to this Agreement.

Notwithstanding the foregoing, the combined total of compensation and costs payable hereunder shall not exceed the sum of Three Hundred Thousand and No/100 Dollars ($300,000.00) per fiscal year unless the performance of services pursuant to City Council Resolution No. , and/or reimbursement of costs and expenses in excess of said amounts have been approved in advance of performing such services and/or incurring such costs and expenses, evidenced in writing as Additional Services by Task Order (see Section 4.

Additional Services of this Agreement).

B. Method of Billing. To request payment, Consultant shall submit monthly invoices to City identifying Services performed and the charges therefore (including an identification of personnel who performed Services, hours worked, hourly rates, and reimbursable expenses), based upon Consultant’s billing rates (set forth on Exhibit “B” hereto).

Consultant shall submit all billings for said Services to City in the manner specified in Exhibit “B”; or, if no manner is specified in Exhibit “B”, then according to the usual and customary procedures and practices which Consultant uses for billing clients similar to City.

Invoices shall be sent to:

City of Newark
Public Works Department
37101 Newark Blvd.

Newark, CA 94560
Upon completion of Services, City shall sign off and acknowledge that all terms and conditions have been satisfactorily met; upon which, unless waived by City in writing, Consultant shall prepare an itemized statement, briefly describing by task and/or labor category the items billed.

C. Payment. Upon receipt of billing, City shall make payments to Consultant on a monthly basis, or at such other times as may be specified in Exhibit “B”, for Services, which are performed in accordance with this Agreement to the satisfaction of City.

D. Consultant’s Failure to Perform. In the event that Consultant performs Services that do not comply with the requirements of this Agreement, Consultant shall, upon receipt of written notice from City, re-perform the services (without additional compensation to Consultant). If Consultant’s failure to perform in accordance with this Agreement causes damages to City, Consultant shall reimburse City for the damages incurred (which may be charged as an offset to Consultant’s payment).

4. ADDITIONAL SERVICES. In the event City desires the performance of additional services not otherwise included within Services, such services shall be authorized by written Task Order approved in advance of the performance thereof. Such Task Order shall Packet Page 359
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include a description of the services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefore, the time of performance thereof, and such other matters as the Parties deem appropriate for the accomplishment of such services.

Except to the extent modified by a Task Order, all other terms and conditions of this Agreement shall be deemed incorporated in each such task order. City Manager shall have approval authority up to a maximum of 10% of the Not to Exceed Compensation or $30,000, whichever is greater for such Additional Services.

5. INDEPENDENT CONSULTANT. At all times during the term of this Agreement, Consultant shall be, and is an independent consultant and shall not be an employee or agent of City. Consultant shall not be entitled to any benefit, right, or compensation other than that provided in this Agreement. City shall have the right to control Consultant only insofar as the results of Consultant’s Services; however, City shall not have the right to control the means by which Consultant accomplishes Services.

Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.

6. PERSONNEL. Consultant understands that, in entering into this Agreement, City has relied upon Consultant’s ability to perform in accordance with its representations regarding the qualifications of Consultant, including the qualifications of its Authorized Representative, its designated personnel, and its subconsultants, if any, identified in Exhibit “C”.

Therefore, Consultant shall not replace its Authorized Representative, or any of the designated personnel or subconsultants identified in Exhibit “C”, without the prior written consent of City.

All Services shall be performed by, or under, the direct supervision of Consultant’s Authorized Representative.

In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any of Consultant’s designated personnel or subconsultants, Consultant shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons.

7. FACILITIES AND EQUIPMENT. Consultant shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing Services.

8. INFORMATION AND DOCUMENTATION.

A. Information from City. City has made an effort to provide Consultant with all information necessary for Consultant’s performance of Services. If Consultant believes additional information is required, Consultant shall promptly notify City and City will provide to Consultant all relevant non-privileged information in City’s possession.

B. Consultant’s Accounting Records. Consultant shall maintain all accounting records related to this Agreement in accordance with generally accepted accounting principles and state law requirements, and in no event for less than four (4) years. Consultant’s accounting records shall include, at a minimum, all documents which support Consultant’s costs Packet Page 360
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and expenses related to this Agreement, including personnel, subconsultants’ invoices and payments, and reimbursable expenses. Consultant’s accounting records shall be made available to City within a reasonable time after City’s request, during normal business hours.

C. Ownership of Work Product. All original documents prepared by Consultant (including its employees and subconsultants) for this Agreement (“Work Product”), whether complete or in progress, are the property of City and shall be given to City at the completion of Consultant’s Services, or upon demand of City. Consultant shall have a right to make and keep copies of the Work Product except for any confidential information. Consultant shall not reveal the Work Product or the confidential information contained in the Work Product, or make it available, to any third party without the prior written consent of City.

9. CONFLICTS OF INTEREST PROHIBITED. Consultant (including its employees, agents, and subconsultants) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement. Consultant shall comply with all requirements of the Political Reform Act (California Government Code Section 81000, et seq.) and other laws relating to conflicts of interest, including: (a) Consultant shall not make or participate in a decision made by City if it is reasonably foreseeable that the decision may have a material effect on Consultant’s economic interest, and (b) if required by law, Consultant shall file financial disclosure forms with the City Clerk. If Consultant maintains or acquires a conflicting interest, any contract with City (including this Agreement) involving Consultant’s conflicting interest may be terminated by City.

10. NONDISCRIMINATION. Consultant shall comply with all applicable federal, state, and local laws regarding nondiscriminatory employment practices, whether or not said laws are expressly stated in this Agreement. Consultant shall not discriminate against any employee or applicant because of race, color, religious creed, national origin, physical disability, mental disability, medical condition, marital status, sexual orientation, sex, age, or any other basis, as defined in California Civil Code Section 51.

11. COMPLIANCE WITH LAW AND STANDARD OF CARE. Consultant shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this Agreement. Consultant shall perform Services using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals, with a level of experience and training similar to Consultant, performing under circumstances similar to those required by this Agreement.

12. INSURANCE. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, his agents, representatives, subconsultants, or employees.

A. Verification of Coverage.

Consultant shall furnish City with original certificates and amendatory endorsements effecting coverage required by this clause. All certificates and endorsements are to be received and approved by City before work commences. City reserves the right to require Packet Page 361
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complete, certified copies of all required insurance policies, including endorsements that affect the coverage required by these specifications at any time. Consultant shall immediately furnish City with certificates of renewal for each policy that is renewed during the term of this Agreement.

B. Minimum Scope of Insurance.

Coverage shall be at least as broad as:

1. Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001).

2. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto), or Code 8 (hired) and 9 (non-owned) if consultant has no owned autos.

3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.

4. Errors and Omissions Liability insurance appropriate to the Consultant’s profession. Architects’ and Engineers’ coverage is to be endorsed to include contractual liability.

C. Minimum Limits of Insurance.

Consultant shall maintain limits no less than:

1. General Liability:
(including products-completed
operations, personal and
advertising injury)
$1,000,000 per occurrence for bodily
injury, personal injury, and property
damage. If Commercial General
Liability insurance or other form
with a general aggregate limit is
used, either the general aggregate
limit shall apply separately to this
project/location or the general
aggregate limit shall be twice the
required occurrence limit.

2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.

3. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.

4. Errors and Omissions Liability: $1,000,000 per occurrence or claim.

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D. Deductibles and Self-Insured Retentions.

Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to City, its officers, officials, directors, employees, and volunteers, or (b) Consultant shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.

E. Claims Made Policies.

For all “claims made” coverage, in the event that Consultant changes insurance carriers Consultant shall purchase “tail” coverage or otherwise provide for continuous coverage covering the Term of this Agreement and not less than five (5) years thereafter. Proof of such “tail” or other continuous coverage shall be required at any time that the Consultant changes to a new carrier.

F. Wasting Policies.

No policy required by this paragraph 12 shall include a “wasting” policy limit (ie. limit that is eroded by the cost of defense).

G. Remedies.

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 exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:

1. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;

2. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or

3. Terminate this Agreement.

H. Acceptability of Insurers.

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to City.

I. Other Insurance Provisions.

The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

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1. Additional Insureds. City, its officers, officials, directors, employees and volunteers are to be covered as insureds with respect to liability arising out of work or operations performed by or on behalf of Consultant; including materials, parts or equipment furnished in connection with such work or operations.

2. Primary Insurance. For any claims related to these Services, Consultant’s insurance coverage shall be primary insurance as respects City, its officers, officials, directors, employees, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, directors, employees, or volunteers shall be excess of Consultant’s insurance and shall not be contribute with it.

3. Notice of Cancellation. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to City.

Similarly, no major change in coverage, expiration, or nonrenewal will be made during the term of this Agreement.

4. Civil Code § 2782. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the California Civil Code.

5. Qualifications. All insurance companies providing coverage to Consultant shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California.

6. Subconsultants. Consultant shall include all subconsultants as insured under its policies or shall furnish separate certificates and endorsements for each subconsultant.

All coverages for subconsultants shall be subject to all of the requirements stated herein.

7. Waiver of Subrogation. With respect to Workers’ Compensation and Employer’s Liability Coverage, the insurer shall agree to waive all rights of subrogation against City, its officers, officials, directors, employees, agents, and volunteers for losses arising from work performed by Consultant for City.

8. Coverage is Material Element. Maintenance of proper insurance coverage in conformity with the provision of this paragraph 12 is a material element of this Agreement and failure to maintain or renew coverage or to provide evidence of coverage or renewal may be treated by City as a material breach of this Agreement.

9. Variation. The Risk Manager of City may approve a variation in these insurance requirements upon a determination that the coverage, scope, limits, and form of such insurance are either not commercially available or that City’s interests are otherwise fully protected. Any variation granted shall be done in writing and shall be made a part of this Agreement as Appendix “A”.

13. REPORTING DAMAGES. If any damage (including but not limited to death, personal injury or property damage) occurs in connection with the performance of this Packet Page 364
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Agreement, Consultant shall immediately notify the City Risk Manager’s office by telephone at 510-578-4428, and Consultant shall promptly submit to the City’s Risk Manager and the City’s Administrator (see paragraph 18, hereinbelow) a written report (in a form acceptable to City) with the following information: (a) name(s) and address(es) of the injured or deceased person(s), (b) name(s) and address(es) of witnesses, (c) name(s) and address(es) of Consultant’s insurance company(ies), and (d) a detailed description of the damage(s) and whether any City property was involved.

14. INDEMNIFICATION/SAVE HARMLESS. To the fullest extent permitted by law, the Consultant shall: (1) immediately defend, and (2) indemnify City, its, officers, officials, directors, employees, and volunteers from and against all liabilities regardless of nature or type arising out of or resulting from Consultant’s performance of Services, or any negligent or wrongful act or omission of Consultant or Consultant’s officers, employees, agents, or subcontractors. Liabilities subject to the duties to defend and indemnify include, without limitation all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. Consultant’s obligation to indemnify applies unless it is adjudicated that its liability was caused by the sole active negligence or sole willful misconduct of an indemnified party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, Consultant’s indemnification obligation shall be reduced in proportion to the established comparative liability of the indemnified party.

The duty to defend is a separate and distinct obligation from Consultant’s duty to indemnify. Consultant shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel approved by City immediately upon tender to Consultant of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. An allegation or determination of comparative active negligence or willful misconduct by an indemnified party does not relieve the Consultant from its separate and distinct obligation to defend City. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Consultant asserts that liability is caused in whole or in part by the negligence or willful misconduct of the indemnified party. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful misconduct of an indemnified party, Consultant may submit a claim to City for reimbursement of reasonable attorneys’ fees and defense costs.

The review, acceptance or approval of Consultant’s work or Work Product by any indemnified party shall not affect, relieve or reduce Consultant’s indemnification or defense obligations. This paragraph survives completion of Services or the termination of this contract.

The provisions of this paragraph are not limited by and do not affect the provisions of this contract relating to insurance.

It shall be a requirement under this agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to the Additional Insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or Packet Page 365
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(2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater.

15. LICENSES, PERMITS, ETC. Consultant represents and warrants to City that it has all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required for Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. In addition to the foregoing, Consultant shall obtain and maintain during the term hereof a valid City of Newark Business License.

16. TERM/TERMINATION.

A. The term of this Agreement shall commence upon the date first hereinabove written and shall expire in three (3) years from said date or the Agreements may be extended up to two (2) additional one (1) year terms as authorized by the City Manager.

B. Notwithstanding the provisions of paragraph 16 section A above, either party may terminate this Agreement without cause by giving written notice thereof not less than ten (10) days prior to the effective date of termination, which date shall be included in said notice. In the event of such termination, City shall compensate Consultant for Services rendered and reimburse Consultant for costs and expenses incurred, to the date of termination, calculated in accordance with the provisions of paragraph 3. In ascertaining the Services actually rendered to the date of termination, consideration shall be given both to completed work and work in process of completion. Nothing herein contained shall be deemed a limitation upon the right of City to terminate this Agreement for cause, or otherwise to exercise such rights or pursue such remedies as may accrue to City hereunder.

17. CONTRACT ADMINISTRATION. This Agreement shall be administered by PUBLIC WORKS DIRECTOR of the City of Newark (“Administrator”). All correspondence shall be directed to or through the Administrator or his/her designee.

18. NOTICES. Written notices required or convenient hereunder shall be delivered personally or by depositing the same with the United States Postal Service, first class (or equivalent) postage prepaid and addressed, in the case of Consultant, to:

BPR CONSULTING GROUP, LLC CITY OF NEWARK

RON BEEHLER CHIEF BUILDING OFFICIAL
Principal/Director of Client Services Administrator
Address: BPR Consulting Group
Attn: Ron Beehler
2130 Professional Dr
Suite 150
Roseville, CA 95661
City of Newark
Attn: Chief Building Official
37101 Newark Boulevard
Newark, CA 94560
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19. PARAGRAPH HEADINGS. Paragraph headings used herein are for convenience only and shall not be deemed to be a part of such paragraphs and shall not be construed to change the meaning thereof.

20. EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference incorporated herein.

21. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the Parties’ intent under this Agreement.

22. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Alameda.

23. ATTORNEY’S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.

24. ASSIGNABILITY. Neither Consultant nor City shall subconsult, assign, sell, mortgage, hypothecate, or otherwise transfer their respective interests or obligations in this Agreement without the express prior written consent of the non-transferring party.

25. MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both Parties.

26. WAIVERS. Waiver of breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.

27. ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the Parties concerning the Services. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all.

28. 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 Consultant and City. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns.

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29. COVENANT AGAINST CONTINGENT FEES. Consultant hereby warrants that Consultant has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement, and Consultant has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, City shall have the right to annul this Agreement without liability or, at City’s discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and year first hereinabove written.

CITY OF NEWARK, BPR Consulting Group, LLC.
a municipal corporation a Limited Liability Company
By By
City of Newark Consultant (Signature & Title)
Date Date
Printed Name
Attest:

City Clerk
Date
Approved as to form:

City Attorney
Date
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EXHIBIT A

SCOPE OF SERVICES
Plan Checking, On Call inspection services – The consultant shall provide all equipment, services, and work required to review and inspect building plans and permit applications, including, but not limited to, major building permit construction documents and perform requested services. The type of improvements to be reviewed and inspected include but are not limited to: commercial, industrial, and residential construction drawings for new construction, additions, tenant improvements, or alterations.

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EXHIBIT B

PAYMENT

RATE SCHEDULE
PLAN REVIEW SERVICES: For complete plan review services for building projects reviewed in either hard copy or electronic format, we propose a fee equal to 65% of the plan review fees based on the City‘s adopted fee schedule. Plan review services will include an initial first review and two back check reviews of the plans. Any additional plan review servicesrequired beyond the third review will be billed at our hourly rateslisted within the Schedule of Hourly Billing Rates shown below. Expedited plan checks will be billed at 150% of the standard rate.

For review of revisions to approved plans, review of deferred submittal items and similar reviews, we propose to provide these services on an hourly basis using the rates listed in our Schedule of Hourly Billing Rates shown below. For partial reviews such as foundation only, structural only, life safety only, preliminary reviews, or others, we propose to negotiate a mutually agreeable fixed fee based on the specific servicesrequested or provide services on an hourly basis using the rates listed in our Schedule of Hourly Billing Rates shown below.

There is no charge for shipping, supply, or material costs.

INSPECTION SERVICES: Inspection services, when requested, can be provided at the hourly rates listed in our Schedule of Hourly Billing Rates.

SUPPORT SERVICES: For Permit Technician, Fire Sprinkler Review, Fire Code Inspections and Building Official services, we propose utilizing the hourly billing rates included in the Schedule of Hourly Billing Rates below for the specific labor classification utilized.

SCHEDULE OF HOURLY BILLING RATES
The rates displayed in the schedule below reflect BPR’s current hourly billing rates.

CLASSIFICATION HOURLY BILLING
RATE
Licensed Plan Review Engineer (structural, civil, electrical, mechanical) .................................................. $165 ICC Certified Plans Examiner ………………..…………………………………………………..……..… $125 CASp Plans Examiner or Inspector …………………………………………………………………..….... $130 ICC Certified Inspector* .............................................................................................................................. $95 to $130 Building Official ……………………………………………………………………………………... $175 Fire Protection Engineer …………………………………………………………………………………... $165 ICC Fire Plans Examiner ……………………………………………………………………………... $125 ICC Fire Inspector ……………………………………………………………………………………. $130 Permit Technician* ....................................................................................................................................... $75 to $85 Permit Technician Trainee/ Building Department Support Staff …………………………………………. $55 * Varies based on level of experience and certification ▪ Shipping: There is no charge for courier or shipping services for plan reviews conducted off site.
▪ Overtime: Inspection services and other hourly services provided in Packet Page 370
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excess of eight hours per day, nights, and weekends will be charged at 140% of the billing rates indicated above.
▪ Expedited Plan Reviews: Expedited plan reviews can be provided at 150% of the above noted hourly rates.
▪ Mileage: Vehicle mileage utilized in the performance of inspection services will be billed at the current IRS vehicle mileage rate. ▪ Minimum Daily Charge: There will be a minimum 8-hour daily charge for all on-call plan review, inspection, permit technician and support services provided within City offices.

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EXHIBIT C

QUALIFICATIONS
This firm has demonstrated its ability to support Newark’s Building Inspection Division quality and level of service through references, interviews, and qualifications of available staff.

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CONTRACTUAL SERVICES AGREEMENT

CONSULTANTS
This Service Agreement (hereinafter “Agreement”) is made and entered into this day of , 20 by and between the CITY OF NEWARK, a municipal corporation (“City”), and BUREAU VERITAS NORTH AMERICA, INC., a Corporation (“Consultant”), collectively the “Parties”.

W I T N E S S E T H:

WHEREAS, City requested proposals to perform the services generally including:

ONCALL INSPECTION AND PLAN REVIEW SERVICES.

WHEREAS, in response to City’s request, Consultant submitted a proposal and, after negotiations, Consultant agreed to perform the “Services” more particularly described in Exhibit “A”, in return for the compensation described in this Agreement and Exhibit “B”.

WHEREAS, in reliance upon Consultant’s documentation of its qualifications, as set forth in Exhibit “C”, City finds that Consultant has demonstrated the requisite qualifications, experience, training, and expertise to perform the requested Services.

NOW, THEREFORE, the Parties hereto agree as follows:

1. CONSULTANT’S SERVICES. Consultant shall perform Services described, and in the time, place, and manner specified in Exhibit “A” in accordance with the terms and conditions of this Agreement. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit “A”, the Agreement shall control.

2. TIME FOR PERFORMANCE. Time is of the essence in the performance of Services under this Agreement and Consultant shall generally adhere to the schedule set forth in Exhibit “A”; provided, that City shall grant reasonable extensions of time for the performance of such Services occasioned by governmental reviews of Consultant’s work product or other unavoidable delays occasioned by circumstances, provided, further, that such unavoidable delays shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, Consultant’s officers or employees. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by Consultant in a reasonably prompt and timely manner based upon the circumstances and direction communicated to Consultant.

Consultant acknowledges the importance to City of City’s performance schedule and agrees to put forth its best professional efforts to perform its Services under this Agreement in a manner consistent with that schedule. City understands, however, that Consultant’s performance must be governed by sound professional practices.

3. COMPENSATION.

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A. “Not to Exceed” Compensation. City shall compensate Consultant for all Services performed by Consultant hereunder in an amount based upon Consultant’s hourly or other rates set forth in Exhibit “B”. The payments specified in Exhibit “B” shall be the only payments to be made to Consultant for Services rendered pursuant to this Agreement.

Notwithstanding the foregoing, the combined total of compensation and costs payable hereunder shall not exceed the sum of Three Hundred Thousand and No/100 Dollars ($300,000.00) per fiscal year unless the performance of services pursuant to City Council Resolution No. , and/or reimbursement of costs and expenses in excess of said amounts have been approved in advance of performing such services and/or incurring such costs and expenses, evidenced in writing as Additional Services by Task Order (see Section 4.

Additional Services of this Agreement).

B. Method of Billing. To request payment, Consultant shall submit monthly invoices to City identifying Services performed and the charges therefore (including an identification of personnel who performed Services, hours worked, hourly rates, and reimbursable expenses), based upon Consultant’s billing rates (set forth on Exhibit “B” hereto).

Consultant shall submit all billings for said Services to City in the manner specified in Exhibit “B”; or, if no manner is specified in Exhibit “B”, then according to the usual and customary procedures and practices which Consultant uses for billing clients similar to City.

Invoices shall be sent to:

City of Newark
Public Works Department
37101 Newark Blvd.

Newark, CA 94560
Upon completion of Services, City shall sign off and acknowledge that all terms and conditions have been satisfactorily met; upon which, unless waived by City in writing, Consultant shall prepare an itemized statement, briefly describing by task and/or labor category the items billed.

C. Payment. Upon receipt of billing, City shall make payments to Consultant on a monthly basis, or at such other times as may be specified in Exhibit “B”, for Services, which are performed in accordance with this Agreement to the satisfaction of City.

D. Consultant’s Failure to Perform. In the event that Consultant performs Services that do not comply with the requirements of this Agreement, Consultant shall, upon receipt of written notice from City, re-perform the services (without additional compensation to Consultant). If Consultant’s failure to perform in accordance with this Agreement causes damages to City, Consultant shall reimburse City for the damages incurred (which may be charged as an offset to Consultant’s payment).

4. ADDITIONAL SERVICES. In the event City desires the performance of additional services not otherwise included within Services, such services shall be authorized by written Task Order approved in advance of the performance thereof. Such Task Order shall Packet Page 374
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include a description of the services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefore, the time of performance thereof, and such other matters as the Parties deem appropriate for the accomplishment of such services.

Except to the extent modified by a Task Order, all other terms and conditions of this Agreement shall be deemed incorporated in each such task order. City Manager shall have approval authority up to a maximum of 10% of the Not to Exceed Compensation or $30,000, whichever is greater for such Additional Services.

5. INDEPENDENT CONSULTANT. At all times during the term of this Agreement, Consultant shall be, and is an independent consultant and shall not be an employee or agent of City. Consultant shall not be entitled to any benefit, right, or compensation other than that provided in this Agreement. City shall have the right to control Consultant only insofar as the results of Consultant’s Services; however, City shall not have the right to control the means by which Consultant accomplishes Services.

Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.

6. PERSONNEL. Consultant understands that, in entering into this Agreement, City has relied upon Consultant’s ability to perform in accordance with its representations regarding the qualifications of Consultant, including the qualifications of its Authorized Representative, its designated personnel, and its subconsultants, if any, identified in Exhibit “C”.

Therefore, Consultant shall not replace its Authorized Representative, or any of the designated personnel or subconsultants identified in Exhibit “C”, without the prior written consent of City.

All Services shall be performed by, or under, the direct supervision of Consultant’s Authorized Representative.

In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any of Consultant’s designated personnel or subconsultants, Consultant shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons.

7. FACILITIES AND EQUIPMENT. Consultant shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing Services.

8. INFORMATION AND DOCUMENTATION.

A. Information from City. City has made an effort to provide Consultant with all information necessary for Consultant’s performance of Services. If Consultant believes additional information is required, Consultant shall promptly notify City and City will provide to Consultant all relevant non-privileged information in City’s possession.

B. Consultant’s Accounting Records. Consultant shall maintain all accounting records related to this Agreement in accordance with generally accepted accounting principles and state law requirements, and in no event for less than four (4) years. Consultant’s accounting records shall include, at a minimum, all documents which support Consultant’s costs Packet Page 375
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and expenses related to this Agreement, including personnel, subconsultants’ invoices and payments, and reimbursable expenses. Consultant’s accounting records shall be made available to City within a reasonable time after City’s request, during normal business hours.

C. Ownership of Work Product. All original documents prepared by Consultant (including its employees and subconsultants) for this Agreement (“Work Product”), whether complete or in progress, are the property of City and shall be given to City at the completion of Consultant’s Services, or upon demand of City. Consultant shall have a right to make and keep copies of the Work Product except for any confidential information. Consultant shall not reveal the Work Product or the confidential information contained in the Work Product, or make it available, to any third party without the prior written consent of City.

9. CONFLICTS OF INTEREST PROHIBITED. Consultant (including its employees, agents, and subconsultants) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement. Consultant shall comply with all requirements of the Political Reform Act (California Government Code Section 81000, et seq.) and other laws relating to conflicts of interest, including: (a) Consultant shall not make or participate in a decision made by City if it is reasonably foreseeable that the decision may have a material effect on Consultant’s economic interest, and (b) if required by law, Consultant shall file financial disclosure forms with the City Clerk. If Consultant maintains or acquires a conflicting interest, any contract with City (including this Agreement) involving Consultant’s conflicting interest may be terminated by City.

10. NONDISCRIMINATION. Consultant shall comply with all applicable federal, state, and local laws regarding nondiscriminatory employment practices, whether or not said laws are expressly stated in this Agreement. Consultant shall not discriminate against any employee or applicant because of race, color, religious creed, national origin, physical disability, mental disability, medical condition, marital status, sexual orientation, sex, age, or any other basis, as defined in California Civil Code Section 51.

11. COMPLIANCE WITH LAW AND STANDARD OF CARE. Consultant shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this Agreement. Consultant shall perform Services using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals, with a level of experience and training similar to Consultant, performing under circumstances similar to those required by this Agreement.

12. INSURANCE. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, his agents, representatives, subconsultants, or employees.

A. Verification of Coverage.

Consultant shall furnish City with original certificates and amendatory endorsements effecting coverage required by this clause. All certificates and endorsements are to be received and approved by City before work commences. City reserves the right to require Packet Page 376
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complete, certified copies of all required insurance policies, including endorsements that affect the coverage required by these specifications at any time. Consultant shall immediately furnish City with certificates of renewal for each policy that is renewed during the term of this Agreement.

B. Minimum Scope of Insurance.

Coverage shall be at least as broad as:

1. Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001).

2. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto), or Code 8 (hired) and 9 (non-owned) if consultant has no owned autos.

3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.

4. Errors and Omissions Liability insurance appropriate to the Consultant’s profession. Architects’ and Engineers’ coverage is to be endorsed to include contractual liability.

C. Minimum Limits of Insurance.

Consultant shall maintain limits no less than:

1. General Liability:
(including products-completed
operations, personal and
advertising injury)
$1,000,000 per occurrence for bodily
injury, personal injury, and property
damage. If Commercial General
Liability insurance or other form
with a general aggregate limit is
used, either the general aggregate
limit shall apply separately to this
project/location or the general
aggregate limit shall be twice the
required occurrence limit.

2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.

3. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.

4. Errors and Omissions Liability: $1,000,000 per occurrence or claim.

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D. Deductibles and Self-Insured Retentions.

Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to City, its officers, officials, directors, employees, and volunteers, or (b) Consultant shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.

E. Claims Made Policies.

For all “claims made” coverage, in the event that Consultant changes insurance carriers Consultant shall purchase “tail” coverage or otherwise provide for continuous coverage covering the Term of this Agreement and not less than five (5) years thereafter. Proof of such “tail” or other continuous coverage shall be required at any time that the Consultant changes to a new carrier.

F. Wasting Policies.

No policy required by this paragraph 12 shall include a “wasting” policy limit (ie. limit that is eroded by the cost of defense).

G. Remedies.

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 exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:

1. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;

2. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or

3. Terminate this Agreement.

H. Acceptability of Insurers.

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to City.

I. Other Insurance Provisions.

The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

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1. Additional Insureds. City, its officers, officials, directors, employees and volunteers are to be covered as insureds with respect to liability arising out of work or operations performed by or on behalf of Consultant; including materials, parts or equipment furnished in connection with such work or operations.

2. Primary Insurance. For any claims related to these Services, Consultant’s insurance coverage shall be primary insurance as respects City, its officers, officials, directors, employees, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, directors, employees, or volunteers shall be excess of Consultant’s insurance and shall not be contribute with it.

3. Notice of Cancellation. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to City.

Similarly, no major change in coverage, expiration, or nonrenewal will be made during the term of this Agreement.

4. Civil Code § 2782. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the California Civil Code.

5. Qualifications. All insurance companies providing coverage to Consultant shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California.

6. Subconsultants. Consultant shall include all subconsultants as insured under its policies or shall furnish separate certificates and endorsements for each subconsultant.

All coverages for subconsultants shall be subject to all of the requirements stated herein.

7. Waiver of Subrogation. With respect to Workers’ Compensation and Employer’s Liability Coverage, the insurer shall agree to waive all rights of subrogation against City, its officers, officials, directors, employees, agents, and volunteers for losses arising from work performed by Consultant for City.

8. Coverage is Material Element. Maintenance of proper insurance coverage in conformity with the provision of this paragraph 12 is a material element of this Agreement and failure to maintain or renew coverage or to provide evidence of coverage or renewal may be treated by City as a material breach of this Agreement.

9. Variation. The Risk Manager of City may approve a variation in these insurance requirements upon a determination that the coverage, scope, limits, and form of such insurance are either not commercially available or that City’s interests are otherwise fully protected. Any variation granted shall be done in writing and shall be made a part of this Agreement as Appendix “A”.

13. REPORTING DAMAGES. If any damage (including but not limited to death, personal injury or property damage) occurs in connection with the performance of this Packet Page 379
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Agreement, Consultant shall immediately notify the City Risk Manager’s office by telephone at 510-578-4428, and Consultant shall promptly submit to the City’s Risk Manager and the City’s Administrator (see paragraph 18, hereinbelow) a written report (in a form acceptable to City) with the following information: (a) name(s) and address(es) of the injured or deceased person(s), (b) name(s) and address(es) of witnesses, (c) name(s) and address(es) of Consultant’s insurance company(ies), and (d) a detailed description of the damage(s) and whether any City property was involved.

14. INDEMNIFICATION/SAVE HARMLESS. To the fullest extent permitted by law, the Consultant shall: (1) immediately defend, and (2) indemnify City, its, officers, officials, directors, employees, and volunteers from and against all liabilities regardless of nature or type arising out of or resulting from Consultant’s performance of Services, or any negligent or wrongful act or omission of Consultant or Consultant’s officers, employees, agents, or subcontractors. Liabilities subject to the duties to defend and indemnify include, without limitation all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. Consultant’s obligation to indemnify applies unless it is adjudicated that its liability was caused by the sole active negligence or sole willful misconduct of an indemnified party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, Consultant’s indemnification obligation shall be reduced in proportion to the established comparative liability of the indemnified party.

The duty to defend is a separate and distinct obligation from Consultant’s duty to indemnify. Consultant shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel approved by City immediately upon tender to Consultant of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. An allegation or determination of comparative active negligence or willful misconduct by an indemnified party does not relieve the Consultant from its separate and distinct obligation to defend City. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Consultant asserts that liability is caused in whole or in part by the negligence or willful misconduct of the indemnified party. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful misconduct of an indemnified party, Consultant may submit a claim to City for reimbursement of reasonable attorneys’ fees and defense costs.

The review, acceptance or approval of Consultant’s work or Work Product by any indemnified party shall not affect, relieve or reduce Consultant’s indemnification or defense obligations. This paragraph survives completion of Services or the termination of this contract.

The provisions of this paragraph are not limited by and do not affect the provisions of this contract relating to insurance.

It shall be a requirement under this agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to the Additional Insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or Packet Page 380
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(2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater.

15. LICENSES, PERMITS, ETC. Consultant represents and warrants to City that it has all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required for Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. In addition to the foregoing, Consultant shall obtain and maintain during the term hereof a valid City of Newark Business License.

16. TERM/TERMINATION.

A. The term of this Agreement shall commence upon the date first hereinabove written and shall expire in three (3) years from said date or the Agreements may be extended up to two (2) additional one (1) year terms as authorized by the City Manager.

B. Notwithstanding the provisions of paragraph 16 section A above, either party may terminate this Agreement without cause by giving written notice thereof not less than ten (10) days prior to the effective date of termination, which date shall be included in said notice. In the event of such termination, City shall compensate Consultant for Services rendered and reimburse Consultant for costs and expenses incurred, to the date of termination, calculated in accordance with the provisions of paragraph 3. In ascertaining the Services actually rendered to the date of termination, consideration shall be given both to completed work and work in process of completion. Nothing herein contained shall be deemed a limitation upon the right of City to terminate this Agreement for cause, or otherwise to exercise such rights or pursue such remedies as may accrue to City hereunder.

17. CONTRACT ADMINISTRATION. This Agreement shall be administered by PUBLIC WORKS DIRECTOR of the City of Newark (“Administrator”). All correspondence shall be directed to or through the Administrator or his/her designee.

18. NOTICES. Written notices required or convenient hereunder shall be delivered personally or by depositing the same with the United States Postal Service, first class (or equivalent) postage prepaid and addressed, in the case of Consultant, to:

BUREAU VERITAS NORTH AMERICA, INC. CITY OF NEWARK

CRAIG BAPTISTA CHIEF BUILDING OFFICIAL
Vice President – Facilities Division Administrator
Address: Bureau Veritas
Attn: Craig Baptista
180 Promenade Circle
Suite 150
Scaramento, CA 95834
City of Newark
Attn: Chief Building Official
37101 Newark Boulevard
Newark, CA 94560
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19. PARAGRAPH HEADINGS. Paragraph headings used herein are for convenience only and shall not be deemed to be a part of such paragraphs and shall not be construed to change the meaning thereof.

20. EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference incorporated herein.

21. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the Parties’ intent under this Agreement.

22. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Alameda.

23. ATTORNEY’S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.

24. ASSIGNABILITY. Neither Consultant nor City shall subconsult, assign, sell, mortgage, hypothecate, or otherwise transfer their respective interests or obligations in this Agreement without the express prior written consent of the non-transferring party.

25. MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both Parties.

26. WAIVERS. Waiver of breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.

27. ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the Parties concerning the Services. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all.

28. 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 Consultant and City. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns.

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29. COVENANT AGAINST CONTINGENT FEES. Consultant hereby warrants that Consultant has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement, and Consultant has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, City shall have the right to annul this Agreement without liability or, at City’s discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and year first hereinabove written.

CITY OF NEWARK, Bureau Veritas North America, Inc.
a municipal corporation a California Corporation
By By
City of Newark Consultant (Signature & Title)
Date Date
Printed Name
Attest:

City Clerk
Date
Approved as to form:

City Attorney
Date
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EXHIBIT A

SCOPE OF SERVICES
Plan Checking, On Call inspection services – The consultant shall provide all equipment, services, and work required to review and inspect building plans and permit applications, including, but not limited to, major building permit construction documents and perform requested services. The type of improvements to be reviewed and inspected include but are not limited to: commercial, industrial, and residential construction drawings for new construction, additions, tenant improvements, or alterations.

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EXHIBIT B

PAYMENT

CITY OF NEWARK COST FEE PROPOSAL
BV’s pricing reflects our commitment to the success of the City of Newark by helping you maintain significant quality and cost saving benefits. These include:
✓ Reduced plan review turnaround times and rapid responses to inspection requests ✓ Implementation of electronic plan review processes to help improve efficiency and control costs ✓ Commitment to maintain a proposed rate structure for the life of the initial contract period ✓ Highly qualified and licensed/certified staff
✓ Confidence of working with a well-established consultant in business for 195+ years

PROPOSED SCHEDULE OF FEES
65% of City Collected Fees
HOURLY RATES FOR SERVICES*

PERSONNEL CLASSIFICATIONS / TITLE HOURLY BILLING RATE
Building Official $165.00
Structural Engineer / Fire Protection Engineer / Senior Plan Review Engineer $160.00 Plan Review Engineer / Sr. ICC Certified Plans Examiner $140.00 ICC Certified Plans Examiner $125.00
Fire Plan Reviewer $140.00
CASp 1 (Jurisdictional Plan Review) $135.00
CASp 2 (Inspections, ADA Scoping, Design Assessments and ROW Support) $150.00 CASp Inspector $150.00
Supervising Inspector (Commercial) / Sr. Building Inspector $115.00-$130.00* Building Inspector $95.00-$110.00*
Code Enforcement Officer $105.00-$120.00
ICC Certified Permit Counter Technician $65.00-$80.00
Administrative / Clerical Support $55.00-$65.00
Fast track / Expedited Plan Review 1.5x Plan Review Fee * Fast track / Expedited plan reviews shall be an additional 1.5 times the fees shown above. * Overtime(OT)willbechargedat1.25timesthestandardhourlyrate;hoursworkedonadesignatedholidaywillbechargedat theappropriateOT rate. No overtime will be charged without prior City approval. * Rates and cost estimates shown above exclude per diem, prevailing wage and union rates. Should these be applicable, BV will discuss and negotiate fees to account for increased personnel costs. * Hourly ratessubject toannualadjustment inaccordancewithCPIfromEngineering NewsRecord(ENR)withtheCity’sprior approval.
* Mileage for employee-owned vehicles used in connection with the work will be at the current IRS rate. * On-site hourly services to be invoiced a minimum of 6 hours per day on-site services are provided. * Each individual project will be authorized on a task order basis with a negotiated fee. * Services to be invoiced monthly; plan review fee to be invoiced after initial review. * Purchase of required software licenses will be billed to the city.

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EXHIBIT C

QUALIFICATIONS
This firm has demonstrated its ability to support Newark’s Building Inspection Division quality and level of service through the past 6 years and their references, interviews, and qualifications of available staff.

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CONTRACTUAL SERVICES AGREEMENT

CONSULTANTS
This Service Agreement (hereinafter “Agreement”) is made and entered into this day of , 20 by and between the CITY OF NEWARK, a municipal corporation (“City”), and CSG CONSULTANTS, INC., a Corporation (“Consultant”), collectively the “Parties”.

W I T N E S S E T H:

WHEREAS, City requested proposals to perform the services generally including:

ONCALL INSPECTION AND PLAN REVIEW SERVICES.

WHEREAS, in response to City’s request, Consultant submitted a proposal and, after negotiations, Consultant agreed to perform the “Services” more particularly described in Exhibit “A”, in return for the compensation described in this Agreement and Exhibit “B”.

WHEREAS, in reliance upon Consultant’s documentation of its qualifications, as set forth in Exhibit “C”, City finds that Consultant has demonstrated the requisite qualifications, experience, training, and expertise to perform the requested Services.

NOW, THEREFORE, the Parties hereto agree as follows:

1. CONSULTANT’S SERVICES. Consultant shall perform Services described, and in the time, place, and manner specified in Exhibit “A” in accordance with the terms and conditions of this Agreement. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit “A”, the Agreement shall control.

2. TIME FOR PERFORMANCE. Time is of the essence in the performance of Services under this Agreement and Consultant shall generally adhere to the schedule set forth in Exhibit “A”; provided, that City shall grant reasonable extensions of time for the performance of such Services occasioned by governmental reviews of Consultant’s work product or other unavoidable delays occasioned by circumstances, provided, further, that such unavoidable delays shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, Consultant’s officers or employees. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by Consultant in a reasonably prompt and timely manner based upon the circumstances and direction communicated to Consultant.

Consultant acknowledges the importance to City of City’s performance schedule and agrees to put forth its best professional efforts to perform its Services under this Agreement in a manner consistent with that schedule. City understands, however, that Consultant’s performance must be governed by sound professional practices.

3. COMPENSATION.

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A. “Not to Exceed” Compensation. City shall compensate Consultant for all Services performed by Consultant hereunder in an amount based upon Consultant’s hourly or other rates set forth in Exhibit “B”. The payments specified in Exhibit “B” shall be the only payments to be made to Consultant for Services rendered pursuant to this Agreement.

Notwithstanding the foregoing, the combined total of compensation and costs payable hereunder shall not exceed the sum of Three Hundred Thousand and No/100 Dollars ($300,000.00) per fiscal year unless the performance of services pursuant to City Council Resolution No. , and/or reimbursement of costs and expenses in excess of said amounts have been approved in advance of performing such services and/or incurring such costs and expenses, evidenced in writing as Additional Services by Task Order (see Section 4.

Additional Services of this Agreement).

B. Method of Billing. To request payment, Consultant shall submit monthly invoices to City identifying Services performed and the charges therefore (including an identification of personnel who performed Services, hours worked, hourly rates, and reimbursable expenses), based upon Consultant’s billing rates (set forth on Exhibit “B” hereto).

Consultant shall submit all billings for said Services to City in the manner specified in Exhibit “B”; or, if no manner is specified in Exhibit “B”, then according to the usual and customary procedures and practices which Consultant uses for billing clients similar to City.

Invoices shall be sent to:

City of Newark
Public Works Department
37101 Newark Blvd.

Newark, CA 94560
Upon completion of Services, City shall sign off and acknowledge that all terms and conditions have been satisfactorily met; upon which, unless waived by City in writing, Consultant shall prepare an itemized statement, briefly describing by task and/or labor category the items billed.

C. Payment. Upon receipt of billing, City shall make payments to Consultant on a monthly basis, or at such other times as may be specified in Exhibit “B”, for Services, which are performed in accordance with this Agreement to the satisfaction of City.

D. Consultant’s Failure to Perform. In the event that Consultant performs Services that do not comply with the requirements of this Agreement, Consultant shall, upon receipt of written notice from City, re-perform the services (without additional compensation to Consultant). If Consultant’s failure to perform in accordance with this Agreement causes damages to City, Consultant shall reimburse City for the damages incurred (which may be charged as an offset to Consultant’s payment).

4. ADDITIONAL SERVICES. In the event City desires the performance of additional services not otherwise included within Services, such services shall be authorized by written Task Order approved in advance of the performance thereof. Such Task Order shall Packet Page 388
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include a description of the services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefore, the time of performance thereof, and such other matters as the Parties deem appropriate for the accomplishment of such services.

Except to the extent modified by a Task Order, all other terms and conditions of this Agreement shall be deemed incorporated in each such task order. City Manager shall have approval authority up to a maximum of 10% of the Not to Exceed Compensation or $30,000, whichever is greater for such Additional Services.

5. INDEPENDENT CONSULTANT. At all times during the term of this Agreement, Consultant shall be, and is an independent consultant and shall not be an employee or agent of City. Consultant shall not be entitled to any benefit, right, or compensation other than that provided in this Agreement. City shall have the right to control Consultant only insofar as the results of Consultant’s Services; however, City shall not have the right to control the means by which Consultant accomplishes Services.

Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.

6. PERSONNEL. Consultant understands that, in entering into this Agreement, City has relied upon Consultant’s ability to perform in accordance with its representations regarding the qualifications of Consultant, including the qualifications of its Authorized Representative, its designated personnel, and its subconsultants, if any, identified in Exhibit “C”.

Therefore, Consultant shall not replace its Authorized Representative, or any of the designated personnel or subconsultants identified in Exhibit “C”, without the prior written consent of City.

All Services shall be performed by, or under, the direct supervision of Consultant’s Authorized Representative.

In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any of Consultant’s designated personnel or subconsultants, Consultant shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons.

7. FACILITIES AND EQUIPMENT. Consultant shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing Services.

8. INFORMATION AND DOCUMENTATION.

A. Information from City. City has made an effort to provide Consultant with all information necessary for Consultant’s performance of Services. If Consultant believes additional information is required, Consultant shall promptly notify City and City will provide to Consultant all relevant non-privileged information in City’s possession.

B. Consultant’s Accounting Records. Consultant shall maintain all accounting records related to this Agreement in accordance with generally accepted accounting principles and state law requirements, and in no event for less than four (4) years. Consultant’s accounting records shall include, at a minimum, all documents which support Consultant’s costs Packet Page 389
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and expenses related to this Agreement, including personnel, subconsultants’ invoices and payments, and reimbursable expenses. Consultant’s accounting records shall be made available to City within a reasonable time after City’s request, during normal business hours.

C. Ownership of Work Product. All original documents prepared by Consultant (including its employees and subconsultants) for this Agreement (“Work Product”), whether complete or in progress, are the property of City and shall be given to City at the completion of Consultant’s Services, or upon demand of City. Consultant shall have a right to make and keep copies of the Work Product except for any confidential information. Consultant shall not reveal the Work Product or the confidential information contained in the Work Product, or make it available, to any third party without the prior written consent of City.

9. CONFLICTS OF INTEREST PROHIBITED. Consultant (including its employees, agents, and subconsultants) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement. Consultant shall comply with all requirements of the Political Reform Act (California Government Code Section 81000, et seq.) and other laws relating to conflicts of interest, including: (a) Consultant shall not make or participate in a decision made by City if it is reasonably foreseeable that the decision may have a material effect on Consultant’s economic interest, and (b) if required by law, Consultant shall file financial disclosure forms with the City Clerk. If Consultant maintains or acquires a conflicting interest, any contract with City (including this Agreement) involving Consultant’s conflicting interest may be terminated by City.

10. NONDISCRIMINATION. Consultant shall comply with all applicable federal, state, and local laws regarding nondiscriminatory employment practices, whether or not said laws are expressly stated in this Agreement. Consultant shall not discriminate against any employee or applicant because of race, color, religious creed, national origin, physical disability, mental disability, medical condition, marital status, sexual orientation, sex, age, or any other basis, as defined in California Civil Code Section 51.

11. COMPLIANCE WITH LAW AND STANDARD OF CARE. Consultant shall comply with all applicable legal requirements including all federal, state, and local laws (including ordinances and resolutions), whether or not said laws are expressly stated in this Agreement. Consultant shall perform Services using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals, with a level of experience and training similar to Consultant, performing under circumstances similar to those required by this Agreement.

12. INSURANCE. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, his agents, representatives, subconsultants, or employees.

A. Verification of Coverage.

Consultant shall furnish City with original certificates and amendatory endorsements effecting coverage required by this clause. All certificates and endorsements are to be received and approved by City before work commences. City reserves the right to require Packet Page 390
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complete, certified copies of all required insurance policies, including endorsements that affect the coverage required by these specifications at any time. Consultant shall immediately furnish City with certificates of renewal for each policy that is renewed during the term of this Agreement.

B. Minimum Scope of Insurance.

Coverage shall be at least as broad as:

1. Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001).

2. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto), or Code 8 (hired) and 9 (non-owned) if consultant has no owned autos.

3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.

4. Errors and Omissions Liability insurance appropriate to the Consultant’s profession. Architects’ and Engineers’ coverage is to be endorsed to include contractual liability.

C. Minimum Limits of Insurance.

Consultant shall maintain limits no less than:

1. General Liability:
(including products-completed
operations, personal and
advertising injury)
$1,000,000 per occurrence for bodily
injury, personal injury, and property
damage. If Commercial General
Liability insurance or other form
with a general aggregate limit is
used, either the general aggregate
limit shall apply separately to this
project/location or the general
aggregate limit shall be twice the
required occurrence limit.

2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.

3. Employer’s Liability: $1,000,000 per accident for bodily injury or disease.

4. Errors and Omissions Liability: $1,000,000 per occurrence or claim.

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D. Deductibles and Self-Insured Retentions.

Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to City, its officers, officials, directors, employees, and volunteers, or (b) Consultant shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.

E. Claims Made Policies.

For all “claims made” coverage, in the event that Consultant changes insurance carriers Consultant shall purchase “tail” coverage or otherwise provide for continuous coverage covering the Term of this Agreement and not less than five (5) years thereafter. Proof of such “tail” or other continuous coverage shall be required at any time that the Consultant changes to a new carrier.

F. Wasting Policies.

No policy required by this paragraph 12 shall include a “wasting” policy limit (ie. limit that is eroded by the cost of defense).

G. Remedies.

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 exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:

1. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;

2. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or

3. Terminate this Agreement.

H. Acceptability of Insurers.

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to City.

I. Other Insurance Provisions.

The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

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1. Additional Insureds. City, its officers, officials, directors, employees and volunteers are to be covered as insureds with respect to liability arising out of work or operations performed by or on behalf of Consultant; including materials, parts or equipment furnished in connection with such work or operations.

2. Primary Insurance. For any claims related to these Services, Consultant’s insurance coverage shall be primary insurance as respects City, its officers, officials, directors, employees, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, directors, employees, or volunteers shall be excess of Consultant’s insurance and shall not be contribute with it.

3. Notice of Cancellation. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to City.

Similarly, no major change in coverage, expiration, or nonrenewal will be made during the term of this Agreement.

4. Civil Code § 2782. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the California Civil Code.

5. Qualifications. All insurance companies providing coverage to Consultant shall be insurance organizations authorized by the Insurance Commissioner of the State of California to transact the business of insurance in the State of California.

6. Subconsultants. Consultant shall include all subconsultants as insured under its policies or shall furnish separate certificates and endorsements for each subconsultant.

All coverages for subconsultants shall be subject to all of the requirements stated herein.

7. Waiver of Subrogation. With respect to Workers’ Compensation and Employer’s Liability Coverage, the insurer shall agree to waive all rights of subrogation against City, its officers, officials, directors, employees, agents, and volunteers for losses arising from work performed by Consultant for City.

8. Coverage is Material Element. Maintenance of proper insurance coverage in conformity with the provision of this paragraph 12 is a material element of this Agreement and failure to maintain or renew coverage or to provide evidence of coverage or renewal may be treated by City as a material breach of this Agreement.

9. Variation. The Risk Manager of City may approve a variation in these insurance requirements upon a determination that the coverage, scope, limits, and form of such insurance are either not commercially available or that City’s interests are otherwise fully protected. Any variation granted shall be done in writing and shall be made a part of this Agreement as Appendix “A”.

13. REPORTING DAMAGES. If any damage (including but not limited to death, personal injury or property damage) occurs in connection with the performance of this Packet Page 393
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Agreement, Consultant shall immediately notify the City Risk Manager’s office by telephone at 510-578-4428, and Consultant shall promptly submit to the City’s Risk Manager and the City’s Administrator (see paragraph 18, hereinbelow) a written report (in a form acceptable to City) with the following information: (a) name(s) and address(es) of the injured or deceased person(s), (b) name(s) and address(es) of witnesses, (c) name(s) and address(es) of Consultant’s insurance company(ies), and (d) a detailed description of the damage(s) and whether any City property was involved.

14. INDEMNIFICATION/SAVE HARMLESS. To the fullest extent permitted by law, the Consultant shall: (1) immediately defend, and (2) indemnify City, its, officers, officials, directors, employees, and volunteers from and against all liabilities regardless of nature or type arising out of or resulting from Consultant’s performance of Services, or any negligent or wrongful act or omission of Consultant or Consultant’s officers, employees, agents, or subcontractors. Liabilities subject to the duties to defend and indemnify include, without limitation all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. Consultant’s obligation to indemnify applies unless it is adjudicated that its liability was caused by the sole active negligence or sole willful misconduct of an indemnified party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, Consultant’s indemnification obligation shall be reduced in proportion to the established comparative liability of the indemnified party.

The duty to defend is a separate and distinct obligation from Consultant’s duty to indemnify. Consultant shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel approved by City immediately upon tender to Consultant of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. An allegation or determination of comparative active negligence or willful misconduct by an indemnified party does not relieve the Consultant from its separate and distinct obligation to defend City. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Consultant asserts that liability is caused in whole or in part by the negligence or willful misconduct of the indemnified party. If it is finally adjudicated that liability was caused by the sole active negligence or sole willful misconduct of an indemnified party, Consultant may submit a claim to City for reimbursement of reasonable attorneys’ fees and defense costs.

The review, acceptance or approval of Consultant’s work or Work Product by any indemnified party shall not affect, relieve or reduce Consultant’s indemnification or defense obligations. This paragraph survives completion of Services or the termination of this contract.

The provisions of this paragraph are not limited by and do not affect the provisions of this contract relating to insurance.

It shall be a requirement under this agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to the Additional Insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or Packet Page 394
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(2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater.

15. LICENSES, PERMITS, ETC. Consultant represents and warrants to City that it has all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required for Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. In addition to the foregoing, Consultant shall obtain and maintain during the term hereof a valid City of Newark Business License.

16. TERM/TERMINATION.

A. The term of this Agreement shall commence upon the date first hereinabove written and shall expire in three (3) years from said date or the Agreements may be extended up to two (2) additional one (1) year terms as authorized by the City Manager.

B. Notwithstanding the provisions of paragraph 16 section A above, either party may terminate this Agreement without cause by giving written notice thereof not less than ten (10) days prior to the effective date of termination, which date shall be included in said notice. In the event of such termination, City shall compensate Consultant for Services rendered and reimburse Consultant for costs and expenses incurred, to the date of termination, calculated in accordance with the provisions of paragraph 3. In ascertaining the Services actually rendered to the date of termination, consideration shall be given both to completed work and work in process of completion. Nothing herein contained shall be deemed a limitation upon the right of City to terminate this Agreement for cause, or otherwise to exercise such rights or pursue such remedies as may accrue to City hereunder.

17. CONTRACT ADMINISTRATION. This Agreement shall be administered by PUBLIC WORKS DIRECTOR of the City of Newark (“Administrator”). All correspondence shall be directed to or through the Administrator or his/her designee.

18. NOTICES. Written notices required or convenient hereunder shall be delivered personally or by depositing the same with the United States Postal Service, first class (or equivalent) postage prepaid and addressed, in the case of Consultant, to:

CSG CONSULTANTS, INC. CITY OF NEWARK
Cyrus Kianpour CHIEF BUILDING OFFICIAL
President Administrator
Address: CSG Consultants, Inc
Attn: Cyrus Kianpour
550 Pilgrim Dr
Foster City, CA 94404
City of Newark
Attn: Chief Building Official
37101 Newark Boulevard
Newark, CA 94560
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19. PARAGRAPH HEADINGS. Paragraph headings used herein are for convenience only and shall not be deemed to be a part of such paragraphs and shall not be construed to change the meaning thereof.

20. EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference incorporated herein.

21. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the Parties’ intent under this Agreement.

22. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Alameda.

23. ATTORNEY’S FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.

24. ASSIGNABILITY. Neither Consultant nor City shall subconsult, assign, sell, mortgage, hypothecate, or otherwise transfer their respective interests or obligations in this Agreement without the express prior written consent of the non-transferring party.

25. MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both Parties.

26. WAIVERS. Waiver of breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.

27. ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the Parties concerning the Services. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all.

28. 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 Consultant and City. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns.