AGREEMENT FOR PROFESSIONAL SERVICES
2023, by and between the Cily of Pleasant Hill "Cily) and All City Management Services, Tre, This Agreement is made and entered into as of the a California corporation ("Consultant").
RECITALS
A. Consultant is specially trained, experienced and competent to perform the special services which will be required by this Agreement; and
B. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein.
AGREEMENT
The Recitals listed above are hereby incorporated into and shall constitute a part of this Agreement.
1. Scope of Services. Consultant shall perform the services described on Exhibit A which is attached hereto and incorporated herein by reference. Consultant shall provide said services at the time, place, and in the manner specified in Exhibit B, subject to the direction of the City through its staff that it may provide from time to time.
Time of Performance. The term of this Agreement is one school year. Contractor's services shall begin no later than the first day of the 2023-24 school year for the Mount Diablo School District and shall terminate at the end of this same school year.
3. Compensation. Compensation to be paid to Consultant shall be at an hourly rate of $33.99 per hour, in an amount not to exceed $165,192 over the full term of this Agreement. This rate includes, but is not limited to recruitment, background clearance, training, supervision payroll and management of the Crossing Guard Program.
Method of Payment. Consultant shall submit monthly billings to City describing the work performed during the preceding month. Consultant's bills shall include a brief description of the services performed, the date the services were performed, the number of hours spent and by whom, and a description of any reimbursable expenditures. City shall pay Consultant no later than 30 days after approval of the monthly invoice by City staff. When payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until the final work under this Agreement has been accepted by City.
Ownership of Documents. All plans, studies, documents and other writings prepared by and for Consultant, its officers, employees and agents and subcontractors in the course of implementing this Agreement, except working notes and internal documents, shall become the property of the City upon payment to Consultant for such work, and the City shall have the sole right to use such materials in its discretion without further compensation to Consultant or to any 1 other party. Consultant shall, at Consultant's expense, provide such reports, plans, studies, documents and other writings to City upon written request.
Independent Contractor. It is understood that Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and shall not act as an agent or employee of the City. Consultant shall obtain no rights to retirement benefits or other benefits which accrue to City's employees, and Consultant hereby expressly waives any claim it may have to any such rights.
7. Interest of Consultant. Consultant (including principals, associates and professional employees) covenants and represents that it does not now have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this Agreement or any other source of income, interest in real property or investment which would be affected in any manner or degree by the performance of Consultant's services hereunder. Consultant further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement.
Consultant is not a designated employee within the meaning of the Political Reform Act because Consultant will not:
a. make a governmental decision whether to:
1. approve a rate, rule, or regulation;
2. adopt or enforce a law;
3. issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement;
4. authorize the City to enter into, modify, or renew a contract provided it is the type of contract that requires agency approval;
5. grant City approval to a contract that requires agency approval and to which the City is a party, or to the specifications for such a contract;
6. grant City approval to a plan, design, report, study, or similar item;
7. adopt, or grant City approval of, policies, standards, or guidelines for the agency, or for any subdivision thereof; or
b. serve in a staff capacity with the City and in that capacity participate in making a governmental decision as defined in 2 California Code of Regulations ("C.C.R") § 18704(a) and (b) or perform the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City's Conflict of Interest Code under 2 C.C.R. § 87302. (2 C.C.R. § 18700.3.)
8. Professional Ability of Consultant. City has relied upon the professional training and ability of Consultant to perform the services hereunder as a material inducement to enter into this Agreement. Consultant shall therefore provide properly skilled professional and technical personnel to perform all services under this Agreement. All work performed by Consultant under this Agreement shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professionals in Consultant's field of expertise.
Indemnity. To the furthest extent permitted by law, Consultant agrees to defend, indemnify and hold harmless the City, its officers, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all related costs and expenses in connection therein), arising out of the performance of this Agreement, except for any such claim arising out of the sole negligence or willful misconduct of the City, its officers, agents, employees or volunteers.
10. Insurance Requirements.
a. Consultant, at Consultant's own cost and expense, shall procure and maintain, for the duration of the contract, the following insurance policies. To the extent that any portion of the following requirements are satisfied through excess or umbrella coverage, such coverage shall be maintained on the same terms as are required for the primary policies under this Agreement.
i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his/her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non-renewal of all Workers' Compensation policies must be received by the City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury, personal injury and property damage. If a commercial general liability insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain automobile liability insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with the work to be performed under this Agreement, including coverage for owned, hired and non-owned vehicles, in 3 an amount of not less than two million dollars ($2,000,000) combined single limit for each occurrence.
b. Policy Endorsements. Each general liability and automobile liability insurance policy shall be with insurers possessing a Best's rating of no less than A: VII and shall be endorsed with the following specific language:
i. The City of Pleasant Hill, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work or operations.
This policy shall be considered primary insurance as respects the City, its elected or appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self-insured retention the City may have, shall be considered excess insurance only and shall not contribute with it.
If Consultant maintains higher insurance limits than the minimums specified herein, City shall be entitled to coverage for the higher limits maintained by the Consultant.
ili. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company.
iv. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected or appointed officers, officials, employees, agents or volunteers.
V. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days written notice has been received by the City.
Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the City's option, Consultant shall demonstrate financial capability for payment of such deductibles or self-insured retentions.
d. Certificates of Insurance and Endorsements. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement. 4 Wasting Policies. No policy required herein shall include a "wasting" policy limit (ie. limit that is croded by the cost of defense).
f. Waiver of Subrogation. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from Consultant by virtue of the payment of any loss. Consultant agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. 1l. Compliance with Laws. Consultant shall use the standard of care in its profession to comply with all applicable federal, state and local laws, codes, ordinances and regulations.
Licenses. Consultant represents and warrants to City that it has all licenses, permits, qualifications, insurance and approvals of whatsoever nature which are legally required of Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any licenses, permits, insurance and approvals which are legally required of Consultant to practice its profession. Consultant shall maintain a City of Pleasant Hill business license.
13. Controlling Law Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Contra Costa, Martinez, California.
14. Written Notification. Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other party shall be in writing and either served personally or sent prepaid, first class mail. Any such notice, demand, etc. shall be addressed to the other party at the address set forth herein below. Either party may change its address by notifying the other party of the change of address. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section.
If to City: City of Pleasant Hill
100 Gregory Lane
Pleasant Hill, CA 94523-3323
If to Consultant: All City Management Services
10440 Pioneer Blvd, Suite 5
Santa Fe Springs, CA 90670
15. Consultant's Books and Records.
Consultant shall maintain any and all ledgers, books of account, invoices, larges, rarice shore pend otes and did ursemes naryid to city for aminium 5 period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement.
Consultant shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement.
C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Auditor or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Consultant's address indicated for receipt of notices in this Agreement.
Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Consultant's business, City may, by written request by any of the above named officers, require that custody of the records be given to the City and that the records and documents be maintained in City Hall. Access to such records and documents shall be granted to any party authorized by Consultant, Consultant's representatives, or Consultant's successor-in-interest.
16. Entire Agreement. This Agreement constitutes the complete and exclusive statement of Agreement between the City and Consultant. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement.
Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney.
18. Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder.
Litigation Expenses and Attorneys' Fees. If either party to this Agreement commences beneal to recover is reasonabli grin expenses, indirime, these air in sall fees, discovery expenses, and attorneys' fees.
20. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
21. Assignment and Subcontracting. The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence 6 of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement shall be permitted only with the express consent of the City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of the City. If City consents to such subcontract, Consultant shall be fully responsible to City for all acts or omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of the City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise is required by law.
22. Termination. This Agreement may be terminated immediately for cause or by either party without cause upon fifteen days' written notice of termination. Upon termination, Consultant shall be entitled to compensation for services performed up to the effective date of termination.
Coronavirus State and Local Fiscal Recovery Funds. Coronavirus State and Local Fiscal Recovery Funds ("SLFRF") will be used to fund all or a portion of this Agreement. Consultant shall comply with all federal requirements including, but not limited to, the following:
Sections 602 and 603 of the Social Security Act as added by Section 9901 of the American Rescue Plan Act of 2021, U.S. Department of the Treasury Coronavirus State and Local Fiscal Recovery Fund Award Terms and Conditions, Treasury's Final Rule, and SLFRF reporting requirements, as applicable (collectively, the "SLFRF Compliance Requirements"). The SLFRF Compliance Requirements are expressly incorporated herein by reference.
2. 2 C.F.R. Part 200 - Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which is expressly incorporated herein by reference.
3. The "Federal Contract Provisions" document attached hereto as Exhibit "C" and incorporated herein by reference.
Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in the Agreement, including but not limited to, SLERF Compliance Requirements, 2 C.F.R. Part 200, and the Federal Contract Provisions.
With respect to any conflict between such federal requirements and the terms herein and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first written above.
7 CITY OF PLEASANT HILL:
June W. Catalano, City Manager
Tile: ceretar
Business License #
APPROVED AS TO FORM: ATTEST:
Janet E. Coleson, City Attorney Juanita Davalos, Acting City Clerk Attachments: Exhibit A - Scope of Services, Special Provisions & Schedule of Charges Exhibit B - Locations and Hours
Exhibit C - Federal Contract Provisions
EXHIBIT A
Scope of Services and Special Provisions
This document details the scope of work and special provisions incorporated into the Agreement for Crossing Guard Services between the City of Pleasant Hill and the Consultant for the 2023-2024 school year.
1. Purpose of Intent. Each school day, in the Mt. Diablo Unified School District, the Consultant shall provide one capable, reliable, fully trained crossing guard (CG) to serve as an adult CG at each of the locations and times specified in the category titled "Locations and Times" and pursuant to the terms of For the purpose of this Agreement, the term Crossing Guard (CG) includes and any all fully trained substitutes.
2. Substitutes. The Consultant shall assure that there is at least one substitute CG available for every four CG locations, or fraction thereof.
3. Time of Performance. This is a one-year Agreement. The services of the Consultant are to commence no later than the first day of school in the 2023 - 2024 school year for the Mount Diablo School District and shall continue until the end this same school year.
4. Management and Supervision. Consultant shall provide fully trained supervision and/or management personnel who shall coordinate and schedule the work of CG services.
A. The Consultant shall keep the City informed of the name and contact telephone numbers), including non-work numbers, of their assigned CG supervisor.
B. The City representative for the administration of this Agreement shall be the Patrol Division Commander, or in his/her absence, the Patrol Watch Commander.
C. While neither the City nor the police directly supervise or control the CGs, because of the unique public safety nature of the CG assignment, a representative of the Police Department may, from time to time, offer suggestions or advice directly to individual CGs as to how the safety of the children or the safety and performance of the CG might be improved.
5. Locations and Times. The City may change, add or eliminate hours of work or locations as the need arises or requirements change (See Exhibit B). Compensation to the Consultant shall be adjusted accordingly.
During the school year, the Consultant is to consult directly with each school whose children use the crossing locations and make appropriate adjustments to the time of work of the appropriate CG, for special, day at a time, conditions.
6. Recruitment and Screening. Applicants for CG positions shall be screened by the Consultant for basic qualifications.
1 A. If acceptable to the Consultant, the CG applicant shall be sent to the Pleasant Hill Police Department for fingerprinting and a background screening to determine suitability for employment.
B. Background screening shall include a formal inquiry into local, state and federal criminal history records. The Police Department shall pay any necessary fingerprint processing or other background fees. Any applicant deemed not acceptable by the Police Department shall not be employed as a CG under this Agreement.
7. Training. Consultant shall fully train each CG before assignment to duties. Minimum training shall include, but not be limited to, pertinent Municipal Code and Vehicle Code laws relating to CG rights, obligations and duties.
8. Clothing and Equipment. The Consultant shall provide twelve CG stop signs and "safety vests." All other necessary clothing and equipment shall be provided by the Consultant or CG.
A. CGs shall only use approved CG stop signs.
B. When working, the CG shall wear the designated "safety vest" as his or her outermost garment.
9. Vacant Positions. If, for any reason, the contractor is unable to fill one or more CG locations for the assigned times, the Consultant shall immediately notify the Police Department Watch Commander.
10. Reporting hazards/violations. CGs shall report to the Police Department all serious hazards, traffic violations or criminal violations that they observe or have knowledge of, that affect the safety of children at or near their assigned location. Reporting shall be as soon as reasonable, given their crossing duties, but in the event, by the end of the same day as the occurrence. 2 All City Management Services Inc.
Client Worksheet 2023 - 2024
Department: 6908
City of Pleasant Hill
Billing Rate for 2023/2024: $ 33.99 330 Civic Drive
Pleasant Hill, CA 94523
KEY:
Traditional Calendar:
For sites with no regularly scheduled early release days, use 180 regular days Sites with traditional calendar:
27 180 $33.99 = $165,191.40
9 Sites at 3.00 hrs per day Total Hrs/day X days/yr X Hourly Billing Rate TOTAL PROJECTED HOURS 4,860.00 TOTAL ANNUAL PROJECTED COST $165,191.40
EXHIBIT B
Locations and times
The Crossing Guard locations and times for the 2023-24 school year are as follows
LOCATIONS TIMES HOURS
Boyd Road / Patterson Boulevard 0730 - 0900/ 1330 - 1500 3 Contra Costa Boulevard/ Ellinwood Drive 0730 - 0900/ 1330 - 1500 3 Gregory Lane/ Brandon Road 0730 - 0900/ 1330 - 1500 3
Gladys Drive/ Helen Drive 0730 - 0900/ 1330 - 1500 3
Monument Boulevard/ Buskirk Avenue 0730 - 0900/ 1330 - 1500 3 Oak Park Boulevard/ Wendell Lane 0730 - 0900/1330 - 1500 3 Pleasant Hill Road/ Paradise Lane 0730 - 0900/1330 - 1500 3 Viking Drive/ Odin Drive 0730 - 0900/ 1330 - 1500 3
Viking Drive/ Ruth Drive 0730 - 0900/1330 - 1500 3
**Total 27 hours per day
The City may change, add or eliminate hours of work or locations as the need arises or requirements change. Compensation to the Contractor shall be adjusted accordingly. During the school year, the Contractor isto consult directly with each school whose students use the crossing locations and make appropriate adjustments to the times of work of the appropriate CG, for special day at time conditions, and as the bell schedules and coverage times may be subject to change.
EXHIBIT C
Federal Contract Provisions
During the performance of this Agreement, the Consultant shall comply with all applicable federal laws and regulations including, but not limited to, the federal contract provisions in this Exhibit.
1. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APPENDIX II TO PART 200 - CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (2 C.F.R. § 200.327)
(a) Appendix II to Part 200 (A): Appendix II to Part 200 (B): Remedies for Breach:
Termination for Cause/Convenience. The Agreement includes remedies for breach and termination for cause and convenience.
Appendix II to Part 200 (C) - Equal Employment Opportunity: Except as otherwise provided under 41 C.F.R. Part 60, if this Agreement meets the definition of a "federally assisted construction contract" in 41 C.F.R. § 60-1.3, then Consultant shall comply with the following equal opportunity clause, in accordance with Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13, 1967 and implementation regulations at 41 C.F.R. Chapter 60:
(i) The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Consultant will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(ii) The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(iii) The Consultant will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Consultant's legal duty to furnish information. (iv) The Consultant will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Consultant's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(V) The Consultant will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (Vi) The Consultant will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(vii) In the event of the Consultant's noncompliance with the nondiscrimination clauses of this Agreement or with any of the said rules, regulations, or orders, this Agreement may be canceled, terminated, or suspended in whole or in part and the Consultant may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(vili) The Consultant will include the portion of the sentence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Consultant will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a Consultant becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Consultant may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the Agreement.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance. The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
Appendix II to Part 200 (D) - Davis-Bacon Act: Not applicable to this Agreement since it is funded by SLERF.
(d) Appendix II to Part 200 (D) - Copeland "Anti-Kickback" Act: Not applicable to this Agreement.
(e) Appendix II to Part 200(E) - Agreement Work Hours and Safety Standards Act:
(i) If this Agreement is in excess of $100,000 and involves the employment of mechanics or laborers, Consultant shall comply with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. Part 5). Under 40 U.S.C. 3702, each contractor must be required to compute the 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. (ii) Overtime Requirements. No contractor or subcontractor contracting for any part of the Agreement work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (ii) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory, for liquidated damages.
Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (ii) ofthis section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (ii) of this section.
Withholding for unpaid wages and liquidated damages. The City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Consultant or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Agreement Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (ill) of this section. (iv) Subcontracts. The Consultant or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (ii) through (v) of this Section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Consultant shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (ii) through (V) of this Section. (f) Appendix II to Part 200 (F) - Rights to Inventions Made Under a Agreement or Agreement:
(i) If the Federal award meets the definition of "funding agreement" under 37 C.F.R. § 401.2(a) and the non-Federal entity 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 non-Federal entity must comply with the requirements of 37 C.F.R.
Part 401 (Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Agreements and Cooperative Agreements), and any implementing regulations issued by the Federal awarding agency. (ii) The regulation at 37 C.F.R. § 401.2(a) currently defines "funding agreement" as any contract, grant, or cooperative agreement entered into between any Federal agency, other than the Tennessee Valley Authority, and any contractor for the pertormance of experimental, developmental, or research work funded in whole or in part by the Federal government. This term also includes any assignment, substitution of parties, or subcontract of any type entered into for the performance of experimental, developmental, or research work under a funding agreement as defined in the first sentence of this paragraph.
Appendix II to Part 200 (G) - Clean Air Act and Federal Water Pollution Control Act: If this Agreement is in excess of $150,000, Consultant shall comply with all applicable standards, orders, or requirements issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). (i) Pursuant to the Clean Air Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
(ii) Pursuant to the Federal Water Pollution Control Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
(h) Appendix II to Part 200 (H) - Debarment and Suspension: 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 CFR 180 that implement Executive Orders 12549 (3 C.F.R. part 1986 Comp., p. 189) and 12689 (3 C.F.R. part 1989 Comp., p. 235), "Debarment and Suspension." SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. (i) This Agreement is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is required to verify that none of the Consultant, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). (ii) Consultant must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
(iii) This certification is a material representation of fact relied upon by City.
If it is later determined that Consultant did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. (iv) Consultant warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Consultant also agrees to verify that all subcontractors performing work under this Agreement are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above. Consultant further agrees to notify the City in writing immediately if Consultant or its subcontractors are not in compliance during the term of this Agreement.
(i) Appendix II to Part 200 (I) - Byrd Anti-Lobbying Act: If this Agreement is in excess of $100,000, Consultant shall have submitted and filed the required certification pursuant to the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1353). If at any time during the Agreement term funding exceeds $100,000.00, Consultant shall file with the City the Federal Standard Form LLL titled "Disclosure Form to Report Lobbying." Consultants that apply or bid for an award exceeding
$100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not 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. Each tier must also 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 recipient who in turn will forward the certification(s) to the awarding agency.
(i) Appendix II to Part 200 (J) - §200.323 Procurement of Recovered Materials:
Consultant shall comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation 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. part 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.
In the performance of this Agreement, the Consultant shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired: Competitively within a timeframe providing for compliance with the contract performance schedule; Meeting contract performance requirements; or At a reasonable price.
(iii) Information about this requirement, along with the list of EPA-designate items, is available at EPA's Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. (IV) The Consultant also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act."
(k) Appendix II to Part 200 (K) - $200.216 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment:
(i) Consultant shall not contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system funded under this Agreement. As described in Public Law 115-232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
(2) Telecommunications or video surveillance services provided by such entities or using such equipment.
Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
(ii) See Public Law 115-232, section 889 for additional information. (1) Appendix II to Part 200 (L) - §200.322 Domestic Preferences for Procurement:
(i) Consultant shall, to the greatest extent practicable, purchase, acquire, or use goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subcontracts
(ii) For purposes of this section:
(1) "Produced in the United States" means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(2) "Manufactured products" means items and construction materials composed in whole or in part of nonferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
CONTRACTING WITH SMALL AND MINORITY FIRMS, WOMEN'S
BUSINESS ENTERPRISE AND LABOR SURPLUS AREA FIRMS (2 C.F.R. § 200.321)
Consultant represents and warrants that it has not let subcontracts for this Agreement and will not do so, and on that basis the City has determined that 2 CFR § 200.321(b)(6) is inapplicable to this Agreement. The City has determined that its procurement of Consultant otherwise satisfies its obligation under 2 CFR § 200.321(a) to take all necessary affirmative steps to assure that minority businesses, women's business enterprises, and labor surplus area firms are used when possible, and that in this case it was not possible to use minority businesses, women's business enterprises, and labor surplus area firms in place of Consultant owing to the unique governmental nature of the services.