CITY OF REDLANDS
CITY COUNCIL
A G E N D A
JULY 16, 2024
EDDIE TEJEDA
Mayor
PAUL T. BARICH
Mayor Pro Tempore
DENISE DAVIS
Council Member
JENNA
GUZMAN-LOWERY
Council Member
MARIO SAUCEDO
Council Member
***
JEANNE DONALDSON
City Clerk
PHILLIP DOOLITTLE
City Treasurer
CHARLES M. DUGGAN JR.
City Manager
YVETTE M. ABICH GARCIA
City Attorney
5:00 p.m. Open Public Meeting, Public Comment (Closed Session) 6:00 p.m. Open Session (Public Meeting)
* * *
City Council Chambers
Civic Center, 35 Cajon Street, Redlands, California
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A G E N D A
The following information comprises the agenda for the regular meeting of the City Council of the City of Redlands at the times noted below in the City Council Chambers, Civic Center, 35 Cajon Street, Redlands, California, on:
TUESDAY, JULY 16, 2024
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PLEASE NOTE: Anyone desiring to speak on an agendized item at this meeting may do so during the consideration of that item. Due to time constraints and the number of persons who may wish to give oral testimony, public comments will be limited to three (3) minutes.
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PLEASE SILENCE CELL PHONES, PAGERS AND OTHER ELECTRONIC
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5:00 P.M.
A. Call City Council Meeting to Order.
B. Public Comment
(Any person wishing to provide public comment on a closed session matter may do so at this time.)
C. Recess City Council Meeting to a Closed Session
1. Conference with legal counsel: Existing Litigation - Government Code §54956.9(d)(1) (City Attorney Garcia)
Four Cases:
Sedlick, et al. v. City of Redlands, et al., U.S. District Court, Central District, Case No. 5:23-cv-00457-JGB-KKx
a.
b. Navarrete v. City of Redlands, San Bernardino Superior Court, Case No. CIVSB2207828 c. Salcido v. City of Redlands, San Bernardino Superior Court, Case No. CIVSB2218452 Holzer v. City of Redlands, et. al., San Bernardino Superior Court, Case No.
CIVSB2322787
d.
2. a. Conference with Labor Negotiator – Government Code §54957.6 (Assistant City Manager McConnell)
Agency Negotiators: Mayor Tejeda and Mayor Pro Tempore Barich Unrepresented Employees: City Manager
6:00 P.M.
D. Reconvene City Council Meeting
E. Invocation by Council Member Saucedo- Pledge of Allegiance (In keeping with long-standing traditions of legislative invocations, this City Council meeting may include a brief invocation. Such invocations are not intended to proselytize or advance any one, or to disparage any other, faith or belief. Neither the City nor the City Council endorses any particular religious belief or form of invocation.)
F. Closed Session Report
(No reportable action taken in closed session unless otherwise announced by the City Attorney at this time.)
G. Public Comment - City Council
(At this time, the City Council will provide an opportunity for the public to address them on any subject, within the jurisdiction of the City Council, which is not already scheduled on this agenda.
However, any matter that requires action will be referred to staff for a report and possible action at a subsequent meeting. Comments will be limited to three {3} minutes.) H. Consent Calendar
(The following routine items have been recommended for approval and will be acted upon simultaneously unless separate discussion and/or action is requested by a Councilmember or a member of the audience.)
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1. Approve the regular meeting minutes of July 2, 2024 (City Clerk Donaldson)
2. Approve recommendation for the appointments of Stephen Crane and Don Young to serve on the Citizens' Measure T Oversight Committee (Mayor Tejeda)
3. Approve recommendations for the appointment of Rick Cummings and Edie Punt to serve on the Cultural Arts Commission (Mayor Tejeda)
4. Disclosure of Settlement Agreement and Release of All Claims - Lissette Atkinson v. City of Redlands; San Bernardino County Superior Court Case No. CIVSB 2224706 (City Attorney Garcia)
5. Adopt Resolution No. 8612 to receive an annual report of City of Redlands surplus lands (Assistant City Manager Boatman)
6. Approve First Amendment to the Public Works Contract with AME Builders, Inc. doing business as AME Roofing for the repair and replacement of the City's Emergency Operations Center roof and rooftop HVAC units to incorporate required federal contract provisions (Fire Chief Sessler)
7. Approve the purchase of a Genset Generator from Cummins Inc. in the amount of $72,565.61 (Fire Chief Sessler)
8. Approve the Intergovernmental/Piggyback purchase of a Dell PowerStore Storage Area Network in the amount of $163,402 from Sidepath (Management Services/Finance Director Garcia)
9. Approve an Intergovernmental/Piggyback purchase of a Rubrik Data Protection Solution services pack for $218,005 from ePlus (Management Services/Finance Director Garcia)
10. Approve Resolution No. 8613 to authorize a one-year Extension of Time to the expiration date of Conditional Use Permit No. 1136 with associated entitlements to construct a church facility and school that includes nine buildings totaling 102,574 square-feet of floor area and related site improvements on 19.46 gross acres of vacant land. The project site is located on the north side of Lugonia Avenue, and approximately 300 feet west of Dearborn Street, in the Residential Estate (R-E) District (APNs: 0168-161-02-0000 and 0168-161-03-0000) (Development Services Director Desatnik)
11. Adoption of Ordinance No. 2972 levying special taxes within the City of Redlands Community Facilities District No. 2004-1 (Development Services Director Desatnik)
12. Approve Resolution No. 8614 to authorize a one-year time extension to the expiration date of Commission Review and Approval No. 918 for the construction of a 12,585 square-foot supportive housing facility (assisted living for seniors) with 28 beds, and related on-site improvements including driveways, parking lot, landscaping, and lighting on a one-acre property. The project site is a vacant lot located on the north side of North Place (APN: 0173-011-39-0000), approximately 400 feet east of S. Center Street, in the Residential Suburban (R-S) District (Development Services Director Desatnik)
13. Reject all bids for the Recycled Water for California Street Orange Groves Project, Project No.
S531021, and direct staff to solicit new bids for the project (Municipal Utilities and Engineering Director Harris)
14. Adopt Ordinance No. 2962 and Ordinance No. 2968 related to Development Impact Fees Adjustments (Municipal Utilities and Engineering Director Harris)
15. Approve the termination of the Non-Potable Irrigation Water System Memorandum of Recycled Paper
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15. Approve the termination of the Non-Potable Irrigation Water System Memorandum of Understanding with the San Bernardino Community College District and determine that this action is exempt from environmental review pursuant to Section 15061(b)(3) of the State's guidelines implementing the California Environmental Quality Act (Municipal Utilities and Engineering Director Harris)
16. Approve Amendment No. 1 to the San Bernardino County Transportation Authority (SBCTA) Master License Agreement (Contract No. 23-1002930) for City utilities within SBCTA rights-of-way, and determine that approval of the amendment is exempt from environmental review pursuant to Section 15061(b)(3) of the State's guidelines implementing the California Environmental Quality Act (Municipal Utilities and Engineering Director Harris)
17. Approve a Professional Services Agreement with Willdan Engineering for code enforcement services for an amount not-to-exceed $160,000 (Facilities and Community Services Director Crocker)
18. Accept the sculpture artwork donation "Reflections" by artist Saim Caglayan, from Tampa Tarzana, LLC (Facilities and Community Services Director Crocker)
19. Approve the in-kind support request of $6,848 from Kid's Cures Foundation, for the Downtown Redlands Artwalk to be held on October 27, 2024; a request to close East State and 5th Street; and determine that the approval of the request is exempt from environmental review pursuant to Section 15311(c) of the state’s guidelines implementing the California Environmental Quality Act (Facilities and Community Services Crocker)
20. Approve the request to hold Vibe Health and Wellness Festival event hosted by University of Redlands, Alliance For Community Transformation and Wellness (ACTW) on September 29, 2024, within Sylvan Park and the surrounding area; authorize street closures related to the event; approve a request for in-kind support in the amount of $13,820 related to the event and determine that the approval of the request is exempt from environmental review pursuant to Section 15311(c) of the state’s guidelines implementing the California Environmental Quality Act (Facilities and Community Services Director Crocker)
I. Communications
1. Redlands Conservancy Report presented by Executive Director Sherli Leonard (Facilities and Community Services Director Crocker)
J. Public Hearings
1. Public Hearing to consider Resolution No. 8611- Delinquent Municipal Services Account Report (Mayor to declare the meeting open as a public hearing) Resolution No. 8611 will approve the Delinquent Municipal Services Account Report and submittal of the Report to the Auditor-Controller of San Bernardino County for Lien Processing (Management Services/Finance Director Garcia) A.
2. Public Hearing to consider Resolution No. 8618 - Delinquent Administrative Citation and Fine Report
(Mayor to declare the meeting open as a public hearing) Resolution No. 8618 will adopt the Delinquent Administration Citation Fine Report and submittal to the Auditor-Controller of San Bernardino County for Lien Processing (Facilities and Community Services Director Crocker)
A.
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3. Public Hearing to consider the following applications for a used automobile sales and service facility located on a 18.56 gross acre site located on the west side of New York Street at West Brockton Avenue, approximately 1000 feet north of West Colton Avenue (APNs:
0169-011-38-0000 and 0169-011-39-0000) in the General Commercial (EV/CG) District of the East Valley Corridor Specific Plan.
(Mayor to declare meeting open as a public hearing)
Consideration of Resolution No. 8615 for adoption of a Mitigated Negative Declaration and Mitigation Monitoring & Reporting Program prepared for the project in accordance with Section 15074 of the California Environmental Quality Act, and adoption of a Socio-Economic Cost/Benefit Study prepared in accordance with Measure "U." A.
Consideration of Resolution No. 8616 for Amendment No. 52 to the East Valley Corridor Specific Plan – A proposal to amend Section EV3.0713 of the East Valley Corridor Specific Plan (Specific Plan 40) to allow sales of pre-owned automobiles as a conditionally permitted land use, without related sales of new automobiles, within the Commercial General (EV/CG) District.
B.
Consideration of Resolution No. 8617 for approval of Conditional Use Permit No. 1179 and Commission Review & Approval No. 962 – A request to establish a pre-owned automobile sales and service/reconditioning facility within the Commercial General (EV/CG) District of the East Valley Corridor Specific Plan, and construction of a pre-owned automobile sales and service/reconditioning facility (consisting of a 4,958 square-foot sales building, a 39,621 square-foot service/reconditioning building, a 3,708 square-foot quality control building with private carwash, a private fuel tank/dispenser, and a six acre outdoor vehicle storage area). Related site improvements include customer and employee parking lots, driveways, landscape areas, lighting. walls and fences, and vehicle display and storage areas. (Development Services Director Desatnik)
C.
4. Public hearing to consider Planned Development No. 7; Lot Merger No. 8 (Mayor to declare meeting as public hearing)
Construction of a 357,610 square-foot warehouse (including 6,000 square feet of office space) and related site improvements including parking lots, loading docks, landscaping, walls and fences, lighting, stormwater drainage facilities, and utility connections on approximately 16 net acres located at 1101 California Street on the west side of California Street between Lugonia Avenue and Interstate 10 (APNs: 0292-033-11-0000 and 0292-033-13-0000);
A.
Mitigated Negative Declaration and corresponding Mitigation Monitoring and Reporting Program prepared for the project in accordance with Section 15074 of the CEQA Guidelines; and the Socio-Economic Cost/Benefit Study prepared for the project in accordance with Measure U (Development Services Director Desatnik)
B.
K. New Business
1. Consideration of a sole source purchase with Horizon Structures, LLC for a modular kennel building not to exceed the amount of $275,000, an additional appropriation of the same, and authorize the City Manager or his designee to execute all documents pertaining to the purchase (Facilities and Community Services Director Crocker)
2. Consideration of a request to establish restricted parking zones on 3rd Street and Al Harris Lane, and determine this action is exempt from environmental review pursuant to Section 15061(b)(3) of the guidelines implementing the California Environmental Quality Act (Municipal Utilities and Engineering Director Harris)
3. Consideration of Resolution No. 8610 to adopt a Mitigated Negative Declaration and Mitigation Recycled Paper
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3. Consideration of Resolution No. 8610 to adopt a Mitigated Negative Declaration and Mitigation Monitoring/Reporting Program prepared for the proposed Sunset Reservoir Replacement Project in accordance with Section 15074 of the California Environmental Quality Act Guidelines (Municipal Utilities and Engineering Director Harris)
4. Consideration of a Master Service and Purchasing Agreement with Axon Enterprise, Inc. to purchase 105 Taser 10 conductive electrical weapons and required accessories for a total amount not to exceed of $549,724.94, and authorize the Police Chief to sign the agreement (Police Chief Tolber)
L. Individual Council Member Announcements and/or Reports on Activities (No collective discussion or action.)
M. Adjournment
The next regular meeting of the City Council will be held on September 3, 2024.
If you challenge any proposed development entitlement listed on this agenda in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Council at or prior to this public hearing.
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact Goutam Dobey, of the Municipal Utilities and Engineering Department at (909) 798-7584 ext 2. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.
(28 CFR 35.102-35.104 ADA Title II)
Any writings or documents distributed to a majority of the City Council regarding an open session agenda item less than 72 hours before this meeting are available for public inspection at the City Clerk's Office or at the dais of the City Clerk once the open session begins.
Staff reports or other written documentation relating to items referred to on the agenda are available at the A. K. Smiley Public Library, 125 West Vine Street, Redlands, California, and on the City’s website referenced below.
Regular meetings are televised live on Redlands TV Channel 3 (Spectrum) and Channel 35 (Frontier) and re-broadcast at 7:00 P.M. the following Wednesday, Friday and Sunday; and at 9:00 A.M. Thursday, Saturday and Monday. Meetings are also streamed live and archived for later viewing on demand on the City’s website at www.cityofredlands.org. Agendas, staff reports and minutes of the City Council of the City of Redlands are available online at: www.cityofredlands.org.
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City Council Meeting H. 1.
DATE: 07/16/2024
TO: Honorable Mayor and City Council Members
SUBJECT: Approve the regular meeting minutes of July 2, 2024 (City Clerk Donaldson)
MOTION:
I move to approve the regular meeting minutes of July 2, 2024.
Attachments
Regular meeting minutes of June 2, 2024
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MINUTES
Regular meeting of the City Council of the City of Redlands held in the Council Chambers, Civic Center, 35 Cajon Street, on July 2, 2024 at 5:00 P.M.
Present: Eddie Tejeda, Mayor
Paul Barich, Mayor Pro Tempore
Denise Davis, Council Member
Jenna Guzman-Lowery, Council Member
Mario Saucedo, Council Member
Staff: Charles M. Duggan, Jr., City Manager; Yvette M. Abich Garcia, City Attorney; Jeanne Donaldson, City Clerk; Phillip Doolittle, City Treasurer; Chris Boatman, Assistant City Manager; Danielle Garcia, Management Services/Finance Director; Brian Desatnik, Development Services Director; John Harris, Municipal Utilities and Engineering Director; Rich Sessler, Fire Chief; Rachel Tolber, Police Chief; Tabitha Crocker, Facilities and Community Services Director; Robert Meteau, HR/Risk Management Director
Mayor Tejeda called the meeting to order and explained that comments could be presented in-person, via Zoom, via cell phone or landline. He offered the public an opportunity to provide comment on any item on the agenda for the closed session.
PUBLIC COMMENT
Raising Questions - Steve Rogers wondered why the performance evaluations for the City Manager and the City Attorney were being considered at this time, when it seemed to him the contracts were not due for negotiation. He raised concerns about the labor negotiation team and asked for resolution to what he called a simple matter of a dispute he had with the City.
CLOSED SESSION
Conference with legal counsel: Existing Litigation - Government Code §54956.9(d)(1) (City Attorney Garcia)
Two Cases:
Atkinson v. City of Redlands, et al., San Bernardino Superior Court Case No.
CIVSB2224706
a.
Coyote Aviation Corporation, et al. v. City of Redlands, et al., San Bernardino Superior Court, Case No. CIVSB2418252
b.
a. Performance Evaluations of Public Employees – Government Code §54957(b)(1) CC_July 2, 2024
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a. Performance Evaluations of Public Employees – Government Code §54957(b)(1) Positions: City Attorney and City Manager
b. Conference with Labor Negotiator – Government Code §54957.6 (Assistant City Manager McConnell)
Agency Negotiators: Mayor Tejeda and Mayor Pro Tempore Barich Unrepresented
Employees:
City Manager
RECONVENE CITY COUNCIL MEETING
The meeting reconvened at 6:12 P.M. with an invocation by Council Member Guzman-Lowery followed by the pledge of allegiance to the American flag.
CLOSED SESSION REPORT
City Attorney Garcia announced that under Item Closed Session, C-1a, consideration of Atkinson v. City of Redlands, et al., San Bernardino Superior Court Case No. CIVSB2224706, the City Council unanimously approved to settle the lawsuit with Ms. Atkinson in the amount of $175,000 and the cost of mediation, by motion of Mayor Pro Tem Barich, seconded by Council Member Saucedo. There was no reportable action taken on all other closed session matters.
PRESENTATIONS
Redlands Pet Adoption
Animal Services Supervisor Jodi Kroeger and Kennel Attendant Hailey Stuck introduced "Rosa", a two-year-old female Pit Bull, who is available for adoption, along with forty-three other dogs and fifteen cats at the Redlands Animal Shelter. Ms. Kroeger informed the Council there had been eighteen dogs and thirty cats adopted in June 2024. She announced the Shelter was full, and all dog adoption fees would be waived.
Juneteenth Proclamation
Council Member Saucedo presented Juneteenth Proclamations to Bishop Green, Maria Saucedo, LaRena García, Shawn Zambrows, and Jay Strovall.
PUBLIC COMMENT
Various Concerns - Steve Rogers read from a letter he sent to the Council Members, regarding the City's delegation of engineering duties, and he asked for a follow-up response to matters he discussed with Police Chief Tolber and HR/Risk Management Director Meteau. He requested written confirmation from BB&K that the matter was closed.
City Manager Duggan clarified that the State Board of Professional Engineers declined to take any action on the complaint submitted by Mr. Rogers.
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RPOA and Event Activities - Jeff Frisch, representing the Redlands Police Officers Association (RPOA) expressed frustration with the group who organized an event held last weekend at Sylvan Park where coloring sheets were distributed depicting a burning police car.
Police officers, working the event, found it very offensive, and they were disappointed with those Council Members who attended and appeared to support the activities. He said the RPOA consistently strives to foster relationships within the community, especially with young people.
Pride Awareness Event - Ashley Williamson and Felipe Albertao spoke about the coloring page distributed at the Pride awareness event and said the images represented the history of the Stonewall incident in New York.
U.S. Flag Donation - Dr. Ramarrishna Tadi donated a United States flag that had been flown at the U.S. capital.
South Mountain Water Shares - Elizabeth Long said the City should not be in the business of selling water shares and, in particular, she opposed the recent sale of the South Mountain water shares. David Armstrong said he was still waiting for answers to why the City sold off the shares, along with 55 acres of land, and he thought it was poor optics for the Council to consider raising water rates at this time. Zoom caller Shay also asked for answers, and he urged the City to suspend action to increase water rates.
City Manager Duggan announced that everyone with questions about the sale of South Mountain water shares was welcome to attend the Utilities Advisory Committee meeting scheduled for later this month, where the City can respond in full. He pointed out that staff had responded to Mr. Armstrong earlier in the day, and before taking any action to sell the shares, the City received an appraisal and legal advice.
City Vehicles - Dennis Bell questioned why some City employees were driving 4-wheel drive trucks, since he thought it unnecessary and a waste of money.
RUSD Summer Meals Program - Alyssa Cummings and Jennifer Petty announced the Redlands Unified School District (RUSD) summer meal program was in full swing, and they encouraged all families with children to come to one of their locations throughout the City, where meals will be enjoyed onsite.
Separation of Church and State - Bruce Laycook urged the Council to be mindful of the importance of separation of church and state.
Pride Flag - Anthony Dodd pointed out there are two city flagpoles in front of City Hall, and he urged the Council to fly the pride flag.
CONSENT CALENDAR
Minutes
On motion of Council Member Jenna Guzman-Lowery, seconded by Council Member Denise Davis, the City Council unanimously approved, by roll call vote, the regular meeting minutes of June 18, 2024.
Vote: 5 - 0 Passed
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Juneteenth Proclamation
On motion of Council Member Jenna Guzman-Lowery, seconded by Council Member Denise Davis, the City Council unanimously authorized, by roll call vote, the issuance of a Proclamation recognizing Juneteenth..
Vote: 5 - 0 Passed
Resolution No. 8597 Records Retention Schedule
On motion of Council Member Jenna Guzman-Lowery, seconded by Council Member Denise Davis, the City Council unanimously adopted, by roll call vote, Resolution No. 8597 concerning a Records Retention Schedule and rescinding Resolution No. 6576.
Vote: 5 - 0 Passed
Resolution No. 8608 Appropriations Limit for Fiscal Year 2024-2025 On motion of Council Member Jenna Guzman-Lowery, seconded by Council Member Denise Davis, the City Council unanimously adopted, by roll call vote, Resolution No. 8608 establishing an Appropriations Limit for Fiscal Year 2024-2025 pursuant to Article XIII B of the California Constitution.
Vote: 5 - 0 Passed
Annual Payment RPD Fingerprint Identification Services
On motion of Council Member Jenna Guzman-Lowery, seconded by Council Member Denise Davis, the City Council unanimously authorized, by roll call vote, the annual payment to San Bernardino County Sheriff's Department (Cal-ID/Identix) in the amount of $84,926 for Redlands Police Department's Fingerprint Identification Services.
Vote: 5 - 0 Passed
Resolution No. 8603 Street Vacation No. 194
This item was pulled from tonight's meeting to allow staff time to conduct additional research.
The matter will be scheduled for a future meeting.
As public comment, Duncan Shantz, the owner of Jadeland Developments, offered some historical context related to his request to vacate portions of Mecca Street adjacent to the parcels he owns, which, he said, will allow potential future property improvements or development of the properties without further concern about encroachment into the public right-of-way.
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MOU RUSD School Resource Officer Program
On motion of Council Member Jenna Guzman-Lowery, seconded by Council Member Denise Davis, the City Council unanimously approved, by roll call vote, the Memorandum of Understanding between the City of Redlands and the Redlands Unified School District for the School Resource Officer Program.
Vote: 5 - 0 Passed
Adopt Ordinance Nos. 2969 and 2970 Assessments for LMD and SLD On motion of Council Member Jenna Guzman-Lowery, seconded by Council Member Denise Davis, the City Council unanimously adopted, by roll call vote, Ordinance No. 2969, confirming a diagram and assessment for the 2024-2025 Fiscal Year in connection with Landscape Maintenance District No. 1; and adopted Ordinance No. 2970, confirming a diagram and assessment for the 2024-2025 Fiscal Year in connection with Street Lighting District No. 1.
Vote: 5 - 0 Passed
Equipment Rental Agreement
On motion of Council Member Jenna Guzman-Lowery, seconded by Council Member Denise Davis, the City Council unanimously determined, by roll call vote, that approval of the rental agreement is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of the CEQA guidelines; approved the equipment lease with C5 Equipment Rentals for the 3-month rental extension of a D8 Dozer in the amount of $53,160; and approved a sole source purchase order modification to a not-to-exceed total of $141,760.
Vote: 5 - 0 Passed
In-kind Support for the Jagannath Rath Yatra Event
Facilities and Community Services Director Crocker introduced the request for in-kind support in the amount of $8,446 relating to the Jagannath Rath Yatra event hosted by the Shri Darshan on July 13, 2024 and the request to close Church St., E Colton Ave., Division St., and E High Ave. for the event. As public comment, Dennis Bell noted he thought this was the first year the event was scheduled in Redlands, and he urged the Council to focus on paying the bills and addressing more critical needs, rather than approving every in-kind request presented to them.
On motion of Council Member Jenna Guzman-Lowery, seconded by Council Member Mario Saucedo, the City Council unanimously determined, by roll call vote, that approval of the request for the event Jagannath Rath Yatra is exempt from environmental review pursuant to Section 15311 of the State’s guidelines implementing the California Environmental Quality Act; authorized and approved a request for in-kind support in the amount of $8,446.00 relating to this event; and authorized the temporary closure of Church St., E Colton Ave., Division St., and E High Ave., on July 13, 2024.
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Vote: 5 - 0 Passed
Resolution No. 8605 FY 24/25 - FY 28/29 Five-Year Measure I CIP Municipal Utilities and Engineering Director Harris reviewed Resolution No. 8605 for the FY 24/25 through FY 28/29 Five-Year Measure I Capital Improvement Plan, explaining this was an administrative action, so the City is eligible to receive funds. As public comment, Steve Rogers asked if the amount listed in the staff report as $20 million was a typo.
Director Harris confirmed it was a typo and the amount should be listed as $2 million.
Dennis Bell stated that SBCTA was working on a tax measure to go before the voters related to Measure I, and he said the program needs a thorough audit, because in his opinion, there was very little to show for the funds that had been collected.
On motion of Council Member Mario Saucedo, seconded by Council Member Jenna Guzman-Lowery, the City Council unanimously determined, by roll call vote, that approval of Resolution No.8605 is exempt from environmental review pursuant to Section 15061(b)(3) of the State's guidelines implementing the California Environmental Quality Act; and approved Resolution No. 8605 for the Fiscal Year 24/25 through Fiscal Year 28/29 Five-Year Measure I Capital Improvement Plan.
Vote: 5 - 0 Passed
Sampling and Special Analytical Services Agreement
On motion of Council Member Jenna Guzman-Lowery, seconded by Council Member Denise Davis, the City Council unanimously determined, by roll call vote, that approval of a Professional Services Agreement with ALS Group USA, Corp. is exempt from environmental review pursuant to Section 15061(b)(3) of the State's guidelines implementing the California Environmental Quality Act; and approved the Professional Services Agreement with ALS Group USA, Corp. for sampling and special analytical services with an initial one (1) year term in the amount of $34,000, with options to extend for two (2) additional one-year terms, for a total potential amount not-to-exceed $102,000.
Vote: 5 - 0 Passed
COMMUNICATIONS
Use of Zoom and Teleconferencing
Council Member Saucedo opened the discussion related to the use of Zoom and Teleconferencing under Assembly Bill (AB) 2449 for City Council and Planning Commission meetings. He explained that he brought this item back for the Council to evaluate the policy again because of the hate speech received by three Zoom callers during the May 7, 2024 Council meeting. He thought open dialogue with the public would be useful.
On July 25, 2023, the City Council authorized the continued use of Zoom and allowed remote participation pursuant to AB 2449 for all meetings of the City Council and Planning Commission. City Manager Duggan offered three options to consider, including: 1) CC_July 2, 2024
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Continue the use of Zoom for all meetings of the City Council and Planning Commission and to comply with teleconferencing requirements as described in AB 2449; 2) Authorize the continued use of Zoom only when City Council members or Planning Commissioners are complying with the requirements of AB 2449; 3) Discontinue the use of Zoom for all meetings of the City Council and the Planning Commission (and all commissions, boards and committees) and only allow remote participation under the Brown Act's traditional, pre-pandemic teleconferencing rules. Staff conducted a brief survey to determine how many municipalities in the surrounding area exercise remote participation under AB 2449 for City Council meetings. Of the 14 municipalities contacted, three use AB 2449, eleven follow traditional Brown Act rules.
As public comment, seventeen people, including Germaine Miles, Michael Paisner, Chamber of Commerce Executive Director Evan Sanford, Maria Bruner representing Assemblymember Eloise Reyes, Jen Kim, Felipe Albertao, Rudi Whitmore, Marcella Wallin, Valerie Taber, Laura Kreneck, Trisha Keeling, Ashley Williamson, Ryan, Eddie D., Amber, Gregory Brittain, and Jennifer Maravillas spoke in support of continuing Zoom as a way to engage the public, promote equal and fair access, and they thought the benefits far outweighed any fears of hate speech from Zoom callers or any technical glitches that might be experienced. Several people said the City should be encouraging public participation, not discouraging it.
City Attorney Garcia added that speech, even hate speech, was protected under the 1st Amendment. Council Members voiced their perspectives and agreed that Zoom was a valuable tool for all kinds of people, including parents of young children and those whose work schedules prevented them from attending in person. They recognized the desired goal was to promote transparency and offer access to everyone, and there was added value as remote attendees were helping to reduce their carbon footprint.
On motion of Mayor Pro Tempore Paul Barich, seconded by Council Member Jenna Guzman-Lowery, the City Council unanimously authorized, by roll call vote, the continued use of Zoom for all meetings of the City Council and Planning Commission and to comply with teleconferencing requirements as described in AB 2449.
Vote: 5 - 0 Passed
League of California Cities Annual Conference Voting Delegate City Manager Duggan reviewed the need to designate a voting delegate and an alternate to the 2024 League of California Cities Annual Conference scheduled to occur October 16-18, 2024 in Long Beach.
On motion of Mayor Pro Tempore Paul Barich, seconded by Mayor Eddie Tejeda, the City Council unanimously designated, by roll call vote, Council Member Mario Saucedo to serve as the voting delegate; and designated Council Member Denise Davis to serve as the alternate voting delegate for the League of California Cities 2024 Annual Conference.
Vote: 5 - 0 Passed
Mayor Tejeda called for a brief recess at 8:16 P.M. The meeting reconvened at 8:21 P.M.
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Mayor Tejeda called for a brief recess at 8:16 P.M. The meeting reconvened at 8:21 P.M.
PUBLIC HEARINGS
Development Off-street Parking Facility for Trucks
Mayor Tejeda opened the public hearing and called on Principal Planner Sean Reilly, of Development Services, for a summary of Resolution No. 8606 related to applications for a four-acre parcel located at 2407 W. Lugonia Avenue within the Special Development (EV/SD) District of the East Valley Corridor Specific Plan, as submitted by the Applicant, LBA RVI-COMPANY XLVII, LLC. The applications included: 1) Planned Development No. 9, to establish permitted uses, conditionally permitted, and development standards consistent with the Commercial Industrial (EV/IC) District of the East Valley Corridor Specific Plan to allow development of an off-street parking facility for trucks, trailers, cabs and other fleet vehicles; and 2) Conditional Use Permit (CUP) No. 1194, for authorization to operate an off-street truck parking facility with existing on-site improvements (paving, storm water detention facilities, landscaping, site lighting, fencing and gate) and the construction of a proposed 310 square-foot guard house with restroom facilities.
On April 23, 2024, the Planning Commission voted 5 to 0 recommending that the City Council approve Planned Development No. 9 and on May 28, 2024, the Commission voted 5 to 0 recommending that the Council approve CUP No. 1194. The applicant, represented by Jonathan Shardlow, addressed Council Member questions, stating the developer had been able to remedy noise complaints, and he thanked staff for their time and assistance. There were no written comments received and with no further discussion, Mayor Tejeda closed the public hearing.
On motion of Mayor Pro Tempore Paul Barich, seconded by Council Member Jenna Guzman-Lowery, the City Council unanimously determined, by roll call vote, the project qualifies for exemption from environmental review in accordance with Section 15303 (New Construction of Small Structures) and 153332 (Infill Development) of the California Environmental Quality Act (CEQA) Guidelines; and adopted Resolution No. 8606 to approve Planned Development No. 9 and Conditional Use Permit No. 9 for 2407 West Lugonia Avenue.
Vote: 5 - 0 Passed
Resolution No. 8571, Ordinance No. 2962, and Ordinance No. 2968 DIF Adjustments Mayor Tejeda declared the meeting open as a public hearing and called on Municipal Utilities and Engineering Director Harris for a report on Resolution No. 8571 which will adopt the Development Impact Fee (DIF) Nexus Study completed by DTA. Ordinance No. 2962 was prepared to amend the Redlands Municipal Code for public facilities (fire, police, library, and government), open space and parks, transportation improvements, storm drain facilities, water facilities, water rights, solid waste facilities, and sewer facilities. Ordinance No. 2962 determines that the specific amounts of fees for new development are to be established by the City Council. Ordinance No. 2968 was prepared to establish the specific amounts of DIF for new development. These ordinances apply to the Redlands Municipal Code's chapters 3.32, 3.44, 3.48, 3.54, 3.56, 3.60, 3.70, and 13.40, with a proposed effective date of sixty days after adoption of the ordinances.
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date of sixty days after adoption of the ordinances.
The Nexus Study analyzed appropriate fees to fund additional infrastructure and services necessary to support new growth. The DIF study analyzed fees identified in the Redlands Municipal Code. The updated DIF study was prepared and finalized by David Taussig and Associates, Inc. (DTA) on May 2, 2024, and will update the 2017 and 2018 DIF studies. In addition to the fees analyzed in the 2017 and 2018 DIF studies, the proposed DIF study will also include updated fees for water facilities, solid waste facilities, sewer facilities, and acquisition of water stocks and water rights. The fees shall be evaluated periodically to ensure appropriate revenue is collected from development projects to support expanded services. Nehal Thumar and Andrea Roess, of DTA, responded to Council Member questions related to the DIF charges and the legal justification under the code. The study process established a baseline, considered facility needs, incorporated facility master plans and quantified impacts.
As public comment, Jonathan Shardlow, of NAIOP, said these were big policy decisions, and he asked the Council to hold off approval tonight to allow for more time to engage stakeholders. Ana Gromis, representing the Building Industry Association of Southern California (BIA), requested the Council amend the effective date of the proposed DIF update to begin on January 1, 2025, rather than 60 days after adoption, as it would be unfair to add unanticipated costs to projects that are beginning construction or are currently in the later stages of review by planning and engineering staff. Steve Rogers complained that the City's facility master plans were not sufficient, as they were merely guidelines, and he thought the City was seriously undercharging for development impacts. James Brownyard, of Desert Valleys Builders Association, added they were still striving to understand the study results, and he pointed out the fees associated with water supply and the replacement fire station were listed incorrectly and should be corrected. Gregory Brittain opposed increasing fees, adding that California's median home price was 2nd highest in the nation. Two written comments were received from Jonathan Shardlow of NAIOP and Carlos Rodreguez of BIA, requesting the Council delay approval of the DIF Adjustments. With no further discussion, Mayor Tejeda closed the public hearing.
Council Members discussed several topics, including compliance with Measure U, the voter-approved measure relating to growth management, the consideration of delaying the effective date to January 1, 2025 and how that might affect projects currently in the pipeline, and establishing a set of new fees to address shortfalls. Any new fee adjustments would require an additional Nexus Study, and the report must include data supporting any changes.
On motion of Council Member Mario Saucedo, seconded by Mayor Eddie Tejeda, the City Council unanimously determined, by roll call vote, that the adoption of Resolution No. 8571, and the introduction of Ordinance No. 2962, and Ordinance No. 2968 is exempt from environmental review pursuant to Sections 15061(b)(3) of the California Environmental Quality Act; approved Resolution No. 8571, introduced Ordinance No. 2962; and introduced Ordinance No. 2968, verbally amending Section 13, setting the effective date to January 1, 2025, related to Development Impact Fees Adjustments.
Vote: 5 - 0 Passed
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Ordinance Nos 2964 and 2965 Water Utility and Wastewater Utility Rate Adjustments Mayor Tejeda opened the public hearing and called on Municipal Utilities and Engineering Director Harris for a presentation of Ordinance No. 2964 and Ordinance No. 2965 Amending Chapters 3.52 and 3.62 of the Redlands Municipal Code relating to Water Utility and Wastewater Utility Rate Adjustments. He offered background on the Utility Advisory Committee (UAC) and said the seven members of UAC worked with Municipal Utilities and Engineering (MUED) staff and the City's Utility Rate Consultant, Raftelis, to develop rate recommendations that provide adequate revenue to recover costs for services, are equitable to all customer classes, comply with state and federal laws, and are easily explained to customers. The UAC serves in an advisory capacity to the City Council.
The rate review process began by introducing the UAC to the MUED structure, water and wastewater utilities, and 6-year Capital Improvement Program (CIP). The UAC reviewed historic and projected operating, maintenance, and CIP costs necessary to provide high-quality services for Redlands' utility customers. Raftelis presented a financial analysis including multi-year revenue projections, target reserve balances, and annual labor and material cost escalations. Several rate scenarios were modeled and considered by the UAC which ultimately recommended the following revenue adjustments:
Potable Water Utility: 2% increase in FY 24/25; 2% increase in FY 25/26 Non-Potable Water Utility: 0% increase in FY 24/25; 0% increase in FY 25/26 Wastewater Utility: 10% increase in FY 24/25; 10% increase in FY 25/26 The increases will be applied to customer classifications proportionally based on the demands placed on each utility and will generate the additional revenue necessary to continue providing water and wastewater utility services for all Redlands customers.
On May 7, 2024, City Council adopted Resolution No. 8583, a notice of intent to increase water utility and wastewater utility rates and directed staff to issue a Public Hearing Proposition 218 notice and protest procedures detailed in Resolution No. 7128. The Proposition 218 notice and Resolution No. 7128 were mailed to each Redlands property owner and each water utility and wastewater utility customer on May 10, 2024. The notice provides rate increase protest directions, with one written protest per identified parcel or property to be counted for determining whether a majority protest exists.
As public comment, Elizabeth Longo, Mario Lopez, Gregory Brittain, Steve Rogers, and Jennifer Maravillas opposed the rate increases, citing the negative impacts on family budgets, especially on those with fixed incomes, and the outdated procedures for submitting a protest. Andy Hoder recalled a time when the Wastewater Treatment Plant (WWTP) was facing a catastrophic failure, and he said that even though he didn't like the idea of higher rates, the WWTP needed to be fixed. UAC members Dick Corneille and Dan Jimenez defended the recommendations, explaining that there was not only the upfront cost of the WWTP Project itself, but there was also the cost of maintenance.
Dennis Bell attributed the rate increase to failed leadership, and he pointed out the consultant estimated the total cost was $110 million and not $45 million as stated by staff.
Director Harris responded by saying that yes, the ultimate total cost of the project was estimated at $110 million, but the cost to perform the immediate needs was accurately stated at $45 million.
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City Clerk Donaldson informed the Council that 19,973 properties received a Proposition 218 notice with directions to make a formal protest. She announced that her office received 73 written protests declaring their opposition to a water and wastewater rate increase. This number is insufficient to meet the 50% plus one (or 11,172), required for a successful Proposition 218 protest to stop implementation of the new rates. With no further comments, the Mayor closed the hearing. Council Member discussion focused on concerns raised by public comments and the serious need to address the WWTP repairs.
They asked staff to look into establishing an assistance program and to consider ways to effectively educate the community.
On motion of Council Member Denise Davis, seconded by Mayor Pro Tempore Paul Barich, the City Council unanimously adopted, by roll call vote, Ordinance No. 2964, and Ordinance No. 2965 to amend Redlands Municipal Code Chapters 3.52 and 3.62 relating to Water Utility and Wastewater Utility rate adjustments.
Vote: 5 - 0 Passed
NEW BUSINESS
Greenhouse Gas Inventory Update and Progress Report
Assistant Planner Jazmin Serrato, of Development Services, provided a brief overview of the Greenhouse Gas (GHG) Inventory Update and Progress Report related to the Climate Action Plan Update project. The two primary objectives of the Climate Action Plan Update are 1) To monitor/benchmark progress toward the 2030 and 2035 GHG reduction targets established in the City’s 2017 Climate Action Plan, which was prepared concurrently with the 2035 General Plan and consistent with previous State GHG reduction goals; and 2) To update the 2017 Climate Action Plan to reflect the latest climate science and State guidance, as well as align with new City and State targets for 2030 and 2045. As a “qualified” GHG reduction plan, the updated Climate Action Plan will provide unified City actions, and CEQA clearance for streamlining future projects.
She introduced Mayu Tanaka, Senior Associate with Dyett & Bhatia for a more thorough and detailed update related to the GHG reduction goals and the potential GHG reduction strategies and policies. Her presentation was broken into three parts, including background and purpose, GHG progress report and discussion and suggestions for strategies. Through a series of slides, she offered case examples, key regulations taken since the City's 2017 CAP and provided a summary of framework strategies: 1) Transportation and natural gas remain the largest contributors; 2) Agencies cannot eliminate solid waste and wastewater emissions entirely, and reductions are somewhat limited; and 3) CARB recommends prioritizing strategies that electrify transportation, decarbonize buildings, and reduce vehicle miles traveled (VMT)
As public comment, Michael Paisner offered a short history lesson about climate change, listing statistics, and added that these ideas are not new, and not radical, and he thanked the City for prioritizing this matter. Bruce Laycook raised several questions about the state's laws which have dramatically forced a reduction of rooftop solar, and he urged the Council to support any efforts to incentivize rooftop solar to help lower net electricity bills. Dick Corneille, of ANCA, fully supported the update report and said the group was CC_July 2, 2024
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looking forward to participating with the project in the future. Gregory Brittain said that climate change theory was a hoax and not based on real facts and the public was being forced to eliminate the use of their cars. Council Members voiced their appreciation of the very informative update.
On motion of Council Member Jenna Guzman-Lowery, seconded by Council Member Denise Davis, the City Council unanimously approved, by roll call vote, to accept and file the Climate Action Plan progress report.
Vote: 5 - 0 Passed
Ordinance No. 2972 Levying Special Taxes CFD No. 2004-1 Development Services Director Desatnik presented Ordinance No. 2972 for levying special taxes within the City of Redlands Community Facilities District (CFD) No. 2004-1. The ordinance is required to levy the special tax in accordance with the California Streets and Highways Code, and it sets the maximum FY 24/25 CFD tax rates.
On motion of Council Member Jenna Guzman-Lowery, seconded by Council Member Mario Saucedo, the City Council unanimously introduced, by roll call vote, Ordinance No. 2972 levying special taxes within the City of Redlands Community Facilities District No. 2004-1.
Vote: 5 - 0 Passed
Residential Refuse Bins Agreement
Facilities and Community Services Director Crocker reported on an agreement with Schaefer Plastics North America, LLC for supply and delivery of residential refuse bins for an amount not-to-exceed $536,984.64 for a period of one year, with two additional one-year renewal options, for a total amount not-to-exceed $1,610,953.92.
On motion of Council Member Jenna Guzman-Lowery, seconded by Council Member Denise Davis, the City Council unanimously approved, by roll call vote, an agreement with Schaefer Plastics North America, LLC for supply and delivery of residential refuse bins in an amount not-to-exceed $536,984.64 for a period of one year, with two additional one-year renewal options, for a total amount not-to-exceed $1,610,953.92.
Vote: 5 - 0 Passed
Professional Services Agreement West Yost & Associates, Inc Municipal Utilities and Engineering Director Harris introduced the Professional Services Agreement with West Yost & Associates, Inc. for recycled water, non-potable water, and cross-connection program support services with an initial term of one year and a value not-to-exceed $355,000, with options to extend for two additional one-year terms for a total potential amount not-to-exceed $1,065,000. Since only one bid was received, staff was requesting the Council approve an exception to Redlands Municipal Code, due to the CC_July 2, 2024
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fact that re-soliciting the bid was unlikely to yield different results, given the specialized nature of the services.
On motion of Council Member Jenna Guzman-Lowery, seconded by Council Member Mario Saucedo, the City Council unanimously determined, by roll call vote, that approval of the Professional Services Agreement with West Yost & Associates, Inc. is exempt from environmental review pursuant to Section 15061(b)(3) of the State's guidelines implementing the California Environmental Quality Act; approved an exception to Redlands Municipal Code Section 2.16.180(B) and not require MUED staff to solicit additional Request for Bid; and approved the Professional Services Agreement with West Yost & Associates, Inc. for recycled water, non-potable water, and cross-connection program support services with an initial term of one (1) year and a value not-to-exceed $355,000, with options to extend for two (2) additional one-year terms.
Vote: 5 - 0 Passed
Joint Utility Laboratory Support Services Agreement
Municipal Utilities and Engineering Director Harris reviewed the Professional Services Agreement with Eurofins Eaton Analytical, LLC for support services at the Joint Utility Laboratory for a total potential amount not-to-exceed $360,000.
On motion of Mayor Pro Tempore Paul Barich, seconded by Council Member Jenna Guzman-Lowery, the City Council unanimously determined, by roll call vote, that approval of a Professional Services Agreement with Eurofins Eaton Analytical, LLC. is exempt from environmental review pursuant to Section 15061(b)(3) of the State's guidelines implementing the California Environmental Quality Act; and approved a Professional Services Agreement with Eurofins Eaton Analytical, LLC for Joint Utility Laboratory support services for a total potential amount not-to-exceed $360,000.
Vote: 5 - 0 Passed
Resolution No. 8609 Notice of Intent to Increase Solid Waste Utility Service Rates Assistant City Manager Boatman offered background on Resolution No. 8609 to provide notice of intent to increase solid waste utility service rates and to direct staff to issue the required Proposition 218 notice establishing a public hearing date and location. The City periodically adjusts solid waste service rates to keep pace with the increasing cost of providing these services. The last time that the City reviewed Solid Waste Rates was 2017, and it has only adjusted solid waste rates ten times over the last thirty years. Garth Schultz, of R3 Consulting Group, Inc. presented a report detailing the methodology, findings, and recommendations related to the Solid Waste Service Enterprise Fund and associated solid waste service rates. Senate Bill (SB) 1383 is State of California legislation approved in 2016 that requires a reduction in organic waste (food waste, green waste, paper products, etc.) disposed of in landfills by seventy-five percent (75%), and an increase in edible food recovery by twenty percent (20%) by 2025.
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and recommendations. The Commission voted unanimously on April 15, 2024 to forward R3’s recommended adjustments to the City’s solid waste services to the City Council.
Commission Chair Steve Stockton summarized the work of the Commission, adding that every member was very sensitive about increasing the rates, and they worked to drive down the slope with a goal of under 10%, which they were able to do. The Commission and staff recommended the following solid waste utility service rate increases:
Nine percent (9%) rate increase January 1, 2025; Nine percent (9%) rate increase January 1, 2026; Nine percent (9%) rate increase January 1, 2027; Four percent (4%) rate increase January 1, 2028.
As public comment, Andy Hoder asked if the City was generating any money on recyclables or was it a losing proposition. Assistant Director Boatman responded by saying the program used to be profitable but not any longer. He added that the City works with vendors who divert the recyclables instead of the materials going straight to the landfill. This is done in order to meet the diversion rates and be in compliance with the state.
On motion of Council Member Mario Saucedo, seconded by Mayor Pro Tempore Paul Barich, the City Council unanimously determined, by roll call vote, that the adoption of Resolution No. 8609 is exempt from environmental review pursuant to Section 15061(b)(3) of the State's guidelines implementing the California Environmental Quality Act; adopted Resolution No. 8609 providing notice of intent to increase solid waste utility service rates; and directed staff to issue the required Proposition 218 notice for a public hearing. The notice will set a public hearing date of September 3, 2024, at which time the City Council will consider a solid waste rate increase. Should the City Council approve the recommendation, rates will take effect in January 2025.
Vote: 5 - 0 Passed
COUNCIL MEMBER ANNOUNCEMENTS AND ACTIVITIES
Council Member Saucedo and Mayor Pro Tem Barich thanked the Redlands Police Department for all the good work they are doing to engage the community and to build relationships.
ADJOURNMENT
There being no further action required the meeting adjourned at 11:07 P.M. The next regular meeting of the City of Redlands City Council will be held on July 16, 2024.
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City Council Meeting H. 2.
DATE: 07/16/2024
TO: Honorable Mayor and City Council Members
SUBJECT: Approve recommendation for the appointments of Stephen Crane and Don Young to serve on the Citizens' Measure T Oversight Committee (Mayor Tejeda)
MOTION:
I move to appoint Stephen Crane of the Redlands Association of Safety Management to serve a one-year term as the non-public safety bargaining unit member on the Measure T Oversight Committee beginning July 18, 2024, and ending July 18, 2025.
1. I move to appoint Don Young of the Redlands Association of Management Employees to serve a one-year term as the public safety bargaining unit member on the Measure T Oversight Committee beginning July 18, 2024, and ending July 18, 2025.
2. RECOMMENDATION:
It is recommended that the City Council consider these appointments to the Measure T Oversight Committee as recommended by Mayor Tejeda for the employee bargaining unit member appointments.
DISCUSSION:
During the City Council meeting on December 1, 2020, Ordinance No. 2916 was adopted adding Chapter 2.72 to the Redlands Municipal Code establishing a Citizens' Measure T Oversight Committee ("Oversight Committee") to serve in an advisory capacity to the city council for the purpose of providing independent advisory review of the proposed expenditure of revenues generated by the City’s transactions and use tax. The committee shall advise the City Council regarding the use of transactions and use tax revenue, according to the priorities set forth in each fiscal year adopted budget. The duties of the committee shall include review of the City's expenditure of revenues received from the one percent (1%) Redlands Regular meeting of 07-16-24 23 of 2362
review of the City's expenditure of revenues received from the one percent (1%) transactions and use tax imposed by Measure T, on an annual basis; act in an advisory capacity to the City Council in all other policy matters pertaining to Measure T funds; and present an annual written report to the City Council.
The Oversight Committee shall consist of seven (7) members. Five (5) citizens of the community shall each represent a council district and be appointed by the Council Member of that corresponding district with approval of the City Council. Two members shall represent the City's employee bargaining units; one representing the public safety bargaining units and one representing the remaining non-public safety bargaining units. The bargaining unit members shall be appointed to one-year terms by the Mayor with approval of the City Council.
The Citizens' Measure T Oversight Committee members from the community are as follows:
Ruth Cook, District 1
Edward Ico, District 2
Edward Millican, District 3
Toni Momberger, District 4
Scott Welsh, District 5
SUBMITTED BY:
Janice McConnell, Assistant City Manager
REVIEWED BY:
Charles M. Duggan, Jr., City Manager
Danielle Garcia, Management Services/Finance Director
PREPARED BY:
Jennifer Macias, Management Analyst
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City Council Meeting H. 3.
DATE: 07/16/2024
TO: Honorable Mayor and City Council Members
SUBJECT: Approve recommendations for the appointment of Rick Cummings and Edie Punt to serve on the Cultural Arts Commission (Mayor Tejeda)
MOTION:
I move to appoint Rick Cummings to serve the remainder of a four-year term on the Cultural Arts Commission ending January 6, 2026.
1. I move to appoint Edie Punt to serve the remainder of a four-year term on the Cultural Arts Commission ending January 6, 2025.
2. RECOMMENDATION:
It is recommended by Mayor Tejeda that the City Council consider the appointment of Rick Cummings and Edie Punt to the Cultural Arts Commission to each serve the remainder of a four-year term. Pursuant to the Redlands Municipal Code, appointments to this commission are made by the Mayor and approved by the City Council.
DISCUSSION:
Two vacant seat exists on the Cultural Arts Commission due to the resignations of Commissioners Crystal Lopez and Jina Edwards. A public notice was released on May 28th requesting interested residents to submit an application for the Cultural Arts Commission. In addition, the public notice was concurrently aired on Redlands TV and posted at the community bulletin board at the A. K.
Smiley Public Library. The local newspapers also received distribution of the public notices. Seven new applications were received from the recent postings, and two from previous postings.
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The Cultural Arts Commission consists of seven members as follows:
Danielle Giudici Wallis
Vacant
Dennis Christensen
Vacant
Daniel Rodriguez
Daniel Gohman
Margo Mullen
ALTERNATIVE:
The City Council may choose not to support the recommendation and direct staff to seek further applications for consideration.
SUBMITTED BY:
Jennifer Macias, Management Analyst
REVIEWED BY:
Charles M. Duggan, Jr., City Manager
Janice McConnell, Assistant City Manager
Attachments
Cultural Arts Notice
Cultural Arts Applications 2024
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Address verified - AE
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Address verified - AE
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City Council Meeting H. 4.
DATE: 07/16/2024
TO: Honorable Mayor and City Council Members
SUBJECT: Disclosure of Settlement Agreement and Release of All Claims - Lissette Atkinson v. City of Redlands; San Bernardino County Superior Court Case No. CIVSB 2224706 (City Attorney Garcia) DISCUSSION:
Attached is a copy of the "Settlement Agreement and Release of All Claims," which reflects the terms and conditions for settlement of the above-mentioned litigation as approved by the City Council and City Attorney. In accordance with the City's Municipal Code, and following the spirit of the Brown Act, this matter is on your agenda to notify the public of the settlement negotiated by the City.
SUBMITTED BY:
Yvette M. Abich Garcia, City Attorney
PREPARED BY:
Mayra Shushereba, Administrative Analyst
REVIEWED BY:
Charles M. Duggan, Jr., City Manager
Danielle Garcia, Management Services/Finance Director
Attachments
A. Settlement Agreement
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City Council Meeting H. 5.
DATE: 07/16/2024
TO: Honorable Mayor and City Council Members
SUBJECT: Adopt Resolution No. 8612 to receive an annual report of City of Redlands surplus lands (Assistant City Manager Boatman) MOTION(S):
If the City Council determines that staff’s recommendation is appropriate, the following motion is provided:
I move to adopt Resolution No. 8612.
RECOMMENDATION:
Staff recommends that the City Council adopt Resolution No. 8612 declaring certain City-owned properties classified as "not surplus" or “exempt property”, and determine that adoption of the Resolution is exempt from environmental review pursuant to Section 15061(b)(3) of the State's Guidelines implementing the California Environmental Quality Act.
DISCUSSION:
Assembly Bill (AB) 1486 was approved by the State Legislature and signed by the Governor in the Fall of 2019. AB 1486 made various amendments to Government Code Sections 54220 et seq., concerning the process for disposition of surplus land by cities and other local agencies. These new laws became effective on January 1, 2020. As such, these new laws require the City to annually report on surplus land held by the City. The intent of this legislation, is to improve the process for providing notice of surplus land to facilitate the development of affordable housing around the State. The new law requires that any land “not necessary for the agency’s use” be declared surplus.
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such as a water treatment plant, park, detention basin, or other agency use. The state law definition of “Agency use” expressly excludes commercial or industrial uses, such as non-government retail, entertainment, or office development. If an agency disposes of land to finance such a project or activity, that disposition must go through the surplus land process under the new law.
Resolution No. 8612 includes Exhibit "A", which includes a table of properties that are not surplus, and the agency has a use for each property. Exhibit "B" includes a table of exempt properties with the criteria for exemption.
Adoption of Resolution No. 8612 is exempt from environmental review pursuant to Section 15061(b)(3) of the State's guidelines implementing the California Environmental Quality Act (CEQA). This section states that a project is exempt from CEQA if it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The recommended action is consistent with this section as it only identifies certain property as not surplus and will not have a physical effect on the environment.
ALTERNATIVES:
The City Council may elect not to adopt the resolution or provide alternative direction to staff.
STRATEGIC PLAN:
Not Applicable
SUBMITTED BY:
Christopher Boatman, Assistant City Manager
RECOMMENDED BY:
Charles M. Duggan Jr., City Manager
REVIEWED BY:
Yvette M. Abich Garcia, City Attorney
Danielle Garcia, Management Services/Finance Director
PREPARED BY:
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Fiscal Impact
Discussion:
There is no fiscal impact related to approval of this Resolution.
Attachments
Resolution No. 8612
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1 I:\cmo\Resolutions\8612 Declaring Property Not Surplus Pursuant to Gov Code Section 54220.docx-ms RESOLUTION NO. 8612
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF REDLANDS
DECLARING CERTAIN CITY-OWNED REAL PROPERTIES NOT SURPLUS PURSUANT TO GOVERNMENT CODE SECTION 54220, ET SEQ.
WHEREAS, the Surplus Property Land Act, Government Code Section 54220, et seq., defines surplus property as land owned by any local agency that is not necessary for the agency’s use; and WHEREAS, staff has completed a review of City-owned property and has identified certain sites that may not be necessary for the City’s use as defined in state law; and WHEREAS, the passage of this resolution will not cause a direct physical change in the environment, nor a reasonably foreseeable indirect physical change in the environment; this action is therefore exempt from further environmental review pursuant to Sections 15061(b)(3) of the California Environmental Quality Act guidelines; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Redlands as follows:
Section 1. The City Council hereby determines that approval of this Resolution is exempt from further environmental review pursuant to Sections 15061(b)(3) of the California Environmental Quality Act guidelines as approval of this resolution will not cause a direct physical change to the environment, nor a reasonably foreseeable indirect physical change to the environment.
Section 2. The City Council hereby declares that those certain City-owned properties, and any rights, title, and interest therein, listed in Exhibit “A,” attached hereto and incorporated by this reference, are necessary for the City’s use and are declared not surplus.
Section 3. The City Council hereby declares that those certain City-owned properties, and any rights, title, and interest therein, listed in Exhibit “B,” attached hereto and incorporated by this reference, are exempt from Articles II and III of Government Code Section 54220, et seq.
Section 4. This Resolution shall take effect take effect immediately upon its adoption.
ADOPTED, SIGNED AND APPROVED this 16th day of July, 2024 ________________________
Eddie Tejeda, Mayor
ATTEST:
_________________________
Jeanne Donaldson, City Clerk
Redlands Regular meeting of 07-16-24 51 of 2362
2 I:\cmo\Resolutions\8612 Declaring Property Not Surplus Pursuant to Gov Code Section 54220.docx-ms I, Jeanne Donaldson, City Clerk of the City of Redlands, hereby certify that the foregoing resolution was duly adopted by the City Council at regular meeting thereof held on the 16th day of July 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
____________________________________
Jeanne Donaldson, City Clerk
Redlands Regular meeting of 07-16-24 52 of 2362
A-1
EXHIBIT “A”
PARCEL LIST – PROPERTY NOT SURPLUS
APN ADDRESS AGENCY USE
1 0167-011-04-0000 8195 ALABAMA ST Settling Pond
2 0167-011-09-0000 ALABAMA ST & SANTA ANA RIVER Rock, Sand and Gravel Production
3 0167-051-04-0000 COMMUNITY PARK/FIELD Between
Church/Orange, San
Bernardino/Pennsylvania
4 0167-081-46-0000 RIVERVIEW DR & CHURCH ST Open Space
5 0167-101-15-0000 1660 TEXAS ST Reservoir
6 0167-101-16-0000 TEXAS ST & SAN BERNARDINO AVE Citrus 7 0167-151-22-0000 10 W PENNSYLVANIA AVE Fire Station
8 0167-161-06-0000 1535 N CHURCH ST Park
9 0167-161-08-0000 1521 N CHURCH ST Park
10 0167-17-101-0000 1321 TEXAS ST Reservoir/Park
11 0167-242-15-0000 1251 CLAY ST Boys & Girls Club
12 0167-242-17-0000 1251 CLAY ST Boys & Girls Club
13 0167-243-16-0000 111 W LUGONIA AVE Community Center
14 0167-391-07-0000 EASEMENT - W. OF ALABAMA & E. OF
CALIFORNIA
City Citrus Groves (By
Landfill)
15 0167-391-08-0000 1950 NEVADA ST Wastewater
16 0167-391-11-0000 1950 NEVADA ST Wastewater/Landfill
17 0167-412-01-0000 RIVERVIEW DR & CLEMENTINE ST Park
18 0167-422-43-0000 TEXAS ST & DOMESTIC AVE Greenbelt
19 0167-511-11-0000 2401 W SAN BERNARDINO AVE Citrus
20 0167-511-12-0000 2401 ALMOND AVE Citrus
21 0167-841-73-0000 RIVERVIEW DR & KINGSBURY DR Open Space 22 0167-861-19-0000 RIVERVIEW DR & GLOVER ST Open Space 23 0167-861-55-0000 RIVERVIEW DR & BROOKSTONE ST Open Space 24 0167-891-26-0000 140 W RIVERVIEW DR Park
25 0168-031-08-0000 SESSUMS DR & WABASH AVE Airport
26 0168-031-10-0000 SESSUMS DR & WABASH AVE Airport
27 0168-031-12-0000 1551 SESSUMS DR Airport
28 0168-041-19-0000 1625 Sessums Dr Airport
29 0168-031-21-0000 1790 N DEARBORN ST Park
30 0168-031-22-0000 1790 N DEARBORN ST Park
31 0168-041-19-0000 1625 SESSUMS DR Airport
32 0168-041-21-0000 1745 SESSUMS DR Airport
Redlands Regular meeting of 07-16-24 53 of 2362
A-2
APN ADDRESS AGENCY USE
33 0168-041-25-0000 SESSUMS DR & WABASH AVE Airport
34 0168-041-45-0000 1790 N DEARBORN ST Park
35 0168-041-46-0000 1790 N DEARBORN ST Park
36 0168-041-49-0000 1655 SESSUMS DR Airport
37 0168-041-53-0000 1795 SESSUMS DR Airport
38 0168-041-60-0000 1755 SESSUMS DR Airport
39 0168-071-02-0000 1790 N DEARBORN ST Park
40 0168-071-72-0000 SESSUMS & DEARBORN Citrus
41 0168-071-74-0000 LUCAS LN & SAN BERNARDINO AVE Greenbelt 42 0168-091-02-0000 1790 N DEARBORN ST Park
43 0168-091-05-0000 1790 N DEARBORN ST Park
44 0168-091-09-0000 1790 N DEARBORN ST Park
45 0168-121-02-0000 SAN BERNARDINO AVE & JUDSON ST Citrus 46 0168-161-08-0000 300 E LUGONIA AVE Citrus
47 0168-311-08-0000 SESSUMS DR & WABASH AVE Airport
48 0168-321-11-0000 CRAFTON AVE & ANZIO AVE Water Treatment 49 0168-341-02-0000 1330 AMETHYST ST Clubhouse
50 0168-343-01-0000 MILL CREEK RD & MENTONE AVE Vacant
51 0168-351-05-0000 MILL CREEK RD & JULIAN DR W Spreading Basin 52 0168-351-07-0000 MILL CREEK RD & PLUMMERS LN Intake Structure for Tate 53 0168-351-08-0000 MILL CREEK RD & PLUMMERS LN Intake Structure for Tate 54 0168-362-01-0000 MILL CREEK RD & BRYANT ST Existing/Future Utilities 55 0168-362-02-0000 MILL CREEK RD & BRYANT ST Existing/Future Utilities 56 0168-362-03-0000 MILL CREEK RD & BRYANT ST Existing/Future Utilities 57 0168-362-05-0000 MILL CREEK RD & BRYANT ST Existing/Future Utilities 58 0168-363-01-0000 34001 MILL CREEK RD Existing/Future Utilities 59 0168-363-02-0000 MILL CREEK RD & BRYANT ST Existing/Future Utilities 60 0168-363-03-0000 MILL CREEK RD & BRYANT ST Existing/Future Utilities 61 0168-731-26-0000 DEARBORN ST & FOOTHILL WAY Citrus
62 0168-731-27-0000 DEARBORN ST & SAN BERNARDINO AVE Citrus 63 0168-741-79-0000 DEARBORN ST & FOOTHILL WAY Citrus
64 0168-741-80-0000 DEARBORN ST & FOOTHILL WAY Citrus
65 0168-741-81-0000 CAPRI & GRANITE ST Citrus
66 0168-751-57-0000 SAN BERNARDINO AVE & DEARBORN ST Citrus 67 0168-751-58-0000 SAN BERNARDINO AVE & DEARBORN ST Citrus 68 0168-751-60-0000 DEARBORN ST & FOOTHILL WAY Citrus
69 0168-771-51-0000 CAPRI & GRANITE ST Citrus
70 0168-791-29-0000 1320 REVELATION WAY Citrus
Redlands Regular meeting of 07-16-24 54 of 2362
A-3
APN ADDRESS AGENCY USE
71 0168-791-30-0000 LUGONIA AVE & REVELATION WAY Citrus 72 0168-801-39-0000 VALLEY FALLS AVE & WABASH AVE Citrus 73 0168-801-40-0000 1781 VALLEY FALLS AVE Citrus
74 0168-891-21-0000 JUDSON ST & PIONEER AVE Citrus
75 0168-891-22-0000 JUDSON ST & LUCAS LN Park
76 0168-891-23-0000 JUDSON ST & LUCAS LN Park
77 0168-891-27-0000 JUDSON ST & PIONEER AVE Park
78 0168-901-68-0000 ADELINE AVE & SAN BERNARDINO AVE Citrus 79 0168-901-69-0000 ADELINE AVE & SAN BERNARDINO AVE Citrus 80 0168-901-70-0000 ADELINE AVE & PENNSYLVANIA AVE Citrus 81 0168-901-72-0000 ADELINE AVE & PENNSYLVANIA AVE Citrus 82 0168-901-73-0000 ADELINE AVE & PENNSYLVANIA AVE Citrus 83 0168-911-53-0000 PENNSYLVANIA AVE & SHANNON AVE Greenbelt 84 0168-911-54-0000 PENNSYLVANIA AVE & ADELINE AVE Greenbelt 85 0168-921-55-0000 1443 GALWAY AVE Park
86 0169-091-13-0000 1006 OXFORD DR Quad
87 0169-301-30-0000 5TH ST & REDLANDS BLVD Parking Lot
88 0169-321-03-0000 CHURCH ST & CENTRAL AVE Public Facility 89 0169-351-01-0000 1270 W PARK AVE City Yard
90 0169-351-04-0000 1267 W REDLANDS BLVD Public Facility 91 0169-351-05-0000 1270 W PARK AVE City Yard
92 0169-351-06-0000 1270 W PARK AVE City Yard
93 0169-351-07-0000 KANSAS ST & REDLANDS BLVD Public Facility 94 0170-082-09--0000 939 E HIGH AVE Public Facility
95 0170-083-01-0000 UNIVERSITY ST & COLTON AVE Park
96 0170-083-03-0000 UNIVERSITY ST & COLTON AVE Park
97 0170-142-07-0000 525 N UNIVERSITY ST Park
98 0170-142-08-0000 UNIVERSITY ST & COLTON AVE Park
99 0170-142-09-0000 UNIVERSITY ST & COLTON AVE Park
100 0170-142-10-0000 UNIVERSITY ST & COLTON AVE Park
101 0170-181-44-0000 Church St & Stuart Ave Public Facility 102 0170-231-25-0000 CHURCH ST & CENTRAL AVE High School 103 0170-281-16-0000 1490 SYLVAN BLVD Park
104 0170-281-18-0000 1450 SYLVAN BLVD Park
105 0170-281-20-0000 1446 SYLVAN BLVD Park
106 0170-302-06-0000 500 N DEARBORN ST Reservoir
107 0170-302-17-0000 DEARBORN ST & SYLVAN BLVD Reservoir 108 0170-302-18-0000 500 N DEARBORN ST Reservoir
Redlands Regular meeting of 07-16-24 55 of 2362
A-4
APN ADDRESS AGENCY USE
109 0170-311-02-0000 WABASH AVE & COLTON AVE Park
110 0170-311-04-0000 WABASH AVE & INDEPENDENCE AVE Park 111 0170-311-06-0000 WABASH AVE & COLTON AVE Park
112 0170-312-31-0000 WABASH AVE & INDEPENDENCE AVE Park 113 0170-375-01-0000 SYLVAN BLVD & LINCOLN ST Flood Control 114 0170-461-02-0000 LARAMIE AVE & LINCOLN ST Park
115 0170-461-03-0000 LARAMIE AVE & LINCOLN ST Park
116 0170-461-04-0000 LARAMIE AVE & LINCOLN ST Park
117 0171-021-03-0000 REDLANDS BLVD & NEW YORK ST Park
118 0171-021-09-0000 NEW YORK ST & REDLANDS BLVD Park
119 0171-021-11-0000 REDLANDS BLVD & TEXAS ST Park
120 0171-021-12-0000 REDLANDS BLVD & TEXAS ST Parking Lot 121 0171-062-17-0000 REDLANDS BLVD & 5TH ST Parking Lot 122 0171-088-01-0000 525 E CITRUS AVE Fire Station
123 0171-132-16-0000 300 E STATE ST Public Facility
124 0171-233-19-0000 PARKWOOD DR & OLIVE AVE Park
125 0171-241-01-0000 PARKWOOD DR & GLENWOOD DR Park
126 0171-242-01-0000 PARKWOOD DR & GLENWOOD DR Park
127 0171-243-01-0000 PARKWOOD DR & GLENWOOD DR Park
128 0171-244-06-0000 GRANT ST & GLENWOOD DR Redlands Bowl 129 0171-244-07-0000 GRANT ST & GLENWOOD DR Redlands Bowl 130 0171-244-08-0000 21 GRANT ST Senior Center
131 0171-244-09-0000 21 GRANT ST Senior Center
132 0171-244-10-0000 15 GRANT ST Parking Lot
133 0171-244-28-0000 EUREKA ST & VINE ST Parking Lot
134 0171-244-29-0000 GRANT ST & GLENWOOD DR Redlands Bowl 135 0171-244-30-0000 168 S EUREKA ST Public Facility
136 0171-261-01-0000 30 CAJON ST Police Annex
137 0171-271-11-0000 35 CAJON ST Civic Center
138 0171-271-13-0000 35 CAJON ST Civic Center
139 0171-291-01-0000 125 W VINE ST Library
140 0171-291-20-0000 173 S EUREKA ST Clubhouse
141 0172-091-18-0000 OLIVE AVE & MELBURY PL Citrus
142 0172-091-19-0000 OLIVE AVE & MELBURY PL Citrus
143 0172-091-20-0000 OLIVE AVE & MELBURY PL Citrus
144 0171-291-20-0000 173 S EUREKA ST Clubhouse
145 0174-014-02-0000 1352 PROSPECT DR Park
146 0174-014-03-0000 1352 PROSPECT DR Park
Redlands Regular meeting of 07-16-24 56 of 2362
A-5
APN ADDRESS AGENCY USE
147 0174-014-04-0000 HIGHLAND AVE & CAJON ST Citrus
148 0174-014-05-0000 HIGHLAND AVE & CAJON ST Citrus
149 0174-014-06-0000 1352 PROSPECT DR Park
150 0174-023-04-0000 PROSPECT ST & FOUNTAIN AVE Citrus
151 0174-062-08-0000 REDLANDS BLVD & FORD ST Well Site
152 0174-071-11-0000 FRANKLIN AVE & CAJON ST Park
153 0174-141-12-0000 PARKFORD DR & MARSHALL ST Park
154 0174-141-25-0000 PARKFORD DR & MARSHALL ST Park
155 0174-142-01-0000 PARKFORD DR & MARSHALL ST Park
156 0174-142-03-0000 PARKFORD DR & MARSHALL ST Park
157 0174-221-41-0000 5TH ST & MARION RD Citrus
158 0174-252-03-0000 SUNSET DR & SOUTH AVE Reservoir
159 0174-252-06-0000 SUNSET DR & FELISA CT Reservoir
160 0174-281-24-0000 851 WABASH AVE Open Space
161 0174-281-26-0000 WABASH AVE & PANORAMA DR Open Space 162 0174-281-28-0000 WABASH AVE & PANORAMA DR Open Space 163 0174-651-35-0000 5TH AVE & WABASH AVE Greenbelt
164 0175-011-35-0000 SMILEY HEIGHTS DR & CALLE DE LAS
PALMAS
Reservoir
165 0175-011-52-0000 SMILEY HEIGHTS DR & CALLE DE LAS
PALMAS
Reservoir
166 0175-011-62-0000 SAN TIMOTEO CANYON RD & FERN AVE Open Space 167 0175-011-76-0000 447 SAN TIMOTEO CANYON RD Open Space 168 0175-011-77-0000 SAN TIMOTEO CANYON RD & FERN AVE Open Space 169 0175-122-11-0000 SAN TIMOTEO CANYON RD & FERN AVE Open Space 170 0175-131-01-0000 SAN TIMOTEO CANYON RD & FERN AVE Open Space 171 0175-131-14-0000 SAN TIMOTEO CANYON RD &
ALESSANDRO RD
Open Space
172 0175-131-18-0000 SAN TIMOTEO CANYON RD & FERN AVE Open Space 173 0175-131-19-0000 SAN TIMOTEO CANYON RD &
ALESSANDRO RD
Open Space
174 0175-131-20-0000 SAN TIMOTEO CANYON RD &
ALESSANDRO RD
Open Space
175 0175-131-21-0000 SAN TIMOTEO CANYON RD &
ALESSANDRO RD
Open Space
176 0175-131-24-0000 SAN TIMOTEO CANYON RD & FERN AVE Open Space 177 0175-142-08-0000 SAN TIMOTEO CANYON RD &
ALESSANDRO RD
Open Space
178 0175-142-10-0000 SAN TIMOTEO CANYON RD &
ALESSANDRO RD
Open Space
Redlands Regular meeting of 07-16-24 57 of 2362
A-6
APN ADDRESS AGENCY USE
179 0175-144-34-0000 1540 ALESSANDRO RD Cemetery
180 0175-144-35-0000 1540 ALESSANDRO RD Cemetery
181 0175-161-03-0000 1540 ALESSANDRO RD Cemetery
182 0175-241-03-0000 SAN TIMOTEO CANYON RD &
ALESSANDRO RD
Open Space
183 0175-251-11-0000 SAN TIMOTEO CANYON RD &
ALESSANDRO RD
Open Space
184 0175-261-03-0000 1540 ALESSANDRO RD Cemetery
185 0175-261-07-0000 1540 ALESSANDRO RD Cemetery
186 0175-262-04-0000 ALESSANDRO RD & W SUNSET DR Cemetery 187 0175-451-17-0000 1540 ALESSANDRO RD Cemetery
188 0176-033-09-0000 MARGARITA DR & MARILYN LN Reservoir 189 0176-033-10-0000 MARGARITA DR & MARILYN LN Reservoir 190 0176-033-11-0000 MARGARITA DR & MARILYN LN Reservoir 191 0176-074-18-0000 1716 GARDEN ST Fire Station
192 0176-134-01-0000 MARIPOSA DR & W SUNSET DR Park
193 0176-134-02-0000 MARIPOSA DR & W SUNSET DR Park
194 0176-134-05-0000 MARIPOSA DR & W SUNSET DR Park
195 0176-134-06-0000 MARIPOSA DR & W SUNSET DR Park
196 0176-134-07-0000 MARIPOSA DR & W SUNSET DR Park
197 0176-134-08-0000 MARIPOSA DR & W SUNSET DR Park
198 0176-135-02-0000 1741 CHAPPARAL RD Park
199 0176-142-10-0000 W SUNSET DR & VALLE VISTA DR Greenbelt 200 0176-151-12-0000 MARIPOSA DR & W SUNSET DR Park
201 0176-192-12-0000 COUNTRY CLUB DR & VERDE VISTA DR Reservoir 202 0281-232-27-0000 DAVIDSON ST & CURTIS ST Well Site
203 0281-232-28-0000 DAVIDSON ST & CURTIS ST Well Site
204 0291-172-06-0000 RIVERVIEW DR & ORANGE ST Well Site 205 0291-172-07-0000 RIVERVIEW DR & ALTA ST Citrus
206 0291-172-12-0000 RIVERVIEW DR & CAVE ST Well Site
207 0291-172-13-0000 RIVERVIEW DR & GLOVER ST Well Site 208 0291-181-13-0000 RIVERVIEW DR & RIVERBEND RD Well Site 209 0291-201-03-0000 SESSUMS DR & WABASH AVE Airport
210 0291-201-04-0000 SESSUMS DR & WABASH AVE Airport
211 0291-201-05-0000 SESSUMS DR & WABASH AVE Airport
212 0291-201-06-0000 SESSUMS DR & WABASH AVE Airport
213 0291-201-07-0000 SESSUMS DR & WABASH AVE Airport
214 0291-201-11-0000 SESSUMS DR & WABASH AVE Airport
Redlands Regular meeting of 07-16-24 58 of 2362
A-7
APN ADDRESS AGENCY USE
215 0291-201-17-0000 SESSUMS DR & WABASH AVE Airport
216 0292-034-35-0000 BRYN MAWR AVE & 10 FREEWAY Citrus
217 0292-034-36-0000 BRYN MAWR AVE & 10 FREEWAY Citrus
218 0292-034-37-0000 CALIFORNIA ST & 10 FREEWAY Citrus
219 0292-041-36-0000 1950 NEVADA ST Wastewater
220 0292-041-37-0000 1950 NEVADA ST Wastewater
221 0292-041-39-0000 ALABAMA ST & SANTA ANA RIVER Landfill 222 0292-044-01-0000 27050 PALMETTO AVE Landfill
223 0292-044-02-0000 27050 PALMETTO AVE Landfill
224 0292-044-03-0000 27050 PALMETTO AVE Landfill
225 0292-044-04-0000 1951 NEVADA ST Landfill
226 0292-044-07-0000 27050 PALMETTO AVE Landfill
227 0292-044-08-0000 2151 NEVADA ST Citrus
228 0292-044-15-0000 27050 PALMETTO AVE Landfill
229 0292-044-16-0000 NEVADA ST & PALMETTO AVE Landfill
230 0292-064-32-0000 CALIFORNIA ST & 10 FREEWAY Citrus
231 0292-071-02-0000 ALABAMA ST & SANTA ANA RIVER Settling Pond 232 0292-071-03-0000 ALABAMA ST & SANTA ANA RIVER Settling Pond 233 0292-071-04-0000 ALABAMA ST & SANTA ANA RIVER Settling Pond 234 0292-071-34-0000 ALABAMA ST & SANTA ANA RIVER Percolating Ponds for WWTP
235 0292-157-16-0000 1625 W REDLANDS BLVD Public Facility 236 0292-166-08-0000 11126 IOWA ST Park
237 0292-184-02-0000 KANSAS ST & REDLANDS BLVD Public Facility 238 0292-184-05-0000 1301 W REDLANDS BLVD Public Facility 239 0292-184-18-0000 1341 W REDLANDS BLVD Public Facility 240 0293-031-38-0000 1ST ST & WHITTIER AVE Well Site
241 0293-133-01-0000 BROOKSIDE AVE & TERRACINA BLVD Park 242 0294-091-60-0000 1900 ALESSANDRO RD Open Space
243 0294-091-61-0000 SAN TIMOTEO CANYON RD &
ALESSANDRO RD
Open Space
244 0294-091-62-0000 1908 ALESSANDRO RD Open Space
245 0294-121-31-0000 CREEKSIDE DR & HORSE TRAIL DR Open Space 246 0297-111-05-0000 SESSUMS DR & WABASH AVE Airport
247 0297-111-07-0000 SESSUMS DR & WABASH AVE Airport
248 0298-151-37-0000 AGATE AVE & SALERNO AVE Reservoir
249 0298-291-02-0000 GARNET ST & MILL CREEK RD Well Site 250 0298-292-06-0000 GARNET ST & MILL CREEK RD Well Site Redlands Regular meeting of 07-16-24 59 of 2362
A-8
APN ADDRESS AGENCY USE
251 0298-311-12-0000 NAPLES AVE & ROSE ST Well Site
252 0298-331-34-0000 1369 FAIRVIEW LN Reservoir
253 0299-212-06-0000 WABASH AVE & PANORAMA DR Vehicle Access 254 0299-291-15-0000 VALENCIA DR & KING ST Reservoir
255 0299-321-63-0000 CAMPUS DR & SAND CANYON RD Reservoir 256 0299-421-41-0000 WABASH AVE & CITRUS AVE Greenbelt
257 0299-421-42-0000 CITRUS AVE & JACINTO RANCHES LN Greenbelt 258 0299-431-35-0000 MONTECITO LN & WABASH AVE Greenbelt 259 0299-431-36-0000 MONTECITO LN & WABASH AVE Common Recreation 260 0299-431-37-0000 MONTECITO LN & WABASH AVE Greenbelt 261 0299-431-38-0000 MONTECITO LN & WABASH AVE Greenbelt 262 0300-231-24-0000 SOUTH OF OAKMONT PARK Open Space Emerald Necklace
263 0300-231-31-0000 SOUTH OF OAKMONT PARK Open Space Emerald Necklace
264 0300-231-36-0000 LIVE OAK CANYON RD Open Space Emerald Necklace
265 0300-231-38-0000 31110 LIVE OAK CANYON RD Open Space Emerald Necklace
266 0300-231-61-0000 31215 SUTHERLAND DR Park
267 0300-241-15-0000 31200 LIVE OAK CANYON RD Open Space Emerald Necklace
268 0300-241-24-0000 LIVE OAK CANYON RD Open Space Emerald Necklace
269 0300-241-25-0000 31313 LIVE OAK CANYON RD Open Space Emerald Necklace
270 0300-241-36-0000 EAST OF OAKMONT PARK Open Space
271 0300-451-08-0000 13198 HELEN CT Reservoir
272 0300-451-13-0000 HELEN DR & BRUDER LN RESERVOIR
273 0300-451-14-0000 HELEN DR & BRUDER LN RESERVOIR
274 0300-451-24-0000 HELEN DR & BRUDER LN RESERVOIR
275 0300-451-25-0000 HELEN DR & BRUDER LN RESERVOIR
276 0300-461-21-0000 COUNTRY CLUB DR & VERDE VISTA DR Reservoir 277 0301-191-19-0000 31839 HIGHVIEW DR Open Space
278 0302-082-06-0000 33663 NEWPORT AVE Well Site
279 0302-171-06-0000 3040 MILL CREEK RD Reservoir
280 0302-181-01-0000 33501 MILL CREEK RD Open Space
281 0302-181-02-0000 33251 MILL CREEK RD Open Space
282 1212-011-72-0000 RIVERVIEW DR & CHURCH ST Open Space Redlands Regular meeting of 07-16-24 60 of 2362
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APN ADDRESS AGENCY USE
283 1212-021-63-0000 RIVERVIEW DR & MADISON ST Open Space 284 1212-031-01-0000 RIVERVIEW DR & RIVERBEND RD Citrus 285 1212-031-02-0000 RIVERVIEW DR & RIVERBEND DR Citrus 286 1212-201-29-0000 PENNSYLVANIA AVE & JUDSON ST Well Site 287 1212-211-01-0000 SAN BERNARDINO AVE & JUDSON ST Citrus 288 1212-211-02-0000 JUDSON ST & PENNSYLVANIA AVE Citrus 289 1212-441-02-0000 RIVERVIEW DR & CHURCH ST Well Site 290 1212-451-62-0000 PIONEER AVE & JUDSON ST Citrus
291 1212-451-63-0000 SAN BERNARDINO AVE & JUDSON ST Greenbelt 292 1212-451-64-0000 SAN BERNARDINO AVE & HARRISON LN Greenbelt 293 1212-451-65-0000 HARRISON LN & LUCAS LN Greenbelt
294 1212-451-66-0000 LUCAS LN & HARRISON LN Greenbelt
295 1212-451-67-0000 LUCAS LN & HAMILTON CT Greenbelt
296 1212-451-68-0000 PIONEER AVE & JUDSON ST Flood Control Redlands Regular meeting of 07-16-24 61 of 2362
B-1
EXHIBIT “B”
EXEMPT PROPERTY
Criteria for Exemption
1. Less than 5,000 square feet
2. No record access
3. Less than 10,000 square feet and not contiguous to open space Criteria
1 Criteria
2 Criteria 3
APN Address Agency Use LT5000 Access GT51T10 Contig
1 016706123 DOMESTIC AVE & TEXAS ST Utility Yes
2 016716107 CHURCH ST & SAN BERNARDINO
AVE
Park Yes
3 016724216 1251 CLAY ST Boys & Girls Club Yes No
4 016725313 1257 HERALD ST Right-of-Way Yes No
5 016742244 CLEMENTINE DR & DOMESTIC AVE Greenbelt Yes Yes 6 016742245 DESERT LIME CT & DOMESTIC AVE Greenbelt Yes Yes 7 016742246 DOMESTIC AVE & CITRON CT Greenbelt Yes yes
8 016743241 PIONEER AVE & CLEMINTINE DR Greenbelt Yes Yes 9 016743242 PIONEER AVE & CLEMINTINE DR Greenbelt Yes Yes 10 016757106 CALIFORNIA ST & SAN
BERNARDINO AVE
Well Site Yes
11 016750104 SAN BERNARDINO AVE & MTN
VIEW AVE
Utility Yes No
12 016807101 SAN BERNARDINO ST & DEARBORN
AVE
Well Site Yes Yes
13 016807173 SAN BERNARDINO AVE & LUCAS LN Greenbelt Yes Yes 14 016807175 LUCAS LN & SAN BERNARDINO AVE Greenbelt Yes Yes 15 016807190 SAN BERNARDINO AVE & LUCAS LN Greenbelt Yes Yes 16 016809101 DEARBORN ST & SAN BERNARDINO
AVE
Well Site Yes
17 016809107 FLORIDA ST & GREENSPOT RD Utility Yes
18 016832107 FLORIDA ST & GREENSPOT RD Next to right-ofwayYes Yes 19 016832108 FLORIDA ST & GREENSPOT RD Next to right-ofwayYes Yes 20 016835104 NEWPORT AVE & EMERALD ST Spreading Basin Yes No 21 016837108 1500 CRAFTON AVE Well Site Yes
22 016889124 LUCAS LN & JUSTIN CT Greenbelt Yes Yes
23 016889125 LUCAS LN & JUSTIN CT Greenbelt Yes No
24 016889126 LUCAS LN & TAYLOR CT Greenbelt Yes Yes
25 016890174 ADELINE AVE & ELLIOTT CT Greenbelt Yes Yes 26 016890175 ADELINE AVE & ELLIOTT CT Greenbelt Yes Yes 27 016890176 ADELINE AVE & SHANE CT Greenbelt Yes Yes
28 016890177 ADELINE AVE & KRISTION CT Greenbelt Yes Yes 29 016927227 REDLANDS BLVD & EUREKA ST Parking Lot Yes No Redlands Regular meeting of 07-16-24 62 of 2362
B-2
Criteria
1 Criteria
2 Criteria 3
APN Address Agency Use LT5000 Access GT51T10 Contig
30 016930120 ORANGE ST & REDLANDS BLVD Parking Lot Yes No 31 016892154 PENNSYLVANIA AVE & ADELINE
AVE
Greenbelt Yes No
32 016930133 5TH & REDLANDS BLVD Parking Lot Yes
33 016936208 845 ALABAMA ST Well Site Yes Yes
34 016939103 REDLANDS BLVD & TENNESSEE ST Right-of-Way Yes Yes 35 017023121 CENTRAL AVE & CHURCH ST High School Yes No 36 017034230 SYLVAN BLVD & LINCOLN ST Greenbelt Yes Yes 37 017106207 STATE ST & 5TH ST Park Yes No
38 017108611 725 E STATE ST Citrus Yes Yes
39 017108802 525 E CITRUS AVE Fire Station Yes Yes
40 017108913 21 N CHURCH ST Right-of-Way Yes No
41 017112119 50 ORANGE ST Park Yes Yes
42 017117133 STATE ST & TEXAS ST Well Site Yes Yes
43 017118126 NEW YORK ST & PINE AVE Well Site Yes Yes
44 017118139 NEW YORK ST & PINE AVE Well Site Yes Yes
45 017123221 OLIVE AVE & BUENA VISTA ST Storm Drain Yes 46 017123224 OLIVE AVE & BUENA VISTA ST Storm Drain Yes Yes 47 017126114 10 CAJON ST Greenbelt Yes Yes
48 017127201 CITRUS AVE & 6TH ST Parking Lot Yes Yes
49 017127202 CITRUS AVE & 6TH ST Parking Lot Yes Yes
50 017127203 CITRUS AVE & 6TH ST Parking Lot Yes Yes
51 017127204 CITRUS AVE & 6TH ST Parking Lot Yes Yes
52 017127205 CITRUS AVE & 6TH ST Parking Lot Yes No
53 017127206 CITRUS AVE & 6TH ST Parking Lot Yes No
54 017127207 CITRUS AVE & 6TH ST Parking Lot Yes No
55 017131212 OLIVE AVE & BUENA VISTA ST Storm Drain Yes Yes 56 017134110 213 MYRTLE ST Parking Lot Yes Yes
57 017135211 FERN AVE & BUENA VISTA ST Storm Drain Yes Yes 58 017244141 123 TERRACINA BLVD Well Site Yes
59 017414203 PARKFORD DR & MARSHALL ST Park Yes
60 017428119 WABASH AVE & PANORAMA DR Next to right-ofwayYes Yes 61 017428120 WABASH AVE & PANORAMA DR Next to right-ofwayYes Yes 62 017501152 SMILEY HEIGHTS DR & CALLE DE
LAS PALMAS
Reservoir Yes Yes
63 017603106 FORD ST & EUCALYPTUS DR Well Site Yes
64 017614210 W SUNSET DR & VALLE VISTA DR Greenbelt Yes Yes 65 029203207 BRYN MAWR AVE & LUGONIA AVE Well Site Yes Yes 66 029302206 WHITTIER AVE & 1ST ST Well Site Yes Yes
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B-3
Criteria
1 Criteria
2 Criteria 3
APN Address Agency Use LT5000 Access GT51T10 Contig
67 029304103 LAWTON AVE & WHITTIER BLVD Well Site Yes
68 029426214 CREEKSIDE DR & CANYON VIEW LN Vacant Yes Yes 69 029829102 GARNET ST & MILL CREEK RD Well Site Yes Yes 70 029829206 GARNET ST & MILL CREEK RD Well Site Yes Yes 71 029831112 NAPLES AVE & ROSE ST Well Site Yes Yes
72 029841143 CRAFTON AVE & MENTONE BLVD Well Site Yes Yes 73 029932164 CAMPUS DR & SAND CANYON RD Utility Yes
74 029942142 CITRUS AVE & JACINTO RANCHES
LN
Greenbelt Yes Yes
75 029943136 MONTECITO LN & WABASH AVE Greenbelt Yes Yes 76 121221102 JUDSON ST & PENNSYLVANIA AVE Well Site Yes Yes 77 121242104 LUGONIA AVE & JUDSON ST Vehicle Access Yes Yes Redlands Regular meeting of 07-16-24 64 of 2362
City Council Meeting H. 6.
DATE: 07/16/2024
TO: Honorable Mayor and City Council Members
SUBJECT: Approve First Amendment to the Public Works Contract with AME Builders, Inc. doing business as AME Roofing for the repair and replacement of the City's Emergency Operations Center roof and rooftop HVAC units to incorporate required federal contract provisions (Fire Chief Sessler)
MOTION(S):
If the City Council determines that staff’s recommendation is appropriate, the following motion is provided:
I approve the First Amendment to the Public Works Contract with AME Builders, Inc. doing business as AME Roofing for the repair and replacement of the City's Emergency Operations Center roof and rooftop HVAC units to incorporate required federal contract provisions.
RECOMMENDATION:
Staff recommends the City Council approve the First Amendment to the Public Works Contract with AME Builders, Inc. dba AME Roofing for the repair and replacement of the City's Emergency Operations Center roof and rooftop HVAC units to incorporate required federal contract provisions.
DISCUSSION:
In January 2024, bids were solicited for the repair and replacement of the city's Emergency Operations Center (EOC) roof and rooftop HVAC units. The repair and replacement of the EOC's roof and rooftop HVAC units are part of the EOC Renovation Project being funded by the FY22 Emergency Operations Center Grant Program. The California Office of Emergency Services (CalOES) administers the grant program. However, the grant program was passed through to CalOES from the Federal Emergency Management Agency (FEMA).
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On April 2, 2024, the City Council approved the Public Works Contract with AME Builders, Inc. dba AME Roofing for the repair and replacement of the roof and rooftop HVAC units for an amount not-to-exceed $425,706. After the contract was awarded, staff realized that the bid solicitation and contract did not include the required federal provisions. To bring the Public Works Contract with AME Builders, Inc. in compliance with all FEMA contract provisions, staff is requesting an amendment to the contract to include the federal requirements as listed in Appendix II Part 200, Title 2 of the “Contract Provisions for Non-Federal Entity Contracts Under Federal Awards.”
ALTERNATIVES:
Council may not approve the First Amendment to the Public Works Contract with AME Builders, Inc. bad AME Roofing and provide alternate direction to staff.
STRATEGIC PLAN:
Priority B - Pubic Health & Safety
SUBMITTED BY:
Rich Sessler, Fire Chief
RECOMMENDED BY:
Charles M. Duggan Jr., City Manager
REVIEWED BY:
Yvette M. Abich Garcia, City Attorney
Danielle Garcia, Management Services/Finance Director
PREPARED BY:
Bruni Reyes, Management Analyst
Fiscal Impact
Revenue Generating: N
Appropriation Required Y/N: N
Discussion:
The approval of the First Amendment to the Public Works Contract with AME Builders, Inc. will only add the federal contract provisions. The cost of the project will not be affected, therefore there will be no fiscal impact.
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Attachments
Original AME Builders Contract
Exhibit A Contract Provisions Guide
First Amendment to AME Builders Contract
Appendix II to Contract Provisions
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i
Contract Provisions
Guide
Navigating Appendix II to Part 200—Contract Provisions
for Non-Federal Entity Contracts Under Federal Awards
Procurement Disaster Assistance Team (PDAT)
June 2021
(FI-207-21-0001)
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1 Table of Contents
Introduction .................................................................................................................................. 4 Summary of Applicable Federal Procurement Standards ............................................................... 5 Policy and Guidance Document(s) Incorporated and Superseded................................................. 6 Document Management and Maintenance ..................................................................................... 6 Contract Provisions Quick Reference Guide .................................................................................... 7 Required Contract Provisions ...................................................................................................... 9
1. Remedies ................................................................................................................................ 9
1.1 Applicability............................................................................................................... 9
1.2 Additional Considerations........................................................................................ 9
2. Termination for Cause and Convenience.............................................................................. 9
2.1 Applicability............................................................................................................... 9
3. Equal Employment Opportunity ........................................................................................... 10
3.1 Applicability............................................................................................................. 10
3.2 Key Definitions........................................................................................................ 10
3.3 Required Language................................................................................................ 10
4. Davis-Bacon Act .................................................................................................................... 13
4.1 Applicability............................................................................................................. 13
4.2 Additional Requirements ....................................................................................... 14
4.3 Required Language................................................................................................ 14
5. Copeland “Anti-Kickback” Act.............................................................................................. 14
5.1 Applicability............................................................................................................. 15
5.2 Additional Requirements ....................................................................................... 15
5.3 Suggested Language ............................................................................................. 16
6. Contract Work Hours and Safety Standards Act ................................................................. 16
6.1 Applicability............................................................................................................. 16
6.2 Additional Requirements ....................................................................................... 17
6.3 Required Language................................................................................................ 17 Redlands Regular meeting of 07-16-24 83 of 2362
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2 6.4 Suggested Language ............................................................................................. 18
7. Rights to Inventions Made Under a Contract or Agreement ..............................................18
7.1 Applicability............................................................................................................. 19
7.2 Key Definitions ....................................................................................................... 19
8. Clean Air Act and Federal Water Pollution Control Act....................................................... 19
8.1 Applicability............................................................................................................. 19
8.2 Suggested Language ............................................................................................. 19
9. Debarment and Suspension ................................................................................................ 20
9.1 Applicability............................................................................................................. 20
9.2 Additional Requirements ....................................................................................... 21
9.3 Suggested Language ............................................................................................. 21
10. Byrd Anti-Lobbying Amendment........................................................................................... 22
10.1 Applicability............................................................................................................. 23
10.2 Suggested Language ............................................................................................. 23
10.3 Required Certification ............................................................................................ 23
11. Procurement of Recovered Materials.................................................................................. 25
11.1 Applicability............................................................................................................. 25
11.2 Additional Requirements ....................................................................................... 25
11.3 Suggested Language ............................................................................................. 25
12. Prohibition on Contracting for Covered Telecommunications Equipment or Services.....26
12.1 Applicability............................................................................................................. 26
12.2 Suggested Language ............................................................................................. 27
13. Domestic Preferences for Procurements ............................................................................ 29
13.1 Applicability............................................................................................................. 29
13.2 Suggested Language ............................................................................................. 29 FEMA Recommended Contract Provisions............................................................................... 30
1. Access to Records................................................................................................................. 30
1.1 Suggested Language for All Procurements .......................................................... 30 Redlands Regular meeting of 07-16-24 84 of 2362
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3 1.2 Additional Suggested Language Applicable to Contracts Entered into After August 1, 2017 Under a Major Disaster or Emergency Declaration ..................31
2. Changes................................................................................................................................. 31
2.1 Applicability............................................................................................................. 31
3. DHS Seal, Logo, and Flags ................................................................................................... 31
3.1 Applicability............................................................................................................. 31
3.2 Suggested Language .................................................................................................. 31
4. Compliance with Federal Law, Regulations, And Executive Orders and Acknowledgement of Federal Funding ........................................................................................................................... 32
4.1 Applicability............................................................................................................. 32
4.2 Suggested Language ............................................................................................. 32
5. No Obligation by Federal Government ................................................................................ 32
5.1 Applicability............................................................................................................. 32
5.2 Suggested Language ............................................................................................. 33
6. Program Fraud and False or Fraudulent Statements or Related Acts...............................33
6.1 Applicability............................................................................................................. 33
6.2 Suggested Language ............................................................................................. 33
7. Affirmative Socioeconomic Steps ........................................................................................ 33
7.1 Applicability............................................................................................................. 34
7.2 Suggested Language ............................................................................................. 34
8. Copyright and Data Rights ................................................................................................... 34
8.1 Applicability............................................................................................................. 34
8.2 Suggested Language ............................................................................................. 34 Appendix .................................................................................................................................... 36 Acronyms .......................................................................................................................................... 36 Definitions ........................................................................................................................................ 37 Redlands Regular meeting of 07-16-24 85 of 2362
Contract Provisions Guide
4 Introduction FEMA grant recipients and subrecipients (also known as non-federal entities or NFEs)1 will often use contractors to help them carry out work under their awards. These contracts are a commercial transaction between the NFE and its contractor, and FEMA has no contractual relationship with NFEs’ contractors. Although FEMA is not a party to the contract, if an NFE is using federal funding to pay for the contract, the NFE must comply with federal laws, including the federal procurement standards.
This Guide is applicable to all NFEs purchasing in support of declarations and FEMA awards issued on or after November 12, 2020 and reflects Office of Management and Budget (OMB) revisions to the federal procurement standards.
For FEMA declarations and awards issued between December 26, 2014 and November 11, 2020 please refer to the Contract Provisions Template. While the Contract Provisions Template is only directly applicable to FEMA’s Public Assistance (PA) Program, all FEMA grant recipients and subrecipients are encouraged to review this resource since it provides guidance on the federal procurement under grants regulations.
The federal procurement standards for NFEs are described in Title 2 of the Code of Federal Regulations (C.F.R.), Part 200, sections 200.317-200.327. 2 C.F.R. § 200.327 states that “the nonfederal entity's contracts must contain the applicable provisions described in Appendix II to this part” (emphasis added).
This Guide is designed to help FEMA grant recipients and subrecipients navigate Appendix II to Part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards, including providing mandatory language and/or suggested language for each required contract provision. This Guide also describes contract clauses that FEMA recommends in addition to those required by 2 C.F.R. Part 200.
This Guide provides:
Sample language or references to find sample language for some of the federally required clauses.
Required language for clauses that require exact language. 1 Non-federal entity is defined as a state, local government, Indian tribe, institution of higher education, or nonprofit organization carrying out a federal award as a recipient or subrecipient. 2 C.F.R. § 200.1. State is defined as “any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, U.S.
Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any agency or instrumentality thereof exclusive of local governments.” 2 C.F.R. § 200.1. The term “non-state entity” therefore refers to a non-federal entity other than a state, which includes local and tribal governments as well as nonprofit organizations.
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5 Sample language for some of the federally recommended clauses.
This Guide does not provide:
Sample language for certain federally required or recommended clauses that must be included in accordance with the NFE’s applicable laws, rules, and procedures. Provisions required by applicable state, tribal, or local laws or rules separate from the federal provisions.
Many of the provisions described in this Guide only apply when certain circumstances are present, such as the type of work being procured, the dollar amount, or the date when it is procured. Each section will describe the applicable requirements.
NOTE: The NFE is solely responsible for ensuring that all language included in its contracts meets the requirements of 2 C.F.R. Part 200, including 2 C.F.R. § 200.327 and Appendix II. While the Contract Provisions Guide provides general guidance, NFEs should reach out to their applicable FEMA grant program representative(s) if they have specific questions on the applicability of the contract provisions to a particular FEMA grant program. NFEs are encouraged to visit www.fema.gov for additional information regarding FEMA grant programs and www.fema.gov/grants/procurement for procurement under grants reference material.
Summary of Applicable Federal Procurement Standards
For the NFE to determine which federal procurement rules to follow, it must first determine whether it is a state entity or a non-state entity. Below are the federal procurement rules applicable to state and non-state entities effective November 12, 2020:
State entities2, including their agencies and instrumentalities, must follow their own documented procurement policies and procedures when purchasing under a FEMA award pursuant to 2 C.F.R. § 200.317. These entities must also comply with socioeconomic affirmative steps (2 C.F.R. § 200.321), requirement for domestic preferences for procurement (2 C.F.R. § 200.322), the requirements for procurement of recovered materials (2 C.F.R. § 200. 323) and ensure that all necessary contract provisions are included in their contracts (2 C.F.R § 200.327). NFEs other than states (collectively referred to as non-state entities3), which include local governments, tribes and eligible private nonprofit organizations, must have documented procurement policies and procedures, which reflect applicable local, state or tribal law, and ensure compliance with the federal requirements listed at 2 C.F.R. §§ 200.318 – 200.327. 2 A state entity is “any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any agency or instrumentality thereof exclusive of local governments.” 2 C.F.R. § 200.1 3 A non-state entity is any non-federal entity (as defined above) other than a state (as defined above).
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6 In the case of noncompliance with the federal procurement rules, FEMA may apply a remedy, as appropriate, in accordance with its authorities found at 2 C.F.R. § 200.339 Remedies for Noncompliance.
Policy and Guidance Document(s) Incorporated and
Superseded
This Guide supersedes the Contract Provisions Template and other provisions pertaining to the procurement under grants process in policy or guidance circulated prior to the publication date of the Contract Provisions Guide. This Guide provides the most updated and authoritative information regarding required provisions under Appendix II to Part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards and FEMA-recommended contract provisions.
Document Management and Maintenance
FEMA Policy FI-207-21-0001, Contract Provisions Guide, will be reviewed, reissued, revised, and/or rescinded within four years for the issue date. The Procurement Disaster Assistance Team (PDAT), a subcomponent of FEMA’s Grant Programs Directorate’s (GPD) Policy Division, developed this Guide to provide accurate and updated information to assist both FEMA staff and FEMA award recipients and subrecipients navigate Appendix II to Part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards. PDAT is responsible for the management and maintenance of this Guide. Comments and feedback from FEMA personnel and stakeholders regarding this Guide should be directed to the Grants Program Directorate Policy Division at FEMA headquarters (HQ) at FEMA[email protected].
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7 Contract Provisions Quick Reference Guide
Tables A and B are designed to help FEMA grant recipients and subrecipients conduct a quick reference of the applicability of a specific contract provision and whether sample contract language is included within this Guide to incorporate within the NFE’s contract.
The Tables are divided between the required contract provisions set forth under 2 C.F.R. Part 200 Appendix II and those that FEMA recommends in addition to those required by 2 C.F.R. Part 200.
Table A: Required Contract Provisions (continued next page) Provision (Appendix II Section) Applicability Sample Contract Language Included
1 Legal/contractual/administrative
remedies for breach of contract
Greater than Simplified Acquisition
Threshold (SAT)- $250,000
No. It is based on
NFE’s procedures.
2 Termination for cause and
convenience
Greater than $10,000 No. It is based on
NFE’s procedures.
3 Equal Employment Opportunity Construction work Yes. Exact language from 41 C.F.R. §
60-1.4(b) included.
4 Davis-Bacon Act Construction work Yes, via reference
to required
language at 29
C.F.R. § 5.5(a).
5 Copeland “Anti-Kickback” Act Construction work greater than $2,000
Yes.
6 Contract Work Hours and Safety
Standards Act
Greater than $100,000 +
mechanics or laborers
Yes. Exact language
required from 29
C.F.R. § 5.5(b).
7 Rights to inventions made under
a contract or agreement
Funding agreement Yes.
8 Clean Air Act and federal Water
Pollution Control Act
Greater than $150,000 Yes.
9 Debarment and Suspension Greater than $25,000 Yes.
10 Byrd Anti-Lobbying Amendment Greater than $100,000; and Certification required for all
contracts greater than $100,000
Yes. Clause and
certification.
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8 Provision (Appendix II Section) Applicability Sample Contract Language Included
11 Procurement of Recovered
Materials
NFE is a state or political subdivision
of a state. Work involves the use of
materials and the contract is for
more than $10,000.
Yes.
12 Prohibition on Contracting for
Covered Telecommunications
Equipment or Services
All FEMA declarations and awards
issued on or after November 12,
2020.
Yes.
13 Domestic Preferences for
Procurements
All FEMA declarations and awards
issued on or after November 12,
2020.
Yes.
Table B: Recommended Contract Provisions
Provision Applicability Sample Contract
Language Included
1 Access to Records All Yes.
2 Contract Changes or
Modifications
All No. It depends on
nature of contract
and end-item
procured.
3 DHS Seal, Logo, and Flags All Yes.
4 Compliance with federal Law,
Regulations and Executive
Orders
All Yes.
5 No Obligation by Federal
Government
All Yes.
6 Program Fraud and False or
Fraudulent Statements or
Related Acts
All Yes.
7 Affirmative Socioeconomic
Steps
State entities: all FEMA declarations
and awards issued on or after
November 12, 2020.
Non-state entities: all procurements
Yes.
8 Copyright All procurements that may involve
creation of copyrightable material.
Yes.
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9 Required Contract Provisions
1. Remedies
Contracts for more than the federal simplified acquisition threshold (SAT), the dollar amount below which an NFE may purchase property or services using small purchase methods, currently set at $250,000 for procurements made on or after June 20, 2018,4 must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and must provide for sanctions and penalties as appropriate.5
1.1 Applicability
This contract provision is required for contracts over the SAT, currently set at $250,000 for procurements made on or after June 20, 2018. Although not required for contracts at or below the SAT, FEMA suggests including a remedies provision.
1.2 Additional Considerations
For FEMA’s Assistance to Firefighters Grant (AFG) Program, recipients must include a penalty clause in all contracts for any AFG-funded vehicle, regardless of dollar amount. In that situation, the contract must include a clause addressing that non-delivery by the contract’s specified date or other vendor nonperformance will require a penalty of no less than $100 per day until such time that the vehicle, compliant with the terms of the contract, has been accepted by the recipient. This penalty clause should, however, account for force majeure or acts of god. AFG recipients should refer to the applicable year’s Notice of Funding Opportunity (NOFO) for additional information, which can be accessed at FEMA.gov.
2. Termination for Cause and Convenience
Contracts for more than $10,000 must address termination for cause and for convenience by the non-federal entity, including how it will be carried out and the basis for settlement.6
2.1 Applicability
This contract provision is required for procurements exceeding $10,000. FEMA suggests including a termination for cause and for convenience in all contracts even when not required. 4 See FEMA Grant Programs Directorate Information Bulletin No. 434, Increases and Changes to the MicroPurchase and Simplified Acquisition Thresholds (Aug. 28, 2018), https://www.fema.gov/sites/default/files/2020-
08/ib_434_changes_micro_purch_simp_acquisition_thresholds.pdf. For procurements subject to 2 C.F.R. Part 200 that were made before June 20, 2018, the SAT was $150,000. 5 2 C.F.R. Part 200, Appendix II, § A.
6 See 2 C.F.R. Part 200, Appendix II, § B.
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10 3. Equal Employment Opportunity
Any contract that uses federal funds to pay for construction work is a “federally assisted construction contract” and must include the equal opportunity clause found in 2 C.F.R. Part 200, unless otherwise stated in 41 C.F.R. Part 60.7
3.1 Applicability
This contract provision is required for all procurements that meet the definition of a “federally assisted construction contract.”
3.2 Key Definitions
Federally Assisted Construction Contract: The regulation at 41 C.F.R. § 60-1.3 defines a federally assisted construction contract as “any agreement or modification thereof between any applicant and a person for construction work which is paid for in whole or in part with funds obtained from the Government or borrowed on the credit of the Government pursuant to any federal program involving a grant, contract, loan, insurance or guarantee, or undertaken pursuant to any federal program involving such grant, contract, loan, insurance, or guarantee, or any application or modification thereof approved by the Government for a grant, contract, loan, insurance, or guarantee under which the applicant itself participates in the construction work.” Construction Work: The regulation at 41 C.F.R. § 60-1.3 defines construction work as “the construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction.”
Contract: The regulation at 41 C.F.R. § 60-1.3 defines contract as “any Government contract or subcontract or any federally assisted construction contract or subcontract.” Additional definitions pertaining to this contract provision can be found at 41 C.F.R. § 60-1.3.
3.3 Required Language
The regulation at 41 C.F.R. § 60-1.4(b) requires, except as otherwise provided or exempted in 41 C.F.R. Part 60, the insertion of the following contract clause: “During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor 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 7 See 2 C.F.R. Part 200, Appendix II, § C.
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11 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 contractor 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.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. (3) The contractor 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 contractor's legal duty to furnish information.
(4) The contractor 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 contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The contractor 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. (6) The contractor 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.
(7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor 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 Redlands Regular meeting of 07-16-24 93 of 2362
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12 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.
(8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) 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 contractor 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 contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor 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 contract.
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.”
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13 4. Davis-Bacon Act
This statute requires that contractors must pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in the Secretary of Labor’s wage determination. Additionally, contractors are required to pay wages at least once per week.8 Additional requirements are listed below, and relevant definitions are at 29 C.F.R. § 5.2. NFEs should refer to the applicable NOFO or other program guidance or contact their applicable FEMA grant representative for additional information on how to implement this requirement.
4.1 Applicability
When required by the federal program legislation, prime construction contracts over $2,000 awarded by NFEs must include a provision for compliance with the Davis-Bacon Act.9 The Davis-Bacon Act only applies to the Emergency Management Performance Grant Program,10 Homeland Security Grant Program,11 Nonprofit Security Grant Program,12 Tribal Homeland Security Grant Program,13 Port Security Grant Program,14 Transit Security Grant Program,15 Intercity Passenger Rail Program,16 and Rehabilitation of High Hazard Potential Dams Program.17 Unless otherwise stated in a program’s authorizing statute, it does not apply to other FEMA grant and cooperative agreement programs, including the PA Program. . 8 See id.; 40 U.S.C. §§ 3141-3144 and 3146-3148. The Davis-Bacon Act is supplemented by Department of Labor regulations at 29 C.F.R. Part 5 (Labor Standards Provisions Applicable to Contracts Covering federally Financed and Assisted Construction) 9 2 C.F.R. Part 200, Appendix II, § D. 10 See section 611(j)(9) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), Pub. L. No. 93-288 (codified as amended at 42 U.S.C. § 5196(j)(9)). 11 See section 2008(b)(4)(B)(ii) of the Homeland Security Act of 2002, Pub. L. No. 107-296 (codified as amended at 6 U.S.C. § 609(b)(4)(B)(ii)) (citing to section 611(j)(9) of the Stafford Act). 12 Id. The Davis-Bacon Act only applies to the Nonprofit Security Grant Program (NSGP) where that program is funded as a carve-out of the appropriations for the Homeland Security Grant Program (HSGP). See, e.g., Department of Homeland Security Appropriations Act, 2020, Pub. L. No. 116-93, Title III, Protection, Preparedness, Response, and Recovery, Federal Emergency Management Agency, Federal Assistance §§ 1-2.
Compare id. with section 2009 of the Homeland Security Act of 2002 (6 U.S.C. § 609a) (authorizing NSPG as a stand-alone program where the Davis-Bacon Act does not apply, but as of the date of publication of this document, NSGP has not been funded as a standalone program). 13 See section 2008(b)(4)(B)(ii) of the Homeland Security Act of 2002. 14 See section 102 of the Maritime Transportation Security Act of 2002 (MTSA), Pub. L. No. 107-295 (codified as amended at 46 U.S.C. § 70107); 46 U.S.C. § 70107(b)(2). While the MTSA requires that PSGP construction activities are carried out consistent with section 611(j)(8) of the Stafford Act, a subsequent amendment to the Stafford Act by section 3 of Pub. L. No. 109-308 in 2006 redesignated the text of section 611(j)(8) to 611(j)(9).
The cross-reference in the MTSA has not been updated. 15 See section 1406 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Pub. L. No. 110-53 (6 U.S.C. § 1135) (applying the requirements of section 49 U.S.C. § 5307); 49 U.S.C. § 5333 (applying the Davis-Bacon Act to grants provided under 49 U.S.C. § 5307). 16 See section 1513(h) of the 9/11 Act (6 U.S.C. § 1163(h)) (citing to 49 U.S.C. § 24312, which requires compliance with the Davis-Bacon Act). 17 See section 8A(d)(2)(E) of the National Dam Safety Program Act (codified as amended at 33 U.S.C. § 467f2(d)(2)(E)) (requiring compliance with 42 U.S.C. § 5196(j)(9), which is section 611(j)(9) of the Stafford Act that applies the Davis-Bacon Act).
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14 4.2 Additional Requirements
If applicable, in addition to the requirements mentioned in the beginning of this section, the NFE must do the following:
Place a copy of the Department of Labor’s current prevailing wage determination in each solicitation. Contracts or subcontracts must be awarded on the condition that the prevailing wage determination is accepted. The non-federal entity must report all suspected or reported violations to the federal awarding agency.18
Include a provision for compliance with the Copeland “Anti-Kickback” Act for all contracts subject to the Davis-Bacon Act.19 See Required Contract Provisions, Section 5. Copeland Anti-Kickback Act in this Guide for additional information. According to 29 C.F.R. § 5.5(a)(5), the regulatory requirements for the Copeland “Anti-Kickback” Act are incorporated by reference into the required contract provision, so a separate contract provision is not necessary. However, the NFE may include a separate contract provision specific to the Copeland “Anti-Kickback” Act. Per Department of Labor’s implementing regulations for the Davis-Bacon Act, the NFEs contractor and any subcontractors are required to insert, or incorporate by reference, the clauses contained at 29 C.F.R. § 5.5(a)(1)-(10)20 into any subcontracts. Follow the other requirements of the Davis-Bacon Act and implementing regulations.21
4.3 Required Language22
If applicable per the standard described above, the NFE must include the provisions at 29 C.F.R. §
5.5(a)(1)-(10) in full into all applicable contracts, and all applicable contractors must include these provisions in full in any subcontracts.23
5. Copeland “Anti-Kickback” Act
The Copeland "Anti-Kickback" Act prohibits workers on construction contracts from giving up wages that they are owed.24 Additional requirements are listed below, and relevant definitions are at 29 C.F.R. § 3.2. The applicable implementing regulations are intended to assist with enforcement of the 18 2 C.F.R. Part 200, Appendix II, § D. 19 2 C.F.R. Part 200, Appendix II, § D. 20 29 C.F.R. § 5.5(a)(6). 21 40 U.S.C. §§ 3141-3144, 3146-3148; 29 C.F.R. Part 5. 22 29 C.F.R. § 5.5(a). 23 29 C.F.R. § 5.5(a)(1), (6). 24 See id.; 40 U.S.C. § 3145. The Copeland “Anti-Kickback” Act is supplemented by Department of Labor regulations at 29 C.F.R. Part 3 (Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States).
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15 Davis-Bacon Act’s minimum wage provisions as well as various statutes with similar minimum wage provisions for federally assisted construction.25
5.1 Applicability
For all prime construction contracts above $2,000, when the Davis-Bacon Act also applies,26 NFEs must include a provision in contracts and subcontracts for compliance with the Copeland “AntiKickback” Act.27 This requirement applies to all prime construction contracts above $2,000 in situations where the Davis-Bacon Act also applies.28 In situations where the Davis-Bacon Act does not apply, neither does the Copeland “Anti-Kickback” Act. As described in section A.4 regarding the Davis-Bacon Act, this provision only applies to certain FEMA grant and cooperative agreement programs. Please reference that list discussed above. Of note, it does not apply to the PA Program.
5.2 Additional Requirements
If applicable, the NFE must do the following:
Include a provision for compliance with the Copeland “Anti-Kickback” Act.29 According to the Davis-Bacon Act implementing regulations, the requirements for the Copeland “Anti-Kickback” Act are incorporated into the required contract provision for the Davis-Bacon Act by reference.30 Therefore, a separate contract provision is not necessary. However, the NFE may include a separate contract provision specific to the Copeland “Anti-Kickback” Act with language suggested below.
The Copeland “Anti-Kickback Act” prohibits each contractor or subcontractor from any form of persuading a person employed in construction, completion, or repair of public work to give up any part of their rightful compensation. The NFE must report all suspected or reported violations of the Copeland “Anti-Kickback Act” to FEMA.31
Each contractor and subcontractor must provide weekly reports of the wages paid during the prior week’s payroll period to each employee covered by the “Copeland Anti-Kickback” Act and the Davis-Bacon Act. The reports must be delivered to a representative of a federal or state agency in charge at the building or work site by the contractor or subcontractor within seven days of the payroll period’s payment date.32
25 See 29 C.F.R. § 3.1. 26 See 2 C.F.R. Part 200, Appendix II, § D; 29 C.F.R. §§ 3.1, 3.3(c). 27 2 C.F.R. Part 200, Appendix II, § D. 28 See 2 C.F.R. Part 200, Appendix II, § D; 29 C.F.R. § 3.3(c). 29 See 29 C.F.R. § 3.11. 30 29 C.F.R. § 5.5(a)(5). 31 See 2 C.F.R. Part 200, Appendix II, § D. 32 See 29 C.F.R. § 3.4.
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16 Follow the other requirements of the Copeland “Anti-Kickback” Act and implementing regulations.33
5.3 Suggested Language
The following provides a sample contract clause:
“Compliance with the Copeland “Anti-Kickback” Act.
Contractor. The contractor shall comply with 18 U.S.C. § 874,40 U.S.C. § 3145, and the requirements of 29 C.F.R. Part 3 as may be applicable, which are incorporated by reference into this contract.
Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clause above and such other clauses as FEMA may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all of these contract clauses.
Breach. A breach of the contract clauses above may be grounds for termination of the contract, and for debarment as a contractor and subcontractor as provided in 29 C.F.R. § 5.12.”
6. Contract Work Hours and Safety Standards Act
Where applicable,34 all contracts awarded by the NFE of more than $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with statutory requirements on work hours and safety standards.35 Under 40 U.S.C. § 3702, each contractor must base wages for every mechanic and laborer on a standard 40-hour work week. Work over 40 hours is allowed, so long as the worker is paid at least one and a half times the base pay rate for all hours worked over 40 hours in the work week. Additionally, for construction work, under 40 U.S.C. § 3704, work surroundings and conditions for laborers and mechanics must not be unsanitary or unsafe.
Relevant definitions are at 40 U.S.C. § 3701 and 29 C.F.R. § 5.2.
6.1 Applicability
This required contract provision applies to all procurements over $100,000 that involve the employment of mechanics, laborers, and construction work.36 These requirements do not apply to 33 18 U.S.C. § 874; 40 U.S.C. § 3145; 29 C.F.R. Part 3. 34 See 40 U.S.C. §§ 3701-3708. 35 40 U.S.C. §§ 3702, 3704. The Contract Work Hours and Safety Standards Act is supplemented by Department of Labor regulations at 29 C.F.R. Part 5. See 2 C.F.R. Part 200, Appendix II, § E. 36 41 C.F.R. Part 60-1.3.
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17 the purchase of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.37
6.2 Additional Requirements
If applicable per the standard described above, the non-federal entity must include the provisions at 29 C.F.R. § 5.5(b)(1)-(4), verbatim, into all applicable contracts, and all applicable contractors must include these provisions, in full, into any subcontracts.38 In addition to the required language from 29 C.F.R. § 5.5(b)(1)-(4), in any contract subject only to the Contract Work Hours and Safety Standards Act and not to any other statutes cited in 29 C.F.R. § 5.1, the NFE must also insert a clause meeting the requirements of 29 C.F.R. § 5.5(c). Specific language is not required, but FEMA has provided suggested language below.
6.3 Required Language
For the required contract provision, the language from 29 C.F.R. § 5.5(b)(1)-(4) is provided here for ease of reference:
“Compliance with the Contract Work Hours and Safety Standards Act. (1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract 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. (2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (b)(1) 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 (b)(1) of this section, in the sum of $27 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 (b)(1) of this section. (3) Withholding for unpaid wages and liquidated damages. The (insert name of grant recipient or subrecipient) 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 contractor or subcontractor under any such contract or any other 37 2 C.F.R. Part 200, Appendix II, § E. 38 29 C.F.R. § 5.5(b)(1), (4).
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18 federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract 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 (b)(2) of this section.
(4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (b)(1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (b)(1) through (4) of this section.”
6.4 Suggested Language
For contracts that are only subject to Contract Work Hours and Safety Standards Act and are not subject to the other statutes in 29 C.F.R. § 5.1 where an additional contract provision is required, FEMA suggests including the following language:
“Further Compliance with the Contract Work Hours and Safety Standards Act. (1) The contractor or subcontractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period of three years from the completion of the contract for all laborers and mechanics, including guards and watchmen, working on the contract. Such records shall contain the name and address of each such employee, social security number, correct classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions made, and actual wages paid. (2) Records to be maintained under this provision shall be made available by the contractor or subcontractor for inspection, copying, or transcription by authorized representatives of the Department of Homeland Security, the Federal Emergency Management Agency, and the Department of Labor, and the contractor or subcontractor will permit such representatives to interview employees during working hours on the job.”
7. Rights to Inventions Made Under a Contract or
Agreement
This contract provision outlines the rules governing the ownership of inventions created using federal funds. If the FEMA award meets the definition of funding agreement39 and the NFE enters into any contract involving substitution of parties, assignment or performance of experimental, developmental, or research work under that funding agreement, then the NFE must comply with the requirements of 37 C.F.R. Part 401 and any implementing regulations issued by FEMA. 39 Funding agreement definition found under 37 C.F.R. § 401.2(a).
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19 7.1 Applicability
This provision does not apply to all FEMA grant and cooperative agreement programs. NFEs should refer to applicable NOFO or other program guidance or contact their applicable FEMA grant representative to determine if this provision is required for the procurement. However, the Rights to Inventions Made Under a Contract or Agreement clause is not required for procurements under FEMA’s PA Program.
7.2 Key Definitions
Funding Agreements: The regulation at 37 C.F.R. § 401.2(a) 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 performance 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.”
8. Clean Air Act and Federal Water Pollution Control Act For contracts over $150,000, contracts must contain a provision requiring contractors to comply with the Clean Air Act40 and the Federal Water Pollution Control Act.41 Violations must be reported to FEMA and the Regional Office of the Environmental Protection Agency (EPA).42
8.1 Applicability
This contract provision is required for all procurements over $150,000.
8.2 Suggested Language
The following provides a sample contract clause:
“Clean Air Act”
The contractor 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.
The contractor agrees to report each violation to the (insert name of non-federal entity entering into the contract) and understands and agrees that the (insert name of the nonfederal entity entering into the contract) will, in turn, report each violation as required to 40 42 U.S.C. §§ 7401-7671q. This also includes all applicable standards, orders, or regulations issued pursuant to the Clean Air Act.
41 33 U.S.C. §§ 1251-1387, as amended. 42 2 C.F.R. Part 200, Appendix II, § G.
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20 assure notification to the Federal Emergency Management Agency (FEMA), and the appropriate Environmental Protection Agency Regional Office.
The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA. “Federal Water Pollution Control Act”
The contractor 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.
The contractor agrees to report each violation to the (insert name of the non-federal entity entering into the contract) and understands and agrees that the (insert name of the nonfederal entity entering into the contract) will, in turn, report each violation as required to assure notification to the (insert name of the pass-through entity, if applicable), Federal Emergency Management Agency (FEMA), and the appropriate Environmental Protection Agency Regional Office.
The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA.”
9. Debarment and Suspension
NFEs contractors and subcontractors are subject to debarment and suspension regulations.43 Applicable contracts and subcontracts must include a provision requiring compliance with debarment and suspension regulations.44
9.1 Applicability
The debarment and suspension clause is required for all contracts and subcontracts for $25,000 or more, all contracts that require the consent of an official of a federal agency, and all contracts for federally required audit services.45
NFEs, even for procurements under $25,000, must also comply with the regulation requiring nonstate entities to only award contracts to responsible vendors.46 43 2 C.F.R. Part 180 (implementing Executive Order 12549, Debarment and Suspension (1986) and Executive Order 12689, Debarment and Suspension (1989)); 2 C.F.R. Part 3000 (Department of Homeland Security regulations for Nonprocurement Debarment and Suspension, implementing 2 C.F.R. Part 180). 44 2 C.F.R. § 180; 2 C.F.R. Part 200, Appendix II, § H; 2 C.F.R. § 3000.332. 45 2 C.F.R. § 180.220(b); 2 C.F.R. § 3000.220. 46 2 C.F.R. § 200.318(h). For contracts and subcontracts under $25,000, a contract provision is only required if those contracts or subcontracts are for federally required audit services or require the consent of a federal agency. However, even where a contract provision is not required, non-state entities must still ensure they are only awarding contracts to responsible vendors.
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21 9.2 Additional Requirements
The debarment and suspension regulations restrict awards, subawards, contracts, and subcontracts with parties that are debarred, suspended, or otherwise excluded, or declared ineligible for participation in federal assistance programs and activities.47 If applicable, a contract or subcontract must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM). SAM Exclusions is the list maintained by the General Services Administration that contains the names of parties that are debarred, suspended, or otherwise excluded, or declared ineligible under statutory or regulatory authority other than Executive Order 12549.48 SAM Exclusions can be accessed at www.sam.gov.49 In general, an “excluded” party cannot receive a federal grant award or a contract considered to be a “covered transaction,” which includes parties that receive federal funding indirectly such as subawards and subcontracts. The key to the exclusion is whether there is a covered transaction. A covered transaction is a nonprocurement transaction at either a primary or secondary tier.50 Specifically, a covered transaction includes the following contracts for goods or services under FEMA grant and cooperative agreement programs:
The contract is at least $25,000.
The contract requires the approval of FEMA, regardless of amount. The contract is for federally required audit services. It is a subcontract for $25,000 or more.51
9.3 Suggested Language
The following provides a debarment and suspension clause. It also incorporates an optional method of verifying that contractors are not excluded or disqualified52:
47 See 2 C.F.R. Part 200, Appendix II, § H; 2 C.F.R. § 200.213. See also 2 C.F.R. Parts 180, 3000. 48 See 2 C.F.R. Part 200, Appendix II, § H. 49 2 C.F.R. § 180.530. 50 The regulations at 2 C.F.R. Parts 180 and 3000 are titled “nonprocurement” because they do not apply to procurements by the federal government but rather to federal financial assistance. There are separate debarment and suspension regulations covering procurements by the federal government. However, although the term “covered transactions” under 2 C.F.R. Parts 180 and 3000 does not include contracts awarded by the federal government, it does include some contracts awarded by recipients and subrecipients. 51 See 2 C.F.R. §§ 180.220, 3000.220. 52 Per 2 C.F.R. § 180.300, non-federal entity about to enter into an applicable contract, or a contractor about to entire into an applicable subcontract, must verify that the contractor or subcontractor is not excluded or disqualified by doing one of three things: 1) check SAM Exclusions; 2) collect a certification from the contractor or subcontractor; or 3) add a clause or condition to the contract or subcontract. The additional suggested language in this sample clause is for purposes of this requirement.
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22 “Suspension and Debarment
This contract is a covered transaction for purposes of 2 C.F.R. Part 180 and 2 C.F.R. Part 3000. As such, the contractor is required to verify that none of the contractor’s 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).
The contractor must comply with 2 C.F.R. Part 180, subpart C and 2 C.F.R. Part 3000, subpart C, and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
This certification is a material representation of fact relied upon by (insert name of recipient/subrecipient/applicant). If it is later determined that the contractor did not comply with 2 C.F.R. Part 180, subpart C and 2 C.F.R. Part 3000, subpart C, in addition to remedies available to (insert name of recipient/subrecipient/applicant), the federal government may pursue available remedies, including but not limited to suspension and/or debarment.
The bidder or proposer agrees to comply with the requirements of 2 C.F.R. Part 180, subpart C and 2 C.F.R. Part 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.”
10. Byrd Anti-Lobbying Amendment
NFEs who intend to award contracts of more than $100,000, and their contractors who intend to award subcontracts of more than $100,000, must include a contract provision prohibiting the use of federal appropriated funds to influence officers or employees of the federal government. Contractors that apply or bid for a contract for more than $100,000 must also file the required certification regarding lobbying.53
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 employee of a federal agency, a Member of Congress, an employee of Congress, or an employee of a Member of Congress in connection with receiving any federal contract, grant, or other award covered by 31 U.S.C. § 1352. 53 See 2 C.F.R. Part 200, Appendix II, § I (citing 31 U.S.C. § 1352); 44 C.F.R. § 18.110.
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23 The required certification form is found in FEMA regulations.54 Each tier must also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal funding.
These disclosures are forwarded from tier to tier, all the way up to the federal awarding agency.55
10.1 Applicability
The Byrd Anti-Lobbying Amendment clause and certification are required for contracts of more than $100,000, and for subcontracts of more than $100,000.
10.2 Suggested Language
The following provides a sample contract clause:
“Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352 (as amended) Contractors who apply or bid for an award of more than $100,000 shall file the required certification. Each tier certifies to the tier above that it will not and has not used federally 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 shall 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 federal awarding agency.”
10.3 Required Certification
10.3.1 REQUIRED CERTIFICATION LANGUAGE
If applicable, contractors must sign and submit the following certification to the NFE with each bid or offer exceeding $100,000:
“APPENDIX A, 44 C.F.R. PART 18 – CERTIFICATION REGARDING LOBBYING Certification for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that:
No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee 54 See 44 C.F.R. §§ 18.100, 18.110; 44 C.F.R. Part 18, Appendix A. FEMA’s regulations at 44 C.F.R. Part 18 implement the requirements of 31 U.S.C. § 1352 and provides, in Appendix A to Part 18, a copy of the certification that is required to be completed by each entity as described in 31 U.S.C. § 1352. 55 See 44 C.F.R. §§ 18.100, 18.110; 44 C.F.R. Part 18, Appendix B. The specific form for disclosures is referenced in Appendix B to 44 C.F.R. Part 18 and is SF-LLL, also available at https://www.grants.gov/web/grants/forms/sf-424-family.html.
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24 of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement.
If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, Title 31, U.S.C. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.”
10.3.2 RECOMMENDED SIGNATURE LINE:
At the end of the certification language, FEMA recommends including the following signature line.
“The Contractor, _______________, certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. Chap. 38, Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any.
Signature of Contractor’s Authorized Official
Name and Title of Contractor’s Authorized Official
Date”
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25 11. Procurement of Recovered Materials
An NFE that is a state agency or an agency of a political subdivision of a state, and the NFE’s contractors must comply with Section 6002 of the Solid Waste Disposal Act.56 Applicable NFEs must include a contract provision requiring compliance with this requirement.57 This includes contracts awarded by a state agency or political subdivision of a state and its contractors for certain items, as designated by the EPA, with a purchase price greater than $10,000.58 Indian Tribal Governments and nonprofit organizations are not required to comply with this provision. Additional requirements are listed below.
11.1 Applicability
This required contract provision applies to all procurements over $10,000 made by a state agency or an agency of a political subdivision of a state and its contractors.
11.2 Additional Requirements
The requirements include:
Procuring only items designated in EPA guidelines59 that contain the highest practical percentage of recovered materials consistent with maintaining competition, where the purchase price of the item is greater than $10,000, or the value of the amount of items purchased in the preceding fiscal year was greater than $10,000;
Procuring solid waste management services in a way that maximizes energy and resource recovery; and
Establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.60
11.3 Suggested Language
The following provides a sample contract clause:
“In the performance of this contract, the Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired—
56 Pub. L. No. 89-272 (1965) (codified as amended by the Resource Conservation and Recovery Act at 42 U.S.C. § 6962). 2 C.F.R. § 200.323. 57 See 2 C.F.R. Part 200, Appendix II, § J (citing 2 C.F.R. § 200.323). 58 See 2 C.F.R. Part 200, Appendix II, § J; 2 C.F.R. § 200.323; 40 C.F.R. Part 247. 59 40 C.F.R. Part 247. 60 42 U.S.C. § 6962; 2 C.F.R. § 200.323.
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26 Competitively within a timeframe providing forcompliance with the contract performance schedule;
Meeting contract performance requirements; or
At a reasonable price.
Information about this requirement, along with the list of EPA-designated items, is available at EPA’s Comprehensive Procurement Guidelines webpage:
https://www.epa.gov/smm/comprehensive- procurement-guideline-cpg-program.
The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.”
12. Prohibition on Contracting for Covered
Telecommunications Equipment or Services
Section 889(b)(1) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (FY2019 NDAA) and 2 C.F.R. § 200.216, as implemented by FEMA Policy 405-143-1, Prohibitions on Expending FEMA Award Funds for Covered Telecommunications Equipment or Services (Interim), prohibit the obligation or expending of federal award funds on certain telecommunication products or from certain entities for national security reasons. Effective August 13, 2020, FEMA recipients and subrecipients, as well as their contractors and subcontractors, may not obligate or expend any FEMA award funds to:
a. Procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system; b. Enter into, extend, or renew a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system; or
c. Enter into, extend, or renew contracts with entities that use covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.
12.1 Applicability
For purchases in support of FEMA declarations and awards issued on or after November 12, 2020, all FEMA recipients and subrecipients, and their contractors and subcontractors, are required to include this contract provision in all FEMA-funded contracts and subcontracts, including any purchase orders.61 FEMA strongly encourages the use of this contract clause for any contracts where 61 2 C.F.R. Part 200, Appendix II, § K (citing 2 C.F.R. § 200.216).
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27 FEMA funding will be used regardless of whether the funding is from FEMA declarations or awards issued on or after November 12, 2020.
12.2 Suggested Language
The following provides a sample contract clause:
“Prohibition on Contracting for Covered Telecommunications Equipment or Services (a) Definitions. As used in this clause, the terms backhaul; covered foreign country; covered telecommunications equipment or services; interconnection arrangements; roaming; substantial or essential component; and telecommunications equipment or services have the meaning as defined in FEMA Policy 405-143-1, Prohibitions on Expending FEMA Award Funds for Covered Telecommunications Equipment or Services (Interim), as used in this clause— (b) Prohibitions.
(1) Section 889(b) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, and 2 C.F.R. § 200.216 prohibit the head of an executive agency on or after Aug.13, 2020, from obligating or expending grant, cooperative agreement, loan, or loan guarantee funds on certain telecommunications products or from certain entities for national security reasons.
(2) Unless an exception in paragraph (c) of this clause applies, the contractor and its subcontractors may not use grant, cooperative agreement, loan, or loan guarantee funds from the Federal Emergency Management Agency to:
(i) Procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system;
(ii) Enter into, extend, or renew a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system; (iii) Enter into, extend, or renew contracts with entities that use covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system; or (iv) Provide, as part of its performance of this contract, subcontract, or other contractual instrument, any equipment, system, or service 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.
(c) Exceptions.
(1) This clause does not prohibit contractors from providing— (i) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or
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28 (ii) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.
(2) By necessary implication and regulation, the prohibitions also do not apply to:
(i) Covered telecommunications equipment or services that:
i. Are not used as a substantial or essential component of any system; and ii. Are not used as critical technology of any system.
(ii) Other telecommunications equipment or services that are not considered covered telecommunications equipment or services.
(d) Reporting requirement.
(1) In the event the contractor identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, or the contractor is notified of such by a subcontractor at any tier or by any other source, the contractor shall report the information in paragraph (d)(2) of this clause to the recipient or subrecipient, unless elsewhere in this contract are established procedures for reporting the information. (2) The Contractor shall report the following information pursuant to paragraph (d)(1) of this clause:
(i) Within one business day from the date of such identification or notification: The contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if known); brand; model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended. (ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause: Any further available information about mitigation actions undertaken or recommended. In addition, the contractor shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services.
(e) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (e), in all subcontracts and other contractual instruments.” Redlands Regular meeting of 07-16-24 110 of 2362
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29 13. Domestic Preferences for Procurements
As appropriate, and to the extent consistent with law, NFEs should, to the greatest extent practicable under a federal award, provide a preference for the purchase, acquisition, or use of goods, products or materials produced in the United States. This includes, but is not limited to, iron, aluminum, steel, cement, and other manufactured products.62
13.1 Applicability
For purchases in support of FEMA declarations and awards issued on or after November 12, 2020, all FEMA recipients and subrecipients are required to include in all contracts and purchase orders for work or products a contract provision encouraging domestic preference for procurements.63
13.2 Suggested Language
The following provides a sample contract clause:
“Domestic Preference for Procurements
As appropriate, and to the extent consistent with law, the contractor should, to the greatest extent practicable, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. This includes, but is not limited to iron, aluminum, steel, cement, and other manufactured products.
For purposes of this clause:
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.
Manufactured products mean items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.” 62 See 2 C.F.R. § 200.322. 63 2 C.F.R. Part 200, Appendix II, § L (citing 2 C.F.R. § 200.322). The requirements of 2 C.F.R. § 200.322 must also be included in all subawards.
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30 FEMA Recommended Contract
Provisions Appendix II to Part 200 authorizes FEMA to require or recommend additional provisions for NFE contracts. Therefore, FEMA recommends the following:
1. Access to Records
NFEs and their contractors and subcontractors must give the Department of Homeland Security (DHS) and FEMA access to records associated with their awards during the federally required record retention period and as long as the records are retained.64 All parties agree to comply with DHS provisions about accessing people, places, and things related to the federal financial award as necessary or as required by DHS regulations or other applicable laws and policies.65 Additionally, for contracts entered into after August 1, 2017, under a major disaster or emergency declaration under Titles IV or V of the Robert T. Stafford Disaster Relief Act, FEMA is prohibited from funding any contracts that prevent audits or internal reviews by the FEMA Administrator or Comptroller General.66
1.1 Suggested Language for All Procurements
The following provides a sample contract clause:
“The Contractor agrees to provide (insert non-federal entity), (insert name of pass-through entity, if applicable), the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions.
The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.
The Contractor agrees to provide the FEMA Administrator or his authorized representatives access to construction or other work sites pertaining to the work being completed under the contract.
64 2 C.F.R. §§ 200.334, 200.337. 65 See DHS Standard Terms and Conditions, available at https://www.dhs.gov/publication/fy15-dhs-standardterms-and-conditions. 66 See Sections 1202 and 1225 of the Disaster Recovery Reform Act of 2018, Pub. L. No. 115-254.
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31 1.2 Additional Suggested Language Applicable to Contracts Entered into After August 1, 2017 Under a Major Disaster or Emergency Declaration The following provides a sample contract clause:
In compliance with section 1225 of the Disaster Recovery Reform Act of 2018, the (insert name of the non-federal entity) and the Contractor acknowledge and agree that no language in this contract is intended to prohibit audits or internal reviews by the FEMA Administrator or the Comptroller General of the United States.”
2. Changes
To be allowable under a FEMA grant or cooperative agreement award, the cost of any contract change, modification, amendment, addendum, change order, or constructive change must be necessary, allocable, within the scope of the grant or cooperative agreement, reasonable for the scope of work, and otherwise allowable.67
2.1 Applicability
FEMA recommends that all contracts include a changes clause that describes how, if at all, changes can be made by either party to alter the method, price, or schedule of the work without breaching the contract. The language of the clause may depend on the nature of the contract and the procured item(s) or service(s). The NFE should also consult their servicing legal counsel to determine whether and how contract changes are permissible under applicable state, local, or tribal laws or regulations.
3. DHS Seal, Logo, and Flags
Recipients must obtain permission before using the DHS seal(s), logos, crests, reproductions of flags, or likenesses of DHS agency officials.68
3.1 Applicability
FEMA recommends that all NFEs include in their contracts a statement that a contractor shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without FEMA’s pre-approval.
3.2 Suggested Language
The following provides a sample contract clause:
67 See 2 C.F.R. § 200.403. 68 See DHS Standard Terms and Conditions, available at https://www.dhs.gov/publication/fy15-dhs-standardterms-and-conditions.
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32 “The contractor shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre-approval. The contractor shall include this provision in any subcontracts.”
4. Compliance with Federal Law, Regulations, And
Executive Orders and Acknowledgement of Federal
Funding
The NFEs and its contractors are required to comply with all federal laws, regulations, and executive orders. Additionally, recipients must acknowledge their use of federal funding when issuing statements, press releases, requests for proposal, bid invitations, and other documents describing projects or programs funded in whole or in part with federal funds.69
4.1 Applicability
FEMA recommends that all NFEs include in their contracts a statement acknowledging that FEMA funding will be used in the contract, as well as a requirement that contractors will comply with all applicable federal law, regulations, executive orders, and FEMA policies, procedures, and directives.
4.2 Suggested Language
The following provides a sample contract clause:
“This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion of the contract. The contractor will comply with all applicable federal law, regulations, executive orders, FEMA policies, procedures, and directives.”
5. No Obligation by Federal Government
FEMA is not a party to any transaction between a NFE and its contractor. Therefore, FEMA is not subject to any obligations or liable to any party for any matter relating to the contract between an NFE and its contractor.70
5.1 Applicability
FEMA recommends that the NFE include a statement in its contract that the federal government is not a party to the contract and, thus, is not subject to any obligations or liabilities to any party resulting from the contract.
69 See DHS Standard Terms and Conditions, available at https://www.dhs.gov/publication/fy15-dhs-standardterms-and-conditions. 70 See, e.g., 2 C.F.R. § 200.318(k) (stating that the NFE alone is responsible for the settlement of all contractual and administrative issues arising out of procurements).
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33 5.2 Suggested Language
The following provides a sample contract clause:
“The federal government is not a party to this contract and is not subject to any obligations or liabilities to the non-federal entity, contractor, or any other party pertaining to any matter resulting from the contract.”
6. Program Fraud and False or Fraudulent Statements
or Related Acts
NFEs must comply with the requirements of the False Claims Act which prohibits submitting false or fraudulent claims for payment to the federal government.71 As a part of the contract with a NFE, contractors must acknowledge that 31 U.S.C. Chap. 38, regarding administrative remedies for false claims and statements,72 applies to their actions under their contract.73
6.1 Applicability
FEMA recommends that contracts include a provision prohibiting making false or fraudulent claims to the federal government.
6.2 Suggested Language
The following provides a sample contract clause:
“The contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the contractor’s actions pertaining to this contract.”
7. Affirmative Socioeconomic Steps
For procurements under FEMA declarations and awards issued on or after November 12, 2020, all NFEs are required to take the six affirmative steps to ensure use of small and minority businesses, women’s business enterprises, and labor surplus area firms when possible. One of the six steps is to require the prime contractor, if subcontracts are to be let, to take the five other affirmative steps,74 For procurements under FEMA declarations and awards issued between December 26, 2014, and November 12, 2020, this requirement only applies to non-state entities. 7131 U.S.C. §§ 3729-3733. 72 31 U.S.C. §§ 3801-3812 (detailing the administrative remedies for false claims and statements made). 73 See DHS Standard Terms and Conditions, available at https://www.dhs.gov/publication/fy15-dhs-standardterms-and-conditions. 74 See 2 C.F.R. § 200.321; compare 2 C.F.R. § 200.317 (2019), with 2 C.F.R. § 200.317 in Office of Management and Budget, Guidance for Grants and Agreements, 85 Fed. Reg. 49,506, 49,552 (Aug. 13, 2020).
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34 7.1 Applicability
FEMA recommends that applicable NFEs include in their contracts a statement requiring prime contractors, if subcontracts are to be let, to take the required affirmative socioeconomic steps.
7.2 Suggested Language
The following provides a sample contract clause:
“If subcontracts are to be let, the prime contractor is required to take all necessary steps identified in 2 C.F.R. § 200.321(b)(1)-(5) to ensure that small and minority businesses, women’s business enterprises, and labor surplus area firms are used when possible.”
8. Copyright and Data Rights
An NFE is required by 2 C.F.R. § 200.315 to provide certain licenses with respect to copyright and data to the federal awarding agency. 2 C.F.R. § 200.315(b) provides to the federal awarding agency “a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use [any work that is subject to copyright] for federal purposes, and to authorize others to do so.” 2 C.F.R. § 200.315(d) provides to the federal government the rights to “obtain, reproduce, publish, or otherwise use” data produced under a federal award and to authorize others to do the same.
8.1 Applicability
When an NFE enters into a contract requiring a contractor or subcontractor to produce copyrightable subject matter and/or data for the NFE under the award, the NFE should include appropriate copyright and data licenses to meet its obligations under 2 C.F.R. § 200.315(b) and (d), respectively.
Work that is subject to copyright, or copyrightable subject matter, includes any written reports or literary works, software and/or source code, music, choreography, pictures or images, graphics, sculptures, videos, motion pictures or other audiovisual works, sound and/or video recordings, and architectural works.75
8.2 Suggested Language
The following provides a sample contract clause:
“License and Delivery of Works Subject to Copyright and Data Rights” The Contractor grants to the (insert name of the non-federal entity), a paid-up, royalty-free, nonexclusive, irrevocable, worldwide license in data first produced in the performance of this contract to reproduce, publish, or otherwise use, including prepare derivative works, distribute copies to the public, and perform publicly and display publicly such data. For data required by the contract but not first produced in the performance of this contract, the Contractor will identify 75 See 17 U.S.C. § 102.
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35 such data and grant to the (insert name of the non-federal entity) or acquires on its behalf a license of the same scope as for data first produced in the performance of this contract. Data, as used herein, shall include any work subject to copyright under 17 U.S.C. § 102, for example, any written reports or literary works, software and/or source code, music, choreography, pictures or images, graphics, sculptures, videos, motion pictures or other audiovisual works, sound and/or video recordings, and architectural works. Upon or before the completion of this contract, the Contractor will deliver to the (insert name of the non-federal entity) data first produced in the performance of this contract and data required by the contract but not first produced in the performance of this contract in formats acceptable by the (insert name of the non-federal entity).”
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36 Appendix
Acronyms
AFG: Assistance to Firefighter Grants
CAGE: Commercial and Government Entity
CFR: Code of Federal Regulations
DHS: U.S. Department of Homeland Security
DRRA: Disaster Recovery and Reform Act of 2018
EPA: U.S. Environmental Protection Agency
FEMA: Federal Emergency Management Agency
GPD: Grant Programs Directorate
HQ: FEMA Headquarters
NDAA: National Defense Authorization Act
NFE: Non-Federal Entity
NOFO: Notice of Funding Opportunity
OMB: Office of Management and Budget
PA: Public Assistance Program
PNP: Private Non-Profit
PDAT: Procurement Disaster Assistance Team
SAM: System for Award Management
SAT: Simplified Acquisition Threshold
USC: United States Code
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37 Definitions
Contract: A legal instrument by which a FEMA award recipient or subrecipient purchases property or services needed to carry out the project or program under a federal award.76 A contract, for the purposes of this Guide, does not mean a federal award or subaward. Contractor: Contractor means an entity that receives a contract.77 Cooperative agreement: A legal instrument of financial assistance between a federal awarding agency or pass-through entity and a non-Federal entity, that is consistent with 31 U.S.C. 6302- 6305.78
Federal awarding agency: The federal agency that provides a federal award directly to a nonFederal entity (NFE). The federal awarding agency discussed in this Guide is FEMA. Federal Emergency Management Agency (FEMA): FEMA’s statutory mission is to reduce the loss of life and property and protect the Nation from all hazards, including natural disasters, acts of terrorism, and other man-made disasters, by leading and supporting the Nation in a risk-based, comprehensive emergency management system of preparedness, protection, response, recovery, and mitigation.79 Among other things:
o FEMA administers its programs and carries out its activities through its headquarters offices in Washington, D.C.; ten Regional Offices; Area Offices for the Pacific, Caribbean, and Alaska; various Recovery Offices; and temporary Joint Field Offices (JFO). o FEMA administers numerous assistance programs annually for on a regular basis to increase the Nation’s preparedness, readiness and resilience to all hazards. These assistance programs are typically available to NFEs including, but not limited to, states, local governments, Indian Tribes, universities, hospitals, and certain private nonprofit organizations.
o Each program is governed by the applicable federal law, regulations, executive orders and FEMA program-specific policies. As the Federal awarding agency for these programs, FEMA is responsible for the proper management and administration of these programs as otherwise required by law and enforcing the terms of the agreements it enters with NFEs that receive FEMA financial assistance, consistent with the requirements at 2 C.F.R. Part 200.
76 2 C.F.R. § 200.1 Contracts. 77 2 C.F.R. § 200.1 Contractor. 78 2 C.F.R. § 200.1 Cooperative agreement. 79 See Homeland Security Act of 2002, Pub. L. No. 107-296, § 503 (2002) (codified as amended at 6 U.S.C. § 313).
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38 Federal award: The financial assistance that an NFE receives either directly from a Federal awarding agency or indirectly from a pass-through entity.80 In this Guide, the term is used interchangeably with “FEMA Award,” “grant,” and “financial assistance.” Grant agreement: A legal instrument of financial assistance between a Federal awarding agency or pass-through entity and an NFE that, consistent with 31 U.S.C. §§ 6302, 6304: Is used to transfer anything of value from the Federal awarding agency or pass-through entity to the NFE to carry out a public purpose authorized by a law of the United States (see 31 U.S.C. § 6101(3)); and does not include an agreement that provides only:
o Direct United States government
cash assistance to an individual;
o A subsidy;
o A loan;
o A loan guarantee; or
o Insurance.
Indian tribe (or “federally recognized Indian tribe”): Indian tribe means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. Chapter 33), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians (25 U.S.C. 450b(e)).81 See annually published Bureau of Indian Affairs list of Indian Entities Recognized and Eligible to Receive Services. For the purposes of this Guide, used interchangeably with “Indian Tribal government”.
Local government: Local government82 means any unit of government within a state, including a:
o County
o Borough
o Municipality
o City
o Town
o Township
o Parish
o Special district
o School District
o Intrastate district
o Council of governments,
whether incorporated or
not as a nonprofit
corporation under state
law
o Local public authority,
including any public
housing agency under the
United States Housing Act
of 1937
o Any other agency or
instrumentality of a multiregional, or intra-state or
local government
80 2 C.F.R. § 200.1 Federal award. 81 2 C.F.R. § 200.1 Indian tribe. 82 2 C.F.R. § 200.1 Local government.
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39 Non-Federal Entity (NFE): A state, local government, Indian tribe, Institution of Higher Education, or eligible private nonprofit organization that carries out a federal award as a recipient or subrecipient.83 In this Guide, NFEs include state and non-state entities. Non-State Entity: A non-state entity is an eligible FEMA award recipient or subrecipient that does not meet the definition of a “state under 2 CFR 200.1.
Nonprofit organization (in this Guide, it is used interchangeably with “Private Nonprofit Organization or PNP”): Nonprofit organization84 means any corporation, trust, association, cooperative, or other organization, not including Institutions of Higher Education, that:
Recipient: An NFE that receives a federal award directly from a Federal awarding agency to carry out an activity under a federal program. The term recipient does not include subrecipients.85 A recipient is responsible for administering the federal award in accordance with applicable federal laws. Examples of recipients include state, Indian tribe, or territorial governments. Pass-through entity: A recipient that provides a subaward to a subrecipient to carry out part of a federal program is known as the pass-through entity.86 Pass-through entities are responsible for processing subawards to subrecipients and ensuring subrecipient compliance with the terms and conditions of the FEMA award agreement.
Political Subdivision: A political subdivision means the unit of government that the State determines to have met the State’s legislative definition of a political subdivision.87 Simplified Acquisition Threshold (SAT): Simplified acquisition threshold means the dollar amount below which an NFE may purchase property or services using small purchase methods. NFEs adopt small purchase procedures to expedite the purchase of items costing less than the simplified acquisition threshold. The federal SAT is set by the FAR at 48 C.F.R. Subpart 2.1 (Definitions) and in accordance with 41 U.S.C. 1908.88 As of June 2018, the federal SAT is $250,000,89 but is periodically adjusted for inflation. State: State means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any agency or instrumentality thereof exclusive of local governments.90 In this Guide, state is used interchangeably with “state entity”. 83 2 C.F.R. § 200.1 Non-Federal entity. 84 2 C.F.R. § 200.1 Nonprofit organization. 85 2 C.F.R. § 200.1 Recipient. 86 2 C.F.R. § 200.1 Pass-through entity. 87 40 C.F.R. § 35.6015(a) Political subdivision 88 2 C.F.R. § 200.1 Simplified acquisition threshold. 89 Section 805 codified at 41 U.S.C. § 134; OMB Memo (M-18-18), available at https://www.whitehouse.gov/wp-content/uploads/2018/06/M-18-18.pdf. 90 2 C.F.R. § 200.1 State. Some hospitals and IHEs as defined by 2 C.F.R. § 200.1 Hospitals and 2 C.F.R. § 200.1 Institutions of Higher Education respectively, may meet the definition of a State.
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40 Subaward: An award provided by a pass-through entity to a subrecipient for the subrecipient to carry out part of a federal award received by the pass-through entity. It does not include payments to a contractor or payments to an individual that is a beneficiary of a federal program.
A subaward may be provided through any form of legal agreement, including an agreement that the pass-through entity considers a contract.91 In this Guide, the term is used interchangeably with “subgrant.”
Subrecipient: An NFE that receives a subaward from a pass-through entity to carry out part of a federal program but does not include an individual that is a beneficiary of such program.92 Uniform Rules: The series of regulations found at 2 C.F.R. Part 200 that establishes Uniform Administrative Requirements, Cost Principles, and Audit Requirements for federal awards to NFEs. The Uniform Rules are referred to by several names throughout the remaining portions of this Guide. Some of the names include standards, requirements, rules, and regulations. 91 2 C.F.R. § 200.1 Subaward. 92 2 C.F.R. § 200.1 Subrecipient.
Redlands Regular meeting of 07-16-24 122 of 2362
1 I:\cmo\Agreements\First Amendment Public Works Contract AME Builders, Inc. dba AME Roofing FY23-0128.docx-ms
FIRST AMENDMENT TO PUBLIC WORKS CONSTRUCTION CONTRACT
This first amendment (“First Amendment”) to the Public Works Construction Contract for the EOC HVAC Replacement & Roofing Replacement, Project No. FCS01112024KG (the “Contract”), dated April 16, 2024, by and between the City of Redlands, a municipal corporation and a general law city (“City”), and AME Builders, Inc. dba AME Roofing (“Contractor”), is made and entered into this 16th day of July, 2024.
RECITALS
WHEREAS, it is the desire of the City and Contractor to amend their existing Contract, specifically to incorporate federal requirements as listed in Appendix II Part 200, Title 2 of the “Contract Provisions for Non-Federal Entity Contracts Under Federal Awards” document; and WHEREAS, the City Council approved the Contract with the Contractor for work in accordance with the Bid Documents for Project No. FCS01112024KG.
NOW, THEREFORE, in consideration of the mutual promises contained herein City and Contractor agree as follows:
AGREEMENT
Section 1. Paragraph 5 (“Contract Documents”) of the Contract is hereby amended to read as follows:
“5. CONTRACT DOCUMENTS: This Contract incorporates by reference the following: Notice Inviting Bids, Instructions to Bidders, Contractor's Proposal, Bid Bond, Agreement, Performance Bond, Labor and Material Bond, Plans, General Conditions, Special Provisions and Specifications, and any addenda thereto (collectively, the "Contract Documents").
The Contract Documents also include the federal requirements as listed in Appendix II Part 200, Title 2 of the “Contract Provisions for Non-Federal Entity Contracts Under Federal Awards” which is attached hereto and incorporated by reference herein as Exhibit A.”.
Section 2. This First Amendment adds a new Exhibit “A” to the Contract which is attached hereto as Attachment 1.
Section 3. All other provisions of the Contract shall remain unchanged by this First Amendment and in effect.
[Signatures on following page]
Redlands Regular meeting of 07-16-24 123 of 2362
2 I:\cmo\Agreements\First Amendment Public Works Contract AME Builders, Inc. dba AME Roofing FY23-0128.docx-ms IN WITNESS WHEREOF, the parties have executed this First Amendment, to be effective as of July 16, 2024.
CITY OF REDLANDS AME BUILDERS, INC. DBA
AME ROOFING
________________________________ By: ________________________________ Eddie Tejeda, Mayor Don Seo, President
ATTEST:
__________________________________
Jeanne Donaldson, City Clerk
Redlands Regular meeting of 07-16-24 124 of 2362
3 I:\cmo\Agreements\First Amendment Public Works Contract AME Builders, Inc. dba AME Roofing FY23-0128.docx-ms Attachment 1
EXHIBIT A
Appendix II to Part 200 – Contract Provisions for Non-Federal Entity Contracts Under Federal Awards
Redlands Regular meeting of 07-16-24 125 of 2362
This content is from the eCFR and is authoritative but unofficial. Displaying title 2, up to date as of 5/06/2024. Title 2 was last amended 5/01/2024.
Title 2 —Grants and Agreements
Subtitle A —Office of Management and Budget Guidance for Grants and Agreements Chapter II —Office of Management and Budget Guidance
Part 200 —Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards Appendix II to Part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards In addition to other provisions required by the Federal agency or non-Federal entity, all contracts made by the non-Federal entity under the Federal award must contain provisions covering the following, as applicable. (A) Contracts for more than the simplified acquisition threshold, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate. (B) All contracts in excess of $10,000 must address termination for cause and for convenience by the non-Federal entity including the manner by which it will be effected and the basis for settlement. (C) Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60-1.3 must include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 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 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” (D) 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 non-Federal entities must include a provision for compliance with the DavisBacon Act (40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 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 CFR Part 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.
(E) Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708). Where applicable, all contracts awarded by the nonFederal 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 CFR Part 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. (F) Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of “funding agreement” under 37 CFR § 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 5/8/24, 12:31 PM eCFR :: Appendix II to Part 200, Title 2 -- Contract Provisions for Non-Federal Entity Contracts Under Federal Awards https://www.ecfr.gov/current/title-2/subtitle-A/chapter-II/part-200/appendix-Appendix II to Part 200 1/2 Redlands Regular meeting of 07-16-24 126 of 2362
[78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75888, Dec. 19, 2014; 85 FR 49577, Aug. 13, 2020] research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 CFR Part 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. (G) Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended— Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires 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). (H) Debarment and Suspension (Executive Orders 12549 and 12689)—A contract award (see 2 CFR 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR 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) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)—Contractors 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 nonFederal 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.
(J) See § 200.323.
(K) See § 200.216.
(L) See § 200.322.
5/8/24, 12:31 PM eCFR :: Appendix II to Part 200, Title 2 -- Contract Provisions for Non-Federal Entity Contracts Under Federal Awards https://www.ecfr.gov/current/title-2/subtitle-A/chapter-II/part-200/appendix-Appendix II to Part 200 2/2 Redlands Regular meeting of 07-16-24 127 of 2362
City Council Meeting H. 7.
DATE: 07/16/2024
TO: Honorable Mayor and City Council Members
SUBJECT: Approve the purchase of a Genset Generator from Cummins Inc. in the amount of $72,565.61 (Fire Chief Sessler)
MOTION(S):
If the City Council determines that staff’s recommendation is appropriate, the following motion is provided:
1. I move to approve the purchase of a Genset Generator from Cummins Inc.
RECOMMENDATION:
Staff recommends that the City Council approve the purchase of a C50D6C 50Kw Genset Generator from Cummins Inc. in the amount of $72,565.61 for the Fire Station No. 262 remodel project.
DISCUSSION:
The City of Redlands Fire Department provides services from four stations throughout the City with a minimum daily staffing of 19 personnel. Fire Station 262, located at 1690 Garden Street, on the south side of the city, was constructed as a single-family residence in 1965. The station has been in need of upgrade for many years to address space issues, and develop gender-neutral spaces, ADA-compliant access areas, and energy-efficient design. As backup generators play a critical role in the City's preparedness for power outages and other emergencies, Fire Station No. 262 currently utilizes a 20Kw unit that serves as a backup for outages at the station.
On June 7, 2022, the City Council approved an agreement with PBK-WLC for the professional architectural and engineering services for the Fire Station No. 262 upgrade project. On February 20, 2024, the City Council approved a public works contract with Elegant Construction inc. for the materials and renovation of Fire Station No. 262. The scope of the project included the construction of new Redlands Regular meeting of 07-16-24 128 of 2362
spaces and the remodeling of certain areas within the existing 3,683 SF one-story building and new additions consisting of a fitness room and six crew dormitories. Site improvements consist of CMU retaining walls, tube steel fencing, a crew parking area, and landscaping. With the current additions to the station and the age of the existing generator, it has been determined that the current 20Kw generator should be replaced with a larger 50Kw unit. Staff has determined that the C50D6C 50Kw Genset Generator would be adequate for the fire station and its new and potential future additions.
The purchase of the generator from Cummins Inc. is in accordance with the City's procurement policies regarding cooperative purchasing for products and services with Sourcewell. By utilizing Sourcewell cooperative purchasing, the City can benefit from previously posted bid packages that have been competitively bid and awarded. Agencies can review bid results from more than 50,000 government, education, and nonprofit organizations and draw from the terms and pricing for like units and vehicles. Staff is recommending that the City Council approve the Sourcewell cooperative purchase with Cummins, Inc., (Sourcewell Contract #092222). These contracts have been solicited and awarded in conformance with the City's procurement policies.
ALTERNATIVES:
City Council may elect not to approve the purchase, however, operations and the remodel of the Fire Station remodel project will be adversely affected.
STRATEGIC PLAN:
Priority B - Public Health and Safety
SUBMITTED BY:
Rich Sessler, Fire Chief
RECOMMENDED BY:
Charles M. Duggan Jr., City Manager
REVIEWED BY:
Danielle Garcia, Management Services/Finance Director
Christopher Boatman, Assistant City Manager
Tabitha Crocker, Facilities & Community Services Director Dana Abramovitz-Daniel, Procurement Manager
PREPARED BY:
Larry Alms, Senior Administrative Assistant
Redlands Regular meeting of 07-16-24 129 of 2362
Fiscal Impact
Fiscal Year: FY 2024-25
Amount: $72,566
Budgeted Y/N: Y
Discussion:
The total cost for the generator for the Fire Station 262 remodel is $72,565.61.
Funding is included in the Fire Department Capital Outlay Budget.
Attachments
A. Genset C50D6C 50Kw Quote
Sourcewell Contract #092222
Redlands Regular meeting of 07-16-24 130 of 2362
Project: Fire Station 262 Generator Sourcewell
Quotation: Q-320398-20240628-1242
June 28, 2024
Prepared by
Steve Lee
[email protected]
We are pleased to provide you this quotation based on your inquiry.
Item Description Qty
1 C50D6C, Diesel Genset, 60Hz, 50kW-Level 2 Enclosure 70.3 dba @23feet 1 U.S. EPA, Stationary Emergency Application
C50D6C, Diesel Genset, 60Hz, 50kW
Duty Rating - Standby Power (ESP)
Emission Certification, EPA, Tier 3, NSPS CI Stationary Emergency Listing - UL 2200
Warning - Low Coolant Level
NFPA 110 Type 10 Level 1 Capable
IBC Seismic Certification
Exciter/Regulator - Permanent Magnet Generator, 3 Phase Sensor Voltage - 120/240, 1 Phase, 3 Wire
Alternator - 60Hz, 8L, 240/120V, 1 Phase, 120C, 40C Ambient Aluminum Sound Attenuated Level 2 Enclosure, with Exhaust System Enclosure Color - Sandstone, Aluminum
Enclosure - Wind Load 180 MPH, ASCE7-10
Skidbase - Housing Ready
Fuel Water Separator
Control Mounting - Left Facing
PowerCommand 1.1 Controller
Gauge - Oil Pressure
Analog Meters - AC Output
Stop Switch - Emergency
Control Display Language - English
Load Connection - Single
Circuit Breaker, Location A, 70A - 250A, 3P, LSI, 600 Volts AC, 100%, UL Circuit Breaker or Terminal Box (Position B) - None
Circuit Breaker or Terminal Box (Position C) - None
Engine Governor - Electronic, Isochronous
Engine Starter - 12 Volt DC Motor
Engine Air Cleaner - Normal Duty
Battery Charging Alternator
Engine Cooling - Radiator, High Ambient Air Temperature, Ship Fitted Extension - Coolant Drain
Engine Coolant - 50% Antifreeze, 50% Water Mixture
Coolant Heater
Quotation: Q-320398-20240628-1242
Redlands Regular meeting of 07-16-24 131 of 2362
Project: Fire Station 262 Generator Sourcewell
Quotation: Q-320398-20240628-1242
Item Description Qty
Engine Oil
Genset Warranty - 2 Years Base
Literature - English
Packing - Skid, Poly Bag
Larger Battery Rack
Extension - Oil Drain
Sandstone Sound Level 2 Intake Baffle - Ship Loose
Enclosure Installation Kit (Arrow)
Annunciator-Panel Mounted With Enclosure (RS485) 1
Emergency Stop Switch Kit (K796-2) 1
Battery Charger-10Amp 1
Auxiliary Configurable Signal-Input (8)/Relay Output (8) 1 Vibration Isolators 1
2 25 Gallon Double Wall Day Tank with Pumps 1
3 200A Single Breaker Dual Purpose with Kirk Key Interlock Nema3R Docking Station 1 4 OTECC, OTEC Transfer Switch-Electronic Control: 300A 1 OTEC300, Transfer Switch, PowerCommand, 300 Amp
Listing - UL 1008/CSA Certification
IBC Seismic Certification
Application - Utility to Genset
Cabinet - Type 3R
Poles - 3 (Solid Neutral)
Frequency - 60 Hz
System - Single Phase, 2 or 3 Wire
Voltage - 240 Volts AC
Genset Starting Battery - 12V DC
PC40 Control
Auxiliary Relay - 12 Volts DC Coil - Installed Only
Aux Relay - Emergency Position - 12 Volts DC
Aux Relay - Normal Position - 12 Volts DC
Control Panel, Security Key Cover
Terminal Block - 30 Points
Transfer Switch Warranty - 2 Year Comprehensive
5 Start and Test NFPA 110 3 Trips Total 1
QUOTE : $ 67,266.73
*Tax is only an estimation and may or may not change upon actual delivery EXCEPTIONS AND CLARIFICATIONS:
This SOURCEWELL PRICING quote was based on verbal requests and this package may or may not fit the owner’s application. However, if unforeseen design changes are required, please notify us right away.
-
Quotation: Q-320398-20240628-1242
+ Redlands 92373 zip
tax rate: $5,298.88
= $72,565,61
Sourcewell Contract #09222-CMM
Redlands Regular meeting of 07-16-24 132 of 2362
Project: Fire Station 262 Generator Sourcewell
Quotation: Q-320398-20240628-1242
We know of no addendum, Offloading, Installation, Permits, Fuel, and Fuel for testing, NETA & 3rd party testing are to be provided by others.
-
This quote does not include a diesel particulate filter. If a DPF is required to meet emission standard a new quote will be provided.
-
Freight is included on this proposal to the first US destination. -
We are providing a level 2 enclosure, rated at 70.3 dba @23feet LEAD TIME:
1. Submittals 2-4 weeks from receipt of PO
2. Generator is 28 weeks from receipt of approved submittals and order release for production, subject to extension (s) beyond our control.
3. ATS is 7 weeks from receipt of approved submittals and order release for production, subject to extension (s) beyond our control.
4. Lead times may be extended due to supplier constraints and manufacturing restrictions.
Please feel free to contact me if you require any additional information; or if you have any further questions or concerns that I may be of assistance with.
Thank you for choosing Cummins.
Submitted by:
Richard Antunez, Outside Sales Representative
[email protected]
(909) 936-0024
SUBMITTALS. An order for the equipment covered by this quotation will be accepted on a hold for release basis. Your order will not be released and scheduled for production until written approval to proceed is received in our office. Such submittal approval shall constitute acceptance of the terms and conditions of this quotation unless the parties otherwise agree in writing.
THERE ARE ADDITIONAL CONTRACT TERMS AND CONDITIONS ATTACHED TO THIS QUOTATION, INCLUDING LIMITATIONS OF WARRANTIES AND LIABILITIES, WHICH ARE EXPRESSLY INCORPORATED HEREIN. BY ACCEPTING THIS QUOTATION,
CUSTOMER ACKNOWLEDGES THAT THE CONTRACT TERMS AND CONDITIONS HAVE BEEN READ, FULLY UNDERSTOOD AND ACCEPTED.
Authorized Signature Date
Company Name
Quotation: Q-320398-20240628-1242
Redlands Regular meeting of 07-16-24 133 of 2362
Project: Fire Station 262 Generator Sourcewell
Quotation: Q-320398-20240628-1242
Printed Name & Title
Purchase Order No
<Rest of the page is intentionally left blank>
Quotation: Q-320398-20240628-1242
Redlands Regular meeting of 07-16-24 134 of 2362
Project: Fire Station 262 Generator Sourcewell
Quotation: Q-320398-20240628-1242
TERMS AND CONDITIONS FOR SALE OF POWER GENERATION EQUIPMENT These Terms and Conditions for Sale of Power Generation Equipment, together with the quote (“Quote”), sales order (“Sales Order”), and/or credit application (“Credit Application”) on the front side or attached hereto, are hereinafter collectively referred to as this “Agreement” and shall constitute the entire agreement between the customer identified in the Quote (“Customer”) and Cummins Inc. (“Cummins”) and supersede any previous representation, statements, agreements or understanding (oral or written) between the parties with respect to the subject matter of this Agreement. Customer shall be deemed to have made an unqualified acceptance of these Terms and Conditions and it shall become a binding agreement between the parties on the earliest of the following to occur:
(i) Cummins’ receipt of Customer’s purchase order or purchase order number; (ii) Customer’s signing or acknowledgment of this Agreement; (iii) Cummins’ release of equipment to production pursuant to Customer’s oral or written instruction or direction; (iv) Customer’s payment of any amounts due to Cummins; or (v) any other event constituting acceptance under applicable law. No prior inconsistent course of dealing, course of performance, or usage of trade, if any, constitutes a waiver of, or serves to explain or interpret, the Terms and Conditions set forth in this Agreement. Electronic transactions between Customer and Cummins will be solely governed by the Terms and Conditions of this Agreement, and any terms and conditions on Customer’s website or other internet site will be null and void and of no legal effect on Cummins. In the event Customer delivers, references, incorporates by reference, or produces any purchase order or document, specifications, agreement (whether upstream or otherwise), or any other terms and conditions related thereto, then such specifications, terms, document, or other agreement: (i) shall be null and void and of no legal effect on Cummins, and (ii) this Agreement shall remain the governing terms of the transaction.
1. SCOPE. Cummins shall supply power generation equipment and any related parts, materials and/or services expressly identified in this Agreement (collectively, “Equipment”). No additional services, parts or materials are included in this Agreement unless mutually agreed upon by the parties in writing. A Sales Order for Equipment is accepted on a hold for release basis. The Sales Order will not be released and scheduled for production until written approval to proceed is received from Customer. A Quote is limited to the plans and specifications section specifically referenced in the Quote. No other sections shall apply. Additional requirements for administrative items may require additional costs. The Quote does not include off unit wiring, off unit plumbing, offloading, rigging, installation, exhaust insulation or fuel, unless otherwise stated and mutually agreed to in writing by the parties. Unless otherwise agreed by Cummins in writing, this Quote is valid for a maximum period of thirty (30) days from the date appearing on the first page of this Quote (“Quote Validation Period”). At the end of the Quote Validation Period, this Quote will automatically expire unless accepted by Customer prior to the end of the Quote Validation Period. The foregoing notwithstanding, in no event shall this Quote Validation Period be deemed or otherwise considered to be a firm offer period nor to establish an option contract, and Cummins hereby reserves its right to revoke or amend this Quote at any time prior to Customer’s acceptance.
2. SHIPPING; DELIVERY; DELAYS. Unless otherwise agreed in writing by the parties, Equipment shall be delivered FOB origin, freight prepaid to first destination. For consumer and mobile products, freight will be charged to Customer. Unless otherwise agreed to in writing by the parties, packaging method, shipping documents and manner, route and carrier and delivery shall be as Cummins deems appropriate. Cummins may deliver in installments. A reasonable storage fee, as determined in Cummins’ sole discretion, may be assessed if delivery of the Equipment is delayed, deferred, or refused by Customer. In the event Customer fails to take any or all shipments of Equipment ordered hereunder within thirty (30) days of the agreed upon delivery date, Cummins shall have the right, in its sole discretion to either (i) charge a minimum storage fee in the amount of one and one-half percent (1.5%) per month of the total quoted amount; or (ii) consider the Equipment abandoned and, subject to local laws, may (a) make the Equipment available for auction or sale to other customers or the public, or (b) otherwise use, destroy, or recycle the Equipment at Customer’s sole cost and expense.
The foregoing remedies shall be without prejudice to Cummins’ right to pursue other remedies available under the law, including without limitation, recovery of costs and/or losses incurred due to the storage, auction, sale, destruction, recycling, or otherwise of the Equipment. Offloading, handling, and placement of Equipment and crane services are the responsibility of Customer and not included unless otherwise stated. All shipments are made within normal business hours, Monday through Friday. Any delivery, shipping, installation, or performance dates indicated in this Agreement are estimated and not guaranteed. Further, delivery time is subject to confirmation at time of order and will be in effect after engineering drawings have been approved for production. Cummins shall use commercially reasonable efforts to meet estimated dates, but shall not be liable to customer or any third party for any delay in delivery, shipping, installation, or performance, however occasioned, including any delays in performance that result directly or indirectly from acts of Customer or any unforeseen event, circumstance, or condition beyond Cummins’ reasonable control including, but not limited to, acts of God, actions by any government authority, civil strife, fires, floods, windstorms, explosions, riots, natural disasters, embargos, wars, strikes or other labor disturbances, civil commotion, terrorism, sabotage, late delivery by Cummins' suppliers, fuel or other energy shortages, or an inability to obtain necessary labor, materials, supplies, equipment or manufacturing facilities. AS A RESULT OF COVID-19 RELATED EFFECTS OR INDUSTRY SUPPLY CHAIN DISRUPTIONS, TEMPORARY DELAYS IN DELIVERY, LABOR OR SERVICES FROM CUMMINS AND ITS SUB-SUPPLIERS OR SUBCONTRACTORS MAY OCCUR. AMONG OTHER FACTORS, CUMMINS’
DELIVERY OBLIGATIONS ARE SUBJECT TO CORRECT AND PUNCTUAL SUPPLY FROM OUR SUB-SUPPLIERS OR SUBCONTRACTORS, AND CUMMINS RESERVES THE RIGHT TO MAKE PARTIAL DELIVERIES OR MODIFY ITS LABOR OR SERVICE. WHILE CUMMINS SHALL
MAKE COMMERCIALLY REASONABLE EFFORTS TO MEET THE DELIVERY, SERVICE OR COMPLETION OBLIGATIONS SET FORTH HEREIN, SUCH DATES ARE SUBJECT TO CHANGE. IN THE EVENT DELIVERY, SHIPPING, INSTALLATION, OR PERFORMANCE IS DELAYED, HOWEVER OCCASSIONED, DUE TO EVENTS BEYOND CUMMINS’ REASONABLE CONTROL, THEN THE DATE OF DELIVERY,
SHIPPING, INSTALLATION, OR PERFORMANCE FOR THE EQUIPMENT OR SERVICES SHALL BE EQUITABLY EXTENDED FOR A PERIOD EQUAL TO THE TIME LOST, PLUS REASONABLE RAMP-UP.
3. PAYMENT TERMS; CREDIT; RETAINAGE. Unless otherwise agreed to by the parties in writing and subject to credit approval by Cummins, payments are due thirty (30) days from the date of the invoice. If Customer does not have approved credit with Cummins, Quotation: Q-320398-20240628-1242
Redlands Regular meeting of 07-16-24 135 of 2362
Project: Fire Station 262 Generator Sourcewell
Quotation: Q-320398-20240628-1242
as solely determined by Cummins, payments are due in advance or at the time of supply of the Equipment. If payment is not received when due, in addition to any rights Cummins may have at law, Cummins may charge Customer eighteen percent (18%) interest annually on late payments, or the maximum amount allowed by law. Customer agrees to pay Cummins’ costs and expenses (including reasonable attorneys’ fees) related to Cummins’ enforcement and collection of unpaid invoices, or any other enforcement of this Agreement by Cummins. Retainage is not acceptable nor binding, unless required by statute or accepted and confirmed in writing by Cummins prior to shipment. If Customer fails to make any payments to Cummins when due and payable, and such failure continues for more than sixty (60) days from the date of the invoice, or less if required by applicable law, then Cummins may, at Cummins’ sole discretion and without prejudice to any other rights or remedies, either (i) terminate this Agreement; or (ii) postpone delivery of any undelivered Equipment in Cummins’ possession and/or suspend its services until payment for unpaid invoices is received.
4. TAXES; EXEMPTIONS. Unless otherwise stated, the Quote excludes all applicable local, state and federal sales and/or use taxes, permits and licensing. Customer must provide a valid resale or exemption certificate prior to shipment of Equipment or applicable taxes will be added to the invoice.
5. TITLE; RISK OF LOSS. Unless otherwise agreed in writing by the parties, title and risk of loss for the Equipment shall pass to Customer upon delivery of the Equipment by Cummins to freight carrier or to Customer at pickup at Cummins’ facility.
6. INSPECTION AND ACCEPTANCE. Customer shall inspect the Equipment upon delivery, before offloading, for damage, defects, and shortage. Any and all claims which could have been discovered by such inspection shall be deemed absolutely and unconditionally waived unless noted by Customer on the bill of lading. Where Equipment is alleged to be non-conforming or defective, written notice of defect must be given to Cummins within three (3) days from date of delivery after which time Equipment shall be deemed accepted. Cummins shall have a commercially reasonable period of time in which to correct such non-conformity or defect. If nonconformity or defect is not eliminated to Customer’s reasonable satisfaction, Customer may reject the Equipment (but shall protect the Equipment until returned to Cummins) or allow Cummins another opportunity to undertake corrective action. In the event startup of the Equipment is included in the services, acceptance shall be deemed to have occurred upon successful startup.
7. LIEN; SECURITY AGREEMENT. Customer agrees that Cummins retains all statutory lien rights. To secure payment, Customer grants Cummins a Purchase Money Security Interest in the Equipment. If any portion of the balance is due to be paid following delivery, Customer agrees to execute and deliver such security agreement, financing statements, deed of trust and such other documents as Cummins may request from time to time in order to permit Cummins to obtain and maintain a perfected security interest in the Equipment; or in the alternative, Customer grants Cummins a power of attorney to execute and file all financing statements and other documents needed to perfect this security interest. Cummins may record this Agreement, bearing Customer's signature, or copy of this Agreement in lieu of a UCC-1, provided that it shall not constitute an admission by Cummins of the applicability or non-applicability of the UCC nor shall the failure to file this form or a UCC-1 in any way affect, alter, or invalidate any term, provision, obligation or liability under this Agreement. The security interest shall be superseded if Customer and Cummins enter into a separate security agreement for the Equipment. Prior to full payment of the balance due, Equipment will be kept at Customer’s location noted in this Agreement, will not be moved without prior notice to Cummins, and is subject to inspection by Cummins at all reasonable times.
05.01.2023
8. CANCELLATION; CHARGES. Orders placed with and accepted by Cummins may not be cancelled except with Cummins’ prior written consent. If Customer seeks to cancel all or a portion of an order placed pursuant to this Agreement, and Cummins accepts such cancellation in whole or in part, Customer shall be assessed cancellation charges as follows: (i) 10% of total order price if cancellation is received in Cummins’ office after Cummins has provided submittals and prior to releasing equipment to be manufactured; (ii) 25% of total order price if cancellation is received in Cummins’ office after receipt of submittal release to order, receipt of a purchase order for a generator already on order with the factory, or is asked to make any hardware changes to the equipment already on order with the factory; (iii) 50% of total order price if cancellation is received in Cummins’ office sixty (60) or fewer days before the scheduled shipping date on the order; or (iv) 100% of total order price if cancellation is received in Cummins’ office after the equipment has shipped from the manufacturing plant.
9. TERMINATION. Cummins may, at any time, terminate this Agreement for convenience upon sixty (60) days’ written notice to Customer. If the Customer defaults by (i) breaching any term of this Agreement, (ii) becoming insolvent or declared bankrupt, or (iii) making an assignment for the benefit of creditors, Cummins may, upon written notice to Customer, immediately terminate this Agreement. Upon such termination for default, Cummins shall immediately cease any further performance under this Agreement, without further obligation or liability to Customer, and Customer shall pay Cummins for any Equipment or services supplied under this Agreement, in accordance with the payment terms detailed in Section 3. If a notice of termination for default has been issued and is later determined, for any reason, that the Customer was not in default, the rights and obligations of the parties shall treat the termination as a termination for convenience.
10. MANUALS. Unless otherwise stated, electronic submittals and electronic operation and maintenance manuals will be provided, and print copies may be available upon Customer’s request at an additional cost.
11. TRAINING; START UP SERVICES; INSTALLATION. Startup services, load bank testing, and owner training are not provided unless otherwise stated. Site startup will be subject to the account being current and will be performed during regular Cummins business hours, Monday to Friday. Additional charges may be added for work requested to be done outside standard business hours, on weekends, or holidays. One visit is allowed unless specified otherwise in the Quote. A minimum of two-week prior notice is required to schedule site startups and will be subject to prior commitments and equipment and travel availability. A signed site check sheet confirming readiness will be required, and Cummins personnel may perform an installation audit prior to the startup being completed.
Any issues identified by the installation audit shall be corrected at the Customer's expense prior to the start-up. Portable load banks Quotation: Q-320398-20240628-1242
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for site test (if offered in the Quote) are equipped with only 100 feet of cable. Additional lengths may be arranged at an extra cost.
Cummins is not responsible for any labor or materials charged by others associated with start-up and installation of Equipment, unless previously agreed upon in writing. Supply of fuel for start-up and/or testing, fill-up of tank after start up, or change of oil is not included unless specified in the Quote. All installation/execution work at the site including, but not limited to: civil, mechanical, electrical, supply of wall thimbles, exhaust extension pipe, elbows, hangers, expansion joints, insulation and cladding materials, fuel/ oil/cooling system piping, air ducts, and louvers/dampers is not included unless specified in the Quote. When an enclosure or subbase fuel tank (or both) are supplied, the openings provided for power cable and fuel piping entries, commonly referred to as “stubups”, must be sealed at the site by others before commissioning. All applications, inspections and/or approvals by authorities are to be arranged by Customer.
12. MANUFACTURER’S WARRANTY. Equipment purchased hereunder is accompanied by an express written manufacturer’s warranty (“Warranty”) and, except as expressly provided in this Agreement, is the only warranty offered on the Equipment. A copy of the Warranty is available upon request. While this Agreement and the Warranty are intended to be read and applied in conjunction, where this Agreement and the Warranty conflict, the terms of the Warranty shall prevail.
13. WARRANTY PROCEDURE. Prior to the expiration of the Warranty, Customer must give notice of a warrantable failure to Cummins and deliver the defective Equipment to a Cummins location or other location authorized and designated by Cummins to make the repairs during regular business hours. Cummins shall not be liable for towing charges, maintenance items such as oil filters, belts, hoses, etc., communication expenses, meals, lodging, and incidental expenses incurred by Customer or employees of Customer, "downtime" expenses, overtime expenses, cargo damages and any business costs and losses of revenue resulting from a warrantable failure.
14. LIMITATIONS ON WARRANTIES.
THE REMEDIES PROVIDED IN THE WARRANTY AND THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES PROVIDED BY CUMMINS TO THE CUSTOMER UNDER THIS AGREEMENT. EXCEPT AS SET OUT IN THE
WARRANTY AND THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW, CUMMINS EXPRESSLY DISCLAIMS ALL
OTHER REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY STATUTORY OR COMMON LAW IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PURPOSE OR MERCHANTABILITY.
The limited warranty does not cover Equipment failures resulting from: (a) inappropriate use relative to designated power rating; (b) inappropriate use relative to application guidelines; (c) inappropriate use of an EPA-SE application generator set relative to EPA’s standards; (d) normal wear and tear; (e) improper and/or unauthorized installation; (f) negligence, accidents, or misuse; (g) lack of maintenance or unauthorized or improper repair; (h) noncompliance with any Cummins published guideline or policy; (i) use of improper or contaminated fuels, coolants, or lubricants; (j) improper storage before and after commissioning; (k) owner’s delay in making Equipment available after notification of potential Equipment problem; (l) replacement parts and accessories not authorized by Cummins; (m) use of battle short mode; (n) owner or operator abuse or neglect such as: operation without adequate coolant, fuel, or lubricants; over fueling; over speeding; lack of maintenance to lubricating, fueling, cooling, or air intake systems; late servicing and maintenance; improper storage, starting, warm-up, running, or shutdown practices, or for progressive damage resulting from a defective shutdown or warning device; or (o) damage to parts, fixtures, housings, attachments and accessory items that are not part of the generating set.
15. INDEMNITY. Customer shall indemnify, defend and hold harmless Cummins from and against any and all claims, actions, costs, expenses, damages and liabilities, including reasonable attorneys' fees, brought against or incurred by Cummins related to or arising out of this Agreement or the Equipment supplied under this Agreement (collectively, the “Claims”), where such Claims were caused or contributed to by, in whole or in part, the acts, omissions, fault or negligence of the Customer. Customer shall present any Claims covered by this indemnity to its insurance carrier unless Cummins directs that the defense will be handled by Cummins' legal counsel at Customer’s expense.
16. LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT, IN NO EVENT SHALL CUMMINS, ITS OFFICERS, DIRECTORS,
EMPLOYEES, OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY, WHETHER IN CONTRACT OR IN TORT OR
UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY OR NEGLIGENCE), FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, LIQUIDATED, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING
WITHOUT LIMITATION DOWNTIME, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, LOSS OF OPPORTUNITY, DAMAGE
TO GOODWILL, ENHANCED DAMAGES, MONETARY REQUESTS RELATING TO RECALL EXPENSES AND REPAIRS TO PROPERTY, AND/OR DAMAGES CAUSED BY DELAY), OR IN ANY WAY RELATED TO OR ARISING FROM CUMMINS’ SUPPLY
OF EQUIPMENT UNDER THIS AGREEMENT OR THE USE OR PERFORMANCE OF EQUIPMENT SUPPLIED UNDER THIS AGREEMENT. IN NO EVENT SHALL CUMMINS’ LIABILITY TO CUSTOMER OR ANY THIRD PARTY CLAIMING DIRECTLY THROUGH CUSTOMER OR ON CUSTOMER’S BEHALF UNDER THIS AGREEMENT EXCEED THE TOTAL COST OF EQUIPMENT SUPPLIED BY CUMMINS UNDER THIS AGREEMENT GIVING RISE TO THE CLAIM. BY ACCEPTANCE OF THIS AGREEMENT, CUSTOMER ACKNOWLEDGES CUSTOMER’S SOLE REMEDY AGAINST CUMMINS FOR ANY LOSS SHALL BE THE REMEDY PROVIDED HEREIN.
17. DEFAULT; REMEDIES. Customer shall be in breach and default if: (a) any of the payments or amounts due under this Agreement are not paid; (b) Customer fails to comply, perform, or makes any misrepresentation relating to any of the Customer's obligations or covenants under this Agreement; or (c) prior to full payment of the balance due, Customer ceases to do business, becomes insolvent, makes an assignment for the benefit of its creditors, appoints a receiver, commences an action for dissolution or liquidation, or Quotation: Q-320398-20240628-1242
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becomes subject to bankruptcy proceedings, or the Equipment is attached, levied upon, seized under legal process, is subjected to a lien or encumbrance, or transferred by operation of law or otherwise to anyone other than Cummins. Upon the occurrence of any event of Customer's default, Cummins, at its sole option and without notice, shall have the right to exercise concurrently or separately any one or all of the following remedies, which shall be cumulative and not alternative: (a) to declare all sums due, and to become due, under this Agreement immediately due and payable; (b) to commence legal proceedings, including collection actions and specific performance proceedings, to enforce performance by Customer of any and all provisions of this Agreement, and to be awarded damages or injunctive relief for the Customer's breach; (c) to require the Customer to deliver the Equipment to Cummins' branch specified on the face of this Agreement; (d) to exercise one or more of the rights and remedies available to a secured party under applicable law; and (e) to enter, without notice or liability or legal process, onto any premises where the Equipment may be located, using force permitted by law, and there to disconnect, remove and repossess the Equipment, the Customer having waived further right to possession after default. A waiver of any event of default by Cummins shall not be a waiver as to any other or subsequent default.
18. CUSTOMER REPRESENTATIONS; RELIANCE. Customer is responsible for obtaining, at its cost, permits, import licenses, and other consents in relation to the Equipment, and if requested by Cummins, Customer shall make these permits, licenses, and consents available to Cummins prior to shipment. Customer represents that it is familiar with the Equipment and understands operating instructions and agrees to perform routine maintenance services. Until the balance is paid in full, Customer shall care for the Equipment properly, maintain it in good operating condition, repair and appearance; and Customer shall use it safely and within its rated capacity and only for purpose it was designed. Even if Customer’s purchase of Equipment from Cummins under this Agreement is based, in whole or in part, on specifications, technical information, drawings, or written or verbal advice of any type from third parties, Customer has sole responsibility for the accuracy, correctness and completeness of such specifications, technical information, drawings, or advice. Cummins make no warranties or representations respecting the accuracy, correctness and completeness of any specifications, technical information, drawings, advice or other information provided by Cummins. Cummins makes no warranties or representations respecting the suitability, fitness for intended use, compatibility, integration or installation of any Equipment supplied under this Agreement. Customer has sole responsibility for intended use, for installation and design and performance where it is part of a power, propulsion, or other system. Limitation of warranties and remedies and all disclaimers apply to all such technical information, drawings, or advice. Customer acknowledges and agrees by accepting delivery of the Equipment that the Equipment purchased is of the size, design, capacity and manufacture selected by the Customer, and that Customer has relied solely on its own judgment in selecting the Equipment.
19. CONFIDENTIALITY. Each party shall keep confidential any information received from the other that is not generally known to the public and at the time of disclosure, would reasonably be understood by the receiving party to be proprietary or confidential, whether disclosed in oral, written, visual, electronic, or other form, and which the receiving party (or agents) learns in connection with this Agreement including, but not limited to: (a) business plans, strategies, sales, projects and analyses; (b) financial information, pricing, and fee structures; (c) business processes, methods, and models; (d) employee and supplier information; (e) specifications; and (f) the terms and conditions of this Agreement. Each party shall take necessary steps to ensure compliance with this provision by its employees and agents.
20. GOVERNING LAW AND JURISDICTION. This Agreement and all matters arising hereunder shall be governed by, interpreted, and construed in accordance with the laws of the State of Indiana without giving effect to any choice or conflict of law provision.
The parties agree that the federal and state courts of the State of Indiana shall have exclusive jurisdiction to settle any dispute or claim arising in connection with this Agreement or any related matter, and hereby waive any right to claim such forum would be inappropriate, including concepts of forum non conveniens.
21. INSURANCE. Upon Customer’s request, Cummins will provide to Customer a Certificate of Insurance evidencing Cummins’ relevant insurance coverage.
22. ASSIGNMENT. This Agreement shall be binding on the parties and their successors and assigns. Customer shall not assign this Agreement without the prior written consent of Cummins.
23. INTELLECTUAL PROPERTY. Any intellectual property rights created by either party, whether independently or jointly, in the course of the performance of this Agreement or otherwise related to Cummins pre-existing intellectual property or subject matter related thereto, shall be Cummins’ property. Customer agrees to assign, and does hereby assign, all right, title, and interest to such intellectual property to Cummins. Any Cummins pre-existing intellectual property shall remain Cummins’ property. Nothing in this Agreement shall be deemed to have given Customer a license or any other rights to use any of the intellectual property rights of Cummins.
24. PRICING. To the extent allowed by law, actual prices invoiced to Customer may vary from the price quoted at the time of order placement, as the same will be adjusted for prices prevailing on the date of shipment due to economic and market conditions at the time of shipment. Subject to local laws, Cummins reserves the right to adjust pricing on goods and services due to input and labor cost changes and/or other unforeseen circumstances beyond Cummins’ control.
25. MISCELLANEOUS. Cummins shall be an independent contractor under this Agreement. All notices under this Agreement shall be in writing and be delivered personally, mailed via first class certified or registered mail, or sent by a nationally recognized express courier service to the addresses set forth in this Agreement. No amendment of this Agreement shall be valid unless it is writing and signed by an authorized representative of the parties hereto. Failure of either party to require performance by the other party of any provision hereof shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver by a party of a breach of any of the provisions hereof constitute a waiver of any succeeding breach. Any provision of this Agreement that is invalid or unenforceable shall not affect the validity or enforceability of the remaining terms hereof. These terms are exclusive and constitute the entire agreement. Customer acknowledges that the provisions were freely negotiated and bargained for, and Quotation: Q-320398-20240628-1242
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Customer has agreed to purchase of the Equipment pursuant to these Terms and Conditions. Acceptance of this Agreement is expressly conditioned on Customer's assent to all such Terms and Conditions. Neither party has relied on any statement, representation, agreement, understanding, or promise made by the other except as expressly set out in this Agreement. In the event Cummins incurs additional charges hereunder due to the acts or omissions of Customer, the additional charges will be passed on to the Customer, as applicable. Headings or other subdivisions of this Agreement are inserted for convenience of reference and shall not limit or affect the legal construction of any provision hereof. The Parties’ rights, remedies, and obligations under this Agreement which by their nature are intended to continue beyond the termination or cancellation of this Agreement, including but not limited to the Section 16.
Limitation of Liability provision contained herein, shall survive the expiration, termination, or cancellation of this Agreement.
26. COMPLIANCE. Customer shall comply with all laws applicable to its activities under this Agreement, including, without limitation, any and all applicable federal, state, and local anti-bribery, environmental, health, and safety laws and regulations then in effect. Customer acknowledges that the Equipment, and any related technology that are sold or otherwise provided hereunder may be subject to export and other trade controls restricting the sale, export, re-export and/or transfer, directly or indirectly, of such Equipment or technology to certain countries or parties, including, but not limited to, licensing requirements under applicable laws and regulations of the United States, the United Kingdom and other jurisdictions. It is the intention of Cummins to comply with these laws, rules, and regulations. Any other provision of this Agreement to the contrary notwithstanding, Customer shall comply with all such applicable all laws relating to the cross-border movement of goods or technology, and all related orders in effect from time to time, and equivalent measures. Customer shall act as the importer of record with respect to the Equipment and shall not resell, export, re-export, distribute, transfer, or dispose of the Equipment or related technology, directly or indirectly, without first obtaining all necessary written permits, consents, and authorizations and completing such formalities as may be required under such laws, rules, and regulations. In addition, Cummins has in place policies not to distribute its products for use in certain countries based on applicable laws and regulations including but not limited to UN, U.S., UK, and European Union regulations. Customer undertakes to perform its obligations under this Agreement with due regard to these policies. Strict compliance with this provision and all laws of the territory pertaining to the importation, distribution, sales, promotion and marketing of the Equipment is a material consideration for Cummins entering into this Agreement with Customer and continuing this Agreement for its term. Customer represents and warrants that it has not and shall not, directly or through any intermediary, pay, give, promise to give or offer to give anything of value to a government official or representative, a political party official, a candidate for political office, an officer or employee of a public international organization or any other person, individual or entity at the suggestion, request or direction or for the benefit of any of the above-described persons and entities for the purposes of inducing such person to use his influence to assist Cummins in obtaining or retaining business or to benefit Cummins or any other person in any way, and will not otherwise breach any applicable laws relating to anti-bribery. Any failure by Customer to comply with these provisions will constitute a default giving Cummins the right to immediate termination of this Agreement and/or the right to elect not to recognize the warranties associated with the Equipment. Customer shall accept full responsibility for any and all civil or criminal liabilities and costs arising from any breaches of those laws and regulations and will defend, indemnify, and hold Cummins harmless from and against any and all fines, penalties, claim, damages, liabilities, judgments, costs, fees, and expenses incurred by Cummins or its affiliates as a result of Customer’s breach.
27. To the extent applicable, this contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. The employee notice requirements set forth in 29 CFR Part 471, Appendix A to Subpart A, are hereby incorporated by reference into this contract.
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Solicitation Number: RFP #092222
CONTRACT
This Contract is between Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 (Sourcewell) and Cummins Inc., 500 Jackson Street, Box 3005, Columbus, IN 47201 (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 Electrical Energy Power Generation Equipment with Related Parts, Supplies, and Services 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 22, 2026, 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 other 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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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 used, 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. All equipment purchased pursuant to this Contract is governed by the express written manufacturer’s warranty (the “Warranty”) and is the only warranty offered on the equipment. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE WARRANTY, THERE ARE NO
OTHER WARRANTIES, GUARANTEES, OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES PROVIDED IN THE WARRANTY SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY. Supplier further 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.
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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 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
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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; 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 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.
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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 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 or its authorized dealers, distributors, or resellers, as applicable. 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.
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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:
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, performance issues, 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.
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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 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 Contract 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
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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.
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 third party claims or causes of action, including attorneys’ fees incurred by Sourcewell or its Participating Entities, arising out of any negligent act or omission or willful misconduct 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. To the maximum extent permitted by law, in no event will Supplier be liable under this Contract for consequential, incidental, or special damages, including without limitation any lost opportunity damages or lost profits, or savings, loss of use, loss of data, or downtime, even if it has been advised of their possible existence. 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
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under this Contract and as it applies to all data created, collected, received, 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 the trademark(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, 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. 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.
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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.
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
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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.
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:
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$1,000,000 each occurrence Bodily Injury and Property Damage $1,000,000 Personal and Advertising Injury
$2,000,000 aggregate for products liability-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 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. Professional/Technical, Errors and Omissions, and/or Miscellaneous Professional Liability. During the term of this Contract, Supplier will maintain coverage for all claims the Supplier may become legally obligated to pay resulting from any actual or alleged negligent act, error, or omission related to Supplier’s professional services required under this Contract.
Minimum Limits:
$2,000,000 per claim or event
$2,000,000 – annual aggregate
6. 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.
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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 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.
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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.
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
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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.
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.
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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 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.
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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 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 cannot 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 a 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
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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.
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 Cummins Inc.
By: __________________________ By: __________________________ Jeremy Schwartz James Stalnaker
Title: Chief Procurement Officer Title: National Accounts Sales Director Date: ________________________ Date: ________________________
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Approved:
By: __________________________
Chad Coauette
Title: Executive Director/CEO
Date: ________________________
Redlands Regular meeting of 07-16-24 158 of 2362
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Bid Number: RFP 092222 Vendor Name: Cummins Inc.
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Bid Number: RFP 092222 Vendor Name: Cummins Inc.
Redlands Regular meeting of 07-16-24 169 of 2362
Bid Number: RFP 092222 Vendor Name: Cummins Inc.
Exceptions to Terms, Conditions, or Specifications Form Only those Proposer Exceptions to Terms, Conditions, or Specifications that have been accepted by Sourcewell have been incorporated into the contract text.
Documents
Ensure your submission document(s) conforms to the following:
1. Documents in PDF format are preferred. Documents in Word, Excel, or compatible formats may also be provided.
2. Documents should NOT have a security password, as Sourcewell may not be able to open the file. It is your sole responsibility to ensure that the uploaded document(s) are not either defective, corrupted or blank and that the documents can be opened and viewed by Sourcewell.
3. Sourcewell may reject any response where any document(s) cannot be opened and viewed by Sourcewell.
4. If you need to upload more than one (1) document for a single item, you should combine the documents into one zipped file. If the zipped file contains more than one (1) document, ensure each document is named, in relation to the submission format item responding to. For example, if responding to the Marketing Plan category save the document as "Marketing Plan." Pricing - Sourcewell final pricing submission.pdf - Tuesday September 20, 2022 11:21:31 Financial Strength and Stability - 2022-02-03_Cummins_Reports_Fourth_Quarter_and_Full_Year_2021 546 (1).pdf - Monday August 08, 2022 09:02:52
Marketing Plan/Samples - Sourcewell GPO Training.pdf - Tuesday September 20, 2022 13:04:49 WMBE/MBE/SBE or Related Certificates - Awards.PNG - Monday August 29, 2022 15:02:03 Warranty Information - Warranty - Commercial Generators.pdf - Monday August 29, 2022 14:49:07 Standard Transaction Document Samples - Sample - Sourcewell Project Tracking .xlsx - Thursday September 22, 2022 08:51:01 Upload Additional Document - PowerSuite and Power Hour - On line tech training and documentation.pdf - Thursday September 08, 2022 10:41:06
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Bid Number: RFP 092222 Vendor Name: Cummins Inc.
Redlands Regular meeting of 07-16-24 172 of 2362
City Council Meeting H. 8.
DATE: 07/16/2024
TO: Honorable Mayor and City Council Members
SUBJECT: Approve the Intergovernmental/Piggyback purchase of a Dell PowerStore Storage Area Network in the amount of $163,402 from Sidepath (Management Services/Finance Director Garcia)
MOTION(S):
If the City Council determines that staff’s recommendation is appropriate, the following motion is provided:
I move to approve the purchase of a Dell PowerStore Storage Area Network from Sidepath in the amount of $163,402.
RECOMMENDATION:
Staff recommends that the City Council approve the purchase of a Dell PowerStore Area Network from Sidepath in the amount of $163,402 to address our organization's growing need for additional storage capacity.
DISCUSSION:
As our organization continues to expand its digital footprint, the demand for storage capacity has increased significantly. Our current storage infrastructure is approaching its maximum capacity, resulting in performance degradation and potential risks of data loss. It is imperative that we invest in a scalable and reliable storage solution to meet current and future storage requirements.
The Dell PowerStore is renowned for its flexibility, performance, and scalability, making it an ideal solution for organizations experiencing rapid data growth.
This storage system utilizes cutting-edge technology to optimize storage efficiency and simplify management.
Redlands Regular meeting of 07-16-24 173 of 2362
Some additional benefits of Dell's PowerStore:
Scalability: The Dell PowerStore offers a scalable architecture that can grow with our organization's needs, ensuring we can easily expand our storage capacity without disruption.
Performance: With its high-performance capabilities, the Dell PowerStore will improve data access speeds and support faster processing of critical applications, thereby enhancing overall operational efficiency.
Reliability: Built-in data protection features and advanced security protocols ensure the integrity and confidentiality of our data, minimizing the risk of data loss or breaches.
Simplicity: The PowerStore platform integrates seamlessly into our existing IT environment, providing a unified storage management interface that simplifies administration and reduces maintenance efforts.
Staff followed the City’s procurement guidelines by examining and selecting an existing competitive Best Value RFP cooperative contract agreement with the National Association of State Procurement Officials (NASPO) ValuePoint. NASPO is a non-profit association made up of the directors of the central purchasing offices of the 50 states, District of Columbia and territories of the United States. By utilizing the NASPO ValuePoint cooperative purchasing, the City is able to benefit from the combined purchasing power of more than 50,000 government, education, and nonprofit organizations. The purpose of these cooperative contract programs enable the City to take advantage of preferred pricing and administrative efficiencies. Based on staff's assessment, the hardware and equipment proposed for purchase are recommended to be sourced through this cooperative purchasing agreement.
ALTERNATIVES:
City Council may choose to reject, modify or table the proposed purchase.
However, the purchase is recommended in order to ensure the City’s backup solution is more scalable.
STRATEGIC PLAN:
N/A
SUBMITTED BY:
Danielle Garcia, Management Services/Finance Director
RECOMMENDED BY:
Charles M. Duggan Jr., City Manager
REVIEWED BY:
Janice McConnell, Assistant City Manager
Dana Abramovitz-Daniel, Procurement Manager
Redlands Regular meeting of 07-16-24 174 of 2362
Dana Abramovitz-Daniel, Procurement Manager
Fiscal Impact
Fiscal Year: FY2024-25
Revenue Generating: N
Appropriation Required Y/N: N
Amount: 163,401.86
Budgeted Y/N: Y
Account No.: 604900
Discussion:
Funding for this purchase is included in the IT Division's budget for FY 2024-25.
Attachments
PowerStore Quote
Intergovernmental Request Form
NASPO Master Agreement
Participating Addendum
Redlands Regular meeting of 07-16-24 175 of 2362
Quotation
22892 Mill Creek Drive
Laguna Hills, CA 92653
Phone (949)748-8700; Fax (949)748-8706
www.sidepath.com
Date: 06/24/24
Quotation #: SIDQ48965-03
Valid Until: 07/19/24
Prepared By: Krunal Patel
Project ID: SIDPROJECT45873
Bill To: Ship To:
CIty of Redlands CIty of Redlands
Attn: Allen Fincher Attn: Allen Fincher
1270 W PARK AVE
Redlands, CA 92373
1270 W PARK AVE
Redlands, CA 92373
Phone: (909) 307-7302 Phone: (909) 307-7302
Email: [email protected] Email: [email protected] Qty Item Code Description Unit Price Ext. Price
NASPO# 23026 | State Addendum #7-23-70-55-01
PowerStore 500T
Hardware - Taxable
1 210-AXXJ PowerStore 500T Customer Rack
1 370-AFXQ 192GB Appliance DIMM 96GB Per Node
1 379-BEIM Thank you for choosing Dell
1 800-BBQV Informational Purposes Only
17 400-BGGP P1 25X2.5 NVME SED SSD 7.68TB
1 528-BTZK PowerStore Base SW
1 406-BBOO 25GBE OPTICAL 4 PORT CARD PAIR
4 407-BCGB 25GBE OPTICAL SFP PAIR
1 450-AKHM Dual 1450W (200-240V) HIGH Line Only Power Supply 1 343-BBMR BASE UNIT CONFIG KIT
1 379-BDPD ISG Product (info)
1 800-BBQV Informational Purposes Only
1 825-8624 Certified Deployment Partner T2
1 210-ATXO AppSync for PowerStore
1 528-BYHF AppSync Str Pk for PowerStore=CB
SubTotal $115,840.70
Support - Non Taxable
1 900-9997 On-Site Installation Declined
1 828-5722 ProSupport for AppSync Starter Pack Software Support Maintenance 3 Years
1 828-5766 ProSupport for AppSync Starter Pack Software Support Contract 3 Years
1 876-3336 Dell Hardware Limited Warranty
1 886-3375 ProSupport 4-Hour 7x24 Onsite Service 3 Years If you have any questions regarding this quotation, please contact:
Krunal Patel | (949) 396-3743 | [email protected]
This document is proprietary and confidential and is intended solely for the recipient.
No part of this document may be disclosed in any manner to a third party who is not affiliated with the recipient.
Sidepath - PowerStore 500T Page 1 of 2
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Qty Item Code Description Unit Price Ext. Price
1 886-3489 ProSupport 4-Hour 7x24 Technical Support and Assistance 3 Years
1 989-3439 Thank you choosing Dell ProSupport. For tech support, visit //www.dell.com/support or call 1-800- 945-3355
17 891-5158 ProSupport 4-Hour 7x24 Onsite Medium Capacity SSD Add On 3 Years
SubTotal $28,425.10
Professional Services and Installation - Non Taxable
1 SID-PS-PWRST-IMP-BAS Sidepath implementation service provides a base-level $9,000.00 $9,000.00 installation of one (1) new Powerstore storage appliance. This service includes integration with supported existing storage network switches and up to three (3) supported existing servers, along with the various features.
SubTotal $9,000.00
Payment Terms from Ship Date: Net 30
Pricing does not include Sales Tax or Shipping/Handling unless specifically stated in quote.
CA Shipments: CA Electronic Waste Recycling (eWaste) Fee will apply to monitors, laptops or tablets. Product Total $153,265.80 Taxes $10,136.06
Shipping $0.00
Grand Total $163,401.86
Unless you have a separate written agreement that specifically applies to this order, your order will be subject to and governed by Sidepath's Purchasing Terms and Conditions, which are located at: www.sidepath.com/terms. The Purchasing Terms and Conditions are incorporated herein by reference and available in hard copy upon your request.
Note: Sidepath will collect sales tax for orders shipped to these six states: AZ, CA, MA, NV, TX and WA. For orders shipped outside of these six states, it will be the customer's responsibility to report the tax as Sales & Use Tax.
Please contact me if I can be of further assistance.
THANK YOU FOR YOUR BUSINESS!
Accepted by:_________________________________ Title:_______________________________ Date:___________ PO:_______________________ If you have any questions regarding this quotation, please contact:
Krunal Patel | (949) 396-3743 | [email protected]
This document is proprietary and confidential and is intended solely for the recipient.
No part of this document may be disclosed in any manner to a third party who is not affiliated with the recipient.
Sidepath - PowerStore 500T Page 2 of 2
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Intergovernmental/ Piggyback
Contract Use Request (Attach to PR form)
The Department requests the purchase of the following item(s) from:
Original Contracting Entity:
Minnesota NASPO ValuePoint Master Agreement #23026
Contract Term:
Method of original contract award:
Competitive
Non-Competitive, based on: Preferred source Sole Single source Emergency Other:
Does the original contract contain language contemplating contract extension to additional users? Yes No
Description of Product/Service intend to acquire Unit Price Total Tax
Grand Total
Please attach: vendor agreement to sale to the City AND Entity agreement/contract language allowing Piggyback Redlands Regular meeting of 07-16-24 178 of 2362
Purchasing Agent Approval: Date:
City Manager Approval: ______________________________ Date: ____________________ Vendor:
Contact:
Address 1:
Address 2:
City/State/Zip:
Telephone:
Fax:
Web/E-Mail:
Delivery/Service Location
Contact:
Telephone:
Department:
Address 1:
Address 2:
Additional
Comments
rev. 10.31.18
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City Council Meeting H. 9.
DATE: 07/16/2024
TO: Honorable Mayor and City Council Members
SUBJECT: Approve an Intergovernmental/Piggyback purchase of a Rubrik Data Protection Solution services pack for $218,005 from ePlus (Management Services/Finance Director Garcia)
MOTION(S):
If the City Council determines that staff’s recommendation is appropriate, the following motion is provided:
I move to approve the purchase of Rubrik Data Protection Solution from ePlus for $218,005.
RECOMMENDATION:
Staff recommends that the City Council approve the purchase of Rubrik Data Protection Solution from ePlus for a term of 3 years, effective July 16, 2024, in the amount of $218,005 to enhance our organization’s data backup and recovery capabilities.
DISCUSSION:
Technology standards are critical in order for the City and the Police Department to maintain daily operations without service interruptions. Currently, the City and Police Department are both operating under separate backup and recovery solutions which adds a challenge to IT with supporting the systems.
An investment in Rubrik’s backup appliance will enhance our data backup and recovery capabilities. This will act as a single management interface to support all City system backup efforts. Rubrik is recognized for its comprehensive data management and protection features, including:
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Simplicity: Intuitive user interface and automated workflows streamline operations.
Scalability: Ability to scale with our growing data needs seamlessly.
Security: Robust encryption and compliance with industry standards ensure data integrity.
Efficiency: Faster backup and recovery times reduce downtime and operational disruptions.
Cloud Integration: Facilitates hybrid and multi-cloud strategies, enhancing flexibility.
The purchase of a Rubrik backup appliance represents a strategic investment in our organization’s data management infrastructure. It will enhance our ability to protect and recover critical data efficiently while positioning us for future growth and compliance with data protection regulations.
Staff followed the City’s procurement guidelines by examining and selecting an existing competitive Best Value RFP cooperative contract agreement with the National Association of State Procurement Officials (NASPO) ValuePoint.
NASPO is a non-profit association made up of the directors of the central purchasing offices of the 50 states, District of Columbia and territories of the United States. By utilizing the NASPO ValuePoint cooperative purchasing, the City is able to benefit from the combined purchasing power of more than 50,000 government, education, and nonprofit organizations. The purpose of these cooperative contract programs enable the City to take advantage of preferred pricing and administrative efficiencies. Based on staff's assessment, the hardware and equipment proposed for purchase are recommended to be sourced through this cooperative purchasing agreement.
ALTERNATIVES:
City Council may choose to reject, modify or table the proposed purchase.
However, the purchase is recommended in order to ensure the City’s backup solution is more scalable.
STRATEGIC PLAN:
N/A
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SUBMITTED BY:
Danielle Garcia, Management Services/Finance Director
RECOMMENDED BY:
Charles M. Duggan Jr., City Manager
REVIEWED BY:
Yvette M. Abich Garcia, City Attorney
Janice McConnell, Assistant City Manager
Dana Abramovitz-Daniel, Procurement Manager
Fiscal Impact
Fiscal Year: FY2024-25
Revenue Generating: No
Appropriation Required Y/N: No
Amount: 218,004.79
Budgeted Y/N: Yes
Account No.: 604900
Discussion:
Funding for this purchase is included in the IT Division's budget for FY 2024-25.
Attachments
Rubrik Quote
Intergovernmental Request Form
NASPO Master Agreement
Participating Addendum
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Customer Name: City of Redlands
Quote No: 23161475
Quote Name:
Quotation Date: 05/31/2024
Sales Support Contact: KRISTIN SPARHAWK
Sales Support Phone: 949-988-5468
Sales Support Email: [email protected]
M
Account Executive:
Account Executive Phone:
Account Executive Email:
Customer PO No:
Order No:
Expiration Date: 07/31/2024
External Notes:Contract Number: 7-17-70-40-05
NASPO Master Contract Number: AR2472
Term: 36 Months
Totals 215,951.48
Shipping:
Packing:
Sub Total (USD): 215,951.48
Est. Tax (USD): 2,053.31
Freight (USD): 0.00
Total (USD): 218,004.79
001 RS-BT-FE-RSCG-PEPP RUBRIK ECURITY CLOUD - GOVERNMENT,FOUNDATION EDITION,
PER USABLE BETB,PREMIUM SUPPORT, PREPAY
3240 47.80 154,872.00
002 RS-HW-SVC-PE-S3 RUBRIK SUPPORT FOR R6000S TIER 3 HARDWARE, PREPAY;
PREMIU M SUPPORT
36 295.91 10,652.76
003 RHA-6412S-01 RUBRIK R6412S APPLIANCE 144TB 96GB DUAL SFP+ SMC (taxable) 1 23,466.32 23,466.32 004 RS-UR-FE-MD-PE-PP RUBRIK ONE (1) MONTH OF RUBRIK FOUNDATION EDITION FOR M36 5 - PREMIUM SUPPORT PREPAY
13320 1.01 13,453.20
005 RS-UR-FE-MD-PE-PP RUBRIK ONE (1) MONTH OF RUBRIK FOUNDATION EDITION FOR M36 5 - PREMIUM SUPPORT PREPAY
10080 1.34 13,507.20
Line No. Part Number MFG Description/Line Notes QTY Unit Price Ext Price Redlands Regular meeting of 07-16-24 243 of 2362
All orders are governed by your organization's signed agreement with ePlus or applicable public sector contract; if there is no such agreement the Customer Terms and Conditions for Products and/or Services located at www.ePlus.com govern. No additional or contrary terms in a purchase order shall apply, and ePlus' performance shall not be deemed acceptance of any preprinted PO terms. Use of software, subscription services or other products resold by ePlus is subject to manufacturer/publisher end user agreements or subscription terms. Any periodic payment obligations for specific offerings, along with customer-incurred overages, consumption fees, add-ons, quantity adjustments and automatic renewals are non-cancelable for any reason except by public sector customers required by law to terminate due to non-appropriation of funds.
PLEASE NOTE: Recent supply chain disruption and tariffs on certain imports are causing price increases for many IT products, with little or no notice, and beyond ePlus' control. As a result, this quote is subject to change without notice, even before the expiration date reflected above. Related manufacturer policy changes may result in orders being non-cancelable and products non-returnable except in accordance with the manufacturer warranty. Please confirm pricing and other restrictions prior to order placement. Unless freight amount is indicated, or is zero, freight will be added to the invoice. Unless Bill-To company is exempt from Sales Tax, it will be added to the invoice. Recognizing that the global pandemic has disrupted operations for many organizations, ePlus will ship products for delivery in accordance with customer's written ship-to instructions and products will be deemed delivered notwithstanding any failure of customer personnel to sign for receipt due to facility closing or otherwise.
Customer Acceptance Bill To Ship To
Signature: ____________________________________
Name: _______________________________________
Title: _________________________________________
Date: ________________________________________
Customer PO #: _______________________________
City of Redlands City of Redlands
UNITED STATES
©2024 ePlus inc. All rights reserved.
*NGDC P2 4.1.1.6
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Intergovernmental/ Piggyback
Contract Use Request (Attach to PR form)
The Department requests the purchase of the following item(s) from:
Original Contracting Entity:
Contract Term:
Method of original contract award:
Competitive
Non-Competitive, based on: Preferred source Sole Single source Emergency Other:
Does the original contract contain language contemplating contract extension to additional users? Yes No
Description of Product/Service intend to acquire Unit Price Total Tax
Grand Total
Please attach: vendor agreement to sale to the City AND Entity agreement/contract language allowing Piggyback Redlands Regular meeting of 07-16-24 245 of 2362
Purchasing Agent Approval: Date:
City Manager Approval: ______________________________ Date: ____________________ Vendor:
Contact:
Address 1:
Address 2:
City/State/Zip:
Telephone:
Fax:
Web/E-Mail:
Delivery/Service Location
Contact:
Telephone:
Department:
Address 1:
Address 2:
Additional
Comments
rev. 10.31.18
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This document includes salient or non-standard provisions extracted from NASPO/ValuePoint Model Contract for Cloud Services.
February 17, 2016.
Attachment A: NASPO ValuePoint Master Agreement Terms and Conditions
1. Master Agreement Order of Precedence
a. Any Order placed under this Master Agreement shall consist of the following documents:
(1) A Participating Entity’s Participating Addendum1(“PA”); (2) NASPO ValuePoint Master Agreement Terms & Conditions, including the applicable Exhibits2 to the Master Agreement;
(3) The Solicitation;
(4) Contractor’s response to the Solicitation, as revised (if permitted) and accepted by the Lead State; and
(5) A Service Level Agreement issued against the Participating Addendum. b. These documents shall be read to be consistent and complementary. Any conflict among these documents shall be resolved by giving priority to these documents in the order listed above. Contractor terms and conditions that apply to this Master Agreement are only those that are expressly accepted by the Lead State and must be in writing and attached to this Master Agreement as an Exhibit or Attachment.
2. Definitions - Unless otherwise provided in this Master Agreement, capitalized terms will have the meanings given to those terms in this Section.
Confidential Information means any and all information of any form that is marked as confidential or would by its nature be deemed confidential obtained by Contractor or its employees or agents in the performance of this Master Agreement, including, but not necessarily limited to (1) any Purchasing Entity’s records, (2) personnel records, and (3) information concerning individuals, is confidential information of Purchasing Entity.
Contractor means the person or entity providing solutions under the terms and conditions set forth in this Master Agreement. Contractor also includes its employees, subcontractors, agents and affiliates who are providing the services agreed to under the 1 A Sample Participating Addendum will be published after the contracts have been awarded. 2 The Exhibits comprise the terms and conditions for the service models: PaaS, IaaS, and PaaS.
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This document includes salient or non-standard provisions extracted from NASPO/ValuePoint Model Contract for Cloud Services.
February 17, 2016.
Master Agreement.
Data means all information, whether in oral or written (including electronic) form, created by or in any way originating with a Participating Entity or Purchasing Entity, and all information that is the output of any computer processing, or other electronic manipulation, of any information that was created by or in any way originating with a Participating Entity or Purchasing Entity, in the course of using and configuring the Services provided under this Agreement.
Data Breach means any actual or reasonably suspected non-authorized access to or acquisition of computerized Non-Public Data or Personal Data that compromises the security, confidentiality, or integrity of the Non-Public Data or Personal Data, or the ability of Purchasing Entity to access the Non-Public Data or Personal Data.
Data Categorization means the process of risk assessment of Data. See also “High Risk Data”, “Moderate Risk Data” and “Low Risk Data”.
Disabling Code means computer instructions or programs, subroutines, code, instructions, data or functions, (including but not limited to viruses, worms, date bombs or time bombs), including but not limited to other programs, data storage, computer libraries and programs that self-replicate without manual intervention, instructions programmed to activate at a predetermined time or upon a specified event, and/or programs purporting to do a meaningful function but designed for a different function, that alter, destroy, inhibit, damage, interrupt, interfere with or hinder the operation of the Purchasing Entity’s’ software, applications and/or its end users processing environment, the system in which it resides, or any other software or data on such system or any other system with which it is capable of communicating.
Fulfillment Partner means a third-party contractor qualified and authorized by Contractor, and approved by the Participating State under a Participating Addendum, who may, to the extent authorized by Contractor, fulfill any of the requirements of this Master Agreement including but not limited to providing Services under this Master Agreement and billing Customers directly for such Services. Contractor may, upon written notice to the Participating State, add or delete authorized Fulfillment Partners as necessary at any time during the contract term. Fulfillment Partner has no authority to amend this Master Agreement or to bind Contractor to any additional terms and conditions.
High Risk Data is as defined in FIPS PUB 199, Standards for Security Categorization of Federal Information and Information Systems (“High Impact Data”).
Infrastructure as a Service (IaaS) as used in this Master Agreement is defined the capability provided to the consumer to provision processing, storage, networks, and other fundamental computing resources where the consumer is able to deploy and run Redlands Regular meeting of 07-16-24 249 of 2362
This document includes salient or non-standard provisions extracted from NASPO/ValuePoint Model Contract for Cloud Services.
February 17, 2016.
arbitrary software, which can include operating systems and applications. The consumer does not manage or control the underlying cloud infrastructure but has control over operating systems, storage, deployed applications; and possibly limited control of select networking components (e.g., host firewalls).
Intellectual Property means any and all patents, copyrights, service marks, trademarks, trade secrets, trade names, patentable inventions, or other similar proprietary rights, in tangible or intangible form, and all rights, title, and interest therein.
Lead State means the State centrally administering the solicitation and any resulting Master Agreement(s).
Low Risk Data is as defined in FIPS PUB 199, Standards for Security Categorization of Federal Information and Information Systems (“Low Impact Data”).
Master Agreement means this agreement executed by and between the Lead State, acting on behalf of NASPO ValuePoint, and the Contractor, as now or hereafter amended.
Moderate Risk Data is as defined in FIPS PUB 199, Standards for Security Categorization of Federal Information and Information Systems (“Moderate Impact Data”).
NASPO ValuePoint is the NASPO ValuePoint Cooperative Purchasing Program, facilitated by the NASPO Cooperative Purchasing Organization LLC, a 501(c)(3) limited liability company (doing business as NASPO ValuePoint) is a subsidiary organization the National Association of State Procurement Officials (NASPO), the sole member of NASPO ValuePoint. The NASPO ValuePoint Cooperative Purchasing Organization facilitates administration of the cooperative group contracting consortium of state chief procurement officials for the benefit of state departments, institutions, agencies, and political subdivisions and other eligible entities (i.e., colleges, school districts, counties, cities, some nonprofit organizations, etc.) for all states and the District of Columbia. The NASPO ValuePoint Cooperative Development Team is identified in the Master Agreement as the recipient of reports and may be performing contract administration functions as assigned by the Lead State.
Non-Public Data means High Risk Data and Moderate Risk Data that is not subject to distribution to the public as public information. It is deemed to be sensitive and confidential by the Purchasing Entity because it contains information that is exempt by statute, ordinance or administrative rule from access by the general public as public information.
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This document includes salient or non-standard provisions extracted from NASPO/ValuePoint Model Contract for Cloud Services.
February 17, 2016.
specific to the Participating Entity, other terms and conditions.
Participating Entity means a state, or other legal entity, properly authorized to enter into a Participating Addendum.
Participating State means a state, the District of Columbia, or one of the territories of the United States that is listed in the Request for Proposal as intending to participate.
Upon execution of the Participating Addendum, a Participating State becomes a Participating Entity.
Personal Data means data alone or in combination that includes information relating to an individual that identifies the individual by name, identifying number, mark or description can be readily associated with a particular individual and which is not a public record. Personal Information may include the following personally identifiable information (PII): government-issued identification numbers (e.g., Social Security, driver’s license, passport); financial account information, including account number, credit or debit card numbers; or Protected Health Information (PHI) relating to a person.
Platform as a Service (PaaS) as used in this Master Agreement is defined as the capability provided to the consumer to deploy onto the cloud infrastructure consumercreated or -acquired applications created using programming languages and tools supported by the provider. This capability does not necessarily preclude the use of compatible programming languages, libraries, services, and tools from other sources.
The consumer does not manage or control the underlying cloud infrastructure including network, servers, operating systems, or storage, but has control over the deployed applications and possibly application hosting environment configurations.
Product means any deliverable under this Master Agreement, including Services, software, and any incidental tangible goods.
Protected Health Information (PHI) means individually identifiable health information transmitted by electronic media, maintained in electronic media, or transmitted or maintained in any other form or medium. PHI excludes education records covered by the Family Educational Rights and Privacy Act (FERPA), as amended, 20 U.S.C. 1232g, records described at 20 U.S.C. 1232g(a)(4)(B)(iv) and employment records held by a covered entity in its role as employer. PHI may also include information that is a subset of health information, including demographic information collected from an individual, and (1) is created or received by a health care provider, health plan, employer or health care clearinghouse; and (2) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual; and (a) that identifies the individual; or (b) with respect to which there is a reasonable basis to believe the information can be used to identify the individual.
Redlands Regular meeting of 07-16-24 251 of 2362
This document includes salient or non-standard provisions extracted from NASPO/ValuePoint Model Contract for Cloud Services.
February 17, 2016.
Purchasing Entity means a state, city, county, district, other political subdivision of a State, and a nonprofit organization under the laws of some states if authorized by a Participating Addendum, who issues a Purchase Order against the Master Agreement and becomes financially committed to the purchase.
Services mean any of the specifications described in the Scope of Services that are supplied or created by the Contractor pursuant to this Master Agreement.
Security Incident means the possible or actual unauthorized access to a Purchasing Entity’s Non-Public Data and Personal Data the Contractor believes could reasonably result in the use, disclosure or theft of a Purchasing Entity’s Non-Public Data within the possession or control of the Contractor. A Security Incident also includes a major security breach to the Contractor’s system, regardless if Contractor is aware of unauthorized access to a Purchasing Entity’s Non-Public Data. A Security Incident may or may not turn into a Data Breach.
Service Level Agreement (SLA) means a written agreement between both the Purchasing Entity and the Contractor that is subject to the terms and conditions in this Master Agreement and relevant Participating Addendum unless otherwise expressly agreed in writing between the Purchasing Entity and the Contractor. SLAs should include: (1) the technical service level performance promises, (i.e. metrics for performance and intervals for measure), (2) description of service quality, (3) identification of roles and responsibilities, (4) remedies, such as credits, and (5) an explanation of how remedies or credits are calculated and issued.
Software as a Service (SaaS) as used in this Master Agreement is defined as the capability provided to the consumer to use the Contractor’s applications running on a Contractor’s infrastructure (commonly referred to as ‘cloud infrastructure). The applications are accessible from various client devices through a thin client interface such as a Web browser (e.g., Web-based email), or a program interface. The consumer does not manage or control the underlying cloud infrastructure including network, servers, operating systems, storage, or even individual application capabilities, with the possible exception of limited user-specific application configuration settings.
Solicitation means the documents used by the State of Utah, as the Lead State, to obtain Contractor’s Proposal.
Statement of Work means a written statement in a solicitation document or contract that describes the Purchasing Entity’s service needs and expectations.
6. Discount Guarantee Period: All discounts must be guaranteed for the entire term of the Master Agreement. Participating Entities and Purchasing Entities shall receive the immediate benefit of price or rate reduction of the services provided under this Master Agreement. A price or rate reduction will apply automatically to the Master Agreement Redlands Regular meeting of 07-16-24 252 of 2362
This document includes salient or non-standard provisions extracted from NASPO/ValuePoint Model Contract for Cloud Services.
February 17, 2016.
and an amendment is not necessary.
8. Confidentiality, Non-Disclosure, and Injunctive Relief a. Confidentiality. Contractor acknowledges that it and its employees or agents may, in the course of providing a Product under this Master Agreement, be exposed to or acquire information that is confidential to Purchasing Entity’s or Purchasing Entity’s clients. Any reports or other documents or items (including software) that result from the use of the Confidential Information by Contractor shall be treated in the same manner as the Confidential Information. Confidential Information does not include information that (1) is or becomes (other than by disclosure by Contractor) publicly known; (2) is furnished by Purchasing Entity to others without restrictions similar to those imposed by this Master Agreement; (3) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Master Agreement; (4) is obtained from a source other than Purchasing Entity without the obligation of confidentiality, (5) is disclosed with the written consent of Purchasing Entity or; (6) is independently developed by employees, agents or subcontractors of Contractor who can be shown to have had no access to the Confidential Information. b. Non-Disclosure. Contractor shall hold Confidential Information in confidence, using at least the industry standard of confidentiality, and shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties or use Confidential Information for any purposes whatsoever other than what is necessary to the performance of Orders placed under this Master Agreement. Contractor shall advise each of its employees and agents of their obligations to keep Confidential Information confidential. Contractor shall use commercially reasonable efforts to assist Purchasing Entity in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contractor shall advise Purchasing Entity, applicable Participating Entity, and the Lead State immediately if Contractor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Master Agreement, and Contractor shall at its expense cooperate with Purchasing Entity in seeking injunctive or other equitable relief in the name of Purchasing Entity or Contractor against any such person. Except as directed by Purchasing Entity, Contractor will not at any time during or after the term of this Master Agreement disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Master Agreement, and that upon termination of this Master Agreement or at Purchasing Entity’s request, Contractor shall turn over to Purchasing Entity all documents, papers, and other matter in Contractor's possession that embody Confidential Information. Notwithstanding the foregoing, Contractor may keep one copy of such Confidential Information necessary for quality assurance, audits and evidence of the performance of this Master Agreement. c. Injunctive Relief. Contractor acknowledges that breach of this section, including disclosure of any Confidential Information, will cause irreparable injury to Purchasing Redlands Regular meeting of 07-16-24 253 of 2362
This document includes salient or non-standard provisions extracted from NASPO/ValuePoint Model Contract for Cloud Services.
February 17, 2016.
Entity that is inadequately compensable in damages. Accordingly, Purchasing Entity may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available.
Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Purchasing Entity and are reasonable in scope and content.
d. Purchasing Entity Law. These provisions shall be applicable only to extent they are not in conflict with the applicable public disclosure laws of any Purchasing Entity.
9. Right to Publish: Throughout the duration of this Master Agreement, Contractor must secure prior approval from the Lead State or Participating Entity for the release of any information that pertains to the potential work or activities covered by the Master Agreement , including but not limited to reference to or use of the Lead State or a Participating Entity’s name, Great Seal of the State, Coat of Arms, any Agency or other subunits of the State government, or any State official or employee, for commercial promotion which is strictly prohibited. News releases or release of broadcast e-mails pertaining to this Master Agreement or Participating Addendum shall not be made without prior written approval of the Lead State or a Participating Entity.
The Contractor shall not make any representations of NASPO ValuePoint’s opinion or position as to the quality or effectiveness of the services that are the subject of this Master Agreement without prior written consent. Failure to adhere to this requirement may result in termination of the Master Agreement for cause.
11. Changes in Contractor Representation: The Contractor must notify the Lead State of changes in the Contractor’s key administrative personnel, in writing within 10 calendar days of the change. The Lead State reserves the right to approve changes in key personnel, as identified in the Contractor’s proposal. The Contractor agrees to propose replacement key personnel having substantially equal or better education, training, and experience as was possessed by the key person proposed and evaluated in the Contractor’s proposal.
13. Indemnification and Limitation of Liability
a. The Contractor shall defend, indemnify and hold harmless NASPO, NASPO ValuePoint, the Lead State, Participating Entities, and Purchasing Entities, along with their officers, agents, and employees as well as any person or entity for which they may be liable, from and against claims, damages or causes of action including reasonable attorneys’ fees and related costs for any death, bodily injury, or damage to real or tangible property arising directly or indirectly from the negligent or wrongful act(s), error(s), or omission(s) of the Contractor, its employees or subcontractors or volunteers, at any tier, relating to the performance under the Master Agreement. b. Indemnification – Intellectual Property. The Contractor shall defend, indemnify and hold harmless NASPO, NASPO ValuePoint, the Lead State, Participating Entities, Purchasing Entities, along with their officers, agents, and employees as well as any Redlands Regular meeting of 07-16-24 254 of 2362
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person or entity for which they may be liable ("Indemnified Party"), from and against claims, damages or causes of action including reasonable attorneys’ fees and related costs arising out of the claim that the Product or its use, infringes Intellectual Property rights ("Intellectual Property Claim") of another person or entity. (1) The Contractor’s obligations under this section shall not extend to:
a. Any use of the Services provided hereunder not contemplated in the product documentation.
b. Any use of the Services provided hereunder in combination with other products not contemplated hereunder or in the documentation, any use of modification of the Services provided hereunder except as permitted by this Agreement.
(2) The Indemnified Party shall notify the Contractor within a reasonable time after receiving notice of an Intellectual Property Claim. Even if the Indemnified Party fails to provide reasonable notice, the Contractor shall not be relieved from its obligations unless the Contractor can demonstrate that it was prejudiced in defending the Intellectual Property Claim resulting in increased expenses or loss to the Contractor and then only to the extent of the prejudice or expenses. If the Contractor promptly and reasonably investigates and defends any Intellectual Property Claim, it shall have control over the defense and settlement of it. However, the Indemnified Party must consent in writing for any money damages or obligations for which it may be responsible. The Indemnified Party shall furnish, at the Contractor’s reasonable request and expense, information and assistance necessary for such defense. If the Contractor fails to vigorously pursue the defense or settlement of the Intellectual Property Claim, the Indemnified Party may assume the defense or settlement of it and the Contractor shall be liable for all costs and expenses, including reasonable attorneys’ fees and related costs, incurred by the Indemnified Party in the pursuit of the Intellectual Property Claim. Unless otherwise agreed in writing, this section is not subject to any limitations of liability in this Master Agreement or in any other document executed in conjunction with this Master Agreement.
b. Except as otherwise set forth in the Indemnification Paragraphs above, the limit of liability shall be as follows:
i. Contractor’s liability for any claim, loss or liability arising out of, or connected with the Services provided, and whether based upon default, or other liability such as breach of contract, warranty, negligence, misrepresentation or otherwise, shall in no case exceed direct damages in: (i) an amount equal to two (2) times the charges specified in the Purchase Order for the Services, or parts thereof forming the basis of the Purchasing Entity’s claim, (said amount not to exceed a total of twelve (12) months charges payable under the applicable Redlands Regular meeting of 07-16-24 255 of 2362
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Purchase Order) or (ii) two million dollars ($2,000,000), whichever is greater. ii. The Purchasing Entity may retain such monies from any amount due Contractor as may be necessary to satisfy any claim for damages, costs and the like asserted against the Purchasing Entity unless Contractor at the time of the presentation of claim shall demonstrate to the Purchasing Entity’s satisfaction that sufficient monies are set aside by the Contractor in the form of a bond or through insurance coverage to cover associated damages and other costs. iii. Notwithstanding the above, neither the Contractor nor the Purchasing Entity shall be liable for any consequential, indirect or special damages of any kind which may result directly or indirectly from such performance, including, without limitation, damages resulting from loss of use or loss of profit by the Purchasing Entity, the Contractor, or by others.
iv. The limitations of liability in Section 43 will not apply to claims for bodily injury or death as set forth in Section 13, and Section 30 when made applicable under a specific purchase order.
16. Insurance
a. Unless otherwise agreed in a Participating Addendum, Contractor shall, during the term of this Master Agreement, maintain in full force and effect, the insurance described in this section. Contractor shall acquire such insurance from an insurance carrier or carriers licensed to conduct business in each Participating Entity’s state and having a rating of A-, Class VII or better, in the most recently published edition of Best’s Reports.
Failure to buy and maintain the required insurance may result in this Master Agreement’s termination or, at a Participating Entity’s option, result in termination of its Participating Addendum.
b. Coverage shall be written on an occurrence basis. The minimum acceptable limits shall be as indicated below, with no deductible for each of the following categories:
(1) Commercial General Liability covering premises operations, independent contractors, products and completed operations, blanket contractual liability, personal injury (including death), advertising liability, and property damage, with a limit of not less than $1 million per occurrence/$3 million general aggregate;
(2) CLOUD MINIMUM INSURANCE COVERAGE:
Level of
Risk
Data Breach and Privacy/Cyber
Liability including Technology
Errors and Omissions
Minimum Insurance Coverage
Crime Insurance
Minimum Insurance
Coverage
Low $2,000,000 $2,000,000
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Moderate $5,000,000 $5,000,000
High $10,000,000 $10,000,000
(3) Contractor must comply with any applicable State Workers Compensation or Employers Liability Insurance requirements.
(4) Professional Liability. As applicable, Professional Liability Insurance Policy in the minimum amount of $1,000,000 per occurrence and $1,000,000 in the aggregate, written on an occurrence form that provides coverage for its work undertaken pursuant to each Participating Addendum.
c. Contractor shall pay premiums on all insurance policies. Such policies shall also reference this Master Agreement and shall have a condition that they not be revoked by the insurer until thirty (30) calendar days after notice of intended revocation thereof shall have been given to Purchasing Entity and Participating Entity by the Contractor. d. Prior to commencement of performance, Contractor shall provide to the Lead State a written endorsement to the Contractor’s general liability insurance policy or other documentary evidence acceptable to the Lead State that (1) names the Participating States identified in the Request for Proposal as additional insureds, (2) provides that no material alteration, cancellation, non-renewal, or expiration of the coverage contained in such policy shall have effect unless the named Participating State has been given at least thirty (30) days prior written notice, and (3) provides that the Contractor’s liability insurance policy shall be primary, with any liability insurance of any Participating State as secondary and noncontributory. Unless otherwise agreed in any Participating Addendum, the Participating Entity’s rights and Contractor’s obligations are the same as those specified in the first sentence of this subsection. Before performance of any Purchase Order issued after execution of a Participating Addendum authorizing it, the Contractor shall provide to a Purchasing Entity or Participating Entity who requests it the same information described in this subsection.
e. Contractor shall furnish to the Lead State, Participating Entity, and, on request, the Purchasing Entity copies of certificates of all required insurance within thirty (30) calendar days of the execution of this Master Agreement, the execution of a Participating Addendum, or the Purchase Order’s effective date and prior to performing any work. The insurance certificate shall provide the following information: the name and address of the insured; name, address, telephone number and signature of the authorized agent; name of the insurance company (authorized to operate in all states); a description of coverage in detailed standard terminology (including policy period, policy number, limits of liability, exclusions and endorsements); and an acknowledgment of the requirement for notice of cancellation. Copies of renewal certificates of all required insurance shall be furnished within thirty (30) days after any renewal date.
These certificates of insurance must expressly indicate compliance with each and every insurance requirement specified in this section. Failure to provide evidence of coverage Redlands Regular meeting of 07-16-24 257 of 2362
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may, at sole option of the Lead State, or any Participating Entity, result in this Master Agreement’s termination or the termination of any Participating Addendum. f. Coverage and limits shall not limit Contractor’s liability and obligations under this Master Agreement, any Participating Addendum, or any Purchase Order.
17. Laws and Regulations: Any and all Services offered and furnished shall comply fully with all applicable Federal and State laws and regulations.
The federal and state laws, regulations, policies, standards, and guidelines that Contractors doing business with the Participating Entities must be aware of, include, but not limited to: Criminal Justice Information Services (CJIS) Security Policy; Federal Educational Rights and Privacy Act (FERPA); Federal Information Security Management Act (FISMA); National Institute of Technology Standards; Gramm-LeachBliley Act (GLB) Act; Health Insurance Portability and Accountability Act (HIPAA); Health Information Technology for Economic and Clinical Health Act (HITECH); IRS Publication 1075; Payment Card Industry Data Security Standard (PCI DSS); SarbanesOxley Act (SOX); Electronic Communications Privacy Act, Stored Communications Act and the PATRIOT Act. The list is intentionally United States-centric, and is not intended to be all-inclusive. Further, since laws, regulations, requirements and industry guidelines change, consulting definitive sources to assure a clear understanding of compliance requirements is critical. Many State Entities have additional program compliance requirements that must be considered in addressing compliance. (e.g., DMV Privacy Act, Public Service Law, etc.).
20. Participants and Scope
a. Contractor may not deliver Services under this Master Agreement until a Participating Addendum acceptable to the Participating Entity and Contractor is executed. The NASPO ValuePoint Master Agreement Terms and Conditions are applicable to any Order by a Participating Entity (and other Purchasing Entities covered by their Participating Addendum), except to the extent altered, modified, supplemented or amended by a Participating Addendum. By way of illustration and not limitation, this authority may apply to unique delivery and invoicing requirements, confidentiality requirements, defaults on Orders, governing law and venue relating to Orders by a Participating Entity, indemnification, and insurance requirements. Statutory or constitutional requirements relating to availability of funds may require specific language in some Participating Addenda in order to comply with applicable law. The expectation is that these alterations, modifications, supplements, or amendments will be addressed in the Participating Addendum or, with the consent of the Purchasing Entity and Contractor, may be included in the ordering document (e.g. purchase order or contract) used by the Purchasing Entity to place the Order.
b. Subject to subsection 20c and a Participating Entity’s Participating Addendum, the use of specific NASPO ValuePoint cooperative Master Agreements by state agencies, political subdivisions and other Participating Entities (including cooperatives) authorized Redlands Regular meeting of 07-16-24 258 of 2362
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by individual state’s statutes to use state contracts is subject to the approval of the respective State Chief Procurement Official.
c. Unless otherwise stipulated in a Participating Entity’s Participating Addendum, specific services accessed through the NASPO ValuePoint cooperative Master Agreements for Cloud Services by state executive branch agencies, as required by a Participating Entity’s statutes, are subject to the authority and approval of the Participating Entity’s Chief Information Officer’s Office3 .
d. Obligations under this Master Agreement are limited to those Participating Entities who have signed a Participating Addendum and Purchasing Entities within the scope of those Participating Addenda. Financial obligations of Participating States are limited to the orders placed by the departments or other state agencies and institutions having available funds. Participating States incur no financial obligations on behalf of political subdivisions.
e. NASPO ValuePoint is not a party to the Master Agreement. It is a nonprofit cooperative purchasing organization assisting states in administering the NASPO ValuePoint cooperative purchasing program for state government departments, institutions, agencies and political subdivisions (e.g., colleges, school districts, counties, cities, etc.) for all 50 states, the District of Columbia and the territories of the United States.
f. Participating Addenda shall not be construed to amend the terms of this Master Agreement between the Lead State and Contractor.
g. Participating Entities who are not states may under some circumstances sign their own Participating Addendum, subject to the approval of participation by the Chief Procurement Official of the state where the Participating Entity is located. Coordinate requests for such participation through NASPO ValuePoint. Any permission to participate through execution of a Participating Addendum is not a determination that procurement authority exists in the Participating Entity; they must ensure that they have the requisite procurement authority to execute a Participating Addendum. h. Resale. Subject to any explicit permission in a Participating Addendum, Purchasing Entities may not resell goods, software, or Services obtained under this Master Agreement. This limitation does not prohibit: payments by employees of a Purchasing Entity as explicitly permitted under this agreement; sales of goods to the general public as surplus property; and fees associated with inventory transactions with other governmental or nonprofit entities under cooperative agreements and consistent with a Purchasing Entity’s laws and regulations. Any sale or transfer permitted by this
3 Chief Information Officer means the individual designated by the Governor with Executive Branch, enterprisewide responsibility for the leadership and management of information technology resources of a state.
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subsection must be consistent with license rights granted for use of intellectual property.
22. Data Access Controls: Contractor will provide access to Purchasing Entity’s Data only to those Contractor employees, contractors and subcontractors (“Contractor Staff”) who need to access the Data to fulfill Contractor’s obligations under this Agreement.
Contractor shall not access a Purchasing Entity’s user accounts or Data, except on the course of data center operations, response to service or technical issues, as required by the express terms of this Master Agreement, or at a Purchasing Entity’s written request.
Contractor may not share a Purchasing Entity’s Data with its parent corporation, other affiliates, or any other third party without the Purchasing Entity’s express written consent.
Contractor will ensure that, prior to being granted access to the Data, Contractor Staff who perform work under this Agreement have successfully completed annual instruction of a nature sufficient to enable them to effectively comply with all Data protection provisions of this Agreement; and possess all qualifications appropriate to the nature of the employees’ duties and the sensitivity of the Data they will be handling.
23. Operations Management: Contractor shall maintain the administrative, physical, technical, and procedural infrastructure associated with the provision of the Product in a manner that is, at all times during the term of this Master Agreement, at a level equal to or more stringent than those specified in the Solicitation. Contractor must maintain any certifications required under the Solicitation.
24. Public Information: This Master Agreement and all related documents are subject to disclosure pursuant to the Purchasing Entity’s public information laws.
26. Records Administration and Audit.
a. The Contractor shall maintain books, records, documents, and other evidence pertaining to this Master Agreement and orders placed by Purchasing Entities under it to the extent and in such detail as shall adequately reflect performance and administration of payments and fees. Contractor shall permit the Lead State, a Participating Entity, a Purchasing Entity, the federal government (including its grant awarding entities and the U.S. Comptroller General), and any other duly authorized agent of a governmental agency, to audit, inspect, examine, copy and/or transcribe Contractor's books, documents, papers and records directly pertinent to this Master Agreement or orders placed by a Purchasing Entity under it for the purpose of making audits, examinations, excerpts, and transcriptions. This right shall survive for a period of six (6) years following termination of this Agreement or final payment for any order placed by a Purchasing Entity against this Agreement, whichever is later, to assure compliance with the terms hereof or to evaluate performance hereunder. b. Without limiting any other remedy available to any governmental entity, the Redlands Regular meeting of 07-16-24 260 of 2362
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Contractor shall reimburse the applicable Lead State, Participating Entity, or Purchasing Entity for any overpayments inconsistent with the terms of the Master Agreement or orders or underpayment of fees found as a result of the examination of the Contractor’s records.
c. The rights and obligations herein exist in addition to any quality assurance obligation in the Master Agreement requiring the Contractor to self-audit contract obligations and that permits the Lead State to review compliance with those obligations. d. The Contractor shall allow the Purchasing Entity to audit conformance to the Master Agreement and applicable Participating Addendum terms. The purchasing entity may perform this audit or contract with a third party at its discretion and at the purchasing entity’s expense.
27. Administrative Fees: The Contractor shall pay to NASPO ValuePoint, or its assignee, a NASPO ValuePoint Administrative Fee of one-quarter of one percent (0.25% or 0.0025) no later than 60 days following the end of each calendar quarter. The NASPO ValuePoint Administrative Fee shall be submitted quarterly and is based on sales of the Services. The NASPO ValuePoint Administrative Fee is not negotiable. This fee is to be included as part of the pricing submitted with proposal.
Additionally, some states may require an additional administrative fee be paid directly to the state on purchases made by Purchasing Entities within that state. For all such requests, the fee level, payment method and schedule for such reports and payments will be incorporated into the Participating Addendum that is made a part of the Master Agreement. The Contractor may adjust the Master Agreement pricing accordingly for purchases made by Purchasing Entities within the jurisdiction of the state. All such agreements shall not affect the NASPO ValuePoint Administrative Fee percentage or the prices paid by the Purchasing Entities outside the jurisdiction of the state requesting the additional fee. The NASPO ValuePoint Administrative Fee shall be based on the gross amount of all sales at the adjusted prices (if any) in Participating Addenda.
28. System Failure or Damage: In the event of system failure or damage caused by Contractor or its Services, the Contractor agrees to use its best efforts to restore or assist in restoring the system to operational capacity.
29. Title to Product: If access to the Product requires an application program interface (API), Contractor shall convey to Purchasing Entity an irrevocable and perpetual license to use the API.
30. Data Privacy: When required by a specific purchase order issued under this Agreement or a Participating Addendum and accepted by the Contractor, the Contractor must comply with all applicable laws related to data privacy and security, including IRS Pub 1075. Prior to entering into a SLA with a Purchasing Entity, the Contractor and Redlands Regular meeting of 07-16-24 261 of 2362
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Purchasing Entity must cooperate and hold a meeting to determine the Data Categorization to determine whether the Contractor will hold, store, or process High Risk Data, Moderate Risk Data and Low Risk Data. The Contractor must document the Data Categorization in the SLA or Statement of Work.
31. Warranty: At a minimum the Contractor must warrant the following:
a. Contractor has acquired any and all rights, grants, assignments, conveyances, licenses, permissions, and authorization for the Contractor to provide the Services described in this Master Agreement.
b. Contractor will perform materially as described in this Master Agreement, SLA, Statement of Work, including any performance representations contained in the Contractor’s response to the Solicitation by the Lead State. c. Contractor represents and warrants that the representations contained in its response to the Solicitation by the Lead State.
d. The Contractor will not interfere with a Purchasing Entity’s access to and use of the Services it acquires from this Master Agreement.
e. The Services provided by the Contractor are compatible with and will operate successfully with any environment (including web browser and operating system) specified by the Contractor in its response to the Solicitation by the Lead State. f. The Contractor warrants that the Products it provides under this Master Agreement are free of malware. The Contractor must use industry-leading technology to detect and remove worms, Trojans, rootkits, rogues, dialers, spyware, etc.
32. Transition Assistance:
a. The Contractor shall reasonably cooperate with other parties in connection with all Services to be delivered under this Master Agreement, including without limitation any successor service provider to whom a Purchasing Entity’s Data is transferred in connection with the termination or expiration of this Master Agreement. The Contractor shall assist a Purchasing Entity in exporting and extracting a Purchasing Entity’s Data, in a format usable without the use of the Services and as agreed by a Purchasing Entity, at no additional cost to the Purchasing Entity. Any transition services requested by a Purchasing Entity involving additional knowledge transfer and support may be subject to a separate transition Statement of Work.
b. A Purchasing Entity and the Contractor shall, when reasonable, create a Transition Plan Document identifying the transition services to be provided and including a Statement of Work if applicable.
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c. The Contractor must maintain the confidentiality and security of a Purchasing Entity’s Data during the transition services and thereafter as required by the Purchasing Entity.
35. Debarment : The Contractor certifies, to the best of its knowledge, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction (contract) by any governmental department or agency. This certification represents a recurring certification made at the time any Order is placed under this Master Agreement. If the Contractor cannot certify this statement, attach a written explanation for review by the Lead State.
37. Governing Law and Venue
a. The procurement, evaluation, and award of the Master Agreement shall be governed by and construed in accordance with the laws of the Lead State sponsoring and administering the procurement. The construction and effect of the Master Agreement after award shall be governed by the law of the state serving as Lead State (in most cases also the Lead State). The construction and effect of any Participating Addendum or Order against the Master Agreement shall be governed by and construed in accordance with the laws of the Participating Entity’s or Purchasing Entity’s State. b. Unless otherwise specified in the RFP, the venue for any protest, claim, dispute or action relating to the procurement, evaluation, and award is in the Lead State. Venue for any claim, dispute or action concerning the terms of the Master Agreement shall be in the state serving as Lead State. Venue for any claim, dispute, or action concerning any Order placed against the Master Agreement or the effect of a Participating Addendum shall be in the Purchasing Entity’s State.
c. If a claim is brought in a federal forum, then it must be brought and adjudicated solely and exclusively within the United States District Court for (in decreasing order of priority): the Lead State for claims relating to the procurement, evaluation, award, or contract performance or administration if the Lead State is a party; the Participating State if a named party; the Participating Entity state if a named party; or the Purchasing Entity state if a named party.
d. This section is also not a waiver by the Participating State of any form of immunity, including but not limited to sovereign immunity and immunity based on the Eleventh Amendment to the Constitution of the United States.
40. Contract Provisions for Orders Utilizing Federal Funds: Pursuant to Appendix II to 2 Code of Federal Regulations (CFR) Part 200, Contract Provisions for Non-Federal Entity Contracts Under Federal Awards, Orders funded with federal funds may have Redlands Regular meeting of 07-16-24 263 of 2362
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additional contractual requirements or certifications that must be satisfied at the time the Order is placed or upon delivery. These federal requirements may be proposed by Participating Entities in Participating Addenda and Purchasing Entities for incorporation in Orders placed under this master agreement.
42. NASPO ValuePoint Summary and Detailed Usage Reports: In addition to other reports that may be required by this solicitation, the Contractor shall provide the following NASPO ValuePoint reports.
a. Summary Sales Data. The Contractor shall submit quarterly sales reports directly to NASPO ValuePoint using the NASPO ValuePoint Quarterly Sales/Administrative Fee Reporting Tool found at http://www.naspo.org/WNCPO/Calculator.aspx. Any/all sales made under the contract shall be reported as cumulative totals by state. Even if Contractor experiences zero sales during a calendar quarter, a report is still required.
Reports shall be due no later than 30 day following the end of the calendar quarter (as specified in the reporting tool).
b. Detailed Sales Data. Contractor shall also report detailed sales data by: (1) state; (2) entity/customer type, e.g. local government, higher education, K12, non-profit; (3) Purchasing Entity name; (4) Purchasing Entity bill-to and ship-to locations; (4) Purchasing Entity and Contractor Purchase Order identifier/number(s); (5) Purchase Order Type (e.g. sales order, credit, return, upgrade, determined by industry practices); (6) Purchase Order date; (7) Ship Date; (8) and line item description, including product number if used. The report shall be submitted in any form required by the solicitation.
Reports are due on a quarterly basis and must be received by the Lead State and NASPO ValuePoint Cooperative Development Team no later than thirty (30) days after the end of the reporting period. Reports shall be delivered to the Lead State and to the NASPO ValuePoint Cooperative Development Team electronically through a designated portal, email, CD-Rom, flash drive or other method as determined by the Lead State and NASPO ValuePoint. Detailed sales data reports shall include sales information for all sales under Participating Addenda executed under this Master Agreement. The format for the detailed sales data report is in shown in Attachment F. c. Reportable sales for the summary sales data report and detailed sales data report includes sales to employees for personal use where authorized by the solicitation and the Participating Addendum. Report data for employees should be limited to ONLY the state and entity they are participating under the authority of (state and agency, city, county, school district, etc.) and the amount of sales. No personal identification numbers, e.g. names, addresses, social security numbers or any other numerical identifier, may be submitted with any report.
d. Contractor shall provide the NASPO ValuePoint Cooperative Development Coordinator with an executive summary each quarter that includes, at a minimum, a list Redlands Regular meeting of 07-16-24 264 of 2362
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of states with an active Participating Addendum, states that Contractor is in negotiations with and any PA roll out or implementation activities and issues. NASPO ValuePoint Cooperative Development Coordinator and Contractor will determine the format and content of the executive summary. The executive summary is due 30 days after the conclusion of each calendar quarter.
e. Timely submission of these reports is a material requirement of the Master Agreement. The recipient of the reports shall have exclusive ownership of the media containing the reports. The Lead State and NASPO ValuePoint shall have a perpetual, irrevocable, non-exclusive, royalty free, transferable right to display, modify, copy, and otherwise use reports, data and information provided under this section. f. If requested by a Participating Entity, the Contractor must provide detailed sales data within the Participating State.
43. Entire Agreement: This Master Agreement, along with any attachment, contains the entire understanding of the parties hereto with respect to the Master Agreement unless a term is modified in a Participating Addendum with a Participating Entity. No click-through, or other end user terms and conditions or agreements required by the Contractor (“Additional Terms”) provided with any Services hereunder shall be binding on Participating Entities or Purchasing Entities, even if use of such Services requires an affirmative “acceptance” of those Additional Terms before access is permitted.
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Exhibit 1 to the Master Agreement: Software-as-a-Service
1. Data Ownership: The Purchasing Entity will own all right, title and interest in its data that is related to the Services provided by this Master Agreement. The Contractor shall not access Purchasing Entity user accounts or Purchasing Entity data, except (1) in the course of data center operations, (2) in response to service or technical issues, (3) as required by the express terms of this Master Agreement, Participating Addendum, SLA, and/or other contract documents, or (4) at the Purchasing Entity’s written request.
Contractor shall not collect, access, or use user-specific Purchasing Entity Data except as strictly necessary to provide Service to the Purchasing Entity. No information regarding a Purchasing Entity’s use of the Service may be disclosed, provided, rented or sold to any third party for any reason unless required by law or regulation or by an order of a court of competent jurisdiction. This obligation shall survive and extend beyond the term of this Master Agreement.
2. Data Protection: Protection of personal privacy and data shall be an integral part of the business activities of the Contractor to ensure there is no inappropriate or unauthorized use of Purchasing Entity information at any time. To this end, the Contractor shall safeguard the confidentiality, integrity and availability of Purchasing Entity information and comply with the following conditions:
a. The Contractor shall implement and maintain appropriate administrative, technical and organizational security measures to safeguard against unauthorized access, disclosure or theft of Personal Data and Non-Public Data. Such security measures shall be in accordance with recognized industry practice and not less stringent than the measures the Contractor applies to its own Personal Data and Non-Public Data of similar kind. b. All data obtained by the Contractor in the performance of the Master Agreement shall become and remain the property of the Purchasing Entity. c. All Personal Data shall be encrypted at rest and in transit with controlled access. Unless otherwise stipulated, the Contractor is responsible for encryption of the Personal Data. Any stipulation of responsibilities will identify specific roles and responsibilities and shall be included in the service level agreement (SLA), or otherwise made a part of the Master Agreement.
d. Unless otherwise stipulated, the Contractor shall encrypt all Non-Public Data at rest and in transit. The Purchasing Entity shall identify data it deems as Non-Public Data to the Contractor. The level of protection and encryption for all Non-Public Data shall be identified in the SLA.
e. At no time shall any data or processes — that either belong to or are intended for the use of a Purchasing Entity or its officers, agents or employees — be copied, disclosed or retained by the Contractor or any party related to the Contractor for subsequent use in any transaction that does not include the Purchasing Entity.
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f. The Contractor shall not use any information collected in connection with the Services issued from this Master Agreement for any purpose other than fulfilling the Services.
3. Data Location: The Contractor shall provide its services to the Purchasing Entity and its end users solely from data centers in the U.S. Storage of Purchasing Entity data at rest shall be located solely in data centers in the U.S. The Contractor shall not allow its personnel or contractors to store Purchasing Entity data on portable devices, including personal computers, except for devices that are used and kept only at its U.S. data centers. The Contractor shall permit its personnel and contractors to access Purchasing Entity data remotely only as required to provide technical support. The Contractor may provide technical user support on a 24/7 basis using a Follow the Sun model, unless otherwise prohibited in a Participating Addendum.
4. Security Incident or Data Breach Notification:
a. Incident Response: Contractor may need to communicate with outside parties regarding a security incident, which may include contacting law enforcement, fielding media inquiries and seeking external expertise as mutually agreed upon, defined by law or contained in the contract. Discussing security incidents with the Purchasing Entity should be handled on an urgent as needed basis, as part of Contractor’s communication and mitigation processes as mutually agreed upon, defined by law or contained in the Master Agreement. b. Security Incident Reporting Requirements: The Contractor shall report a security incident to the Purchasing Entity identified contact immediately as soon as possible or promptly without out reasonable delay, or as defined in the SLA. c. Breach Reporting Requirements: If the Contractor has actual knowledge of a confirmed data breach that affects the security of any purchasing entity’s content that is subject to applicable data breach notification law, the Contractor shall (1) as soon as possible or promptly without out reasonable delay notify the Purchasing Entity, unless shorter time is required by applicable law, and (2) take commercially reasonable measures to address the data breach in a timely manner.
5. Personal Data Breach Responsibilities: This section only applies when a Data Breach occurs with respect to Personal Data within the possession or control of the Contractor. a. The Contractor, unless stipulated otherwise, shall immediately notify the appropriate Purchasing Entity identified contact by telephone in accordance with the agreed upon security plan or security procedures if it reasonably believes there has been a security incident.
b. The Contractor, unless stipulated otherwise, shall promptly notify the appropriate Purchasing Entity identified contact within 48 hours or sooner by telephone, unless shorter time is required by applicable law, if it has confirmed that there is, or reasonably believes that there has been a Data Breach. The Contractor shall (1) cooperate with the Purchasing Entity as reasonably requested by the Purchasing Entity to investigate and resolve the Data Breach, (2) promptly implement necessary remedial measures, if necessary, and (3) Redlands Regular meeting of 07-16-24 267 of 2362
document responsive actions taken related to the Data Breach, including any post-incident review of events and actions taken to make changes in business practices in providing the services, if necessary.
6. Notification of Legal Requests: If legally permissible, the Contractor shall contact the Purchasing Entity upon receipt of any electronic discovery, litigation holds, discovery searches and expert testimonies related to the Purchasing Entity’s data under the Master Agreement, or which in any way might reasonably require access to the data of the Purchasing Entity. The Contractor shall not respond to subpoenas, service of process and other legal requests related to the Purchasing Entity without first notifying and obtaining the approval of the Purchasing Entity, unless prohibited by law. .
7. Termination and Suspension of Service:
a. In the event of a termination of the Master Agreement or applicable Participating Addendum, the Contractor shall implement an orderly return of purchasing entity’s data in a CSV or another mutually agreeable format at a time agreed to by the parties or allow the Purchasing Entity to extract it’s data and the subsequent secure disposal of purchasing entity’s data.
b. During any period of service suspension, the Contractor shall not take any action to intentionally erase or otherwise dispose of any of the Purchasing Entity’s data. c. In the event of termination of any services or agreement in entirety, the Contractor shall not take any action to intentionally erase purchasing entity’s data for a period of:
• 10 days after the effective date of termination, if the termination is in accordance with the contract period
• 30 days after the effective date of termination, if the termination is for convenience
• • 60 days after the effective date of termination, if the termination is for cause After such period, the Contractor shall have no obligation to maintain or provide any purchasing entity’s data and shall thereafter, unless legally prohibited, delete all purchasing entity’s data in its systems or otherwise in its possession or under its control.
d. The purchasing entity shall be entitled to any post termination assistance generally made available with respect to the services, unless a unique data retrieval arrangement has been established as part of an SLA.
e. Upon termination of the Services or the Agreement in its entirety, Contractor shall securely dispose of all Purchasing Entity’s data in all of its forms, such as disk, CD/ DVD, Redlands Regular meeting of 07-16-24 268 of 2362
backup tape and paper, unless stipulated otherwise by the Purchasing Entity. Data shall be permanently deleted and shall not be recoverable, according to National Institute of Standards and Technology (NIST)-approved methods. Certificates of destruction shall be provided to the Purchasing Entity.
8. Background Checks: Upon the request of the Purchasing Entity, the Contractor shall conduct criminal background checks and not utilize any staff, including subcontractors, to fulfill the obligations of the Master Agreement who have been convicted of any crime of dishonesty, including but not limited to criminal fraud, or otherwise convicted of any felony or misdemeanor offense for which incarceration for up to 1 year is an authorized penalty. The Contractor shall promote and maintain an awareness of the importance of securing the Purchasing Entity’s information among the Contractor’s employees and agents. If any of the stated personnel providing services under a Participating Addendum is not acceptable to the Purchasing Entity in its sole opinion as a result of the background or criminal history investigation, the Purchasing Entity, in its’ sole option shall have the right to either (1) request immediate replacement of the person, or (2) immediately terminate the Participating Addendum and any related service agreement.
9. Access to Security Logs and Reports: The Contractor shall provide reports on a schedule specified in the SLA to the Purchasing Entity in a format as specified in the SLA agreed to by both the Contractor and the Purchasing Entity. Reports shall include latency statistics, user access, user access IP address, user access history and security logs for all public jurisdiction files related to this Master Agreement and applicable Participating Addendum.
10. Contract Audit: The Contractor shall allow the Purchasing Entity to audit conformance to the Master Agreement terms. The Purchasing Entity may perform this audit or contract with a third party at its discretion and at the Purchasing Entity’s expense.
11. Data Center Audit: The Contractor shall perform an independent audit of its data centers at least annually at its expense, and provide an unredacted version of the audit report upon request to a Purchasing Entity. The Contractor may remove its proprietary information from the unredacted version. A Service Organization Control (SOC) 2 audit report or approved equivalent sets the minimum level of a third-party audit.
12. Change Control and Advance Notice: The Contractor shall give a minimum forty eight (48) hour advance notice (or as determined by a Purchasing Entity and included in the SLA) to the Purchasing Entity of any upgrades (e.g., major upgrades, minor upgrades, system changes) that may impact service availability and performance. A major upgrade is a replacement of hardware, software or firmware with a newer or better version in order to bring the system up to date or to improve its characteristics. It usually includes a new version number.
Contractor will make updates and upgrades available to Purchasing Entity at no additional costs when Contractor makes such updates and upgrades generally available to its users.
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No update, upgrade or other charge to the Service may decrease the Service’s functionality, adversely affect Purchasing Entity’s use of or access to the Service, or increase the cost of the Service to the Purchasing Entity.
Contractor will notify the Purchasing Entity at least sixty (60) days in advance prior to any major update or upgrade.
13. Security: As requested by a Purchasing Entity, the Contractor shall disclose its non-proprietary system security plans (SSP) or security processes and technical limitations to the Purchasing Entity such that adequate protection and flexibility can be attained between the Purchasing Entity and the Contractor. For example: virus checking and port sniffing — the Purchasing Entity and the Contractor shall understand each other’s roles and responsibilities.
14. Non-disclosure and Separation of Duties: The Contractor shall enforce separation of job duties, require commercially reasonable non-disclosure agreements, and limit staff knowledge of Purchasing Entity data to that which is absolutely necessary to perform job duties.
15. Import and Export of Data: The Purchasing Entity shall have the ability to import or export data in piecemeal or in entirety at its discretion without interference from the Contractor at any time during the term of Contractor’s contract with the Purchasing Entity. This includes the ability for the Purchasing Entity to import or export data to/from other Contractors. Contractor shall specify if Purchasing Entity is required to provide its’ own tools for this purpose, including the optional purchase of Contractors tools if Contractors applications are not able to provide this functionality directly.
16. Responsibilities and Uptime Guarantee: The Contractor shall be responsible for the acquisition and operation of all hardware, software and network support related to the services being provided. The technical and professional activities required for establishing, managing and maintaining the environments are the responsibilities of the Contractor. The system shall be available 24/7/365 (with agreed-upon maintenance downtime), and provide service to customers as defined in the SLA.
17. Subcontractor Disclosure: Contractor shall identify all of its strategic business partners related to services provided under this Master Agreement, including but not limited to all subcontractors or other entities or individuals who may be a party to a joint venture or similar agreement with the Contractor, and who shall be involved in any application development and/or operations.
18. Right to Remove Individuals: The Purchasing Entity shall have the right at any time to require that the Contractor remove from interaction with Purchasing Entity any Contractor representative who the Purchasing Entity believes is detrimental to its working relationship with the Contractor. The Purchasing Entity shall provide the Contractor with notice of its determination, and the reasons it requests the removal. If the Purchasing Entity signifies that a potential security violation exists with respect to the request, the Contractor shall immediately Redlands Regular meeting of 07-16-24 270 of 2362
remove such individual. The Contractor shall not assign the person to any aspect of the Master Agreement or future work orders without the Purchasing Entity’s consent.
19. Business Continuity and Disaster Recovery: The Contractor shall provide a business continuity and disaster recovery plan upon request and ensure that the Purchasing Entity’s recovery time objective (RTO) of XXX hours/days is met. (XXX hour/days shall be provided to Contractor by the Purchasing Entity.) Contractor must work with the Purchasing Entity to perform an annual Disaster Recovery test and take action to correct any issues detected during the test in a time frame mutually agreed between the Contractor and the Purchasing Entity.
20. Compliance with Accessibility Standards: The Contractor shall comply with and adhere to Accessibility Standards of Section 508 Amendment to the Rehabilitation Act of 1973, or any other state laws or administrative regulations identified by the Participating Entity.
21. Web Services: The Contractor shall use Web services exclusively to interface with the Purchasing Entity’s data in near real time.
22. Encryption of Data at Rest: The Contractor shall ensure hard drive encryption consistent with validated cryptography standards as referenced in FIPS 140-2, Security Requirements for Cryptographic Modules for all Personal Data, unless the Purchasing Entity approves in writing for the storage of Personal Data on a Contractor portable device in order to accomplish work as defined in the statement of work.
23. Subscription Terms: Contractor grants to a Purchasing Entity a license to: (i) access and use the Service for its business purposes; (ii) for SaaS, use underlying software as embodied or used in the Service; and (iii) view, copy, upload and download (where applicable), and use Contractor’s documentation.
No Contractor terms, including standard click through license or website terms or use of privacy policy, shall apply to Purchasing Entities unless such terms are included in this Master Agreement.
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Exhibit 2 to the Master Agreement: Platform-as-a-Service
1. Data Ownership: The Purchasing Entity will own all right, title and interest in its data that is related to the Services provided by this Master Agreement. The Contractor shall not access Purchasing Entity user accounts or Purchasing Entity data, except (1) in the course of data center operations, (2) in response to service or technical issues, (3) as required by the express terms of this Master Agreement, Participating Addendum, SLA, and/or other contract documents, or (4) at the Purchasing Entity’s written request.
Contractor shall not collect, access, or use user-specific Purchasing Entity Data except as strictly necessary to provide Service to the Purchasing Entity. No information regarding a Purchasing Entity’s use of the Service may be disclosed, provided, rented or sold to any third party for any reason unless required by law or regulation or by an order of a court of competent jurisdiction. This obligation shall survive and extend beyond the term of this Master Agreement.
2. Data Protection: Protection of personal privacy and data shall be an integral part of the business activities of the Contractor to ensure there is no inappropriate or unauthorized use of Purchasing Entity information at any time. To this end, the Contractor shall safeguard the confidentiality, integrity and availability of Purchasing Entity information and comply with the following conditions:
a. The Contractor shall implement and maintain appropriate administrative, technical and organizational security measures to safeguard against unauthorized access, disclosure or theft of Personal Data and Non-Public Data. Such security measures shall be in accordance with recognized industry practice and not less stringent than the measures the Contractor applies to its own Personal Data and Non-Public Data of similar kind. b. All data obtained by the Contractor in the performance of the Master Agreement shall become and remain the property of the Purchasing Entity. c. All Personal Data shall be encrypted at rest and in transit with controlled access. Unless otherwise stipulated, the Contractor is responsible for encryption of the Personal Data.
Any stipulation of responsibilities will identify specific roles and responsibilities and shall be included in the service level agreement (SLA), or otherwise made a part of the Master Agreement.
d. Unless otherwise stipulated, the Contractor shall encrypt all Non-Public Data at rest and in transit. The Purchasing Entity shall identify data it deems as Non-Public Data to the Contractor. The level of protection and encryption for all Non-Public Data shall be identified in the SLA.
e. At no time shall any data or processes — that either belong to or are intended for the use of a Purchasing Entity or its officers, agents or employees — be copied, disclosed or retained by the Contractor or any party related to the Contractor for subsequent use in any transaction that does not include the Purchasing Entity.
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f. The Contractor shall not use any information collected in connection with the Services issued from this Master Agreement for any purpose other than fulfilling the Services.
3. Data Location: The Contractor shall provide its services to the Purchasing Entity and its end users solely from data centers in the U.S. Storage of Purchasing Entity data at rest shall be located solely in data centers in the U.S. The Contractor shall not allow its personnel or contractors to store Purchasing Entity data on portable devices, including personal computers, except for devices that are used and kept only at its U.S. data centers. The Contractor shall permit its personnel and contractors to access Purchasing Entity data remotely only as required to provide technical support. The Contractor may provide technical user support on a 24/7 basis using a Follow the Sun model, unless otherwise prohibited in a Participating Addendum.
4. Security Incident or Data Breach Notification: The Contractor shall inform the Purchasing Entity of any security incident or data breach within the possession and control of the Contractor and related to the service provided under the Master Agreement, Participating Addendum, or SLA.
Such notice shall include, to the best of Contractor’s knowledge at that time, the persons affected, their identities, and the Confidential Information and Data disclosed, or shall include if this information is unknown.
a. Incident Response: The Contractor may need to communicate with outside parties regarding a security incident, which may include contacting law enforcement, fielding media inquiries and seeking external expertise as mutually agreed upon, defined by law or contained in the Master Agreement, Participating Addendum, or SLA. Discussing security incidents with the Purchasing Entity should be handled on an urgent as-needed basis, as part of Contractor’s communication and mitigation processes as mutually agreed, defined by law or contained in the Master Agreement, Participating Addendum, or SLA.
b. Security Incident Reporting Requirements: Unless otherwise stipulated, the Contractor shall immediately report a security incident related to its service under the Master Agreement, Participating Addendum, or SLA to the appropriate Purchasing Entity. c. Breach Reporting Requirements: If the Contractor has actual knowledge of a confirmed data breach that affects the security of any Purchasing Entity data that is subject to applicable data breach notification law, the Contractor shall (1) promptly notify the appropriate Purchasing Entity within 48 hours or sooner, unless shorter time is required by applicable law, and (2) take commercially reasonable measures to address the data breach in a timely manner
5. Breach Responsibilities: This section only applies when a Data Breach occurs with respect to Personal Data within the possession or control of the Contractor. a. The Contractor, unless stipulated otherwise, shall immediately notify the appropriate Purchasing Entity identified contact by telephone in accordance with the agreed upon security plan or security procedures if it reasonably believes there has been a security incident.
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b. The Contractor, unless stipulated otherwise, shall promptly notify the appropriate Purchasing Entity identified contact within 24 hours or sooner by telephone, unless shorter time is required by applicable law, if it has confirmed that there is, or reasonably believes that there has been a data breach. The Contractor shall (1) cooperate with the Purchasing Entity as reasonably requested by the Purchasing Entity to investigate and resolve the data breach, (2) promptly implement necessary remedial measures, if necessary, and (3) document responsive actions taken related to the data breach, including any post-incident review of events and actions taken to make changes in business practices in providing the services, if necessary.
6. Notification of Legal Requests: If legally permissible, the Contractor shall contact the Purchasing Entity upon receipt of any electronic discovery, litigation holds, discovery searches and expert testimonies related to the Purchasing Entity’s data under the Master Agreement, or which in any way might reasonably require access to the data of the Purchasing Entity. The Contractor shall not respond to subpoenas, service of process and other legal requests related to the Purchasing Entity without first notifying and obtaining the approval of the Purchasing Entity, unless prohibited by law.
7. Termination and Suspension of Service:
a. In the event of an early termination of the Master Agreement, Participating or SLA, Contractor shall allow for the Purchasing Entity to retrieve its digital content and provide for the subsequent secure disposal of the Purchasing Entity’s digital content. b. During any period of service suspension, the Contractor shall not take any action to intentionally erase or otherwise dispose of any of the Purchasing Entity’s data. c. In the event of early termination of any Services or agreement in entirety, the Contractor shall not take any action to intentionally erase any Purchasing Entity’s data for a period of 1) 45 days after the effective date of termination, if the termination is for convenience; or 2) 60 days after the effective date of termination, if the termination is for cause. After such day period, the Contractor shall have no obligation to maintain or provide any Purchasing Entity data and shall thereafter, unless legally prohibited, delete all Purchasing Entity data in its systems or otherwise in its possession or under its control.
In the event of either termination for cause, the Contractor will impose no fees for access and retrieval of digital content to the Purchasing Entity. d. The Purchasing Entity shall be entitled to any post termination assistance generally made available with respect to the services, unless a unique data retrieval arrangement has been established as part of an SLA.
e. Upon termination of the Services or the Agreement in its entirety, Contractor shall securely dispose of all Purchasing Entity’s data in all of its forms, such as disk, CD/ DVD, backup tape and paper, unless stipulated otherwise by the Purchasing Entity. Data shall be permanently deleted and shall not be recoverable, according to National Institute of Redlands Regular meeting of 07-16-24 274 of 2362
Standards and Technology (NIST)-approved methods. Certificates of destruction shall be provided to the Purchasing Entity.
8. Background Checks:
a. Upon the request of the Purchasing Entity, the Contractor shall conduct criminal background checks and not utilize any staff, including subcontractors, to fulfill the obligations of the Master Agreement who have been convicted of any crime of dishonesty, including but not limited to criminal fraud, or otherwise convicted of any felony or misdemeanor offense for which incarceration for up to 1 year is an authorized penalty. The Contractor shall promote and maintain an awareness of the importance of securing the Purchasing Entity’s information among the Contractor’s employees and agents.
b. The Contractor and the Purchasing Entity recognize that security responsibilities are shared. The Contractor is responsible for providing a secure infrastructure. The Purchasing Entity is responsible for its secure guest operating system, firewalls and other logs captured within the guest operating system. Specific shared responsibilities are identified within the SLA.
c. If any of the stated personnel providing services under a Participating Addendum is not acceptable to the Purchasing Entity in its sole opinion as a result of the background or criminal history investigation, the Purchasing Entity, in its’ sole option shall have the right to either (1) request immediate replacement of the person, or (2) immediately terminate the Participating Addendum and any related service agreement.
9. Access to Security Logs and Reports:
a. The Contractor shall provide reports on a schedule specified in the SLA to the Purchasing Entity in a format as specified in the SLA and agreed to by both the Contractor and the Purchasing Entity. Reports will include latency statistics, user access, user access IP address, user access history and security logs for all Purchasing Entity files related to the Master Agreement, Participating Addendum, or SLA.
b. The Contractor and the Purchasing Entity recognize that security responsibilities are shared. The Contractor is responsible for providing a secure infrastructure. The Purchasing Entity is responsible for its secure guest operating system, firewalls and other logs captured within the guest operating system. Specific shared responsibilities are identified within the SLA.
10. Contract Audit: The Contractor shall allow the Purchasing Entity to audit conformance to the Master Agreement terms. The Purchasing Entity may perform this audit or contract with a third party at its discretion and at the Purchasing Entity’s expense.
11. Data Center Audit: The Contractor shall perform an independent audit of its data centers at least annually at its expense, and provide an unredacted version of the audit report upon Redlands Regular meeting of 07-16-24 275 of 2362
request to a Purchasing Entity. The Contractor may remove its proprietary information from the unredacted version. A Service Organization Control (SOC) 2 audit report or approved equivalent sets the minimum level of a third-party audit.
12. Change Control and Advance Notice: The Contractor shall give a minimum forty eight (48) hour advance notice (or as determined by a Purchasing Entity and included in the SLA) to the Purchasing Entity of any upgrades (e.g., major upgrades, minor upgrades, system changes) that may impact service availability and performance. A major upgrade is a replacement of hardware, software or firmware with a newer or better version in order to bring the system up to date or to improve its characteristics. It usually includes a new version number.
Contractor will make updates and upgrades available to Purchasing Entity at no additional costs when Contractor makes such updates and upgrades generally available to its users.
No update, upgrade or other charge to the Service may decrease the Service’s functionality, adversely affect Purchasing Entity’s use of or access to the Service, or increase the cost of the Service to the Purchasing Entity.
Contractor will notify the Purchasing Entity at least sixty (60) days in advance prior to any major update or upgrade.
13. Security: As requested by a Purchasing Entity, the Contractor shall disclose its non-proprietary system security plans (SSP) or security processes and technical limitations to the Purchasing Entity such that adequate protection and flexibility can be attained between the Purchasing Entity and the Contractor. For example: virus checking and port sniffing — the Purchasing Entity and the Contractor shall understand each other’s roles and responsibilities.
14. Non-disclosure and Separation of Duties: The Contractor shall enforce separation of job duties, require commercially reasonable non-disclosure agreements, and limit staff knowledge of Purchasing Entity data to that which is absolutely necessary to perform job duties.
15. Import and Export of Data: The Purchasing Entity shall have the ability to import or export data in piecemeal or in entirety at its discretion without interference from the Contractor at any time during the term of Contractor’s contract with the Purchasing Entity. This includes the ability for the Purchasing Entity to import or export data to/from other Contractors. Contractor shall specify if Purchasing Entity is required to provide its’ own tools for this purpose, including the optional purchase of Contractors tools if Contractors applications are not able to provide this functionality directly.
16. Responsibilities and Uptime Guarantee: The Contractor shall be responsible for the acquisition and operation of all hardware, software and network support related to the services being provided. The technical and professional activities required for establishing, managing and maintaining the environments are the responsibilities of the Contractor. The system shall be available 24/7/365 (with agreed-upon maintenance downtime), and provide service to customers as defined in the SLA.
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17. Subcontractor Disclosure: Contractor shall identify all of its strategic business partners related to services provided under this Master Agreement, including but not limited to all subcontractors or other entities or individuals who may be a party to a joint venture or similar agreement with the Contractor, and who shall be involved in any application development and/or operations.
18. Business Continuity and Disaster Recovery: The Contractor shall provide a business continuity and disaster recovery plan upon request and ensure that the Purchasing Entity’s recovery time objective (RTO) of XXX hours/days is met. (XXX hour/days shall be provided to Contractor by the Purchasing Entity.) Contractor must work with the Purchasing Entity to perform an annual Disaster Recovery test and take action to correct any issues detected during the test in a time frame mutually agreed between the Contractor and the Purchasing Entity.
19. Compliance with Accessibility Standards: The Contractor shall comply with and adhere to Accessibility Standards of Section 508 Amendment to the Rehabilitation Act of 1973 or any other state laws or administrative regulations identified by the Participating Entity..
20. Web Services: The Contractor shall use Web services exclusively to interface with the Purchasing Entity’s data in near real time.
21. Encryption of Data at Rest: The Contractor shall ensure hard drive encryption consistent with validated cryptography standards as referenced in FIPS 140-2, Security Requirements for Cryptographic Modules for all Personal Data as identified in the SLA, unless the Contractor presents a justifiable position that is approved by the Purchasing Entity that Personal Data, is required to be stored on a Contractor portable device in order to accomplish work as defined in the scope of work.
22. Subscription Terms: Contractor grants to a Purchasing Entity a license to: (i) access and use the Service for its business purposes; (ii) for PaaS, use underlying software as embodied or used in the Service; and (iii) view, copy, upload and download (where applicable), and use Contractor’s documentation.
No Contractor terms, including standard click through license or website terms or use of privacy policy, shall apply to Purchasing Entities unless such terms are included in this Master Agreement.
Redlands Regular meeting of 07-16-24 277 of 2362
Exhibit 3 to the Master Agreement: Infrastructure-as-a-Service
1. Data Ownership: The Purchasing Entity will own all right, title and interest in its data that is related to the Services provided by this Master Agreement. The Contractor shall not access Purchasing Entity user accounts or Purchasing Entity data, except (1) in the course of data center operations, (2) in response to service or technical issues, (3) as required by the express terms of this Master Agreement, Participating Addendum, SLA, and/or other contract documents, or (4) at the Purchasing Entity’s written request.
Contractor shall not collect, access, or use user-specific Purchasing Entity Data except as strictly necessary to provide Service to the Purchasing Entity. No information regarding a Purchasing Entity’s use of the Service may be disclosed, provided, rented or sold to any third party for any reason unless required by law or regulation or by an order of a court of competent jurisdiction. This obligation shall survive and extend beyond the term of this Master Agreement.
2. Data Protection: Protection of personal privacy and data shall be an integral part of the business activities of the Contractor to ensure there is no inappropriate or unauthorized use of Purchasing Entity information at any time. To this end, the Contractor shall safeguard the confidentiality, integrity and availability of Purchasing Entity information and comply with the following conditions:
a. The Contractor shall implement and maintain appropriate administrative, technical and organizational security measures to safeguard against unauthorized access, disclosure or theft of Personal Data and Non-Public Data. Such security measures shall be in accordance with recognized industry practice and not less stringent than the measures the Contractor applies to its own Personal Data and Non-Public Data of similar kind. b. All data obtained by the Contractor in the performance of the Master Agreement shall become and remain the property of the Purchasing Entity. c. All Personal Data shall be encrypted at rest and in transit with controlled access. Unless otherwise stipulated, the Contractor is responsible for encryption of the Personal Data. Any stipulation of responsibilities will identify specific roles and responsibilities and shall be included in the service level agreement (SLA), or otherwise made a part of the Master Agreement.
d. Unless otherwise stipulated, the Contractor shall encrypt all Non-Public Data at rest and in transit. The Purchasing Entity shall identify data it deems as Non-Public Data to the Contractor. The level of protection and encryption for all Non-Public Data shall be identified in the SLA.
e. At no time shall any data or processes — that either belong to or are intended for the use of a Purchasing Entity or its officers, agents or employees — be copied, disclosed or retained by the Contractor or any party related to the Contractor for subsequent use in any transaction that does not include the Purchasing Entity.
Redlands Regular meeting of 07-16-24 278 of 2362
f. The Contractor shall not use any information collected in connection with the Services issued from this Master Agreement for any purpose other than fulfilling the Services.
3. Data Location: The Contractor shall provide its services to the Purchasing Entity and its end users solely from data centers in the U.S. Storage of Purchasing Entity data at rest shall be located solely in data centers in the U.S. The Contractor shall not allow its personnel or contractors to store Purchasing Entity data on portable devices, including personal computers, except for devices that are used and kept only at its U.S. data centers. The Contractor shall permit its personnel and contractors to access Purchasing Entity data remotely only as required to provide technical support. The Contractor may provide technical user support on a 24/7 basis using a Follow the Sun model, unless otherwise prohibited in a Participating Addendum.
4. Security Incident or Data Breach Notification: The Contractor shall inform the Purchasing Entity of any security incident or data breach related to Purchasing Entity’s Data within the possession or control of the Contractor and related to the service provided under the Master Agreement, Participating Addendum, or SLA. Such notice shall include, to the best of Contractor’s knowledge at that time, the persons affected, their identities, and the Confidential Information and Data disclosed, or shall include if this information is unknown. a. Security Incident Reporting Requirements: The Contractor shall report a security incident to the Purchasing Entity identified contact immediately as soon as possible or promptly without out reasonable delay, or as defined in the SLA. b. Breach Reporting Requirements: If the Contractor has actual knowledge of a confirmed data breach that affects the security of any purchasing entity’s content that is subject to applicable data breach notification law, the Contractor shall (1) as soon as possible or promptly without out reasonable delay notify the Purchasing Entity, unless shorter time is required by applicable law, and (2) take commercially reasonable measures to address the data breach in a timely manner.
5. Breach Responsibilities: This section only applies when a Data Breach occurs with respect to Personal Data within the possession or control of the Contractor and related to the service provided under the Master Agreement, Participating Addendum, or SLA. a. The Contractor, unless stipulated otherwise, shall immediately notify the appropriate Purchasing Entity identified contact by telephone in accordance with the agreed upon security plan or security procedures if it reasonably believes there has been a security incident.
b. The Contractor, unless stipulated otherwise, shall promptly notify the appropriate Purchasing Entity identified contact within 48 hours or sooner by telephone, unless shorter time is required by applicable law, if it has confirmed that there is, or reasonably believes that there has been a data breach. The Contractor shall (1) cooperate with the Purchasing Entity as reasonably requested by the Purchasing Entity to investigate and resolve the Data Breach, (2) promptly implement necessary remedial measures, if necessary, and (3) document responsive actions taken related to the Data Breach, including any post-incident Redlands Regular meeting of 07-16-24 279 of 2362
review of events and actions taken to make changes in business practices in providing the services, if necessary.
6. Notification of Legal Requests: If legally permissible, the Contractor shall contact the Purchasing Entity upon receipt of any electronic discovery, litigation holds, discovery searches and expert testimonies related to the Purchasing Entity’s data under the Master Agreement, or which in any way might reasonably require access to the data of the Purchasing Entity. The Contractor shall not respond to subpoenas, service of process and other legal requests related to the Purchasing Entity without first notifying and obtaining the approval of the Purchasing Entity, unless prohibited by law.
7. Termination and Suspension of Service:
a. In the event of an early termination of the Master Agreement, Participating or SLA, Contractor shall allow for the Purchasing Entity to retrieve its digital content and provide for the subsequent secure disposal of the Purchasing Entity’s digital content. b. During any period of service suspension, the Contractor shall not take any action to intentionally erase or otherwise dispose of any of the Purchasing Entity’s data. c. In the event of early termination of any Services or agreement in entirety, the Contractor shall not take any action to intentionally erase any Purchasing Entity’s data for a period of 1) 45 days after the effective date of termination, if the termination is for convenience; or 2) 60 days after the effective date of termination, if the termination is for cause. After such day period, the Contractor shall have no obligation to maintain or provide any Purchasing Entity data and shall thereafter, unless legally prohibited, delete all Purchasing Entity data in its systems or otherwise in its possession or under its control. In the event of either termination for cause, the Contractor will impose no fees for access and retrieval of digital content to the Purchasing Entity.
d. The Purchasing Entity shall be entitled to any post termination assistance generally made available with respect to the services, unless a unique data retrieval arrangement has been established as part of an SLA.
e. Upon termination of the Services or the Agreement in its entirety, Contractor shall securely dispose of all Purchasing Entity’s data in all of its forms, such as disk, CD/ DVD, backup tape and paper, unless stipulated otherwise by the Purchasing Entity. Data shall be permanently deleted and shall not be recoverable, according to National Institute of Standards and Technology (NIST)-approved methods. Certificates of destruction shall be provided to the Purchasing Entity.
8. Background Checks:
a. Upon the request of the Purchasing Entity, the Contractor shall conduct criminal background checks and not utilize any staff, including subcontractors, to fulfill the obligations of the Master Agreement who have been convicted of any crime of dishonesty, Redlands Regular meeting of 07-16-24 280 of 2362
including but not limited to criminal fraud, or otherwise convicted of any felony or misdemeanor offense for which incarceration for up to 1 year is an authorized penalty. The Contractor shall promote and maintain an awareness of the importance of securing the Purchasing Entity’s information among the Contractor’s employees and agents. b. The Contractor and the Purchasing Entity recognize that security responsibilities are shared. The Contractor is responsible for providing a secure infrastructure. The Purchasing Entity is responsible for its secure guest operating system, firewalls and other logs captured within the guest operating system. Specific shared responsibilities are identified within the SLA.
c. If any of the stated personnel providing services under a Participating Addendum is not acceptable to the Purchasing Entity in its sole opinion as a result of the background or criminal history investigation, the Purchasing Entity, in its’ sole option shall have the right to either (1) request immediate replacement of the person, or (2) immediately terminate the Participating Addendum and any related service agreement.
9. Access to Security Logs and Reports:
a. The Contractor shall provide reports on a schedule specified in the SLA to the Contractor directly related to the infrastructure that the Contractor controls upon which the Purchasing Entity’s account resides. Unless otherwise agreed to in the SLA, the Contractor shall provide the public jurisdiction a history or all API calls for the Purchasing Entity account that includes the identity of the API caller, the time of the API call, the source IP address of the API caller, the request parameters and the response elements returned by the Contractor. The report will be sufficient to enable the Purchasing Entity to perform security analysis, resource change tracking and compliance auditing b. The Contractor and the Purchasing Entity recognize that security responsibilities are shared. The Contractor is responsible for providing a secure infrastructure. The Purchasing Entity is responsible for its secure guest operating system, firewalls and other logs captured within the guest operating system. Specific shared responsibilities are identified within the SLA.
10. Contract Audit: The Contractor shall allow the Purchasing Entity to audit conformance to the Master Agreement terms. The Purchasing Entity may perform this audit or contract with a third party at its discretion and at the Purchasing Entity’s expense.
11. Data Center Audit: The Contractor shall perform an independent audit of its data centers at least annually and at its own expense, and provide an unredacted version of the audit report upon request. The Contractor may remove its proprietary information from the unredacted version. For example, a Service Organization Control (SOC) 2 audit report would be sufficient.
12. Change Control and Advance Notice: The Contractor shall give a minimum forty eight (48) hour advance notice (or as determined by a Purchasing Entity and included in the SLA) to the Purchasing Entity of any upgrades (e.g., major upgrades, minor upgrades, system changes) that Redlands Regular meeting of 07-16-24 281 of 2362
may impact service availability and performance. A major upgrade is a replacement of hardware, software or firmware with a newer or better version in order to bring the system up to date or to improve its characteristics. It usually includes a new version number.
Contractor will make updates and upgrades available to Purchasing Entity at no additional costs when Contractor makes such updates and upgrades generally available to its users.
No update, upgrade or other charge to the Service may decrease the Service’s functionality, adversely affect Purchasing Entity’s use of or access to the Service, or increase the cost of the Service to the Purchasing Entity.
Contractor will notify the Purchasing Entity at least sixty (60) days in advance prior to any major update or upgrade.
13. Security: As requested by a Purchasing Entity, the Contractor shall disclose its non-proprietary system security plans (SSP) or security processes and technical limitations to the Purchasing Entity such that adequate protection and flexibility can be attained between the Purchasing Entity and the Contractor. For example: virus checking and port sniffing — the Purchasing Entity and the Contractor shall understand each other’s roles and responsibilities.
14. Non-disclosure and Separation of Duties: The Contractor shall enforce separation of job duties, require commercially reasonable non-disclosure agreements, and limit staff knowledge of Purchasing Entity data to that which is absolutely necessary to perform job duties.
15. Import and Export of Data: The Purchasing Entity shall have the ability to import or export data in piecemeal or in entirety at its discretion without interference from the Contractor at any time during the term of Contractor’s contract with the Purchasing Entity. This includes the ability for the Purchasing Entity to import or export data to/from other Contractors. Contractor shall specify if Purchasing Entity is required to provide its’ own tools for this purpose, including the optional purchase of Contractors tools if Contractors applications are not able to provide this functionality directly.
16. Responsibilities and Uptime Guarantee: The Contractor shall be responsible for the acquisition and operation of all hardware, software and network support related to the services being provided. The technical and professional activities required for establishing, managing and maintaining the environments are the responsibilities of the Contractor. The system shall be available 24/7/365 (with agreed-upon maintenance downtime), and provide service to customers as defined in the SLA.
17. Subcontractor Disclosure: Contractor shall identify all of its strategic business partners related to services provided under this Master Agreement, including but not limited to all subcontractors or other entities or individuals who may be a party to a joint venture or similar agreement with the Contractor, and who shall be involved in any application development and/or operations.
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18. Business Continuity and Disaster Recovery: The Contractor shall provide a business continuity and disaster recovery plan upon request and ensure that the Purchasing Entity’s recovery time objective (RTO) of XXX hours/days is met. (XXX hour/days shall be provided to Contractor by the Purchasing Entity.) Contractor must work with the Purchasing Entity to perform an annual Disaster Recovery test and take action to correct any issues detected during the test in a time frame mutually agreed between the Contractor and the Purchasing Entity.
19. Subscription Terms: Contractor grants to a Purchasing Entity a license to: (i) access and use the Service for its business purposes; (ii) for IaaS, use underlying software as embodied or used in the Service; and (iii) view, copy, upload and download (where applicable), and use Contractor’s documentation.
No Contractor terms, including standard click through license or website terms or use of privacy policy, shall apply to Purchasing Entities unless such terms are included in this Master Agreement via amendment.
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Attachment B に Identification of Service Models Matrix
Offerors must complete the following form to identify the service models your firm offers under this RFP. You may provide a list of the different SaaS, IaaS, and/or PaaS services that you offer, including the Categorization of Risk that you have the ability to store and secure. This document is to provide purchasing entities and eligible users a quick snap shot of the cloud solutions your firm provides.
Service Model: Low Risk Data Moderate Risk Data High Risk Data Deployment Models Offered:
Saas Varies by
Manufacturer Offer
Varies by
Manufacturer Offer
Varies by
Manufacturer Offer
AODocs, CA Technologies, DocuSign, FireEye,
Google, QTS, Salesforce, SAP, ServiceNow,
Virtru, VMware
IaaS Varies by
Manufacturer Offer
Varies by
Manufacturer Offer
Varies by
Manufacturer Offer
FireEye, Google, QTS, Virtustream, VMware
PaaS Varies by
Manufacturer Offer
Varies by
Manufacturer Offer
Varies by
Manufacturer Offer
Google, QTS, Salesforce, SAP, ServiceNow,
Virtustream
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Attachment C – Cost Schedule
_________________________________________________________________________________________________ Solicitation Number CH16012
NASPO ValuePoint Cloud Solutions RFP
Cloud Solutions By Category. Specify Discount Percent % Offered for products in each category. Highest discount will apply for products referenced in detail listings for multiple categories. Provide a detailed product offering for each category.
Software as a Service Discount % 0-21.60
Infrastructure as a Service Discount % _0-10__
Platform as a Services Discount % _0-11__
Value Added Services Discount % _0-13__
-------------------------------------------------------------------------------------------------------------------------- Additional Value Added Services:
Maintenance Services
Onsite Hourly Rate $ _250________
Remote Hourly Rate $ _175_______
Professional Services
Deployment Services Onsite Hourly Rate $ __350_______ Remote Hourly Rate $ _275_______
Consulting/Advisory Services Onsite Hourly Rate $ __300_______ Remote Hourly Rate $ _225_______
Architectural Design Services Onsite Hourly Rate $ __300_______ Remote Hourly Rate $ _225_______
Statement of Work Services Onsite Hourly Rate $ __250_______ Remote Hourly Rate $ _175_______
Partner Services Onsite Hourly Rate $ ___250______
Remote Hourly Rate $ __175______
Training Deployment Services Onsite Hourly Rate $ ___250______ Online Hourly Rate $ ___175______
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STATE OF CALIFORNIA
PARTICIPATING ADDENDUM NUMBER 7-17-70-40-05
AMENDMENT 3
Cloud Solutions
Utah NASPO ValuePoint Master Agreement Number AR2472
Carahsoft Technology Corporation (Contractor)