Susana Alcala Wood, City Attorney Jorge Oseguera, City Auditor Mindy Cuppy, City Clerk Howard Chan, City Manager John Colville, City Treasurer City Council Report
915 I Street, 1st Floor
Sacramento, CA 95814
www.cityofsacramento.org
File ID: 2022-00623 April 05, 2022 Consent Item 06
Title: City Council COVID-19 Response: ARPA Framework and Funding Priorities:
Professional Services Agreement with the Sacramento Asian Pacific Chamber of Commerce on Behalf of the Sacramento Inclusive Economic Development Collaborative for Small Business Utilization Program
Location: Citywide
Recommendation: Pass a Motion authorizing the City Manager or the City Manager’s designee to execute a Professional Services Agreement in an amount not to exceed $682,000 with the Sacramento Asian-Pacific Chamber of Commerce for the Sacramento Inclusive Economic Development Collaborative (Sac IEDC) Small Business Utilization Program.
Contact: Denise Malvetti, Interim Deputy Director, (916) 808-7064, [email protected], City Manager
’s Office of Innovation and Economic
Development; Michael Jasso, Assistant City Manager, (916) 808-1380, [email protected].
Presenter: None.
Attachments:
1-Description/Analysis
2-ARPA Reinvestment Fund Programs
3-Professional Services Agreement
File ID: 2022-00623 Consent Item 06
April 05, 2022
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City of Sacramento
Description/Analysis
Issue Detail: On October 19, 2021, City Council adopted Resolution No. 2021-0313, which authorized the City Manager or City Manager’s designee to accept $112.2 million of American Rescue Plan Act of 2021 (ARPA) funding; establish the ARPA Reinvestment Fund (Fund 1003); and allocate $112.2 million of ARPA funds to provide government services and budget the resulting available resources in the ARPA Reinvestment Fund to assist with the recovery and reopening resulting from the impacts of COVID-19. This action included a budget allocation of $3.5 million in funding for the Sacramento Inclusive Economic Development Collaborative (Sac IEDC) to assist Sacramento’s commercial districts and small businesses in mitigating the impacts from the pandemic.
The Sac IEDC is a collaborative effort between sixteen partner organizations with the goal of activating their collective resources, trusted relationships, and culturally sensitive approaches to benefit small and micro businesses in Sacramento’s disadvantaged neighborhoods and commercial districts. The partnership includes six chambers of commerce: Sacramento Asian- Pacific Chamber, Sacramento Hispanic Chamber, Sacramento Black Chamber, Slavic American Chamber, North Sacramento Chamber, Metro Chamber; nine Property Based Improvement Districts (PBIDs): Del Paso Partnership, Mack Rd. Partnership, Florin Rd.
Partnership, Stockton Blvd. Partnership, Oak Park Business District, River District, Franklin Blvd. Business District, Power Inn Alliance, and the Greater Broadway District; and Hacker Lab. The Sacramento Asian-Pacific Chamber of Commerce is the prime contractor.
The Sac IEDC’s multipronged approach to supporting and growing small businesses includes an in-depth technical assistance and business support program as well as the development of a small business utilization program (SBUP). The technical assistance and business support program was approved by City Council on March 22, 2022.
The City, in partnership with the Sacramento Asian-Pacific Chamber of Commerce and SacIEDC will explore the feasibility of designing and executing a small business utilization program to provide targeted, culturally appropriate technical assistance and mentorship to small businesses. The purpose of the SBUP is to accelerate the economic recovery of small businesses within the city limits that have experienced a negative economic impact because of the COVID-19 public health emergency. The work under this Professional Services Agreement will be divided into three phases. The first phase is the exploration of a SBUP, which will include meeting with internal and external stakeholders to determine the extent to which the SBUP can complement and enhance existing efforts by the City to conduct outreach to, engage, qualify, and measure small businesses participation in the City’s procurement efforts.
Phase I will conclude with summary report that outlines opportunities and decision points for designing and implementing a SBUP in the City of Sacramento.
File ID: 2022-00623 Consent Item 06
April 05, 2022
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City of Sacramento
The summary report will be brought to City Council for input and direction before advancing to future phases of work under the agreement, Phase II (Program Design) and Phase III (Program Implementation).
Policy Considerations: Sacramento’s small businesses continue to be impacted by the COVID-19 public health emergency. The use of ARPA funds to support the development of a small business utilization program is consistent with City Council’s adopted ARPA Framework and Funding Priorities.
Economic Impacts: The City will use the ARPA reinvestment funds to support the Sacramento Inclusive Economic Development Collaborative with developing a SBUP that can help with accelerating the recovery of Sacramento’s small businesses.
Environmental Considerations:
California Environmental Quality Act (CEQA): The proposed actions are not a project under CEQA because they relate to government fiscal activities that do not involve any commitment to a specific project which may result in a potentially significant physical impact on the environment. (Cal. Code Regs., tit. 14, §§15060(c)(3), 15378(b)(4)).
Sustainability: Not Applicable.
Commission/Committee Action: None.
Rationale for Recommendation: On September 14, 2021, City Council adopted the ARPA Framework and Funding Priorities that contained a $3.5 million allocation for the Sac IEDC to support the economic recovery of Sacramento’s small businesses. On October 19, 2021, Council adopted Resolution No. 2021-0313, which took the formal budget action to allocate the $3.5 million for the Sac IEDC. In accordance with the City’s Administrative Policy No. 4102, this contract is being awarded to the Sacramento Asian-Pacific Chamber of Commerce on a sole source basis because the City Council allocated $3.5 million to the Sac IEDC, and the Sacramento Asian-Pacific Chamber of Commerce is a member of the Sac IEDC; it has the capacity to perform these services on behalf of the Sac IEDC; and it has a successful track record of performing services on behalf of the City. Approval of this Professional Service Agreement will allow the City to work in partnership with the Sacramento Asian-Pacific Chamber of Commerce and Sac IEDC partners to develop a SBUP that supports Sacramento small businesses and commercial corridors.
File ID: 2022-00623 Consent Item 06
April 05, 2022
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City of Sacramento
Financial Considerations: On October 19, 2021, Council adopted Resolution No. 2021-0313 that allocated $3.5 million for the Sac IEDC. On March 22, 2022, Council approved an ARPA grant agreement with the Sacramento Asian-Pacific Chamber of Commerce in an amount not to exceed $2,818,000 for the small business technical assistance and support programs.
Sufficient funding is available in the Sac IEDC MYOP (I02612040) to execute this Professional Services Agreement with the Sacramento Asian-Pacific Chamber of Commerce in the amount of $682,000 (ARPA Reinvestment Fund, Fund 1003).
Local Business Enterprise (LBE): Not applicable.
Attachment 2
ARPA Reinvestment Fund (Fund 1003) $112,313,331
Program Description Approved
Expenditure Category
Aggie Square Job Center 1,000,000 3
Animal Services for the Homeless (ASHR) Response Team 753,230 2 Arts and Cultural Nonprofits 2,250,000 4
Arts Journalism Grant Program 250,000 4
Business Compliance Unit (BCU) Night Team 1,656,101 5
Center for Workers' Rights 550,000 3
Citywide Equity Study 250,000 1
Code Enforcement 205,683 2
Community Response Staffing Expansion 1,025,157 2
Comprehensive Siting Plan - Location Buildout 3,634,400 2 Comprehensive Siting Plan - Property Acquisition 12,783,299 2 Continuation of Existing Homelessness Programming 7,933,277 2 Creative Businesses 1,750,000 4
Creative Economy Focused Youth Workforce Development 1,500,000 4 Downtown Core and Old Sacramento Revitalization 5,000,000 1 Forensiclean Extended Services 1,000,000 2
Gang Prevention and Intervention 1,500,000 3
Homeless and Housing Commitment 8,765,664 2
Illegal Dumping Support 787,000 2
Individual Artists and Creatives 2,750,000 4
Labor Negotiations 9,893,510 5
North Sacramento Code Enforcement and Outreach 450,000 1 Public Records Staffing 3,639,334 5
Public Works Support of Homelessness Programming 572,000 2 Respite Centers Program 2,240,290 2
Sacramento Inclusive Economic Development Collaborative 3,500,000 1 Sacramento Native American Health Center 100,000 1
Small Business Priorities 8,200,000 1
Substance Use Respite and Engagement Program 1,300,000 2 Tourism Recovery through Iconic Event Production 1,500,000 4 Towing Administration Fee Reform 200,000 1
Vaccine Outreach and Education 1,000,000 1
Youth Pop-Up Program 1,300,000 3
$89,238,945
ARPA Balance $23,074,386
Allocation of ARPA by Mayor/Council Priorities Category Funding Small Business and Commercial Corridor Revitalization 1 18,700,000 Homeless and Housing Commitment 2 41,000,000
Youth, Workforce Training, and Gang Prevention 3 4,350,000 Arts, Creative Economy, and Tourism 4 10,000,000
Citywide Organizational Needs 5 15,188,945
Total 89,238,945$
American Rescue Plan Act (ARPA) Reinvestment Fund Programs (reflects Council actions through 3/22/2022)
Form Approved by City Attorney 9-1-2021 Page 1
CONTRACT #:
CONTRACT NAME: SacIEDC Small Business Utilization
CONTRACT PROJECT #:
DEPARTMENT: City Manager’s Office
DIVISION: Office of Innovation and Economic Development
CITY OF SACRAMENTO
PROFESSIONAL SERVICES AGREEMENT (COVID-19)
THIS CONTRACT is made at Sacramento, California, by and between the CITY OF SACRAMENTO, a charter city and municipal corporation (“CITY”), and
Sacramento Asian-Pacific Chamber of Commerce
1610 R Street, Suite 322
Sacramento, CA 95811
(916) 446-7883/ [email protected]
(“Contractor”), as of the Effective Date, as defined below.
The City and Contractor agree as follows:
1. Effective Date. This Contract shall be effective beginning April 5, 2022.
2. Contract Documents. This Contract includes each of the following documents, which are attached or incorporated by this reference (referred to collectively as the “Contract Documents”):
Invitation to Bid, Request for Qualifications, or Request for Proposals, and any Addenda Exhibit A – Scope of Work
Exhibit B – Payment
Exhibit C – Insurance
Exhibit D – General Conditions
Exhibit E – Federal Conditions
Purchase Orders
If there is a conflict between the terms and conditions of any document prepared or provided by the Contractor and made a part of this Contract and the other terms or conditions of the Contract, the other terms and conditions of the Contract control.
3. Services. Subject to the terms and conditions set forth in this Contract, Contractor shall provide to City the professional services described in Exhibit A (“Services”).
Contractor will not be compensated for professional services outside the scope of Exhibit A (“Additional Services”) unless, before providing Additional Services: (a) Contractor notifies City and City agrees that the Additional Services are outside the scope of Exhibit A; (b) Contractor estimates the additional compensation required for these Additional Services; and (c) City, after
Form Approved by City Attorney 9-1-2021 Page 2
notice, approves in writing a Supplemental Contract specifying the Additional Services and the amount of additional compensation to be paid Contractor.
City will have no obligations whatsoever under this Contract or any Supplemental Contract, unless and until this Contract or any Supplemental Contract is approved by the City as required by the Sacramento City Code. As used in this Contract, the term “Services” includes both Services and Additional Services as applicable.
4. Payment. City shall pay Contractor at the times and in the manner set forth in Exhibit B.
Contractor shall submit all invoices to City in the manner specified in Exhibit B.
5. Facilities and Equipment. Except as set forth below, Contractor shall, at its sole cost and expense, furnish all facilities and equipment required for Contractor to perform this Contract. City shall furnish to Contractor only the facilities and equipment listed below, if any.
6. Insurance. Contractor shall, at its sole cost and expense, maintain the insurance coverage described in the attached Exhibit C.
7. General Conditions. Contractor shall comply with the terms and conditions set forth in the attached Exhibit D.
8. Federal Conditions. Contractor shall comply with the terms and conditions set forth in the attached Exhibit E.
9. Non-Discrimination in Employee Benefits. This Contract may be subject to Sacramento City Code chapter 3.54, Non-Discrimination in Employee Benefits by City Contractors. A summary of the requirements, entitled "Requirements of the Non-Discrimination in Employee Benefits Code (Equal Benefits Ordinance),” can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
Contractor acknowledges and represents that Contractor has read and understands the requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.54. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance.
Contractor's violation of Sacramento City Code chapter 3.54 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
10. Considering Criminal Conviction Information in the Employment Application Process. This Contract may be subject to the requirements of Sacramento City Code chapter 3.62, Procedures for Considering Criminal Conviction Information in the Employment Application Process. A summary of the requirements, entitled “Ban-The-Box Requirements,” can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
The Ban-The-Box Requirements are applicable to certain contracts with the City in an amount of $250,000 or more (either initial value or total value after amendment) or if the total value of all Contractor's contracts with the City is $250,000 or more over a 12-month period.
Form Approved by City Attorney 9-1-2021 Page 3
Contractor acknowledges and represents that Contractor has read and understands these requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.62. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance. Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.62 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.62.
Contractor's violation of Sacramento City Code chapter 3.62 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
12. Authority. The person signing this Contract for Contractor represents and warrants that he or she has read, understands, and agrees to all the Contract terms and is fully authorized to sign this Contract on behalf of the Contractor and to bind the Contractor to the performance of the Contract’s obligations.
[Signatures Page Following Exhibits]
Form Approved by City Attorney 9-1-2021 Exhibit A - Page 1
EXHIBIT A
SCOPE OF SERVICES
1. Representatives.
The CITY Representative for this Agreement is:
Denise Malvetti, Economic Development Manager
915 I Street, 3rd Floor
Sacramento, CA 95814
(916) 808-7064/ [email protected]
The CONTRACTOR Representative for this Agreement is:
Pat Fong Kushida, President and CEO
1610 R Street, Suite 322
Sacramento, CA 95811
(916) 446-7883/ [email protected]
Unless otherwise provided in this Contract, all Contractor questions and correspondence pertaining to this Contract must be addressed to the City Representative. All City questions and correspondence must be addressed to the Contractor Representative.
2. Scope of Services. Contractor shall provide Services to City as set forth in Attachment 1 to this Exhibit A.
3. Time of Performance. The Services described in this Contract shall be provided for one year.
The City may extend this Contract for up to one additional one-year term, for a maximum two- year term. Contractor shall provide the Services in accordance with any schedule in Attachment 1 to this Exhibit A. Contractor shall immediately notify the City if Contractor is unable to perform Services in compliance with this Contract.
4. Conflict of Interest Requirements. The individual(s) who will provide Services pursuant to this Contract are “Consultants” within the meaning of the Political Reform Act and the City’s Conflict of Interest Code. ____ yes __X__ no [check one]
Contractor shall cause the following to occur within 30 days after execution of this Contract:
(A) Identify the individuals who will provide Services or perform Work under this Contract as "Consultants"; and
(B) Cause these individuals to file with the City Representative the "assuming office" statements of economic interests required by the City's Conflict of Interest Code.
Thereafter, throughout the term of the Contract, Contractor shall cause these individuals to file with the City Representative annual statements of economic interests and "leaving office" statements of economic interests, as required by the City's Conflict of Interest Code. The City
Form Approved by City Attorney 9-1-2021 Exhibit A - Page 2 may withhold all or a portion of any payment due under this Contract or impose fines on the individuals until all required statements are filed.
Attachment 1 to Exhibit A
Background
The City has retained the Contractor to assist it in exploring the feasibility of designing and executing a small-business-utilization program to provide targeted, culturally appropriate technical assistance and mentorship to small businesses (the “SBUP”). The purpose of the SBUP is to accelerate the economic recovery of small businesses with the city limits of the City of Sacramento that have experienced a negative economic impact because of the COVID-19 public health emergency. As used in this Contract, the term “small business” means a business that (i) meets the definition of small business in section 35.3 of the ARPA final rule (title 31, CFR, section 35.3) and (ii) qualifies as at least one of the following: minority owned business (MBE), disadvantaged business enterprise (DBE), women’s business enterprise (WBE), or Veteran- owned small business (VOSB).
With these background facts in mind, the Contractor shall provide the Services as follows :
1. Phased Work. The Services under this Contract are broken into three phases: Phase I, Phase II, and Phase III. The Contractor shall provide the Phase I Services beginning on the effective date of this Contract. Phase II and Phase III are optional phases, and the Contractor shall perform the Phase II Services and Phase III Services only if the City directs it to do so in writing.
2. Phase I Services: SBUP Exploration. The Contractor shall meet with internal and external stakeholders to determine the extent to which the SBUP can complement and enhance existing efforts by the City to conduct outreach to, engage, qualify, and measure small businesses participation in the City’s procurement efforts.
(a) In providing the Phase I Services, the Contractor shall do the following:
(1) Meet with City staff including representatives from the Finance Department and the Office of Innovation and Economic Development to understand the successes and challenges of past and current Small Business and Local Business programs;
(2) Meet with other City departments as directed by the City to identify their purchasing needs and identify specific industries with the greatest opportunity to contract with the City;
(3) Research best practices for small- and micro-business-utilization program design, implementation, outreach, and technical assistance;
(4) Utilize the Sac IEDC network to meet with small businesses to understand challenges of doing business with the City and other governmental, institutional, and corporate entities; and
(5) Prepare and deliver to the City a summary report that outlines opportunities and decision points for designing and implementing a SBUP in the City of Sacramento.
(b) The Contractor shall complete the Phase I Services no later than 90 days after the effective date of this Contract.
3. Phase II: SBUP Design (Optional). The City will decide in its sole discretion whether to proceed with the Phase II Services. As used in this Contract, “sole discretion” means that the City may decide whether to proceed with the Phase II or Phase III Services based solely on its own assessment of the City’s interests and without considering how its decision affects the Contractor. The Contractor shall not perform the Phase II Services unless the City directs it to do so in writing. If the City provides the Contractor with written direction to perform the Phase II Services, Contractor shall, based on the outcome and policy direction from the Phase I Services, work with City staff to design the SBUP.
(a) In performing the Phase II Services, the Contractor shall do the following:
(1) Determine how to engage the community;
(2) Determine how to seek out small businesses;
(3) Determine how to deliver technical assistance to small businesses;
(4) Determine how to connect and match small businesses to City of Sacramento contract opportunities;
(5) Propose what, if any, involvement Contractor would have in implementing the SBUP;
(6) Determine how to measure SBUP success;
(7) Endeavour to identify sustainable non-City revenue sources that match the funding the City provides for the SBUP; and
(8) Prepare and deliver to the City SBUP guidelines.
(b) The Contractor shall complete the Phase II Services no later than 90 days after the City provides written notice to proceed with the Phase II Services.
4. Phase III: SBUP Implementation. The City will decide in its sole discretion whether to proceed with the Phase III Services. The Contractor shall not perform the Phase III Services unless the City directs it to do so in writing. If the City provides the Contractor with written direction to perform the Phase III Services, Contractor shall assist the City in
implementing the SBUP. The parties acknowledge that Phase III Services may be further defined based on the SBUP components defined as part of the Phase II Services.
(a) In performing the Phase III Services, the Contractor shall do the following:
(1) Identify a software system that the Contractor and City have access to that can catalogue small businesses that may be qualified to respond to City solicitations;
(2) In partnership with the SacIEDC partners, conduct outreach to small businesses to identify and qualify them for City contracting opportunities;
(3) In partnership with the SacIEDC partners, provide small businesses with technical assistance, including assistance registering for state and federal designations (including Women Owned Business, Minority Owned Business, Disadvantaged Business Enterprise, Veteran Owned Business) and training related to responding to City RFPs, RFQs and bid requests;
(4) Create a performance evaluation tool to track the success of the SBUP; and
(5) Prepare and deliver a closeout report that identifies the number of small businesses assisted through the SBUP, demographic and location information for the businesses, type of assistance provided, number of group trainings, hours of technical assistance, and amount of funds leveraged from other sources to support the SBUP.
(b) The Contractor shall complete the Phase III Services no later than 180 days after the City provides written notice to proceed with the Phase III Services.
Form Approved by City Attorney 9-1-2021 Exhibit B - Page 1
EXHIBIT B
PAYMENT
1. Contractor’s Compensation. The total of all fees paid to the Contractor for the provision of Services as set forth in Exhibit A, including any authorized reimbursable expenses, shall not exceed the total sum of $ 682,000.00. The payments specified in this Exhibit B shall be the only payments made to Contractor unless the City approves a Supplemental Contract.
2. Billable Rates. Contractor shall be paid as set forth in Exhibit A or Attachment 1 to this Exhibit B and any applicable special provisions included in the request for bids or proposals. If there is a conflict between Exhibit A or Exhibit B and the Special Provisions, Exhibit A or Exhibit B controls.
3. Contractor’s Reimbursable Expenses. “Reimbursable Expenses” are limited to actual expenditures of Contractor for expenses that are necessary for the proper satisfaction of the Contract and are only payable if specifically authorized in advance in writing by the City. No charges or markup will be allowed unless specified in the Contract, including charges for travel and transportation.
4. Payments to Contractor. Contractor is responsible for supplying all documentation necessary to verify invoices to the City’s satisfaction.
A. Payments to Contractor shall be made within a reasonable time after receipt of Contractor’s invoice, in proportion to services performed or as otherwise specified in Attachment 1 to Exhibit B. Contractor may request payment on a monthly basis.
Contractor shall be responsible for the cost of supplying all documentation necessary to verify the monthly billings to the satisfaction of the City.
B. Invoices must be submitted to either of the addresses specified below. (1) Email. Submit email invoices and any attachments to:
[email protected]
(2) Postal Mail. If emailing is not an option, mail to:
A/P Processing Center
City of Sacramento
915 I Street, Floor 4
Sacramento, CA 95814-2608
C. All invoices submitted by Contractor must contain the following information:
(1) Job/Project Name
(2) CITY’s current Purchase Order Number
(3) Contractor’s Invoice Number
(4) Date of Invoice Issuance
(5) Work Order Number (if applicable)
(6) CITY representative identified on the Purchase Order (7) Contractor’s remit address
Form Approved by City Attorney 9-1-2021 Exhibit B - Page 2 (8) Description of services billed under Invoice
(9) Itemized description of all authorized Reimbursable Expenses (10) Amount of Invoice (itemize all authorized Reimbursable Expenses) (11) Total Billed to Date under Contract (if applicable)
D. Items must be separated into Services and Reimbursable Expenses. Invoices that do not conform to the format outlined above will be returned to Contractor for correction. City is not responsible for delays in payment to Contractor resulting from Contractor’s failure to comply with the invoice format described above.
6. Additional Services. Additional Services shall be provided only when a Supplemental Contract authorizing the Additional Services is approved in writing by the City in accordance with the City’s contract amendment procedures. The City reserves the right to perform any Additional Services with its own staff or to retain other contractors to perform the Additional Services.
7. Tax Payments. Contractor shall pay, when and as due, any and all taxes incurred as a result of Contractor’s compensation hereunder, including estimated taxes, and shall provide CITY with proof of the payment upon request. Contractor hereby agrees to indemnify CITY for any claims, losses, costs, fees, liabilities, damages or injuries suffered by CITY arising out of Contractor’s breach of this section.
9. Public Works Requirements. [To be completed by the City Representative:]
The services provided under this Contract include [check one if applicable]:
________ Construction work in an amount exceeding $25,000;
________ Land Surveying, material testing, or inspection services provided for a City construction project during the design, pre-construction, construction, or post-construction phases of the project; or
________ Alteration, demolition, repair, or maintenance work in an amount exceeding $15,000.
If any of the lines is checked above , this Contract includes “Public Work” under the California Labor Code and is subject to the following requirements:
A. Payment of Prevailing Wages: Contractor and any subcontractor(s) performing any Public Work shall comply with the provisions of Sacramento City Code section 3.60.180 and applicable provisions of the California Labor Code, which require, among other things, that Contractor and all subcontractors pay not less than the prevailing rate of wages, as determined by the Director of the California Department of Industrial Relations (“DIR”) in accordance with California Labor Code section 1773. Contractor and every subcontractor shall maintain payroll records and submit certified payrolls and other labor compliance documentation electronically when and as required by CITY. In addition, Labor Code Section 1771.4 requires the Contractor and any subcontractor performing any Public
Form Approved by City Attorney 9-1-2021 Exhibit B - Page 3 Work to furnish electronic payroll records directly to the Labor Commissioner. Contractor shall include these requirements in every subcontract.
This Agreement is subject to compliance monitoring and enforcement by the DIR, as specified in California Labor Code section 1771.4. The Contractor and any subcontractor will be subject to withholding and penalties for violation of prevailing wage requirements in accordance with applicable law, including Labor Code Sections 1726, 1741, 1771.5, and 1775, and City Code Section 3.60.180. Questions regarding the City’s Labor Compliance Program should be directed to the City Representative.
B. DIR Registration: California Labor Code Section 1725.5 requires the Contractor and all subcontractors performing Public Works services to be currently registered with the DIR, as specified in California Labor Code Section 1725.5. California Labor Code Section 1771.1 provides that a contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal (subject to the requirements of Section 4104 of the California Public Contract Code), or engage in the performance of any contract for Public Work, unless currently registered and qualified to perform Public Work in accordance with California Labor Code Section 1725.5.
Further information can be found on DIR’s website at http://www.dir.ca.gov/Public- Works/Contractors.html. The above summary is provided solely for informational purposes and does not in any way affect the Contractor’s and subcontractors’ obligation to comply in all respects with all other applicable laws and regulations. The Contractor shall disseminate these provisions to all subcontractors.
Before the performance of work by Contractor or any subcontractor(s) under this Contract, Contractor shall furnish Contractor’s and any subcontractors’ current DIR registration number(s). The Contractor’s current DIR registration number and the current DIR registration number of all subcontractors will be listed on the Subcontractor and LBE Participation Verification Form, incorporated herein.
C. Workers’ Compensation Certification. In accordance with California Labor Code Section 1861, by signing this Contract, Contractor acknowledges and represents that Contractor is aware of the provisions of section 3700 of the California Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and that Contractor will comply with the provisions of the Labor Code before commencing performance under this Contract.
D. Apprentices. If this Contract is for the performance of any Public Work, and the amount of the Contract is $30,000 or more, the Contractor and any subcontractors performing any Public Work under this Contract must comply with and be subject to enforcement under, the provisions of Sacramento City Code Section 3.60.190, Section 1777.5 et seq. of the California Labor Code, and implementing regulations set forth in Title 8 of the California Code of Regulations, governing the employment of apprentices. The Contractor and any subcontractors performing Public Work will be subject to penalties for apprenticeship violations in accordance with Labor Code Section 1777.7.
Form Approved by City Attorney 9-1-2021 Exhibit B - Page 4
E. Working Hours. If this Contract is for the performance of any Public Work, Contractor and any subcontractors performing any Public Work under this Contract must comply with and be subject to enforcement under, the provisions of Sacramento City Code Section 3.60.180 and California Labor Code Section 1810 et seq., governing the working hours of employees performing Public Work.
F. Failure to Comply with Labor Compliance. If all applicable labor compliance requirements are not met, the City will have the right to withhold or reject a payment request and/or invoice, in whole or in part, without in any way relieving Contractor or its subcontractors of any obligations under this Contract.
G. Subcontractors. The Contractor shall include these provisions A through F in every subcontract or sub-agreement for any subcontractors performing work under this Contract.
Attachment 1 to Exhibit B
Payment Schedule
Phase I - Exploration
Salary and Benefits $36,500
Phase II - Program Design (optional – upon City’s election)
Salary and Benefits $49,000
Phase III - Program Implementation (optional – upon City’s election)
Salary and Benefits $189,500
Supplies (Software) $60,000
Nonprofessional Services (Marketing & Translation) $20,000 Budget for Technical Assistance $307,000
TA Module Development $20,000
Total $564,500
Total $682,000
Form Approved by City Attorney 9-1-2021 Exhibit C - Page 1
EXHIBIT C
INSURANCE
1. Insurance Requirements . During the entire term of this Contract, Contractor shall maintain the insurance coverage described in the Insurance Terms below. Full compensation for all premiums that Contractor is required to pay for the insurance coverage described herein shall be included in the compensation specified under this Contract. No additional compensation will be provided for Contractor's insurance premiums. Any available insurance proceeds in excess of the specified minimum limits and coverages shall be available to the City.
Contractor's liability to the City is not in any way limited to or affected by the amount of insurance coverage required or carried by the Contractor in connection with this Contract.
2. General Liability Minimum Scope and Limits of Insurance Coverage. Commercial General Liability Insurance is required providing coverage at least as broad as ISO CGL Form 00 01 on an occurrence basis for bodily injury, including death, of one or more persons, property damage, and personal injury, arising out of activities performed by or on behalf of the Contractor and subcontractors, products and completed operations of Contractor and subcontractors, and premises owned, leased, or used by Contractor and subcontractors, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide contractual liability and products and completed operations coverage for the term of the policy.
The City, its officials, employees and volunteers shall be covered by policy terms or endorsement as additional insureds as respects general liability arising out of: activities performed by or on behalf of Contractor and subcontractors; products and completed operations of Contractor and subcontractors; and premises owned, leased, or used by Contractor and subcontractors.
3. Automobile Liability Minimum Scope and Limits of Insurance Coverage . (Check the applicable provision.)
_X_ Automobile Liability Insurance is required providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide coverage for owned, non-owned and/or hired autos as appropriate to the operations of the Contractor.
The City, its officials, employees and volunteers shall be covered by policy terms or endorsement as additional insureds as respects auto liability.
___ No automobile liability insurance is required, and by signing this Contract, Contractor certifies as follows:
“Contractor certifies that a motor vehicle will not be used in the performance of any work or services under this agreement. If, however, Contractor does transport items under this Contract, or this Contract is amended to require any employees of Contractor to use a
Form Approved by City Attorney 9-1-2021 Exhibit C - Page 2 vehicle to perform services under the Contract, Contractor understands that it must maintain and provide evidence of Automobile Liability Insurance providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide coverage for owned, non- owned and/or hired autos as appropriate to the operations of the Contractor.”
4. Excess Insurance . The minimum limits of insurance required above may be satisfied by a combination of primary and umbrella or excess insurance coverage, provided that any umbrella or excess insurance contains, or is endorsed to contain, a provision that it will apply on a primary basis for the benefit of the City, and any insurance or self-insurance maintained by City, its officials, employees, or volunteers will be in excess of Contractor's umbrella or excess coverage and will not contribute to it.
5. Workers’ Compensation Minimum Scope and Limits of Insurance Coverage. (Check the applicable provision.)
_X_ Workers’ Compensation Insurance is required with statutory limits and Employers' Liability Insurance with limits of not less than one million dollars ($1,000,000). The Workers' Compensation policy shall include a waiver of subrogation in favor of the City.
___ No work or services will be performed on or at CITY facilities or CITY Property, therefore a Workers’ Compensation waiver of subrogation in favor of the CITY is not required.
___ No Workers’ Compensation insurance is required, and by signing this Contract, Contractor certifies as follows:
“Contractor certifies that its business has no employees, and that it does not employ anyone, and is therefore exempt from the legal requirements to provide Workers' Compensation insurance. If, however, Contractor hires any employee during the term of this Contract, Contractor understands that Workers’ Compensation with statutory limits and Employer’s Liability Insurance with a limit of not less than one million dollars ($1,000,000) is required. The Workers’ Compensation policy will include a waiver of subrogation in favor of the City.”
6. Professional Liability Minimum Scope and Limits of Insurance Coverage. Professional Liability Insurance providing coverage on a claims-made basis for errors and omissions, or malpractice with limits of not less than one million dollars ($1,000,000):
Is _____ Is not __X___ [check one] required for this Agreement.
If required, such coverage must be continued for at least ____ year(s) following the completion of all Services under this Contract. The retroactive date must be prior to the date this Contract is approved or any Services are performed.
6. Other Insurance Provisions. The policies must contain, or be endorsed to contain, the following provisions:
Form Approved by City Attorney 9-1-2021 Exhibit C - Page 3 A. Contractor's insurance coverage, including excess insurance, shall be primary insurance as respects the City, its officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officials, employees or volunteers will be in excess of Contractor's insurance and will not contribute with it.
B. Any failure to comply with reporting provisions of the policies will not affect coverage provided to the City, its officials, employees or volunteers.
C. Coverage shall state that Contractor's insurance applies separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
D. Contractor shall provide the City with 30 days written notice of cancellation or material change in the policy language or terms.
7. Acceptability of Insurance . Insurance must be placed with insurers with a Bests' rating of not less than A:VI. Self-insured retentions, policy terms or other variations that do not comply with the requirements of this Exhibit C must be declared to and approved by the City in writing before execution of this Contract.
8. Verification of Coverage.
A. Contractor shall furnish City with certificates and required endorsements evidencing the insurance required. Certificates of insurance must be signed by an authorized representative of the insurance carrier. Copies of policies shall be delivered to the City Representative on demand.
B. Contractor shall send all insurance certificates and endorsements, including policy renewals, during the term of this Contract directly to:
City of Sacramento
c/o Exigis LLC
PO Box 947
Murrieta, CA 92564
C. Certificate Holder must be listed as:
City of Sacramento
c/o Exigis LLC
PO Box 947
Murrieta, CA 92564
D. The City may withdraw its offer of Contract or cancel this Contract if the certificates of insurance and endorsements required have not been provided before execution of this Contract. The City may withhold payments to Contractor and/or cancel the Contract if the insurance is canceled or Contractor otherwise ceases to be insured as required herein.
9. Subcontractor Insurance Coverage . Contractor shall require and verify that all subcontractors maintain insurance coverage that meets the minimum scope and limits of insurance coverage specified in this Exhibit C.
Form Approved by City Attorney 9-1-2021 Exhibit D - Page 1
EXHIBIT D
GENERAL CONDITIONS
1. Independent Contractor.
A. It is understood and agreed that Contractor (including Contractor’s employees) is an independent contractor and that no relationship of employer-employee exists between the parties hereto for any purpose whatsoever. Neither Contractor nor Contractor’s assigned personnel will be entitled to any benefits payable to CITY employees. CITY is not required to make any deductions or withholdings from the compensation payable to Contractor under the provisions of this Contract, and Contractor will be issued a Form 1099 for its services hereunder. As an independent contractor, Contractor hereby agrees to indemnify and hold CITY harmless from any and all claims that may be made against CITY based upon any contention by any of Contractor’s employees or by any third party, including any state or federal agency, that an employer-employee relationship or a substitute therefor exists for any purpose whatsoever by reason of this Contract or by reason of the nature and/or performance under this Contract.
B. It is further understood and agreed by the parties that Contractor, in the performance of its obligations, is subject to the City’s control and direction as to the designation of tasks to be performed and the results to be accomplished under this Contract, but not as to the means, methods, or sequence used by Contractor for accomplishing the results. To the extent that Contractor obtains permission to, and does, use CITY facilities, space, equipment or support services in the performance of this Contract, this use will be at the Contractor’s sole discretion based on the Contractor’s determination that the use will promote Contractor’s efficiency and effectiveness. Except as may be specifically provided elsewhere in this Contract, the CITY does not require that Contractor use CITY facilities, equipment or support services or work in CITY locations in the performance of this Contract. As used in this Contract, "sole discretion" or "sole judgment" means that the party authorized to exercise its discretion or judgment may do so based on an unfettered assessment of its own interests, without considering how its decision affects the other party, and unconstrained by the implied covenant of good faith and fair dealing.
C. If, in the performance of this Contract, any third persons are employed by Contractor, such persons will be entirely and exclusively under the direction, supervision, and control of Contractor. Except as otherwise provided in this Contract, all terms of employment, including hours, wages, working conditions, discipline, hiring, and discharging, or any other terms of employment or requirements of law, shall be determined by Contractor.
It is further understood and agreed that Contractor will issue W-2 or 1099 Forms for income and employment tax purposes for all Contractor’s assigned personnel and subcontractors.
D. The provisions of this section will survive any expiration or termination of this Contract.
Nothing in this Contract creates an exclusive relationship between CITY and Contractor.
Contractor may represent, perform services for, or be employed by any additional persons or companies so long as Contractor does not violate the provisions of Section 5, below.
Form Approved by City Attorney 9-1-2021 Exhibit D - Page 2
2. Licenses; Permits, Etc. Contractor represents and warrants that Contractor has, and shall maintain at all times during the term of this Contract at its sole cost and expense, all licenses, permits, qualifications, certificates, and approvals of any nature that are legally required for Contractor to practice its profession or fulfill the terms of this Contract, including a City Business Operations Tax Certificate and any required certification issued by the California Secretary of State.
3. Time. Time is of the essence in the performance of this Contract. Contractor shall devote the necessary time and effort to its performance under this Contract. Neither party will be considered in default of this Contract, to the extent that party’s performance is prevented or delayed by any cause, present or future, that is beyond the reasonable control of that party.
4. Contractor Not Agent. Except as City may specify in writing, Contractor and Contractor’s personnel have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor and Contractor’s personnel shall have no authority, express or implied, to bind City to any obligations whatsoever.
5. Conflicts of Interest. Contractor covenants that neither it, nor any officer or principal of its firm, has or will acquire any interest, directly or indirectly, that would conflict in any manner with the City’s interests or that would in any way hinder Contractor’s performance under this Contract.
Contractor further covenants that in the performance of this Contract, no person having any such interest will be employed by it as an officer, employee, agent or subcontractor, without the City’s written consent.
Contractor agrees to avoid conflicts of interest or the appearance of any conflicts of interest with the City’s interests during the performance of this Contract. If Contractor is or employs a former officer or employee of the City, Contractor and any former City officer or employee shall comply with the provisions of Sacramento City Code Section 2.16.090 pertaining to appearances before the City Council or any City department, board, commission, or committee.
6. Hazardous Substances. "Hazardous Substances" means any substance, material, waste, or other pollutant or contaminant that is or becomes designated, classified, or regulated as hazardous or toxic under any law, regulation, rule, order, decree, or other governmental requirement now in effect or later enacted. If Contractor is shipping Hazardous Substances, Contractor must supply a Safety Data Sheet ("SDS") with the first shipment of Hazardous Substances to each City location receiving the Hazardous Substances. If the content of an SDS is revised, Contractor must provide a revised SDS to each City location receiving Hazardous Substances.
7. Confidentiality of City Information. During performance of this Contract, Contractor may gain access to and use City information regarding inventions, machinery, products, prices, apparatus, costs, discounts, future plans, business affairs, governmental affairs, processes, trade secrets, technical matters, systems, facilities, customer lists, product design, copyright, data, and other vital information (hereafter collectively referred to as “City Information”) that are valuable, special and unique assets of the City.
Contractor agrees to protect all City Information and treat it as strictly confidential, and further
Form Approved by City Attorney 9-1-2021 Exhibit D - Page 3 agrees that Contractor shall not at any time, either directly or indirectly, divulge, disclose or communicate in any manner any City Information to any third party without the City’s prior written consent.
In addition, Contractor must comply with all City policies governing the use of the CITY network and technology systems, as set forth in applicable provisions of the City of Sacramento Administrative Policy Instructions # 30. A violation by Contractor of this section is a material violation of this Contract and shall justify legal and equitable relief.
8. Contractor Information.
A. City shall have full ownership and control, including ownership of any copyrights, of all information prepared, produced, or provided by Contractor under this Contract. In this Contract, the term “information” means and includes: any and all work product, submittals, reports, plans, specifications, and other deliverables consisting of documents, writings, handwritings, typewriting, printing, photostatting, photographing, computer models, and any other computerized data and every other means of recording any form of information, communications, or representation, including letters, works, pictures, drawings, sounds, or symbols, or any combination thereof. Contractor shall not be responsible for any unauthorized modification or use of such information for other than its intended purpose by City.
B. Contractor shall fully defend, indemnify and hold harmless City, its officers and employees, and each of them, from and against any and all claims, actions, lawsuits or other proceedings alleging that all or any part of the information prepared, produced, or provided by Contractor under this Contract infringes upon any third party’s trademark, trade name, copyright, patent or other intellectual property rights. City shall make reasonable efforts to notify Contractor not later than ten days after City is served with any such claim, action, lawsuit or other proceeding. However, City’s failure to provide notice within the ten-day period does not relieve Contractor of its obligations hereunder, which survive any termination or expiration of this Contract.
C. All proprietary and other information received from Contractor by City, whether received in connection with Contractor’s proposal to City or in connection with Contractor’s performance, will be disclosed upon receipt of a request for disclosure, in accordance with the California Public Records Act; provided, however, that, if any information is set apart and clearly marked “trade secret” when it is provided to City, City shall give notice to Contractor of any request for the disclosure of such information. The Contractor will then have five days from the date it receives notice to petition the court for a protective order to prevent the disclosure of the information. The Contractor shall have sole responsibility for defense of the actual “trade secret” designation of such information.
D. The parties understand and agree that any failure by Contractor to respond to the notice provided by City and seek a protective order, in accordance with the provisions of subsection C, above, constitutes a complete waiver by Contractor of any rights regarding the information designated “trade secret” by Contractor, and the information will be disclosed by City in accordance with the Public Records Act.
Form Approved by City Attorney 9-1-2021 Exhibit D - Page 4
9. Notification of Material Changes in Business. Contractor agrees that if it experiences any material changes in its business, including a reorganization, refinancing, restructuring, leveraged buyout, bankruptcy, name change, or loss of key personnel, it will immediately notify the City of the changes. Contractor also agrees to immediately notify the City of any condition that may jeopardize the scheduled delivery or fulfillment of Contractor's obligations to the City under this Contract.
10. Standard of Performance. Contractor shall perform in the manner and according to the standards currently observed by a competent practitioner of Contractor’s profession in California and in compliance with all requirements of this Contract. All products that Contractor delivers to City under this Contract must be prepared in a professional manner and conform to the standards of quality normally observed by a person currently practicing in Contractor’s profession.
Contractor shall assign only competent personnel to perform on its behalf under this Contract.
Contractor must notify the City in writing of any changes in Contractor’s staff assigned to perform under this Contract, before any performance by the new staff member. If the City, in its sole discretion, determines that any person assigned by the Contractor to perform under this Contract is not performing in accordance with the standards required herein, City shall provide notice to Contractor. Contractor shall immediately remove the assigned person upon receipt of the notice.
11. Performance or Different Terms and Conditions. The City's subsequent performance will not be construed as either acceptance of additional or different terms and conditions or a counteroffer by the Contractor, nor will the City's subsequent performance be viewed as acceptance of any provision of the Uniform Commercial Code, as adopted by any State, that is contrary to the terms and conditions contained herein. Contractor's performance shall conform to the applicable requirements of the Sacramento City Charter, Sacramento City Code, and all applicable State and Federal laws, and all the requirements of this Contract. The California Commercial Code will apply except as otherwise provided in the Contract.
12. Emergency/Declared Disaster Requirements. If an emergency is declared by the City Manager, or if any portion of the City is declared a disaster area by the county, state or federal government, this Contract may be subjected to increased usage. The Contractor shall serve the City during a declared emergency or disaster, subject to the same terms and conditions that apply during non- emergency / non-disaster conditions. The pricing set forth in this Contract will apply, without mark-up, regardless of the circumstances. If the Contractor is unable to fulfill the terms of the Contract because of a disruption in its chain of supply or service, then the Contractor shall provide proof of the disruption. Acceptable forms of proof will include a letter or notice from the Contractor's source stating the reason for the disruption
13. Term; Suspension; Termination.
A. This Contract is effective on the Effective Date and continues in effect until both parties have fully performed their respective obligations under this Contract, unless sooner terminated as provided herein.
B. City shall have the right at any time to suspend Contractor’s performance hereunder, in whole or in part, by giving a written notice of suspension to Contractor. Upon receipt of
Form Approved by City Attorney 9-1-2021 Exhibit D - Page 5 such notice, Contractor shall immediately suspend its activities under this Contract, as specified in the notice.
C. The City shall have the right to terminate this Contract at any time by giving a written notice of termination to Contractor. Upon receipt of such notice, Contractor shall immediately cease performance under this Contract as specified in the notice. If the City terminates this Contract:
(1) Contractor shall, not later than five days after receipt of the notice, deliver all information prepared under this Contract to the City.
(2) The City shall pay Contractor the reasonable value of Goods or Services provided by Contractor before termination; provided, however, City shall not in any manner be liable for lost profits that might have been made by Contractor had the Contract not been terminated or had Contractor completed performance required by this Contract. Contractor shall furnish to the City any financial information requested by the City to determine the reasonable value of the Goods or Services provided by Contractor. The foregoing is cumulative and does not affect any right or remedy that City may have in law or equity.
14. Default by Contractor. In case of default by the Contractor, the City reserves the right to procure the Goods or Services from other sources and deduct from any monies due, or that may thereafter become due to the Contractor, the difference between the price named in this Contract and the actual cost to the City to procure from an alternate source. Prices paid by the City will be considered the prevailing market price at the time such purchase is made.
15. Indemnity.
A. Indemnity: Contractor shall defend, hold harmless, and indemnify City, its officers, and employees, and each and every one of them, from and against all actions, damages, costs, liabilities, claims, demands, losses, judgments, penalties, and expenses of every type and description, whether arising on or off the site of the work or services performed under this Contract, including any fees and costs reasonably incurred by City’s staff attorneys or outside attorneys and any fees and expenses incurred in enforcing this provision (hereafter collectively referred to as “Liabilities”), including Liabilities for personal injury or death, damage to personal, real, or intellectual property, damage to the environment, contractual or other economic damages, or regulatory penalties, arising out of or in any way connected with performance of or failure to perform this Contract by Contractor, any subcontractor (including lower-tier subcontractors) or agent of Contractor, their respective officers and employees, and anyone else for whose acts of omissions any of them may be liable, whether or not the Liabilities (i) are caused in part by a party indemnified hereunder, or (ii) are litigated, settled, or reduced to judgment; provided that the foregoing indemnity does not apply to liability for damages for death or bodily injury to persons, injury to property, or other loss, damage, or expense, to the extent arising from the active negligence or willful misconduct of, or defects in design furnished by, City, its agents, servants, or independent contractors who are directly responsible to City, except when such agents,
Form Approved by City Attorney 9-1-2021 Exhibit D - Page 6 servants, or independent contractors are under the supervision and control of Contractor or any subcontractor (including lower-tier subcontractors) or agent of Contractor.
B. Insurance Policies; Intellectual Property Claims : The existence or acceptance by City of any of the insurance policies or coverages described in this Contract will not affect or limit any of City’s rights under this Section, nor will the limits of any insurance limit the liability of Contractor hereunder. This Section will not apply to any intellectual property claims, actions, lawsuits or other proceedings subject to the provisions of section 8.B., above.
C. Survival. The provisions of this section will survive any expiration or termination of this Contract.
17. Funding Availability.
A. This Contract is subject to the budget and fiscal provisions of the Charter and the Sacramento City Code.
B. The City’s payment obligation under this Contract will not exceed the amount of funds appropriated and approved for this Contract by the Sacramento City Council.
C. This Section shall govern over any other contrary provision of the Contract.
18. Equal Employment Opportunity. During the performance of this Contract, Contractor, for itself, its assignees and successors in interest, agrees as follows:
A. Compliance With Regulations: Contractor shall comply with all state, local, and federal anti-discrimination laws and regulations, including the Executive Order 11246 entitled “Equal Opportunity in Federal Employment,” as amended by Executive Order 11375, 12086, and 13672, and as supplemented in Department of Labor regulations (41 CFR Chapter 60), referred to collectively as the “Regulations.”
B. Nondiscrimination: Contractor, with regards to the work performed by it after award and before completion of the work under this Contract, shall not discriminate on the ground of race, color, religion, sex, national origin, age, marital status, physical handicap or sexual orientation in selection and retention of subcontractors, including procurement of materials and leases of equipment. Contractor shall not participate either directly or indirectly in discrimination prohibited by the Regulations.
C. Solicitations for Subcontractors, Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiations made by Contractor for work to be performed under any subcontract, including all procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Contractor of Contractor’s obligation under this Contract and the Regulations relative to nondiscrimination on the ground of race, color, religion, sex, national origin, age, marital status, physical handicap or sexual orientation.
Form Approved by City Attorney 9-1-2021 Exhibit D - Page 7 D. Information and Reports: Contractor shall provide all information and reports required by the Regulations, or by any orders or instructions issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the City to be pertinent to ascertain compliance with the Regulations, orders and instructions. Where any information required of Contractor is in the exclusive possession of another who fails or refuses to furnish this information, Contractor shall so certify to the City, and shall set forth what efforts it has made to obtain the information.
E. Sanctions for Noncompliance: In the event of noncompliance by Contractor with the nondiscrimination provisions of this Contract, the City shall impose any sanctions it determines are appropriate including:
(1) Withholding of payments to Contractor under this Contract until Contractor complies;
(2) Cancellation, termination, or suspension of this Contract, in whole or in part.
F. Incorporation of Provisions: Contractor shall include the provisions of subsections A through E, above, in every subcontract, including procurement of materials and leases of equipment, unless exempted by the Regulations, or by any order or instructions issued pursuant thereto. The City may direct Contractor to take specific actions to enforce these provisions, including sanctions for noncompliance; provided, however, that if Contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, Contractor may request that the City join such litigation to protect the City’s interests.
19. Entire Agreement. This Contract, including all Exhibits and documents referenced herein, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had before the execution of this Contract. No alteration to the terms of this Contract shall be valid unless approved in writing by Contractor, and by City, in accordance with applicable provisions of the Sacramento City Code.
20. Modification of Contract. The Contractor shall take no direction from any City employee that changes the executed terms and conditions of the Contract, including Exhibit A, or any change that impacts the cost, price, or schedule, before receiving a written, signed modification to the Contract.
21. Severability. If a court with jurisdiction rules that any portion of this Contract or its application to any person or circumstance is invalid or unenforceable, the remainder of this Contract will not be affected thereby and will remain valid and enforceable as written, to the greatest extent permitted by law.
22. Waiver. Neither the City’s acceptance of, or payment for, any Goods or Services, nor any waiver by either party of any default, breach or condition precedent, will be construed as a waiver of any provision of this Contract, nor as a waiver of any other default, breach or condition precedent or any other right hereunder. No waiver will be effective unless it is in writing and signed by the waiving party.
Form Approved by City Attorney 9-1-2021 Exhibit D - Page 8
23. Governing Law. This Contract shall be governed, construed and enforced in accordance with the laws of the State of California, except that the rule of interpretation in California Civil Code section 1654 will not apply. Venue of any litigation arising out of this Contract will lie exclusively in the state trial court or Federal District Court located in Sacramento County in the State of California, and the parties consent to jurisdiction over their persons and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
24. Assignment Prohibited. The expertise and experience of Contractor are material considerations for this Contract. City has a strong interest in the qualifications and capability of the persons and entities that will fulfill the obligations imposed on Contractor under this Agreement. In recognition of this interest, Contractor shall not assign any right or obligation pursuant to this Contract without the written consent of the City. Any attempted or purported assignment without City’s written consent shall be void and of no effect.
25. Binding Effect. This Contract is binding on the heirs, executors, administrators, successors and assigns of the parties, subject to the provisions of Section 24, above.
26. Compliance with Laws. The Contractor shall be responsible for strict compliance with all applicable laws, regulations, court orders and other legal requirements applicable to the work to be accomplished under the Contract, including the California Occupational Safety and Health Act and all applicable safety orders issued by the Division of Occupational Safety and Health, Department of Industrial Relations, State of California, and all applicable requirements of Underwriters Laboratories and the Federal Communication Commission.
Form Approved by City Attorney 9-17-2021 Exhibit E - Page 1
EXHIBIT E
FEDERAL CONDITIONS
1. DEBARMENT CERTIFICATION
A. Pursuant to 2 CFR, Part 200, and applicable Executive Orders, the City is restricted in its ability to contract with certain parties that are debarred, suspended, or otherwise excluded or ineligible for participating in Federal assistance programs or activities. By signing this Agreement, CONTRACTOR warrants and certifies under penalty of perjury under the laws of the State of California that Contractor, including any owner, partner, director, officer, or principal of the CONTRACTOR, or any person in a position with management responsibility or responsibility for the administration of federal funds:
(1) Is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal or state department/agency;
(2) Has not within a three-year period preceding this certification been convicted of or had a civil judgment rendered against it for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public transaction or contract (federal, state, or local); violation of federal or state antitrust statutes; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, or other criminal felony;
(3) Is not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with commission of any of the offenses enumerated in paragraph (b) above; or
(4) Has not, within a three-year period preceding this certification, had one or more public contracts (federal, state, or local) or transactions terminated for cause or default.
(5) Has not been notified, within a three-year period preceding this certification, been notified of any delinquent Federal taxes in an amount that exceeds $3,500 for which the liability remains unsatisfied. Federal taxes are considered delinquent if the tax liability has been finally determined and the taxpayer is delinquent in making payment, as defined in Section 52.209-5 of the Federal Acquisition Regulations.
B. CONTRACTOR further warrants and certifies that it shall not knowingly enter into any transaction with any subcontractor, material supplier, or vendor who is debarred, suspended, declared ineligible, or voluntarily excluded from covered transactions by any federal or state department/agency. Any exceptions to the warranties and certifications in this Section must be disclosed to the City.
C. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Contractor’s responsibility. Disclosures must indicate to whom exceptions apply, the initiating agency, and dates of action.
D. City will review the Federal Government’s System for Award Management Exclusions maintained by the General Services Administration for eligibility, prior to the execution of this Agreement. The CONTRACTOR shall provide immediate written notice to the City if, at any time prior to execution, the CONTRACTOR learns this certification is erroneous or has become erroneous by reason of changed
Form Approved by City Attorney 9-17-2021 Exhibit E - Page 2 circumstances. If it is later determined that the Contractor’s warranties and certification in this Section were erroneous, the City may terminate this Agreement for default.
2. NON-DISCRIMINATION
During the performance of this contract, the Contractor agrees:
A. To comply with all Federal nondiscrimination laws and equal opportunity laws and regulations, as may be amended from time to time;
B. Not to participate directly or indirectly in the discrimination prohibited by any Federal law or regulation, including but not limited to:
(1) Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d et seq., Treasury’s implementing regulations at 31 C.F.R.Part 22, and any applicable implementing federal directives that may be issued;
(2) The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. §§3601 et seq.);
(3) The Older Americans Act, as amended (42 U.S.C. 6101), Section 324 of title 23 U.S.C., prohibiting discrimination based on gender, Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), the Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.), and Treasury’s implementing regulations at 31 C.F.R. Part 23; and (4) The Americans with Disabilities Act (ADA) of 1990 (42 U.S.C. § 12101, et seq.), as well as all applicable regulations and guidelines issued pursuant to the ADA, including but not limited to those found within the Code of Federal Regulations, title 49, parts 27, 37, and 38.
C. To permit access to its books, records, accounts, other sources of information, and its facilities as required by the City or the applicable federal agency; D. That, in the event Contractor fails to comply with any nondiscrimination provisions in this contract, the City and the applicable federal agency will have the right to impose such contract sanctions as they determine are appropriate, including but not limited to withholding payments to the contractor until the contractor complies, and/or cancelling, terminating, or suspending this contract, in whole or in part; and
E. To insert this clause, including paragraphs (a) through (e), in every subcontract and in every solicitation for a subcontract.
G. Compliance with all Non-Discrimination and Equal Employment Opportunity Laws:
(1) It is the City’s policy to comply with state and federal laws and regulations including Title VI of the Civil Rights Act of 1964, Americans with Disabilities Act of 1990 (ADA) and other federal and state anti-discrimination laws and regulations. The City does not discriminate on the basis of race, color, sex, creed, religious creed, national origin, age, marital status, ancestry, medical condition, disability (including HIV and AIDS), sexual orientation or gender identity in conducting its business. The City prohibits discrimination by its employees, contractors and consultants.
(2) Contractor assures the City that it complies with, and that Contractor will require that its subcontractors comply with, all non-discrimination and equal opportunity laws.
Form Approved by City Attorney 9-17-2021 Exhibit E - Page 3 (3) Any failure by Contractor to comply with these provisions shall constitute a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as the City may deem appropriate.
3. ALLOWABLE COSTS
Contractor agrees that any costs for which payment has been made to Contractor that are determined by subsequent audit to be unallowable under the applicable provisions of 2 CFR, Part 200, are subject to repayment by Contractor to the City. Disallowed costs must be reimbursed to the City within sixty (60) days unless the City approves in writing an alternative repayment plan.
4. PROHIBITION OF EXPENDING STATE OR FEDERAL FUNDS FOR LOBBYING (BYRD ANTI-LOBBYING
AMENDMENT)
A. Contractors who apply or bid for an award of $100,000 or more, and any subcontractors, must provide the certification below. Each tier must certify 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 shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures must be forwarded from tier to tier up to the City, who in turn will forward the certification(s) to the awarding agency.
B. By signing this Agreement, Contractor certifies, to the best of his or her knowledge or belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the Contractor, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or 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 State or Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federally appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or any employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the Contractor shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
(3) None of the funds paid under this contract will be used for any activity specifically designed to urge or influence a State or local legislator to favor or oppose the adoption of any specific legislative proposal pending before any State or local legislative body. Such activities include both direct and indirect (e.g., “grassroots”) lobbying activities, with one exception. This does not preclude a State official whose salary is supported with NHTSA funds from engaging in direct communications with State or local legislative officials, in accordance with customary State practice, even if such communications urge legislative officials to favor or oppose the adoption of a specific pending legislative proposal.
Form Approved by City Attorney 9-17-2021 Exhibit E - Page 4 B. This certification is a material representation of fact upon which reliance was placed when this Agreement was executed. Submission of this certification is a prerequisite for making or entering into this Agreement imposed by Section 1352, Title 31, U.S. Code. 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.
C. Contractor also agrees by signing this Agreement that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000, and that all such subcontractors shall certify and disclose accordingly.
D. Contractor certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, 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.
5. REBATES, KICKBACKS, OR OTHER UNLAWFUL CONSIDERATION
Contractor warrants that this Agreement was not obtained or secured through rebates, kickbacks or other unlawful consideration, either promised or paid to any City employee. For breach or violation of this warranty, City shall have the right, in its discretion: to terminate this Agreement without liability; to pay only for the value of the work actually performed; or to deduct from the Agreement price, or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
6. BUY AMERICA ACT
The City and Contractor will comply with the Buy America requirement (23 U.S.C. 313). Buy America requires the City and Contractor to purchase only steel, iron, and manufactured products produced in the United States, unless the applicable federal agency determines that such domestically produced items would be inconsistent with the public interest, that such materials are not reasonably available and of a satisfactory quality, or that inclusion of domestic materials will increase the cost of the overall contract by more than 25 percent. In order to use foreign produced items, the Contractor must first submit a waiver request to the City that provides an adequate basis and justification for approval by the applicable federal agency.
7. DRUG-FREE CERTIFICATION
By signing this Agreement, Contractor hereby certifies under penalty of perjury under the laws of the State of California that Contractor will comply with the requirements of 31 C.F.R. Part 20 (Governmentwide Requirements for Drug-Free Workplace) and the Drug-Free Workplace Act of 1990 (Government Code § 8350, et seq.) and will provide a drug-free workplace by taking the following actions:
A. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited, and specifying actions to be taken against employees for violations.
B. Establish a Drug-Free Awareness Program to inform employees about:
(1) The dangers of drug abuse in the workplace;
(2) The person’s or the organization’s policy of maintaining a drug-free workplace; (3) Any available counseling, rehabilitation, and employee assistance programs; and
Form Approved by City Attorney 9-17-2021 Exhibit E - Page 5 (4) Penalties that may be imposed upon employees for drug abuse violations.
C. Every employee of Contractor who works under this Agreement shall:
(1) Receive a copy of Contractor’s Drug-Free Workplace Policy Statement; and (2) Agree to abide by the terms of Contractor’s Statement as a condition of employment on this Agreement.
8. ENVIRONMENTAL COMPLIANCE
Contractor agrees to comply with the Clean Air Act (42 U.S.C. §7401 et seq.), the Federal Water Pollution Control Act (33 U.S.C. §1251 et seq.), Executive Order 11738, all Environmental Protection Agency (“EPA”) Regulations (40 CFR) and all applicable standards, orders or regulations issued pursuant thereto. Contractor agrees to report any violation of these statutes and regulations to the City and understands and agrees that the City will, in turn, report each violation, as required, to assure notification to the appropriate federal agency and EPA Regional Office.
9. RECORDS OF CONTRACTOR
A. During the performance of this Contract and for a period of five years after the final payment is made, Contractor shall maintain all records related to this Contract, in accordance with generally accepted accounting practices, including records of Contractor’s costs for performance under this Contract and records of Contractor’s Reimbursable Expenses.
B. Contractor shall keep and make records available for inspection and audit by representatives of the City upon reasonable written notice.
C. Records to be retained include, but are not limited to:
(1) General ledger and subsidiary ledgers used to account for the receipt of funds from the City and the disbursements of such funds for eligible expenses related to the provision of Services;
(2) Budget records for 2020 and through the fiscal year of this Contract; payroll, time records, and human resource records to support costs incurred for payroll expenses related to the provision of Services;
(3) Receipts of purchases made relating to the Services; (4) Contracts and subcontracts entered into to provide the Services, and all documents related to such contracts;
(5) All reports, auditors, or other monitoring of subcontractors; (6) All documents supporting the provision of Services; (7) All internal and external communications (including email) related to the Services; and (8) All investigative files and inquiry reports involving the Services.
10. SUBCONTRACTOR COMPLIANCE
Contractor agrees that all subcontracts shall contain the provisions of this Exhibit.
11. REMEDIES
Should Contractor violate of any of the terms of this Contract, City may terminate the Contract and pursue all available legal and equitable remedies.
Form Approved by City Attorney 9-17-2021 Exhibit E - Page 6
12. RECOVERED MATERIALS
A. In the performance of this Contract, Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired.
B. Information about this requirement, along with the list of EPA- designated items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive- procurement-guideline-cpg-program .
C. Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act: (1) Competitively within a timeframe providing for compliance with the contract performance schedule; (2) Meeting contract performance requirements; or (3) At a reasonable price.
13. DHS SEAL, LOGO, AND FLAGS
Contractor shall not use the U.S. Department of Homeland Security (“DHS”) seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific pre-approval from the U.S.
Federal Emergency Management Agency (“FEMA”).
14. COMPLIANCE WITH FEDERAL LAW
Contractor acknowledges that federal financial assistance (e.g., FEMA funds, CARES Act funds, American Rescue Plan Act funds) may be used to fund all or a portion of the contract. The contractor will comply with all applicable Federal law, regulations, executive orders, and all policies, procedures, and directives issued by the applicable federal funding agency (e.g., FEMA, U.S. Department of the Treasury).
15. NO OBLIGATION BY FEDERAL GOVERNMENT
The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the City, Contractor, or any other party pertaining to any matter resulting from the Contract. The federal government disclaims any and all responsibility or liability to Contractor or any third parties for claims resulting from the death, bodily injury, property damages, or any other losses resulting from the performance of this contract.
16. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS 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.
17. COMPLIANCE WITH THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT In the event that Contractor or any subcontractor is contracting for work requiring or involving the employment of laborers or mechanics, the following terms shall apply:
A. 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
Form Approved by City Attorney 9-17-2021 Exhibit E - Page 7 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.
B. 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.
C. Withholding for unpaid wages and liquidated damages. The City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the 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.
D. 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.
18. PUBLICATIONS . Any publications produced with funds from this award must display the following language: “This project [is being] [was] supported, in whole or in part, by federal award number [enter project FAIN] awarded to [name of Recipient] by the U.S. Department of the Treasury.”
19. INCREASING SEAT BELT USE IN THE UNITED STATES. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Contractor is encouraged to adopt and enforce on-the job seat belt policies and programs for their employees when operating company-owned, rented or personally owned vehicles.
20. REDUCING TEXT MESSAGING WHILE DRIVING. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Contractor is encouraged to adopt and enforce policies that ban text messaging while driving and should establish workplace safety policies to decrease accidents caused by distracted drivers.
21. PROTECTIONS FOR WHISTLEBLOWERS . Pursuant to 41 U.S.C. § 4712, Contractor may not discharge, demote, or otherwise discriminate against any employee in reprisal for disclosing an information the employee reasonably believes is evidence of gross mismanagement of this contract, a gross waste of federal funds, an abuse of authority related to this contract, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to this contract.
1 Rev. 12-20-2021
CITY OF SACRAMENTO,
a California municipal corporation
By: ____________________________
Michael Jasso
Assistant City Manager
Dated: _______________, 2022
Attest
Sacramento City Clerk
By: ____________________________
Deputy City Clerk
Approved as to Form
Sacramento City Attorney
By: ____________________________
Deputy City Attorney
GRANTEE
By: ____________________________
Pat Fong Kushida
Sacramento Asian Pacific Chamer of Commerce
Dated: ________________, 2022