Agenda packet — Mayor and City Council, September 21, 2022 (part 4 of 6)

RESOLUTION NO. 2022-196

RESOLUTION OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA,

APPROVING THE APPLICATION TO THE LOCAL

AGENCY FORMATION COMMISSION TO PROVIDE CITY

SEWER SERVICES TO PROPERTY LOCATED WITHIN

THE UNINCORPORATED TERRITORY AT NEWMARK
AVENUE AND 40TH STREET, SAN BERNARDINO,
CALIFORINA; AND AUTHORIZING THE CITY

MANAGER TO EXECUTE AN IRREVOCABLE

AGREEMENT TO ANNEX
WHEREAS, Chicali Holdings, LLC, a California limited liability company, the owner of the property located in an unincorporated area of Newmark Avenue, between 40th Street and 44th Street, San Bernardino, California, also known as Assessor’s Parcel Numbers 0271-031-03 and 04, has requested connection to the City of San Bernardino’s sewage system; and WHEREAS, said Property is located within the City’s Sphere of Influences; and WHEREAS, pursuant to Section 2.28.030 (Service outside City Limits) of the San Bernardino Municipal Code, the Mayor and City Council must approve any water and sewer service outside the corporate limits of the City of San Bernardino; and WHEREAS, pursuant to California Government Code Section 56133, a city or district may provide new or extended services by contract or agreement outside its jurisdictional boundaries subject to approval from the Local Agency Formation Commission (LAFCO); and WHEREAS, pursuant to Resolution No. 97-275 the property owner requesting connection to the City’s sewage system must pay all applicable fees required by the City, San Bernardino Municipal Water District, and LAFCO.

BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:

SECTION 1. The above recitals are true and correct and are incorporated herein by this reference.

SECTION 2. That the Mayor and City Council of the City of San Bernardino hereby authorize an application to the LAFCO for the connection to the City’s sewage system for property located at Newmark Avenue and 40th Street, Assessor’s Parcel Numbers 0271-031-03 and 04, more fully described as follows:

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Resolution No. 2022-196
Resolution 2022-196
September 21, 2022

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THE NORTH 128 FEET OF THE SOUTH 384 FEET OF LOT 12, OF ARROWHEAD SUBURBAN FARMS, TRACT "A'', AND THE SOUTH 128 FEET OF THE NORTH 256 FEET OF LOT 12, OF ARROWHEAD FARMS, TRACT "A", IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 21. PAGE 6 OF MAPS, RECORDS OF SAID COUNTY, TOGETHER WITH TWO (2) SHARES OF ARROWHEAD VALLEY MUTUAL WATER COMPANY CAPITAL STOCK.

SECTION 3. The City Manager is hereby authorized to execute an Irrevocable Agreement to Annex No. 2022-369, a copy of which is attached as Exhibit “A”.

SECTION 4. The City Clerk of said City is hereby authorized and directed to file, or cause to be filed, a certified copy of this resolution with the Executive Officer of the LAFCO.

SECTION 5. The Mayor and City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.

SECTION 6. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.

SECTION 7. Effective Date. This Resolution shall become effective immediately.

APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this ___ day of __________ 2022.

John Valdivia, Mayor
City of San Bernardino
Attest:

Genoveva Rocha, CMC, City Clerk
Approved as to form:

Sonia Carvalho, City Attorney
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Resolution No. 2022-196
Resolution 2022-196
September 21, 2022

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CERTIFICATION

STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss

CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2022-196, adopted at a regular meeting held on the ___ day of _______ 2022 by the following vote:

Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
REYNOSO _____ _____ _______ _______
CALVIN _____ _____ _______ _______
ALEXANDER _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ___ day of ____________ 2022.

Genoveva Rocha, CMC, City Clerk
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:

City of San Bernardino
290 N. D Street
San Bernardino, California 92401
Attn: City Manager
Exempt from Recording fee
pursuant to Gov't Code §§ 27383, 6103
(Space above for Recorder’s use)

IRREVOCABLE AGREEMENT TO ANNEX
No. 2022-369
This I r r e v o c a b l e A g r e e m e n t to A n n e x (“Agreement), is entered into this 21st day of September, 2022; by and between Chicali Holdings, LLC, a California limited liability company, hereinafter referred to as “OWNER,” and the CITY OF SAN BERNARDINO, a charter city and municipal corporation, hereafter referred to as a “CITY.” OWNER and CITY may be referred to in this Agreement individually as “Party” and collectively as “Parties”.

RECITALS:

WHEREAS, OWNER holds title to the two parcels located east of Newmark Avenue, between 40th Street and 44th Street, San Bernardino, California, and parcels are further described as follows:

T H E N O R T H 1 2 8 FE E T O F T H E S O U T H 3 8 4 F E E T O F L O T 1 2 , O F A R R O W H E A D S U B U R B A N
F A R M S , T R A C T " A ' ' , A N D T H E S O U T H 1 2 8 F E E T O F T H E N O R T H 2 5 6 F E E T O F L O T 1 2 , O F
A R R O W H E A D FA R M S , T R A C T " A " , I N T H E

C O U N T Y O F S A N B E R N A R D I N O , S T A T E O F

C A L I F O R N I A , A S P E R P L A T R E C O R D E D I N B O O K 2 1 . P A G E 6 O F M A P S , R E C O R D S O F S A I D C O U N T Y , T O G E T H E R W I T H T W O ( 2 } S H A R E S

O F A R R O W H E A D V A L L E Y M U T U A L W A T E R C O M P A N Y C A P I T A L S T O C K w i t h A s s e s s o r ’ s P a r c e l N u m b e r ( s ) : 0 2 71 - 0 3 1 - 0 3 & 0 4 ( “ P r o p e r t y ” ) .

WHEREAS, the Property is within the CITY’s sphere of influence; and WHEREAS, OWNER desires to obtain CITY’s sewage system and wastewater treatment plant service for the Property; and
WHEREAS, CITY’s sewage system and wastewater treatment plant service could be provided to the Property by connecting to the CITY’s sewage system; and WHEREAS, CITY’s sewage system and wastewater treatment plant have sufficient

EXHIBIT A
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IRREVOCABLE AGREEMENT TO ANNEX NO. 2022-369 LAFCO SC # _____ capacity to convey and treat the sewage generated by the Property; and WHEREAS, the covenants and conditions set forth herein shall create an equitable servitude upon the parcel, and shall be fully binding upon OWNER’s heirs, successors and assigns.

NOW, THEREFORE, the Parties hereto agree as follows:

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IRREVOCABLE AGREEMENT TO ANNEX NO. 2021-367 LAFCO SC # _____ SECTION I OWNER AGREES:
a. To consent to the annexation of the Property to the CITY. OWNER agrees to covenant for itself, its agents, employees, contractors, heirs, successors and assigns (“Successors”) not in any way object to, protest, delay, frustrate or otherwise impede any annexation proceedings concerning the annexation of the Property to the CITY. OWNER and its Successors shall cooperate in every reasonable way with the requests of the CITY, the San Bernardino Local Agency Formation Commission (“LAFCO”), or any other public agency in any proceedings to annex the Property to the CITY. The OWNER’s and its Successor’s cooperation shall include, but not be limited to, the filing of all necessary applications, petitions, plans, drawings, and any other documentation or information required by the CITY, LAFCO, or any other public agency. b. To pay such annexation fees and costs and other municipal charges as would ordinarily be charged in the annexation of property to the CITY. Said fees shall be payable when the same becomes due and payable.
c. To pay all fees and charges and make all deposits required by the CITY to connect to and use the CITY’s sewage system and wastewater treatment plant service system, and further agrees to be bound by all CITY ordinances, rules and regulations respecting the sewage system.
d. To acknowledge that execution of this Agreement to annex is on behalf of all future heirs, successors and assigns; and that said Agreement shall be irrevocable without written consent of CITY.
e. To comply with the San Bernardino Municipal Code, General Plan (emphasis on the circulation plan-street section) and any rules and regulations promulgated by the Water Board of the San Bernardino Municipal Water Department relating to CITY’s sewage system and wastewater treatment plant service system.
f. To make application to LAFCO, and allow CITY to make application on behalf of the OWNER and pay all application fees, for approval to connect to CITY’s sewage system, pursuant to Section 56133 of the Government Code. g. To execute a standard form agreement with CITY stipulating the terms and conditions under which the connection to the CITY’s sewage system and wastewater treatment plant service system shall be made and maintained. h. OWNER acknowledges and agrees that if CITY determines that any attempted annexation fails or is unreasonably delayed because the OWNER or Successor failed to exercise good faith and best efforts to cause or assist in permitting the annexation to occur, any connection to CITY’s sewage system and wastewater treatment plant service system permitted or authorized by this agreement may Packet Pg. 712
IRREVOCABLE AGREEMENT TO ANNEX NO. 2021-367 LAFCO SC # _____ be disconnected at the sole option of CITY and upon reasonable notice to the OWNER to provide for alternative service.
i. OWNER agrees to maintain the Property in good condition and in compliance with reasonable standards. Reasonable standards are defined as the level of maintenance service necessary to keep the appearance and operation of the Property free from visible defects, deterioration, dirt and debris. j. OWNER shall indemnify, defend, and hold the CITY and its officials and staff harmless from any and all liability, claims, costs (including reasonable attorneys’ fees), damages, expenses and causes of action resulting from any construction performed under or otherwise related to performance of this Agreement.

SECTION II CITY AGREES:
a. To allow OWNER’s parcel, described hereinbefore, to connect to CITY’s sewage system and wastewater treatment plant service system, subject to payment of all applicable fees and permits.

SECTION III BE IT MUTUALLY AGREED, AS FOLLOWS:
a. City Clerk for CITY shall record this Agreement with the County Recorder. b. The benefit to the subject parcel will inure to the benefit of subsequent owners, their heirs, successors, and assigns, and the agreements, conditions, and covenants contained herein shall be binding upon them and upon the land. c. The approval granted to connect said parcel to CITY’s sewage system and wastewater treatment plant service system is contingent upon OWNER securing approval from LAFCO.
d. This Agreement may be executed in counterparts.
e. CITY and OWNER acknowledge that this Agreement is the product of mutual arms-length negotiation and drafting. Accordingly, the rule of construction which provides the ambiguities in a document shall be construed against the drafter of that document shall have no application to the interpretation and enforcement of this Agreement. In any action or proceeding to interpret or enforce this Agreement, the finder of fact may refer to any extrinsic evidence not in direct conflict with any specific provision of this Agreement to determine and give effect to the intention of the parties.
f. This Agreement may only be amended by the written consent of all of the Parties at the time of such amendment. If either Party commences an action against the other Party arising out of or in connection with this Agreement, the Packet Pg. 713
IRREVOCABLE AGREEMENT TO ANNEX NO. 2021-367 LAFCO SC # _____ prevailing party shall be entitled to have and recover from the losing Party reasonable attorneys’ fees and costs of suit, and, if CITY is awarded such attorneys’ fees and costs, such award shall constitute a lien upon the Property. g. Failure to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. h. This Agreement has been executed in and shall be governed by the laws of the State of California. Venue shall be in the County of San Bernardino.

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IRREVOCABLE AGREEMENT TO ANNEX NO. 2021-367 LAFCO SC # _____

SIGNATURE PAGE TO IRREVOCABLE AGREEMENT TO ANNEX
IN WITNESS WHEREOF, the Parties hereto have caused this agreement to be entered into as of the Effective Date set forth above.

CITY OF SAN BERNARDINO
Approved By:

OWNER
__________________________________ _______________________________ Robert D. Field Signature
City Manager
______ Frank Huizar______________
Name
__________________________________
City Attorney
Attested By:
__________________________________
Genoveva Rocha
CMC, City Clerk
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IRREVOCABLE AGREEMENT TO ANNEX NO. 2021-367 LAFCO SC # _____

ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.

State of California
County of )
On before me,
(insert name and title of the officer)
personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)
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IRREVOCABLE AGREEMENT TO ANNEX NO. 2021-367 LAFCO SC # _____

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)
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Vicinity Map
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: September 21, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager;
Nathan Freeman, Agency Director of Community, Housing, and Economic Development
Department: Community & Economic Development (CED)
Subject: Adopt Ordinance No. MC-1592 (Alcoholic Beverage Sales Locational Restrictions) (All Wards)
Recommendation
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Ordinance No. MC-1592 approving Development Code Amendment 22-04 amending Section 19.06.030(2)(B) Article II Section III(A)-(I) (Alcohol Beverage Sales – Locational Restrictions) and Section 19.06.030(2)(B) Article II Section VI(D)- (E) (Alcohol Beverage Sales – Permit Application) of the City of San Bernardino Municipal Code (Title 19) to increase the locational restriction from 500 feet to 1,000 feet for new alcoholic beverage sales activities from sensitive land uses (Attachment 1).

Background
An application for a convenience store with an Alcoholic Beverage Control (ABC) offsale license requires the approval of a Conditional Use Permit by the Planning Commission. Additionally, the California Department of Alcoholic Beverage Control (ABC) has established license concentration standards allowing for a maximum of ABC off-sale licenses within the census tracts. If a new ABC off-sale license will cause the subject census tract to become over concentrated with ABC off-sale licenses, the Conditional Use Permit also requires a Public Convenience or Necessity Letter application for consideration by the Planning Commission.

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The Police Department reviews all Conditional Use Permits for ABC off-sale license applications and conducts investigations based upon the information provided to report alcohol related and other crimes that have been reported during the previous calendar year within half-mile of the subject reporting district. The Police Department also provides appropriate recommended Conditions of Approval to ensure that the sale of alcohol will not be detrimental to the surrounding area.

With the continued increase in the number of convenience store applications, there has also been an increase in the number of requests for ABC Type-20 (Off-Sale: Beer and Wine) and ABC Type-21 (Off-Sale: General – Beer, Wine and Distilled Spirits) Licenses. There has also been an increase in the number of census tracts with over concentrations. The overconcentration of ABC off-sale licenses creates the potential for impairing the integrity and character of the commercial corridors and may be detrimental to sensitive land uses within the vicinity, such as schools, parks and places of worship.

On April 12, 2022, the Planning Commission unanimously adopted Resolution No. 2022-020, forwarding a recommendation to the Mayor and City Council recommending approval of Development Code Amendment 22-04.

Under proposed Development Code Amendment 22-04, Section 19.06.030(2)(B) Article II Section III(A) (Alcohol Beverage Sales – Locational Restrictions) of the City of San Bernardino Development Code will be amended to read as follows:
“(A) Unless otherwise exempted under subsections B – H, a new alcoholic beverage sales activity is not permitted within 1,000 feet of any of the following locations:

1. A public or private state licensed or accredited school.

2. A public park, playground, recreational area, or youth facility, including a nursery school, preschool, or day-care facility.

3. A place of worship or religious institution.

4. A hospital.

5. An alcohol or other drug abuse recovery or treatment facility.

6. A county social service office.
(B) Establishments containing 10,000 square feet or more, including but not limited to supermarkets and drugstores, which do not sell alcoholic beverages as the principal business are exempt from the locational restrictions. (C) Sit down restaurants whose predominant function is the service of food and Packet Pg. 723
where the on-site sale of alcoholic beverages is incidental or secondary are exempt from these locational restrictions. An incidental bar or lounge shall be allowed for the convenience of dining patrons. (Establishments which are primarily a bar or lounge or have a bar or lounge area as a principal or independent activity are not included in this exemption.)
(D) All other establishments for on-site consumption of alcohol may be exempted from the locational restrictions, subject to evaluation of site-specific conditions through the Conditional Use Permit review process and considering recommendations from the Police Department.
(E) Specialty retail establishments that offer unique product lines or variety of selection warranting a finding of public convenience or necessity are exempt from the locational restrictions.
(F) An automobile service station convenience store that meets the location criteria of Section 19.06.030(2)(T) may be exempted from these locational restrictions, subject to evaluation of site-specific conditions through the Conditional Use Permit review process and considering recommendations from the Police Department. (G) A fraternal organization or veterans club may be exempted from the locational restrictions, subject to evaluation of site-specific conditions through the Conditional Use Permit review process and considering recommendations from the Police Department.
(H) Temporary uses issued a Temporary License by the California Department of Alcoholic Beverage Control and established in compliance with all City laws and regulations are exempt from the locational restrictions. (I) The following location conditions will be considered in the review of Conditional Use Permit applications, and may be grounds for denial based on potential adverse effects to the public interest, health, safety or convenience:

1. A location within a crime reporting district, or within 1,000 feet of a crime reporting district, where the general crime rate exceeds the city-wide general crime rate by more than 20 percent.

2. A location where the new alcoholic beverage sales activity would be within 1,000 feet from an existing alcoholic beverage sales activity or would lead to the grouping of more than four alcoholic beverage sales activities within a 1,000-foot radius from the new alcoholic beverage sales activity.” Under proposed Development Code Amendment 22-04, Section 19.06.030(2)(B) Article II Section VI(D)-(E) (Alcohol Beverage Sales – Permit Application) of the City of San Bernardino Development Code will also be amended to read, as follows:

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“(D) The name, address, and telephone number, if available, of all existing schools, parks, playgrounds or recreational areas, nonprofit youth facilities, places of worship, hospitals, alcohol or other drug abuse recovery or treatment facilities or county social service offices within 1,000 feet of the proposed alcoholic beverage sales activity establishment.
(E) The name, address, and telephone number, if available, of all alcoholic beverage sale activities within 1,000 feet of the proposed alcoholic beverage sales activity establishment and within a 1,000-foot radius from the proposed alcoholic beverage sales activity establishment.”
General Plan Goals and Policies
The City of San Bernardino General Plan includes goals and policies to guide future Accessory Dwelling Units, as follows:

Land Use Goal 2.1: Preserve and enhance San Bernardino’s unique Neighborhoods. • Land Use Element Policy 2.1.1: Actively enforce development standards, design guidelines, and policies to preserve and enhance the character of San Bernardino’s neighborhoods.
• Land Use Element Policy 2.2.8: Control the location and number of communitysensitive uses, such as alcohol sales, adult bookstores and businesses, game arcades, and similar uses based on proximity to residences, schools, religious facilities, and parks.
• Land Use Element Policy 2.2.9: Require Police Department review of uses that may be characterized by high levels of noise, nighttime patronage, and/or rates of crime; providing for the conditioning or control of use to prevent adverse impacts on adjacent residences, schools, religious facilities, and similar “sensitive” uses.

The adoption and implementation of Development Code Amendment 22-04 is consistent with the City’s General Plan by regulating the location of alcoholic beverage sales activities in order to prevent potential negative impacts to the existing sensitive land uses and the community at-large and by minimizing the over concentration alcoholic beverage sales activities. The Police Department will continue to review applications for new alcoholic beverage sales to investigate crimes within half-mile of the respective reporting district.

California Environmental Quality Act
The Planning Division conducted an environmental evaluation in connection with proposed Development Code Amendment 22-04 and concluded that it is exempt from CEQA under Section 15061(b)(3) (Review for Exemption) of the CEQA Guidelines due to the fact that the proposed Development Code Amendment will not create significant effects on the environment as it increases the locational restriction from 500 feet to Packet Pg. 725
1,000 feet for a new alcoholic beverage sales activity from sensitive land uses.

Discussion
On August 3, 2022, the Mayor and City Council conducted a public hearing and introduced Ordinance No. MC 1592 amending Section 19.06.030(2)(B) Article II Section III(A)-(I) (Alcohol Beverage Sales – Locational Restrictions) and Section

19.06.030(2)(B) Article II Section VI(D)-(E) (Alcohol Beverage Sales – Permit Application) of the City of San Bernardino Municipal Code (Title 19) to increase the locational restriction from 500 feet to 1,000 feet for new alcoholic beverage sales activities from sensitive land uses.

Ordinance No. MC-1592 is now ready for adoption and will become effective on October 21, 2022.
2021-2025 Key Strategic Targets and Goals
Development Code Amendment 22-04 aligns with Key Target No. 4(b): Update the General Plan and Development Code. Specifically, the amendment to the Development Code for location regulations of alcoholic beverage sales activities proposed under Development Code Amendment 22-04 will preserve the integrity of the commercial corridors, residential neighborhoods and sensitive land uses within the City.

Fiscal Impact
There will be no fiscal impact to the City’s General Fund with this action.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Ordinance No. MC-1592 approving Development Code Amendment 22-04 amending Section 19.06.030(2)(B) Article II Section III(A)-(I) (Alcohol Beverage Sales – Locational Restrictions) and Section 19.06.030(2)(B) Article II Section VI(D)- (E) (Alcohol Beverage Sales – Permit Application) of the City of San Bernardino Municipal Code (Title 19) to increase the locational restriction from 500 feet to 1,000 feet for new alcoholic beverage sales activities from sensitive land uses (Attachment 1).

Attachments
Attachment 1 Ordinance No. MC-1592 (Development Code Amendment 22-04) Ward
All Wards
Synopsis of Previous Council Actions
August 3, 2022 Mayor and City Council introduced Ordinance No. MC-1592 to approve Development Code Amendment 22-04.

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ORDINANCE NO. MC-1592
1 ORDINANCE NO. MC-1592

ORDINANCE OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA,
APPROVING DEVELOPMENT CODE AMENDMENT 22-04
AMENDING SECTION 19.06.030(2)(B) ARTICLE II
SECTION III(A)-(I) (ALCOHOL BEVERAGE SALES –

LOCATIONAL RESTRICTIONS) AND SECTION

19.06.030(2)(B) ARTICLE II SECTION VI(D)-(E) (ALCOHOL
BEVERAGE SALES – PERMIT APPLICATION) OF THE

CITY OF SAN BERNARDINO MUNICIPAL CODE (TITLE
19) TO INCREASE THE LOCATIONAL RESTRICTION
FROM 500 FEET TO 1,000 FEET FOR NEW ALCOHOLIC

BEVERAGE SALES ACTIVITIES FROM SENSITIVE LAND
USES; AND FINDING THE ORDINANCE IS EXEMPT

UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY
ACT.

WHEREAS, the last comprehensive update to the City's Development Code (Title 19) was adopted in May 1991; and
WHEREAS, an application for a new convenience store with an Alcoholic Beverage Control (ABC) off-sale license requires the approval of a Conditional Use Permit by the Planning Commission. Additionally, the California Department of Alcoholic Beverage Control (ABC) has established license concentration standards allowing for a maximum of ABC off-sale licenses within the census tracts. If a new ABC off-sale license will cause the subject census tract to become over concentrated with ABC off-sale licenses, the Conditional Use Permit also requires a Public Convenience or Necessity Letter application for consideration by the Planning Commission; and WHEREAS, with the continued increase in the number of convenience store applications there has also been an increase in the number of requested ABC Type-20 (Off-Sale: Beer and Wine) and ABC Type-21 (Off-Sale: General – Beer, Wine and Distilled Spirits) Licenses. There has also been an increase in the number of census tracts with over concentrations. The over concentration of ABC off-sale licenses creates the potential for impairing the integrity and character of the commercial corridors and may be detrimental to sensitive land uses within the vicinity, such as schools, parks and places of worship; and WHEREAS, Development Code Amendment 22-04 is a City-initiated amendment to Section 19.06.030(2)(B) Article II Section III(A) (Alcohol Beverage Sales – Locational Restrictions) and Section 19.06.030(2)(B) Article II Section VI(D)-(E) (Alcohol Beverage Sales – Permit Application) of the City of San Bernardino Municipal Code (Title 19) to increase the locational restriction from 500 feet to 1,000 feet for new alcoholic beverage sales activities from sensitive land uses; and
WHEREAS, the Planning Division of the Community and Economic Development Department of the City of San Bernardino has prepared Development Code Amendment 22-04 consistent with the City of San Bernardino General Plan and compliance with the City of San Bernardino Development Code; and
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ORDINANCE NO. MC-1592
2 WHEREAS, pursuant to requirements of the California Environmental Quality Act (“CEQA”), the Planning Division of the Community and Economic Development Department evaluated Development Code Amendment 22-04 and determined that it is not a project within the meaning of State CEQA Guidelines Section 15378, and alternatively is exempt from CEQA under Section 15061(b)(3) (Review for Exemption) of the CEQA Guidelines; and WHEREAS, on April 12, 2022, the Planning Commission of the City of San Bernardino held a duly noticed public hearing to consider public testimony and the staff report, and adopted Resolution 2022-030 forwarding a recommendation of approval of Development Code Amendment 22-04 to the Mayor and City Council; and
WHEREAS, notice of the August 3, 2022 public hearing for the Mayor and City Council's consideration of this proposed Ordinance was published in The Sun newspaper on July 23, 2022 in accordance with Development Code Chapter 19.52; and
WHEREAS, pursuant to the requirements of Chapters 19.52 (Hearing and Appeals) and Chapter 19.42 (Development Code Amendments) of the City of San Bernardino Development Code, the Mayor and City Council have the authority to take action on Ordinance No. MC-1592.

NOW THEREFORE, THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, DO ORDAIN AS FOLLOWS:

SECTION 1. The above recitals are true and correct and are incorporated herein by this reference.

SECTION 2. Compliance with the California Environmental Quality Act. As the decision-making body for the project, the Mayor and City Council has reviewed and considered the information contained in the administrative record for Development Code Amendment 22-04.

Based upon the facts and information contained in the administrative record, including all written and oral evidence presented to the Mayor and City Council, the Mayor and City Council hereby finds, as follows:
(1) The administrative record has been completed in compliance with the California Environmental Quality Act (“CEQA”), the State CEQA Guidelines, and the City’s Local CEQA Guidelines;
(2) Development Code Amendment 22-04 is not a project within the meaning of Section 15378 of the State CEQA Guidelines, because it has no potential for resulting in physical change in the environment, directly or indirectly. Development Code Amendment 22-04 does not authorize any specific development within the City’s boundaries. Development Code Amendment 22-04 is exempt from CEQA because the adoption of the Development Code Amendment is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment (State CEQA Guidelines, Section 15061(b)(3)). The Development Code Amendment to increase of the locational restriction from 500 feet to 1,000 feet for a new alcoholic beverage sales activity from sensitive land uses is exempt from the requirements of CEQA under Section 15061(b)(3) (Review for Exemption) of the CEQA Guidelines due to the fact that the Development Code Amendment will not create significant Packet Pg. 729
ORDINANCE NO. MC-1592
3 effects on the environment as it consists of updates to the alcoholic beverage sales requirements; and
(3) The determination of CEQA exemption reflects the independent judgment of the Mayor and City Council.

SECTION 3. FINDINGS FOR DEVELOPMENT CODE AMENDMENT 22-04:

Section 19.42.050 (Findings) of the City of San Bernardino Development Code requires that Development Code Amendments meet certain findings prior to approval by the Mayor and City Council. Accordingly, the following findings are provided in support of the approval of Development Code Amendment 22-04:

Finding No. 1: The proposed amendment is consistent with the General Plan.

Finding of Fact: Development Code Amendment 22-04 is consistent with the General Plan, as follows:
 Land Use Goal 2.1: Preserve and enhance San Bernardino’s unique Neighborhoods.
 Land Use Element Policy 2.1.1: Actively enforce
development standards, design guidelines, and policies to preserve and enhance the character of San Bernardino’s
neighborhoods.
 Land Use Element Policy 2.2.8: Control the location and number of community-sensitive uses, such as alcohol sales, adult bookstores and businesses, game arcades, and similar uses based on proximity to residences, schools, religious facilities, and parks.
 Land Use Element Policy 2.2.9: Require Police Department review of uses that may be characterized by high levels of noise, nighttime patronage, and/or rates of crime; providing for the conditioning or control of use to prevent adverse impacts on adjacent residences, schools, religious facilities, and similar “sensitive” uses.

The Police Department will continue to review applications for new Packet Pg. 730
ORDINANCE NO. MC-1592
4 alcoholic beverage sales to investigate crimes within a half-mile of the respective reporting district.

Finding No. 2: The proposed amendment would not be detrimental to the public interest, health, safety, convenience, or welfare of the City.

Finding of Fact: The adoption and implementation of Development Code Amendment 22- 04 is necessary and desirable for the development of the community and is in the interests or furtherance of the public health, safety, convenience, and general welfare. Location regulations of alcoholic beverage sales activities proposed under Development Code Amendment 22-04 will preserve the integrity of the commercial corridors, residential neighborhoods and sensitive land uses within the City.

SECTION 4. Section 19.06.030(2)(B) Article II Section III(A)-(I) (Alcohol Beverage Sales – Locational Restrictions) of the City of San Bernardino Municipal Code (Title 19) is hereby amended, in its entirety, to read as follows:
“
(A)Unless otherwise exempted under subsections B – H, a new alcoholic beverage sales activity is not permitted within 1,000 feet of any of the following locations:

1. A public or private state licensed or accredited school.

2. A public park, playground, recreational area, or youth facility, including a nursery school, preschool, or day-care facility.

3. A place of worship or religious institution.

4. A hospital.

5. An alcohol or other drug abuse recovery or treatment facility.

6. A county social service office.
(B) Establishments containing 10,000 square feet or more, including but not limited to supermarkets and drugstores, which do not sell alcoholic beverages as the principal business are exempt from the locational restrictions. (C) Sit down restaurants whose predominant function is the service of food and where the on-site sale of alcoholic beverages is incidental or secondary are exempt from these locational restrictions. An incidental bar or lounge shall be allowed for the convenience of dining patrons. (Establishments which are primarily a bar or lounge or have a bar or lounge area as a principal or independent activity are not included in this exemption.) (D)All other establishments for on-site consumption of alcohol may be exempted from the locational restrictions, subject to evaluation of site-specific conditions Packet Pg. 731
ORDINANCE NO. MC-1592
5 through the Conditional Use Permit review process and considering recommendations from the Police Department.
(E) Specialty retail establishments that offer unique product lines or variety of selection warranting a finding of public convenience or necessity are exempt from the locational restrictions.
(F) An automobile service station convenience store that meets the location criteria of Section 19.06.030(2)(T) may be exempted from these locational restrictions, subject to evaluation of site-specific conditions through the Conditional Use Permit review process and considering recommendations from the Police Department.
(G)A fraternal organization or veterans club may be exempted from the locational restrictions, subject to evaluation of site-specific conditions through the Conditional Use Permit review process and considering recommendations from the Police Department.
(H)Temporary uses issued a Temporary License by the California Department of Alcoholic Beverage Control and established in compliance with all City laws and regulations are exempt from the locational restrictions. (I) The following location conditions will be considered in the review of Conditional Use Permit applications, and may be grounds for denial based on potential adverse effects to the public interest, health, safety or convenience:

1. A location within a crime reporting district, or within 1,000 feet of a crime reporting district, where the general crime rate exceeds the city-wide general crime rate by more than 20 percent.

2. A location where the new alcoholic beverage sales activity would be within 1,000 feet from an existing alcoholic beverage sales activity, or would lead to the grouping of more than four alcoholic beverage sales activities within a 1,000 foot radius from the new alcoholic beverage sales activity.”
SECTION 5. Section 19.06.030(2)(B) Article II Section VI(D)-(E) (Alcohol Beverage Sales – Permit Application) of the City of San Bernardino Municipal Code (Title 19) is hereby amended, in its entirety, to read as follows:
“
(D)The name, address, and telephone number, if available, of all existing schools, parks, playgrounds or recreational areas, nonprofit youth facilities, places of worship, hospitals, alcohol or other drug abuse recovery or treatment facilities or county social service offices within 1,000 feet of the proposed alcoholic beverage sales activity establishment.

Packet Pg. 732
ORDINANCE NO. MC-1592
6 (E) The name, address, and telephone number, if available, of all alcoholic beverage sale activities within 1,000 feet of the proposed alcoholic beverage sales activity establishment and within a 1000 foot radius from the proposed alcoholic beverage sales activity establishment.”
SECTION 6. Notice of Exemption: The Planning Division of the Community and Economic Development Department is hereby directed to file a Notice of Exemption with the County Clerk of the County of San Bernardino within five (5) working days of final project approval certifying the City’s compliance with the California Environmental Quality Act in approving the Project.

SECTION 7. Severability: If any section, subsection, subdivision, sentence, or clause or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have adopted each section irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or ineffective.

SECTION 8. Effective Date. This Ordinance shall become effective thirty (30) days after the date of its adoption.

SECTION 9. Notice of Adoption. The City Clerk of the City of San Bernardino shall certify to the adoption of this Ordinance and cause publication to occur in a newspaper of general circulation and published and circulated in the City in a manner permitted under Section 36933 of the Government Code of the State of California.

APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this ___ day of _________, 2022.

John Valdivia, Mayor
City of San Bernardino
Attest:

Genoveva Rocha, CMC, City Clerk
Approved as to form:

Sonia Carvalho, City Attorney
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ORDINANCE NO. MC-1592
7 CERTIFICATION

STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO ) ss

CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Ordinance No. MC-1592, introduced by the City Council of the City of San Bernardino, California at a regular meeting held on the 3rd day of August, 2022, and adopted by the City Council of the City of San Bernardino, California, at a regular meeting held on the ___ day of _________, 2022 by the following vote:

Council Members: AYES NAYS ABSTAIN ABSENT

SANCHEZ
IBARRA

FIGUEROA

SHORETT

REYNOSO
CALVIN

ALEXANDER
WITNESS my hand and official seal of the City of San Bernardino this ___ day of _________, 2022.

Genoveva Rocha, CMC, City Clerk
Packet Pg. 734

CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: September 21, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager
By: Nathan Freeman, Agency Director of Community, Housing, and Economic Development
Department: Community & Economic Development (CED)
Subject: Amendment No.2 to the ESG-CV Subrecipient Agreement with Lutheran Social Services of Southern California
Recommendation
It is recommended that the Mayor and City Council of the City of San Bernardino, California, approve Amendment No. 2 to the Emergency Solutions Grant-Cares Act (ESG-CV) Program Subrecipient Agreement with Lutheran Social Services of Southern California.

Background
The City received special funds (“ESG-CV Funds”) under the Emergency Solutions Grants (“ESG”) program, as authorized under Subtitle B of Title IV of the McKinneyVento Homeless Assistance from the United States Department of Housing and Urban Development ("HUD"), as authorized by the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”).

The CARES Act authorized ESG-CV Funds, which was intended to supplement the CITY’s existing operational budget for the ESG Program, to respond to critical needs of the community by providing services to prevent, prepare for, and respond to the COVID-19 public health crisis.

On April 2, 2020, the City of San Bernardino (City) entered into an agreement with Packet Pg. 735
Lutheran Social Services of Southern California (LSSSC), a private non-profit corporation licensed to do business in the State of California and authorized $373,742 ESG-CV funds for Emergency Shelter.

On September 22, 2021, the Mayor and City Council approved the First Amendment to the Subrecipient Agreement in which Section III (Term of Agreement) was extended from April 2, 2020, to June 30, 2022.

Discussion
LSSSC has requested a term date extension to the Subrecipient Agreement to spend down remaining ESG-CV funding on eligible shelter care activities. The term of the Agreement will extend from June 30, 2022, until September 30, 2022. The request came due to several unforeseen staffing issues related to COVID-19 over the past year. As of July 28, 2022, LSSSC had a remaining ESG-CV balance of $24,142.52, which they expressed will be fully expended by the September 30, 2022, deadline.

City staff determined that LSSSC has continually acted in good faith to comply with the Agreement and has, to the best of their ability, made an earnest effort to mitigate further delays. The extension of the Agreement to September 30, 2022, is within the Housing and Urban Development’s guidelines and should not cause any compliance issues. 2021-2025 Key Strategic Targets and Goals
The request for the Subrecipient Term of Agreement extension aligns with Key Target No. 3: Improved Quality of Life, by improving shelter care and services to homeless individuals within the City.

Fiscal Impact
Approval of the Second Amendment to the Subrecipient Agreement will not impact the General Fund.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, approve Amendment No. 2 to the Emergency Solutions Grant-Cares Act (ESG-CV) Program Subrecipient Agreement with Lutheran Social Services of Southern California.

Attachments
Attachment 1 Second Amendment of the Emergency Solutions Grant Subrecipient Agreement with Lutheran Social Services of Southern California
Attachment 2 First Amendment of the Emergency Solutions Grant Subrecipient Agreement with Lutheran Social Services of Southern California Attachment 3 Original Emergency Solutions Grant Subrecipient Agreement with Lutheran Social Services of Southern California
Packet Pg. 736
Ward All Wards
Synopsis of Previous Council Actions
April 2, 2020 Mayor and City Council approved the Subrecipient Agreement with LSSSC.

April 15, 2020 Mayor and City Council approved the City of San Bernardino’s Draft Fiscal Year 2020/21 Action Plan (FY 2020/21 AP).

August 19, 2020 Mayor and City Council adopted Resolution 2020-211 authorizing the City Manager to utilize the State allocated Coronavirus Relief Funds for eligible activities as authorized by the US Department of the Treasury.

September 22, 2021 Mayor and City Council approved the First Amendment to the Subrecipient Agreement with LSSSC.

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SECOND AMENDMENT TO THE
EMERGENCY SOLUTIONS GRANT - COVID 1

SUBRECIPIENT AGREEMENT
This Second Amendment ("Second Amendment") to the Emergency Solutions Grant — Covid-1 Subrecipient Agreement ("Agreement") is entered into as September __, 2022 by and between the City of San Bernardino, a charter city organized under the laws of the State of California (hereinafter the "City"), and Lutheran Social Services of Southern California (LSSSC) a private non-profit corporation licensed to do business in the State of California, 435 Orange Show Lane #104 San Bernardino CA (hereinafter the "Subrecipient"), DUNS Number 198953929 City and Subrecipient are at times referred to individually as "Party" and collectively as the "Parties."
WHEREAS, City and Subrecipient entered into Agreement on April 2, 2020; and WHEREAS, City Council authorized $373,742 in ESG-CV1 funds for Emergency Shelter; and
WHEREAS, City and Subrecipient entered into a First Amendment on September 22, 2021, to extend the term of the Agreement until June 30, 2022 (“First Amendment”); and
WHEREAS, the Parties now desire to amend the Agreement to extend the term of the Agreement to conform to spenddown remaining ESG-CV1 funds.

NOW THEREFORE, in consideration of the mutual covenants and conditions set forth herein, the Parties agree as follows:

1. Amendment. Section III of the Agreement "TERM OF AGREEMENT' is hereby amended in its entirety to read as follows:
"III. TERM OF AGREEMENT
This AGREEMENT shall take effect on April 2, 2020 and shall terminate on September 30, 2022 unless otherwise canceled or modified according to the terms of this AGREEMENT."

2. Effect on Other Provisions. All other provisions of the Agreement, as amended by this Second Amendment and the First Amendment, shall remain in full force and effect.

IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be executed the day and year first above written.
[Signatures on the Following Page]
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Dated: "CITY"
CITY OF SAN BERNARDINO, a municipal
corporation and charter city
Robert D. Field
City Manager
Dated: “SUBRECIPIENT”
Lutheran Social Services of Southern California
_________________________________________
LaShandra Beckwith
President and CEO
Packet Pg. 739
Packet Pg. 740
Packet Pg. 741
1 EMERGENCY SOLUTIONS GRANT- COVID I

SUBRECIPIENT AGREEMENT

THIS EMERGENCY SOLUTIONS GRANTS PROGRAM SUBRECIPIENT AGREEMENT (the "AGREEMENT") is made and entered into as of April 2, 2020 by and between the CITY OF SAN BERNARDINO, a California municipal corporation, ("CITY"), and Lutheran Social Services, a private non-profit corporation licensed to do business in the State of California, 1354 North G. Street, ("SUBRECIPIENT"), DUNS Number 198953929

RECITALS

1. In December 2019, a novel coronavirus known as SARS-CoV (“COVID-19”) was detected causing outbreaks of COVID-19 that has now spread globally. The first case in the United States was reported in January of 2020 and, in March of 2020, the World Health Organization declared the COVID-19 outbreak a pandemic, the President of the United States declared a national emergency, the Governor of the State of California declared a state of emergency, and the City and the County of San Bernardino each declared a local emergency. The CITY is impacted by this health crisis and people experiencing homelessness are considered amongst the most vulnerable.

2. The CITY has been allocated special funds (“ESG-CV Funds”) under the Emergency Solutions Grants (“ESG”) program , as authorized under Subtitle B of Title IV of the McKinneyVento Homeless Assistance (Act (42 U.S.C. § 11371-11378( and 24 CFR Part 576 (CFDA

14.231)) ("ESG Program"), from the United States Department of Housing and Urban Development ("HUD"), as authorized by the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Public Law 116-136. The CARES Act authorized ESG-CV Funds, which is intended to supplement the CITY’s existing operational budget for the ESG Program, to respond to critical needs of the community by providing services to prevent, prepare for, and respond to the COVID-19 public health crisis.

3. The CITY and SUBRECIPIENT (each, a "Party" and jointly, the "Parties") desire to enter into this AGREEMENT so that SUBRECIPIENT may receive a subgrant of ESG-CV Funds in consideration of SUBRECIPIENT'S participation in the CITY'S ESG Program (which includes without limitation the CITY’s award and administration of ESG-CV Funds), by the provision of the operation of an emergency solutions program to prevent, prepare for, and respond to the COVID-19 pandemic among homeless individuals or families or individuals or families at-risk of homelessness, and to support or provide additional homeless assistance and homelessness prevention activities to mitigate the impacts of COVID-19, in the City of San Bernardino in accordance with the Scope of Work ("ESG-CV Program"), attached hereto as Exhibit A and incorporated herein by this reference.

4. The SUBRECIPIENT

5. represents that it is qualified to participate in the CITY’s ESG Program and that it has the requisite qualifications, expertise, and experience in the provision of emergency solutions programs for homeless individuals or families or individuals or families at-risk of homelessness, and is willing to use the ESG-CV Funds to operate SUBRECIPIENT’s ESG-CV Program to Packet Pg. 742
2 prevent, prepare for, and respond to the COVID-19 pandemic.

6. The SUBRECIPIENT agrees to assist individuals and families that are homeless or at- risk of homelessness in obtaining appropriate services and providing supportive activities to specifically mitigate the impacts of COVID-19, including, but not limited to: shelter operations, temporary and permanent housing, relocation and stabilization services, rapid re-housing assistance, medical and mental health treatment, and other services essential for achieving independent living, as well as other federal, state, local and private assistance available for such individuals.

7. The CITY agrees to reimburse the SUBRECIPIENT for the provision of the services set forth in the Scope of Work in an amount not to exceed $373,742 in ESG-CV Funds and that no funds of the CITY shall be or become a source of funds under this AGREEMENT.

8. The SUBRECIPIENT acknowledges and agrees that this AGREEMENT is contingent upon an allocation and receipt of ESG-CV Funds from HUD and the authorization given to the CITY to use a portion of its allocation in the amount set forth in this AGREEMENT to reimburse SUBRECIPIENT for the provision of its services under this AGREEMENT.

9. The CITY and the SUBRECIPIENT have duly executed this AGREEMENT for the expenditure and utilization of said funds.

TERMS AND CONDITIONS
NOW THEREFORE, it is agreed by and between the Parties that the foregoing Recitals are a substantive part of this AGREEMENT and the following Terms and Conditions are approved and, together with all exhibits and attachments hereto, shall constitute the entire AGREEMENT between the CITY and the SUBRECIPIENT:

I. SUMMARY OF KEY TERMS

CONTACT INFORMATION
City of San Bernardino: Subrecipient Organization:

Gretel Noble
Awarding Official
Lutheran Social Services of Southern
California (LSSSC)
Title: Housing Manager Jessica Esquivel
Address: 201 N. E Street Name of Primary Contact
City: San Bernardino
State: CA Zip: 92401 Title: Area Director
Telephone: 909-384-7270
Address: 1354 North G Street
City: San Bernardino
State: CA Zip: 92405
Telephone: 909-381-6921
Packet Pg. 743
3 CFDA Number: 14.231 FAIN Number: E-20-MC-05-0539
Federal Award Date: April 2, 2020 (the date when the federal award is signed by the authorized official of the federal awarding agency.)

1. ESG-CV1 Funds Obligated
Program Year: CARES Act Supplemental Funding for FY 2020 ESG Funds Amount: $ 373,742
II. SCOPE OF PROGRAM
A. General Administration
In compliance with all of the terms and conditions of this AGREEMENT, the SUBRECIPIENT agrees to provide the services and activities for the ESG-CV Program, as set forth in the Scope of Work (Exhibit A), which provides a description of each activity, including the services to be performed, the person(s) or entity providing the services, the estimated number of recipients of the services, and the manner and means of the services. The SUBRECIPIENT represents and warrants that the activities and services to be provided to implement the Scope of Work shall be performed in a competent, professional and satisfactory manner in accordance with the ESG Program and all laws applicable to the use of ESG-CV Funds, including without limitation as required and authorized by the CARES ACT.

B. Levels of Accomplishment – Goals and Performance Measures The SUBRECIPIENT shall be responsible to accomplish the levels of performance as set forth in the Scope of Work (Exhibit A) and report such measures quarterly to the CITY. If the SUBRECIPIENT estimates such goals will not be met, the SUBRECIPIENT is to contact the CITY, at which time the CITY will determine if any adjustment to the ESG-CV grant award is appropriate.

C. Staffing; Relationship of Parties; No Third Party Rights The SUBRECIPIENT shall ensure adequate and appropriate staffing is allocated to each ESG activity. Nothing contained in this AGREEMENT is intended to, or shall be construed by the Parties, or by any third party, as creating or establishing the relationship of employer/employee, principal and agent, partnership or joint venture between the Parties, it being understood and agreed that SUBRECIPIENT is and will be at all times an independent contractor pursuant to this AGREEMENT and shall not, in any way, be considered to be an officer, agent or employee of the CITY. The Parties intend that no rights or remedies be granted to any third party as a beneficiary of this AGREEMENT or of any covenant, duty, obligation or undertaking established herein.

III. TERM OF AGREEMENT
Packet Pg. 744
4 This AGREEMENT shall take effect on April 2, 2020 and shall terminate on June 30. 2021 unless otherwise cancelled or modified according to the terms of this AGREEMENT.

IV. DISBURSEMENT AND FUNDS
A. Maximum Amount of Disbursements; Method of Disbursement CITY agrees to reimburse SUBRECIPIENT when, if, and to the extent federal funds are received under provisions of the CARES Act, a sum not to exceed $_373,742 of ESG-CV Funds for SUBRECIPIENT'S performance of the Scope of Work, in accordance with the Budget attached hereto as Exhibit B. Requests for disbursements by SUBRECIPIENT shall be made by SUBRECIPIENT sending to the CITY, not more frequently than quarterly, commencing on or before the 15th day of the first month of said quarter, a detailed invoice in a form specified and approved by the CITY. Such schedule may be modified with the approval of the CITY. The CITY shall distribute ESG-CV Funds in quarterly installments, as requested by SUBRECIPIENT, in arrears, in order to compensate SUBRECIPIENT for the provision of SUBRECIPIENT’S services under this AGREEMENT.

SUBRECIPIENT has the ability to adjust line item amounts in the Budget with the prior written approval of the CITY’s Director of the Economic and Housing Department, so long as the total budget amount does not increase.

Notwithstanding anything in this AGREEMENT to the contrary, no additional funding allocation beyond the amount specified in this Section III.A shall be provided to SUBRECIPIENT without first amending this AGREEMENT consistent with the terms hereof.

B. Payment
Payment is subject to the receipt and approval of such invoices and quarterly activity reports, as hereinafter more fully set forth below under Reporting, with the final payment being due and payable upon the receipt of an invoice and report for the last quarter of the term of this AGREEMENT and the CITY'S approval thereof, which invoice and report shall be due on or before the 15th day of the first month of the first quarter following the expiration of the term of this AGREEMENT. The CITY shall pay such invoices within thirty (30) days after receipt thereof, provided the CITY is satisfied that such expenses have been incurred within the scope of this AGREEMENT and that the SUBRECIPIENT is in compliance with the terms and conditions of this AGREEMENT. The thirty (30) day period will discontinue if the reimbursement request is determined to be incomplete and will restart the thirty day timeline once the remaining required elements have been submitted.

Failure to provide any of the required documentation and reporting will cause the CITY to withhold all or a portion of a request for reimbursement until such documentation and reporting has been received and approved by the CITY.

C. Use of Funds
(1) Generally. The SUBRECIPIENT agrees to use ESG-CV Funds awarded pursuant to this AGREEMENT to pay for necessary and reasonable costs allowable under federal law Packet Pg. 745
5 and regulations, including without limitation the CARES Act, to operate said ESG-CV Program only, as detailed in the Budget set forth in Exhibit B. Said amounts shall include and will be limited to those activities described at 24 CFR §§ 576.101 – § 576.107, including without limitation, street outreach, emergency shelter, homelessness prevention, rapid re-housing assistance, housing relocation and stabilization services, short-term and medium-term rental assistance, and Homeless Management Information Systems (“HMIS”) data contribution as set forth in, subject to the allowed flexibilities and conditions for the use of ESG-CV Funds as provided in the CARES Act. The SUBRECIPIENT's failure to perform, as required, may, in addition to other remedies set forth in this AGREEMENT, result in readjustment of the amount of ESG-CV Funds the CITY is otherwise obligated to pay to the SUBRECIPIENT pursuant to the terms hereof. (2) Allowable Costs Incurred Prior to CARES Act Enactment. In accordance with the CARES Act, ESG-CV Funds may be used to cover or reimburse SUBRECIPIENT for allowable expenses to prevent, prepare for, and respond to COVID-19, as set forth in Exhibit B, which were incurred prior to the enactment of the CARES Act. The CITY has determined to use January 21, 2020 as the initial COVID-19 impact date for purposes of reimbursement of ESGCV Funds. (3) No Spending Cap on Emergency Shelter and Street Outreach. In accordance with the CARES Act, ESG-CV Funds are not subject to the spending cap on emergency shelter and street outreach under 24 CFR 576.100(b)(1).
(4) No Minimum Period of Use. In accordance with the CARES Act, ESG-CV Funds may be used to provide temporary emergency shelters (through leasing of existing property, temporary structures, or other means) to prevent, prepare for, and response to COVID-19, and that such temporary shelters shall not be subject to the minimum periods of use provided by 42 U.S.C. 11375(c)(1).
(5) Administrative Costs; Infectious Disease Training. In accordance with the CARES Act, notwithstanding the seven and one-half percent (7.5%) limitation set forth in 24 CFR 576.108(a), SUBRECIPIENT may utilize up to ten percent (10%) of ESG-CV Funds awarded under this AGREEMENT for administrative purposes. ESG-CV Funds may be used for training on infectious disease prevention and mitigation and to provide hazard pay, including for time worked prior to the date of enactment of this Act, for staff working directly to prevent, prepare for, and respond to coronavirus among persons who are homeless or at risk of homelessness, and that such activities shall not be considered administrative costs for purposes of the aforementioned ten percent (10%) cap. (6) No Prerequisite for Treatment or Activities. In accordance with the CARES Act, individuals and families experiencing homelessness must not be required to receive treatment or perform any other prerequisite activities as a condition for receiving shelter, housing, or other services for which the ESG-CV Funds are used, notwithstanding 24 CFR 576.401(e).

D. Condition of Funding
(1) The CITY advises the SUBRECIPIENT that a significant change in entitlement funding may result in a change in the current process utilized by the CITY to determine Packet Pg. 746
6 funding allocations. The SUBRECIPIENT acknowledges that the obligation of the CITY is contingent upon the availability of ESG-CV Funds, which are appropriated or allocated for the payment of such an obligation. If funding levels are significantly affected by federal budgeting or if funds are not made available for the continuance of the function performed by the SUBRECIPIENT, this AGREEMENT may be terminated by the CITY at the end of the period for which ESG-CV Funds have been made available to the CITY. In the event of funding reduction or if the ESG-CV Funds are not delivered to the CITY, the CITY may reduce the Budget for this AGREEMENT as a whole or may limit the rate by which SUBRECIPIENT receives the ESG-CV Funds for providing SUBRECIPIENT’S services hereunder. At the earliest opportunity, the CITY shall notify the SUBRECIPIENT of any services which may be affected by a shortage of funds. No penalty shall accrue to the CITY in the event this provision is exercised and the CITY shall not be liable for any damages as a result of termination under this provision of this AGREEMENT. Nothing herein shall be construed as obligating the CITY to expend funds in excess of authorized ESG-CV Fund appropriations.
(2) The SUBRECIPIENT shall allow representatives of the CITY or HUD and their agents and representatives to inspect facilities which are used in connection with the AGREEMENT or which implement the ESG-CV Program funded under this AGREEMENT and to observe the provision of services. Notwithstanding the foregoing, the CITY is under no duty to supervise the provision of SUBRECIPIENT’S services. Any inspection or examination by the CITY is for the sole purpose of protecting and preserving the CITY’s rights under this AGREEMENT. No default of SUBRECIPIENT shall be waived by any inspection by the CITY. In no event shall any inspection by the CITY be a representation that there has been or will be compliance with this AGREEMENT by SUBRECIPIENT or that SUBRECIPIENT is in compliance with any federal, state and local laws, ordinances, regulations and directives applicable to the performance of this AGREEMENT or the provision of SUBRECIPIENT’S services.
(3) Where the CITY has reasonable grounds to question the fiscal accountability, financial soundness, or compliance with this AGREEMENT by the SUBRECIPIENT, the CITY may suspend the operation of this AGREEMENT for up to sixty (60) days upon three (3) days' notice to SUBRECIPIENT of the CITY’S intention to so act, pending an audit or other resolution of such questions.

E. Matching
In accordance with the CARES Act, ESG-CV Funds are exempt from the ESG requirement that the SUBRECIPIENT provide matching contributions to supplement its ESG-provided programs and services, including as outlined under 24 CFR § 576.201, in an amount that equals or exceeds the amount of ESG-CV Funds provided by HUD through the CITY.

F. Program Income
(1) Definition. “Program income” means, as provided by 2 CFR § 200.80, gross income received by the SUBRECIPIENT directly generated by a grant supported activity, or earned only as a result of the grant agreement during the grant period. For purposes of the ESG Program, “program income” will also include any amount of a security or utility Packet Pg. 747
7 deposit returned to the SUBRECIPIENT.
(2) Use. The SUBRECIPIENT shall use all income received from ESG-CV Funds only for the same purposes for which said funds may be expended pursuant to the terms and conditions of this AGREEMENT.

G. Separation of Accounts
All ESG-CV Funds received by the SUBRECIPIENT from the CITY pursuant to this AGREEMENT shall be maintained separate and apart from any other funds of the SUBRECIPIENT, or of any principal or member of the SUBRECIPIENT, in an account (the “Account”) at a federally-insured banking or savings and loan institution with record keeping of such Accounts maintained pursuant to applicable legal requirements. The SUBRECIPIENT shall keep all records of the Account in a manner that is consistent with generally-accepted accounting principles. No monies shall be withdrawn from the Account except for expenditures relating to essential services, homeless prevention, operations costs and/or other permissible ESG-CV Program expenditures, as authorized hereunder. All disbursements from the Account shall be for obligations incurred in the performance of this AGREEMENT and shall be supported by contracts, invoices, vouchers, and other data, as appropriate, evidencing the necessity of such expenditure. The CITY may withhold payment allocation requests if the SUBRECIPIENT fails to comply with the above-stated requirements until such compliance is demonstrated to the satisfaction of the CITY.

H. Expenditure of Funds
SUBRECIPIENT is required to expend all of the ESG-CV Funds for eligible ESG-CV Program activity costs within the term of this AGREEMENT. For the purposes of this paragraph, expenditure means either an actual cash disbursement for a direct charge for goods or services or an indirect cost, or the accrual of a direct charge for goods or services or an indirect cost. Failure to expend said funds within said timeframe can result in a reallocation of funds.

I. Prohibited Use
(1) Generally. The SUBRECIPIENT hereby certifies and agrees that it will use the ESGCV Funds provided through this AGREEMENT only for the purposes authorized by applicable federal, state, and local laws, regulations, and ordinances pertinent to SUBRECIPIENT’s identified operations and services to be performed hereunder, including without limitation the requirements and allowances authorized under the CARES Act and all other laws and regulations applicable to a subrecipient of ESG-CV Funds. The SUBRECIPIENT further certifies that it will not use said funds for illegal or dishonest conduct. For the avoidance of doubt, SUBRECIPIENT certifies that the use of ESG-CV Funds will remain in compliance with all applicable federal, state, and local laws, regardless of whether such applicable laws are outlined in this AGREEMENT, and that said funds may not be used to pay for meals for persons and families other than those identified as homeless or at-risk of homelessness, for entertainment purposes, or for gifts.
(2) Lobbying. The SUBRECIPIENT certifies and agrees that it will comply with federal law (31 U.S.C. § 1352) and regulations (24 CFR Part 87), which provide that no appropriated funds may be expended by the recipient of a federal contract, grant, loan, or cooperative Packet Pg. 748
8 agreement to pay any person for influencing or attempting to influence an officer or employee of any agency, Member of Congress, or an officer or employee of a Member of Congress in connection with awarding of any federal contract, the making of any federal grant or loan, entering into any cooperative agreement and the extension, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. The SUBRECIPIENT shall sign a certification to that effect in a form as set forth in Exhibit C, attached hereto and by this reference incorporated herein. The SUBRECIPIENT shall submit said signed certification to the CITY prior to performing any of its obligations under this AGREEMENT and prior to any obligation arising on the part of the CITY to pay any sums to the SUBRECIPIENT under the terms and conditions of this 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 a "Disclosure of Lobbying Activities," in accordance with its instructions (see Exhibit D).

V. NOTICES
All notices, demands, or other writings to be made, given or sent hereunder, or which may be so given or made or sent by either CITY or SUBRECIPIENT to the other shall be deemed to have been given when in writing and personally delivered or if mailed on the third (3rd) day after being deposited in the United States mail, certified or registered, postage prepaid, and addressed to the respective Parties at the following addresses:

If to CITY: Community and Economic Development Department City of San Bernardino
290 North D Street
San Bernardino, CA 92401
With copies to: Maria Gallegos, Administrative Analyst II Economic & Housing Development Department
City of San Bernardino
290 N. D Street
San Bernardino, California 92401
Telephone No. (909) 384-7259
If to SUBRECIPIENT: Jessica Esquivel, Area Director
Lutheran Social Services of Southern California
1354 North G Street
San Bernardino, CA 92405
(909) 381-6921
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9 VI. GENERAL CONDITIONS
A. Exemption from Consultation Requirements
In accordance with the CARES Act, the use of ESG-CV Funds are not subject to the consultation and citizen participation requirements that otherwise apply to funds issued through the ESG Program; provided, however, that SUBRECIPIENT must provide the CITY the material necessary to publish how SUBRECIPIENT’s ESG-CV Funds have and will be used, at a minimum, on the CITY’s website or through other electronic material.

B. Evaluation of Program Participants Eligibility and Needs For purposes of using ESG-CV Funds for in regaining stability in permanent housing, the SUBRECIPIENT shall conduct an initial evaluation to determine the eligibility of each individual or family for ESG Program assistance and the amount and types of assistance of the individual or family needs to regain stability in permanent housing. These evaluations must be conducted in accordance with the centralized or coordinated assessment requirements set forth under 24 CFR §576.400(d) and the written standards established under 24 CFR §576.401(b). Please see attached City of San Bernardino Emergency Solutions Grant Written Standards. Notwithstanding the foregoing, ESG-CV Funds may be used to provide homeless prevention assistance (as authorized under 24 CFR 576.103 or subsequent HUD notices) to any individual or family who does not have income exceeding HUD’s Very-Low Income Limit for San Bernardino County and meets the criteria in sections 42 U.S.C. § 11360(1)(B) and (C).

C. Terminating Assistance
If a program participant violates program requirements, the SUBRECIPIENT may terminate the assistance in accordance with a formal process established by the SUBRECIPIENT that recognizes the rights of individuals affected. See 24 CFR § 576.402.

D. Shelter and Housing Standards
The SUBRECIPIENT certifies that shelters and housing supported by ESG-CV Funds and used by ESG Program beneficiaries will conform to 24 CFR § 576.403.

E. Homeless Involvement
The SUBRECIPIENT certifies that it will involve, to the maximum extent practicable, homeless individuals and families in constructing, renovating, maintaining, and operating facilities assisted under the ESG Program, and in providing services for occupants of these facilities. See 24 CFR § 576.405(c) and 42 U.S.C. 11375(d).

F. Independent Contractor
Nothing contained in this AGREEMENT is intended to, or shall be construed in any manner, as creating or establishing the relationship of employer/employee between the Parties. The SUBRECIPIENT and any agent or employee of SUBRECIPIENT shall act in an independent capacity and not as officers or employees of the CITY. CITY assumes no liability for Packet Pg. 750
10 SUBRECIPIENT's actions and performance; nor does the CITY assume responsibility for taxes, bonds, payments, or other commitments, implied or explicit, by or for SUBRECIPIENT.

SUBRECIPIENT shall not have authority to act as an agent on behalf of CITY unless specifically authorized to do so in writing. SUBRECIPIENT acknowledges that it is aware that because it is an independent contractor, CITY is making no deduction from any amount paid to SUBRECIPIENT and is not contributing to any fund on its behalf. SUBRECIPIENT disclaims the right to any fee or benefits except as expressly provided for in this AGREEMENT.

As respects all acts or omissions of SUBRECIPIENT relating to SUBRECIPIENT’s responsibility for taxes, bonds, payments, or other commitments, implied, or explicit, by or for SUBRECIPIENT, the SUBRECIPIENT agrees to indemnify, defend (at the CITY's option), and hold harmless the CITY, its officers, agents, employees, representatives, and volunteers from and against any and all claims, demands, reasonable defense costs, or liability of any kind or nature to the extent arising out of or in connection with the SUBRECIPIENT's performance or failure to perform under this Section.

G. Subcontracts
(1) Content Requirements. The SUBRECIPIENT will include all relevant provisions of this AGREEMENT in all subcontracts entered into as part of the activities undertaken in furtherance of this AGREEMENT and will take appropriate action pursuant to any subcontract upon a finding that the subcontractor is in violation of regulations issued by any federal agency. The SUBRECIPIENT will not subcontract with any entity where it has notice or knowledge that the latter has been found in violation of regulations under 24 CFR Part 135 (Economic Opportunities for Low- and Very Low-Income Persons) and will not allow any subcontract unless the entity has first provided it with a preliminary statement of ability to comply with the requirements of these regulations. (2) Submission to the CITY. The SUBRECIPIENT must submit all subcontracts and other agreements that relate to this AGREEMENT to the CITY.

H. Licensing
The SUBRECIPIENT agrees to obtain and maintain, at its sole cost and expense, all required licenses, registrations, accreditation, permits and approvals as may be required by law for its operations and the performance of its services under this AGREEMENT. The SUBRECIPIENT shall ensure that its staff and subcontractors shall also obtain and maintain all required licenses, registrations, accreditation, permits and approvals as may be required by law for the performance of services hereunder. Such licensing requirements include obtaining a CITY business license, as applicable. SUBRECIPIENT shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and which arise from or are necessary for the performance of the services required by this AGREEMENT.

I. Responsibilities Toward Employees
The SUBRECIPIENT accepts full responsibility for payment of any and all unemployment compensation, insurance premiums, workers’ compensation premiums, income tax withholdings, social security withholdings, and any and all other taxes or payroll withholdings required for all Packet Pg. 751
11 employees engaged in the performance of the work and activities authorized by the AGREEMENT.

The SUBRECIPIENT accepts full responsibility for providing workers with proper safety equipment and taking any and all necessary precautions to guarantee the safety of workers or persons otherwise affected.

J. Insurance and Bonding
(1) Generally. The SUBRECIPIENT shall maintain liability and property insurance to cover actionable legal claims for liability or loss which are the result of injury to or death of any person, or damage to property (including property of SUBRECIPIENT) caused by the negligent acts or omissions, or negligent conduct of the SUBRECIPIENT, its employees, agents or subcontractors, to the extent permitted by law, in connection with the activities pursuant to this AGREEMENT.

The SUBRECIPIENT shall comply with the bonding and insurance requirements of 2 CFR § 200.427, and 2 CFR § 200.447.

The SUBRECIPIENT shall obtain prior to commencing any services or activities under this AGREEMENT, at its sole cost, and maintain during the term of this AGREEMENT, insurance coverage as set forth below.
(2) Limits. The SUBRECIPIENT shall maintain, at all times, the following minimum levels of Insurance, and shall, without in any way altering its liability, obtain, pay for, and maintain insurance for the coverages and amounts of coverage not less than those set forth below:
(a) Workers’ Compensation Insurance, as required by State statutes. (b) Comprehensive General Liability Insurance or Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, Broad-Form Property Damage, Independent Contractor's Liability and Fire Damage Legal Liability, in an amount of not less than $1,000,000 combined single limit of liability for bodily injuries, death, and property damage resulting from any one occurrence. (c) Comprehensive Automobile Liability coverage, including - as applicable - owned, non-owned and hired autos, in an amount of not less than One Million Dollars ($1,000,000.00) per occurrence, combined single limit, written on an occurrence form.

The SUBRECIPIENT’s self-insured retention or deductible per line of coverage shall not exceed $25,000 without the permission of the CITY.
(3) Required Policy Language. Each policy of general liability and automobile liability insurance required by this AGREEMENT shall contain the following clauses:
“Written notice of cancellation shall be delivered to the City Clerk of the City of San Bernardino, 290 N. D Street, San Bernardino, CA 92401 in accordance with the policy provisions.”
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12 “It is agreed that any insurance maintained by the City of San Bernardino shall apply in excess of and not contribute with insurance provided by this policy.”
“The City of San Bernardino, its officials, agents, employees, representatives, and volunteers are added as additional insureds as respects operations and activities of, or on behalf of the named insured, performed under contract with the City of San Bernardino.” SUBRECIPIENT hereby agrees to waive subrogation which any insurer of the SUBRECIPIENT may acquire from the SUBRECIPIENT by virtue of the payment of any loss. If requested by CITY, SUBRECIPIENT agrees to obtain and deliver to CITY an endorsement from SUBRECIPIENT’s general liability and automobile insurance insurer to effect this waiver of subrogation.
(4) Required Certificates and Endorsements. Prior to commencement of any work under this AGREEMENT, the SUBRECIPIENT shall deliver to CITY (i) insurance certificates confirming the existence of the insurance required by this AGREEMENT, and including the applicable clauses referenced above and (ii) endorsements to the aboverequired policies, which add to these policies the applicable clauses referenced above. Such endorsements shall be signed by an authorized representative of the insurance company and shall include the signator’s company affiliation and title. Should it be deemed necessary by CITY, it shall be the SUBRECIPIENT’s responsibility to see that CITY receives documentation, acceptable to CITY, which sustains that the individual signing such endorsements is indeed authorized to do so by the insurance company. Also, CITY reserves the right at any time to demand, and to receive within a reasonable time period, certified copies of any insurance policies required under this AGREEMENT, including endorsements effecting the coverage required by these specifications. (5) Company Rating. All insurance coverage shall be written with a company having an AM. Best Rating “A” or better and financial size VIII or larger. (6) Failure to Comply. In the event of any failure by the SUBRECIPIENT to comply with these provisions, the CITY may, after notice to the SUBRECIPIENT, suspend the program for cause until there is full compliance.

K. Zoning
The SUBRECIPIENT agrees that any facility/property used in furtherance of said program shall be specifically zoned and permitted for such use(s) and activity(ies). Should the SUBRECIPIENT fail to have the required land entitlement and/or permits, thus violating any local, state, or federal rules and regulations relating thereto, the SUBRECIPIENT shall immediately make good-faith efforts to gain compliance with local, state, or federal rules and regulations following written notification of said violation(s) from the CITY or other authorized citing agency. The SUBRECIPIENT shall notify the CITY immediately of any pending violations. Failure to notify the CITY of pending violations, or to remedy such known violation(s), shall result in termination of grant funding hereunder. The SUBRECIPIENT must make all corrections required to bring the facility/property into compliance Packet Pg. 753
13 with the law within sixty (60) days of notification of the violation(s); failure to gain compliance within such time shall result in termination of grant funding hereunder.

L. Displacement and Relocation.

SUBRECIPIENT must assure that it has taken all reasonable steps to minimize displacement of persons. Relocation must be consistent with requirements as set forth in 24 CFR § 576.408.

M. Provisions Required by Law Deemed Inserted.

Each and every provision of law and clause required by law to be inserted in this AGREEMENT shall be deemed to be inserted herein and the AGREEMENT shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted or correctly inserted, then upon the application of either Party, the contract shall forthwith be physically amended to make such insertion or correction.

VII. ASSURANCES AND CERTIFICATIONS
A. Non-Profit Status
The SUBRECIPIENT certifies that:
(1) The SUBRECIPIENT is a duly organized and existing non-profit corporation in good standing and authorized to do business under the laws of the State of California and in possession of required non-profit status under the United States Internal Revenue Code [for example, 26 USC § 501(c)(3)]. The SUBRECIPIENT has full right, power, and lawful authority to accept the funding hereunder and to undertake all obligations as provided herein and the execution, performance, and delivery of this AGREEMENT by the SUBRECIPIENT has been fully authorized by all requisite actions on the part of the SUBRECIPIENT. (2) If the SUBRECIPIENT’s non-profit status changes at any time during this AGREEMENT, it will advise the CITY within fifteen (15) days. (3) If the SUBRECIPIENT is a private non-profit, it hereby agrees that the members of its Board of Directors will receive no compensation, directly or indirectly, other than reimbursement for expenses, from any funds generated from or because of the ESG program, for their services.
(4) As a non-profit, the SUBRECIPIENT acknowledges that administration of its operation and services are subject to the requirements as established in 2 CFR § 200.

B. Adherence to Federal, State, and Local Laws and Regulations (1) General. The SUBRECIPIENT agrees to comply with all requirements of the ESG Program and applicable cross-cutting federal, state, and local requirements, including without limitation those identified in this Section VI.B.
(2) Economic Opportunities for Low- and Very Low-income Persons. The Packet Pg. 754
14 SUBRECIPIENT shall ensure that employment and other economic opportunities generated by the Program shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly those who are recipients of government assistance for housing. Section 3 of the Housing and Urban Development Act of 1968, 12 U.S.C. § 1701u, and regulations at 24 CFR Part 135 apply, except that homeless individuals have priority over other Section 3 residents in accordance with § 576.405(c).
(3) Civil Rights. The SUBRECIPIENT agrees to comply with Title VI of the Civil Rights Act of 1964, as amended, Title VIII of the Civil Rights Act of 1968, as amended, Section 109 of the Title I of the Housing and Community Development Act of 1974, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Age Discrimination Act of 1975, and 41 CFR Chapter 60.
(4) Nondiscrimination and Equal Employment Opportunity. During the performance under this AGREEMENT, the SUBRECIPIENT shall not discriminate against any employee or applicant for employment based on race, color, creed, religion, sex, age, handicap, disability, ancestry, national origin, marital status, familial status, sexual orientation, or any other basis prohibited by applicable law. The SUBRECIPIENT shall take affirmative action to ensure that all applicants and employees are treated without regard to race, color, creed, religion, sex, age, handicap, disability, ancestry, national origin, marital status, familial status, and sexual orientation. The SUBRECIPIENT shall comply with all provisions of Executive Order 11246, Equal Employment Opportunity, as amended by Executive Orders 11375 and 12086.
(5) Nondiscrimination and Equal Opportunity in Participation. The requirements of 24 CFR part 5, subpart A are applicable, including the nondiscrimination and equal opportunity requirements at 24 CFR § 5.105(a). The SUBRECIPIENT shall not discriminate against any participant on the ground of race, color, creed, religion, sex, age, handicap, disability, ancestry, national origin, marital status, familiar status, sexual orientation, or any other basis prohibited by applicable law. The SUBRECIPIENT shall, through affirmative outreach, make known that use of the facilities, assistance, and services are available to all on a nondiscriminatory basis. The SUBRECIPIENT must take appropriate steps to ensure effective communication with persons with disabilities. (6) Americans with Disabilities Act. The SUBRECIPIENT agrees to comply with any federal regulations issued pursuant to compliance with the Americans with Disabilities Act which prohibits discrimination and ensures equal opportunity for persons with disabilities in employment, State and Local government services, and public accommodations. (7) Fair Housing. Under Section 808(e)(5) of the Fair Housing Act, HUD has a statutory duty to affirmatively further fair housing. HUD requires the same of its funded subrecipients. The SUBRECIPIENT has a duty to affirmatively further fair housing opportunities for classes protected under the Fair Housing Act. (8) CITY Policies and Procedures. The SUBRECIPIENT agrees to satisfy and comply with all policies, procedures, and written standards and criteria of the CITY’s ESG Policies and Procedures Manual, as set forth in Exhibit E, incorporated herein by this reference.

Compliance with this Section VI.B(8) will further require SUBRECIPIENT to use the forms, Packet Pg. 755
15 if and when applicable, included in Exhibit F, which are incorporated herein by this reference.
(9) CARES Act. The SUBRECIPIENT shall ensure that the use of the ESG-CV Funds awarded under this AGREEMENT shall be used in accordance with the requirements and allowances of the CARES Act (H.R. 748-328 to -330).

C. Falsification of Information
The SUBRECIPIENT represents and warrants that it has made no false statements to the CITY in the process of obtaining this award of the ESG-CV Funds.

D. Drug Free Workplace
The SUBRECIPIENT represents and warrants that it has established the following drug-free workplace policy:
(1) The unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace for any employee involved in a federally funded program.
(2) As an employee working in conjunction with a federally funded program, the employees of the SUBRECIPIENT will be required to:
a. Abide by the terms above in statement (1), and
b. Notify the appropriate SUBRECIPIENT authorities and CITY officials of any criminal drug statute conviction for a violation occurring in the workplace.

Such notification shall be made no later than five (5) days after conviction. (3) The CITY and the United States Department of Housing and Urban Development will be notified within ten (10) days after receiving notice of any such violation. (4) Within thirty (30) days of receiving such notice, appropriate personnel action will be taken against such employee, up to and including termination. (5) Each such employee shall be required to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a federal, state or local health, law enforcement, or other appropriate agency.

E. Religious Organization
The SUBRECIPIENT may not engage in inherently religious activities, such as worship, religious instruction, or proselytization as part of said program or services. If the SUBRECIPIENT conducts such activities, the activities must be offered separately, in time or location, from said programs or services, and participation must be voluntary for the program participants. The SUBRECIPIENT shall not, in providing program assistance, discriminate against a program participant or prospective program participant on the basis of religion or religious belief. If the SUBRECIPIENT is a religious Packet Pg. 756
16 organization, it retains its independence from federal, state, and local governments, and may continue to carry out its mission, including the definition, practice, and expression of its religious beliefs, provided that the religious organization does not use direct ESG-CV Funds to support any inherently religious activities. The SUBRECIPIENT agrees that rehabilitation of structures by the religious organization in connection with said program must be in sound accord with the provisions under 24 CFR § 576.406.

F. Additional Terms between the CITY and HUD
The SUBRECIPIENT agrees further that it shall be bound by the standard terms and conditions used in the Grant Agreement between HUD and the CITY and such other rules, regulations, or requirements as HUD may reasonably impose in addition to the aforementioned assurances at or subsequent to the execution of this AGREEMENT by the Parties hereto.

G. OSHA
Where employees are engaged in activities not covered under the Occupational Safety and Health Act of 1970, they shall not be required or permitted to work, be trained, or receive services in buildings or surroundings or under working conditions which are unsanitary, hazardous, or dangerous to the participants’ health or safety.

H. Hatch Act
The SUBRECIPIENT agrees that no funds provided, nor personnel employed under this AGREEMENT, shall be in any way or to any extent engaged in the conduct of political activities in violation of the Hatch Act, 5 U.S.C. § 1501 et seq.

I. Davis-Bacon Act
All laborers and mechanics employed by contractors or subcontractors in the performance of construction work, including alterations and repairs, in excess of $2,000.00, financed in whole or in part with federal funds shall be paid wages at rates not less than those prevailing on similar construction in the locality as determined in accordance with the Davis-Bacon Act, as amended, 40 U.S.C. §§ 276a - 276a-5. Any such construction contract shall include and comply with the required contract provisions and rules set forth in 29 C.F.R. § 5.5. Further, the payroll reports (along with the “Statement of Compliance”) and basic records are required to be maintained and submitted, or made available, pursuant to 29 C.F.R. § 5.5(a)(3). No payment, advance, grant, loan or guarantee of funds shall be approved by the federal agency unless there is on file with the agency a certification by the contractor that the contractor and its subcontractors have complied with the provisions of 29 C.F.R. § 5.5. A breach of the contract clauses in 29 C.F.R. §5.5 may be grounds for termination of the contract, and for debarment as a contractor/subcontractor, as provided in 29 CFR §5.12. Labor standards interviews/investigations shall be made as necessary to assure compliance. See 29 CFR §5.6(a)(3).

VIII. ADMINISTRATIVE REQUIREMENTS
The following requirements and standards must be complied with: 2 CFR Part 200, et seq.

SUBRECIPIENT shall procure all materials, property, or services in accordance with the Packet Pg. 757
17 requirements of 2 CFR § 200.318-326.

A. Procurement
The SUBRECIPIENT shall comply with current HUD and CITY policies concerning the procurement of equipment, goods, and services, and shall maintain inventory records of all nonexpendable personal property as defined by such policy as may be procured with funds provided herein. The SUBRECIPIENT shall report to the CITY all program assets (unexpended program income, property, equipment, etc.), and upon the CITY’S request, such assets shall revert to the CITY upon termination of this AGREEMENT. Pursuant to 2 CFR § 200.331 (a) (4), the Indirect Cost Rate for the SUBRECIPIENT’s award shall be an approved federally recognized cost rate negotiated between the SUBRECIPIENT and the federal government, or, if no cost rate exists, the de minimis indirect cost rate as defined in 2 CFR § 200.414(b) Indirect (F & A) costs shall be used.

For this AGREEMENT, the de minims indirect cost of 10% will apply. The use and disposition of equipment under this AGREEMENT shall be in compliance with the requirements of 2 CFR Part 200. Notwithstanding any provision in this Section VIII, in accordance with the CARES Act, SUBRECIPIENT may deviate from applicable procurement standards when procuring goods and services to prevent, prepare for, and respond to COVID-19, notwithstanding 24 CFR 576.507(f) and 2 CFR 200.317-200.326.

B. Reporting
Reporting requirements must conform to the policies and procedures as established by the CITY and 24 CFR § 576.500. The SUBRECIPIENT shall submit to the CITY, on or before the 15th day of October, January, April, and July, as part of the Quarterly Report:
(1) Payment Request. An original request for reimbursement and true copies of invoices, receipts, agreements, HMIS reports or other documentation supporting and evidencing how the ESG-CV Funds have been expended during the applicable quarter. (2) Documentation. Quarterly Activities and written cumulative (year-to-date) reports of activities, program accomplishments, new program information, and up-to-date program statistics on expenditures, caseload and activities. Failure to provide any of the required documentation and reporting will cause the CITY to withhold all or a portion of a request for reimbursement until such documentation and reporting has been received and approved by the CITY.
(3) Matching. Quarterly certification of match, plus documentation of match source. (4) Additional Reporting. Any other such reports as the CITY (or HUD) shall reasonably require and/or request, including but not limited to the following information: monthly records of all ethnic and racial statistics of persons and families benefited by the SUBRECIPIENT in the performance of its obligations under this AGREEMENT.

C. Record Keeping
Sufficient records must be established and maintained to enable the CITY and HUD to determine Packet Pg. 758
18 whether the ESG Program requirements, including but not limited to as it relates to use of ESG-CV Funds,are being met. Record keeping requirements must conform to the policies and procedures as established by the CITY. All accounting records, reports, all evidence pertaining to costs, expenses, and ESG-CV Funds of the SUBRECIPIENT, and all documents related to this AGREEMENT shall be maintained and kept available at the SUBRECIPIENT’S office or place of business for the duration of the AGREEMENT and thereafter for five (5) years post- completion of an audit in conformity with the ESG Program requirements, except as hereinafter provided relating to retention of any records or documentation existing, created, or maintained in compliance with Lead-based Paint regulations, which likely require longer retention as outlined below. Records which relate to (a) complaints, claims, administrative proceedings or litigation arising out of the performance of this AGREEMENT, or (b) costs and expenses of this AGREEMENT to which the CITY or any other governmental agency takes exception, shall be retained beyond the five (5) years until complete resolution or disposition of such appeals, litigation claims, or exceptions. All said records must be retained for the greater of the aforementioned duration or the periods specified in 24 CFR § 576.500(y). All records relating to, or created or maintained in compliance with, the Lead-Based Paint regulations shall be retained and maintained by the SUBRECIPIENT indefinitely, including without limitation, all inspection report(s), disclosure statement(s), and clearance report(s). Copies made by microfilming, photocopying, or similar methods may be substituted for the original records. The CITY, HUD and auditors shall have the right to access all SUBRECIPIENT records for as long as the records are retained by the SUBRECIPIENT. In the event the SUBRECIPIENT does not make the above- referenced documents available within the City of San Bernardino, California, the SUBRECIPIENT agrees to pay all necessary and reasonable expenses incurred by the CITY in conducting any audit at the location where said records and books of account are maintained.

The SUBRECIPIENT agrees to meet the requirements set forth in 24 CFR § 576.500.

D. Homeless Management Information Systems (HMIS)
(1) Generally. The SUBRECIPIENT must ensure that data on all persons served and all activities assisted under the ESG Program are entered into the applicable community-wide HMIS in the area in which those persons and activities are located, or with the express knowledge and written consent of the CITY, a comparable database, in accordance with HUD’s standards on participation, data collection, and reporting under a local HMIS. (2) HMIS Agency Agreement. The SUBRECIPIENT shall have an agreement in place with the HMIS lead agency to participate in the regionally established HMIS system. A copy of the SUBRECIPIENT'S agreement with the HMIS lead agency shall be delivered to the CITY. In the case of Domestic Violence service providers or other agencies prohibited from entering data into HMIS, documentation from the HMIS lead agency certifying that the SUBRECIPIENT is using a comparable database shall be delivered to the CITY. The "HMIS lead agency" is the County of San Bernardino Community Development and Housing Agency, which is located at 385 N. Arrowhead Ave., 3rd Floor, San Bernardino, California (909-387-4700).
(3) HMIS Interagency Data Sharing Agreement. SUBRECIPIENT shall enter into an Interagency Data Sharing Agreement with the HMIS Lead Agency where the SUBRECIPIENT agrees to share HMIS data with other ESG funded agencies regarding clients that are served in ESG funded programs, unless prohibited by law. A copy of such agreement shall be delivered to the CITY.

Packet Pg. 759
19 (4) HMIS Data Input. SUBRECIPIENT must enter data directly into the HMIS system, and adhere to all implementation guidelines developed under the Continuum of Cares, HMIS. Participation includes, but is not limited to, the input of all programmatic and client data, the generation of all mandated monthly, quarterly and close-out reports. Subrecipient must input client data no more than forty-eight (48) hours after date of program entry.

Services rendered to clients must be entered into HIMS within forty-eight (48) hours from date of services. All clients who exit the program must have updated status in HIMS within forty-eight (48) hours of actual exit date. Failure to meet the above Data Input requirements will constitute a violation of the terms and conditions of these AGREEMENTS and subject to the remedies set forth in Section XV below.

E. Audit Report Requirements
The SUBRECIPIENT agrees that if the SUBRECIPIENT expends Seven Hundred Fifty Thousand Dollars ($750,000.00) or more in federal funds, the SUBRECIPIENT shall have an annual audit conducted by a certified public accountant in accordance with the standards as set forth and published by the United States Office of Management and Budget (2 CFR § 200.501a). The SUBRECIPIENT shall provide the CITY with a copy of said audit by April 1 of the year following the program year in which this AGREEMENT is executed. Further, the SUBRECIPIENT shall comply and/or cause compliance with audit report(s) required by applicable provisions of the Lead- Based Paint Regulations as further detailed below.

IX. EVALUATION AND MONITORING
A. Generally
The CITY will monitor the performance of the SUBRECIPIENT against goals and performance standards as required herein, including without limitation as related to the Scope of Work attached Exhibit A. The SUBRECIPIENT shall provide the CITY all necessary reporting information as required by the CITY in the administration and review of the ESG-CV Program. Substandard performance as determined by the CITY will constitute noncompliance with this AGREEMENT. If action to correct such substandard performance is not taken by the SUBRECIPIENT within a reasonable period of time after being notified by the CITY, contract suspension or termination procedures will be initiated.

B. Access to Records
The SUBRECIPIENT gives the CITY and HUD, including their authorized representative, access to and the right to examine all records, books, papers, items, emails, and documents, both physical and electronic, relating to the program.

C. Audit
The CITY shall have the right to audit and monitor any program income as a result of an ESG activity. Upon request by the CITY and for audit purposes, the SUBRECIPIENT further agrees to provide all files, records, and documents pertaining to related activities and clientele demographic data.

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20 X. LIABILITY
A. Generally
Each Party to this AGREEMENT acknowledges that it will be liable for its own negligent acts or negligent omissions by or through itself, its employees, agents, and subcontractors. Each Party further agrees to defend itself and themselves, and to pay any judgments and costs arising out of such negligent acts or omissions, and nothing in this AGREEMENT shall impute or transfer any such liability from one to the other. In other words, the SUBRECIPIENT agrees to be fully responsible for its negligent acts or omissions, or any intentional tortuous acts which result in claims or suits against the CITY, and agrees to be liable for any damages proximately caused by said acts or omissions. Nothing herein shall be construed as consent by a State agency or CITY or subdivision or department thereof to be sued by third parties in any matter arising out of any contract, and nothing herein is intended to serve as a waiver of sovereign immunity where sovereign immunity applies.

B. CITY Not Liable for Funds
The SUBRECIPIENT further acknowledges that the source of the ESG-CV Funds is a federal passthrough grant to the SUBRECIPIENT. The CITY shall have no obligation to advance or pay the SUBRECIPIENT with any funds other than the ESG-CV Funds the CITY receives from HUD.

C. Hold Harmless
The SUBRECIPIENT shall defend, indemnify and save harmless the CITY, its officers, agents, employees, representatives, volunteers, and student externs from and against any and all claims, demands, defense costs, liability or damages of any kind or nature resulting from or arising out of the acts, errors or omissions of the SUBRECIPIENT, its officers, directors, employees, agents, subcontractors, and suppliers in the performance of SUBRECIPIENT's services and activities under this AGREEMENT.

XI. ENVIRONMENTAL CONDITIONS
A. Generally
ESG activities are subject to environmental review by HUD under the environmental regulations in 24 CFR part 50. The SUBRECIPIENT, or any contractor of the SUBRECIPIENT, may not acquire, rehabilitate, convert, lease, repair, dispose of, demolish, or construct property for a project or activity under this part, or commit or expend ESG or local funds for eligible activities under this part unless and until HUD has performed an environmental review under 24 CFR part 50 and the SUBRECIPIENT has received HUD approval of the property.The SUBRECIPIENT agrees to comply with all applicable environmental requirements insofar as they apply to the performance of this AGREEMENT, including but not limited to the Clean Air Act, the Federal Water Pollution Control Act and the Flood Disaster Protection Act. If applicable, the SUBRECIPIENT also shall comply with the Historic Preservation requirements of the National Historic Preservation Act of 1966. Notwithstanding any provisions of this Section XI to the contrary, in accordance with the CARES Act, any use of ESG-CV Funds for temporary emergency shelters shall not be subject to the Federal habitability and environmental review standards where State or local health officials such Packet Pg. 761
21 temporary health standards are necessary to prevent, prepare for, and respond to COVID-19.

B. Lead-based Paint Remediation and Disclosure
The Lead-Based Paint Poisoning Prevention Act (42 U.S.C. §§ 4821–4846), the Residential LeadBased Paint Hazard Reduction Act of 1992 (42 U.S.C. §§ 4851–4856), and implementing regulations in 24 CFR part 35, subparts A, B, H, J, K, M, and R apply to all shelters assisted under ESG and all housing occupied by program participants that were built before 1978.

C. Assignment of Responsibilities
By this AGREEMENT, the SUBRECIPIENT will accept assignment from the CITY of all responsibilities set forth in Subpart K of 24 CFR 35.

D. Compliance with Subpart K
The purpose of Subpart K is to establish procedures to eliminate as far as practicable lead-based paint (“LBP”) hazards in a residential property that receives federal assistance under certain HUD programs for acquisition, leasing, support services, or operation. In connection with the grant funds under this AGREEMENT, the CITY requires that the SUBRECIPIENT comply and show evidence of compliance with all applicable subparts of 24 CFR 35, and especially, Subpart K (“LBP Regs”).

The SUBRECIPIENT shall conduct the following activities for the dwelling unit, common areas servicing the dwelling unit, and the exterior surfaces of the building in which the dwelling unit is located:
(1) A visual assessment of all painted surfaces in order to identify deteriorated paint; (2) Paint stabilization of each deteriorated paint surface, and clearance, in accordance with §§ 35.1330(a) and (b), before occupancy of a vacant dwelling unit or, where a unit is occupied, immediately after receipt of federal assistance; (3) Ongoing lead-based paint maintenance activities into regular building operations, in accordance with § 35.1355(a), if the dwelling unit has a continuing, active financial relationship with a federal housing assistance program, except that mortgage insurance or loan guarantees are not considered to constitute an active programmatic relationship for the purposes of this part; and
(4) Notice to occupants in accordance with §§ 35.125(b)(1) and (c), describing the results of the clearance examination.

E. Notification of LBP Hazard
The SUBRECIPIENT shall provide to all occupants of housing:
(1) In accordance with Section 35.130 of the LBP Regs - the LBP hazard information pamphlet. The pamphlet shall be the EPA/HUD/Consumer Product Safety Commission lead hazard information pamphlet or an EPA-approved equivalent.

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22 The current form and version of the pamphlet can be found at:
https://www.fsa.usda.gov/Internet/FSA_File/pfflinyhbrochure.p df
(2) In accordance with 24 CFR 35, Subpart A, all available information and knowledge regarding the presence of LBP and LBP hazards prior to leasing a housing unit. (3) In accordance with 24 CFR 35, Subpart A, notification in writing of the results of the presumption of LBP and/or LBP hazards, results of any lead hazard evaluation, and any lead hazard reduction work.

F. LBP Information Summary
For purposes of information only and in no respect intended to be a representation or warranty of the provisions of the LBP Regulations, the CITY has caused to be prepared an information summary relating to the LBP Regulations and Application to dwelling units that may be occupied by recipients of services and/or funding from the SUBRECIPIENT under this AGREEMENT. CITY staff will cooperate with and be available to the SUBRECIPIENT to assist in implementation of compliance with the LBP Regs as to residential dwelling units to be assisted by the SUBRECIPIENT. The Parties acknowledge and agree the CITY shall not be liable or responsible for the accuracy of such summary, and the SUBRECIPENT is directed to the LBP Regulations and implementing guidance published and provided by HUD relating to compliance with such LBP Regulations.

G. Exemptions
Section 35.115(a) provides exemptions from Subparts B through R. For example, lead-based paint requirements do not apply to housing assistance if the assistance lasts less than one hundred (100) days.

XII. CONFLICTS OF INTEREST
The SUBRECIPIENT shall comply with 2 CFR § 200.112 with respect to the use of ESG-CV Funds to procure services, equipment, supplies, or other property. With respect to all other decisions involving the use of ESG-CV Funds, the following restriction shall apply: No person who is an employee, agent, consultant, officer, or elected or appointed official of the SUBRECIPIENT and who exercises or has exercised any functions or responsibilities with respect to assisted activities, or who is in a position to participate in a decision making process or gain inside information with regard to such activities, may obtain a personal or financial interest or benefit from the activity, or have an interest in any contract, subcontract, or agreement with respect thereto, or the proceeds there under, either for himself or herself, or for those with who he or she has family or business ties, during his or her tenure or for one (1) year thereafter. SUBRECIPIENT agrees to abide by the ESG Program’s Conflict of Interest provisions as expressly detailed in 24 CFR § 576.404 regarding Organizational Conflicts of Interest and Personal Conflicts of Interest. All contractors of the SUBRECIPIENT must comply with the same requirements that apply to the SUBRECIPIENT under this section.

XIII. ASSIGNABILITY
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23 None of the duties of, or work to be performed by, the SUBRECIPIENT under this AGREEMENT shall be subcontracted or assigned to any agency, consultant or person without the prior written consent of the CITY. SUBRECIPIENT must submit all subcontracts and other agreements that relate to this AGREEMENT to the CITY. No subcontract or assignment shall terminate or alter the legal obligations of the SUBRECIPIENT pursuant to this AGREEMENT.

XIV. EXCLUSIVITY OF AGREEMENT
This AGREEMENT supersedes any and all other agreements, either oral or in writing, between the Parties hereto with respect to the use of the CITY's ESG-CV Funds by the SUBRECIPIENT and contains all the covenants and agreements between the Parties with respect to such ESG-CV Funds in any manner whatsoever. Each Party to this AGREEMENT acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which are not embodied herein, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both the CITY and the SUBRECIPIENT. The Attachments and Exhibits to this AGREEMENT are an integral part hereof, and are incorporated herein by this reference. To the extent of any conflict between this AGREEMENT and any Exhibit exists, the terms of this AGREEMENT shall prevail.

XV. AMENDMENTS OR MODIFICATIONS
The SUBRECIPIENT shall not obligate, encumber, spend, or otherwise utilize ESG-CV Funds for any activity or purpose not included or not in conformance with the budget as apportioned and as submitted to the CITY unless:
(1) The SUBRECIPIENT has received explicit written approval from the CITY to undertake such actions, or
(2) Budget changes may be made among approved program activities and among approved budget categories so long as the specific project activity has been approved, there is no change to the total grant amount, and the changes to the budget are documented.

Any ESG-CV Program modification request by the SUBRECIPIENT must be requested at least forty-five (45) days prior to the end of the term of this AGREEMENT. No modification to this AGREEMENT shall be binding by either Party unless in writing and signed by both Parties.

In the event that the CITY approves any amendment to the funding allocation, the SUBRECIPIENT shall be notified in writing and such notification shall constitute an official amendment. The CITY may, at its discretion and upon provision of proper notice to the SUBRECIPIENT, amend this AGREEMENT to conform with changes in Federal, State, and/or the CITY laws, regulations, guidelines, directives, and objectives. Such amendments shall be incorporated by written amendment as a part of this AGREEMENT.

XVI. VIOLATION OF TERMS AND CONDITIONS
A. Events of Default
For purposes of this Section XVI, the word “Default” shall mean the failure of SUBRECIPIENT to perform any of SUBRECIPIENT’s duties or obligations or the breach by SUBRECIPIENT of any Packet Pg. 764
24 of the terms and conditions set forth in this AGREEMENT. In addition, SUBRECIPIENT shall be deemed to be in Default upon SUBRECIPIENT’s (i) application for, consent to, or suffering of, the appointment of a receiver, trustee or liquidator for all or a substantial portion of its assets, (ii) making a general assignment for the benefit of creditors, (iii) being adjudged bankrupt, (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing), or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution or seizure of all or a substantial portion of SUBRECIPIENT’s assets or of SUBRECIPIENT’s interests hereunder.

CITY shall not be deemed to be in Default in the performance of any obligation required to be performed by CITY hereunder unless and until CITY has failed to perform such obligation for a period of thirty (30) days after receipt of written notice from SUBRECIPIENT specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of CITY’s obligation is such that more than thirty (30) days are required for its performance, then CITY shall not be deemed to be in Default if CITY shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion.

B. Institution of Legal Actions
In addition to any other rights and remedies, and subject to the restrictions otherwise set forth in this AGREEMENT, either Party may institute an action at law or in equity to seek the specific performance of the terms of this AGREEMENT, to cure, correct or remedy any Default, to recover damages for any Default or to obtain any other remedy consistent with the purpose of this AGREEMENT. Such legal actions must be instituted in the Superior Court of the County of San Bernardino, State of California or in the United States District Court for the Central District of California.

C. Acceptance of Service of Process
In the event that any legal action is commenced by the SUBRECIPIENT against CITY, service of process on CITY shall be made by personal service upon the Executive Director or in such other manner as may be provided by law. In the event that any legal action is commenced by CITY against the SUBRECIPIENT, service of process on the SUBRECIPIENT shall be made by personal service upon SUBRECIPIENT’s Representative or in such other manner as may be provided by law.

D. Rights and Remedies Are Cumulative
Except as otherwise expressly stated in this AGREEMENT, the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party.

E. Inaction Not a Waiver of Default
Any failures or delays by either Party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies, or deprive either such Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies.

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25 F. Applicable Law
The laws of the State of California shall govern the interpretation and enforcement of this AGREEMENT.

G. Attorneys’ Fees
CITY and SUBRECIPIENT agree that in the event of litigation to enforce this AGREEMENT or terms, provisions and conditions contained herein, to terminate this AGREEMENT, or to collect damages for a Default hereunder, the prevailing Party shall be entitled to all costs and expenses, including reasonable attorneys’ fees, incurred in connection with such litigation.

H. Immediate Termination for SUBRECIPIENT’s Default
In the event of any Default by SUBRECIPIENT, CITY may immediately terminate this AGREEMENT. Such termination shall be effective immediately upon receipt by SUBRECIPIENT of written notice from CITY. In such event, SUBRECIPIENT shall have no further rights hereunder; CITY shall have all other rights and remedies as provided by law.

I. Termination Without Cause
CITY may terminate this AGREEMENT at any time without the necessity of cause or Default by SUBRECIPIENT by giving fifteen (15) days' notice in writing to SUBRECIPIENT. In such event, SUBRECIPIENT shall have no further rights hereunder, except that SUBRECIPIENT shall be paid for all Services rendered prior to receipt of notice of such termination.

J. Time for Performance.

Time is of the essence in the performance of this AGREEMENT. SUBRECIPIENT shall perform and complete all of SUBRECIPIENT'S services in a timely and expeditious manner.

SUBRECIPIENT shall not be responsible for delays caused by circumstances beyond its reasonable control, provided that SUBRECIPIENT has delivered to the CITY written notice of the cause of any such delay within ten (10) days of the occurrence of such cause.

XVII. CLOSE-OUT
The SUBRECIPIENT agrees to comply with the closeout procedures detailed in 2 CFR § 200.343, including the following:
(1) SUBRECIPIENT must submit, no later than ninety (90) calendar days after the expiration of the term all financial, performance, and other reports as required by the terms and conditions of the Federal award;
(2) Unless the CITY authorizes an extension, SUBRECIPIENT must liquidate all obligations incurred under the Federal award not later than ninety (90) calendar days after the end date of the period of performance as specified in the terms and conditions of the Packet Pg. 766
26 Federal award;
(3) SUBRECIPIENT must promptly refund any balances of unobligated cash that the CITY paid in advance or paid and that is not authorized to be retained by SUBRECIPIENT for use in other projects (See 2 CFR § 200.345);
(4) SUBRECIPIENT must account for any real and personal property acquired with Federal funds or received from the Federal government in accordance with 2 CFR §§ 200.310-200.316 and 200.329; and,
(5) The CITY should complete all closeout actions for the Federal award no later than one year after receipt and acceptance of all required final reports.

XVIII. VALIDITY AND SEVERABILITY
The invalidity in whole or in part of any provision of this AGREEMENT shall not void or affect the validity of any other provision of this AGREEMENT. Whenever possible, each provision of this AGREEMENT shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this AGREEMENT is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions of this AGREEMENT.

XIX. LAWS GOVERNING THIS AGREEMENT
This AGREEMENT shall be governed by and construed in accordance with the laws of the State of California, and all applicable federal laws and regulations.

XX. WAIVER
No delay or omission by the CITY hereto to exercise any right or power accruing upon any noncompliance or default by the SUBRECIPIENT with respect to any of the terms of this AGREEMENT shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the Parties hereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition, or agreement herein contained.

XXI. EXECUTION; COUNTERPARTS
This document may be executed in three (3) counterparts, each of which shall be deemed to be an original. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective Parties to each of the terms of this AGREEMENT, and shall indemnify the CITY fully, including reasonable costs and attorney’s fees, for any injuries or damages to the CITY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn.
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28 IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS
AGREEMENT AS OF THE RESPECTIVE DATES SET FORTH BELOW.

CITY OF SAN BERNARDINO Lutheran Social Services of Southern California
A California Municipal
Corporation
_________________________
Robert D. Field
City Manager
a California Non-Profit Corporation

John Kohl
Chief Executive Officer
____________________________

Date: _______________________ Date:_________________________ Contact Person: Jessica
Esquivel_____________
Phone: _909-381-
6921___________________
Email: grantscclm@cclm
City of San Bernardino
____________________________
Genoveva Rocha, CMC, City Clerk
APPROVED AS TO FORM:

Best Best & Krieger, LLP, City Attorney
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29 By:_________________________
Initial _ _ _ _ _ _ _ _
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40 EXIDBIT "B II
BUDGET
[Behind this page.]
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42 EXHIBIT "C"

CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants. Loans. and CooperativeAgreements The undersigned certifies, to the best of his or her knowledge and belief, that:
(1) 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 of any 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 cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contact, grant, loan or cooperative agreement.
(2) 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 0MB Standard Form-LLL, "Disclosure of Lobbying Activities," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontract, 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. 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.

Name of Subrecipient Organization Program Title
Name of Certifying Officer Date
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45 EXHIBIT “E”

REFERENCES
EXHIBIT A Scope of Work
EXHIBIT B Budget
EXHIBIT C Certification Regarding Lobbying
EXHBIT D Disclosure of Lobbying Activities
EXHIBIT E Reference Sheet
EXHIBIT F Forms
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date:

To:

From:

Department:

Subject:

September 21, 2022
Honorable Mayor and City Council Members
Robert D. Field, City Manager
By: Nathan Freeman, Agency Director of Community, Housing, and Economic Development
Community & Economic Development (CED)
Third Amendment to the Community Development Block
Grant-Cares Act Subrecipient Agreement with the Housing Authority of the County of San Bernardino
Recommendation
It is recommended that the Mayor and City Council of the City of San Bernardino, California, approve Amendment No. 3 to the Community Development Block GrantCares Act (CDBG-CV) Subrecipient Agreement with the Housing Authority of the County of San Bernardino (HACSB).

Background
At a public hearing on September 16, 2020, the Mayor and City Council approved the City of San Bernardino’s (City) Substantial Amendment to the Fiscal Year 2020-2021 Action Plan (FY 2020-21 AP). As a result of the Substantial Amendment, one of the activities funded was the Eviction Prevention Program. The program’s intent is to prevent evictions by providing payment of rent arrears to landlords of low-income tenants throughout the City, who have experienced financial hardship due to COVID19.

The HACSB was initially approved for a maximum CDBG-CV award amount of $1,060,000, but HACSB was unsure if it would be able to expend funds in a timely manner due to negative impacts associated with COVID-19. As a result, on March 9, 2021, a First Amendment to the CDBG-CV Subrecipient Agreement with HACSB was executed to reduce the award amount from $1,060,000 to $660,000.

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On July 12, 2021, a Second Amendment to the CDBG-CV Subrecipient Agreement with HACSB was executed increasing the eviction prevention award funds back to the original award amount of $1,060,000. The reason for the Second Amendment was because HACSB had determined that it did in fact have the staffing capacity to fully operate the eviction prevention program.

Discussion
The intent of the Eviction Prevention Program is to prevent evictions by providing payments of rent arrears to landlords of low-income tenants throughout the City, who have experienced financial hardship due to COVID-19. The program is managed by HACSB, which has extensive experience in managing rental assistance programs countywide. The program does not provide mortgage assistance as deferral of mortgage payment assistance is offered directly by lenders.

HACSB is requesting a Third Amendment to its Subrecipient Agreement because there is a remaining unspent balance of $386,847.93 and the Term of Agreement ended on June 30, 2022. Since there are a considerable amount of San Bernardino residents who still need financial assistance with rent arrears, HACSB would like to extend the Term of Agreement date on its Subrecipient Agreement from June 30, 2022, to June 30, 2023.
2021-2025 Key Strategic Targets and Goals
Authorizing the Third Amendment to the Community Development Block Grant Coronavirus Subrecipient Agreement between the City of San Bernardino and the Housing Authority of the County of San Bernardino aligns with Key Target No. 3:

Improved Quality of Life by dedicating resources to assist those financially impacted by COVID-19 and reduce the burden of homelessness through collaboration with other entities.

Fiscal Impact
No fiscal impact to the General Fund associated with this action.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, approve Amendment No. 3 to the Community Development Block GrantCares Act (CDBG-CV) Subrecipient Agreement with the Housing Authority of the County of San Bernardino (HACSB).

Attachments
Attachment 1 Resolution 2020-211
Attachment 2 Resolution 2021-50
Attachment 3 First Amendment to CDBG Subrecipient Agreement Attachment 4 Second Amendment to CDBG Subrecipient Agreement Attachment 5 Third Amendment to CDBG Subrecipient Agreement Attachment 6 Original CDBG Subrecipient Agreement
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Ward
All Wards
Synopsis of Previous Council Actions
March 13, 2020 Mayor and City Council adopted Resolution No. 2020- 211 authorizing the City Manager to utilize the State allocated CDBG-CV Grant funds for eligible activities.

April 15, 2020 Mayor and City Council approved the City's Draft Fiscal Year 2020-2021 Action Plan.

September 16, 2020 Mayor and City Council approved the City’s Substantial Amendment to the FY 2020-21 Annual Action Plan.

March 9, 2021 The Mayor and City Council adopted Resolution No. 2021- 50 authorizing the execution of the First Amendment to the CDBG-CV Grant between the City and HACSB.

July 12, 2021 The Mayor and City Council approved the Second Amendment to the CDBG-CV Grant between the City and
HACSB.

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55600.00100\40651495.1

THIRD AMENDMENT TO THE COMMUNITY

DEVELOPMENT BLOCK GRANT CORONAVIRUS

SUBRECIPIENT AGREEMENT BETWEEN THE CITY

OF SAN BERNARDINO AND THE HOUSING

AUTHORITY OF THE COUNTY OF SAN BERNARDINO
This Third Amendment (“Third Amendment”) to the Community Development Block Grant – Coronavirus Subrecipient Agreement (“Agreement”) is entered into by and between the City of San Bernardino (the “City”), a charter city organized under the laws of the State of California, and the Housing Authority of the County of San Bernardino (the “Subrecipient”), a California Public Entity as of ___________________, 2022. City and Subrecipient are at times referred to individually as “Party” and collectively as the “Parties.” WHEREAS, the City is typically the recipient of certain funds (the “CDBG Funds”) provided from the United States Department of Housing and Urban Development (“HUD”) under the Community Development Block Grant (“CDBG”) Program, pursuant to the Housing and Community Development Act of 1974, as amended (42 U.S.C. Section 5301 et. seq.) (the “Act”); and
WHEREAS, on March 13, 2020, the President of the United States declared a national emergency due to the ongoing pandemic for the novel coronavirus, SARS-CoV-2 known as “COVID-19,” and thereafter on March 27, 2020, the President of the United States signed H.R. 748 (PL 116-136), known as the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. The CARES Act provides an additional $5 billion of Community Development Block Grant – Coronavirus (“CDBG-CV”) supplemental funding to rapidly prepare, prevent, and respond to the coronavirus pandemic; and WHEREAS, on April 2, 2020, HUD notified the City that it had allocated $2,003,529 in CDBG-CV funds to the City. According to HUD, the City “may use the funds for a range of eligible activities that prevent and respond to the spread of infectious disease such as the coronavirus.” (emphasis added); and
WHEREAS, all other relevant CARES Act procurement guidelines, restrictions, or standards are incorporated by reference into the Agreement as Exhibit C; and WHEREAS, City and Subrecipient entered into the Agreement on November 1, 2020 to use the CDBG-CV funds for the purpose of providing housing services and support to those residents fiscally impacted by the coronavirus pandemic; and WHEREAS, City Council originally authorized $1,060,000 in CDBG-CV funds for eviction prevention, however HACSB was uncertain those funds could be timely spent, so the original amount of the Agreement was for $660,000; and WHEREAS, on March 9, 2021, City and Subrecipient amended subsection 2.3 of the Agreement to limit reimbursement of administrative costs to 20% of the grant; and Packet Pg. 829
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WHEREAS, on July 1, 2021, the Parties intended to amend the Agreement to incorporate the amount of funds originally approved by the City Council, so the maximum amount of the subgrant was increased to $1,060,000; and
WHEREAS, now the Parties desire to amend the Agreement to extend the Term of Agreement from June 30, 2022 to June 30, 2023; and
WHEREAS, all legal prerequisites to the adoption of the Agreement and subsequent amendments, including this Third Amendment, have occurred, NOW THEREFORE, in consideration of the mutual covenants and conditions set forth herein, the Parties agree as follows:

1. Prefatory Amendment.

The words that come immediately before Section 1 of the Agreement are hereby amended to read as follows:

CFDA Number and Name: 14.218 Community Block Grant-Coronavirus (CDBG-CV)
Federal Award Date: TBD
(the date when the federal award is signed by the authorized official of the federal awarding agency.)
CDCG-CV Funds Obligated IDIS Activity # TBD
Program Year: 2020
Amount: $1,060,000
Total Amount of CDBG-CV Funds Obligated: $1,060,000

2. Definitions Amendment.

Section 1 “Definitions” of the Agreement is hereby amended to read as follows:
“Maximum Amount of Subgrant” means $1,060,000.
“Subgrant” is defined in Section 2 hereof.
“Term Expiration Date” means June 30, 2023.

3. Effect on Other Provisions.

All other provisions of the Agreement shall remain in full force and effect, as amended. In the event of conflict, the most recently amended language shall govern.

IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be executed the day and year first above written.

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[Signatures on Following Page]
Dated: "CITY"
CITY OF SAN BERNARDINO, a municipal
corporation and charter city
Robert D. Field
City Manager
Dated: “SUBRECIPIENT”
Housing Authority of the County of San
Bernardino, a California Public Entity
_________________________________________
Maria Razo
Executive Director
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: September 21, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager; Barbara Whitehorn, Agency Director of Administrative Services
Department: Finance
Subject: Approval of Commercial and Payroll Disbursements (All Wards)
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California approve the commercial and payroll disbursements for August 2022.

Background
Completed commercial and payroll disbursement registers are submitted to the Mayor and City Council for approval. This happens on a regular basis, typically every meeting for the most recently completed disbursement registers.

The detailed warrant registers are available on the City Website, and are updated weekly by the Finance Department. The registers may be accessed by copying the following link into an internet browser:
https://sbcity.org/city_hall/finance/warrant_register
Discussion
Gross Payroll
Bi-Weekly for August 4, 2022 $2,725,885.22
Bi-Weekly for August 18, 2022 $2,915,403.76
Monthly for August 15, 2022 $11,666.69
Total Payroll Demands: $5,652,955.67
Packet Pg. 865
2021-2025 Strategic Targets and Goals
Approval of the noted check and EFT registers for commercial and payroll disbursements align with Key Target No. 1: Improved Operational & Financial Capacity by creating a framework for spending decisions.

Fiscal Impact
Amounts noted in the disbursement registers have no further fiscal impact. Amounts were paid consistent with existing budget authorization and no further budgetary impact is required.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino approve the commercial and payroll disbursements for August 2022.

Attachments
Attachment 1 Payroll Summary Report for August 2022
Attachment 2 Commercial checks & Payroll Register #5
Attachment 3 Commercial checks & Payroll Register #6
Attachment 4 Commercial checks & Payroll Register #7
Attachment 5 Commercial checks & Payroll Register #8
Attachment 6 Commercial EFT Registers #1326-1338
Attachment 7 Commercial EFT Registers #1339-1342
Attachment 8 Commercial EFT Registers #1343-1347
Ward:

All Wards
Synopsis of Previous Council Actions:

None
The following check registers are being presented for approval:

August 4, 2022 2022/23 (Register #5) $1,837,404.33
August 11, 2022 2022/23 (Register #6) $3,586,238.97
August 18, 2022 2022/23 (Register #7) $1,158,553.88
August 25, 2022 2022/23 (Register #8) $330,773.15
Total commercial check demands: $6,912,970.33
The following Electronic Funds Transfer (EFT) registers presented for approval:

July 1 to July 19, 2022 2022/23 (Register #1326-#1338) $ 6,440,746.33 July 27 to July 29, 2022 2022/23 (Register #1339-#1342) $ 1,146,313.45 August 9 to August 12, 2022 2022/23 (Register #1343-#1347) $ 545,561.59 Total commercial EFT demands: $ 8,132,621.37
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Fund 001-General $1,374,514.58
Fund 119-CDBG $715,168.30Fund 123-Federal & State Grant Programs $2,357,817.85Fund 629-Liability Insurance Fund $200,000.00Fund 635-Fleet Services $1,700.00Fund 710- EDA - RDA $591,017.11Fund 784-Payroll Clearing Fund $1,200,528.49 $6,440,746.33
City of San Bernardino
Accounts Payable Warrant Register
Summary by Fund
Register #1326-1338 07.01.22-07.19.22
   
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Number Date Status Void Reason
Reconciled/
Voided Date Source Payee Name
Transaction
Amount
Reconciled
Amount Difference
Parent - Parent - deposits, trans, wires
EFT
1326 07/01/2022 Open Accounts Payable PEPES INC $200,000.00 1327 07/11/2022 Open Accounts Payable ACH CALPERS $1,502.11 1328 07/12/2022 Open Accounts Payable ACH CALPERS $589,515.00 1329 07/12/2022 Open Accounts Payable ACH CALPERS $20,214.70 1330 07/13/2022 Open Accounts Payable ACH CALPERS $545,196.62 1331 07/13/2022 Open Accounts Payable ACH CALPERS $411.18 1332 07/13/2022 Open Accounts Payable INTERNAL REVENUE SERVICE $1,700.00 1333 07/15/2022 Open Accounts Payable ACH DOLLAR BANK $4,150.18 1334 07/15/2022 Open Accounts Payable ACH DOLLAR BANK $631,885.20 1335 07/18/2022 Open Accounts Payable ACH CALPERS $1,522.89 1336 07/18/2022 Open Accounts Payable ACH-WELLS FARGO BANK NA $1,371,662.30 1337 07/19/2022 Open Accounts Payable ACH THE BANK OF NEW YORK MELLON
$715,168.30
1338 07/14/2022 Open Accounts Payable INLAND SOUTHERN CALIFORNIA 211+
$2,357,817.85
Type EFT Totals: 13 Transactions $6,440,746.33
Parent - Parent - deposits, trans, wires Totals
EFTs Status Count Transaction Amount Reconciled Amount
Open 13 $6,440,746.33 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Total 13 $6,440,746.33 $0.00
All Status Count Transaction Amount Reconciled Amount
Open 13 $6,440,746.33 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Stopped 0 $0.00 $0.00
Total 13 $6,440,746.33 $0.00
Grand Totals:

EFTs Status Count Transaction Amount Reconciled Amount
Open 13 $6,440,746.33 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Total 13 $6,440,746.33 $0.00
All Status Count Transaction Amount Reconciled Amount
Open 13 $6,440,746.33 $0.00
Reconciled 0 $0.00 $0.00
Voided 0 $0.00 $0.00
Stopped 0 $0.00 $0.00
Total 13 $6,440,746.33 $0.00
user: Mayra Aldaco Pages: 1 of 1 Monday, August 8, 2022 Payment Register
City of San Bernardino
From Payment Date: 7/1/2022 - To Payment Date: 7/19/2022 Packet Pg. 933
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Recommendation
It is recommended that the Mayor and City Council of the City of San Bernardino, California reaffirm their previous action of:

1. Adopting Resolution No. 2022-170 of the Mayor and City Council of the City of San Bernardino, California, authorizing the Agency Director of Administrative Services to transfer $1,200,000 in the fiscal year 2022/23 operating budget from the General Fund to the Fleet Fund, and

2. Adopting Resolution No. 2022-179 of the Mayor and City Council of the City of San Bernardino, California, which, among other things, approved the addition of the Plans Examiner II position.

Background
Items that are not properly listed on the public agenda should be revisited at a future Council meeting to ensure full transparency and legal compliance. As the City has transitioned to a new agenda management system, there have been inevitable growing pains associated with working in a new system - including both technical and Packet Pg. 938
operational issues, which staff is diligently working to address. Unfortunately, as a result of these issues, an item was listed incorrectly on the agenda for each of the past two meetings. Although the staff reports and attachments were correct, it is important for the agenda proper to accurately reflect the actions being taken. These items should be reaffirmed by the Mayor and City Council in open session for transparency and to ensure that the City complies with all legal requirements.

Discussion
The following two items were not properly listed on the publicly posted agendas for the August 3 and August 17, 2022 City Council meetings:

1. Resolution 2022-170 amending the FY 2022/23-24 biennial budget to transfer funds between the General Fund and the Fleet Services Fund for the Enterprise Leasing contract was not properly listed on the August 3, 2022 agenda. Council adopted the amendment; however, because it was not listed as a budget amendment on the publicly posted agenda, the item is required to be brought back to Council as a technical correction.

2. The approval of the Plans Examiner II position was not listed in the agenda on August 17, 2022, though it was identified in the staff report and included in the attached and adopted Resolution No. 2022-179. Council adopted the Resolution; however, because the Plans Examiner II position was not explicitly listed on the publicly posted agenda, the item is being brought back to Council as a technical correction.

The staff reports and attachments correctly described the action proposed by staff. 2021-2025 Key Strategic Targets and Goals
These technical corrections align with Key Target No. 1c: Improved Operational and Financial Capacity - implement, maintain and update a fiscal accountability plan, by upholding financial transparency and accountability.

Fiscal Impact
Technical corrections have no fiscal impact.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California reaffirm their previous action of:

2. Adopting Resolution No. 2022-179 of the Mayor and City Council of the City of San Bernardino, California, which, among other things, approved the addition of the Plans Examiner II position.

Packet Pg. 939
Attachments
Attachment 1 Resolution 2022-170, Budget Amendment for Enterprise Leasing Contract, August 3, 2022
Attachment 2 Resolution 2022-179, Approval of new positions and salary schedule, August 17, 2022
Ward
All Wards
Synopsis of Previous Council Actions:

August 3, 2022 Mayor and Council adopted Resolution 2022-170 authorizing the Agency Director of Administrative Services to transfer $1,200,000 in the fiscal year 2022/23 operating budget from the General Fund to the Fleet Fund.

August 17, 2022 Mayor and Council adopted Resolution 2022-179 approving job classifications and amending the salary schedule.

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1. Accepting a grant award in the amount of $1,000,000 from the San Manuel Band of Mission Indians for improvements to Speicher Memorial Park;

2. Accepting a grant award in the amount of $950,000 from the County of San Bernardino for improvements to Speicher Memorial Park;

3. Authorizing the City Manager to conduct all negotiations, signings, and submittals of all necessary documents to receive the grant awards; and

4. Authorizing the Agency Director of Administrative Services to amend the FY2022/23 Budget to appropriate $1,950,000 in grant funding for the Speicher Memorial Park improvement project.

Background
In June of 2021, the County of San Bernardino Board of Supervisors passed the San Bernardino County Local Fiscal Recovery Fund Spending Plan to spend its $423.5M allotment of American Rescue Plan Act (ARPA) funding. This plan outlines the county’s goals and investment strategies to support recovery efforts post pandemic. Three overarching spending goals were identified:1) Pandemic Response - $138.5M allocated, 2) Economic Recovery - $175M allocated, and 3) Government Operations - $110M. There are many subcategories identified in each goal to address the varying needs to rebuild stronger communities throughout the County. Acceptable projects include improvements to broadband, water, and Packet Pg. 947
sewer; homeless and housing services; testing and vaccination programs; and strategic business partnerships, infrastructure, and region-based specific projects.

San Manuel Band of Mission Indians maintains a philanthropic giving arm that provides grant support directed to non-profit and public organizations operating in San Bernardino and Riverside counties, as well as Las Vegas. The City has a long-standing partnership with San Manuel where oftentimes city projects are awarded grant funds that closely align with their pillars of giving: Inspiring Our Future through Education, Preserving Cultural Traditions & Empowering Indian Country, Empowering Lives, and Reinforcing Safe and Resilient Communities.

Both funding opportunities provided the City of San Bernardino an avenue for funding the rehabilitation efforts to Speicher Memorial Park.

Discussion
The proposed project submitted to both San Bernardino County and San Manuel was the rehabilitation of Speicher Memorial Park. The primary objective of the project is to focus on the high-priority communities and the need for improvements to city parks. Improvements to Speicher Memorial Park in particular, will allow engagement emphasized in recreation centers including playgrounds, baseball diamonds, gymnasiums, and outdoor basketball courts to help the violence intervention and prevention program to provide services to disconnected youth.

The proposal to the County of San Bernardino for this project was awarded for $950,000 with an additional $1M from the San Manuel Band of Mission Indians for improvements to Speicher Memorial Park. A total of $1,950,000 was awarded for demolition and replacement of the existing building, field lighting upgrades, reseeding, leveling and renovation of baseball field, new scoreboard, bleachers and dugout shades, ADA accessible facilities and general amenities improvements.

The funding for the Speicher Memorial Park project from San Manuel must be expended with 18 months of the agreement effective date and County ARPA funds must be encumbered by December 31, 2024, and fully expended prior to December 31, 2026.
2021-2025 Key Strategic Targets and Goals
This project is consistent with the Key Target No. 2: Focused, Aligned Leadership and Unified Community through the opportunity to improve city parks, increase community engagement and involvement in city-run recreation activities, and Key Target No. 3:

Improved Quality of Life through encouraging active lifestyles and crime reduction through built environment and increased community visibility.

Fiscal Impact
There is no fiscal impact to the general fund for this project. The budget for fiscal year 2022/23 shall be amended to recognize $950,000 from the County of San Bernardino, Packet Pg. 948
$1M from San Manuel Band of Mission Indians for a total of $1,950,000 in grant funding for the Speicher Memorial Park project.

Conclusion
Adopt Resolution No. 2022-205 of the Mayor and City Council of the City of San Bernardino, California:

1. Accepting a grant award in the amount of $1,000,000 from the San Manuel Band of Mission Indians for improvements to Speicher Memorial Park;

2. Accepting a grant award in the amount of $950,000 from the County of San Bernardino for improvements to Speicher Memorial Park;

3. Authorizing the City Manager to conduct all negotiations, signings, and submittals of all necessary documents to receive the grant awards; and

4. Authorizing the Agency Director of Administrative Services to amend the FY2022/23 Budget to appropriate $1,950,000 in grant funding for the Speicher Memorial Park improvement project.

Attachments
Attachment 1 Speicher Park Resolution No. 2022-205
Attachment 2 San Manuel Band of Mission Indian Grant Agreement Grant # CITOFD-22384 Attachment 3 County of San Bernardino Agreement # ARPA21-PRJC-018-SAN Ward
Seventh Ward
Synopsis of Previous Council Actions
None.

Packet Pg. 949
Resolution No. 2022-205
Resolution No. 2022-
September 21, 2022

Page 1 of 3 ends

RESOLUTION NO. 2022-205

RESOLUTION OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA,

AUTHORIZING THE ACCEPTANCE OF GRANT AWARDS

IN AMERICAN RESCUE PLAN FUNDS IN THE AMOUNT
OF $950,000 FROM THE COUNTY OF SAN BERNARDINO
AND $1,000,000 FROM SAN MANUEL BAND OF MISSION

INDIANS FOR IMPROVEMENTS TO SPEICHER
MEMORIAL PARK; DELEGATING AUTHORITY TO THE

CITY MANAGER TO CONDUCT ALL NEGOTIATIONS

SIGNINGS AND SUBMITTALS OF ALL NECESSARY
DOCUMENTS TO RECEIVE THE GRANT AWARD; AND

AUTHORIZING THE AGENCY DIRECTOR OF

ADMINISTRATIVE SERVICES TO AMEND THE FISCAL
YEAR 2022/23 BUDGET TO APPROPRIATE $1,950,000 OF

THE GRANT FUNDING FOR IMPROVEMENTS TO

SPEICHER MEMORIAL PARK
WHEREAS, the City of San Bernardino has been approved for grant award in American Rescue Plan (ARP) funding by the County of San Bernardino; and WHEREAS, the City of San Bernardino has been approved for grant award the San Manuel Band of Mission Indians; and
WHEREAS, the City will use these funds for improvements to Speicher Memorial Park.

BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:

SECTION 1. The above recitals are true and correct and are incorporated herein by this reference.

SECTION 2. The Mayor and City Council hereby approves the acceptance of above ARPA grant funds from the County of San Bernardino and grant funds from the San Manuel Band of Mission Indians.

SECTION 3. The Mayor and City Council hereby delegates the authority to the City Manager to conduct all negotiations, sign and submit all documents, including, but not limited to applications, agreements, amendments, and payment requests, which may be necessary for the completion of the Grant Scopes.

SECTION 4. The Mayor and City Council hereby authorizes the Agency Director of Administrative Services to amend the FY2022/23 Budget to appropriate $1,950,000 of the grant funding for improvements to Speicher Memorial Park.

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Resolution No. 2022-
September 21, 2022

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SECTION 7. Effective Date. This Resolution shall become effective immediately.

APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this ___ day of __________ 2022.

John Valdivia, Mayor
City of San Bernardino
Attest:

Genoveva Rocha, CMC, City Clerk
Approved as to form:

Sonia Carvalho, City Attorney
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Resolution No. 2022-
September 21, 2022

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CERTIFICATION

STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss

CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2022-___, adopted at a regular meeting held on the ___ day of _______ 2022 by the following vote:

Genoveva Rocha, CMC, City Clerk
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1 RESTRICTED GRANT AGREEMENT
San Manuel Band of Mission Indians
and
City of San Bernardino
Speicher Park Rehabilitation
This Restricted Grant Agreement (this "Agreement") is entered into and made effective this XXXX, 2022 (the "Effective Date") by and between the San Manuel Band of Mission Indians, a federally recognized Indian tribe located on the San Manuel Indian Reservation at 26569 Community Center Drive, Highland, CA, 92346 ("Tribe"), and the City of San Bernardino, a municipal government located at 290 North D Street, San Bernardino, CA 92401 (“Grantee”). Tribe, on the one hand, and Grantee, on the other hand, are each referred to herein individually as a “Party” and together as the “Parties.” I. GRANTEE'S STATUS. This grant is specifically conditioned upon Grantee’s status as an eligible grantee of Tribe in accordance with this Section. Grantee represents and warrants that it operates a fund that is a tax-exempt under Section 170 (b)(1)(v) of the Internal Revenue Code of 1986, as amended (hereinafter the “Code”), because Grantee is a governmental unit as defined by Section 170(c)(1) of the Code. Grantee represents and warrants that it is not a private foundation as defined in Section 509(a) of the Code. Grantee will notify Tribe immediately of any actual or proposed change in its tax status during the Grant Period (as defined below).

II. PURPOSE OF GRANT. The Parties acknowledge and agree that the purpose of Tribe's Grant (as defined below) is to provide funding for the planned rehabilitation of Speicher Park (hereinafter "Grant Project"). The Grant (as defined below) is made only for renovations related to Speicher Park improvements, including the replacement of two prefabricated, ADA accessible restrooms, and the renovation of a ball field to include artificial turf, score board, and home and visitor stands. The grant funds, which includes any interest earned on the funds (hereinafter collectively referred to as "Grant"), may not be used for any other purpose without prior written approval from Tribe.

III. OBJECTIVES OF GRANT PROJECT
Grantee shall undertake and complete Grant Project with eighteen (18) months of the Effective Date unless Tribe agrees in writing to alternative timelines.

IV. AMOUNT AND PAYMENT OF GRANT. The Parties agree the Grant amount is One Million Dollars ($1,000,000.00), payable upon Grantee's request within 15 days of Tribe's receipt of the fully executed Agreement, and that said Grant shall be used solely to fund rehabilitation of Speicher Park in the City of San Bernardino.

V. PERIOD OF GRANT; TERM OF AGREEMENT. The Grant will be applied to fund the renovations of Speicher Park in the City of San Bernardino for the period from Effective Date through completion of the Grant Project or within eighteen (18) months of Effective Date, whichever first occurs ("Execution Period").

VI. TERMS AND CONDITIONS OF GRANT. Grantee agrees that the Grant is subject to the following conditions:

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2 a. Expenditure of Grant Funds.

1. Use of Funds. Grantee will spend the Grant only for the purposes of funding the Grant Project as described above.

2. Payment of Funds to Related Parties of Tribe. No part of the Grant may be paid to any director, officer, employee or citizen (or their family members) of Tribe for any purpose.
b. Return of Funds. Grantee shall return to Tribe any and all Grant funds if Tribe determines in its reasonable discretion that either of the following apply:

1. Grantee has not performed in accordance with this Agreement; or

2. Any portion of the Grant is not used for the Grant Project. c. Records, Audits, Site Visits. The Grant provided by Tribe will be accounted for separately in Grantee's books and records. A systematic accounting record shall be kept by Grantee of the receipt and disbursement of the Grant. Grantee will retain original substantiating documents related to restricted Grant expenditures and make these records available for Tribe's review upon 10 days prior written request. As a material term of this Agreement Grantee agrees to maintain adequate financial records pertaining to the Grant for a minimum of three years after completion of the Grant Project, and acknowledges that Tribe may require Grantee to produce written documentation related to the Grant expenditures in a format appropriate to be forwarded by Tribe to the State of California in order to comply with Compact requirements, and Grantee agrees to timely comply with any such request. Tribe, or a designated representative, reserves the right, upon written notice, to conduct a site visit and/or audit Grantee's books and records relating to the expenditure of the Grant.
d. Reports. Grantee will submit a brief written summative report confirming completion of the Grant Project within sixty (60) days following the end of the Execution Period. e. Expenditures. Expenditures of the Grant must be made substantially in accordance with Section VI. Any material changes will be subject to Tribe's prior written approval.
f. Licensing and Credentials. Grantee will maintain, in full force and effect, all required governmental or professional licenses and credentials for itself, its facilities, and for its employees and all other persons engaged in work in conjunction with the Grant. g. Management and Organizational Changes. Grantee will provide immediate written notice to Tribe if significant changes or events occur during the Execution Period which could potentially impact the progress or outcome of the Grant Project, including, without limitation, changes in Grantee's management personnel or losses of funding from any other sources.
h. Termination. Either Party hereto may terminate this Agreement upon not less than thirty (30) days' prior written notice to the other for failure on the part of such Party to perform a material obligation hereunder, or for a breach of such Party's representation or Packet Pg. 954
3 warranty made in this Agreement. Tribe may terminate this Agreement upon not less than thirty (30) days' prior written notice to Grantee for (i) Grantee's change in the fundamental mission, or (ii) Grantee's implication in an event, or series of events, of such notoriety or opprobrium that the continuation of this Agreement has or will have a negative impact upon Tribe, its image or reputation, or (iii) Grantee's inability to fulfill the requirements for payment set forth herein.

In the event of any termination of this Agreement, Grantee shall return all Grant funds received excluding all expenditures and contractual encumbrances consistent with this Agreement and incurred by Grantee in reliance on this Agreement.

If Tribe terminates this Agreement due to Grantee's breach hereof, Grantee will remove all signage and other identification from the facilities and all other places, things and sites wherever there are references to Tribe (collectively, "All Identification"), at Grantee's sole cost and expense.

Under all events of termination hereunder, the removal of All Identification will be completed as soon as reasonably practical, but in no event later than thirty (30) days after the notice of termination. The foregoing rights and remedies are cumulative of, and in addition to, any rights, remedies or recourses to which the terminating party may be entitled at law or in equity.
i. Public Reporting and Media. In recognition of the Grant it is the Parties' understanding that Grantee will express its appreciation and provide recognition publicly to Tribe. The Parties will mutually agree in advance on the manner of presentation and contents of such public recognition. Grantee will also disseminate to the public, by using established channels of communication, pertinent information relating to the results, findings or methods developed through the Grant.
j. Knowing Assumption of Obligations. Grantee acknowledges that it understands its obligations imposed by this Agreement.
k. Terrorist Activity. Grantee represents and warrants that it does not support or conduct, directly or indirectly, violence or terrorist activity of any kind.

I. Identification of Tribe. Grantee shall ensure that Tribe is clearly identified as a funder or supporter of Grantee in all published material relating to the subject matter of the Grant. All proposed external communications by Grantee regarding the subject matter of the Grant or the Tribe shall be submitted first to Tribe for its review and written approval. m. Ownership and Use of Marks.

1. License. Grantee acknowledges and agrees that Tribe is the owner of all right, title and interest in and to Tribe's name and logo (collectively its "Marks") and that Grantee's use of the Marks pursuant to this Agreement inures to the benefit of Tribe. Tribe hereby grants Grantee a non-exclusive and non-transferable license, without the right to sublicense, to use the Marks solely in connection with providing recognition of the Grant pursuant to this Agreement. Grantee will have no rights in or to the Marks, except as expressly granted herein. Tribe expressly reserves to itself all rights in and to the Marks not expressly granted to Grantee pursuant to this Agreement. The manner and use of the Marks shall comply with all Packet Pg. 955
4 federal and state laws pertaining to trade names, trademarks and service marks in force at any time and shall clearly indicate Tribe's ownership of the Marks as requested and approved by Tribe.

2. Approval Rights. All uses of the Marks by Grantee are subject to the prior written approval of Tribe. Grantee will submit to Tribe for approval, at least ten (10) business days prior to its intended first use, all materials which contain the Marks (whether in print media, direct mail, television, radio, internet, email, billboard or in any other form, media or channel). Tribe will have the right to review and approve any copy containing reference to Tribe or including the Marks prior to its use by Grantee. Tribe will use its reasonable efforts to promptly review materials sent by Grantee for approval and will not unreasonably withhold or delay its approval. In no event shall Grantee make any unapproved changes to the Marks. n. Selection of Subgrantees. With regard to the selection of any subgrantees to carry out the purposes of the Grant, Grantee retains full discretion and control over the selection process, acting completely independently of Tribe. There is no agreement, written or oral, by which Tribe may cause Grantee to choose any particular subgrantee. o. No Agency. Grantee is solely responsible for all activities supported by the Grant, the content of any product created with the Grant, and the manner in which any such product may be disseminated. This Agreement will not create any agency relationship, partnership, or joint venture between the Parties, and Grantee will make no such representation to anyone.
p. Remedies. If Tribe determines, in its reasonable discretion, that Grantee has substantially violated or failed to carry out any provision hereof, including but not limited to failure to submit reports when due, Tribe may, in addition to any other legal remedies it may have, refuse to make any further Grant payments to Grantee hereunder or any other grant agreement, and Tribe may demand the return of all or part of the Grant funds not properly spent or committed to third parties, which Grantee will immediately repay to Tribe. Tribe may also avail itself of any other remedies available at law.
q. Waiver of Claims and Indemnification. Grantee waives any and all claims and recourse against Tribe, including the right of contribution for loss or damages to persons or property arising from, growing out of, or in any way connected with or incidental to fulfillment of the terms and conditions specified in this Agreement. Additionally, Grantee will indemnify, defend, protect and hold Tribe and its officers, managers, members, employees, agents and representatives, harmless from any cost, expense, claim, demand, liability and/or damage, including reasonable attorney's fees and costs ("Claims"), arising out of or in connection with, in whole or in part, (i) any false or misleading representation made by Grantee, its agents, employees or delegated representatives in connection with this Agreement, (ii) its breach of any term of this Agreement, (iii) the performance of Tribe's obligations pursuant to this Agreement, or (iv) any claims or actions brought by third parties, including, but not limited to, parties set forth below. Grantee further waives any and all Claims to the extent resulting from, relating to or arising out of (i) the facilities where programs are delivered and/or the operational activities of Grantee therein, including, without limitation, any disputes by, between or among participants, users, guests, or any other attendees and Grantee (or Grantee's respective agents, subcontractors (if any), and employees) or its products and services, any personal injuries sustained by any person at or in connection with the facilities where programs are delivered, and/or any Packet Pg. 956
5 agreements with third parties entered into by Grantee or its agents in connection with the operation of the same facilities, or (ii) the negligent acts or omissions or willful misconduct of Grantee or its agents, subcontractors (if any), or employees in connection with the subject matter of this Agreement, except to the extent those Claims are directly caused by the negligence or willful misconduct of Tribe or its agents or employees.

The obligations of this Section VI (q) shall survive until the expiration of the statute of limitations applicable to the event giving rise to the Claims. r. Notices. All notices, requests, demands, or other communication permitted or required to be given under this Agreement shall be in writing and shall be deemed given or made when sent by United States certified or registered mail, return receipt requested and postage prepaid, or by a nationally recognized overnight courier, delivery fee prepaid, and in either case to the persons and at the addresses specified below:

If to Tribe:

Laurens Vosloo
Chief Executive Officer
San Manuel Band of Mission Indians
26569 Community Center Drive Highland, CA 92346
If to Grantee:

Robert Field, City Manager
City of San Bernardino
290 North D Street
San Bernardino, CA 92401
The persons and addresses set forth above, from time to time, may be changed by written notice sent as aforesaid to the other Party.
s. Captions. All captions and headings in this Agreement are for the purposes of reference and convenience only. They shall not limit or expand the provisions of this Agreement.
t. Entire Agreement; Amendments and Modifications. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous oral, written and other agreements between the Parties. This Agreement may not be amended or modified, except in a writing signed by both Parties. u. Governing Law/ Jurisdiction. This Agreement shall at all times be governed by and construed in accordance with the laws of the State of California applicable to agreements made in California. Nothing in this Agreement shall be construed as a waiver of Tribe's immunity to unconsented suit.
v. Non-Assignment. The Parties agree that none of the provisions of this Agreement shall be assigned or delegated to any other person or entity without the prior written consent of the other Party, which consent will be in the Party's sole and absolute discretion. w. Successors and Assigns. The Parties agree that this Agreement shall be binding Packet Pg. 957
6 upon them and each of their respective successors and permitted assigns. x. Amendment. This Agreement may only be amended in a writing signed by each of the Parties hereto.
y. Waiver. No waiver hereunder will be valid unless set forth in a writing signed by the Party to be bound thereby. Neither the failure nor any delay on the part of either Party to exercise any right or remedy under this Agreement shall operate as a waiver thereof. z. Force Majeure. Each of the Parties shall be excused from performing its obligations under this Agreement if its performance is delayed or prevented by any event beyond such Party's reasonable control, including, but not limited to, acts of God, earthquake, fire, explosion, weather, disease, war, insurrection, civil strife, riots government actions, or power failure, provided that such performance shall be executed only to the extent of and during such disability.
aa. Severability. In the event any portion of this Agreement or any amendments or addenda hereto shall be held illegal, void or ineffective, the remaining portions hereof shall remain in full force and effect. If any of the terms or conditions of this Agreement is in conflict with any applicable statute or rule of law, then such term or condition shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed to be modified to conform to such statute or rule of law.
bb. Counterparts. This Agreement may be executed in two or more counterparts, each of which is deemed an original, but all of which taken together shall constitute one and the same instrument.

The Parties have executed this Agreement as of the date first written above.

SAN MANUEL BAND OF MISSION INDIANS CITY OF SAN BERNARDINO By: ___________________________________ By: __________________________ Laurens Vosloo Robert Field
Chief Executive Officer City Manager
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WHEREAS, the County agreed to comply with the United States Department of the Treasury Coronavirus State Fiscal Recovery Fund Award Terms and Conditions (Terms and Conditions), including Assurance of Compliance with Title VI of the Civil Rights Act of 1964 (Assurance of Compliance with Civil Rights Requirements), identified in the United States Department of the Treasury and San Bernardino County Agreement (OMB Approved No. 1505-0271) (United States Department of the Treasury Agreement), which is on file with the County and incorporated herein by this reference; and
WHEREAS, the Assistance Listing Number (ALN)/Federal Assistance Identification Number (FAIN) for the ARPA CLFRF is 21.027/SLT-0628 respectively; and WHEREAS, the ARPA provides that payments from the CLFRF may be used for the following: i) to respond to the public health emergency with respect to COVID-19 or its negative economic impacts, including assistance to households, small businesses, and nonprofits, or aid to impacted industries such as tourism, travel, and hospitality; ii) to respond to workers performing essential work during the COVID–19 public health emergency by providing premium pay to eligible workers that are performing such essential work, or by providing grants to eligible employers that have eligible workers who perform essential work; iii) for the provision of government services to the extent of the reduction in revenue due to the COVID–19 public health emergency relative to revenues collected in the most recent full fiscal year prior to the emergency; or iv) to make necessary investments in water, sewer, or broadband infrastructure; and
WHEREAS, funding provided under ARPA CLFRF must be obligated by December 31, 2024 and expended by December 31, 2026; and
WHEREAS, the County desires to transfer and City of San Bernardino (Contractor) desires to accept a transfer from ARPA CLFRF in the not-to-exceed amount of $950,000.00 for expenditures identified in Exhibit “A” related to Speicher Memorial Park improvements.

NOW, THEREFORE, in consideration of the above, the County and Contractor agree as follows:

1. THE ARPA CLFRF
A. This Contract applies to the following ARPA CLFRF transfers:

The transfer by the County of an amount not to exceed $950,000.00 to Contractor on a reimbursement basis for expenditures identified in Exhibit “A”. Exhibit “A” is attached hereto and incorporated herein by this reference. County acknowledges and agrees that Contractor will be administering the transfer of funds for the expenditures identified in Exhibit “A” by separate contracts. Contractor shall provide the County quarterly reports of actual cash expenditures to date under this Contract, and estimated cash expenditures through December 31st of each year. County, through its Chief Executive Officer (CEO), in the CEO’s sole discretion, reserves the right to reduce the transfer amount identified in this Contract with fifteen (15) days advance written notice provided to Contractor. The reduction would be based: A) on Contractor’s estimated cash expenditures through December 31st of each year; B) a later determination by the United States Department of the Treasury, or County, that the costs identified in this Contract are ineligible for ARPA CLFRF; or C) a determination by CEO the funds should be utilized in a different manner.

B. Contractor certifies that the use of funds that will be submitted for reimbursement from the CLFRF under Paragraph 1.A. and Exhibit “A” of this Contract will be used only to cover those costs that: i) are related to public health or negative economic impact eligible use; and ii) were incurred during the period that begins June 1, 2022 and will end June 30, Packet Pg. 960
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2024. For purposes of this Contract and pursuant to federal guidance, expended or obligated costs are costs incurred by Contractor during the time period referenced above that are allowable for reimbursement. Any cost obligated by Contractor as of December 31, 2024, must be expended by December 31, 2026, to meet the eligible costs timeframe as defined by the United States Department of the Treasury.

C. Contractor agrees that the funds provided pursuant to this Contract cannot be used: i) as a revenue replacement for lower than expected tax or other revenue collections; ii) for expenditures for which Contractor has received any other emergency COVID-19 supplemental funding (whether federal, state, or private in nature) for that same expense; or iii) as a deposit into any pension fund.

D. Contractor shall prepare and submit to County an invoice for reimbursement of eligible funding expenses identified in Paragraph 1.A., above. Invoices may be submitted to County as frequently as monthly. Invoices will be reviewed and approved for compliance with terms of this Contract. County shall reimburse to Contractor the amount of approved invoices submitted within sixty (60) days of receipt. If an invoice is rejected, or revisions are requested, Contractor will work with County to submit the required revisions.

E. Both County and Contractor agree to comply with any and all ARPA CLFRF requirements, including but are not limited to the terms included in this Contract, as well as any and all applicable County, Contractor, State, and Federal laws, regulations, policies and procedures pertaining to the funding described in this Contract. County and Contractor shall comply with Title 2 Code of Federal Regulations (C.F.R.) Part 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards), including, but not limited to, Title 2 C.F.R. Section 200.303 (internal control), Title 2 C.F.R. Sections 200.331 through 200.333 (subrecipient monitoring and management), and Title 2 C.F.R. Part 200 Subpart F (audit requirements), as these sections currently exist or may be amended. The use of funds must also adhere to official federal guidance issued or to be issued on what constitutes an eligible expenditure. Any funds expended by Contractor or its subcontractor(s) in any manner that does not adhere to official federal guidance shall be returned to the County. Contractor agrees to comply with all official guidance regarding the ARPA CLFRF. County and Contractor also agree that as additional federal guidance becomes available, an amendment to this Contract may become necessary. If an amendment is required, Contractor agrees to promptly execute the Contract amendment.

F. Contractor shall retain documentation of all uses of the funds, including but not limited to invoices and/or sales receipts in a manner consistent with Title 2 C.F.R. Section 200.334 (retention requirements for records). Such documentation shall be produced to County upon request and may be subject to audit. Unless otherwise provided by Federal or State law (whichever is the most restrictive), Contractor shall maintain all documentation connected with its performance under this Contract for a minimum of five (5) years from the date of the last payment made by County or until audit resolution is achieved, whichever is later, and to make all such supporting information available for inspection and audit by representatives of the County, the State or the United States Government during normal business hours at Contractor. Copies will be made and furnished by Contractor upon written request by County.

G. Contractor shall establish and maintain an accounting system conforming to Generally Accepted Accounting Principles (GAAP) to support Contractor’s requests for reimbursement which segregate and accumulate costs of Contractor and produce monthly Packet Pg. 961
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reports which clearly identify reimbursable costs, matching fund costs (if applicable), and other allowable expenditures by Contractor. Contractor shall provide a monthly report of expenditures under this Contract no later than the 20th day of the following month.

H. Contractor shall cooperate in having an audit completed by County, at County’s option and expense. Any audit required by ARPA CLFRF and its regulation and United States Treasury guidance will be completed by Contractor at Contractor’s expense.

I. Contractor shall repay to County any reimbursement for ARPA CLFRF funding that is determined by subsequent audit to be unallowable under the ARPA CLFRF within the time period required by the ARPA CLFRF, but no later than one hundred twenty (120) days of Contractor receiving notice of audit findings, which time shall include an opportunity for Contractor to respond to and/or resolve the findings. Should the findings not be otherwise resolved and Contractor fail to reimburse moneys due County within one hundred twenty (120) days of audit findings, or within such other period as may be agreed between both parties or required by the ARPA CLFRF, County reserves the right to withhold future payments due Contractor from any source under County’s control.

J. Contractor shall accept all payments from County via electronic funds transfer (EFT) directly deposited into the Contractor’s designated checking or other bank account.

Contractor shall promptly comply with directions and accurately complete forms provided by County required to process EFT payments.

K. County is exempt from Federal excise taxes and no payment shall be made for any personal property taxes levied on Contractor or on any taxes levied on employee wages.

The County shall only pay for any State or local sales or use taxes on the services rendered or equipment and/or parts supplied to the County pursuant to the Contract.

L. Funds made available under this Contract shall not supplant any federal, state or any governmental funds intended for services of the same nature as this Contract. Contractor shall not claim reimbursement or payment from County for, or apply sums received from County with respect to that portion of its obligations that have been paid by another source of revenue. Contractor agrees that it will not use funds received pursuant to this Contract, either directly or indirectly, as a contribution or compensation for purposes of obtaining funds from another revenue source without prior written approval of the County.

M. County shall only reimburse costs incurred through the dates identified in Exhibit “A”. Contractor requirements in Sections 1, 2 and 5 of this Contract shall survive the termination of this Contract. The costs to be reimbursed under this Contract do not include Research and Development as defined in Title 2 Code of Federal Regulations (C.F.R.) Section 200.1, nor do they include indirect costs.

2. AMERICAN RESCUE PLAN ACT REQUIREMENTS
A. This Contract may be funded in whole or in part with funds provided by the American Rescue Plan Act - Coronavirus Local Fiscal Recovery Fund (ARPA), Federal Award Identification Number (FAIN): SLT-0628 and Assistance Listing Number (formerly known as a CFDA number): 21.027, and therefore Contractor agrees to comply with any and all ARPA requirements in addition to any and all applicable County, State, and Federal laws, regulations, policies, and procedures pertaining to the funding of this Contract. The use of the funds must also adhere to official federal guidance issued or to be issued on what constitutes a necessary expenditure. Any funds expended by Contractor or its Packet Pg. 962
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subcontractor(s) in any manner that does not adhere to the ARPA requirements shall be returned or repaid to the County. Any funds paid to Contractor: i) in excess of the amount to which Contractor is finally determined to be authorized to retain; ii) that are determined to have been misused; or iii) that are determined to be subject to a repayment obligation pursuant to section 603(e) of the Act and have not been repaid, shall constitute a debt to the federal government. Contractor agrees to comply with the requirements of section 603 of the Act, regulations adopted by Treasury pursuant to the Act, and guidance issued by Treasury regarding the foregoing. Contractor shall provide for such compliance in any agreements with subcontractor(s).

B. Contractor agrees to comply with all applicable federal laws and regulations, including but not limited to all laws and regulations identified in Section 2 of the Contract.

C. In accordance with Title 2 C.F.R. Section 200.322, the non-Federal Contractor 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 (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subawards including all contracts and purchase orders for work or products under this award. For purposes of this section: “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” means 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.

D. In accordance with Title 2 C.F.R. Section 200.471, costs incurred for telecommunications and video surveillance services or equipment such as phones, internet, video surveillance, cloud servers are allowable except for the following circumstances: Obligating or expending covered telecommunications and video surveillance services or equipment or services (as described in 2 C.F.R. Section 200.216) to: 1) Procure or obtain, extend or renew a contract to procure or obtain; 2) Enter into a contract (or extend or renew a contract) to procure; or 3) Obtain the equipment, services, or systems, as described in Title 2 C.F.R. Section 200.216 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. As described in Public Law 115-232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities) and: (i) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities); (ii) Telecommunications or video surveillance services provided by such entities or using such equipment; and (iii) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. In implementing the prohibition under Public Law 115-232, section 889, subsection (f), paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs shall prioritize available funding and technical support to assist affected businesses, institutions and organizations as is reasonably necessary for those affected entities to Packet Pg. 963
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transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained.

E. A non-Federal Contractor 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 Title 40 C.F.R. Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

F. Byrd Anti-Lobbying Amendment (31 U.S.C. Section 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 Title 31 U.S.C. Section 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.

G. Clean Air Act (42 U.S.C. Sections 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. Sections 1251-1389), 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. Sections 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. Sections1251-1389).

H. Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of “funding agreement” under Title 37 C.F.R. Section 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 Title 33 U.S.C. Sections 1251-1387 recipient or subrecipient must comply with the requirements of Title 37 C.F.R. 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.

I. Contract Work Hours and Safety Standards Act (40 U.S.C. Sections 3701-3708). Where applicable, all contracts awarded by the non-Federal Contractor in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with Title 40 U.S.C. Sections 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. Part 5). Under Title 40 U.S.C. Section 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.

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The requirements of Title 40 U.S.C. Section 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 to health or safety.

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.

J. Davis-Bacon Act, as amended (40 U.S.C. Sections 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. Sections 3141-3148) as supplemented by Department of Labor regulations (29 C.F.R. 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 contractor 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 Contractor must report all suspected or reported violations to the Federal awarding agency.

The contracts must also include a provision for compliance with the Copeland “AntiKickback” Act (18 U.S.C. Section 874 and 40 U.S.C. Section 3145), as supplemented by Department of Labor regulations (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”). 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 contractor must report all suspected or reported violations to the Federal awarding agency.
i. The Contractor and all Subcontractors and Sub-subcontractors are required to pay their employees and workers a wage not less than the minimum wage for the work classification as specified in both the Federal and California wage decisions. See Exhibit “B” for additional information regarding California Prevailing Wage Rate Requirements and the applicable general prevailing wage determinations which are on file with the County and are available to any interested party on request. The higher of the two applicable wage determinations, either California prevailing wage or Davis-Bacon Federal prevailing wage, will be enforced for all applicable work/services under this Contract.

K. 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 Title 41 U.S.C. Section 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.

L. All contracts in excess of $10,000 must address termination for cause and for convenience by the non-Federal Contractor including the manner by which it will be effected and the basis for settlement.

M. Equal Employment Opportunity. Except as otherwise provided under Title 41 C.F.R. Part 60, all contracts that meet the definition of “federally assisted construction contract” in Title Packet Pg. 965
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41 C.F.R. Section 60-1.3 must include the equal opportunity clause provided under Title 41 C.F.R. Section 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. 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 C.F.R. part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The identified clause is below and Contractor shall comply with the clause and all legal requirements and include the equal opportunity clause in each of its nonexempt subcontracts.
i. The applicant hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at Title 41 C.F.R. Chapter 60, which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following equal opportunity 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 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 Packet Pg. 966
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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 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 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.

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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.

N. Data Collection Requirements – Contractor agrees to collect pre-post data per County, and United States Treasury guidelines and timeline, for project tracking and monitoring and various reporting purposes. Data including, but not limited to: Required Project Demographic Distribution Data; Required Performance Indicators and Programmatic Data; Required Expenditure Report Data; and Required Program Evaluation Data. Contractor agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data that needs to be available to County, State or Federal governments upon request.

O. Data Submission Requirements - Contractor agrees to furnish data to the County upon request, per County, and United States Treasury guidelines and timeline, for project tracking and monitoring and various reporting purposes. Data including, but not limited to:

Required Project Demographic Distribution Data; Required Performance Indicators and Programmatic Data; Required Expenditure Report Data; Required Program Evaluation Data. Contractor agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data that needs to be available at request.

P. Project Progress Reporting - Contractor agrees to provide project timeline and progress updates to the County upon request, per County, and United States Treasury guidelines and timeline. Contractor agrees to routine and impromptu program and project evaluation by the County.

Q. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Title 2 C.F.R. Part 200, other than such provisions as Treasury may determine are inapplicable and subject to such exceptions as may be otherwise provided by Treasury.

Subpart F – Audit Requirements of the Uniform Guidance, implementing the Single Audit Act, shall apply.

R. Universal Identifier and System for Award Management (SAM), Title 2 C.F.R. Part 25.

S. Reporting Subaward and Executive Compensation Information, Title 2 C.F.R. Part 170.

T. OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (nonprocurement), title 2 C.F.R. Part 180, including the requirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 C.F.R. Part 180, subpart B) that the award is subject to Title 2 C.F.R. Part 180 and Packet Pg. 968
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Treasury’s implementing regulation at Title 31 C.F.R. Part 19. Debarment and Suspension (Executive Orders 12549 and 12689) - A contract award (see 2 CFR Section 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 Title 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.

U. Recipient Integrity and Performance Matters, pursuant to which the award terms set forth in Title 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference.

V. Government Requirements for Drug-Free Workplace, Title 31 C.F.R. Part 20.

W. New Restrictions on Lobbying, Title 31 C.F.R. Part 21.

X. Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C.

Sections 4601-4655) and implementing regulations.

Y. Applicable Federal environmental laws and regulations.

Z. Statutes and regulations prohibiting discrimination include, without limitation, the following:
i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. Sections 2000d et seq.) and Treasury’s implementing regulations at Title 31 C.F.R. Part 22, which prohibits discrimination on the basis of race, color, or national origin under programs or activities receiving federal financial assistance.
ii. The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. Sections 3601 et seq.), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability. iii. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. Section 794), which prohibits discrimination on the basis of disability under any program or activity receiving federal financial assistance.
iv. The Age Discrimination Act of 1975, as amended (42 U.S.C. Sections 6101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
v. Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C.

Sections 12101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.

AA. Contractor understands that making false statements or claims in connection with the ARPA funded activities is a violation of federal law and may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from participating in federal awards or contracts, and/or any other remedy available by law.

BB. Any publications produced with ARPA funds must display the following language: “This project [is being] [was] supported, in whole or in part, by federal award number SLT-0628 awarded to San Bernardino County by the United States Department of Treasury.”

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CC. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Contractor is being 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.

DD. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Contractor is being encouraged to adopt and enforce policies that ban text messaging while driving and establishing workplace safety policies to decrease accidents caused by distracted drivers.

EE. As a recipient of federal financial assistance, the Civil Rights Restoration Act of 1987 applies, and Contractor and all subrecipients assures that it:
i. Ensures its current and future compliance with Title VI of the Civil Rights Act of 1964, as amended, which prohibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs and activities receiving federal funds, of any person in the United States on the ground of race, color, or national origin (42 U.S.C. Sections 2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at Title 31 CFR Part 22 and other pertinent executive orders such as Executive Order 13166, directives, circulars, policies, memoranda and/or guidance documents.
ii. Acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency,” seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, have Limited English proficiency (LEP). Contractor understands that denying a person access to its programs, services, and activities, because of LEP is a form of national origin discrimination prohibited under Title VI of the Civil Rights Act of 1964 and the Department of the Treasury’s implementing regulations. Contractor shall initiate reasonable steps, or comply with the Department of the Treasury’s directives, to ensure LEP persons have meaningful access to its programs, services, and activities. Contractor understands and agrees that meaningful access may entail provide language assistance services, including oral interpretation and written translation where necessary, to ensure effective communication. iii. Agrees to consider the need for language services for LEP persons during development of applicable budgets and when conducting programs, services, and activities.
iv. Agrees to maintain a complaint log of any complaints of discrimination on the grounds of race, color, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Act and implementing regulations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome.

FF. The Contractor must include the following language in every contract or agreement subject to Title VI and its regulations:
“The sub-grantee, contractor, successor, transferee, and assignee shall comply with Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from excluding a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, color, or nation origin (42 U.S.C.

Section 2000d et seq.), as implemented by the Department of the Treasury’s Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement). Title VI also includes protection to persons with “Limited English Proficiency” in any program or activity receiving federal financial assistance, 42 U.S.C. Sections 2000d et seq., as implemented by the Department of the Packet Pg. 970
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Treasury’s Title VI regulations, 31 CFR Part 22, and herein incorporated by reference and made a part of this contract or agreement.”
GG. Contractor shall cooperate in any enforcement or compliance review activities by the County and/or the Department of the Treasury. Contractor shall comply with information requests, on-site compliance reviews, and reporting requirements.

HH. Contractor shall maintain records and financial documents sufficient to evidence compliance with section 603(c), regulations adopted by Treasury implementing those sections, and guidance issued by Treasury regarding the foregoing.

II. County has the right of access to records (electronic or otherwise) of Contractor in order to conduct audits or other investigations.

JJ. Contractor shall maintain records for a period of five (5) years after the completion of the contract or a period of five (5) years after the last reporting date the County is obligated with the Department of the United States Treasury, whichever is later.

KK. Contractor must disclose in writing any potential conflict of interest in accordance with Title 2 C.F.R. Section 200.112.

LL. In accordance with Title 41 U.S.C. Section 4712, subrecipient or Contractor may not discharge, demote, or otherwise discriminate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant.

The list of persons and entities referenced in the paragraph above includes the following: (i) A member of Congress or a representative of a committee of Congress; (ii) An Inspector General; (iii) The Government Accountability Office; (iv) A Treasury employee responsible for contract or grant oversight or management; (v) An authorized official of the Department of Justice or other law enforcement agency; (vi) A court or grand jury; or (vii) A management official or other employee of recipient, subrecipient, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct.

Subrecipient or Contractor shall inform its employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.

MM. County and Contractor acknowledge that if additional federal guidance is issued, an amendment to this Contract may be necessary. In the event any of the terms in this Section 2 conflict with any other terms in the Contract, the terms in this Section 2 shall control.

3. GENERAL CONTRACT REQUIREMENTS
A. Recitals
The recitals set forth above are true and correct and incorporated herein by this reference.

B. Contract Amendments
Contractor agrees any alterations, variations, modifications, or waivers of the provisions of the Contract, shall be valid only when reduced to writing, executed and attached to the Packet Pg. 971
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original Contract and approved by the person(s) authorized to do so on behalf of Contractor and County.

C. Contract Assignability
Without the prior written consent of the County, the Contract is not assignable by Contractor either in whole or in part.

D. Contract Exclusivity
This is not an exclusive Contract. The County reserves the right to enter into a contract with other contractors for the same or similar services. The County does not guarantee or represent that the Contractor will be permitted to perform any minimum amount of work, or receive compensation other than on a per order basis, under the terms of this Contract.

E. Attorney’s Fees and Costs
If any legal action is instituted to enforce any party’s rights hereunder, each party shall bear its own costs and attorney fees, regardless of who is the prevailing party. This paragraph shall not apply to those costs and attorney fees directly arising from a third-party legal action against a party hereto and payable under Indemnification and Insurance Requirements.

F. Background Checks for Contractor Personnel
Contractor shall ensure that its personnel (a) are authorized to work in the jurisdiction in which they are assigned to perform services; (d) do not use legal or illegal substances in any manner which will impact their ability to provide services; and (c) are not otherwise disqualified from performing the services under applicable law. If requested by the County and not in violation of applicable law, Contractor shall conduct a background check, at Contractor’s sole expense, on all its personnel providing services. If requested by the County, Contractor shall provide the results of the background check of each individual to the County. Such background check shall be in the form generally used by Contractor in its initial hiring of employees or contracting for contractors or, as applicable, during the employment-screening process but must, at a minimum, have been performed within the preceding 12-month period. Contractor personnel who do not meet the County’s hiring criteria, in County’s sole discretion, shall not be assigned to work on County property or services, and County shall have the right, at its sole option, to refuse access to any Contract personnel to any County facility.

G. Change of Address
Contractor shall notify the County in writing, of any change in mailing address within ten (10) business days of the change.

H. Choice of Law
This Contract shall be governed by and construed according to the laws of the State of California.

I. Confidentiality
Contractor shall protect from unauthorized use or disclosure names and other identifying information concerning persons receiving services pursuant to this Contract, except for statistical information not identifying any participant. Contractor shall not use or disclose any identifying information for any other purpose other than carrying out the Contractor's obligations under this Contract, except as may be otherwise required by law. This provision will remain in force even after the termination of the Contract.

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J. Primary Point of Contact
Contractor will designate an individual to serve as the primary point of contact for the Contract. Contractor or designee must respond to County inquiries within two (2) business days. Contractor shall not change the primary contact without written acknowledgement to the County. Contractor will also designate a back-up point of contact in the event the primary contact is not available.

K. Rule of Construction
The parties agree that this Contract and all agreements or documents incorporated herein shall not be subject to the rule of construction that a written agreement is construed against the party preparing or drafting that agreement.

L. County Representative
The Chief Executive Officer or his/her designee shall represent the County in all matters pertaining to the services to be rendered under this Contract, including termination and assignment of this Contract, and shall be the final authority in all matters pertaining to the services/scope of Work by Contractor. If this contract was initially approved by the San Bernardino County Board of Supervisors, then the Board of Supervisors must approve all amendments to this Contract.

M. Damage to County Property
Contractor shall repair, or cause to be repaired, at its own cost, all damages to County vehicles, facilities, buildings or grounds caused by the willful or negligent acts of Contractor or its employees or agents. Such repairs shall be made immediately after Contractor becomes aware of such damage, but in no event later than thirty (30) days after the occurrence.

If the Contractor fails to make timely repairs, the County may make any necessary repairs.

The Contractor, as determined by the County, shall repay all costs incurred by the County for such repairs, by cash payment upon demand, or County may deduct such costs from any amounts due to the Contractor from the County, as determined at the County’s sole discretion.

N. Debarment and Suspension
Contractor certifies that neither it nor its principals or subcontracts is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or agency. (See the following United States General Services Administration’s System for Award Management website https://www.sam.gov). Contractor further certifies that if it or any of its subcontractors are business entities that must be registered with the California Secretary of State, they are registered and in good standing with the Secretary of State. An subcontracts funded by this Contract shall be with vendors that meet this certification and registration requirement.

O. Drug and Alcohol Free Workplace
In recognition of individual rights to work in a safe, healthful and productive work place, as a material condition of this Contract, the Contractor agrees that the Contractor and the Contractor’s employees, while performing service for the County, on County property, or while using County equipment:
i. Shall not be in any way impaired because of being under the influence of alcohol or an illegal or controlled substance.

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ii. Shall not possess an open container of alcohol or consume alcohol or possess or be under the influence of an illegal or controlled substance. iii. Shall not sell, offer, or provide alcohol or an illegal or controlled substance to another person, except where Contractor or Contractor’s employee who, as part of the performance of normal job duties and responsibilities, prescribes or administers medically prescribed drugs.

The Contractor shall inform all employees that are performing service for the County on County property, or using County equipment, of the County’s objective of a safe, healthful and productive work place and the prohibition of drug or alcohol use or impairment from same while performing such service for the County.

The County may terminate for default or breach of this Contract and any other Contract the Contractor has with the County, if the Contractor or Contractor’s employees are determined by the County not to be in compliance with above.

P. Duration of Terms
This Contract, and all of its terms and conditions, shall be binding upon and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the respective parties, provided no such assignment is in violation of the provisions of this Contract.

Q. Discrimination
During the term of the Contract, Contractor shall not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, or military and veteran status. Contractor shall comply with Executive Orders 11246, 11375, 11625, 12138, 12432, 12250, 13672, Title VI and Title VII of the Civil Rights Act of 1964, the California Fair Employment and Housing Act and other applicable Federal, State and County laws and regulations and policies relating to equal employment and contracting opportunities, including laws and regulations hereafter enacted.

R. Improper Influence
Contractor shall make all reasonable efforts to ensure that no County officer or employee, whose position in the County enables him/her to influence any award of the Contract or any competing offer, shall have any direct or indirect financial interest resulting from the award of the Contract or shall have any relationship to the Contractor or officer or employee of the Contractor.

S. Improper Consideration
Contractor shall not offer (either directly or through an intermediary) any improper consideration such as, but not limited to cash, discounts, service, the provision of travel or entertainment, or any items of value to any officer, employee or agent of the County in an attempt to secure favorable treatment regarding this Contract.

The County, by written notice, may immediately terminate this Contract if it determines that any improper consideration as described in the preceding paragraph was offered to any officer, employee or agent of the County with respect to the proposal and award process.

This prohibition shall apply to any amendment, extension or evaluation process once a contract has been awarded.

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Contractor shall immediately report any attempt by a County officer, employee or agent to solicit (either directly or through an intermediary) improper consideration from Contractor.

The report shall be made to the supervisor or manager charged with supervision of the employee or the County Administrative Office. In the event of a termination under this provision, the County is entitled to pursue any available legal remedies.

T. Informal Dispute Resolution
In the event the County determines that service is unsatisfactory, or in the event of any other dispute, claim, question or disagreement arising from or relating to this Contract or breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties.

U. Legality and Severability
The parties’ actions under the Contract shall comply with all applicable laws, rules, regulations, court orders and governmental agency orders. The provisions of this Contract are specifically made severable. If a provision of the Contract is terminated or held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full effect.

V. Licenses, Permits and/or Certifications
Contractor shall ensure that it has all necessary licenses, permits and/or certifications required by the laws of Federal, State, County, and municipal laws, ordinances, rules and regulations. The Contractor shall maintain these licenses, permits and/or certifications in effect for the duration of this Contract. Contractor will notify County immediately of loss or suspension of any such licenses, permits and/or certifications. Failure to maintain a required license, permit and/or certification may result in immediate termination of this Contract.

W. Material Misstatement/Misrepresentation
If during the course of the administration of this Contract, the County determines that Contractor has made a material misstatement or misrepresentation or that materially inaccurate information has been provided to the County, this Contract may be immediately terminated. If this Contract is terminated according to this provision, the County is entitled to pursue any available legal remedies.

X. Mutual Covenants
The parties to this Contract mutually covenant to perform all of their obligations hereunder, to exercise all discretion and rights granted hereunder, and to give all consents in a reasonable manner consistent with the standards of “good faith” and “fair dealing”.

Y. Nondisclosure
Contractor shall hold as confidential and use reasonable care to prevent unauthorized access by, storage, disclosure, publication, dissemination to and/or use by third parties of, confidential information that is either: (1) provided by the County to Contractor or an agent of Contractor or otherwise made available to Contractor or Contractor’s agent in connection with this Contract; or, (2) acquired, obtained, or learned by Contractor or an agent of Contractor in the performance of this Contract. For purposes of this provision, confidential information means any data, files, software, information or materials in oral, electronic, tangible or intangible form and however stored, compiled or memorialize and includes, but is not limited to, technology Packet Pg. 975
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infrastructure, architecture, financial data, trade secrets, equipment specifications, user lists, passwords, research data, and technology data.

Z. Notice of Delays
Except as otherwise provided herein, when either party has knowledge that any actual or potential situation is delaying or threatens to delay the timely performance of this contract, that party shall, within twenty-four (24) hours, give notice thereof, including all relevant information with respect thereto, to the other party.

AA. Ownership of Documents
All documents, data, products, graphics, computer programs and reports prepared by Contractor pursuant to the Contract shall be considered property of the County upon payment for services (and products, if applicable). All such items shall be delivered to County at the completion of work under the Contract. Unless otherwise directed by County, Contractor may retain copies of such items.

BB. Air, Water Pollution Control, Safety and Health
Contractor shall comply with all air pollution control, water pollution, safety and health ordinances and statutes, which apply to the work performed pursuant to this Contract.

CC. Records
Contractor shall maintain all records and books pertaining to the delivery of services under this Contract and demonstrate accountability for contract performance. All records shall be complete and current and comply with all Contract requirements. Failure to maintain acceptable records shall be considered grounds for withholding of payments for invoices submitted and/or termination of the Contract.

All records relating to the Contractor’s personnel, consultants, subcontractors, services/scope of Work and expenses pertaining to this Contract shall be kept in a generally acceptable accounting format. Records should include primary source documents. Fiscal records shall be kept in accordance with Generally Accepted Accounting Principles and must account for all funds, tangible assets, revenue and expenditures. Fiscal records must comply with the appropriate Office of Management and Budget (OMB) Circulars, which state the administrative requirements, cost principles and other standards for accountancy.

DD. Relationship of the Parties
Nothing contained in this Contract shall be construed as creating a joint venture, partnership, or employment arrangement between the Parties hereto, nor shall either Party have the right, power or authority to create an obligation or duty, expressed or implied, on behalf of the other Party hereto.

EE. Release of Information
No news releases, advertisements, public announcements or photographs arising out of the Contract or Contractor’s relationship with County may be made or used without prior written approval of the County.

FF. Representation of the County
In the performance of this Contract, Contractor, its agents and employees, shall act in an independent capacity and not as officers, employees, or agents of the San Bernardino County.

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GG. Strict Performance
Failure by a party to insist upon the strict performance of any of the provisions of this Contract by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Contract thereafter.

HH. Subcontracting
Contractor shall obtain County’s written consent, which County may withhold in its sole discretion, before entering into Contracts with or otherwise engaging any subcontractors who may supply any part of the services to County. At County’s request, Contractor shall provide information regarding the subcontractor’s qualifications and a listing of a subcontractor’s key personnel including, if requested by the County, resumes of proposed subcontractor personnel. Contractor shall remain directly responsible to County for its subcontractors and shall indemnify County for the actions or omissions of its subcontractors under the terms and conditions specified in Section 5. All approved subcontractors shall be subject to the provisions of this Contract applicable to Contractor Personnel.

For any subcontractor, Contractor shall:
i. Be responsible for subcontractor compliance with the Contract and the subcontract terms and conditions; and
ii. Ensure that the subcontractor follows County’s reporting formats and procedures as specified by County.
iii. Include in the subcontractor’s subcontract substantially similar terms as are provided in this Contract.

Upon expiration or termination of this Contract for any reason, County will have the right to enter into direct Contracts with any of the Subcontractors. Contractor agrees that its arrangements with Subcontractors will not prohibit or restrict such Subcontractors from entering into direct Contracts with County.

II. Subpoena
In the event that a subpoena or other legal process commenced by a third party in any way concerning the goods or services provided under this Contract is served upon Contractor or County, such party agrees to notify the other party in the most expeditious fashion possible following receipt of such subpoena or other legal process. Contractor and County further agree to cooperate with the other party in any lawful effort by such other party to contest the legal validity of such subpoena or other legal process commenced by a third party as may be reasonably required and at the expense of the party to whom the legal process is directed, except as otherwise provided herein in connection with defense obligations by Contractor for County.

JJ. Termination for Convenience
The County reserves the right to terminate the Contract, for any reason, with a thirty (30) day written notice of termination. The County’s Chief Executive Officer is authorized to terminate this Contract. Such termination may include all or part of the services described herein. Upon such termination, payment will be made to the Contractor for services rendered and expenses reasonably incurred prior to the effective date of termination. Upon receipt of termination notice Contractor shall promptly discontinue services unless the notice directs otherwise. Contractor shall deliver promptly to County and transfer title (if necessary) all completed work, and work in progress, including drafts, documents, plans, forms, data, products, graphics, computer programs and reports.

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KK. Time of the Essence
Time is of the essence in performance of this Contract and of each of its provisions.

LL. Venue
The parties acknowledge and agree that this Contract was entered into and intended to be performed in San Bernardino County, California. The parties agree that the venue of any action or claim brought by any party to this Contract will be the Superior Court of California, San Bernardino County, San Bernardino District. Each party hereby waives any law or rule of the court, which would allow them to request or demand a change of venue. If any action or claim concerning this Contract is brought by any third party and filed in another venue, the parties hereto agree to use their best efforts to obtain a change of venue to the Superior Court of California, San Bernardino County, San Bernardino District.

MM. Conflict of Interest
Contractor shall make all reasonable efforts to ensure that no conflict of interest exists between its officers, employees, or subcontractors and the County. Contractor shall make a reasonable effort to prevent employees, Contractor, or members of governing bodies from using their positions for purposes that are, or give the appearance of being motivated by a desire for private gain for themselves or others such as those with whom they have family business, or other ties. Officers, employees, and agents of cities, counties, districts, and other local agencies are subject to applicable conflict of interest codes and state law. In the event the County determines a conflict of interest situation exists, any increase in costs, associated with the conflict of interest situation, may be disallowed by the County and such conflict may constitute grounds for termination of the Contract. This provision shall not be construed to prohibit employment of persons with whom Contractor’s officers, employees, or agents have family, business, or other ties so long as the employment of such persons does not result in increased costs over those associated with the employment of any other equally qualified applicant.

NN. Copyright
County shall have a royalty-free, non-exclusive and irrevocable license to publish, disclose, copy, translate, and otherwise use, copyright or patent, now and hereafter, all reports, studies, information, data, statistics, forms, designs, plans, procedures, systems, and any other materials or properties developed under this Contract including those covered by copyright, and reserves the right to authorize others to use or reproduce such material. All such materials developed under the terms of this Contract shall acknowledge the San Bernardino County as the funding agency and Contractor as the creator of the publication.

No such materials, or properties produced in whole or in part under this Contract shall be subject to private use, copyright or patent right by Contractor in the United States or in any other country without the express written consent of County. Copies of all educational and training materials, curricula, audio/visual aids, printer material, and periodicals, assembled pursuant to this Contract must be filed with the County prior to publication.

OO. Iran Contracting Act
IRAN CONTRACTING ACT OF 2010, Public Contract Code Sections 2200 et seq. (Applicable for all Contracts of one million dollars ($1,000,000) or more). In accordance with Public Contract Code Section 2204(a), the Contractor certifies that at the time the Contract is signed, the Contractor signing the Contract is not identified on a list created pursuant to subdivision (b) of Public Contract Code Section 2203 as a person (as defined in Public Contract Code Section 2202(e)) engaging in investment activities in Iran described Packet Pg. 978
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in subdivision (a) of Public Contract Code Section 2202.5, or as a person described in subdivision (b) of Public Contract Code Section 2202.5, as applicable.

Contractors are cautioned that making a false certification may subject the Contractor to civil penalties, termination of existing contract, and ineligibility to bid on a contract for a period of three (3) years in accordance with Public Contract Code Section 2205.

PP. California Consumer Privacy Act
To the extent applicable, if Contractor is a business that collects the personal information of a consumer(s) in performing services pursuant to this Contract, Contractor must comply with the provisions of the California Consumer Privacy Act (CCPA). (Cal. Civil Code Sections 1798.100, et seq.). For purposes of this provision, “business,” “consumer,” and “personal information” shall have the same meanings as set forth at Civil Code Section 1798.140. Contractor must contact the County immediately upon receipt of any request by a consumer submitted pursuant to the CCPA that requires any action on the part of the County, including but not limited to, providing a list of disclosures or deleting personal information. Contractor must not sell, market or otherwise disclose personal information of a consumer provided by the County unless specifically authorized pursuant to terms of this Contract. Contractor must immediately provide to the County any notice provided by a consumer to Contractor pursuant to Civil Code Section 1798.150(b) alleging a violation of the CCPA, that involves personal information received or maintained pursuant to this Contract. Contractor must immediately notify the County if it receives a notice of violation from the California Attorney General pursuant to Civil Code Section 1798.155(b).

QQ. Prevailing Wage Laws
By its execution of this Contract, Contractor certifies that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq. as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Section 1720 of the California Labor Code states in part: “For purposes of this paragraph, ‘construction’ includes work performed during the design, site assessment, feasibility study, and other preconstruction phases of construction including, but not limited to, inspection and land surveying work…” If the services/scope of Work are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the services available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the project site. Contractor will also adhere to any other applicable requirements, including but not limited to, those regarding the employment of apprentices, travel and subsistence pay, retention and inspection of payroll records, workers compensation and forfeiture of penalties prescribed in the Labor Code for violations.

Contractor shall defend, indemnify and hold the County, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with Prevailing Wage Laws.

See Exhibit “B”, which is attached and incorporated by reference, for additional information regarding Prevailing Wage Laws. Contractor shall comply with all applicable terms and conditions in Exhibit “B”. The applicable general prevailing wage determinations are on file with the County and are available to any interested party on request. Contractor shall post a copy of the applicable prevailing wage determinations at the job site.

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4. TERM OF CONTRACT
This Contract is effective as of the date last signed by authorized representatives of any party (Effective Date), requires all incurred obligations by December 31, 2024, and expires on December 31, 2026, but may be terminated earlier in accordance with the provisions of this Contract.

5. INDEMNIFICATION AND INSURANCE REQUIREMENTS
A. Indemnification
The Contractor agrees to indemnify, defend (with counsel reasonably approved by County) and hold harmless the County and its authorized officers, employees, agents and volunteers from any and all claims, actions, losses, damages and/or liability arising out of this Contract from any cause whatsoever, including the acts, errors or omissions of any person and for any costs or expenses incurred by the County on account of any claim except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence or degree of fault of indemnities. The Contractor indemnification obligation applies to the County’s “active” as well as “passive” negligence but does not apply to the County’s “sole negligence” or “willful misconduct” within the meaning of Civil Code Section 2782.

B. Insurance
i. Contractor and County are authorized self-insured public entities for purposes of Professional Liability, General Liability, Automobile Liability, Worker’s Compensation and Property Damage and warrant that through their respective programs of selfinsurance, they have adequate coverage or resources to protect against liabilities arising out of the performance of the terms, conditions or obligations of this Contract. ii. Insurance Review – Insurance requirements are subject to periodic review by the County. The Director of Risk Management or designee is authorized, but not required, to reduce, waive or suspend any insurance requirements whenever Risk Management determines that any of the required insurance is not available, is unreasonably priced, or is not needed to protect the interests of the County. In addition, if the Department of Risk Management determines that heretofore unreasonably priced or unavailable types of insurance coverage or coverage limits become reasonably priced or available, the Director of Risk Management or designee is authorized, but not required, to change the above insurance requirements to require additional types of insurance coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against the County, inflation, or any other item reasonably related to the County’s risk.

Any change requiring additional types of insurance coverage or higher coverage limits must be made by amendment to this Contract. Contractor agrees to execute any such amendment within thirty (30) days of receipt.

Any failure, actual or alleged, on the part of the County to monitor or enforce compliance with any of the insurance and indemnification requirements will not be deemed as a waiver of any rights on the part of the County.

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6. RIGHT TO MONITOR AND AUDIT
A. The County, State and Federal government shall have absolute right to review and audit all records, books, papers, documents, corporate minutes, and other pertinent items as requested, and shall have absolute right to monitor the performance of Contractor in the delivery of services provided under this Contract. Contractor shall give full cooperation, in any auditing or monitoring conducted. Contractor shall cooperate with the County in the implementation, monitoring, and evaluation of this Contract and comply with any and all reporting requirements established by the County.

B. All records pertaining to services delivered and all fiscal, statistical and management books and records shall be available for examination and audit by County representatives for a period of three years after final payment under this Contract or until all pending County, State and Federal audits are completed, whichever is later.

7. CORRECTION OF PERFORMANCE DEFICIENCIES
A. Failure by Contractor to comply with any of the provisions, covenants, requirements or conditions of this Contract shall be a material breach of this Contract.

B. In the event of a non-cured breach, County may, at its sole discretion and in addition to any other remedies available at law, in equity, or otherwise specified in this Contract:
i. Afford Contractor thereafter a time period within which to cure the breach, which period shall be established at the sole discretion of County; and/or ii. Discontinue reimbursement to Contractor for and during the period in which Contractor is in breach, which reimbursement shall not be entitled to later recovery; and/or
iii. Withhold funds pending duration of the breach; and/or iv. Offset against any monies billed by Contractor but yet unpaid by County those monies disallowed pursuant to Item “B” of this paragraph; and/or v. Terminate this Contract immediately and be relieved of the payment of any consideration to Contractor. In the event of such termination, the County may proceed with the work in any manner deemed proper by the County. The cost to the County shall be deducted from any sum due to the Contractor under this Contract and the balance, if any, shall be paid by the Contractor upon demand.

8. NOTICES
All written notices provided for in this Contract or which either party desires to give to the other shall be deemed fully given, when made in writing and either served personally, or by facsimile, or deposited in the United States mail, postage prepaid, and addressed to the other party as follows:

San Bernardino County
County Administrative Office – 4th Floor
385 N. Arrowhead Avenue
San Bernardino, CA 92415
City of San Bernardino
Finance Department
290 N. D Street, 3rd Floor
San Bernardino, CA 92401
Notice shall be deemed communicated two (2) County working days from the time of mailing if mailed as provided in this paragraph.

9. ENTIRE AGREEMENT
This Contract, including all Exhibits and other attachments, which are attached hereto and incorporated by reference, and other documents incorporated herein, represents the final, complete and exclusive agreement between the parties hereto. Any prior agreement, Packet Pg. 981
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promises, negotiations or representations relating to the subject matter of this Contract not expressly set forth herein are of no force or effect. This Contract is executed without reliance upon any promise, warranty or representation by any party or any representative of any party other than those expressly contained herein. Each party has carefully read this Contract and signs the same of its own free will.

10.CONTRACT EXECUTION
This Contract may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute one and the same Contract. The parties shall be entitled to sign and transmit an electronic signature of this Contract (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Each party providing an electronic signature agrees to promptly execute and deliver to the other party an original signed Contract upon request.

IN WITNESS WHEREOF, the San Bernardino County and City of San Bernardino have each caused this Contract to be subscribed by its respective duly authorized officers, on its behalf.

FOR COUNTY USE ONLY
Approved as to Legal Form Reviewed for Contract Compliance Reviewed/Approved by Department County Counsel
Date Date Date

SAN BERNARDINO COUNTY City of San Bernardino
(Print or type name of corporation, company, contractor, etc.) By
Leonard X. Hernandez, Chief Executive Officer (Authorized signature - sign in blue ink) Dated: Name
Robert D. Field
(Print or type name of person signing contract)
Title City Manager
(Print or Type)
Dated:

Address 290 N. D Street
San Bernardino, CA 92401
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EXHIBIT A

SCOPE OF EXPENDITURES
[SEPARATELY ATTACHED]
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EXHIBIT B

PREVAILING WAGE REQUIREMENTS
A. All or a portion of the Scope of Work in the Contract requires the payment of prevailing wages and compliance with the following requirements:

1. Determination of Prevailing Rates:

Pursuant to Labor Code sections 1770, et seq., the County has obtained from the Director of the Department of Industrial Relations (DIR) pursuant to the California Labor Code, the general prevailing rates of per diem wages and the prevailing rates for holiday and overtime work in the locality in which the Scope of Work is to be performed. Copies of said rates are on file with the County, will be made available for inspection during regular business hours, may be included elsewhere in the specifications for the Scope of Work, and are also available online at www.dir.ca.gov. The wage rate for any classification not listed, but which may be required to execute the Scope of Work, shall be commensurate and in accord with specified rates for similar or comparable classifications for those performing similar or comparable duties. In accordance with Labor Code section 1773.2, the Contractor shall post, at appropriate and conspicuous locations on the job site, a schedule showing all applicable prevailing wage rates and shall comply with the requirements of Labor Code sections 1773, et seq.

2. Payment of Prevailing Rates
Each worker of the Contractor, or any subcontractor, engaged in the Scope of Work, shall be paid not less than the general prevailing wage rate, regardless of any contractual relationship which may be alleged to exist between the Contractor or any subcontractor, and such worker.

3. Prevailing Rate Penalty
The Contractor shall, as a penalty, forfeit two hundred dollars ($200.00) to the County for each calendar day or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of the DIR for such work or craft in which such worker is employed by the Contractor or by any subcontractor in connection with the Scope of Work.

Pursuant to California Labor Code section 1775, the difference between such prevailing wage rates and the amount paid to each worker for each calendar day, or portion thereof, for which each worker was paid less than the prevailing wage rate, shall be paid to each worker by the Contractor.

4. Ineligible Contractors:

Pursuant to the provisions of Labor Code section 1777.1, the Labor Commissioner publishes and distributes a list of contractors ineligible to perform work as a contractor or subcontractor on a public works project. This list of debarred contractors is available from the DIR website at http://www.dir.ca.gov/Public-Works/PublicWorks.html. Any contract entered into between a contractor and a debarred subcontractor is void as a matter of law.

A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract, and any public money that may have been paid to a debarred subcontractor by a contractor on the project shall be returned to the County.

The Contractor shall be responsible for the payment of wages to workers as a debarred subcontractor who has been allowed to work on the Scope of Work.

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5. Payroll Records:
a. Pursuant to California Labor Code section 1776, the Contractor and each subcontractor, shall keep accurate certified payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed by them in connection with the Scope of Work. The payroll records enumerated herein shall be verified by a written declaration made under penalty of perjury that the information contained in the payroll record is true and correct and that the Contractor or subcontractor has complied with the requirements of the California Labor Code sections 1771, 1811, and 1815 for any Scope of Work performed by his or her employees. The payroll records shall be available for inspection at all reasonable hours at the principal office of the Contractor on the following basis:
i. A certified copy of an employee's payroll record shall be made available for inspection or furnished to such employee or his/her authorized representative on request;
ii. A certified copy of all payroll records shall be made available for inspection or furnished upon request to the County, the Division of Labor Standards Enforcement of the DIR;
iii. A certified copy of payroll records shall be made available upon request to the public for inspection or copies thereof made; provided, however, that a request by the public shall be made through either the County or the Division of Labor Standards Enforcement. If the requested payroll records have not been previously provided to the County or the Division of Labor Standards Enforcement, the requesting party shall, prior to being provided the records, reimburse the cost of preparation by the Contractor, subcontractor and the entity through which the request was made; the public shall not be given access to such records at the principal office of the Contractor; iv. The Contractor shall file a certified copy of the payroll records with the entity that requested such records within ten (10) days after receipt of a written request; and v. Copies provided to the public, by the County or the Division of Labor Standards Enforcement shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address and social security number. The name and address of the Contractor or any subcontractor, performing a part of the Scope of Work shall not be marked or obliterated. The Contractor shall inform the County of the location of payroll records, including the street address, city and county and shall, within five (5) working days, provide a notice of a change of location and address.
b. The Contractor shall have ten (10) days from receipt of the written notice specifying in what respects the Contractor must comply with the above requirements. In the event Contractor does not comply with the requirements of this section within the ten (10) day period, the Contractor shall, as a penalty to the County, forfeit one-hundred dollars ($100.00) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Labor Standards Enforcement, such penalty shall be withheld from any portion of the payments then due or to become due to the Contractor.

6. Limits on Hours of Work:

Pursuant to California Labor Code section 1810, eight (8) hours of labor shall constitute a legal day's work. Pursuant to California Labor Code section 1811, the time of service of any worker employed at any time by the Contractor or by a subcontractor, upon the Scope of Work or upon any part of the Scope of Work, is limited and restricted to eight (8) hours during any one calendar day and forty (40) hours during any one calendar week, except as Packet Pg. 985
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provided for under Labor Code section 1815. Notwithstanding the foregoing provisions, work performed by employees of Contractor or any subcontractor, in excess of eight (8) hours per day and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and one-half (1½) times the basic rate of pay.

7. Penalty for Excess Hours:

The Contractor shall pay to the County a penalty of twenty-five dollars ($25.00) for each worker employed on the Scope of Work by the Contractor or any subcontractor, for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any calendar day and forty (40) hours in any one calendar week, in violation of the provisions of the California Labor Code, unless compensation to the worker so employed by the Contractor is not less than one and one-half (1½) times the basic rate of pay for all hours worked in excess of eight (8) hours per day.

8. Senate Bill 854 (Chapter 28, Statutes of 2014) and Senate Bill 96 (Chapter 28, Statutes of 2017) Requirements:
a. Contractor shall comply with Senate Bill 854 and Senate Bill 96. The requirements include, but are not limited to, the following:
i. No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the DIR pursuant to Labor Code section 1725.5, with limited exceptions from this requirements for bid purposes only as allowed under Labor Code section 1771.1(a).
ii. No contractor or subcontractor may be awarded a contract for public work or perform work on a public works project unless registered with the DIR pursuant to Labor Code section 1725.5.
iii. This project is subject to compliance monitoring and enforcement by the DIR. iv. As required by the DIR, Contractor is required to post job site notices, as prescribed by regulation, regarding compliance monitoring and enforcement by the DIR.
v. Contractors and all subcontractors must submit certified payroll records online to the Labor Commissioner for all public works projects.
1) The certified payroll must be submitted at least monthly to the Labor Commissioner.
2) The County reserves the right to require Contractor and all subcontractors to submit certified payroll records more frequently than monthly to the Labor Commissioner.
3) The certified payroll records must be in a format prescribed by the Labor Commissioner.
vi. Registration with the DIR and the submission of certified payroll records to the Labor Commissioner are not required if the public works project is $25,000 or less when the project is for construction, alteration, demolition, installation or repair work, or if the public works project is $15,000 or less when the project is for maintenance work.
b. Labor Code section 1725.5 states the following:
“A contractor shall be registered pursuant to this section to be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any public work contract that is subject to the requirements of this chapter. For the purposes of this section, “contractor” includes a subcontractor as defined by Section 1722.1.

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(a) To qualify for registration under this section, a contractor shall do all of the following:
(1) (A) Register with the Department of Industrial Relations in the manner prescribed by the department and pay an initial nonrefundable application fee of four hundred dollars ($400) to qualify for registration under this section and an annual renewal fee on or before July 1 of each year thereafter. The annual renewal fee shall be in a uniform amount set by the Director of Industrial Relations, and the initial registration and renewal fees may be adjusted no more than annually by the director to support the costs specified in Section 1771.3.
(B) Beginning June 1, 2019, a contractor may register or renew according to this subdivision in annual increments up to three years from the date of registration.

Contractors who wish to do so will be required to prepay the applicable nonrefundable application or renewal fees to qualify for the number of years for which they wish to preregister.
(2) Provide evidence, disclosures, or releases as are necessary to establish all of the following:
(A) Workers' compensation coverage that meets the requirements of Division 4 (commencing with Section 3200) and includes sufficient coverage for any worker whom the contractor employs to perform work that is subject to prevailing wage requirements other than a contractor who is separately registered under this section. Coverage may be evidenced by a current and valid certificate of workers' compensation insurance or certification of self-insurance required under Section 7125 of the Business and Professions Code.
(B) If applicable, the contractor is licensed in accordance with Chapter 9 (commencing with Section 7000) of the Business and Professions Code. (C) The contractor does not have any delinquent liability to an employee or the state for any assessment of back wages or related damages, interest, fines, or penalties pursuant to any final judgment, order, or determination by a court or any federal, state, or local administrative agency, including a confirmed arbitration award. However, for purposes of this paragraph, the contractor shall not be disqualified for any judgment, order, or determination that is under appeal, provided that the contractor has secured the payment of any amount eventually found due through a bond or other appropriate means.
(D) The contractor is not currently debarred under Section 1777.1 or under any other federal or state law providing for the debarment of contractors from public works. (E) The contractor has not bid on a public works contract, been listed in a bid proposal, or engaged in the performance of a contract for public works without being lawfully registered in accordance with this section, within the preceding 12 months or since the effective date of the requirements set forth in subdivision (e), whichever is earlier. If a contractor is found to be in violation of the requirements of this paragraph, the period of disqualification shall be waived if both of the following are true:
(i) The contractor has not previously been found to be in violation of the requirements of this paragraph within the preceding 12 months.

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(ii) The contractor pays an additional nonrefundable penalty registration fee of two thousand dollars ($2,000).
(b) Fees received pursuant to this section shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be used only for the purposes specified in that section.
(c) A contractor who fails to pay the renewal fee required under paragraph (1) of subdivision (a) on or before the expiration of any prior period of registration shall be prohibited from bidding on or engaging in the performance of any contract for public work until once again registered pursuant to this section. If the failure to pay the renewal fee was inadvertent, the contractor may renew its registration retroactively by paying an additional nonrefundable penalty renewal fee equal to the amount of the renewal fee within 90 days of the due date of the renewal fee.
(d) If, after a body awarding a contract accepts the contractor's bid or awards the contract, the work covered by the bid or contract is determined to be a public work to which Section 1771 applies, either as the result of a determination by the director pursuant to Section 1773.5 or a court decision, the requirements of this section shall not apply, subject to the following requirements:
(1) The body that awarded the contract failed, in the bid specification or in the contract documents, to identify as a public work that portion of the work that the determination or decision subsequently classifies as a public work.
(2) Within 20 days following service of notice on the awarding body of a determination by the Director of Industrial Relations pursuant to Section 1773.5 or a decision by a court that the contract was for public work as defined in this chapter, the contractor and any subcontractors are registered under this section or are replaced by a contractor or subcontractors who are registered under this section.
(3) The requirements of this section shall apply prospectively only to any subsequent bid, bid proposal, contract, or work performed after the awarding body is served with notice of the determination or decision referred to in paragraph (2). (e) The requirements of this section shall apply to any bid proposal submitted on or after March 1, 2015, to any contract for public work, as defined in this chapter, executed on or after April 1, 2015, and to any work performed under a contract for public work on or after January 1, 2018, regardless of when the contract for public work was executed. (f) This section does not apply to work performed on a public works project of twentyfive thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.” c. Labor Code section 1771.1 states the following:
“(a) 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 Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Packet Pg. 988
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Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.
(b) Notice of the requirement described in subdivision (a) shall be included in all bid invitations and public works contracts, and a bid shall not be accepted nor any contract or subcontract entered into without proof of the contractor or subcontractor's current registration to perform public work pursuant to Section 1725.5. (c) An inadvertent error in listing a subcontractor who is not registered pursuant to Section 1725.5 in a bid proposal shall not be grounds for filing a bid protest or grounds for considering the bid nonresponsive, provided that any of the following apply:
(1) The subcontractor is registered prior to the bid opening. (2) Within 24 hours after the bid opening, the subcontractor is registered and has paid the penalty registration fee specified in subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5.
(3) The subcontractor is replaced by another registered subcontractor pursuant to Section 4107 of the Public Contract Code.
(d) Failure by a subcontractor to be registered to perform public work as required by subdivision (a) shall be grounds under Section 4107 of the Public Contract Code for the contractor, with the consent of the awarding authority, to substitute a subcontractor who is registered to perform public work pursuant to Section 1725.5 in place of the unregistered subcontractor.
(e) The department shall maintain on its Internet Web site a list of contractors who are currently registered to perform public work pursuant to Section 1725.5. (f) A contract entered into with any contractor or subcontractor in violation of subdivision (a) shall be subject to cancellation, provided that a contract for public work shall not be unlawful, void, or voidable solely due to the failure of the awarding body, contractor, or any subcontractor to comply with the requirements of Section 1725.5 or this section. (g) If the Labor Commissioner or his or her designee determines that a contractor or subcontractor engaged in the performance of any public work contract without having been registered in accordance with this section, the contractor or subcontractor shall forfeit, as a civil penalty to the state, one hundred dollars ($100) for each day of work performed in violation of the registration requirement, not to exceed an aggregate penalty of eight thousand dollars ($8,000) in addition to any penalty registration fee assessed pursuant to clause (ii) of subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5.
(h)(1) In addition to, or in lieu of, any other penalty or sanction authorized pursuant to this chapter, a higher tiered public works contractor or subcontractor who is found to have entered into a subcontract with an unregistered lower tier subcontractor to perform any public work in violation of the requirements of Section 1725.5 or this section shall be subject to forfeiture, as a civil penalty to the state, of one hundred dollars ($100) for each day the unregistered lower tier subcontractor performs work in violation of the Packet Pg. 989
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registration requirement, not to exceed an aggregate penalty of ten thousand dollars ($10,000).
(2) The Labor Commissioner shall use the same standards specified in subparagraph (A) of paragraph (2) of subdivision (a) of Section 1775 when determining the severity of the violation and what penalty to assess, and may waive the penalty for a first time violation that was unintentional and did not hinder the Labor Commissioner’s ability to monitor and enforce compliance with the requirements of this chapter. (3) A higher tiered public works contractor or subcontractor shall not be liable for penalties assessed pursuant to paragraph (1) if the lower tier subcontractor’s performance is in violation of the requirements of Section 1725.5 due to the revocation of a previously approved registration.
(4) A subcontractor shall not be liable for any penalties assessed against a higher tiered public works contractor or subcontractor pursuant to paragraph (1). A higher tiered public works contractor or subcontractor may not require a lower tiered subcontractor to indemnity or otherwise be liable for any penalties pursuant to paragraph (1). (i) The Labor Commissioner or his or her designee shall issue a civil wage and penalty assessment, in accordance with the provisions of Section 1741, upon determination of penalties pursuant to subdivision (g) and subparagraph (B) of paragraph (1) of subdivision (h). Review of a civil wage and penalty assessment issued under this subdivision may be requested in accordance with the provisions of Section 1742. The regulations of the Director of Industrial Relations, which govern proceedings for review of civil wage and penalty assessments and the withholding of contract payments under Article 1 (commencing with Section 1720) and Article 2 (commencing with Section 1770), shall apply.
(j)(1) Where a contractor or subcontractor engages in the performance of any public work contract without having been registered in violation of the requirements of Section 1725.5 or this section, the Labor Commissioner shall issue and serve a stop order prohibiting the use of the unregistered contractor or the unregistered subcontractor on all public works until the unregistered contractor or unregistered subcontractor is registered. The stop order shall not apply to work by registered contractors or subcontractors on the public work.
(2) A stop order may be personally served upon the contractor or subcontractor by either of the following methods:
(A) Manual delivery of the order to the contractor or subcontractor personally. (B) Leaving signed copies of the order with the person who is apparently in charge at the site of the public work and by thereafter mailing copies of the order by first class mail, postage prepaid to the contractor or subcontractor at one of the following:
(i) The address of the contractor or subcontractor on file with either the Secretary of State or the Contractors’ State License Board.
(ii) If the contractor or subcontractor has no address on file with the Secretary of State or the Contractors’ State License Board, the address of the site of the public work.

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(3) The stop order shall be effective immediately upon service and shall be subject to appeal by the party contracting with the unregistered contractor or subcontractor, by the unregistered contractor or subcontractor, or both. The appeal, hearing, and any further review of the hearing decision shall be governed by the procedures, time limits, and other requirements specified in subdivision (a) of Section 238.1. (4) Any employee of an unregistered contractor or subcontractor who is affected by a work stoppage ordered by the commissioner pursuant to this subdivision shall be paid at his or her regular hourly prevailing wage rate by that employer for any hours the employee would have worked but for the work stoppage, not to exceed 10 days. (k) Failure of a contractor or subcontractor, owner, director, officer, or managing agent of the contractor or subcontractor to observe a stop order issued and served upon him or her pursuant to subdivision (j) is guilty of a misdemeanor punishable by imprisonment in county jail not exceeding 60 days or by a fine not exceeding ten thousand dollars ($10,000), or both.
(l) This section shall apply to any bid proposal submitted on or after March 1, 2015, and any contract for public work entered into on or after April 1, 2015. This section shall also apply to the performance of any public work, as defined in this chapter, on or after January 1, 2018, regardless of when the contract for public work was entered. (m) Penalties received pursuant to this section shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be used only for the purposes specified in that section.
(n) This section shall not apply to work performed on a public works project of twentyfive thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.” d. Labor Code section 1771.4 states the following:
“(a) All of the following are applicable to all public works projects that are otherwise subject to the requirements of this chapter:
(1) The call for bids and contract documents shall specify that the project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. (2) The awarding body shall post or require the prime contractor to post job site notices, as prescribed by regulation.
(3) Each contractor and subcontractor shall furnish the records specified in Section 1776 directly to the Labor Commissioner, in the following manner:
(A) At least monthly or more frequently if specified in the contract with the awarding body.
(B) In a format prescribed by the Labor Commissioner.
(4) If the contractor or subcontractor is not registered pursuant to Section 1725.5 and is performing work on a project for which registration is not required because of subdivision (f) of Section 1725.5, the unregistered contractor or subcontractor is not Packet Pg. 991
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required to furnish the records specified in Section 1776 directly to the Labor Commissioner but shall retain the records specified in Section 1776 for at least three years after completion of the work.
(5) The department shall undertake those activities it deems necessary to monitor and enforce compliance with prevailing wage requirements.
(b) The Labor Commissioner may exempt a public works project from compliance with all or part of the requirements of subdivision (a) if either of the following occurs:
(1) The awarding body has enforced an approved labor compliance program, as defined in Section 1771.5, on all public works projects under its authority, except those deemed exempt pursuant to subdivision (a) of Section 1771.5, continuously since December 31, 2011.
(2) The awarding body has entered into a collective bargaining agreement that binds all contractors performing work on the project and that includes a mechanism for resolving disputes about the payment of wages.
(c) The requirements of paragraph (1) of subdivision (a) shall only apply to contracts for public works projects awarded on or after January 1, 2015. (d) The requirements of paragraph (3) of subdivision (a) shall apply to all contracts for public work, whether new or ongoing, on or after January 1, 2016.” B. STATE PUBLIC WORKS APPRENTICESHIP REQUIREMENTS

1. State Public Works Apprenticeship Requirements:
a. The Contractor is responsible for compliance with Labor Code section 1777.5 and the California Code of Regulations, title 8, sections 230 – 230.2 for all apprenticeable occupations (denoted with “#” symbol next to craft name in DIR Prevailing Wage Determination), whether employed by the Contractor, subcontractor, vendor or consultant. Included in these requirements is (1) the Contractor’s requirement to provide notification (i.e. DAS-140) to the appropriate apprenticeship committees; (2) pay training fund contributions for each apprenticeable hour employed on the Contract; and (3) utilize apprentices in a minimum ratio of not less than one apprentice hour for each five journeyman hours by completion of Contract work (unless an exception is granted in accordance with Labor Code section 1777.5) or request for the dispatch of apprentices. b. Any apprentices employed to perform any of the Scope of Work shall be paid the standard wage to apprentices under the regulations of the craft or trade for which such apprentice is employed, and such individual shall be employed only for the work of the craft or trade to which such individual is registered. Only apprentices, as defined in California Labor Code section 3077, who are in training under apprenticeship standards and written apprenticeship agreements under California Labor Code sections 3070 et seq. are eligible to be employed for the Scope of Work. The employment and training of each apprentice shall be in accordance with the provisions of the apprenticeship standards and apprentice agreements under which such apprentice is training.

2. Compliance with California Labor Code section 1777.5 requires all public works contractors to:
a. Submit Contract Award Information (DAS-140):

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i. Although there are a few exemptions (identified below), all Contractors, regardless of union affiliation, must submit contract award information when performing on a California public works project.
ii. The DAS-140 is a notification “announcement” of the Contractor’s participation on a public works project—it is not a request for the dispatch of an apprentice. iii. Contractors shall submit the contract award information (you may use form DAS 140) within 10 days of the execution of the prime contract or subcontract, but in no event later than the first day in which the Contractor has workers employed on the public work.
iv. Contractors who are already approved to train apprentices (i.e. check “Box 1” on the DAS-140) shall only be required to submit the form to their approved program.
v. Contractors who are NOT approved to train apprentices (i.e. those that check either “Box 2” or “Box 3” on the DAS-140) shall submit the DAS-140 TO EACH of the apprenticeship program sponsors in the area of your public works project. For a listing of apprenticeship programs see
http://www.dir.ca.gov/Databases/das/pwaddrstart.asp.
b. Employ Registered Apprentices
i. Labor Code section 1777.5 requires that a contractor performing work in an “apprenticeable” craft must employ one (1) hour of apprentice work for every five (5) hours performed by a journeyman. This ratio shall be met prior to the Contractor’s completion of work on the project. “Apprenticeable” crafts are denoted with a pound symbol “#” in front of the craft name on the prevailing wage determination.
ii. All Contractors who do not fall within an exemption category (see below) must request for dispatch of an apprentice from an apprenticeship program (for each apprenticeable craft or trade) by giving the program actual notice of at least 72 hours (business days only) before the date on which apprentices are required. iii. Contractors may use the “DAS-142” form for making a request for the dispatch of an apprentice.
iv. Contractors who are participating in an approved apprenticeship training program and who did not receive sufficient number of apprentices from their initial request must request dispatch of apprentices from ALL OTHER apprenticeship committees in the project area in order to fulfill this requirement. v. Contractor should maintain and submit proof (when requested) of its DAS-142 submittal to the apprenticeship committees (e.g. fax transmittal confirmation). A Contractor has met its requirement to employ apprentices only after it has successfully made a dispatch request to all apprenticeship programs in the project area.
vi. Only “registered” apprentices may be paid the prevailing apprentice rates and must, at all times work under the supervision of a Journeyman (Cal. Code Regs., tit 8, § 230.1).
c. Make Training Fund Contributions
i. Contractors performing in apprenticeable crafts on public works projects, must make training fund contributions in the amount established in the prevailing wage rate publication for journeymen and apprentices.
ii. Contractors may use the “CAC-2” form for submittal of their training fund contributions.
iii. Contractors who do not submit their training fund contributions to an approved apprenticeship training program must submit their contributions to the California Apprenticeship Council (CAC), PO Box 420603, San Francisco, CA 94142-0603.

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iv. Training fund contributions to the CAC are due and payable on the 15th day of the month for work performed during the preceding month. v. The “training” contribution amount identified on the prevailing wage determination shall not be paid to the worker, unless the worker falls within one of the exemption categories listed below.

3. Exemptions to Apprenticeship Requirements:
a. The following are exempt from having to comply with California apprenticeship requirements. These types of contractors do not need to submit a DAS-140, DAS-142, make training fund contributions, or utilize apprentices:
i. When the Contractor holds a sole proprietor license (“Owner-Operator”) and no workers were employed by the Contractor. In other words, the contractor performed the entire work from start to finish and worked alone. ii. Contractors performing in non-apprenticeable crafts. “Apprenticeable” crafts are denoted with a pound symbol “#” in front of the craft name on the prevailing wage determination.
iii. When the Contractor has a direct contract with the Public Agency that is under $30,000.
iv. When the project is 100% federally-funded and the funding of the project does not contain any city, county, and/or state monies (unless the project is administered by a state agency in which case the apprenticeship requirements apply).
v. When the project is a private project not covered by the definition of public works as found in Labor Code section 1720.

4. Exemption from Apprenticeship Rations:
a. The Joint Apprenticeship Committee shall have the discretion to grant a certificate, which shall be subject to the approval of the Administrator of Apprenticeship, exempting the Contractor from the 1-to-5 ratio set forth in this Section when it finds that any one of the following conditions are met:
i. Unemployment for the previous three-month period in such area exceeds an average of fifteen percent (15%); or
ii. The number of apprentices in training in such area exceeds a ratio of 1-to-5 in relation to journeymen; or
iii. The Apprenticeable Craft or Trade is replacing at least one-thirtieth (1/30) of its journeymen annually through apprenticeship training, either on a statewide basis or on a local basis; or
iv. If assignment of an apprentice to any work performed under the Contract Documents would create a condition which would jeopardize such apprentice's life or the life, safety or property of fellow employees or the public at large, or if the specific task to which the apprentice is to be assigned is of such a nature that training cannot be provided by a journeyman.
b. When such exemptions from the 1-to-5 ratio between apprentices and journeymen are granted to an organization which represents contractors in a specific trade on a local or statewide basis, the member contractors will not be required to submit individual applications for approval to local Joint Apprenticeship Committees, provided they are already covered by the local apprenticeship standards.

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5. Contractor’s Compliance:
a. The responsibility of compliance with this Section for all Apprenticeable Trades or Crafts is solely and exclusively that of the Contractor. All decisions of the Joint Apprenticeship Committee(s) under this Section are subject to the provisions of California Labor Code section 3081 and penalties are pursuant to Labor Code section 1777.7 and the determination of the Labor Commissioner.

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EXHIBIT A – SCOPE OF EXPENDITURES
APPLIES TO AGREEMENT ARPA21-PRJC-018-SAN BETWEEN SAN BERNARDINO

COUNTY AND CITY OF SAN BERNARDINO RELATED TO THE CORONAVIRUS LOCAL

FISCAL RECOVERY FUND FOR LOCAL GOVERNMENTS

1. The following is the mutually agreed upon scope of expenditures to be funded by the American Rescue Plan Act of 2021 (ARPA) Coronavirus Local Fiscal Recovery Fund (CLFRF) received by San Bernardino County:

The renovation of Speicher Memorial Park will assist in building a stronger neighborhood community and allow for outdoor recreation and socialization that can help mitigate the spread of COVID-19. Speicher Memorial Park and the surrounding community is located in Qualified Census Tract 06071007408, which has seen a disproportionate negative economic impact as a result of the COVID-19 pandemic. During the COVID-19 pandemic, urban park and recreational facility use saw a decline among lower-income individuals. This decline and contribute to a sedentary lifestyle, which is a risk factor for chronic diseases and more severe COVID-19 outcomes.

The renovations at Speicher Memorial Park serve to increase the surrounding community’s outdoor physical activity, which plays an important role in improving health outcomes. Currently, the City has only one lighted multipurpose field; the installation of a lighting system at Speicher Memorial Park will allow the City to encourage and accommodate a growing list of youth sports groups from the surrounding community.

The new bleachers will replace old, deteriorated ones that have limited seating capacity, allowing the park’s fields to accommodate more socially distanced seating opportunities.

Coupled with the improved amenities and field renovations, the park will encourage more members of the community to engage in outdoor physical activities. As a result, the renovation of Speicher Memorial Park is consistent with the Department of the Treasury’s guidance regarding the use of Coronavirus State and Local Fiscal Recovery Funds. In its Final Rule, the Department of the Treasury states, “investments in parks, public plazas, and other public outdoor recreation spaces may be responsive to the needs of disproportionately impacted communities by promoting healthier living environments” (87 Fed. Reg. 4372).

The public health impacts of the COVID-19 pandemic also encompass more than the disease itself. The U.S. Department of the Treasury recognizes that COVID-19 has had a substantial impact on mental health and public safety challenges like violent crime.

These challenges are correlated with a neighborhood’s build environment and features and have disproportionately impacted low-income communities. Speicher Memorial Park is in the Eastside community of San Bernardino, which is impacted by violent gang activity and other public safety challenges. Investing in neighborhood features, such as Speicher Memorial Park, will promote improved health and safety outcomes and help respond to the pre-existing disparities that contributed to COVID-19’s disproportionate impacts on low-income communities.

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2. Not-to-exceed amount of expenditures described in 1, above, obligated during the period of June 1, 2022 and June 30, 2024 and expanded on or before December 31, 2026 is $950,000.

3. The following is the list of projected expenditures that will be funded by the CLFRF and the scope identified in 1, above:

Expenditure Type (e.g., Payroll) Projected Expenditures* Demolishing and replacing existing building $250,000
Upgrade Lights $240,000
New Bleachers $100,000
Park Amenities $10,000
Field Renovation $250,000
Design $100,000
Total Expenditure $950,000
*Note: Projected expenditures may differ from the actual costs but a total amount of expenditure shall not exceed the amount as specified in Section 2, above.

4. The Contractor is responsible for ensuring that any procurement using CLFRF funds, or payments under procurement contracts using such funds are consistent with the procurement standards set forth in the Uniform Guidance at Title 2 C.F.R. Sections 200.317 - 200.327, as applicable. The Uniform Guidance establishes in Title 2 C.F.R.

Section 200.319 that all procurement transactions for property or services must be conducted in a manner providing full and open competition, consistent with standards outlined in Title 2 C.F.R. Section 200.320. If the full and open procurement is not applicable, provide a reason for its exemption:

Confirmed – No Exemption Identified
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: September 21, 2022
To: Honorable Mayor and City Council Members
From: Robert D. Field, City Manager
By: Barbara Whitehorn, Agency Director of Administrative Services Department: Human Resources
Subject: Side Letter Agreements Between the City of San Bernardino and All Bargaining Groups
Recommendation
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2022-193 approving a Side Letter Agreement to the Employment Agreements between the City of San Bernardino and the Executive Team, San Bernardino Police Management Association (SBPMA), San Bernardino Police Officers Association (SBPOA), San Bernardino Police Dispatch Association (SBPDA), San Bernardino Confidential and Management Association (SBCMA), Middle Management and General Unit, to include Juneteenth as an observed holiday.

Background
Executive Team
On March 16, 2022, the Mayor and City Council adopted Resolution No. 2022-59, approving the Executive Compensation and Benefits Plan.

San Bernardino Police Management Association (SBPMA)
On November 16, 2015, the Mayor and City Council adopted Resolution No. 2015-255, approving the SBPMA Compensation and Benefits Plan.

San Bernardino Police Officers Association (SBPOA)
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On March 2, 2022, the Mayor and City Council adopted Resolution No. 2022-43, approving a side letter agreement to the Memorandum of Understanding (MOU) between the City and the SBPOA, amending the Police Officers Standards Training (POST) Advanced Certificate pay.

On October 20, 2021, the Mayor and City Council adopted Resolution No. 2021 -251, approving the MOU between the City and SBPOA.

On June 17, 2020, the Mayor and City Council adopted Resolution No. 2020-132, approving a side letter agreement to the MOU between the City and the SBPOA, amending work schedules.

On December 19, 2018, the Mayor and City Council adopted Resolution No. 2018-287, approving a side letter agreement to the MOU between the City and the SBPOA, adding Watch Commander Compensation.

San Bernardino Police Dispatch Association (SBPDA)
On February 2, 2022, the Mayor and City Council adopted Resolution No. 2022-31, approving the MOU between the City and SBPDA employees.

San Bernardino Confidential and Management Association (SBCMA) On November 3, 2021, the Mayor and City Council adopted Resolution No. 2021-269, approving the SBCMA Compensation and Benefits Plan.

Middle Management
On November 3, 2021, the Mayor and City Council adopted Resolution No. 2021-268, approving the MOU between the City and Middle Management Employees.

General Unit
On May 18, 2022, the Mayor and City Council adopted Resolution No. 2022-99, approving the side letter agreement to the MOU between the City and the General Unit, adding shift differential pay.

On November 3, 2021, the Mayor and City Council adopted Resolution No. 2021-268, approving the MOU between the City and General Unit Employees.

Discussion
Juneteenth commemorates June 19, 1865, when Major General Gordon Granger arrived in Galveston, Texas, and read a federal order abolishing the institution of slavery in the state. The moment was significant. Texas had been the last of the Confederate states in which enslavement continued, despite President Abraham Lincoln's Emancipation Proclamation to end slavery in 1863 and despite the end of the Civil War on April 9, 1865. Those who were freed from bondage celebrated their long-overdue emancipation on June 19th.

On Juneteenth, we remember our extraordinary capacity to heal, to hope, and to Packet Pg. 999
emerge from our worst moments as a stronger, freer, and more just Nation. It is a day to celebrate the power and resilience of Black Americans, who have endured generations of oppression in the ongoing journey toward equal justice, equal dignity, equal rights, and equal opportunity in America.

U.S. President Biden signed the Juneteenth National Independence Day Act in 2021, making it a federal holiday. Accordingly, staff recommends adding Juneteenth as an observed holiday for all City employees.
2021-2025 Key Strategic Targets and Goals
Authorization of these side letter agreements aligns with Key Target No. 2a: Focused, Aligned Leadership and Unified Community by building a culture that attracts, retains, and motivates the highest quality talent.

Fiscal Impact
There is no fiscal impact to the City for establishing Juneteenth as an observed holiday.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2022-193 approving a Side Letter Agreement to the Employment Agreements between the City of San Bernardino and the Executive Team, San Bernardino Police Management Association (SBPMA), San Bernardino Police Officers Association (SBPOA), San Bernardino Police Dispatch Association (SBPDA), San Bernardino Confidential and Management Association (SBCMA), Middle Management and General Unit, to include Juneteenth as an observed holiday.

Attachments
Attachment 1 Resolution 2022-193
Attachment 2 Resolution 2022-193; Exhibit A – Side Letter Agreements with all Bargaining Groups
Ward
All Wards
Synopsis of Previous Council Actions
March 16, 2022 Mayor and City Council adopted Resolution No. 2022-59, approving the Executive Compensation and Benefits Plan
February 2, 2022 Mayor and City Council adopted Resolution No. 2022- 31, approving the MOU between the City of San Bernardino and SBPDA employees.

October 20, 2021 Mayor and City Council adopted Resolution No. 2021-251, approving the MOU between the City of San Bernardino and the San Bernardino Police Officers Association (SBPOA)
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effective July 1, 2020 through June 30,2025.

November 3, 2021 Mayor and City Council adopted Resolution No. 2021-269, approving the SBCMA Compensation and Benefits Plan.

November 3, 2021 Mayor and City Council adopted Resolution No. 2021-268, approving the General Unit and Middle Management
Employees MOU.

November 16, 2015 Mayor and City Council adopted Resolution No. 2015-255, approving the San Bernardino Police Management
Association Employee Compensation and Benefits Plan.

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Resolution No. 2022-
Resolution 2022-

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Mayor and City CouncilSeptember 21, 2022

Mayor and City Council
September 21, 2022