1 PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND WOMEN’S INSPIRATIONAL NETWORK
This Agreement is made and entered into as of December 6th, 2023 by and between the City of San Bernardino, a charter city and municipal corporation organized and operating under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, CA 92401 (“City”), and Women’s Inspirational Network, a non-profit public benefit corporation with its principal place of business at 1505 W. Highland Ave. Ste 6, City of San Bernardino, CA 92411 (hereinafter referred to as “Consultant” or “Sub-Recipient”). City and Consultant are hereinafter sometimes referred to individually as “Party” and collectively as the “Parties.”
RECITALS
A. City is a public agency of the State of California and is in need of professional services for the following project:
Youth Outreach and Development Services (hereinafter referred to as “the Project”).
B. Consultant is duly licensed and has the necessary qualifications to provide such services.
C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
AGREEMENT
1. Incorporation of Recitals. The recitals above are true and correct and are hereby incorporated herein by this reference.
2. Services. Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.”
3. Professional Practices. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel identified in their proposal. Consultant warrants that Consultant is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant’s performance of this Agreement. Consultant further represents that no City employee will provide any services under this Agreement.
4. Compensation.
a. Subject to paragraph 4(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “B.” 2 b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of $1,500,000. This amount is to cover all related costs, and the City will not pay any additional fees for printing expenses.
Consultant may submit invoices to City for approval. Said invoice shall be based on the total of all Consultant’s services which have been completed to City’s sole satisfaction.
City shall pay Consultant’s invoice within forty-five (45) days from the date City receives said invoice. The invoice shall describe in detail the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as “Additional Services” and shall identify the number of the authorized change order, where applicable, on all invoices. c. Budget. Consultant agrees to provide the City with an annual budget, as described in “Exhibit B,” on April 1st for every year this Agreement is in effect.
Annual budgets for the remaining years of this Agreement may be adjusted to reflect changes in the Scope of Services. Such adjustments shall only be made with the approval of the City and shall not exceed the total amount paid for services, as defined in paragraph 4(b) above.
5. Additional Work. If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
a. Adjustments. No retroactive price adjustments will be considered.
Additionally, no price increases will be permitted during the first year of this Agreement, unless agreed to by City and Consultant in writing.
6. Term. This Agreement shall commence on December 6, 2023, through April 30, 2024, unless the Agreement is previously terminated as provided for herein (“Term”). The City may, in its sole and absolute discretion, exercise up to four single-year renewal options to extend the Term of the Agreement.
7. Maintenance of Records; Audits.
a. Subject to paragraph 7(c), records of Consultant’s services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City for inspection and/or audit at mutually convenient times for a period of four (4) years from the Effective Date. b. Subject to paragraph 7(c), books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City. 3 c. Consultant hereby agrees to maintain all books and records required to be retained under paragraphs 7(a) and 7(b) above for the greater of (i) the time periods set forth in such paragraphs or (ii) three (3) years after the acceptance of the final grant project audit under the Grant Agreement between the City and the Board of State and Community Corrections.
8. Time of Performance. Consultant shall perform its services in a prompt and timely manner and shall commence performance upon receipt of written notice from the City to proceed. Consultant shall complete the services required hereunder within Term.
9. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Consultant’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety. b. Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Delays shall not entitle Consultant to any additional compensation regardless of the Party responsible for the delay.
c. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
10. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements and any and all applicable Proposition 64 Public Health and Safety (Prop 64 PH&S) Grant Program requirements, as set forth in and/or referenced in Exhibits C and D to this Agreement, which are attached hereto and incorporated herein by this reference (the “Grant Requirements”). Additionally, Consultant shall assist the City, as requested, in complying with all such Grant Requirements. b. If required, Consultant shall assist the City, as requested, in obtaining 4 and maintaining all permits required of Consultant by federal, state and local regulatory agencies.
c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.
11. Standard of Care. Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. Consultant’s performance shall conform in all material respects to the requirements of the Scope of Work.
12. Conflicts of Interest. During the term of this Agreement, Consultant shall at all times maintain a duty of loyalty and a fiduciary duty to the City and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the City.
13. City Business Certificate. Consultant shall, prior to execution of this Agreement, obtain and maintain during the term of this Agreement a valid business registration certificate from the City pursuant to Title 5 of the City’s Municipal Code and any and all other licenses, permits, qualifications, insurance, and approvals of whatever nature that are legally required of Consultant to practice his/her profession, skill, or business.
14. Assignment and Subconsultant. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.
15. Independent Consultant. Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. Any personnel performing the work governed by this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance under this Agreement and as required by law.
Consultant shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance.
5 16. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. Additional Insured
The City of San Bernardino, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Consultant’s and its subconsultants’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents. b. Commercial General Liability
(i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City.
(ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following:
Insurance Services Office Commercial General Liability
coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX)
exclusion deleted
(7) Contractual Liability with respect to this Contract (8) Broad Form Property Damage
(9) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(v) The policy shall give City, its elected and appointed officials, officers, employees, agents, and City-designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements 6 providing the exact same coverage.
(vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured.
c. Automobile Liability
(i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. (ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(iii) The policy shall give City, its elected and appointed officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. d. Workers’ Compensation/Employer’s Liability
(i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section. e. Professional Liability (Errors and Omissions)
At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance 7 appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. f. Privacy/Network Security (Cyber)
At all times during the performance of the work under this Agreement, the Consultant shall maintain privacy/network security insurance for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and the (4) introduction, implantation or spread of malicious software code, in a form and with insurance companies acceptable to the City.
At all times during the performance of the work under this Agreement, the Consultant shall maintain Aviation and/or Drone Liability insurance for bodily injury and property damage, in a form and with insurance companies acceptable to the City. h. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/$4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $1,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
Cyber Liability $1,000,000 per occurrence and
aggregate
(ii) Defense costs shall be payable in addition to the limits. (iii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a 8 waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement.
i. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. j. Policy Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of the premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to provide waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
9 (v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. k. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or
companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
l Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including, but not limited to, the provisions concerning indemnification. (ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. m. Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact 10 same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.
17. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with counsel reasonably approved by the City), indemnify and hold the City, its elected and appointed officials, officers, employees, agents, and authorized volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project, or this Agreement, including without limitation the payment of all damages, expert witness fees, attorneys’ fees and other related costs and expenses. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, the City Council, members of the City Council, its employees, or authorized volunteers. Consultant’s indemnification obligation shall survive the expiration or earlier termination of this Agreement. b. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant in the performance of the services or this Agreement, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
18. Verification of Employment Eligibility. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same.
19. Laws and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of San Bernardino, State of California.
20. Termination or Abandonment
11 a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days’ written notice to Consultant.
In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.
21. Attorneys’ Fees. In the event that litigation is brought by any Party in connection with this Agreement, the prevailing Party shall be entitled to recover from the opposing Party all costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing Party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary, and expenses of the City Attorney’s Office in enforcing this Agreement on behalf of the City shall be considered as “attorneys’ fees” for the purposes of this Agreement.
22. Responsibility for Errors. Consultant shall be responsible for its work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City’s representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant’s professional services occurs, Consultant shall, at no cost to City, provide all other services necessary to rectify and correct the matter to the sole satisfaction of the City and to participate in any meeting required with regard to the correction.
23. Prohibited Employment. Consultant shall not employ any current employee of City to perform the work under this Agreement while this Agreement is in effect.
24. Costs. Each Party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
25. Documents. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon 12 payment in full for the services described in this Agreement, be furnished to and become the property of the City.
26. Organization. Consultant shall assign Che Wright as Project Manager.
The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.
27. Limitation of Agreement. This Agreement is limited to and includes only the work included in the Project described above.
28. Notice. Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to the following addresses and shall be effective upon receipt thereof:
CITY:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Manager
With Copy To:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
CONSULTANT:
Women’s Inspirational Network
1505 W. Highland Ave. Ste 6
San Bernardino, CA 92411
Attn: Che Wright
29. Third Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.
30. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
31. Entire Agreement. This Agreement, including the exhibits referenced herein, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each Party acknowledges that no representations, inducements, promises, or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This is an integrated Agreement. 13 32. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect.
33. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.
34. Non-Waiver. The delay or failure of either Party at any time to require performance or compliance by the other Party of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance.
No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
35. Time of Essence. Time is of the essence for each and every provision of this Agreement.
36. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain, or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
37. Amendments. Only a writing executed by all of the Parties hereto or their respective successors and assigns may amend this Agreement.
38. City’s Right to Employ Other Consultants. City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.
39. Prohibited Interests. Consultant maintains and warrants that it has neither employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
14 40. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one single Agreement.
41. Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by doing so, the Parties hereto are formally bound to the provisions of this Agreement.
42. Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature.
43. Disciplinary Actions in Phases for Non-Performance. Failure for Consultant to perform its obligations under this Agreement or comply with the Performance Indicators may result in disciplinary action as follows:
(i) Informal Warning (Written or Verbal). Consultant is given a warning in regards to non-performance. If a verbal warning is issued, it will be confirmed with an electronic correspondence to the Consultant.
(ii) Formal Written Warning. A formal written warning is issued to Consultant pursuant to Section 29 of this Agreement. Consultant must respond within 5 to 10 days of receipt of the formal warning. Upon response from the Consultant, Consultant shall be provided a reasonable time to make corrections to their performance.
This time period
(iii) Formal Penalty Issued. A penalty of 15% of the Consultant’s current invoice amount or annual contract amount is deducted for non-performance after previous warnings have been issued.
(iv) Termination of Contract. If the performance has not been corrected after all warnings and previous penalties have been exhausted, City may terminate the contract pursuant to Section 21 of this Agreement. [SIGNATURES ON FOLLOWING PAGE]
15 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND OPERATION NEW HOPE
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF SAN BERNARDINO
APPROVED BY:
Charles Montoya
City Manager
ATTESTED BY:
Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
CONSULTANT
Signature
Name
Title
16 EXHIBIT A
SCOPE OF SERVICES FOR CITY OF SAN BERNARDINO
December 6, 2023, to April 30, 2024
Consultant Activities:
Agency Name: Women’s Inspirational Network Fiscal Year: 2023-2024 Program Name: Cannabis Awareness, Responsibility, and Education for Students Service Area: City-wide
1. Expectation(s): The following are annual expectations and subject to change based on agreement between the City of San Bernardino and Women’s Inspirational Network provided the changes continue to support the intent of the Proposition 64 Grant Cohort 3. •Engage a minimum of 500 youth in outreach programs
designed to educate youth about the dangers of
cannabis use and substance abuse and empower youth
to make healthy productive life decisions.
•Organize at least 10 workshops and community events
targeting youth participation.
•Gather relevant program data identified by the Police
Department to support the grant to analyze and measure
program effectiveness and progress.
•Submit quarterly progress reports in a format identified by the Police Department.
•Solicit additional CBOs to implement Cannabis
Education and Prevention curriculum in their programs.
•Act as lead CBO to provide oversight and accountability of additional CBOs through subcontracts to provide
services that support the program.
2. Outcome(s): 1. Increase youth participation in the program annually.
2. Educate youth about the dangers of cannabis and
substance abuse.
3. Prevent youth cannabis, substance abuse, and addiction.
4. Increase the number of youth participants in the youth CARES Pledge Commitment.
17 3. Activities: Activities for Programming
Increase youth and young adult participation in outreach programs. (All Participants)
We will implement targeted outreach conferences, workshops, rallies, and community events to engage more youth and
young adults in our programs. By increasing participation, we can effectively reach and educate a more sizable portion of our community’s youth and young adult population.
Underage Peer Advocacy Prevention (5th- 6th Grade)
We will support forming advocacy clubs within schools and community centers, empowering youth to advocate for
cannabis and substance abuse prevention among their peers.
Educate Youth About the Dangers of Substance Abuse (7th – 8th Grade)
Through evidence-based educational programs, workshops, and awareness campaigns, we will equip youth and young
adults with the knowledge and resources to make informed decisions regarding cannabis use. These efforts will focus on raising awareness about the risks and consequences
associated with cannabis and substance abuse.
Youth Driven Community Think-Tanks (9th-12th Grade)
Encouraging our youth to actively participate in shaping their community's policies and initiatives is crucial. We will establish youth-driven think tanks to enable youth to voice their concerns, propose solutions, and influence decision-making processes.
Educate Young Adults about the Dangers of Substance
Abuse: (Community College)
Through evidence-based educational programs, workshops, and awareness campaigns, we will equip young adults with the knowledge and resources to make informed decisions
regarding cannabis and substance use. These efforts will focus on raising awareness about the risks and consequences associated with cannabis and substance abuse.
Youth Cannabis Sobriety Pledge
An essential part of our program activities involves encouraging youth to make pledges, committing to refraining from cannabis use until they reach the state’s legal age of consumption. 18 Non-Allowable Activities:
Participants may not partake in activities that require high levels of safety precautions.
Participants may not partake in activities that require specialized training unless that training is provided by the organization.
Participant Eligibility Requirements:
All participants will be between 10-21 years of age.
Sub-recipients are required to establish a process to properly verify the eligibility of a candidate before participating in the program.
Data Collection & Reporting Requirements:
The following data must be collected and reported, on provided reporting workbook template, to the City of San Bernardino on a quarterly basis according to Data Reporting Schedule below:
1. Participant Eligibility Data
2. Participant Demographic/Contact Information
3. Entrance and Exit Interview Data (As developed by the Police Department)
4. Program Specific Data (As developed by the Contractor)
5. Participant Pledge Commitment Participation
6. Success Stories
7. Participant Hours
The City of San Bernardino will provide the template to withhold said metrics following the execution of this agreement. These metrics are subject to change, depending on the direction given from the parent granting agency, or requirements required by the City of San Bernardino to report: The subrecipient is required to retain program documentation for a period of 5 years, following program completion.
Data Reporting Schedule:
Data Reporting Period Due Date
May 1 ,2023 to June 30, 2023 July 15, 2023
July 1, 2023 to September 30, 2023 October 15, 2023
October 1, 2023 to December 31, 2023 January 15, 2024
January 1, 2024 to March 31, 2024 April 15, 2024
April 1, 2024 to June 30, 2024 July 15, 2024
July 1, 2024 to September 30, 2024 October 15, 2024
October 1, 2024 to December 31, 2024 January 15, 2025
19 January 1, 2025 to March 31, 2025 April 15, 2025
April 1, 2025 to June 30, 2025 July 15, 2025
July 1, 2025 to September 30, 2025 October 15, 2025
October 1, 2026 to December 31, 2026 January 15, 2026
January 1, 2026 to March 31, 2026 April 15, 2026
April 1, 2026 to June 30, 2026 July 15, 2026
July 1, 2026 to September 30, 2026 October 15, 2026
October 1, 2026 to December 31, 2026 January 15, 2027
January 1, 2027 to March 31, 2027 April 15, 2027
April 1, 2027 to June 30, 2027 July 15, 2027
July 1, 2027 to September 30, 2027 October 15, 2027
October 1, 2027 to December 31, 2027 January 15, 2027
January 1, 2028 to March 31, 2028 April 15, 2028
April 1, 2028 to April 30, 2028 May 15, 2028
Branding Requirements:
Consultant may be required to take part in Proposition 64 Grant Cohort 3 events/training as requested by the Police Department and be expected to use SBPD developed branding for the San Bernardino Youth Empowerment Initiative Program.
Right to Monitor and Audit
The City or any subdivision or appointee thereof, and the State of California or any subdivision or appointee thereof, including the Auditor General, shall have absolute right to monitor and audit all records, books, papers, documents, corporate minutes, and other pertinent items as requested, and shall have absolute right to observe the performance of Contractor in the delivery of services provided under this Contract. Contractors shall give full cooperation during any auditing or monitoring conducted.
Contractor shall cooperate with City in the implementation and evaluation of this Contract and comply with all reporting requirements established by City. 20 EXHIBIT B
FISCAL PROVISION & BUDGET
Invoicing Requirements:
This subgrant is a cost-reimbursement grant. The grant is invoiced quarterly in arrears.
As such, the subgrantee will be required to submit quarterly and timely invoices to the City for expenses already incurred for processing and payment. Subgrantee must adhere to the invoicing schedule listed within this agreement.
Request for reimbursements shall include an invoice addressed to 290 N. D Street. 3rd Floor, San Bernardino, CA 92401, the invoice workbook form provided to the subgrantee following the execution of this agreement and supporting general ledger back up documentation (detailed general ledger listings, labor distribution report, etc.). Request for reimbursements shall be submitted in PDF format via email to Michelle Alarcon at [email protected] according to the invoicing schedule. The City of San Bernardino will provide an invoicing template following the execution of this agreement.
Invoicing Schedule
Invoicing Period Due Date
May 1 ,2023 to June 30, 2023 July 15, 2023
July 1, 2023, to September 30, 2023 October 15, 2023
October 1, 2023, to December 31, 2023 January 15, 2024
January 1, 2024, to March 31, 2024 April 15, 2024
April 1, 2024, to June 30, 2024 July 15, 2024
July 1, 2024, to September 30, 2024 October 15, 2024
October 1, 2024, to December 31, 2024 January 15, 2025
January 1, 2025, to March 31, 2025 April 15, 2025
April 1, 2025, to June 30, 2025 July 15, 2025
July 1, 2025, to September 30, 2025 October 15, 2025
October 1, 2026, to December 31, 2026 January 15, 2026
January 1, 2026, to March 31, 2026 April 15, 2026
April 1, 2026, to June 30, 2026 July 15, 2026
21 July 1, 2026, to September 30, 2026 October 15, 2026 October 1, 2026, to December 31, 2026 January 15, 2027
January 1, 2027, to March 31, 2027 April 15, 2027
April 1, 2027, to June 30, 2027 July 15, 2027
July 1, 2027, to September 30, 2027 October 15, 2027
October 1, 2027, to December 31, 2027 January 15, 2027
January 1, 2028, to March 31, 2028 April 15, 2028
April 1, 2028, to April 30, 2028 May 15, 2028
22 Budget:
Annual Cost Grant Share In-Kind Description
A. Staff Salaries and
Benefits
$177,600 $6,000 Monthly Salary Projection for
Staffing:
Program Director (full time) $5,000
Operations Manager (full time) $4,000
Program Supervisor (full time) $3,300
Project Coordinator (part time) $2,500
In-Kind amount is for services
provided by Volunteer Staff
B. Staff Travel/
Training/Meetings
$3,000 $3,000 Women’s Inspirational Network will
allocate $3000 for matching in-kind
contributions.
C. Office Supplies &
Equipment
$5,000 Utilize supplies and equipment to
support program initiatives and
ensure adherence to program
compliance.
D. Telephone $1,992 To support W.I.N.’s efforts, $166
per month of in-kind support will be
allocated for office phone and
internet services, enabling effective
communication, and ensuring
internet access.
E. Rent: $5,040 Rental office space is $420 per
month.
F. Utilities: Included in rental expense.
G. Insurance: $2,500 W.I.N’s insurance policy premium
for coverage of commercial general
automobile, employer’s,
professional, and cyber liability will
total $2500 annually.
H. Accounting, Audit,
or Financial
Statements
$3,500 $2000 W.I.N estimates the accounting,
payroll processing, audits, and
bookkeeping statement fees to be
$5,500 total annually.
23 I. Program Participant
Incentives
$10,000 Youth and young adults between
the ages of 10 to 21 years old that
participate in the W.I.N program
activities will get incentives up to
$100 for their active involvement.
The minimum targeted goal for
successful engagement is 100
participants annually.
J. Community Based
Organization
Collaboration
$75,000 San Bernardino City Community-
Based Organization’s aligned with
W.I.N’s designed curriculum will
have the opportunity to collaborate
on our created programming geared
to provide engagement for youth
and young adults advocacy and
prevention education of cannabis
usage. Partnering CBOs will also
assist with the significant project
goal of collecting signed pledges
from their program participants
committed to not using cannabis
until the legal age of consumption.
K. Indirect Costs $18,360 The indirect project cost is necessary to the operation of the
organization and the performance of
the project will include health
insurance, equipment depreciation,
clerical services, human resources,
legal fees and program necessities.
TOTAL Budget $300,000 $12,992 If all funds aren’t expended each year the remaining funds will be
carried over into the next year and
the Department must approve their
proposed use.
24 EXHIBIT C
The Proposition 64 Public Health and Safety (Prop 64 PH&S) Grant Program, Cohort 3 Request for Proposals (RFP) includes requirements that apply to non-governmental organizations that receive funds under this grant. All grantees are responsible for ensuring that any contracted third parties continually meet these requirements as a condition of receiving Prop 64 PH&S funds. The RFP describes these requirements as follows.
Any non-governmental organization that receives Prop 64 PH&S grant funds (as either subgrantee or subcontractor) must:
•Have been duly organized, in existence, and in good standing for at least six months prior to the effective date of its fiscal agreement with the BSCC or with the Prop 64 PH&S grantee. Non-governmental entities that have recently reorganized or have merged with other qualified non-governmental entities that were in existence prior to the six-month date are also eligible, provided all necessary agreements have been executed and filed with the California Secretary of State prior to the start date of the grant agreement with the BSCC or the start date of the grantee-subcontractor fiscal agreement. •Be registered with the California Secretary of State’s Office, if applicable; •Have a valid business license, Employer Identification Number (EIN), and/or Taxpayer ID (if sole proprietorship);
•Have any other state or local licenses or certifications necessary to provide the services requested (e.g., facility licensing by the Department of Health Care Services), if applicable; and
•Have a physical address.
Consultant warrants and represents to the City that it complies with all of the foregoing requirements.
25 EXHIBIT D
In addition to the terms and conditions set forth in the Agreement, the Parties agree to all of the following terms required by BSCC in all subcontracts/Memorandums of Understanding (MOUs) that use these monies for grant-funded project activities and expenditures:
1.Non-Discrimination Clause and Civil Rights Compliance: During the performance of this Agreement, Contractor and its subcontractors shall not deny the contract’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they discriminate unlawfully 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, age, sexual orientation, or military and veteran status. Contractor shall insure that the evaluation and treatment of employees and applicants for employment are free of such discrimination.
Contractor and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12900 et seq.), the regulations promulgated thereunder (Cal. Code Regs., tit. 2, §11000 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Gov.
Code §§11135-11139.5), and the regulations or standards adopted by the awarding state agency to implement such article. Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the awarding state agency upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or Agency shall require to ascertain compliance with this clause.
Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. (See Cal. Code Regs., tit. 2, §11105.) Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Agreement.
2.Books and Records: Maintain adequate fiscal and project books, records, documents, and other evidence pertinent to the subcontractor’s work on the project in accordance with generally accepted accounting principles. Adequate supporting documentation shall be maintained in such detail so as to permit tracing transactions from the invoices to the accounting records, to the supporting documentation. These records shall be maintained for a minimum of three (3) years after the acceptance of the final grant project audit under the Grant Agreement and shall be subject to examination and/or audit by the BSCC or designees, state government auditors or designees, or by federal government auditors or designees.
26 3.Access to Books and Records: Make such books, records, supporting documentations, and other evidence available to the BSCC or designee, the State Controller’s Office, the Department of General Services, the Department of Finance, California State Auditor, and their designated representatives during the course of the project and for a minimum of three (3) years after acceptance of the final grant project audit. The Subcontractor shall provide suitable facilities for access, monitoring, inspection, and copying of books and records related to the grant-funded project.
4. Project Access: Grantee shall ensure that the BSCC, or any authorized representative, will have suitable access to project activities, sites, staff, and documents at all reasonable times during the grant period including those maintained by subcontractors. Access to program records will be made available by both the grantee and the subcontractors for a period of three (3) years following the end of the grant period.