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RESOLUTION NO. 2024-041
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
AUTHORIZING THE DIRECTOR OF FINANCE AND
ADMINISTRATIVE SERVICES TO APPROVE THE
REVENUE AND EXPENSE BUDGET ALLOCATIONS OF
$92,780 RESPECTIVELY FOR THE PAYMENT OF THE
CALIFORNIA STATE UNIVERSITY SAN BERNARDINO
(CSUSB) FIELD AND FACILITY RESERVATION FOR
FISCALINI FIELD 2018-2023 SEASONS ($87,500) AND THE
2023 SEASON NCAA WORLD SERIES TOURNAMENT
($5,280).
WHEREAS, the City of San Bernardino and Cal State University San Bernardino entered an agreement on November 7, 2023 for the reservation and payment of the Fiscalini Field for the CSUSB 2018-2023 seasons and the NCAA Tournament; and
WHEREAS, the City of San Bernardino revenue and expense budget allocations must be amended to receive and utilize the funds for their purpose.
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. Mayor and City Council hereby authorize the Director of Finance and Administrative Services to approve the revenue and expense allocations of $92,780 respectively for the payment of the California State University San Bernardino field and facility reservation for Fiscalini Field 2018-2023 seasons ($87,500) and he 2023 season NCAA World Series Tournament ($5,280).
SECTION 3.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 4.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.
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Resolution No. 2024-041
Resolution 2024-041
March 6, 2024
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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 6th day of March 2024.
Helen Tran, 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. 2024-041
Resolution 2024-041
March 6, 2024
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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. 2024-041, adopted at a regular meeting held on the 6 th day of March 2024 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 March 2024.
Genoveva Rocha, CMC, City Clerk
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1 CITY OF SAN BERNARDINO
LICENSE AGREEMENT
This LICENSE AGREEMENT (“Agreement”), is made this 7th day of November, 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 California State University, San Bernardino (“LICENSEE”) CITY and LICENSEE are sometimes individually referred to as “Party” and collectively as “Parties”.
RECITALS
A. CITY is the owner of certain real property at 1135 E. Highland Ave. San Bernardino, CA 92404 , commonly referred to as Fiscalini Field, and legally described in Exhibit “A” attached hereto and incorporated herein by reference. (the “Property’).
B. Licensee desires to obtain CITY’S permission to enter onto the Property, for the purposes specified in Item 2 of the Basic License Provisions.
C. The Parties wish to enter into this License whereby CITY will allow Licensee to enter onto the Property, on a temporary basis, in order to carry out the Cal State San Bernardino Baseball Program as more particularly described in Exhibit “B” attached here to and incorporated herein by reference.
NOW THEREFORE, CITY and LICENSEE do hereby agree as follows:
AGREEMENT
PART I. BASIC LICENSE PROVISIONS
1. Description of Licensed Property:
The CITY’s real property is in the County of San Bernardino, State of California, as more particularly described in the attached Exhibit “A”.
2. Use of Licensed Property:
For the use of the Licensed Property , as more particularly desc ribed in the attached Exhibits “A” and “B”.
3. Commencement Date: Date of the Agreement first specified above.
4. Term: The term of this agreement shall commence on September 1 st 2023 and end December 31, 2024 (the “Initial Term”) with the option of three (3) one year renewals (“Option Renewals”) upon mutual consent of the PARTIES.
5. Intentionally Omitted.
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2 6. Licensing Fee
(A) Annual License Fee: $19,250.00.
(1) Year one $19,250.00
(2) Year two $19,250.00
(3) Year three $19,250.00
(B) License Fee Adjustment After Third Year:
(1) 5% Increase after Third Year of the
Agreement
(2) Year four $20,212.50
7. CITY Address:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Manager
8. LICENSEE Address:
California State University, San Bernardino
5500 University Parkway
San Bernardino, CA 92407-2397
Attn: Cal State San Bernardino Athletics
The foregoing Basic License Provisions and the General License Provisions set forth in the attached Part II are incorporated into and made part of this Agreement.
PART II. GENERAL LICENSE PROVISIONS
1. General Grant. Subject to the terms and conditions hereinafter set forth, CITY hereby grants a revocable license to use the Licensed Property , for the purposes described in Exhibits “A” and “B” , together with rights for access and entry onto the Property as necessary or convenient for the use of the Licensed Property. In connection with this grant of license, LICENSEE, its employees, agents, customers, visitors, invitees, licensees and contractors (collectively, “LICENSEE’s Parties”), ma y, subject to the provisions hereof, have reasonable rights of entry and access onto adjoining real property of CITY if necessary for the use of the Licensed Property, with the time and manner of
INITIAL INITIAL
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3 such entry and access to be subject to CITY’S prior written approval. Notwithstanding the foregoing, the LICENSEE is granted shared use of the baseball field and exclusive use of the clubhouse and batting cages, as more particularly described in Exhibit “A”.
2. Term. The term (“Term”) of this Agreement shall commence on the “Commencement Date” specified in Item 3 of the Basic License Provisions. If Item 4 of the Basic License Provisions provides for a specific term, then this Agreement shall be a license for the term specified in said Item 4; provided, however, that CITY shall have the absolute right to terminate this Agreement prior to the date specified in Item 4 in its sole discretion pursuant to the termination provisions provided herein.
3. Use. LICENSEE shall use the Licensed Property solely for the purposes specified in Item 2 of the Basic License Provisions and for such lawful purposes as may be directly incidental thereto. No change shall be made by LICENSEE in the use of the Licensed Property without CITY’s prior written approval.
3.1 Notice Prior t o Initial Entry . LICENSEE shall provide CITY no less than three (3) days prior written notice before LICENSEE’s initial entry onto the Licensed Property for the purposes hereunder..
4. Condition of Premises . LICENSEE ACCEPTS THE LICENSED PROPERTY IN ITS “AS IS” CONDITION, WITH ALL FAULTS. LICENSEE ACKNOWLEDGES AND
AGREES THAT LICENSEE IS ENTERING THE LICENSED PROPERTY UNDER THIS
AGREEMENT BASED ON LICENSEE'S OWN INVESTIGATIONS AND KNOWLEDGE
OF THE PROPERTY AND THAT, EXCEPT AS OTHERWISE SPECIFICALLY STATED
IN THIS AGREEMENT, NEITHER CITY NOR ANY AGENT OF CITY, HAS MADE ANY
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH
REGARD TO THE PHYSICAL CONDITION OF THE PROPERTY OR THE SUITABILITY
OF THE PROPERTY FOR ANY PARTICULAR PURPOSE OR USE, INCLU DING,
WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES REGARDING
THE APPLICABILITY OR NON -APPLICABILITY OF ANY LAWS, THE SOIL OR
SUBSOIL, SURFACE OR SUBSURFACE CONDITIONS, TOPOGRAPHY, POSSIBLE
HAZARDOUS SUBSTANCES CONTAMINATION, FILL, DRAINAGE, ACCESS TO
PUBLIC ROADS, AVAILABILITY OF UTILITIES, EXISTENCE OF UNDERGROUND
STORAGE TANKS, APPLICABILITY OF OR COMPLIANCE WITH ANY
ENVIRONMENTAL LAWS OR ANY OTHER MATTER OF ANY NATURE
WHATSOEVER. THE CITY IS NOT RESPONSIBLE FOR DAMAGE TO OR LOSS BY THEFT OF LICENSEE’S PROPERTY LOCATED IN OR ON THE PROPERTY.
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4 5. Termination of License.
A. Notwithstanding any other term or provision of this Agreement, CITY shall have the right to terminate this Agreement upon sixty (60) days prior written notice . In the event that such termination occurs in the middle of a year, LICENSEE shall be entitled to a pro-rata refund of the Annual License Fee to account for the remaining days of the year. By way of example, if City terminates this Agreement on March 1 st (i.e. 6 months into the year), LICENSEE shall be entitled to a refund of fifty percent (50%) of the Annual License Fee. CITY shall have no obligation to reimburse LICENSEE for any improvements to the Licensed Property, under any of the following circumstances:
i In the event that CITY determines in its sole discretion that it requires the Licensed Property for its own uses, which determination shall be made by the City Manager or his or her designee and shall not require proof of or satisfaction of any legal standard of necess ity. Should CITY exercise this option, CITY may terminate this Agreement by providing thirty (30) days written notice to LICENSEE of the intent to terminate this Agreement.
ii CITY may terminate this Agreement at any time for cause, for a breach by LICENSE E of any covenant or term of this Agreement, or a default by LICENSEE of any term or provision of this Agreement, which acts of LICENSEE shall include but not be limited to: (i) The failure by LICENSEE to pay any amount in full when it is due under this Agreement; or (ii) The failure by LICENSEE to perform any obligation under this Agreement. Notification of such termination shall be in writing.
B. LICENSEE may terminate this Agreement at any time for its convenience by providing written notice to Lessor sixty (60) days prior to the date of termination.
6. Hazardous Materials Use and Related Indemnity.
A. Use. LICENSEE shall operate and maintain the Licensed Property in compliance with all, and shall not cause or permit the Licensed Property to be in violation of any federal, state or local environmental, health and/or safety-related laws, regulations, standards, decisions of the courts, permits or permit conditions, currently existing or as amended or adopted in the future which are or become applicable to LICENSEE or the Licensed Property (collectively, “Environmental Laws” and, individually, an “Environmental Law”). LICENSEE shall not cause or permit, or allow any of LICENSEE’s Parties to cause or permit, any Hazardous Materials to be brought upon, stored, used, generated, handled, transported, treated or disposed of on or about the Licensed Property. Any Hazardous Materials on or about the Licensed Property shall be stored, used, generated, handled, transported, treated or disposed of in accordance with all applicable Environmental Laws. As used herein, “Hazardous Materials” means any chemical, substance or material which is now or becomes in the future listed, defined or regulated in any manner by any Environmental Law based upon, directly or indirectly, its properties or effects.
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5 B. Indemnity. LICENSEE shall indemnify, defend (by counsel acceptable to CITY) and hold harmless the Indemnitees (as defined in Section 14) from and against any and all loss, liability, claim, demand, damage, cost or expense (including without limitation, any fines, penalties, judgments, litigation expenses, attorneys’ fees, and consulting, engineering, and construction fees and expenses) incurred by Indemnitees as a result of (a) LICENSEE’s breach of any prohibition or provision of this Section, or (b) any release of Hazardous Materials onto the Licensed Property and/or any adjacent property, or (c) any contamination of the Licensed Property and/or any adjacent property (i) which occurs due to the use and occupancy of the Licensed Property by LICENSEE or LICENSEE’s Parties, or (ii) which is made worse due to the act or failure to act of LICENSEE or LICENSEE’s Parties. The foregoing indemnity shall be effective regardless of any negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees, except to the extent, but only to the extent, caused by the gross negligence or willful misconduct of the Indemnitees; shall survive termination of this Agreement; and is in addition to any other rights or remedies which Indemnitees may have under the law or under this Agreement.
C. Remediation. In addition, in the event of any release on or contamination of the Licensed Property and/or any adjacent property, LICENSEE, at its sole expense, shall promptly take all actions necessary to clean up the affected property and to return the affected property to the condition existing prior to such release or contamination, to the satisfaction of CITY and any governmental authorities having jurisdiction thereover.
D. Termination for Breach of Hazardous Materials Obligations. Should LICENSEE not comply fully with the above-stated obligations, CITY may, in its sole discretion, terminate this Agreement by serving five (5) days’ notice of termination upon LICENSEE. Any waiver by CITY of any breach of LICENSEE’s obligation shall not constitute a waiver of the right to terminate this Agreement for any subsequent breach which may occur, or to enforce any other provision of this Agreement. Upon termination, LICENSEE shall restore the Licensed Property as herein provided.
E. Inapplicability. It is understood and agreed that a LICENSEE who does not now, or in the future, generate, handle, transport, treat, store or dispose of Hazardous Materials on the Licensed Property within the meaning of this Section, is not subject to the provisions of Section 6.B.
7. Fees.
A. Annual License Fee.
i LICENSEE shall pay CITY as compensation for this license an Annual License Fee as specified in Item 6 of the Basic License Provisions, as such fee may be adjusted as set forth in paragraphs (ii) and (iii) below . The first Annual License Fee shall be due and payable on August 1, 2023 (“Payment Date”). Each succeeding year after, subsequent payments shall be made on the anniversary of the Payment Date for as long as this Agreement is in effect.
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6 ii Every three (3) years, the Annual License Fee shall be increased by five percent (5%).
B. Late Payment. LICENSEE acknowledges that late payment by LICENSEE of any payment owed to CITY under this Agreement will cause CITY to incur costs not contemplated by this Agreement, the exact amount of such costs being extremely difficult and impracticable to fix. T herefore, if any payment due from LICENSEE is not received by CITY within sixty (60) days of when due, LICENSEE shall pay to CITY an additional sum of ten percent (10%) of the ov erdue payment as a late charge . The Parties agree that this late charge represents a fair and reasonable estimate of the administrative costs that CITY will incur by reason of a late payment by LICENSEE. Acceptance of any late payment charge shall not constitute a waiver from exercising any of the other rights and remedies available to CITY under this Agreement, at law or in equity, including, but not limited to, any interest charges imposed herein.
8. Permits. Without limiting the generality of any other provision hereunder, LICENSEE, at its sole cost and expense, shall obtain and s hall comply with any and all permits which may be required by any law, regulation or ordinance for any activities LICENSEE desires to conduct or have conducted pursuant to this Agreement.
9. Maintenance and Repair . LICENSEE shall, at its own cost and subject to the approval of the City Manager or his or her designee carry out the maintenance responsibilities outlined in Exhibit “B” of this Agreement . Any repair and maintenance work shall be done to the Standards (defined below). LICENSEE shall provide CITY no less than thirty (30) days written notice and shall acquire all necessary approvals from CITY prior to LICENSEE’s commencement of any such repair or maintenance work. If, at any time, LICENSEE shall, in the judgment of CITY, fail to perform properly it s obligations under this Section, CITY may, at its option, perform such work itself as it deems necessary for the safe operation of its property and other uses on the Licensed Property. In such event, LICENSEE agrees to pay, within fifteen (15) days after a bill is rendered therefor, the cost so incurred by CITY. However, failure on the part of CITY to perform the obligations of LICENSEE shall not release LICENSEE from liability hereunder for any loss or damage occasioned thereby.
10. Standards. LICENSEE shall comply with all applicable statutes, ordinances, rules, regulations, orders and decisions (hereinafter referred to as “Standards”), issued by any federal, state or local governmental body or agency established thereby including without limitation, the United States Department of Transportation, and the California Public Utilities Commission (hereinafter collectively referred to as “Agency”), relating to LICENSEE’s use of the Licensed Property hereunder. In its use of the Licensed Property, LICENSEE shall at all times be in full compliance with all Standards, present or future, set by any Agency, including, but not limited to, Standards concerning air quality, water quality, noise, and Hazardous Materials. In the event LICENSEE fails to be in full compliance with Standards set by any Agency, CITY may, but shall not be obligated to, after giving notice of the failure to LICENSEE, and if LICENSEE, within fifteen (15) days following receipt of such notice (unless such period is extended by CITY), fails to correct such non -compliance, take whatever action it determines in its sole discretion to be DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C
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7 necessary to protect the Licensed Property. LICENSEE shall reimburse the CITY for all costs (including but not limited to, consulting, engineering, clean -up and d isposal, and legal costs) incurred by the CITY as a result of the LICENSEE’s failure to comply with such Standards, and also such costs incurred by the CITY in abating a violation of such Standards, protecting against a threatened violation of such Standar ds, defending any claim of violation of such Standards in any proceeding before any Agency or court, and paying any fines or penalties imposed for such violations. LICENSEE shall, to the extent permitted by law, assume liability for and shall save and hold harmless the CITY from any claim of a violation of the Standards regardless of the nature thereof or the Agency or person asserting such claim, which results from LICENSEE’s use of the Licensed Property in violation of the Standards, even if such claim a rises in whole or in part from the negligence or alleged negligence of the CITY. LICENSEE, at its cost, shall assume the defense of all such claims as provided for in Section 16 hereof.
11. Tests and Inspections . CITY shall have the right at any time to inspect the Licensed Property so as to monitor compliance with this Agreement. If, in CITY’S sole judgment, any installation on, or use or condition of the Licensed Property may have an adverse effect on the Licensed P roperty (whether or not owned by CITY) or CITY’S operations, CITY shall be permitted to conduct any tests or assessments, including but not limited to environmental assessments, of, on or about the Licensed Property , as it determines to be necessary or useful to evaluate the condition of the Licensed Property.
LICENSEE shall cooperate with CITY in any tests or inspections deemed necessary by CITY. LICENSEE shall pay or reimburse CITY, as appropriate, for all reasonable costs and expenses incurred due to the tests, inspections or any necessary corrective work and inspections thereafter within thirty (30) days of a request for payment.
12. Insurance. LICENSEE, at its sole cost and expense, shall obtain and maintain, and require its contractors and subcontractors to obtain and maintain, in full force and effect insurance as required by CITY in the amounts and coverage specified and issued by insurance companies as described on Exhibit “C”, attached hereto and incorporated herein by this reference. CITY reserves the right, to review and change the amount and type of insurance coverage it requires in connection with this Agreement. Prior to (i) entering the Licensed Property or (ii) performing any work or maintenance, LICENSEE shall furnish CITY with the insurance endorsements and certificates in the form and amounts specified in Exhibit “C”, evidencing the existence, amounts and coverage of the insurance required to be maintained hereunder. In most instances, CITY does not allow self-insurance, however, if LICENSEE can demonstrate assets and retention funds meeting CITY’s self-insurance requirements, CITY may permit LICENSEE to self- insure; provided, however, that the right to self-insure with respect to any coverage required to be maintained hereunder may be granted or revoked by CITY in its sole and absolute discretion. CITY shall not be liable for the payment of any premiums or assessments for insurance required to be maintained by LICENSEE under this Agreement.
13. Subordinate Rights. This Agreement is subject and subordinate to the prior and future rights and obligations of CITY, its successors and assigns, to use its property in the exercise of its powers and in the performance of its duties. Accordingly, there is DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C
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8 reserved and retained unto CITY, its successors, assigns and permittees, the right to construct, reconstruct, maintain and use existing, and facilities and appurtenances and existing and future transportation, communication, pipeline facility and other facilities and appurtenances in, upon, over, under, across and along the Licensed Property, and in connection therewith, the right to grant and convey to others, rights and interests to the Licensed Property in, on and around the Licensed Property. This Agreement is subject to all licenses, leases, easements, restrictions, conditions, covenants, encumbrances, liens, claims and other matters of title (hereinafter referred to as “Title Exceptions”) which may affect the Licensed Property now or hereafter, and the words “grant” or “convey” as used herein shall not be construed as a covenant against the existence of any such Title Exceptions.
14. Indemnity.
A. LICENSEE agrees to indemnify and hold harmless City, its employees, officers, agents, and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from LICENSEE’s negligent acts or omissions arising from LICENSEE’s performance of its obligations under this Agreement. LICENSEE’s indemnification obligations do not extend to claims arising out of or pertaining to the sole negligence or willful misconduct of the CITY.
B. CITY agrees to indemnify and hold harmless LICENSEE, its employees, officers, agents, and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from CITY’s negligent acts or omission arising from the CITY’s performance of its obligations under this Agreement. CITY’s indemnification obligations do not extend to claims arising out of or pertaining to the sole negligence or willful misconduct of the LICENSEE.
C. In the event that CITY and/or LICENSEE is found to be comparatively at fault for any claim, action, loss or damage which results from their respective obligations under this Agreement, CITY and LICENSEE shall indemnify the other to the extent of this comparative fault.
15. Assumption of Risk and Waiver. To the maximum extent allowed by law, LICENSEE assumes any and all risk of loss, damage or injury of any kind to any person or property. LICENSEE’s assumption of risk shall include, without limitation, loss or damage caused by defects in any structure or improvement on the Licensed Property, accident or fire or other casualty on the Licensed Property, or electrical discharge, and noise or vibration resulting from CITY’s transit operations on or near the Licensed Property, if applicable. The term “CITY” as used in this Section shall include any other persons or companies employed, retained or engaged by CITY. LICENSEE, on behalf of itself and its Personnel, as a material part of the consideration for this Agreement, hereby waives all claims and demands against CITY for any such loss, damage or injury of LICENSEE and/or its Personnel. In that connection, LICENSEE waives, for itself and its Personnel, the benefit of California Civil Code Section 1542, which provides as follows:
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9 A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the r elease and that, if known by him or her, would have materiality affected his or her settlement with the debtor or released party.
The provisions of this Section and of Sections 6.B, 14 and 16 shall survive the termination of this Agreement. As used in th is Section, “Personnel” means the LICENSEE, or its officers, directors, affiliates, or anyone directly or indirectly employed by LICENSEE or for whose acts LICENSEE is liable.
16. Defense. Upon written notice from CITY, LICENSEE agrees to assume the defense of any lawsuit, administrative action or other proceeding brought against the Indemnitees by any public body, individual, partnership, corporation, or other legal entity, relating to any matter covered by this Agreement for which LICENSEE has an obligation to assume liability for and/or to indemnify or save and hold harmless the Indemnitees. LICENSEE shall pay all the costs incident to such defense, including, but not limited to, attorneys’ fees, investigators’ fees, litigation expenses, settlement payments, and amounts paid in satisfaction of judgments. Any and all lawsuits or administrative actions brought or threatened on any theory of relief available at law, in equity or under the rules of any administrative agency shall be covered by this Section, including, but not limited to, the theories of intentional misconduct, negligence, breach of statute or ordinance, or upon any theory created by statute or ordinance, state or federal.
17. Attorneys’ Fees. In any judicial or arbitration proceeding involving perf ormance under this Agreement, or default or breach thereof, the prevailing party shall be entitled to its reasonable attorneys’ fees and costs.
18. Successors and Assigns. All the covenants and provisions of this Agreement shall be binding upon and inure to t he benefit of the successors, legal representatives and assigns of the CITY and LICENSEE to the same extent and effect as the same are binding upon and insure to the benefit of the Parties hereto.
19. Survival of Obligations. All obligations of LICENSEE hereunder not fully performed as of the termination or cessation of this Agreement in any manner shall survive the termination of this Agreement.
20. Assignment. This Agreement and the license granted herein are personal to the LICENSEE. LICENSEE shall not assi gn or transfer (whether voluntary or involuntary) this Agreement in whole or in part, or permit any other person or entity to use the rights or privileges hereby conveyed, without the prior written consent of CITY, which may be withheld in CITY’s sole and absolute discretion. Any attempted act in violation of this Section shall be void and without effect and give CITY the right to immediately terminate this Agreement.
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10 21. Waiver of Covenants or Conditions . The waiver by CITY of the performance of any covenant or condition under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by it of any other covenant or condition under this Agreement.
22. Amendment. This Agreement may be amended at any time by the written agreement of CITY and LICENSEE. All amendments to this Agreement shall be binding upon the Parties despite any lack of legal consideration, so long as the same shall be in writing and executed by the Parties hereto.
23. Revocation. If, at any time, LICENSEE shall fail or ref use to comply with or carry out any of the covenants herein contained, CITY may, at its election, immediately revoke and terminate this Agreement unless a longer notice period is specifically provided for elsewhere in this Agreement.
24. Abandonment. Should LICENSEE at any time abandon the Licensed Property, or any part thereof, or fail at any time for a continuous period of six (6) months to use the same for the purposes contemplated by this Agreement, then CITY may terminate this Agreement to the extent of the portion so abandoned or discontinued. In addition to any other rights or remedies, CITY shall immediately be entitled to exclusive possession and ownership of the portion so abandoned or discontinued, without the encumbrance of this Agreement or any license granted herein.
25. Eviction, Abandonment or Sale . In the case of the eviction of LICENSEE by the sale or abandonment by CITY of said premises, CITY shall not be liable to LICENSEE for any damage of any nature whatsoever or to refund any payment made by LICENSEE to CITY hereunder, except the proportionate part of any recurring charge which may have been paid hereunder in advance.
26. Condemnation. In the event all or any portion of the Licensed Property shall be taken or condemned for public use (includin g conveyance by deed in lieu of or in settlement of condemnation proceedings), any commission or damages arising out of such taking or condemnation awarded to LICENSEE are hereby assigned by LICENSEE to CITY.
27. Revocable Licenses and Termination. LICENSEE agrees that notwithstanding the improvements made by LICENSEE to the Licensed Property, or other sums expended by LICENSEE in furtherance of this Agreement, the license granted herein is revocable and may be terminated by CITY in accordance with the terms of this Agreement.
28. Restoration of CITY’s Property, Claims for Costs. Upon the termination, revocation of cessation of this Agreement in any manner provided in this Agreement, LICENSEE, upon demand of CITY and at LICENSEE’s own cost and expense, shall restore the Licensed Property of CITY to the same condition in which they were prior to the entry of this Agreement , reasonable wear and tear excepted. In case LICENSEE shall fail to restore Licensed Property as aforesaid withi n ten (10) days after the effective date of termination, CITY may proceed with such work at the expense of LICENSEE . No DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C
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11 termination hereof shall release LICENSEE from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date the Licensed Property restored as above provided.
29. Notice. Any notice hereunder to be given by CITY to LICENSEE shall be deemed to be properly served on the date it is deposited in the United State s Mail, postage prepaid, addressed to such party at its address set forth in the Basic License Provisions.
Either CITY or LICENSEE may change its address for the receipt of notice by giving written notice thereof to the other party of such change. Notices shall be effective on the date delivered to custody of the U.S. Postal Service.
30. Nondiscrimination. LICENSEE certifies and agrees that all persons employed thereby and/or the affiliates, subsidiaries, or holding companies thereof and any contractors reta ined thereby with respect to the Licensed Property are and shall be treated equally without regard to or because of race, religion, ancestry, national origin, or sex, and in compliance with all federal and state laws prohibiting discrimination in employment, including but not limited to the Civil Rights Act of 1964; the Unruh Civil Rights Act; the Cartwright Act; and the California Fair Employment Practices Act.
31. Taxes. LICENSEE shall be liable for and agrees to pay promptly and prior to delinquency, any tax or assessment, including but not limited to any possessory interest tax, levied by any governmental authority against the Licensed Property and/or any personal property, fixtures or equipment of LICENSEE used in connection therewith.
32. Liens. LICENSEE sha ll not suffer or permit to be filed or enforced against the Licensed Property, or any part thereof, any mechanics’, materialmen’s, contractors’, or subcontractors’ liens or stop notices arising from, or any claim for damage growing out of, any testing, investigation, maintenance or work, or out of any other claim or demand of any kind.
33. Counterparts; Facsimile Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Facsimile signatures shall be considered original signatures.
34. Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions, or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full for ce and effect and shall in no way be affected, impaired or invalidated thereby.
35. Captions. The Captions included in this Agreement are for convenience only and in no way define, limit, or otherwise describe the scope or intent of this Agreement or any provision hereof, or in any way affect the interpretation of this Agreement.
36. Time of Essence. Time is of the essence in this Agreement.
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12 37. No Recording. LICENSEE shall not record or permit to be recorded in the official records of the county where the Licensed Property is located any memorandum of this Agreement or any other document giving notice of the existence of this Agreement or the license granted hereby.
38. Entire Agreement. This Agreement and the Exhibits hereto constitute the entire agreement between the CITY and LICENSEE with respect to the subject matter hereof and supersede all prior verbal or written agreements and understandings between the Parties with respect to the items set forth herein.
39. Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.
40. 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
[SIGNATURES ON FOLLOWING PAGE]
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13 SIGNATURE PAGE FOR LICENSE AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND CALIFORNIA STATE UNIVERSITY, SAN BERNARDINO
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
CITY
CITY OF SAN BERNARDINO
APPROVED BY:
Charles A. Montoya
City Manager
ATTESTED BY:
Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
LICENSEE
CALIFORNIA STATE UNIVERSITY,
SAN BERNARDINO
Signature
Name
Title
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C JC Cortez
Lead Procurement & Contract Specialist
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14 EXHIBIT A
DESCRIPTION OF LICENSED PROPERTY
Fiscalini Field Description for Contractual Purposes:
Location: San Bernardino, California, situated within Perris Hill Park.
Facilities:
1. Field Dimensions: Standard baseball field dimensions with a professional-grade infield and well-maintained outfield.
2. Seating Capacity: Accommodates several thousand spectators. The seating area comprises metal and wooden bleachers.
3. Dugouts: Two dugouts, one for the home team and one for the visiting team, equipped with benches and storage facilities.
4. Press Box: An elevated press box equipped with communication facilities and space for media personnel.
5. Lighting: Adequate lighting fixtures for evening and nighttime events.
6. Concession Stands: Available for food and beverage services.
7. Restrooms: Male, female, and accessible restroom facilities.
8. Parking: Adjacent parking facilities with capacity for a specified number of vehicles (exact number to be provided based on current data).
9. Accessibility: The stadium is accessible for differently-abled individuals, with ramps and other necessary facilities.
10. Safety: Equipped with emergency exits, fire extinguishers, and other safety measures compliant with local regulations.
Usage: Suitable for hosting baseball games, including high school, college, and semi- professional matches. Additionally, the field can be used for community events, concerts, and other gatherings, subject to approval and any necessary modifications.
Maintenance: The field and its facilities are regularly maintained to ensure safety and functionality. Any party renting or using the facility is expected to return it in the condition it was provided, barring regular wear and tear.
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15 EXHIBIT B
LICENSEE USE/MAINTENANCE OBLIGATIONS
Unless otherwise stated below, all terms and conditions of maintenance and use set forth below are to be followed by LICENSEE authorized by the CITY to utilize and/or maintain Fiscalini Field.
1. Play not to exceed two games a day and 5 games per week unless prior authorization has been secured by CITY management.
2. Field shall be mowed a minimum of once per week by a qualified CITY maintenance staff with a mower designed for athletic field mowing at a height that is associated with good athletic field maintenance- 1 inch suggested.
3. LICENSEE shall furnish its own equipment (rake, drag, tamp, hose coupler, broom, small utility vehicle).
4. LICENSEE shall ensure that field and bullpens are maintained after every use by LICENSEE.
5. LICENSEE shall ensure that the cut outs, baselines, and home plate areas must be raked and NOT dragged.
6. General maintenance vehicles used by LICENSEE must remain on the outfield warning track.
7. Except for a small utility vehicle to “drag” with, LICENSEE shall not permit maintenance vehicles in the infield.
8. LICENSEE shall not allow vehicles to be driven in front of the dugouts, across the plate, or in the baselines.
9. When dragging the infield , LICENSEE shall ensure the drag should remain one foot from the edge of the grass.
10. LICENSEE shall ensure that the pitching mound is maintained and tarped after every use.
11. LICENSEE shall ensure that dugout trash should be picked -up and dugouts should be swept after each use.
12. No materials should be added to the field by LICENSEE without CITY management and/or Maintenance Division Manager approval ( i.e. drying agents, field conditioners etc.
13. LICENSEE shall have a designated maintenance worker to receive training from the CITY approved, athletic field maintenance personnel.
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16 14. Any destruction, vandalism, theft shall be reported immediately to the CITY and fixed by the LICENSEE immediately.
15. Any general “wear and tear” irrigation issues should be reported to the CITY immediately for prompt repair. Irrigation damage resulting from LICENSEE neglect shall be reported to the CITY immediately and repaired by the LICENSEE within 24 hours.
16. LICENSEE shall provide a detailed use schedule to the CITY for approval prior to use.
17. LICENSEE will be required to refrain from field use during scheduled annual field maintenance and renovation.
18. National tournaments of LICENSEE can exceed the number of games limitations with CITY approval, provided that said tournaments must have national sports tourism benefit and implications.
19. Annual renovation of the field will occur November 1 – December 1 of each year.
During this time, no play by LICENSEE shall occur on the infield or outfield.
20. Routine CITY maintenanc e of field will occur Wednesday of each week; during such time no play by LICENSEE shall occur on the infield or outfield.
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17 EXHIBIT C
INSURANCE REQUIREMENTS
LICENSEE shall obtain, and shall require any consultant or contractor entering the Licensed Property on its behalf to obtain insurance of the types and in the amounts described below and satisfactory to the CITY.
A. Commercial General Liability Insurance . LICENSEE shall maintain occurrence version commercial general liability insurance or equivalent form with a combined single limit of not less tha n $2,000,000 per occurrence, with a general aggregate limit no less than $4,000,000. Such insurance shall include coverage for, but not be limited to: (i) bodily injury and property damage; (ii) personal injury and advertising injury; (iii) fire legal liability; and (iv) products and completed operations. Such insurance policy or policy endorsement shall:
1. Include the CITY, its officials, officers, employees, agents, and consultants as additional insureds with respect to the Licensed Property and LICENSEE’s installation, construction, operation, maintenance, repair, reconstruction, al teration, removal or any other work that LICENSEE undertakes with respect to the Agreement;
2. Not contain special limitations on the scope of coverage or the protection afforded to CITY, its officials, officers, employees, agents and consultants as additional insureds;
3. Be primary with respect to any insurance or self-insurance programs covering CITY, its officials, officers, employees, agents and consultants;
4. Contain standard separation of insured provisions; and
5. Contain a waiver of subrogation that waives any right the insurer has against CITY for any claims or suits.
C. Automobile Liability . LICENSEE shall acquire and maintain during the period of the Agreement, automobile liability with a combined single limit of $1,000,000.
E. Workers' Compensation Insurance . LICENSEE shall maintain workers' compensation insurance with statutory limits and employers' liability insurance with limits of not less than $1,000,000 each accident.
F. Privacy/Network Security (Cyber) . LICENSEE shall maintain privacy/network security insurance, in a form and with insurance companies acceptable to the City, for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and (4) the introduction, implantation or spread of malicious software code, in a form and with insurance companies acceptable to CITY with limits of not less than $1,000,000 per occurrence and aggregate.
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18 G. Aviation and/or Drone Liability. If the proposed use of the Licensed Property will involve drones, LICENSEE 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, with $1,000,000 per occurrence limit.
H. Certificates of Insurance. LICENSEE shall, prior to (i) entering the Licensed Property or (ii) performing any installation, construction, operation, maintenance, repair, reconstruction, alteration, removal or any other work that L ICENSEE undertakes with respect to the Agreement, furnish CITY with properly executed certificates of insurance and, if requested by CITY, certified copies of endorsements and policies, which clearly evidence all insurance required under this Agreement and provide that such insurance shall not be canceled, allowed to expire or be materially reduced in coverage, except on thirty (30) days’ p rior written notice to CITY. CITY shall have the sole discretion to determine whether the certificates and endorsements presented comply with the provisions of this Agreement.
I. Coverage Maintenance. LICENSEE shall replace certificates, policies and endorsements for any insurance expiring prior to the termination of this Agreement and shall not allow any lapse in coverage. Further, LICENSEE shall maintain such insurance from the execution of this Agreement until the Licensed Property fully restored, except as otherwise provided in this Agreement.
J. Licensed Insurer. LICENSEE shall place such insurance with insurers having A.M. Best Company ratings of no less than A:VIII and licensed to do business in California.
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: March 6, 2024
To: Honorable Mayor and City Council Members
From: Charles A. Montoya, City Manager;
Darren Goodman, Chief of Police
Department: Police
Subject: Agreement with FileOnQ Incorporated, and Issue a Purchase Order (All Wards)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize:
1. The City Manager or designee to execute a Professional Services Agreement with FileOnQ Incorporated.
2. The Director of Finance and Managment Services to issue a purchase order to FileOnQ Incorporated in an amount not to exceed $253,153.84.
Executive Summary
The Police Department’s evidence cataloging system needs to be upgraded to a digital system.
After an RFP and thorough vetting process, FileOnQ Incorporated was selected to be the service provider. The Police Department has sufficient funding allocated in the budget to purchase this solution.
Background
The police department is in dire need of updating its evidence cataloging system. The current process is antiquated and requires manual inputting of information. This process has caused a significant backlog of evidence that should have been disposed of years ago. Due to this backlog, the evidence room has experienced overcrowding, and available space is becoming scarce in the property room. A digital system will assist in identifying evidence that shall be
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retained for court proceedings as well as notify technicians when the evidence can be disposed of. If items of evidence are disposed of prematurely, it could cause irreversible issues for future litigation and expose the city to liability.
The current industry standard has transitioned to a digital barcoding system, which will help catalog evidence and assist in setting reminders on evidence that is up for destruction. A digital database would save the man hours of manually inputting data and save on paper needed for evidence tags and evidence disposition forms. On June 21st, 2023, staff issued an RFP requesting proposals from different vendors for a Digital Evidence Management solution for police evidence. The RFP closed on July 12th, 2023, and staff began a thorough vetting process.
Discussion
The RFP process yielded numerous submissions from qualified vendors, each with innovative solutions that appeared to meet the RFP requirements. As a result, the City began a thorough vetting process, which included a Proposal Evaluation Committee being formed to rate each vendor independently.
During the vetting process, staff discovered that some of the vendors did not have prior police agency experience. Some of the products were not specific to property/evidence management, nor was their software compatible with current department infrastructure as required and outlined in the RFP requirements.
The Proposal Evaluation Committee received four competing companies to evaluate, and Carahsoft Technologies didn't receive a passing score. FileOnQ, Inc. received the overall highest passing score out of the remaining three companies, with Tracker Products scoring the 2nd highest and lowest passing score being Foray Technologies.
Through the vetting process, staff identified FileOnQ Inc. as the only vendor that can currently meet the needs of the Department. In addition, FileonQ Inc. has 23 years of experience and provided data about the police department, showing better knowledge of the City and Department needs. The vendor also provided a comprehensive list showing several California agencies that use their software, including a customer with the same LERMS (Law Enforcement Records Management System) as the San Bernardino Police Department.
Lastly, FileOnQ Inc. provides unlimited phone and online support, unlimited training, and hardware lifetime replacement.
FileOnQ Inc.'s initial startup cost is slightly higher than that of Tracker Products. However, its annual maintenance is considerably less than Tracker Products.
Although Foray Technologies is the least expensive option, the evaluation process revealed several concerning issues from their company, such as "purchase of additional services for customized configuration and training may be necessary," which they were unable to explain to us what a customized configuration is or even how much additional money that may cost.
This is something that they wouldn’t be able to determine until after they started performing
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services for the Department once an agreement has been executed. They also have no local experience. Their existing contracts were specific to the needs of a crime lab, which is not equivalent to the needs of the San Bernardino Police Department's evidence room. Moreover, their interface explanation lacked detail and didn't convince the committee how it would integrate with our current LERMS.
The following table depicts the costs associated with the different vendor’s Digital Evidence Management solutions:
Vendor Cost Annual Maintenance
Tracker Products $90,407.60 $55,500
Foray Tech. $103,660.50 $16,434.84- $17,958.81
FileOnQ, Inc. $130,898.89 $27,550
Carahsoft Tech. $374,473.79 Not clear in proposal
The following table depicts the cost associated with the top 3 vendors and costs associated with yearly maintenance and total investment over five years.
Vendor 2023 2024 2025 2026 2027 Total
Tracker $90,407.60 $55,500.00 $55,500.00 $55,500.00 $55,500.00 $312,407.60 Foray $103,660.50 $16,434.84 $16,927.89 $17,434.74 $17,958.81 $172,417.78 FileOnQ $130,898.89 $27,550.00 $27,550.00 $27,550.00 $27,550.00 $241,098.89 Staff requests the issuance of a purchase order to FileOnQ, Inc. in an amount not to exceed $253,153.84. The amount requested includes a five percent contingency to cover any unforeseen expenses.
2021-2025 Strategic Targets and Goals
This contract for FileOnQ services aligns with Key Target No. 3c: Improved Quality of Life - constantly evaluate public safety service delivery models to enhance the quality of service.
Fiscal Impact
The financial impact to the City is the expenditure of $253,153.84 from the general fund. There is sufficient funding in the adopted FY 2023/2024 budget to cover this expenditure.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize:
1. The City Manager or designee to execute a Professional Services Agreement with FileOnQ
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Incorporated.
2. The Director of Finance and Management Services to issue a purchase order to FileOnQ Incorporated in an amount not to exceed $253,153.84.
Attachments
Attachment 1 Professional Services Agreement
Attachment 2 Final FileOnQ, Inc. Quote
Ward:
All Wards
Synopsis of Previous Council Actions:
None
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1 PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND FILEONQ, INC.
This Agreement is made and entered into as of March 6, 2024, 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”), File OnQ, a privately owned corporation with its principal place of business at 832 Industry Drive, Seattle WA 98188 (hereinafter referred to as “Consultant”). 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:
DIGITAL DATABASE OF POLICE EVIDENCE (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. S ervices . Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.”
3. P rofessional 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. C
ompensation.
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 “A b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of $241,098.89. First year cost is
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2 $130,898.89. Beginning year two, the cost will be $27,550 per year. 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 fort y-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.
5. A dditional 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 requ ired to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
a. A
djustments. 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. T erm . This Agreement shall commence on March 6, 2024, and continue through October 31, 2028 , unless the Agreement is previously terminated as provided for herein. The completion of services shall be set forth in Exhibit “A” (“Term”).
7. M aintenance of Records; Audits.
a. 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. 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.
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. D elays 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
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3 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 o ther 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) pandem ics, 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.
b. If required, Consultant shall assist the City, as requested, in obtaining 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. C
onflicts 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. C ity Business Certificate . Consultant shall, prior to execution of this Agreement, obtain and maintain du ring the term of this Agreement a valid business
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4 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 e mploying independent associates and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.
15. I ndependent 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.
16. I
nsurance . 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. A dditional 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:
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5 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 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.
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6 (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 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.
g. INTENTIONALLY LEFT BLANK
h. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:
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7 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 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 poli cy 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.
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8 (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 pr ior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waiver s and insurance clauses from each of its subconsultants.
(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.
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9 (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 same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.
17. I
ndemnification .
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 p erformance of
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10 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. California Labor Code Requirements . Consultant 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. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws, if applicable. Consultant shall defend, indemnify and h old the City, 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 the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements.
19. 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-subconsu ltants to comply with the same.
20. Law
s 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.
21. T
ermination or Abandonment
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
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11 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.
22. 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.
23. R
esponsibility 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.
24. P rohibited Employment . Consultant shall not employ any current employee of City to perform the work under this Agreement while this Agreement is in effect.
25. C osts . 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.
26. D ocuments . 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 payment in full for the services described in this Agreement, be furnished to and become the property of the City.
27. O
rganization. Principal Contacts: Consultant shall assign Shannon Turner as Project Manager, senior evidence expert and consultant, who will act as project
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12 manager and training coordinator. FileOnQ's Chief Technology Officer, Manoj Philip, will also be a primary contact and available to attend an on-site meeting to represent the installation, integration, and data import tasks. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.
28. Limitation of Agreement. This Agreement is limited to and includes only the work included in the Project described above.
29. N otice . 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: Terri Sumrall,
Senior Management Analyst
With Copy To:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
CONSULTANT:
FILEONQ, INC.
832 Industry Drive,
Seattle, WA 98188
Attn: Shannon, Turner, Vice President
30. 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.
31. E qual 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.
32. E
ntire Agreement . T his Agreement, including Exhibit “A ,” 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 hereun der. 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.
33. S everability . If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such
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13 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.
34. 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.
35. N
on- 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.
36. T
ime of Essence. Time is of the essence for each and every provision of this Agreement.
37. H eadings . 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.
38. A mendments . Only a writing executed by all of the Parties hereto or their respective successors and assigns may amend this Agreement.
39. C ity’s Right to Employ Other Consultants . City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.
40. P rohibited Interests . Consultant mainta ins 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.
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14 41. 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.
42. A uthority . 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.
43. E lectronic 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.
44. D
isciplinary 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. ( 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]
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15 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND FILEONQ
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF SAN BERNARDINO
APPROVED BY:
Charles A. Montoya
City Manager
ATTESTED BY:
Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
FILEONQ, INC.
Signature
Name
Title
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16 EXHIBIT A
Scope of Services
DIGITAL DATABASE OF POLICE EVIDENCE
1. SCOPE
The police department property and evidence bureau has requirements for FileOnQ to furnish, install, implement, train staff and maintain support for an integrable and customizable property and evidence management system designed specifically for a law enforcement agency consisting of software, hardware, scanners, printers, signature pads, user licenses, related materials and supplies, integration and support work. FileOnQ, must work with our I.T department on data conversion to copy all possible property data (and property - related data) in the current Tyler/New World System MSP environment to the new Property and Evidence system.
A. REQUIREMENTS
• Full accessibility/licenses to all users in the department (approximately 350 users) for whom the service will be
provided. Access & support will be required 24/7. Employees may be added or deleted from access to the platform at any time during the contract term. The system should be accessible from unlimited PCs, with no added charge per station. SBPD has approximately 15+ proposed desktop workstations (exact # TBD) and an entire fleet of vehicles fitted with MDCs for mobile operations. All the desktop stations needed to be set up with dedicated scanners, label printers, signature pads, user licenses and related materials.
• The program must be compatible with Tyler New World
systems and be user friendly and easily accessibility.
• End users must be able to access the system from a browser- based intranet connection to be used remotely, away from a desktop computer for use in the field. The contractor shall provide ongoing support, warranty all software & hardware in the best manner possible at no additional charge to the city. The contractor shall maintain maintenance, support, and repair of the software and hardware and all future upgrades to the platform are included in the initial capital purchase.
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17 B. INTERFACE
• The program must have an interface that will copy data from the new Property and Evidence system to the Tyler/New World Property and Evidence system is required and provide a two- way flow of information to present a complete view of evidence from either product. The platform functionality must improve records accuracy and help ensure that people are working with the most up-to-date information.
• The system must have the ability to customize screens quickly and easily to meet our unique needs. It must be very simple and straightforward and have the means to add, delete, rename, modify, and reposition fields to so that data entry is as simple as possible and will easily follow our agency’s existing workflow and specific policies and procedures. The platform, once customized to meet our distinct configurations, should still operate on the initial version as well as with any upgrades from FileOnQ. The profile screen should be flexible during the initial implementation phase, but also functioning with any changes that are made to the profile screen. SBPD needs the ability to make changes to the application as our needs change and there should be no cost to make changes.
• The application must meet the specific needs of SBPD without any change in the underlying code and must allow the user to change the application configuration and UI without involving relying on support from FileOnQ. The lack of any custom code in the software will ensure that SBPD will not be locked into a specific branch of code, nor will we be excluded from any future upgrades.
• The program should have the ability to focus on a stable core platform that is robust, all the while adding new features at a steady pace with easy to install global updates ensuring the lowest total cost of ownership for the customer.
• SBPD needs FileOnQ to be available for all phases of
installation, to include program building, staff training, program Bidders must acknowledge all requirements of scope of work, previous section, including all categories and sub-points.
Please Sign and Acknowledge Here: __________________________________________
_________________________________________________________________________
If Bidder can provide additional services t hat are related to the services above, but not mentioned in this section, please list the additional services and detail how they will be beneficial to the city
BIDDER’S RESPONSE:
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18 integration, program launch, program monitoring, service & support. The contractor shall install, build to custom
specifications a property & evidence management system tailor made for the San Bernardino police department.
• All software, hardware, future software upgrades, and related materials and supplies, integration and support work shall be maintained, covered, and repaired as needed by the contractor as part of the terms and conditions set forth.
Bidders must acknowledge all requirements of scope of work, previous section, including all categories and sub-points.
Please Sign and Acknowledge Here:
__________________________________________
____________________________________________________________________ _____
If Bidder can provide additional services that are related to the services above, but not mentioned in this section, please list the additional services and detail how they will be beneficial to the city.
BIDDER’S RESPONSE:
C. SYSTEM FUNCTIONALITY
• SBPD wants to utilize barcode technology to the fullest to manage evidence quickly and efficiently. Ideally, data entry, searching, and scanning needs to be done from one screen and all fields on the profile screen are searchable. All transactions must have an automatic and unalterable audit trail for chain -of- custody purposes. The platform must have the ability to capture when an item was created, transferred, edited, requested, and when barcode labels are printed. The audit trail should include the old value, new value, the identity of the user, the name of the PC used, the IP address, and the name of the Windows user and a home location, date created, edited, and transferred for all records. Barcode label format and style should be user defined and include any combination of data from the profile screen, but it should have the capability to be changed by the user at any time as our needs change.
• The system must always automatically assign the next available item number in the case to avoid duplicate numbers and all
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19 barcode numbers that are system generated will never be duplicated.
• The platform must be able to produce customized forms and reports.
• Users should have the ability to submit requests for property and evidence within the system with data can be easily exported into Excel (or similar) spreadsheets for workflow.
• We require a system that can provide various/numerous/custom methods for global queries for all data with unlimited custom queries which can be created, named, and saved to run
regularly. SBPD has approximately 150,000 items of evidence.
We are currently working towards reducing our inventory and purging items which no longer retain evidentiary value.
AUTOMATION is a necessity. Because of the large inventory and a rising trend in evidence intake we need the ability to receive, move, and inventory items in l arge batches. Oftentimes, cases are linked or cross referenced so if a case number needs to be corrected for 150 items, they can be done in one
transaction instead of doing all 150 individually. Large projects need to be performed such as transferring a group of items to a new location, for “pending destruction” and “pending auction” large batches of dispositioned items for destruction.
• We need an efficient means of conducting inventories. Ideally this function should be performed using a barcode scanner. The management system should generate an exception report and show all items accounted for, items missing and items in incorrect locations.
Bidders must acknowledge all requirements of scope of work, previous section, including all categories and sub-points.
Please Sign and Acknowledge Here:
__________________________________________
____________________________________________________________________ _____
If Bidder can provide additional services that are related to the services above, but not mentioned in this section, please list the additional services and detail how they will be beneficial to the city
BIDDER’S RESPONSE:
D. RENTENTION/RECORD KEEPING
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20 • We also have sensitive records which need to be
locked for viewing. And certain reports, notes, and
fields need to be restricted to certain
groups. Ideally, we need customized dashboards
which can be displayed in the web portal based on
user group (ADMIN & IA, Detective bureau, Patrol,
Discovery, etc.)
• We need a system which automatically assigns
retention review dates.
• We need a system with pre-determined time
clocks that, when they expire will send a notice to
the case agent I.E. items checked out too long,
checked out for court/analysis/review etc. and
anything not returned in a timely manner, items for
review and items for disposition. The system must
be able to be manipulated to perform these
automated tasks and assign triggers for all manner
of customized scenarios. And any information
entered into the system, automatic notices, field
values, case notes, logs, telephone messages and
anything related to an item of evidence needs to
be searchable.
Bidders must acknowledge all requirements of scope of work, previous section, including all categories and sub-points.
Please Sign and Acknowledge Here:
__________________________________________
____________________________________________________________________ _____
If Bidder can provide additional services that are related to the services above, but not mentioned in this section, please list the additional services and detail how they will be beneficial to the city
BIDDER’S RESPONSE:
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21 SCHEDULE OF CHARGES
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23 EXHIBIT B
KEY PERFORMANCE INDICATORS OR PERFORMANCE REQUIREMENTS
1. Performance Expectations
• A Performance Measurement Plan (“Performance Plan”) will be developed by the City/San Bernardino Police Department and will be reviewed on a quarterly basis.
• Consultant will track and document all performance measures identified in the Performance Plan. Measures will include, but a not limited to the measures listed below:
• Consultant will develop and distribute, electronically, a monthly summary report showing the current status and 12 month trend of each performance measure
• Consultant will attend quarterly meetings scheduled by the City /SAN BERNARDINO POLICE DEPARTMENT a nd present and discuss performance measures
• Consultant will track all cost savings for all orders requested by Waste Resources and will report their total Cost Savings on a quarterly basis
2. Performance Measures
1. Safety:
a. Definition: the condition of being protected from or unlikely to cause danger, risk, or injury
b. Safety Measures is related to PW projects when a contractor is conducting work on a county facility and/or delivery materials and services to a county facility
2. Quality:
a. Definition: the standard of something as measured against other things of a similar kind; the degree of excellence of something.
b. Quality Measure is related to final result of a product or service. Ex. was the monitor installed correctly, crooked, upside down? Were monthly/annual inspections done correctly/on time, were they incomplete.
3. Cost Savings:
a. Definition: a reduction in expenses, especially in business b. Cost Savings Measure is related savings that a vendor makes and passes on to the County.
4. On-Time Delivery:
a. Definition: On Time Delivery or OTD refers to a key performance indicator measuring the rate of finished product and deliveries made in time. This
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24 rate is expressed in a total number of units delivered within a set period defined by the customer and the supplier.
b. On-Time Delivery measure is related to service contracts, were the samples delivered on time to the lab. This can also refer to pick -up services such as with environmental contracts that deal with hazardous samples
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RFP F-23-53
REF#: 202922 | PAGE# 1 | PREPARED BY:
YOUR SUCCESS IS
OUR SUCCESS.
COST PROPOSAL
Software Retail
Price Qty Subtotal
EvidenceOnQ application server license for up 1 million records.
Requires SQL server 2016 or higher provided by customer. Includes all functionality set out in requirements of RFP, NOT INCLUDING exceptions noted in Exhibit A. Also includes the following software:
WebView module, requires IIS server provided by customer.
MobileOnQ module, including software for 1 mobile device. eDocs and electronic imaging module
Active directory integration
Notification module, including configuration of 5 triggers.
Duplicate database for training and integration testing. $96,145 1
$67,301.50
Discount (%) -30
Professional Services
Profile screen design and configuration. Includes population of user groups and permissions, lookup tables, locations, barcode design, etc.
Import existing data from New World. Customer will provide extracted data in a tab delimited text file.
Remote installation of software, modules, and peripheral hardare. 3 Days on-site training. Includes travel and per diem costs. Includes written training materials and recorded training video for officers. 10 custom reports to include Property Report, Chain of Custody, Check- out Receipt, Named list, Owner letter, Auction Manifest, Items by Year chart, Random Audit Report, Receipt Re-print, Random Percentage Audit Report.
Integration development with New World RMS.
12 months annual maintenance and support. Maintenance and support will be billed annually beginning year two at the rate of $27,550. (Includes maintenance and support of all software, integration, future upgrades, and hardware replacement.)
$65,086 1
$52,068.80
Discount (%) -20
Total $119,370.30
$96,145
$65,086
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RFP F-23-53
February 23, 2023
REF#: 202922 | PAGE# 2 | PREPARED BY:
YOUR SUCCESS IS
OUR SUCCESS.Peripheral Hardware Price Qty Subtotal
Symbol LS 2208 Attached USB Scanner $140 0 $0
Symbol Li 4278 USB Wireless Scanner $435 3 $1,305
Topaz Signature Pad (USB) $485 1 $485
Zebra TC72x package: PDA device,
charging/docking station, pistol grip
trigger, and power supply.
$2,995 1 $2,995
Zebra ZD240 TT Thermal Barcode Label
Network Printer
$640 4 $2,560
Zebra 4.33" Ribbon Cartridges - 6
Cartridges per case
Wax/Resin Ribbon Cartridges - 6 Cartridges per case.
$107 8 $856
4"x2" Polypro 1000 Labels 4 roll per case
1100 labels per roll - total 4400 labels per case
$200 12 $2,400
Hardware total
Subtotal $10,601
Tax on Hardware (8.75%) +$927.59
Your pr oposed inv estment f or the solutions and pr oducts selected and outlined above is:
$129,971.30
NOTE: Cost is all-inclusive. FileOnQ will not charge for any additional work or hours related to the services and installation outlined.
PAYMENT SCHEDULE
Phase 1 Billed upon Receipt of Purchase Order 50%
Phase 2 Billed upon Completed Installation 50%
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1 8
8 7
CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: March 6, 2024
To: Honorable Mayor and City Council Members
From: Charles A. Montoya, City Manager;
Lynn Merrill, Director of Public Works, Operations, and Maintenance
Department: Public Works
Subject: Amendment No. 1 to Agreement with RHA Landscape Architects – Planners Inc. for Seccombe Lake Park
Design Services (Ward 1)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Approve Amendment No. 1 to the Agreement with RHA Landscape Architects – Planners Inc. in the amount of $26,000 for Nicholson Neighborhood Park Improvements (Project); and
2. Authorize project contingencies in the total amount of $27,000 for design of the Project; and
3. Authorize the City Manager or designee to execute all documents with RHA Landscape Architects – Planners Inc.; and
4. Authorize the City Manager or designee to expend the contingency fund, if necessary, to complete the project.
5. Renew the term of the agreement to September 21, 2024.
6. If necessary, authorize the City Manager to renew the term of the agreement for up to two additional one-year terms.
Executive Summary:
Amending the Agreement for Design Services for the Seccombe Lake Park Project would lead to the construction of park amenities, returning the park to a safe and
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attractive condition. The amendment would allow RHA Landscape Architects – Planners Inc. (RHA) to complete additional work necessary for the design of the park improvements. Amendment No. 1 will include RHA’s design services fee of $26,000. Additional funds are recommended for contingencies in the amount of $27,000. The total cost for the additional design services including contingencies is $53,000.
Background
The project will revitalize the Seccombe Lake Park with new amenities, and restoration of existing infrastructure. It will re-create a sense of place and become a gathering point for people living and working in the downtown area. It will be a place to hold events and gatherings. This park will help build a safer community, provide a place to play, walk, and exercise while enjoying the outdoors.
Seccombe Lake Park is located in the center of the City and has been serving the surrounding community for many years. Due to neglect and vandalism, the Park has not felt welcoming to visitors. The Seccombe Lake Park will receive a new look and be recreated to meet the current recreational needs of the neighborhood and community.
On July 19, 2023, the Mayor and City Council approved a concept plan that included a variety of park improvements. The improvements included, but are not limited to, playground equipment, lighting, ADA accessibility, exercise stations, gazebo renovations, parking lot rehabilitation, renovation of dirt/gras areas, and new restrooms.
Discussion
RHA is requesting authorization for additional work to complete electrical design services for the Seccombe Lake Park Project. During a site visit for the design of the park improvements, RHA noted that damage was done to the park electrical system.
The damage identified during the site visit occurred after the design services agreement was awarded. As a result, additional electrical work needs to be completed to allow park operation. Since the electrical scope of work needed to be revised, City staff also discussed additional revisions to the electrical system, which have been included in the work plan. The fee for the additional electrical improvements is $26,000.
Staff recommends the inclusion of an additional $27,000 for design services contingencies for other work that may result from unforeseen circumstances.
The total cost of the additional electrical improvements and contingencies is $53,000.
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2021-2025 Strategic Targets and Goals
Authorizing the execution of this amendment aligns with Key Target No. 4: Economic Growth & Development. The additional amenities to Seccombe Lake Park will improve community participation for recreational activities and provide a safe and well- maintained community park.
Fiscal Impact
There is no General Fund impact associated with this action. Funding for this project has been secured through the American Rescue Plan (ARP) Grant funding with a remaining balance of $8,876,371. and the San Manuel Band of Mission Indians with a remaining balance of $780,594.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Approve Amendment No. 1 to the Agreement with RHA Landscape Architects – Planners Inc. in the amount of $26,000 for Nicholson Neighborhood Park Improvements (Project); and
2. Authorize the project contingencies in the total amount of $27,000 for design of the Project; and
3. Authorize the City Manager or designee to execute all documents with RHA Landscape Architects – Planners Inc.; and
4. Authorize the City Manager or designee to expend the contingency fund, if necessary, to complete the project.
5. Renew the term of the agreement to September 21, 2024.
6. If necessary, authorize the City Manager to renew the term of the agreement for up to two additional one-year terms.
Attachments
Attachment 1 Amendment No 1. To Agreement with RHA Landscape Architects – Planners Inc.
Attachment 2 Agreement with RHA Landscape Architects - Planners Inc.
Attachment 3 Location Map
Ward:
Ward 1
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Synopsis of Previous Council Actions:
September 21, 2022 Mayor and City Council approved design services agreement award for Seccombe Lake Park Revitalization Project.
June 21, 2023 Mayor and City Council approved the Concept Plan for the Seccombe Lake Park Revitalization Project.
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AMENDMENT NO. 1 TO
THE DESIGN SERVICES AGREEMENT
WITH RHA LANDSCAPE ARICHITECTS - PLANNERS, INC. FOR THE
SPEICHER MEMORIAL PARK BALLFIELD IMPROVEMENTS PROJECT
This Amendment No. 1 to the Design Services Agreement is made and entered into as of March 6, 2024 ("Effective Date"), by and between the City of San Bernardino, a charter city and municipal corporation ("City") and RHA Landscape Architects - Planners, Inc., a California corporation ("Consultant").
City and Consultant are sometimes referred to herein individually as a "Party" and collectively as "Parties."
RECITALS
A. WHEREAS, the City and the Consultant have entered into an agreement, dated, September 21, 2022, for the purpose of design services for the Speicher Memorial Park Ballfield Improvements Project (the "Original Agreement").
B. WHEREAS, the Parties now desire to amend the Original Agreement in to include additional services and to provide compensation for the additional services.
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants, conditions, and promises contained in this Amendment No. 1 and the Original Agreement, as previously amended, the Parties mutually agree as follows:
AGREEMENT
1. Incorporation of Recitals. The recitals listed above are true and correct and are hereby incorporated herein by this reference.
2. Services. The Scope of Services for the Original Agreement is hereby amended to include additional services as more particularly described in Exhibit “A -1”, attached hereto to this Amendment No. 1 and incorporated herein by this reference.
3. Compensation. The total not to exceed compensation amount shall be increased by Fifty-Three Thousand Dollars ($53,000) increasing the total not to exceed compensation amount from Five Hundred Thirty -Seven Thousand Eight Hundred Fifty-Five Dollars ($537,855) to Five Hundred Ninety Thousand Eight Hundred Fifty-Five Dollars ($590,855).
4. Full Force . Except as amended by this Amendment No. 1, all
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provisions of the Original Agreement, as previously amended, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the Parties under this Amendment No. 4.
5. Electronic Transmission . A manually signed copy of this Amendment No. 4 which is transmitted by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Amendment No. 1 for all purposes. This Amendment No. 1 may be signed using an electronic signature.
6. Counterparts. This Amendment No. 1 may be signed in
counterparts, each of which shall constitute an original.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE TO
AMENDMENT NO. 1 TO
DESIGN SERVICES AGREEMENT
WITH RHA LANDSCAPE ARCHITECTS – PLANNERS, INC.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment No.1 on the Effective Date first herein above written.
CITY OF SAN BERNARDINO CONSULTANT
APPROVED BY: RHA LANDSCAPE
ARCHITECTS PLANNERS, INC.
Charles A. Montoya,
City Manager Signature
APPROVED AS TO FORM: Name
Best Best & Krieger LLP
City Attorney
Title
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EXHIBIT A-1
SCOPE OF ADDITIONAL SERVICES
[ATTACHED]
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Attachment 3
Seccombe Lake Park
600 ft
N ➤ ➤
N
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: March 6, 2024
To: Honorable Mayor and City Council Members
From: Charles A. Montoya, City Manager;
Lynn Merrill, Director of Public Works, Operations, and Maintenance
Department: Public Works
Subject: Amendment No. 1 to Agreement with IDS Group Inc. for Speicher Memorial Park Design Services (Ward 2)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Approve Amendment No. 1 to the Agreement with IDS Group Inc. in the amount of $209,179 for Speicher Memorial Park Improvements (Project); and
2. Authorize the project contingencies in the total amount of $39,000 for design of the Project; and
3. Authorize the City Manager or designee to execute all documents with IDS Group, Inc.; and
4. Authorize the City Manager or designee to expend the contingency fund, if necessary, to complete the project.
Executive Summary:
Amending the Agreement for Design Services for the Speicher Memorial Park Project would lead to the construction of park amenities, returning the park to a safe and attractive condition. The amendment would allow IDS Group, Inc. (IDS) to complete additional work necessary for the design of the park improvements.
Amendment No. 1 will include IDS’s design services fee of $209,179. Additional funds are recommended for contingencies in the amount of $39,000. The total cost for the additional design services including contingencies is $248,179.
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Background
Speicher Memorial Park is a 29-acre facility, which includes five baseballs fields. The project will revitalize the park with improved amenities, and restoration of existing infrastructure. The park will receive an updated look and be recreated to meet the current recreational needs of the neighborhood and community.
On March 1, 2023, the Mayor and City Council approved Resolution No. 2023-036 rejecting construction bids for Speicher Park Renovation. Since the City received only one construction bid and the received bid amount was significantly above the Engineer’s overall estimate, Public Works staff recommended that the City Council reject the bid submitted for the subject project and allow staff to re-evaluate the project, coordinating with the Parks and Recreations Department to revise the scope of work to stay within the available budget.
On June 21, 2023, the Mayor and City Council awarded a design services agreement to IDS. The scope of work included, but is not limited to, lighting, ADA accessibility, parking lot rehabilitation, new restrooms, and improvements to Huchabaa, Mason, and Montgomery Baseball Fields.
Discussion
A kickoff meeting was attended by City staff and the IDS design team to walk through Speicher Park and discuss the scope of work. During the meeting various improvements were discussed with City staff. After a few follow up meetings, IDS prepared an additional services request. This request includes the additional scope of work and fee to design the additional improvements that were discussed during the meetings. The cost to provide additional services is $209,179.
Staff recommends the inclusion of an additional $39,000 for design services contingencies for other work that may result from unforeseen circumstances.
The revised scope of services will be a phased approach that will allow the City to construct a portion of the design with the available funding. Items not constructed in the first phase will be designated for future construction phases.
The total cost for the additional design services and contingencies is $248,179. 2021-2025 Strategic Targets and Goals
Authorizing the execution of this amendment aligns with Key Target No. 4: Economic Growth & Development. The additional amenities to Speicher Memorial Park will improve community participation for recreational activities and provide a safe and well- maintained community park.
Fiscal Impact
There is no General Fund impact with this item. Funding for this project is provided through the American Rescue Plan Grant fund with a remaining balance of
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$929,216. and a grant from the San Manuel Mission Indians with a remaining balance of $982,410.42.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Approve Amendment No. 1 to the Agreement with IDS Group Inc. in the amount of $209,179 for Speicher Memorial Park Improvements (Project); and
2. Authorize the project contingencies in the total amount of $39,000 for design of the Project; and
3. Authorize the City Manager or designee to execute all documents with IDS Group, Inc.; and
4. Authorize the City Manager or designee to expend the contingency fund, if necessary, to complete the project.
Attachments
Attachment 1 Amendment No 1. to Agreement with IDS Group Inc.
Attachment 2 Agreement with IDS Group, Inc.
Attachment 3 Location Map
Ward:
Ward 2
Synopsis of Previous Council Actions:
March 1, 2023 Mayor and City Council adopted Resolution No. 2023-036 rejecting construction bids for Speicher Park Renovation Project.
June 21, 2023 Mayor and City Council adopted Resolution No. 2023-084 approving the award of a design services agreement with IDS Group Inc. for the Speicher Memorial Park Ballfield
Improvements Project.
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AMENDMENT NO. 1 TO
THE DESIGN SERVICES AGREEMENT
WITH IDS GROUP, INC. FOR THE SPEICHER MEMORIAL PARK
BALLFIELD IMPROVEMENTS PROJECT
This Amendment No. 1 to the Design Services Agreement is made and entered into as of March 6, 2024 ("Effective Date"), by and between the City of San Bernardino, a charter city and municipal corporation ("City") and IDS Group, Inc., a California corporation ("Consultant"). City and Consultant are sometimes referred to herein individually as a "Party" and collectively as "Parties."
RECITALS
A. WHEREAS, the City and the Consultant have entered into an agreement, dated, June 21, 2023, for the purpose of design services for the Speicher Memorial Park Ballfield Improvements Project (the "Original Agreement").
B. WHEREAS, the Parties now desire to amend the Original Agreement in to include additional services and to provide compensation for the additional services.
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants, conditions, and promises contained in this Amendment No. 1 and the Original Agreement, as previously amended, the Parties mutually agree as follows:
AGREEMENT
1. Incorporation of Recitals. The recitals listed above are true and correct and are hereby incorporated herein by this reference.
2. Services. The Scope of Services for the Original Agreement is hereby amended to include additional services as more particularly described in Exhibit “A -1”, attached hereto to this Amendment No. 1 and incorporated herein by this reference.
3. Compensation. The total not to exceed compensation amount shall be increased by Two Hundred Forty -Eight Thousand One Hundred Seventy-Nite Dollars ($ 248,179) increasing the total not to exceed compensation amount from One Hundred Eighty Thousand Nine Hundred Forty-Three Dollars ($ 180,943) to Four Hundred Twenty -Nine Thousand One Hundred Twenty -Two Dollars ($429,122).
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4. Full Force . Except as amended by this Amendment No. 1, all provisions of the Original Agreement, as previously amended, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the Parties under this Amendment No. 4.
5. Electronic Transmission . A manually signed copy of this Amendment No. 4 which is transmitted by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Amendment No. 1 for all purposes. This Amendment No. 1 may be signed using an electronic signature.
6. Counterparts. This Amendment No. 1 may be signed in
counterparts, each of which shall constitute an original.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE TO
AMENDMENT NO. 1 TO
DESIGN SERVICES AGREEMENT
WITH IDS GROUP, INC.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment No.1 on the Effective Date first herein above written.
CITY OF SAN BERNARDINO CONSULTANT
APPROVED BY: IDS GROUP, INC.
Charles A. Montoya,
City Manager Signature
APPROVED AS TO FORM: Name
Best Best & Krieger LLP
City Attorney
Title
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EXHIBIT A-1
SCOPE OF ADDITIONAL SERVICES
[ATTACHED]
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February 9, 2024
Eddie Mendez, PE Submitted via emai: [email protected] Principal Civil Engineer
City of San Bernardino
Public Works Engineering Division
290 North D Street
San Bernardino, CA 92401
(909) 384-5140 ext 3608
Subject: Additional Services Request – City of San Bernardino Speicher Park Improvements, Project PR 23-006
Dear Mr. Mendez:
IDS Group would like to present this proposal for additional services request for the above referenced project at Speicher Park for the City of San Bernardino (City) per your email direction on December 4, 2023. This proposal outlines our revised Understanding, Additional Scope of Work, Deliverable s, Assumptions and Exclusions, and Compensation. We understand that time is critical for the City to meet the March 31, 2024 permit submission deadline for the funding grant. Therefore, while this proposal is being reviewed and approved, IDS Group will continue work at-risk per the additional scope as outlined below.
Project Description
IDS understands that the City has made significant changes to the approach and scope in regards to the project site and is requesting additional services. The list of these items and original scope is provide below in Attachment “C.” The City would like to include the following additional scope:
All Fields:
▪ Architecture
o Replace old fence fabric in all areas, especially backstops with high gage material. o Replace backstop boards and edge surface cushion rubber. o Add shade covers over dugouts.
o Demo existing score booths and replace with ADA accessible concrete pads and rails, minimum 15’X15’. (Note: The booths at O’Grady and Gurule Fields are shown to -remain on the 30% CD, by replacing the roofs, modifying the railings, and adding a short ramp and landing at the doors.) o Add Batter’s Eye along all outfield fence lines and foul lines. ▪ Structural
o Footing, sizing, and connection details for shade covers over dugouts and batter’s eye locations. o Concrete pad details at previous score booths.
▪ Landscape / Civil / Plumbing
o Infield renovation s: scarify, add infield mix, level, and renovate crown. Re -do all pitching mounds (baseball play only, excludes Mason, Montgomery, and Gurule softball fields).
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▪ Electrical
o Upgrade all lighting building and security lighting to LED. Solar lighting is excluded. o Replace wooden lighting poles with standard steel or aluminum Musco, or approved equal. o Additional security lighting between fields.
Huckabaa Field:
▪ Architecture
o To properly protect the integrity of the synthetic turf field, will add control features such as a perimeter wrought-iron fence and locking entry gates, etc.
o Remodel existing concessions building. The scope includes replacing flooring, counter and sink, wall paint, new storage room(s) shelving, restroom upgrades (floor, fixtures, wall covering , and ADA compliance).
▪ Structural
o Fence footing details.
o Footing details for outfield batter’s eye at Huckabaa Field. o New roof at concessions building.
▪ Landscape / Civil
o Ground squirrel infestation created outfield and infield holes and ruts. Design to include re-grading and new synthetic turf (floating the outfield).
o Infield crown renovation.
o Accessible ramp to connect middle ADA parking at large parking lot to bleacher area. o Assess and renovate irrigation system for proper coverage o Relocate existing irrigation line so that it is no longer under Huchabaa field. ▪ Mechanical/Plumbing
o Engineering for existing concessions building remodel in accordance with Health Department Requirements
▪ Replace evaporative cooler.
▪ Provide required heating unit at kitchen & office.
▪ Provide Grease Trap at new 3-comp sink
▪ Plumbing adjustments to (3) restrooms and connections to new fixtures, including 3-comp sink.
▪ Evaluate and resize the water heater as needed.
Mason & Montgomery Fields (Softball – No Mounds):
▪ Landscape / Civil
o Ground squirrel infestation created turf (and infield) holes and ruts. Design to include re-grading the turf (floating the outfield) and infield crown renovation.
o Replace the existing asphalt walking areas around the concessions/electrical building with concrete.
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Speicher Park Improvements, PR 23-006 | Page 3
o Accessible ramp to connect northerly ADA parking at large parking lot to both fields and concessions building.
O’Grady and Gurule Fields:
▪ Architecture
o Replace bleacher units at each field. Maintain a minimum of 52 seats on each side (Home & Visitor) = 21’ Long, 5 Rows.
▪ Civil/Landscape
o Mitigate drainage problem behind backstop and First Base area for both fields – major flooding during rain.
o Add three (3) accessible ramps: from concessions plaza to bleacher areas for O’Grady, Gurule, and between both fields.
o Assess and renovate irrigation system for proper coverage. o Outfield renovation: mitigate uneven ground due to squirrel infestation, float outfield, aerate, re-seed or sod where necessary.
o O’Grady: Restore quick coupler once the synthetic infield turf is removed. ▪ Structural
o Add pads for new bleachers.
▪ Electrical
o Add more security lighting between three fields (O’Grady/Gurule/Huckabaa). o Gurule: Repair Third Base light pole “tripping” problem.
General Park Improvements:
▪ Architecture
o Arden Parking Lot:
▪ Demo existing restroom building and replace with Prefab. ▪ Add trash bin enclosure.
▪ Install (3) new trash bin enclosures at north end and south end of Large South Parking Lot. ▪ Structural
o Slab and footing details at (3) trash bin enclosures. ▪ Landscape
o Install new accessible drinking fountains around ballfields. o Install new outdoor fitness equipment stations around north walking path. ▪ Civil
o Grading & Drainage for (3) new trash enclosures.
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Other Notes:
▪ Bury all pull boxes and junction boxes to prevent thievery of wire, vandalism, etc. ▪ It is recognized that SCE plan checks take a long time. ▪ Traditional Baseball/Softball Season operates from late January (Registration ends and tryouts begin), with team practices staring in mid -February and game play start in mid -March through mid -June, and then playoff/all-star play through July. Construction that goes through May will definitely have a MAJOR impact upon ballfield user groups. Improvements to O’Grady and Gurule first will impact the Arrowhead Little League the least, followed by Mason/Montgomery
▪ Bi-weekly meetings w/City requested, pending staff availability.
Scope of IDS Services and Deliverables
Our scope of services consists of providing architectural and engineering design and bidding/construction administration services in support of the project’s intended work, according to the following:
• Conduct site visits to document existing building/site systems. • Attend bi-weekly meetings with the City’s project team as needed. • Provide required mechanical, plumbing, and electrical engineering and landscape architecture coordination services with local utility companies & Health Department in support of the City’s proposed scope of work. • Provide architecture, civil, landscape, structural, mechanical, electrical, plumbing, and cost estimating services in support of the City’s proposed scope of work.
30% Construction Document Phase:
o Conduct a field review of the existing buildings and site, and locate the building on the site using apparent limits of the property (survey provided by other).
o Conduct as-built measurements and convert existing drawings to CAD format. o Provide Code analysis and design describing our findings and laying out options. o Prepare 30% Construction Documents (Scoping Plans), which incorporate City’s scope, and submit them to the City for review.
90% Construction Document Phase:
o Integrate survey documents into Construction Drawings. o Prepare 90% Construction Documents, which incorporate the City’s 30% CD Set Comments, including building plans (floor, finish, ceiling, roof), elevations, and sections of all new or remodeled structures, trash enclosure plans and details, irrigation plans and details, accessible upgrades at parking lots and hardscape, field improvements, and MEP upgrades. Submit for plan check to agencies having jurisdiction for review.
100% Construction Documents/Plan Review Phase:
o Prepare 100% CDs incorporating all City’s 90% CD comments and other revisions. o Incorporate plan check corrections into the final/ approved Construction Documents’ drawings and specifications.
o Incorporate revisions due to bidders’requests for information(RFI’s) and substitution requests. o Issue a For Construction Set.
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Bid and Construction Administration Support Phase:
Provide bidding and Construction Administration support services:
o Review and provide written responses to the contractor’s RFI’s. o Review and process shop drawings and submittals.
o Attend a bid walk and construction kickoff meeting.
o Attend 30-minute bi-weekly construction status conference calls and site/construction progress meetings to review construction progress (maximum of 6 on-site meetings). We presume that the City Staff will conduct the meetings and prepare the meeting minutes.
o Provide punch list and project close-out assistance.
o Prepare Record Drawings based on Contractor redlines.
Exclusions and Assumptions
• City will provide available as-built utility drawings for our use. • Site access improvements assume accessible parking adjacent to the building and POT from parking to the building only; documentation and design for accessible POT from the public way to the building and/or interconnecting with other buildings on site excluded.
• Disabled access compliance at the restroom assumes changes to plumbing fixtures and electrical system will not require anything more than minor placement adjustments. • Electrical distribution and emergency systems upgrades outside of our scope of work above are excluded. • Fire alarm design, modifications, and/or interfaces outside of our scope of work above are excluded. • Automatic fire sprinkler system design, if needed, is not included in our scope. • Plan check submittal and permit fees are not included in our fee. • Additional design work due to Value Engineering/Peer Review is excluded. • Remedial permit approvals for work previously performed and for which there is no record of a permit are excluded.
• Testing for the presence of hazardous materials of any kind and mitigation requirements for the same is not included.
• Project book specifications are excluded.
• Resolutions to deficiencies within the existing wall fire rating, siting, and/or building separations are excluded. • Analysis, review, design, strengthening, retrofit, etc. of structural load support and/or lateral force resisting systems not directly related to architectural or MPE elements of this project are excluded. • Our construction administration proposed fee is based on a construction duration not exceeding nine months, including not-to-exceed 6 site meetings. Most meetings will be held via teleconferencing. • Commissioning of equipment or systems is excluded.
• Mechanical upgrades at Huckabaa Concessions Building assumes like-for-like replacement of fixtures and will not require revisions to the envelope.
1 Peters Canyon Road, Suite 130, Irvine California 92606 ▲ T: 949.387.8500 ▲ F: 949.387.0800 ▲ www.idsgi.com
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Deliverables
The deliverables will include all files related to the design efforts listed above. Milestones will include 30%, 90% and 100% submittals plans with associated cost estimates. This will include one review and comment cycle by City for each milestone.
Assumptions and Exclusions
IDS will prepare the design plans for the improvements noted above.
Excludes additional work not noted above. Project Specifications will be placed onto the drawings and no book format specifications will be provided.
Compensation
IDS shall perform the Additional Scope‐of‐Work, as described above, on a Lump Sum basis for $209,179 per the attached breakdown of tasks and hours. The following Table summarizes this fee:
Phase Task Fees
Program Development & Construction
Documents – 30% level
$34,845
Aerial/Topographic Surveys & IDS
Coordination
$9,660
Construction Documents – 90% level $91,746
Construction Documents – 100% level $33,521
Construction Cost Estimates $5,760
Bid Support & Construction Administration $33,647
Fee Proposal Total $209,179
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We appreciate the opportunity to provide continued support to the City. Please contact Adrian Anderson, PE, who will continue to oversee the project. He can be reached at 949.387.8500, ext. 509 or via email at [email protected]. Dr. Said Hilmy, PhD, SE, LEED AP, Principal, continues to serve as Contract Administration for our additional services request. You may contact him at 949.387.8500 ext. 116 or via email at [email protected]. Thank you and we look forward to hearing from you soon.
Sincerely,
Adrian Anderson, PE Said Hilmy, PhD, SE, LEED AP
Associate Principal Civil Project Manager Principal / Contract Administrator
cc: John Silber, RA - IDS Principal Architect
Matthew Miller, AIA, LEED AP – Sr. Associate/PM
Attachments:
A Fee Schedule
B. IDS Group 2024 Rates
C. Consolidated Scope List – 6/27/23 Contract & 2/9/24 Add-Service
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A. Fee Schedule
Attachment “A”
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B. 2024 Rate Sheet
Attachment “B”
IDS Group, Inc.
2024 Rate Sheet
Title – Association Hourly Rate
Principal $240
Associate Principal $225
Senior Project Manager Associate $217
Project Manager $202
Senior Architect or Engineer $190
Senior Cost Estimator $180
Project Architect or Engineer $180
Designer Architect or Engineer $163
Engineering Designer - BIM $143
Architectural Job Captain | Designer $135
CAD Drafting Engineer | Architect $121
Office Administration $75
Expenses such as, but not limited to, plan check fees, permits, inspections, testing services, title company fees, special delivery charges, plotting/ presentation boards, maps, aerial photographs, and reprographics/ illustrations that may be required for community or other stakeholder presentation, shall be billed to the owner at Consultant’s direct cost plus 10%.
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Attachment “C”
SPEICHER MEMORIAL PARK IMPROVEMENTS - CONSOLIDATED SCOPE LIST
KEY
Contract #1, Executed 6/27/23
Add-Service Proposal, 2/9/24
• All Fields:
o Architecture
▪ Replace bleacher units for all field locations. Maintain a minimum of 52 seats on each side (Home & Visitor) = 21’ Long, 5 Rows.
▪ Replace old fence fabric in all areas, especially backstops with high gage material. ▪ Replace backstop boards and edge surface cushion rubber. ▪ Add shade covers over dugouts.
▪ Demo existing score booths and replace with ADA accessible concrete pads and rails, minimum 15’X15’. (Note: The booths at O’Grady and Gurule Fields could remain by replacing the roofs, modifying the railsing, and adding a short ramp and landing at the doors.) ▪ Add Batter’s Eye along all outfield fence lines and foul lines. o Structural
▪ Footing, sizing, and connection details for shade covers over dugouts and batter’s eye locations. ▪ Concrete pad details at previous score booths.
o Landscape / Civil / Plumbing
▪ Outfield renovation: mitigate uneven ground due to squirrel infestation, float outfield, aerate, re- seed or sod where necessary. (Sod now required due to gopher infestation, w/ new mesh to be installed beneath sod.)
▪ Repair and/or installation of new irrigation system.
▪ Infield renovation: scarify, add infield mix, level, and renovate crown. Re-do all pitching mounds (baseball play only, excludes Mason, Montgomery, and Gurule softball field). o Electrical
▪ Replace all scoreboards with wireless.
▪ Upgrade all lighting (ballfield, building, and security lighting) to LED. Solar lighting is excluded. ▪ Replace wooden lighting poles with standard steel or aluminum Musco, or approved equal.
• Huchabaa Field:
o Architecture
▪ To properly protect the integrity of the synthetic turf field, will add control features such as a perimeter wrought-iron fence and locking entry gates, etc. ▪ Remodel existing concessions building. The scope includes replacing flooring, counter and sink, wall paint, new storage room(s) shelving, restroom upgrades (floor, fixtures, wall covering , and ADA compliance).
o Structural
▪ Fence footing details.
▪ Footing details for outfield batter’s eye at Huckabaa Field.
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o Landscape / Civil
▪ Installation of drainage system.
▪ Remove outfield grass and replace it with Synthetic Turf. ▪ Grading.
▪ Ground squirrel infestation created outfield and infield holes and ruts. Design to include re - grading and new synthetic turf (floating the outfield). ▪ Infield crown renovation.
▪ Accessible ramp to connect middle ADA parking at large parking lot to bleacher area. ▪ Assess and renovate irrigation system for proper coverage ▪ Relocate existing irrigation line so that it is no longer under Huchabaa field.
o Mechanical
▪ Engineering for existing concessions building remodel in accordance with Health Department Requirements
• Replace evaporative cooler.
• Provide required heating unit at kitchen & office.
• Provide Grease Trap at new 3-comp sink
• Plumbing adjustments to (3) restrooms and connections to new fixtures, including 3 - comp sink.
• Evaluate and resize the water heater as needed.
• Montgomery and Mason Fields (No Mound at Softball Field):
o Architecture / Plumbing
▪ Demo existing Concessions Building (secure electrical room) and replace with prefab unit to include restrooms and small storage.
o Landscape / Civil
▪ Ground squirrel infestation created turf (and infield) holes and ruts. Design to include re-grading the turf (floating the outfield) and infield crown renovation. o Civil
▪ Remove and replace sod. New grading as required.
▪ Replace the existing asphalt walking areas around the concessions/electrical building with concrete.
▪ Accessible ramp to connect northerly ADA parking at large parking lot to both fields and concessions building.
• O’Grady Field (Only):
o Landscape / Civil
▪ Remove existing organic turf from the infield and replace it with dirt. ▪ Restore quick coupler once the synthetic infield turf is removed.
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• Gurule Field (Only):
o Electrical
▪ Repair Third Base light pole “tripping” problem..
• O’Grady and Gurule Fields:
o Civil/Landscape
▪ Mitigate drainage problem behind backstop and First Base area for both fields – major flooding during rain.
▪ Three (3) accessible ramps: from concessions plaza to bleacher areas for O’Grady, Gurule, and between both fields.
▪ Assess and renovate irrigation system for proper coverage. ▪ Outfield renovation: mitigate uneven ground due to squirrel infestation, float outfield, aerate, re- seed or sod where necessary.
o Structural
▪ Add pads for new bleachers.
• General Park Improvements:
o Install score boards at all 5 ballfields.
o Install trash can receptacles and water fountains for new concession buildings. o Construct 4” concrete area between and around Montgomery and Mason Fields. o Remove and replace bleachers at all five (5) fields.
o Architecture
▪ Arden Parking Lot: Add (1) trash bin enclosure.
▪ Install (2) new trash bin enclosures at north end and south end of Large South-End Parking Lot. o Structural
▪ Slab and footing details at (3) trash bin enclosures. o Landscape
▪ Install more trash receptacles around ballfield buildings. ▪ Install new accessible drinking fountains around ballfields. ▪ Install new outdoor fitness equipment stations around north walking path. o Civil
▪ Grading & Drainage for (3) new trash enclosures.
o Parking lot improvements
▪ Large South-End Parking Lot Rebab: Asphalt Content – full depth replacement at patches where existing AC is failing, grind and overlay, re-stripe lot, re-grade ADA stalls to meet required slopes, accessible curb ramps at 3 (three) locations, ADA signage, and directional arrows (Egress & Ingress).
▪ Arden Parking Lot: full depth replacement at patches where existing AC is failing, slurry seal, restripe, re -grade ADA stalls to meet required slopes, one (1) accessible curb ramp, and ADA signage.
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Exhibit B-1
CITY OF SAN BERNARDINO
DESIGN SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into as June 21, 2023 by and between the City of San Bernardino, a charter city and municipal corpor ation 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, California 92401 (“City”), and IDS Group, Inc., a California Corporation with its principal place of business at 1 Peters Canyon Road, Suite 130, Irvine, CA 92606 (hereinafter referred to as “Designer”). City and Designer are sometimes individually referred to herein as “Party” and collectively as “Parties.”
2. RECITALS.
2.1 City. City is a municipal corporation organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.
2.2 Designer. Designer desires to perform and assume responsibility for the provision of certain professional design services required by the City on the terms and conditions set forth in this Agreement. Designer warrants that it is fully licensed, qualified, and willing to perform the services required by this Agreement; provided, however, that if Designer is a corporation or other organization, the Project Designer designated pursuant to Section 3.2, and not the Designer itself, shall be fully licensed to practice as an architect and/or engineer in the State of California.
2.3 Project. City desires to engage Designer to render such services for the Speicher Memorial Park Ballfield Improvements Project ("Project") as set forth in this Agreement.
3. TERMS
3.1 Employment of Designer.
3.1.1 Scope of Services. Designer promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional design and related services necessary for the full and adequate completion of the Project consistent with the provisions of this Agreement (hereinafter referred to as “Services”). The Services are more particularly described throughout this Agreement, including Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Designer shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld. Additionally, Designer shall comply with all Federal requirements applicable to the Services as set forth in Exhibit “A-I.”
3.1.2 Ter m. The term of this Agreement shall be from June 21, 2023 to June 21, 2025, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.
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3.2 Project Designer; Key Personnel.
3.2.1 Project Designer. Designer shall name a specific individual to act as Project Designer, subject to the approval of City. Designer hereby designates Said Hilmy to act as the Project Designer for the Project. The Project Designer shall: (1) maintain oversight of the Services; (2) have full authority to represent and act on behalf of the Designer for all purposes under this Agreement; (3) supervise and direct the Services using his or her best skill and attention; (4) be responsible for the means, methods, techniques, sequences and procedures used for the Services; (5) adequately coordinate all portions of the Services; and (6) act as principal contact with City and all contractors, consultants, engineers and inspectors on the Project. Any change in the Project Designer shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld. The new Project Designer shall be of at least equal competence as the prior Project Designer. In the event that City and Designer cannot agree as to the substitution of a new Project Designer, City shall be entitled to terminate this Agreement for cause.
3.2.2 Key Personnel. In addition to the Project Designer, Designer has represented to the City that certain additional key personnel, engineers and consultants will perform the Services under this Agreement. Should one or more of such personnel, engineers or consultants become unavailable, Designer may substitute others of at least equal competence upon written approval of the City. In the event that City and Designer cannot agree as to the substitution of key personnel, engineers or consultants, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel, engineers or consultants who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Designer at the request of the City. The key additional personnel, engineers and consultants for performance of this Agreement are as follows:
Said Hilmy, PhD, SE, LEED AP, Principal
John Silber, AIA, Principal Architect
Ricardo Bermudez, NCARB, LEED AP, Quality Assurance/Quality Control
3.3 Hiring of Consultants and Personnel.
3.3.1 Right to Hire or Employ. Designer shall have the option, unless City objects in writing after notice, to employ at its expense architects, engineers, experts or other consultants qualified and licensed to render services in connection with the planning and/or administration of the Project, and to delegate to them such duties as Designer may delegate without relieving Designer from administrative or other responsibility under this Agreement. Designer shall be responsible for the coordination and cooperation of Designer’s architects, engineers, experts or other consultants. All consultants, including changes in consultants, shall be subject to approval by City in its sole and reasonable discretion. De signer shall notify City of the identity of all consultants at least fourteen (14) days prior to their commencement of work to allow City to review their qualifications and approve to their participation on the Project in its sole and reasonable discretion.
3.3.2 Q ualification and License. All architects, engineers, experts and other consultants retained by Designer in performance of this Agreement shall be qualified to perform
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the Services assigned to them, and shall be licensed to practice in their respective professions, where required by law.
3.3.3 Standards and Insurance. All architects, engineers, experts and other consultants hired by Designer shall be required to meet all of the same standards and insurance requirements set forth in this Agreement, unless other standards or requirements are approved by the City in writing. Unless changes are approved in writing by the City, Designer’s agreements with its consultants shall contain a provision making them subject to all provisions stipulated in this Agreement.
3.3.4 A ssignments or Staff Changes. Designer shall promptly obtain written City approval of any assignment, reassignment or replacement of such architects, engineers, experts and consultants, or of other staff changes of key personnel working on the Project. As provided in the Agreement, any changes in Designer’s consultants and key personnel shall be subject to approval by City.
3.3.5 Draftsman and Clerical Support. Draftsmen and clerical personnel shall be retained by Designer at Designer’s sole expense.
3.4 Standard of Care.
3.4.1 Standard of Care. Designer shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform the Services in the same discipline in the State of California, and shall be responsible to City for damages sustained by the City and delays to the Project as specified in the indemnification provision of this Agreement. Without limiting the foregoing, Designer shall be fully responsible to the City for any increased costs incurred by the City as a result of any such delays in the design or construction of the Project. Designer represents and maintains that it is skilled in the professional calling necessary to perform the Services. Designer warrants and represents that all of its employees, architects, engineers, experts and other consultants shall have suffici ent skill and experience to perform the Services assigned to them. Finally, Designer represents that it, its employees, architects, engineers, experts and other consultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services assigned to or rendered by them and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Designer shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Designer’s failure to comply with the standard of care provided for herein.
3.4.2 P erformance of Employees. Any employee or consultant who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee or consultant who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Designer and shall not be re-employed to perform any of the Services or to work on the Project.
3.5 Laws and Regulations.
3.5.1 Knowledge and Compliance. Designer shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in any
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manner affecting the performance of the Services or the Project, and shall give all notices required of the Designer by law. Designer shall be liable, pursuant to the standard of care and indemnification provisions of this Agreement, for all violations of such laws and regulations in connection with its Services. If the Designer performs any work knowing it to be contrary to such laws, rules and regulations, Designer shall be solely responsible for all costs arising therefrom.
Designer shall defend, indemnify and hold City, its officials, officers, employees and agents free and harmless, pursuant to the indemnification prov isions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.5.2 Drawings and Specifications. De signer shall cause all drawings and specifications to conform to any applicable requirements of federal, state and local laws, rules and regulations, including the Uniform Building Code, in effect as of the time the drawings and specifications are prepared or revised during the latest phase of the Services described in Exhibit “A” attached hereto. Any significant revisions made necessary by changes in such laws, rules and regulations after this time may be compensated as Additional Services which were not known or reasonably should not have been known by Designer. Designer shall cause the necessary copies of such drawings and specifications to be filed with any governmental bodies with approval jurisdiction over the Project, in accordance wit h the Services described in Exhibit “A” attached hereto. For the preparation of all such drawings and specifications, the Designer shall use Computer Aided Design Drafting (“CADD”) (e.g., AutoCAD) or other technology acceptable to the Designer and City.
3.5.3 A mericans with Disabilities Act. Designer will use its best professional efforts to interpret all applicable federal, state and local laws, rules and regulations with respect to access, including those of the Americans with Disabilities Act (“ADA”). Designer shall inform City of the existence of inconsistencies of wh ich it is aware or reasonably should be aware between federal and state accessibility laws, rules and regulations, as well as any other issues which are subject to conflicting interpretations of the law, and shall provide the City with its interpretation of such inconsistencies and conflicting interpretations. Unless Designer brings such inconsistencies and conflicting interpretations to the attention of the City and requests City’s direction on how to proceed, the Designer’s interpretation of such inconsistencies and conflicting interpretations shall be the sole responsibility and liability of Designer, and the Designer shall correct all plans, specifications and other documents prepared for the Project at no additional cost if its interpretations are shown to be incorrect. In the event that the Designer request’s City’s direction on how to proceed with respect to any inconsistent and/or conflicting interpretation, the Designer shall be responsible to the City only purs uant to the indemnification provisions of this Agreement.
3.5.4 P ermits, Approvals and Authorizations. Designer shall provide City with a list of all permits, approvals or other authorizations required for the Project from all federal, state or local governmental bodies with approval jurisdiction over the Project. Designer shall then assist the City in obtaining all such permits, approvals and other authorizations. The costs of such permits, approvals and other authorizations shall be paid by the City.
3.5.5 Water Quality Management and Compliance.
(a) Compliance with Water Quality Laws, Ordinances and Regulations.
Designer shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water
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Pollution Control Act (33 U.S.C. § 1251 et seq.); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); and any and all regulations, policies, or permits issued pursuant to any such authority. Designer shall additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges.
(b) Standard of Care. Designer warrants that all employees and subcontractors shall have sufficient skill and ex perience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies described in Sections 3.5.5(a) of this Agreement. Designer further warrants that it, its employees and subcontractors will receive adequate training, as determined by the City, regarding these requirements as they may relate to the Services.
(c) L iability for Non-compliance.
(i) Indemnity: Failure to comp ly with laws, regulations, and ordinances listed in Sections 3.5.5(a) of this Agreement is a violation of federal and state law.
Notwithstanding any other indemnity contained in this Agreement, Designer agrees to indemnify and hold harmless the City, its officials, office rs, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the laws, regulations, and or dinances listed above, arising out of or in connection with the Services, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers.
(ii) D efense: City reserves the right to defend any enforcement action or civil action brought against the City for Designer’s failure to comply with any applicable water quality law, regulation, or policy. Designer hereby agrees to be bound by, and to reimburse the City for the costs associated with, any settlement reached between the City and the relevant enforcement entity.
(iii) Damages: City may seek damages from Designer for delay in completing the Services caused by Designer’s failure to comply with the laws, regulations and policies described in Section 3.5.5(a) of this Agreement, or any other relevant water quality law, regulation, or policy.
3.5.6 Air Quality.
(a) Compliance with Air Quality Laws, Ordinances, and Regulations. Contractor must fully comply with all applicable laws, rules and regula tions in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CAR B). Contractor shall specifically be aware of the CARB limits and requirements’ application to “portable equipment”, which definition is considered by CARB to include any item of equi pment with a fuel-powered engine. Contractor shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable la ws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.
3.6 Independent Contractor.
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3.6.1 Control and Payment of Subordinates. City retains Designer on an independent contractor basis and Designer is not an employee of City. Designer is not an employee for state tax, federal tax or any other purpose, and is not entitled to the rights or benefits afforded to City’s employees. Any additional personnel performing the Services under this Agreement on behalf of Designer shall also not be employees of City, and shall at all times be under Designer’s exclusive direction and control. Designer shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Designer shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
3.7 Schedule of Services.
3.7.1 Designer Services. Designer shall fully and adequately complete the Services described in this Agreement and in Exhibit “A” attached hereto and incorporated herein by reference.
3.7.2 Ti mely Performance Standard. Designer shall perform all Services hereunder as expeditiously as is consistent with professional skill and care, as well as the orderly progress of the Project work so as not to be the cause, in whole or in part, of delays in the completion of the Project or in the achievement of any Project milestones, as provided herein.
Specifically, Designer shall perform its Services so as to allow for the full and adequate completion of the Project within the time required by the City and within any completion schedules adopted for the Project. Designer agrees to coordinate with City’s staff, contractors and consultants in the performance of the Services, and shall be available to City’s staff, contractors and consultants at all reasonable times.
3.7.3 Performance Schedule. Designer shall prepare an estimated time schedule for the performance of Designer’s Services, to be adjusted as the Project proceeds.
Such schedule shall be subject to the City’s review and approval, which approval shall not be unreasonably withheld, and shall include allowances for periods of time required for City’s review and approval of submissions, and for approvals of authorities having jurisdiction over Project approval and funding. If City and Designer cannot mutually agree on a performance schedule, City shall have the authority to immediately terminate this Agreement. The schedule shall not be exceeded by Designer without the prior written approv al of City. If the Designer’s Services are not completed within the time provided by the agreed upon performance schedule, or any milestones established therein, it is understood, acknowledged and agreed that the City will suffer damage for which the Designer will be responsible pur suant to the indemnification provision of this Agreement.
3.7.4 E xcusable Delays. Any delays in Designer’s work caused by the following shall be added to the time for completion of any obligations of Designer: (1) the actions of City or its employees; (2) the actions of those in direct contractual relationship with City; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any parties not within the reasonable control of the Designer; and (5) Force Majeure Event . Neither the City nor the Designer shall be liable for damages, liquidated or otherwise, to the other on account of such delays. Such a non-compensable adjustment shall be Designer’s sole and exclusive remedy for such delays and the Designer will not receive an adjustment to the contract price or any other compensation. A Force Majeure Event shall mean an event that materially affects a party’s performance and is one or more of the following: (1) Acts of God or other natural disasters
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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 work); (4) pandemics, epidemics or quarantine restrictio ns; and (5) strikes and other organized labor action occurring at the project site and the effects thereof on the work, only to the extent such strikes and other organized labor action are beyond the control of Designer and its subcontractors, of every tier, and to the extent the effects thereof cannot be avoided by use of replacement workers. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.
3.7.5 Request for Excusable Delay Credit. The Designer shall, within fifteen (15) calendar days of the beginning of any excusable delay, notify the City in writing of the causes of delay (unless City grants in writing a further period of time to file such notice prior to the date of final payment under the Agreement). City will then ascertain the facts and the extent of the delay, and grant an extension of time for completing the Services when, in its sole judgment, the findings of fact justify such an extension. The City’s findings of fact thereon shall be final and conclusive on the parties. Extensions of time shall apply only to that portion of the Services affected by the delay and shall not apply to other portions of the Services not so affected. The sole remedy of Designer for extensions of time shall be an extension of the performance time at no cost to the City. If Additional Services are required as a result of an excusable delay, the parties shall mutually agree thereto pursuant to the Additional Services provision of this Agreement. Should Designer make an application for an extension of time, Designer shall submit evidence that the insurance policies required by this Agreement remain in effect during the requested additional period of time.
3.8 Additional Designer Services.
3.8.1 Request for Services. At City’s request, Designer may be asked to perform services not otherwise included in this Agreement, not included within the basic services listed in Exhibit “A” attached hereto, and/or not customarily furnished in accordance with generally accepted design practice.
3.8.2 De finition. As used herein, “Additional Services” mean: (1) any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary for the Designer to perform at the execution of this Agreement; or (2) any work listed as Additional Services in Exhibit “A” attached hereto. Designer shall not perform, nor be compensated for, Additional Services without prior written authorization from City and without an agreement between the City and Designer as to the compensation to be paid for such services. City shall pay Designer for any approved Additional Services, pursuant to the compensation pr ovisions herein, so long as such services are not made necessary through the fault of Designer pursuant to the indemnification provision of this Agreement.
3.8.3 E xamples of Additional Services. Such Additional Services shall not include any redesign or revisions to drawings, s pecifications or other documents when such revisions are necessary in order to bring such documents into compliance with applicable laws, rules, regulations or codes of which Designer was aware or should have been aware pursuant to the laws and regulations provision of this Ag reement above. Such Additional Services may include, but shall not be limited to:
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(a) Separately Bid Portions of Project. Plan preparation and/or administration of work on portions of the Project separately bid. (b) Furniture and Interior Design. Assistance to City, if requested, for the selection of moveable furniture, equipment or articles which are not included in the Construction Documents.
(c) Fault of Contractor. Services caused by delinquency, default or insolvency of contractor, or by major defects in the work of the contractor, provided that any such services made necessary by the failure of Designer to detect and report such matters when it reasonably should have done so shall not be compensated. (d) Inconsistent Approvals or Instructions. Revisions in drawings, specifications or other documents when such revisions are inconsistent with written approvals or instructions previously given and are due to causes beyond the control of Designer. (e) Legal Proceedings. Serving as an expert witness on City's behalf or attending legal proceedings to which the Designer is not a party. (f) Damage Repair. Supervision of repair of damages to any structure. (g) Extra Environmental Services. Additional work required for environmental conditions (e.g. asbestos or site conditions) not already contemplated within the Designer's services for the Project.
3.9 City Responsibilities. City’s responsibilities shall include the following:
3.9.1 Data and Information. City shall make available to Designer all necessary data and information concerning the purpose and requirements of the Project, including scheduling and budget limitations, objectives, constraints and criteria. As part of the budget limitation information, the City shall provide the Designer with a preliminary construction budget (“City’s Preliminary Construction Budget”).
3.9.2 Project Survey. If required pursuant to the scope of the Project and if requested by Designer, City shall furnish Designer with, or direct Designer to procure at City’s expense, a survey of the Project site prepared by a registered surveyor or civil engineer, any other record documents which shall indicate existing st ructures, land features, improvements, sewer, water, gas, electrical and utility lines, topographical information and boundary dimensions of the site, and any other such pertinent information.
3.9.3 B id Phase. Distribute Construction Documents to bidders and conduct the opening and review of bids for the Project.
3.9.4 Tes ting. Retain consultant(s) to conduct chemical, mechanical, soils, geological or other tests required for proper design of the Project, and furnish such surveys, borings, test pits, and other tests as may be necessary to reveal conditions of the site which must be known to determine soil condition or to ensure the proper development of the required drawings and specifications.
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3.9.5 Required Inspections and Tests. Retain consultant(s) to conduct materials testing and inspection or environmental/hazardous materials testing and inspection pursuant to any applicable laws, rules or regulations.
3.9.6 Fees of Reviewing or Licensing Agencies. Directly pay or reimburse the payment of all fees required by any reviewi ng or licensing agency, or other agency having approval jurisdiction over the Project.
3.9.7 Cit y’s Representative. The City hereby designates Charles E. McNeely, Interim City Manager or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. Representative hereby designates Daniel Hernandez, Agency Director of Public Works, Operations, and Maintenance, or his or her designee, as the City’s contact for the implementation of the Services hereunder. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
3.9.8 R eview and Approved Documents. Review all documents submitted by Designer, including change orders and other matters requiring approval by the City Council or other officials. City shall advise Designer of decisions pertaining to such documents within a reasonable time after submission, so as not to cause unreasonable delay as provided in the excusable delay provisions of this Agreement above.
3.10 Compensation.
3.10.1 Designer’s Compensation for Basic Services. City shall pay to Designer, for the performance of all Services rendered under this Agreement, the total not to exceed amount of One Hundred Eighty Thousand Nine Hundred Forty-Three Dollars ($180,943) (“Total Compensation”). This Total Compensation amount shall be based upon, and may be adjusted according to, the fee schedule and related terms and conditions attached hereto as Exhibit “B” and incorporated herein by reference. The Total Compensation, as may be adjusted upon mutual agreement, shall constitute complete and adequate payment for Services under this Agreement.
3.10.2 P ayment for Additional Services. At any time during the term of this Agreement, City may request that Designer perform Additional Services. As used herein, Additional Services means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Any additional work in excess of this amount must be approved by the City. If authorized, such Additional Services will be compensated at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the parties. If City requires Designer to hire consultants to per form any Additional Services, Designer shall be compensated therefore at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the parties. City shall have the authority to review and approve the rates of any such consultants. In addition, Designer shall be reimbursed for any expenses incurred by such consultants pursuant to the terms and conditions of Section 3.10.3.
3.10.3 R eimbursable Expenses. Reimbursable expenses are in addition to compensation for the Services and Additional Services. Designer shall not be reimbursed for any expenses unless authorized in writing by City, which approval may be evidenced by inclusion in
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Exhibit “C” attached hereto. Such reimbursabl e expenses shall include only those expenses which are reasonably and necessarily incurred by Designer in the interest of the Project. Designer shall be required to acquire prior written consent in order to obtain reimbursement for the following: (1) extraordinary transportation expens es incurred in connection with the Project; (2) out-of-town travel expenses incurred in connection with the Project; (3) fees paid for securing approval of authorities having jurisdiction over the Project; (4) bid document duplication costs in excess of $1,000; and (5) other costs, fees and expenses in excess of $1,000.
3.10.4 Payment to Designer. Designer’s compensation and reimbursable expenses shall be paid by City to Designer no more often than monthly. Such periodic payments shall be made based upon the percentage of work completed, and in accordance with the phasing and funding schedule provided in Exhibit “B” and the compensation rates indicated in Exhibit “C” attached hereto and incorporated herein by reference. In order to receive payment, Designer shall present to City an itemized statement which indicates Services performed, percentage of Services completed, method for computing the amount payable, and the amount to be paid at the address listed in Section 3.29. The statement shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement, as well as those expenses for which reimbursement is requested for that statement period. The amount paid to Designer shall never exceed the percentage amounts authorized by the phasing and funding schedule located in Exhibit “B” attached hereto. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the parties in a mutually agreeable manner.
Payments made for Additional Services shall be made in installments, not more often than monthly, proportionate to the degree of completion of such services or in such other manner as the parties shall specify when such services are agreed upon, and in accordance with any authorized fee or rate schedule. In order to receive payment, Designer shall present to City an itemized statement which indicates the Additional Services performed, percentage of Additional Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Additional Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the parties in a mutually agreeable manner.
Upon cancellation or termination of this Agreement, Designer shall be compensated as set forth in the termination provision herein.
3.10.5 Withholding Payment to Designer. The City may withhold payment, in whole or in part, to the extent reasonably necessary to protect the City from claims, demands, causes of action, costs, expenses, liabilities, losses, damages, or injuries of any kind to the extent arising out of or caused by the negligence, recklessness, or willful misconduct protected under the indemnification provisions of this Agreement. Failure by City to deduct any sums from a progress payment shall not constitute a waiver of the City’s right to such sums. The City may keep any moneys which would otherwise be payable at any time hereunder and apply the same, or so much as may be necessary therefor, to the payment of any expenses, losses, or damages as determined by the City, incurred by the City for which Designer is liable under the Agreement or state law. Payments to the Designer for compensation and reimbursable expenses due shall not be contingent on the construction, completion or ultimate success of the Project. Payment to the Designer shall not be withheld, postponed, or made contingent upon receipt by the City of offsetting reimbursement or credit from parties not within the Designer’s reasonable control.
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3.10.6 Prevailing Wages. Designer 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. If the Services 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, Designer agrees to fully comply with and to require its consultants to fully comply with such Prevaili ng Wage Laws. City shall provide Designer with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement.
Designer 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 Designer’s principal place of business and at the Project site.
Designer shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure of the Designer or its consultants to comply with the Prevailing Wage Laws. It shall be mandatory upon the Designer and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
3.10.7 Registration. If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Designer and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Designer shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
3.10.8 Labor Compliance. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Designer’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Designer or any subcontractor that affect Designer’s performance of Services, including any delay, shall be Designer’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Designer caused delay and shall not be compensable by the City. Designer shall defend, indemnify and hold the City, its offici als, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Designer or any subcontractor.
3.11 Notice to Proceed.
Designer shall not proceed with performance of any Services under this Agreement unless and until the City provides a written notice to proceed.
3.12 Termination, Suspension and Abandonment.
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3.12.1 Grounds for Termination; Designer’s Termination for Cause. City hereby reserves the right to suspend or abandon, at any time and for any reason, all or any portion of the Project and the construction work thereon, or to terminate this Agreement at any time with or without cause. Designer shall be provided with at least seven (7) days advanced written notice of such suspension, abandonment or termination. In the event of such suspension, abandonment or termination, Designer shall be paid for Services and reimbursable expenses rendered up to the date of such suspension, abandonment or termination, pursuant to the schedule of payments provided for in this Agreement, less any claims against or damages suffered by City as a result of the default, if any, by Designer. Designer hereby expressly waives any and all claims for damages or compensation arising under this Agreement, except as set forth herein, in the event of such suspension, abandonment or termination. Designer may terminate this Agreement for substantial breach of performance by the City such as failure to make payment to Designer as provided in this Agreement.
3.12.2 City’s Suspension of Work. If Designer’s Services are suspended by City, City may require Designer to resume such Services within ninety (90) days after written notice from City. When the Project is resumed, the Total Compensation and schedule of Services shall be equitably adjusted upon mutual agreement of the City and Designer.
3.12.3 D ocuments and Other Data. Upon suspension, abandonment or termination, Designer shall provide to City all preliminary studies, sketches, working drawings, specifications, computations, and all other Projec t Documents, as defined below, to which City would have been entitled at the completion of Designer’s Services under this Agreement. Upon payment of the amount required to be paid to Designer pursuant to the termination provisions of this Agreement, City shall have the rights, as provided in this Agreement hereinafter, to use such Project Documents prepared by or on behalf of Designer under this Agreement. Designer shall make such documents available to City upon request and without additional compensation other than as may be approved as a reimbursable expense.
3.12.4 Employment of other Designers. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.13 Ownership and Use of Documents; Confidentiality.
3.13.1 Ownership. All plans, specifications, original or reproducible transparencies of working drawings and master plans, preliminary sketches, design presentation drawings, structural computations, estimates and any other documents prepared pursuant to this Agreement, including, but not limited to, any other works of authorship fixed in any tangible medium of expression such as writings, physic al drawings and data magnetically or otherwise recorded on computer diskettes (hereinafter referred to as the “Project Documents”) shall be and remain the property of City. Although the official copyright in all Project Documents shall remain with the Designer or other applicable subcontractors or consultants, the Project Documents shall be the property of City whether or not the work for which they were made is executed or completed. Within thirty (30) calendar days foll owing completion of the Project, Designer shall provide to City copies of all Project Documents required by City. In addition, Designer shall retain copies of all Project Documents on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of reasonable duplication costs. Before destroying the Project Documents following this retention period, Designer shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
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3.13.2 Right to Use. Designer grants to City the right to use and reuse all or part of the Project Documents, at City’s sole di scretion and with no additional compensation to Designer, for the following purposes:
(a) The construction of all or part of this Project.
(b) The repair, renovation, modernization, replacement, reconstruction or expansion of this Project at any time;
(c) The construction of another project by or on behalf of the City for its ownership and use;
City is not bound by this Agreement to employ the services of Designer in the event such documents are used or reused for these purposes. City shall be able to use or reuse the Project Documents for these purposes without risk of liability to the Designer or third parties with respect to the condition of the Project Documents, and the use or reuse of the Project Documents for these purposes shall not be construed or interprete d to waive or limit City’s right to recover for latent defects or for errors or omissions of the Designer.
Any use or reuse by City of the Project Documents on any project other than this Project without employing the services of Designer shall be at City’s own risk with respect to third parties. If City uses or reuses the Project Documents on any project other than this Project, it shall remove the Designer’s seal from the Project Documents and hold harmless Designer and its officers, directors, agents and employees from claims aris ing out of the negligent use or re-use of the Project Documents on such other project.
3.13.3 License. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify or reuse any and all Project Documents and any intellectual property rights therein. Designer shall require any and all subcontractors and consultants to agree in writing that City is granted a non-exclusive and perpetual license for the work of such subcontractors or consultants performed pursuant to this Agreement.
3.13.4 Right to License. Designer represents and warrants that Designer has the legal right to license any and all copyrights, desi gns and other intellectual property embodied in the Project Documents that Designer prepares or causes to be prepared pursuant to this Agreement. Designer shall indemnify and hold City harmless pursuant to the indemnification provisions of this Agreement for any breach of this Section. Designer makes no such representation and warranty in regard to previo usly prepared designs, plans, specifications, studies, drawings, estimates or other documents that were prepared by design professionals other than Designer and provided to Designer by City.
3.13.5 C onfidentiality. All Project Documents, either created by or provided to Designer in connection with the performance of this Agreement, shall be held confidential by Designer to the extent they are not subject to disclosure pursuant to the Public Records Act. All Project Documents shall not, without the written consent of City, be used or reproduced by Designer for any purposes other than the performance of the Services. Designer shall not disclose, cause or facilitate the disclosure of th e Project Documents to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Designer which is otherwise known to Designer or is generally known, or has become known, to the related industry shall be deemed confidential. Designer shall not use City’s name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any
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magazine, trade paper, newspaper, television or radio production or other similar medium without the written consent of City.
3.14 Indemnification.
3.14.1 To the fullest extent permitted by law, Designer shall defend (with counsel of City’s choosing), indemnify and hold the City, its offici als, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Designer, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Designer’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Designer's obligat ion to indemnify shall not be restricted to insurance proceeds, if any, received by Designer, the City, its officials, officers, employees, agents, or volunteers.
3.14.2 If Designer’s obligation to defend, indemnify, and/or hold harmless arises out of Designer’s performance of “design professional” services (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, Designer’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Designer, and, upon Designer obtaining a final adjudication by a court of competent jurisdiction, Designer’s liability for such claim, including the cost to defend, shall not exceed the Designer’s proportionate percentage of fault.
3.15 Insurance. Designer shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Designer shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section.
3.15.1 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, Designer shall, at its expense, procure and maintain in full force and effect for the duration of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Designer agrees to amend, supplement or endorse the policies to do so.
3.15.2 A dditional Insured. The City of San Bernardino, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Designer’s and its subconsultants’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.
3.15.3 Co mmercial General Liability
(a) The Designer 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. (b) Coverage for Commercial General Liability insurance shall be at least as broad as the following: Insurance Services Office Commercial General Liability coverage
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(Occurrence Form CG 00 01) or exact equivalent. 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
(c) 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.
(d) The policy shall give City, the City Council and each member of the City Council, its 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 providing the exact same coverage.
(e) 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.
3.15.4 Automobile Liability
(a) At all times during the performance of the work under this Agreement, the Designer 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.
(b) 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).
(c) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status.
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(d) 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.
3.15.5 Workers’ Compensation/Employer’s Liability
(a) Designer 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.
(b) To the extent Designer has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Designer 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.
Designer 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.
3.15.6 Professional Liability (Errors and Omissions)
(a) At all times during the performance of the work under this Agreement the Designer shall maintain professional liability or Errors and Omissions insurance 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 Designer. “Covered Professional Services” as designated in the policy must specifically in clude 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.
3.15.7 Privacy/Network Security (Cyber
(a) At all times during the performance of work under this Agreement, the Designer shall maintain privacy/network security insurance, in a form and with insurance companies acceptable to the City, for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and (4) the introduction, implantation or spread of malicious software code.
3.15.8 Minimum Policy Limits Required
(a) 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
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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 (b) Defense costs shall be payable in addition to the limits. (c) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a 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.
3.15.9 Evidence Required
(a) Prior to execution of the Agreement, the Designer 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.
3.15.10 Policy Provisions Required
(a) Designer shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Designer shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non- payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Designer 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.
(b) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Designer’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.
(c) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Designer shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Designer 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.
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(d) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Designer or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Designer hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. (e) 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 Designer from liability in excess of such coverage, nor shall it limit the Designer’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.
3.15.11 Qualifying Insurers
(a) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: 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.
3.15.12 Additional Insurance Provisions
(a) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Designer, 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 Designer pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(b) 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 Designer or City will withhold amounts sufficient to pay premium from Designer payments. In the alternative, City may cancel this Agreement.
(c) The City may require the Designer to provide complete copies of all insurance policies in effect for the duration of the Project. (d) 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.
3.15.13 Subconsultant Insurance Requirements
(a) Designer 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
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the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Designer, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.
3.16 Records.
Designer shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Designer shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Designer shall allow inspection of all work, data, docum ents, proceedings, and activities related to the Agreement for a period of five (5) years from the date of final payment under this Agreement.
3.17 Standardized Manufactured Items.
Designer shall cooperate and consult with City in the use and selection of manufactured items on the Project, including but not limited to, paint, hardware, plumbing, mechanical and electrical equipment, fixtures, roofing materials and floor coverings. All such manufactured items shall be standardized to City’s criteria to the extent such criteria do not interfere with building design.
3.18 Limitation of Agreement.
This Agreement is limited to and includes only the work included in the Project described herein.
Any additional or subsequent construction at the site of the Project, or at any other City site, will be covered by, and be the subject of, a separate Agreement for design services between City and the designer chosen therefor by City.
3.19 Mediation.
Disputes arising from this Agreement may be submitted to mediation if mutually agreeable to the parties hereto. The type and process of mediation to be utilized shall be subject to the mutual agreement of the parties.
3.20 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, Designer 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.
3.21 Asbestos Certification.
Designer shall certify to City, in writing and under penalty of perjury, that to the best of its knowledge, information and belief no asbestos-containing material or other material deemed to be hazardous by the state or federal government was specified as a building material in any construction document that the Designer prepares for the Project. Designer shall require all consultants who prepare any other documents for the Project to submit the same written certification. Designer shall also assist the City in ensuring that contractors provide City with certification, in writing and under penalty of perjury, that to the best of their knowledge, information and belief no material furnished, installed or incorporated into the Project contains asbestos or
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any other material deemed to be hazardous by the state or federal government. These certifications shall be part of the final Project submittal. Designer shall include statements in its specifications that materials containing asbestos or any other material deemed to be hazardous by the state or federal government are not to be included.
3.22 No Third Party Rights.
This Agreement shall not create any rights in, or inure to the benefits of, any third party except as expressly provided herein.
3.23 Governing Law.
This Agreement shall be construed in accordance with, and governed by, the laws of the State of California. Venue shall be in San Bernardino County.
3.24 Exhibits and Recitals .
All exhibits and recitals contained herein and attached hereto are material parts of this Agreement and are incorporated as if fully set forth.
3.25 Severability.
Should any provision in the Agreement be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force and effect.
3.26 Non-Waiver.
None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.
3.27 Safety.
Designer shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Designer shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of its employees, consultant and subcontractors appropriate to the nature of the work and the conditions under which the work is to be performed.
3.28 Harassment Policy.
Designer shall provide a copy of the City's Harassment Policy to each of its employees assigned to perform the tasks under this Agreem ent. Designer shall submit to the City's Personnel Manager a statement signed by each of its employees who are assigned to perform the Services under this Agreement certifying receipt of City's Harassment Policy and certifying that they have read the Harassment Policy. A finding by the City that any of Designer's employees has harassed a City employee shall be grounds for appropriate discipline, up to and including such employee's removal from performance of this Agreement at City's request.
3.29 Delivery of Notices.
All notices permitted or required under this Agreement shall be given to the respective parties at
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the following address, or at such other address as the respective parties may provide in writing for this purpose:
CITY:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, California 92401
Attn: Interim City Manager
With a Copy to:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
DESIGNER:
IDS Group, Inc.
1 Peters Canyon Road, Suite 130
Irvine, California 92606
Att: Said Hilmy, Principal
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.30 Time of Essence.
Time is of the essence for each and every provision of this Agreement.
3.31 City’s Right to Employ Other Consultants.
City reserves right to employ other consultants, including designers, in connection with this Project or other projects.
3.32 Prohibited Interests.
3.32.1 Solicitation. Designer maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Designer, to solicit or secure this Agreement. Further, Designer 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 Designer, any fee, commission, percentage, brokerage fee, gi ft 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.
3.32.2 C onflict of Interest. For the term of this Agreement, no director, 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.
3.33 Equal Opportunity Employment.
Designer 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,
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ancestry, sex, age or any other classification protected by federal or state law. 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.
Designer shall also comply with all relevant pr ovisions of City’s minority business enterprise program, affirmative action plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.34 Labor Certification.
By its signature hereunder, Designer certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.35 Subcontracting.
As specified in this Agreement, Designer shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to each and every provision of this Agreement.
3.36 Supplemental Conditions.
Any supplemental conditions shall be attached as an exhibit to this Agreement, and that exhibit shall be incorporated herein by reference.
3.37 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.
3.38 Entire Agreement.
This Agreement, with its exhibits, contains the entire agreement of the parties hereto, and supersedes any and all other prior or contemporaneous negotiations, understandings and oral or written agreements between the parties hereto. 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. Furthermore, any modification of this Agreement shall only be effective if in writing signed by all parties hereto. [SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR DESIGN SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND IDS GROUP, INC.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
CITY OF SAN BERNARDINO
APPROVED BY:
Charles E. McNeely
Interim City Manager
ATTESTED BY:
Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger, LLP
City Attorney
IDS GROUP, INC.
Signature
Name
Title
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EXHIBIT A
DESIGNER’S SCOPE OF SERVICES
1. GENERAL REQUIREMENTS.
1.1 Basic Services. Designer agrees to perform all the necessary professional design, engineering (e.g. mechanical, electrical, plumbing, structural, site engineering, and any other necessary engineering services mutually agreeable to the parties) and construction administration services for the Project in a timely and professional manner, consistent with the standards of the profession, including those provided for herein.
1.2 Exclusions from Basic Services. The following services shall be excluded from the basic services listed above: N/A
1.3 Additional Services. Designer shall perform the following Additional Services for the Project: N/A
1.4 Communication with City. Designer shall participate in consultations and conferences with authorized representatives of City and/or other local, regional, or state agencies concerned with the Project, which may be necessary for the completion of the Project or the development of the drawings, specifications an d documents in accordance with the applicable standards and requirements of law and the City. Such consultations and conferences shall continue throughout the planning and construction of the Project and the contractor’s warranty period. Designer shall take direction only fr om the City’s Representative, or any other representative specifically designated by the City for this Project, including any construction manager hired by the City.
1.5 Coordination and Cooperation with Construction Manager. The City may hire a construction manager to administer and coordinate all or any part of the Project on its behalf. If the City does so, it shall provide a copy of its agreement with the construction manager so that the Designer will be fully aware of the duties and responsibilities of the construction manager.
The Designer shall cooperate with the construction manager and respond to any requests or directives authorized by the City to be made or given by the construction manager. The Designer shall request clarification from the City in writing if the Designer should have any questions regarding the authority of the construction manager.
2. INITIAL PLANNING PHASE.
During the initial planning phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
2.1 Project Feasibility. Provide advice and assistance to City in determining the feasibility of the Project, analysis of the type and quality of materials and construction to be selected, the site location, and other initial planning matters.
2.2 Meeting Budget and Project Goals. Designer shall notify City in writing of potential complications, cost overruns, unusual conditions, and general needs that potentially impact the Project budget and time line, including the City’s Preliminary Construction Budget.
Designer shall use its best judgment in determining the balance between the size, type and quality of construction to achieve a satisfactory solution within the Project’s budget and construction allowance. It shall be the duty of the Designer to design the Project within budget. As discussed
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herein, including in Section 7.3, if the lowest responsive and responsible bid for the Project exceeds the budget by the stated amount, Designer may be required to make the necessary changes in the drawing and specifications, at its sole cost and expense, to bring the bids within the required budget.
2.3 Permits, Approvals and Authorizations. As indicated in Section 3.5.4 of the Agreement, Designer shall assist City in securing easements, encroachment permits, rights of way, dedications, infrastructures and road improvements, as well as coordinating with utilities and adjacent property owners.
3. SCHEMATIC PLAN PHASE.
During the schematic plan phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
3.1 Funding Documents. Designer shall provide a site plan and all other Project- related information necessary and required for an application by City to any federal, state, regional, or local agencies for funds to finance the construction Project.
3.2 Schematic Plans. In cooperation with City, Designer shall prepare preliminary plans and studies, schematic drawings, site utilization plans, and phasing plans showing the scale and relationship of the components of the Project, the plot plan development at the site, and the proposed design concept of the buildings (“Schematic Plans”). Designer shall incorporate the functional requirements of City into the Schemati c Plans. The Schematic Plans shall meet all laws, rules and regulations of the State of California. The Schematic Plans shall show all rooms incorporated in each building of the Project in single-line drawings, and shall include all revisions required by City or by any federal, state, regional or local agency having jurisdiction over the Project. All design drawings for the Project shall be in a form suitable for reproduction.
3.3 Preliminary Project Budget. Designer shall use the City’s Preliminary Construction Budget and its own expertise and experience with the Project to establish a preliminary project budget or allowance in a format required by City (“Designer’s Preliminary Project Budget”). The purpose of the Designer’s Preliminary Project Budget is to show the probable Project cost in relation to City’s Preliminary Construction Budget and the construction standards of any applicable funding agency. If Designer perceives site considerations which render the Project expensive or cost prohibitive, Designer shall disclose such conditions in writing to City immediately. As discussed herein, includi ng in Section 7.3, if the lowest responsive and responsible bid for the Project exceeds the budget by more than the stated amount, Designer may be required to make the necessary changes in the drawings and specifications, at its sole cost and expense, to bring the bids within the required budget Designer shall provide a preliminary written time schedule for the performance of all construction work on the Project.
3.4 Copies of Schematic Plans and Other Documents. Designer, at its own expense, shall provide a complete set of the Schematic Plans described herein for City’s review and approval. Additionally, at City’s expense, Designer shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.
4. DESIGN DEVELOPMENT PHASE.
During the design development phase of the Project, Designer shall do all of the following, as well
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as any incidental services thereto:
4.1 Design Development Documents. Once City provides Designer with specific written approval of the Schematic Plans des cribed herein, Designer shall prepare design development documents consisting of: (1) site and floor plans; (2) elevations; and (3) any other drawings and documents sufficient to fix and describe the types and makeup of materials, as well as the size and character of the Project’s structural, mechanical and electrical systems, and to outline the Project specifications (“Design Development Documents”). The Design Development Documents shall be prepared in sufficient form to present to the City Council for approval.
4.2 Copies of Design Development and Other Documents. Designer, at its own expense, shall provide a complete set of the Design Development Documents described herein for City’s review and approval. Additionally, at City’s expense, Designer shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.
4.3 Updated Project Budget. Designer shall use its Preliminary Project Budget and expertise and experience with the Project to establish an updated estimate of probable construction costs, containing detail consistent with the Design Development Documents as set forth herein and containing a breakdown based on types of materials and specifications identified herein (“Designer’s Updated Project Budget”).
4.4 Timetable. Designer shall provide a written timetable for full and adequate completion of the Project to City.
4.5 Application for Approvals. Designer shall assist City in applying for and obtaining required approvals from all federal, state, regional or local agencies concerned with the Project. Designer shall furnish and process all design and engineering information required to prepare and process applications to applicable utilities in order to secure priorities and materials, to aid in the construction of the Project and to obtain final Project approval and acceptance by any of the above agencies as may be required.
4.6 Color and Other Aesthetic Issues. Designer shall provide, for City’s review and approval, a preliminary schedule of all color materials and selections of textures, finishes and other matters involving an aesthetic decision about the Project.
5. FINAL WORKING DRAWINGS AND SPECIFICATIONS.
During the final working drawings and specifications phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
5.1 Final Working Drawings and Specifications. Once City provides Designer with specific written approval of the Design Development Documents described herein, Designer shall prepare such complete working drawings and specifications as are necessary for developing complete bids and for properly executing the Project work in an efficient and thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings and Specifications shall be developed from the Schematic Plans and Design Development Documents approved by City. The Final Working Drawings and Specifications shall set forth in detail all of the following:
(1) the Project construction work to be done; (2) the materials, workmanship, finishes, and equipment required for the architectural, structur al, mechanical, and electrical systems; and (3) the utility service connection equipment and site work. As indicated in Section 3.9.2 of the Agreement, City may be requested to supply Designer with the necessary information to
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determine the proper location of all improvements on and off site, including record drawings (“as- built drawings”) in City’s possession. Designer will make a good-faith effort to verify the accuracy of such information by means of a thorough interior and exterior visual survey of site conditions.
City shall also make a good-faith effort to verify the accuracy of the as-built drawings and provide any supplemental information to Designer which may not be shown on the as-built drawings.
5.2 Form. The Final Working Drawings and Specifications must be in such form as will enable Designer and City to secure the required permits and approvals from all federal, state, regional or local agencies concerned with the Projec t. In addition, the Final Working Drawings and Specifications must be in such form as will enable City to obtain, by competitive bidding, a responsible and responsive bid within the applicable budgetary limitations and cost standards.
The Final Working Drawings and Specifications shall be clear and legible so that uniform copies may be on standard architectural size paper, properly indexed and numbered, and shall be capable of being clearly copied and assembled in a professional manner by Designer.
5.3 Approval and Revisions. City shall review, study, and check the Final Working Drawings and Specifications presented to it by Designer, and request any necessary revisions or obtain any necessary approvals by the City Council, subject to the approval of all federal, state, regional or local agencies concerned with the Proj ect. Designer shall make all City-requested changes, additions, deletions, and corrections in the Final Working Drawings and Specifications at no additional cost, so long as they are not in conflict with the requirements of public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or Designer’s professional judgment. Designer shall bring any such conflicts and/or inconsistencies to the attention of City. The parties agree that Designer, and not the City, possesses the requisite expertise to determine the constructability of the Final Working Drawings and Specifications.
However, the City reserves the right to conduct one or more constructability review processes with the Final Working Drawings and Specifications, and to hire an independent designer or other consultant to perform such reviews. Any su ch independent constructability review shall be at City’s expense. Designer shall make all Ci ty-requested changes, additions, deletions, and corrections in the Final Working Drawings an d Specifications which may result from any constructability review, at no additional cost to the City, so long as they are not in conflict with the requirements of public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or Designer’s professional judgm ent. If such changes, additions, deletions or corrections are inconsistent with prior City direction, Designer shall make such alterations and be compensated therefore pursuant to the Additional Services provision of this Agreement.
5.4 Costs of Construction. It is understood by Designer that should the Final Working Drawings and Specifications be ordered by City, City shall specify the sum of money set aside to cover the total cost of construction of the work, exclusive of Designer’s fees. Should it become evident that the total construction cost wi ll exceed the specified sum, Designer shall at once present a statement in writing to the City’s Representative setting forth this fact and giving a full statement of the cost estimates on which the conclusion is based.
5.5 Copies of Final Working Drawings and Specifications and Other Documents.
Designer, at its own expense, shall provide a complete set of the Final Working Drawings and Specifications described herein for City’s review and approval. Additionally, at City’s expense, Designer shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.
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6. CONSTRUCTION CONTRACT DOCUMENTS.
During the construction contract documents phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
6.1 Bid and Contract Documents. If so required by City, Designer shall assist City in the completion of all bid and construction documents, including but not limited to, the Notice Inviting Bids, Instructions to Bidders, Contract Bid Forms (including Alternate Bids as requested by City), Contract, General Conditions, Supplement ary General Conditions, Special Conditions, DVBE and other applicable affirmative action documents, Performance Bond, Payment Bond, Escrow Agreement for Security Deposits, and any other certifications and documents required by federal, state and local laws, rules and regulations which may be reasonably required in order to obtain bids responsive to the specifications and drawings. All such documents shall be subject to the approval of City and City’s legal counsel.
6.2 Final Estimate. At the time of delivery of these bid and construction documents, which shall include the Final Working Drawings and Specifications (collectively referred to herein as the “Construction Documents”), Designer shall provide City with its final estimate of probable construction cost (“Designer’s Final Estimate”). As discussed herein, including in Section 7.3, it shall be the Designer’s duty to design the Project within budget.
7. BID PHASE.
During the bid phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
7.1 Reproducible Construction Documents. Once City provides Designer with specific written approval of the Construction Documents and Designer’s Final Estimate, Designer shall provide to City one set of reproducible Construction Documents.
7.2 Distribution of Contract Documents and Review of Bids. Designer shall assist City in distributing the Construction Documents to bidders and conducting the opening and review of bids for the Project.
7.3 Over Budget. If the apparent lowest responsive and responsible bid on the Project exceeds the Designer’s Final Estimate by more than five percent (5%), City may request Designer to amend, at Designer’s sole cost and expense, the Final Drawings and Specifications in order to rebid the Project and receive a lowest responsive and responsible bid equal to or less than the Designer’s Final Estimate. All revisions necessary to bring the lowest responsible and responsive bid within the Designer’s Final Esti mate, including any omissions, deferrals or alternates, shall be made in consultation with, and subject to the approval of, the City.
8. CONSTRUCTION PHASE.
During the construction phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
8.1 Observation. The Project Designer shall observe work executed from the Final Working Drawings and Specifications in person, provided that City may, in its discretion, consent to such observation by another competent representative of Designer.
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8.2 General Administration. Designer shall provide general administration of the Construction Documents and the work performed by the contractors.
8.3 Pre-Construction Meeting. Designer shall conduct one or more pre-construction meetings, as the City determines is needed for the Project, with all interested parties.
8.4 Site Visits of Contractor’s Work. Designer shall conduct site visits to observe each contractors’ work for general conformance with the Construction Documents and with any approved construction schedules or milestones. Such site visits shall be conducted as often as are necessary and appropriate to the stage of construction, according to the City’s sole discretion, but in no event less than weekly.
8.5 Site Visits of Inspector’s Work. Designer shall conduct site visits to communicate and observe the activities of the City inspectors. Such site visits shall be conducted as often as is mutually acceptable to Designer and City. Designer shall direct the City inspectors and the Project contractors to coordinate the preparation of record drawings indicating dimensions and location of all “as-built” conditions, including but not limited to, underground utility lines.
8.6 Coordination of Designer’s Consultants. Designer shall cause all architects, engineers and other consultants, as may be hired by Designer or City, to observe the work completed under their disciplines as required, and approve and review all test results for general conformance with the Construction Documents.
8.7 Reports. Designer shall make regular reports as may be required by applicable federal, state or local laws, rules or regulations, as well as the federal, state, regional or local agencies concerned with the Project.
8.8 Construction Meetings; Minutes. Designer shall attend all construction meetings and provide written reports/minutes to the City after each construction meeting in order to keep City informed of the progress of the work. Such meetings shall occur at a frequency necessary for the progress of the Project work, according to the City’s sole discretion, but no less than weekly.
8.9 Written Reports. Designer shall make written reports to City as necessary to inform City of problems arising during construction, changes contemplated as a result of each such problems, and progress of the Project work.
8.10 Written Records. Designer shall keep accurate written records of the progress and quality of the Project work and the time schedules, and shall advise the contractors and City of any deviations from the time schedule which could delay timely completion of the Project.
8.11 Material and Test Reports. Designer shall check and process, in a timely manner, all required material and test reports for the Project work. In addition, Designer shall provide notice of any deficiencies in material or work reflected in such reports, as well as its recommendation for correction of such deficiencies, to the contractors and City.
8.12 Review and Response to Submissions. Designer shall review and respond, in a timely manner, to all schedules, submittals, shop drawings, samples, information requests, change requests, and other submissions of the contractor and subcontractors for compliance with, or alterations and additions to, the Construction Documents. Designer’s review and response
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shall be done in such a manner so as to ensure the timely and uninterrupted progress of the Project work.
8.13 Rejection of Work. Designer shall promptly reject, as discussed with City, work or materials which do not conform to the Constr uction Documents. Designer shall immediately notify the City and contractor(s) of such rejecti ons. Designer shall also have the authority to recommend to the City that additional inspection or testing of the work be performed, whether or not such work is fabricated, installed or completed.
8.14 Substitutions. Designer shall consult with City, in a timely manner, with regard to substitution of materials, equipment and laboratory reports thereof, prior to the City’s final written approval of such substitutions. Designer’s consultation shall be done in such a manner so as to ensure the timely and uninterrupted progress of the Project work.
8.15 Revised Documents and Drawings. Designer shall prepare, at no additional expense to City, all documents and/or drawings made necessary by errors and omissions in the originally approved Construction Documents.
8.16 Change Requests and Material Changes. Designer shall evaluate and advise City, in a timely manner and in writing, of any change requests and material change(s) which may be requested or necessary in the Project plans and specifications. Designer shall provide the City with its opinion as to whether such change requests should be approved, denied or revised.
If the City has not hired a construction manager or other person to do so, the Designer shall prepare and execute all change orders and submit them to the City for authorization. If the City has designated a construction manager or other person to prepare all change orders, the Designer shall review all change orders prepared by such person, execute them and deliver them to the City for authorization if they meet with the Designer’s approval, or submit them to the City with recommendations for revision or denial if necessary. Designer shall not order contractors to make any changes affecting the contract price without approval by City of such a written change order, pursuant to the terms of the Construction Documents. Designer may order, on its own responsibility and pending City Council approval, changes necessary to meet construction emergencies, if written approval of City’s Representative is first secured.
8.17 Applications for Payment. Designer shall examine, verify and approve contractor’s applications for payment, and shall issue certificates for payment in amounts approved by the City’s inspector.
8.18 Final Color and Product Selection. Designer shall coordinate final color and product selection with City’s original design concept.
8.19 Substantial Completion. Designer shall determine the date of substantial completion, in consultation with the City.
8.20 Punch List. After determining that the Project is substantially complete, Designer shall participate in the inspection of the Project and shall review all remaining deficiencies and minor items needed to be corrected or completed on the Project, including those identified on the punch list prepared by the contractor (“Punch List Items”). Designer shall notify contractor in writing that all Punch List Items must be corrected prior to final acceptance of the Project and final payment. Designer shall also notify City of all Punch List Items.
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8.21 Warranties. Designer shall review materials assembled by the contractor and subcontractors with regard to all written warr anties, guarantees, owners’ manuals, instruction books, diagrams, record “as built” drawings, and any other materials required from the contractors and subcontractors pursuant to the Construction Documents. Designer shall coordinate and provide these materials to the City.
8.22 Certificate of Completion. Designer shall participate in any further inspections of the Project necessary to issue Designer’s Certificate of Completion and final certificate for payment.
8.23 Documents for Project Close-Out. Designer shall cause all other architects, engineers and other consultants, as may be hired by Designer, to file any and all required documentation with the City or other governmental authorities necessary to close out the Project.
Designer shall assist the City in obtaining such documentation from all other architects, engineers, or other consultants.
9. AS-BUILT DRAWINGS.
During the as-built drawings phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
9.1 As-Built Drawings and Specifications. Not later than thirty (30) days after substantial completion of the Project, before receipt of final payment, Designer shall review and forward the Final Working Drawings and Specifications, indicating on them all changes made by change orders or otherwise pursuant to the Construction Documents, as well as all information called for on the specifications, thus producing an “as-built” set of Final Working Drawings and Specifications (“As-Built Drawings and Specifications”). The As-Built Drawings and Specifications shall show, among other things, the location of all concealed pipe, buried conduit runs and other similar elements within the completed Project. Designer shall personally review and certify that the As-Built Drawings and Specifications are a correct representation of the information supplied to Designer by any inspectors and the contractor, and shall obtain certifications from any inspectors and the contractor that the drawings are correct.
9.2 Approval. Once City provides Designer with specific written approval of the As- Built Drawings and Specifications, Designer shall forward to City the complete set of original As- Built Drawings and Specifications or a complete set of reproducible duplicate As-Built Drawings and Specifications. The tracing shall be of such quality that clear and legible prints may be made without appreciable and objectionable loss of detail.
9.3 Documents for Final Payment. Prior to the receipt of Designer’s final payment, Designer shall forward to City all of the following: (1) one clear and legible set of reproductions of the computations; (2) the original copy of the specifications; (3) the As-Built Drawings and Specifications as required herein; and (4) Designer’s Certificate of Completion.
10. WARRANTY PERIOD.
During the warranty period phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
10.1 Advice. Designer shall provide advice to City on apparent deficiencies in the Project during any applicable warranty periods for the Project.
11.1 Federal Provisions. Funds from the Coronavirus State Fiscal Recovery Fund and/or the
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Coronavirus Local Fiscal Recovery Fund, together known as the Coronavirus State and Local Fiscal Recovery Funds (“CSLFRF”) program, will be used to fund all or a portion of this Agreement. As applicable, Consultant shall co mply with all federal requirements including, but not limited to, the following, all of which are expressly incorporated herein by reference:
11.1.1 Sections 602 and 603 of the Social Security Act as added by Section 9901 of the American Rescue Plan Act of 2021 (the “Act”); U.S. Department of the Treasury (“Treasury”) Final Rule for the Act;
11.1.2 Treasury Compliance and Reporting Guidance for the Act;
11.1.3 2 C.F.R. Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, other than such provisions as the U.S.
Department of the Treasury may determine are inapplicable to the CSLFRF program and subject to such exceptions as may be otherwise provided by the U.S. Department of the Treasury;
11.1.4 Treasury Coronavirus Local Fiscal Recovery Fund Award Terms and Conditions; and
11.1.5 Federal contract provisions attached hereto as Exhibit “D” and incorporated herein by reference.
11.1.6 Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in this Agreement. With respect to any conflict between such federal requirements and the terms of this Agreement and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control.
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Exhibit B-33
EXHIBIT B
FEE AND PHASING/FUNDING SCHEDULES
1. FEE SCHEDULE.
Designer will invoice City on a monthly cycle based on the following fee schedule. Designer will include with each invoice a detailed progress report that indicates the amount of budget spent on each phase and the total amount spent against th e Total Compensation. Designer will inform City regarding any out-of-scope work being performed by Designer for which Designer intends to seek compensation from City.
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Exhibit B-1
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2. PHASING/FUNDING SCHEDULE.
Progress payments towards Total Compensation shall never exceed the following percentages of Total Compensation as of the phase indicated:
Initial Planning Phase: ________ percent (%____)
Schematic Plan Phase: ________ percent (%____)
Design Development Phase: ________ percent (%____) Final Working Drawings & Specifications Phase: ________ percent (%____) Construction Contract Documents Phase: ________ percent (%____) Bid Phase: ________ percent (%____)
Construction Phase: ________ percent (%____)
As-Built Drawings Phase: ________ percent (%____)
Warranty Period Phase: ________ percent (%____)
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EXHIBIT C
COMPENSATION RATES AND REIMBURSABLE EXPENSES
1. HOURLY COMPENSATION RATES.
N/A
2. REIMBURSABLE EXPENSES.
N/A
3. ADDITIONAL SERVICES.
Additional Services shall be computed at the actual hourly rates listed above.
4. ADDITIONAL CONSULTANTS.
If City requires Designer to hire consultants to perform any Additional Services, Designer shall be compensated therefore at the Designer’s actual hourly rates plus 0%. Owner shall have the authority to review and approve the rates of any such consultants.
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EXHIBIT "D"
FEDERAL CONTRACT PROVISIONS
During the performance of this Agreement, Consultant shall comply with all applicable federal laws and regulations including, but not limited to, t he federal contract provisions in this Exhibit “D”.
1. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APPENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (2 C.F.R. § 200.327)
(a) Appendix II to Part 200 (A); Appendix II to Part 200 (B): Remedies for Breach; Termination for Cause/Convenience. The Contract Documents include remedies for breach and termination for cause and convenience.
(b) A ppendix II to Part 200 (C) – Equal Employment Opportunity: If this Agreement meets the definition of a “federal assisted construction contract” in 41 CFR § 60-1.3, Consultant agrees as follows during the performance of this Agreement:
(i) The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Consultant will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other fo rms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(ii) The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(iii) The Consultant will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an inve stigation conducted by the employer, or is consistent with the Consultant's legal duty to furnish information. (iv) The Consultant will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Consultant's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
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(v) The Consultant will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (vi) The Consultant will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(vii) In the event of the Consultant's noncompliance with the nondiscrimination clauses of this Agreement or with any of the said rules, regulations, or orders, this Agreement may be canceled, terminated, or suspended in whole or in part and the Consultant may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedi es 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.
(viii) The Consultant will include the portion of the sentence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Consultant will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event the Consulta nt becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Consultant may request the United States to enter into such litigation to protect the interests of the United States.
The City 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 City so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the Agreement.
The City agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of the Consultant and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The City further agrees that it will refrain from en tering 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
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Executive Order. In addition, the City 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 the grant (contract, loan, insurance, guarantee) for this project; 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.
(c) Appendix II to Part 200 (D) – Davis-Bacon Act: Not applicable to this Agreement since it is funded by CSLFRF.
(d) Appendix II to Part 200 (D) – Copeland “Antti-Kickback” Act: Not applicable to this Agreement since it is funded by CSLFRF.
(e) A ppendix II to Part 200 (E) – Contract Work Hours and Safety Standards Act:
(i) Overtime Requirements. No contra ctor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (ii) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (ii) of this section the Consultant and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (ii) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (ii) of this section. (iii) Withholding for unpaid wages and liquidated damages. The City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Consultant or subcontractor under any such contract or any other Federal contract with the Consultant, or any other federally-assisted cont ract subject to the Contract Work Hours and Safety Standards Act, which is held by the Consultant, such sums as may be determined to be necessary to satisfy any liabilities of Consultant or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (iii) of this section. (iv) Subcontracts. The Consultant or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (ii) through (v) of this Section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Consultant shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (ii) through (v) of this Section. (f) Appendix II to Part 200 (F) – Rights to Inventions Made Under a Contract or Agreement: If the Federal award meets the definition of “funding agreement” under 37 CFR §
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401.2 (a) and the Consultant 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 Consultant must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.. (g) Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act:
(i) Pursuant to the Clean Air Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
(ii) Pursuant to the Federal Water Pollution Control Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
(h) Appendix II to Part 200 (H) – Debarment and Suspension:
(i) This Agreement is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is requ ired to verify that none of the Consultant, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). (ii) Consultant must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
(iii) This certification is a material representation of fact relied upon by City. If it is later determined that Consultant did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. (iv) Consultant warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in an y federal programs. Consultant also agrees to verify that all subcontractors performing work under this Agreement are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above. Consultant further agrees to notify the City in writing immediately if Consultant or its subcontractors are not in compliance during the term of this Agreement.
(i) Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act: Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier
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above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbyi ng with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency. (j) Appendix II to Part 200 (J) – §200.323 Procurement of Recovered Materials:
(i) Consultant shall comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement. (ii) In the performance of this Agreement, the Consultant shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired: competitively within a timeframe providing for compliance with the contract performance schedule; meeting contract performance requirements; or at a reasonable price. (iii) Information about this requirement, along with the list of EPA-designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. (iv) The Consultant also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.” (k) Appendix II to Part 200 (K) – §200.216 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment:
(i) Consultant shall not contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system funded under this Agreement. As described in Public Law 115–232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). (1) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
(2) Telecommunications or video surveillance services provided by such entities or using such equipment.
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(3) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
(ii) See Public Law 115-232, section 889 for additional information. (l) Appendix II to Part 200 (L) – §200.322 Domestic Preferences for Procurement:
(i) Consultant shall, to the greatest extent practicable, purchase, acquire, or use goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subcontracts.
(ii) For purposes of this section:
(1) “Produced in the United States’’ means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(2) ‘‘Manufactured products’’ means items and construction materials composed in whole or in part of nonferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
2. CONTRACTING WITH SMALL AND MINORITY FIRMS, WOMEN’S BUSINESS ENTERPRISE AND LABOR SURPLUS AREA FIRMS (2 C.F.R. § 200.321) (a) Consultant shall be subject to 2 C.F.R. § 200.321 and will take affirmative steps to assure that minority firms, women’s business enterprises, and labor surplus area firms are used when possible and will not be discriminated against on the grounds of race, color, religious creed, sex, or national origin in consideration for an award.
(b) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and women's business enterprises on solicitation lists;
(ii) Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources; (iii) Dividing total requirements, when ec onomically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises;
(iv) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises; and (v) Using the services/assistance of th e Small Business Administration (SBA), and the Minority Business Development Agency (MBDA) of the Department of Commerce.
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(c) Consultant shall submit evidence of compliance with the foregoing affirmative steps when requested by the City.
3. COMPLIANCE WITH U.S. DEPARTMENT OF THE TREASURY CORONAVIRUS
LOCAL FISCAL RECOVERY FUND AWARD TERMS AND CONDITIONS
(a) Maintenance of and Access to Records. Consultant shall maintain records and financial documents sufficient to evidence compliance with section 603(c) of the Act, Treasury’s regulations implementing that section, and guidance issued by Treasury regarding the foregoing.
Consultant agrees to provide the City, Treasury Office of Inspector General and the Government Accountability Office, or any of their authorized representatives access to any books, documents, papers, and records (electronic an otherwise) of the Consultant which are directly pertinent to this Agreement for the purposes of conducting audits or other investigations. Records shall be maintained by Consultant for a period of five (5) years after completion of the Project. (b) C ompliance with Federal Regulations. Consultant agrees to comply with the requirements of section 603 of the Act, regulations adopted by Treasury pursuant to section 603(f) of the Act, and guidance issued by Treasury regarding the foregoing. Consultant also agrees to comply with all other applicable federal statutes , regulations, and executive orders, including, without limitation, the following:
(i) Universal Identifier and System for Award Management (SAM), 2 C.F.R.
Part 25, pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 25 is hereby incorporated by reference.
(ii) Reporting Subaward and Executive Compensation Information, 2 C.F.R.
Part 170, pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 170 is hereby incorporated by reference.
(iii) OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement), 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 2 C.F.R. Part 180 and Treasury’s implementing regulation at 31 C.F.R. Part 19.
(iv) Recipient Integrity and Performance Matters, pursuant to which the award term set forth in 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference. (v) Governmentwide Requirements for Drug-Free Workplace, 31 C.F.R. Part
20. (vi) New Restrictions on Lobbying, 31 C.F.R. Part 21. (vii) Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C. §§ 4601-4655) and implementing regulations.
(c) Compliance with Federal Statutes and R egulations Prohibiting Discrimination.
Consultant agrees to comply with statutes and regulations prohibiting discrimination applicable to the CSLFRF program including, without limitation, the following:
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(i) Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) and Treasury’s implementing regulations at 31 C.F.R. Part 22, which prohibit 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. §§ 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. § 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. §§ 6101 et seq.), and Treasury’s implementing regulations at 31 C.F.R. Part 23, which prohibit discrimination on the basis of age in programs or activities receiving federal financial assistance. (v) Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. §§ 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.
(d) False Statements. Consultant understands that making false statements or claims in connection with the CSLFRF program 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.
(e) Protections for Whistleblowers.
(i) In accordance with 41 U.S.C. § 4712, Consultant 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. (ii) The list of persons and entities referenced in the paragraph above includes the following:
(1) A member of Congress or a representative of a committee of Congress;
(2) An Inspector General;
(3) The Government Accountability Office;
(4) A Treasury employee responsible for contract or grant oversight or management;
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(5) An authorized official of the Department of Justice or other law enforcement agency;
(6) A court or grand jury; or
(7) A management official or other employee of Consultant, or a subcontractor who has the responsibility to investigate, discover, or address misconduct. (f) Increasing Seat Belt Use in the United States. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Consultant is encouraged to adopt and enforce on-the-job seat belt policies and programs for their employees when operating company-owned, rented or personally owned vehicles, and encourage its subcontractors to do the same (g) R educing Text Messaging While Driving. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Consultant should encourage its employees and subcontractors to adopt and enforce policies that ban text messaging while driving, and Consultant should establish workplace safety policies to decrease accidents caused by distracted drivers. (h) A ssurances of Compliance with Civil Rights Requirements. The Civil Rights Restoration Act of 1987 provides that the provis ions of this assurance apply to the Project, including, but not limited to, the following:
(i) Consultant ensures its current and future compliance with Title VI of the Civil Rights Act of 1964, as amended, which prohibit s 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. § 2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at 31 CFR Part 22 and other pertinent executive orders such as Executive Order 13166; directives; circulars; policies; memoranda and/or guidance documents.
(ii) Consultant acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Pr oficiency (LEP),” seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, are limited in their English proficiency. Consultant understands that the denial of access to persons to its programs, services and activities because of their limited proficiency in English is a form of national origin discrimination prohibited under Title VI of the Civil Rights Act of 1964. Accordingly, Consultant shall initiate reasonable steps, or comply with Treasury’s directives, to ensure meaningful access to its programs, services and activities to LEP persons. Consultant understands and agrees that meaningful access may entail providing language assistance services, including oral interpretation and written translation where necessary to ensure effective communication in the Project.
(iii) Consultant agrees to consider the need for language services for LEP persons during development of applicable budgets and when conducting programs, services and activities. As a resource, the Department of th e Treasury has published its LEP guidance at 70 FR 6067. For more information on LEP, please visit http://www.lep.gov. (iv) Consultant acknowledges and agrees that compliance with this assurance constitutes a condition of continued receipt of federal financial assistance and is binding upon Consultant and Consultant’s successors, transferees and assignees for the period in which such assistance is provided.
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(v) Consultant agrees to incorporate the following language in every contract or agreement subject to Title VI and its regulations between the Consultant and the Consultant’s subcontractors, successors, transferees and assignees:
The subcontractor, 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 from a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by Department of the Treasury 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 extends protection to persons with “Limited English proficiency” in any program or activity receiving federal financial assistance, 42 U.S.C. § 2000d et seq., as implemented by Depa rtment of the Treasury Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement).
(vi) Consultant understands and agrees that if any real property or structure is provided or improved with the aid of federal financial assistance by the Department of the Treasury, this assurance obligates the Consultant, or in the case of a subsequent transfer, the transferee, for the period during which the real property or structure is used for a purpose for which the federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. If any personal property is provided, this assurance obligates the Consultant for the period during which it retains ownership or possession of the property. (vii) Consultant shall cooperate in any enforcement or compliance review activities by the Department of the Treasury of the aforementioned obligations. Enforcement may include investigation, arbitration, mediation, litigation, and monitoring of any settlement agreements that may result from these actions. Consultant shall comply with information requests, on-site compliance reviews, and reporting requirements. (viii) Consultant shall maintain a complaint log and inform the Department of the Treasury of any accusations of discrimination on the grounds of race, color, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Act of 1964 and implementing regulations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome. Consultant must also inform the Department of the Treasury if Consultant has received no complaints under Title VI. (ix) Consultant must provide documentation of an administrative agency’s or court’s findings of non-compliance of Title VI and efforts to address the non-compliance, including any voluntary compliance or other agreements between the Consultant and the administrative agency that made the finding. If the Consultant settles a case or matter alleging such discrimination, Consultant must provide document ation of the settlement. If Consultant has not been the subject of any court or administrative agency finding of discrimination, please so state. (x) If Consultant makes sub-awards to other agencies or other entities, Consultant is responsible for assuring that sub-recipients also comply with Title VI and all of the applicable authorities covered in this assurance.
COMPLIANCE WITH AMERICAN RESCUE PLAN ACT (ARPA)
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CORONAVIRUS LOCAL FISCAL RECOVERY FUND (CLFRF) FEDERAL GUIDELINES
USE OF ARPA CLFRF AND REQUIREMENTS
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): SLT0628 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 subcontractor(s) in any manner that does not adhere to the ARPA requirements shall be returned or repaid to the City or 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).
Contractor agrees to comply with the following:
A. In accordance with Title 2 Code of Federal Regulations (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.
B. 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 Title 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
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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 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.
C. 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.
D. 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.
E. 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).
F. 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.
G. 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. 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.
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H. 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 non-Federal 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 “Anti-Kickback” 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 Section 3.10.6 “Prevailing Wages” for additional information regarding California Prevailing Wage Rate Requirements and the applicable general prevailing wage determinations which are on file with the City 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.
I. 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.
J. 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.
K. 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 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:
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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 wo rkers' representatives of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and 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
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Exhibit B-16
such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violati on 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.
L. 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.
M. 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.
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N. Project Progress Reporting - Contractor agrees to provide project timeline and progress updates to the City upon request, per County, and United States Treasury guidelines and timeline. Contractor agrees to routine and impromptu program and project evaluation by the City.
O. Contractor shall comply with Title 2 Code of Federal Regulations 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. T he 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. 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.
P. 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 City 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 City 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 City, 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 City.
Q. 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 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 20 th day of the following
month.
R. Contractor shall cooperate in having an audit completed by City, at City’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.
S. Contractor shall repay to City 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 City 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, City reserves the right to withhold future payments due Contractor from any source under City’s control.
T. 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.
U. Universal Identifier and System for Award Management (SAM), Title 2 C.F.R. Part 25.
V. Reporting Subaward and Executive Compensation Information, Title 2 C.F.R. Part 170.
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W. 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 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 C.F.R.
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 C.F.R. Part 180 that implement Executive Orders 12549 (3 C.F.R. Part 1986 Comp., p. 189) and 12689 (3 C.F.R. Part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
X. 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.
Y. Government Requirements for Drug-Free Workplace, Title 31 C.F.R. Part 20.
Z. New Restrictions on Lobbying, Title 31 C.F.R. Part 21.
AA. Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C. Sections 4601- 4655) and implementing regulations.
BB. Applicable Federal environmental laws and regulations.
CC. 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 prohibit 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.
DD. 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.
EE. 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 U.S. Department of Treasury.”
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FF. 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.
GG. 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.
HH. As a recipient of federal financial assistance, the Civil Rights Restoration Act of 1987 applies, and Contractor 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 C.F.R.
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.
II. The City 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, Title 31 C.F.R. 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 rece iving federal financial assistance, 42 U.S.C.
Section 2000d et seq., as implemented by the Department of the Treasury’s Title VI regulations, Title 31 C.F.R. Sections Part 22, and herein incorporated by reference and made a part of this contract or agreement.”
JJ. Contractor shall cooperate in any enforcement or compliance review activities by the City, and/or the Department of the Treasury. Contractor shall comply with information requests, on-site compliance reviews, and reporting requirements.
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KK. 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.
LL. City has the right of access to records (electronic or otherwise) of Contractor in order to conduct audits or other investigations.
MM. 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 City is obligated with the Department of the U.S. Treasury, whichever is later.
NN. Contractor must disclose in writing any potential conflict of interest in accordance with Title 2 C.F.R.
Section 200.112.
OO. 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.
PP. City 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 Exhibit conflict with any other terms in the Contract, the terms in this Exhibit shall control.
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Attachment 3
Speicher Memorial Park
1000 ft
N ➤ ➤
N
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: March 6, 2024
To: Honorable Mayor and City Council Members
From: Charles A. Montoya, City Manager;
Cassandra Searcy, Deputy Director of Housing and
Homelessness
Department: Community Development and Housing Department (CD) Subject: Arrowhead Grove Phase IV Affordable Housing
Project Conditional Funding Commitment (Ward 2)
Recommendation:
It is Recommended that the Mayor and City Council of San Bernardino, California
1. Adopt Resolution No. 2024-036 of the Mayor and City Council of the City of San Bernardino, California, approving a Conditional Funding Commitment for Arrowhead Grove Phase IV, an affordable housing project; and
2. Authorize the City Manager, or designee, to take any further actions and execute any further agreements or documents as necessary including minor and substantive changes.
Executive Summary
Approval of Resolution No. 2024-036 is a conditional funding commitment of HOME Investment Partnership and Neighborhood Stabilization Programs funds, and there will be no impact on the General Fund. Arrowhead Grove Phase IV (“Project”), 92 low- income units, is part of a total of 412 units spread over three separate parcels. The project encourages and facilitates the development of new housing in Downtown San Bernardino and along transit lines.
Background
The United States Department of Housing and Urban Development (HUD) provides HOME Investment Partnerships Program (HOME) funding to the City, to support the increase in the supply of affordable housing for low- and very low-income households.
A conditional commitment refers to the promise to commit HOME fund once the
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Housing Authority of San Bernardino County (HACSB) and National Core Renaissance of California (CORE) meet agreed upon conditions.
Arrowhead Grove is a transformational master-planned community located in the heart of San Bernardino. When complete, this 38-acre site will consist of more than 400 mixed-income apartment homes for individuals, families, and seniors.
To date, Phase I (Valencia Vista), Phase II (Olive Meadow), and Phase III (Crestview Terrace) have been completed. The following summarizes Arrowhead Grove when all phases are completed:
Phase Location
# of
Units Completion Date
City
Contribution
Valencia Vista 960 N. Valencia Ave 75 June 2016 HOME Loan Olive Meadow 610 E. Olive St. 62 November 2017 HOME Loan Crestview
Terrace
575 E. Baseline St. 184 September 2021 HOME/NSP
Loan
Phase IV TBD 91 TBD HOME/NSP
Loan
Phase V Community Centers N/A TBD TBD
TOTAL 412
The completion of the first three phases has required the support of multiple funding sources: HUD Office of Recapitalization, HUD Federal Housing Administration, HUD Lender (Wells Fargo), Tax Credit Investors, and public lenders (County of San Bernardino, HACSB, and the City).
Discussion
Phase IV would include the development of seven (7) two and three-story buildings to accommodate 92 new affordable residential units targeting income levels at 80% of the Area Median Income (AMI) and below. Phase IV would include a private community center, a swimming pool, shared outdoor common area amenities with Phases I-III, and surface parking. Development of the 92 residential units, combined with the previously developed 321 units in Phases I-III would result in a total of 412 units.
To financially support the Project, the development team plans to submit an application for the Affordable Housing and Sustainable Communities (AHSC) program. The application deadline is March 19, 2024. The AHSC program provides grants and/or loans to projects that achieve GHG emission reductions and benefit Disadvantaged Communities, Low-Income Communities, and Low-Income Households through increasing accessibility of affordable housing, employment centers, and Key Destinations via low-carbon transportation. These investments result in fewer vehicle miles traveled through shortened or reduced vehicle trip length or mode shift to transit, bicycling, or walking.
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HACSB/CORE will also be applying for tax-exempt bonds from the California Debt Limit Allocation Committee (CDLAC), which if awarded also provides 4% federal low- income housing tax credits (Tax Credits), as well as $5 million from San Bernardino County, made up of $3 million of the County’s HOME allocation and $2 million from the County’s Housing Development Fund. HACSB will be donating the land to the Project as a below market ground lease conveyance. HUD has also confirmed that the Project is eligible for the conversion of assistance of 92 units to Section 8 assistance under the Rental Assistance Demonstration (RAD) program.
AHSC scores projects on a series of factors and requires HACSB/CORE to demonstrate that the Project is financially feasible as evidenced by documentation including, but not limited to, Enforceable Funding Commitments. City staff recommends the approval of a conditional commitment of up to $1.9 million of Neighborhood Stabilization Program (NSP) funds and up to $3 million in HOME funds to support the Arrowhead Grove Phase IV Project, not to exceed $4.9 million in total City funding.
This is a conditional funding commitment, City will return at a future date to request commitment of the HOME and NSP funds, when HACSB and CORE demonstrate all the HOME commitment requirements of 24 CFR 92.2, the requirements contained in 24 CFR92.250(b), provide assessment of the market demand in the neighborhood, complete the environmental review requirements, secure all necessary financing, provide a complete budget, demonstrate cost reasonableness, submit all documentation necessary for the City to complete underwriting and subsidy layering requirements.
2021-2025 Strategic Targets and Goals
Expanding accessibility to housing will improve the quality of life for unhoused residents. The Project aligns with Strategic Target No. 3: Improved Quality of Life.
Fiscal Impact
There is no fiscal impact to the General Fund associated with this item.
Conclusion
It is Recommended that the Mayor and City Council of San Bernardino, California
1. Adopt Resolution No. 2024-036 of the Mayor and City Council of the City of San Bernardino, California, approving a Conditional Funding Commitment for Arrowhead Grove Phase IV, an affordable housing project; and
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2. Authorize the City Manager, or designee, to take any further actions and execute any further agreements or documents as necessary including minor and substantive changes.
Attachments
Attachment 1: Resolution 2024-036
Attachment 2: Resolution 2017-257 Arrowhead Grove Project Ward:
2ND Ward
Synopsis of Previous Council Actions:
December 20, 2017 The Mayor and City Council approved the Conditional Use Permit and Revised Subdivision for the development of the Arrowhead Grove Project.
Packet Page.
409
Resolution No. 2024-036
Resolution 2024-036
March 6, 2024