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RESOLUTION NO. 2024-202
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
AUTHORIZING THE DEPARTMENT OF ANIMAL
SERVICES TO ACCEPT GRANT FUNDING IN THE
AMOUNT OF $25,000 FROM BEST FRINDS ANIMAL
SOCIETY; AND AUTHORIZING THE DIRECTOR OF
FINANCE AND MANAGEMENT SERVICES TO AMEND
THE FISCAL YEAR 2024/25 BUDGET IN BOTH REVENUES
AND EXPENSES AND APPROPRIATE $25,000 TO BE USED
TOWARDS ANIMAL SHELTER PROGRAMS AND
SERVICES
WHEREAS, the City of San Bernardino Department of Animal Services has been approved for grant funding by Best Friends Animal Society; and WHEREAS, the City is working to increase the number of animals adopted or placed into rescue organizations; and
WHEREAS, the City is working to expand community engagement at the shelter; and WHEREAS, the grant funding would support the City in its efforts.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this reference.
SECTION 2. The Mayor and City Council hereby approves the acceptance of grant funding from Best Friends Animal Society.
SECTION 3. The Mayor and City Council hereby authorizes the Director of Finance and Management Services to amend the FY 2024/25 Budget in both revenues and expenses and appropriate $25,000 to be used towards animal shelter programs and services.
SECTION 4. 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.
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Resolution No. 2024-202
Resolution 2024-202
September 18, 2024
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SECTION 5.Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 6. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this ___ day of __________ 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. 2024-202
Resolution 2024-202
September 18, 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. 2024-202, adopted at a regular meeting held on the ___ day of _______ 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 ____________ 2024.
Genoveva Rocha, CMC, City Clerk
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: September 18, 2024
To: Honorable Mayor and City Council Members
From: Rochelle Clayton, Acting City Manager;
Rolland Kornblau, Director of Information Technology
Department: Information Technology
Subject: Renewal of all necessary contracts associated with Microsoft O365 Enterprise License Subscription and
Services (All Wards)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California authorize the City Manager to execute the Microsoft Volume Licensing Enterprise Enrollment; and the Professional Software Service Agreement with Insight Public Sector Inc., for a term of 36-months.
Executive Summary
The City's Mayor and Council passed Resolution No. 2021-229 authorizing a contract with Insight Public Sector, Inc. for Microsoft Office 365 cloud-based licenses. This move has enhanced document collaboration and resolved compatibility issues. The staff is now seeking approval to renew this contract due to the management benefits of enterprise volume licensing. Renewal promises continued access to the government cloud unavailable with individual license purchases, increasing security and simplifying software management while ensuring licensing compliance. Additionally, it supports flexible software deployment, essential for the city's operational adaptability.
Background
On September 15, 2021, the Mayor and City Council approved Resolution No. 2021- 229, which granted the city authorization to engage in a professional software service agreement with Insight Public Sector, Inc. By leveraging the County of Riverside's volume licensing agreement, through this contract, the city was able to achieve significant cost reductions for Microsoft Subscriptions and Services. Additionally, this agreement facilitated the standardization of software versions throughout the city's departments, resolving compatibility issues and enhancing collaborative efforts on document editing, which in turn improved overall workflow efficiency.
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Discussion
Staff is requesting authorization to renew the professional software service agreement with Insight Public Sector Inc., The renewal terms include a rate of $234.06 per user per year, with a 10% contingency allowance for potential price adjustments due to the onboarding of new staff, ensuring the total does not surpass our annual IT software support budget. Current license count is 938. Additionally, the execution of the enterprise volume licensing agreement with Microsoft for their Subscriptions and Services. Enterprise volume licensing offers cost savings from $265 Business Pricing.
Continuing our agreement will enable us to maintain access to discounts and management that are not offered with the purchase of single licenses. This approach not only reduces overall expenses but also streamlines software management and allows for flexibility in software deployment, which is crucial for adapting to the evolving needs of the city.
2021-2025 Strategic Targets and Goals
Authorization of the ongoing purchase orders aligns with Key Target No. 2: Focused, Aligned, Leadership and Unified Community. Software and hardware applications are maintained to achieve operational efficiencies and supports operational efficiency and long-term technological growth.
Fiscal Impact
There is no fiscal impact associated with the recommended action of this item.
Budget has been allocated in FY 2024/2025.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California authorize the City Manager to execute the Microsoft Volume Licensing Enterprise Enrollment; and the Professional Software Service Agreement with Insight Public Sector Inc., for a term of 36-months.
Attachments
Attachment 1 Microsoft Volume Licensing
Attachment 2 Insight Public Sector - PSSA 2024
Ward:
All Wards
Synopsis of Previous Council Actions:
September 15, 2021 Mayor and City Council adopted Resolution No. 2021-229, authorizing a professional software service agreement with Insight Public Sector, Inc., for Microsoft O365 software services.
August 17, 2022 Mayor and City Council approved additional Microsoft Licenses as needed for new employees.
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ProgramSignForm(MSSign)(NA,LatAm)ExBRA,MLI(ENG)(May2020) Page 1 of 2 Document X20-12883
Program Signature Form
MBA/MBSA number
5-0000011914155
Agreement number 8084445
Note: Enter the applicable active numbers associated with the documents below. Microsoft requires the associated active number be indicated here, or listed below as new.
For the purposes of this form, “Customer” can mean the signing entity, Enrolled Affiliate, Government Partner, Institution, or other party entering into a volume licensing program agreement.
This signature form and all contract documents identified in the table below are entered into between the Customer and the Microsoft Affiliate signing, as of the effective date identified below.
Contract Document Number or Code
Enterprise Enrollment (Indirect) X20-10636
Enterprise Amendment M97 / New
Product Selection Form 2720397.002_PSF
By signing below, Customer and the Microsoft Affiliate agree that both parties (1) have received, read and understand the above contract documents, including any websites or documents incorporated by reference and any amendments and (2) agree to be bound by the terms of all such documents.
Customer
Name of Entity (must be legal entity name)* City of San Bernardino Signature* {{SIGCU6signature_es_:signer1:signature}}
Printed First and Last Name* {{SIGCU3customerprintedfirstandlastname_es_:signer1:fullname}} Printed Title {{SIGCU4printedtitle_es_:signer1:title}}
Signature Date* {{SIGCU5_es_:signer1:date}}
Tax ID
* indicates required field
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Microsoft Affiliate
Microsoft Corporation
Signature {{SIGROC1signature_es_:signer5:signature}}
Printed First and Last Name {{SIGROC1Microsoftprintedfirstandlastname_es_:signer5:fullname}} Printed Title {{SIGROC2printedtitle_es_:signer5:title}} Signature Date {{SIGMAM3_es_:signer5:date}}
(date Microsoft Affiliate countersigns)
Agreement Effective Date
{{*SIGMAM4_es_:signer5:isdate(format="mmm-dd-yyyy")}}
(may be different than Microsoft’s signature date)
Optional 2nd Customer signature or Outsourcer signature (if applicable) Customer
Name of Entity (must be legal entity name)*
Signature* {{SIG2C5signature_es_:signer2:signature}}
Printed First and Last Name* {{SIG2C2customerprintedfirstandlastname_es_:signer2:fullname}} Printed Title {{SIG2C3printedtitle_es_:signer2:title}}
Signature Date* {{SIG2C4_es_:signer2:date}}
* indicates required field
Outsourcer
Name of Entity (must be legal entity name)*
Signature*
Printed First and Last Name*
Printed Title
Signature Date*
* indicates required field
If Customer requires additional contacts or is reporting multiple previous Enrollments, include th e appropriate form(s) with this signature form.
After this signature form is signed by the Customer, send it and the Contract Documents to Customer’s channel partner or Microsoft account manager, who must submit them to the following address. When the signature form is fully executed by Microsoft, Customer will receive a confirmation copy.
Microsoft Corporation
Dept. 551, Volume Licensing
6880 Sierra Center Parkway
Reno, Nevada 89511
USA
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Enterprise Enrollment State and Local
Enterprise Enrollment number
(Microsoft to complete) 50517887 Framework ID
(if applicable)
Previous Enrollment number
(Reseller to complete) 81451442
This Enrollment must be attached to a signature form to be valid.
This Microsoft Enterprise Enrollment is entered into between the entities as identified in the signature form as of the effective date. Enrolled Affiliate represents and warrants it is the same Customer, or an Affiliate of the Customer, that entered into the Enterprise Agreement identified on the program signature form.
This Enrollment consists of: (1) these terms and conditions, (2) the terms of the Enterprise Agreement identified on the signature form, (3) the Product Selection Form, (4) the Product Terms, (5) any Supplemental Contact Information Form, Previous Agreement/Enrollment form , and other forms that may be required, and (6) any order submitted under this Enrollment. This Enrollment may only be entered into under a 2011 or later Enterprise Agreement. By entering into this Enrollment, Enrolled Affiliate agrees to be bound by the terms and conditions of the Enterprise Agreement.
All terms used but not defined are located at http://www.microsoft.com/licensing/contracts. In the event of any conflict the terms of this Agreement control.
Effective date. If Enrolled Affiliate is renewing Software Assurance or Subscription Licenses from one or more previous Enrollments or agreements, then the effective date will be the day after the first prior Enrollment or agreement expires or terminates. If this Enrollment is renewed, the effective da te of the renewal term will be the day after the Expiration Date of the initial term. Otherwise, the effective date will be the date this Enrollment is accepted by Microsoft. Any reference to “anniversary date” refers to the anniversary of the effective date of the applicable initial or renewal term for each year this Enrollment is in effect.
Term. The initial term of th is Enrollment will expire on the last day of the month, 36 full calendar months from the effective date of the initial term . The renewal term will expire 36 full calendar months after the effective date of the renewal term.
Terms and Conditions
1. Definitions.
Terms used but not defined in this Enrollment will have the definition in the Enterprise Agreement. The following definitions are used in this Enrollment:
“Additional Product” means any Product identified as such in the Product Terms and chosen by Enrolled Affiliate under this Enrollment.
“Community” means the community consisting of one or more of the following: (1) a Government, (2) an Enrolled Affiliate using eligible Government Community Cloud Services to provide solutions to a Government or a qualified member of the Community, or (3) a Customer with Customer Data that is subject to Government regulations for which Customer determines and Microsoft agrees that the use of Government Community Cloud Services is appropriate to meet Customer’s regulatory requirements.
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Membership in the Community is ultimately at Microsoft’s discretion, which may vary by Government Community Cloud Service.
“Enterprise Online Service” means any Online Service designated as an Enterprise Online Service in the Product Terms and chosen by Enrolled Affiliate under this Enrollment. Enterprise Online Services are treated as Online Services, except as noted.
“Enterprise Product” means any Desktop Platform Product that Microsoft designates as an Enterprise Product in the Product Terms and chosen by Enrolled Affiliate under this Enrollment. Enterprise Products must be licensed for all Qualified Devices and Qualified Users on an Enterprise -wide basis under this program.
“Expiration Date” means the date upon which the Enrollment expires. “Federal Agency” means a bureau, office, agency, department or other entity of the United States Government.
“Government” means a Federal Agency, State/Local Entity, or Tribal Entity acting in its governmental capacity.
“Government Community Cloud Se rvices” means Microsoft Online Services that are provisioned in Microsoft’s multi-tenant data centers for exclusive use by or for the Community and offered in accordance with the National Institute of Standards and Technology (NIST) Special Publication 800 -145. Microsoft Online Services that are Government Community Cloud Services are designated as such in the Use Rights and Product Terms.
“Industry Device” (also known as line of business device) means any device that: (1) is not useable in its deployed configuration as a general purpose personal computing device (such as a personal computer), a multi-function server, or a commercially viable substitute for one of these systems; and (2) only employs an industry or task-specific software program (e.g. a comp uter-aided design program used by an architect or a point of sale program) (“Industry Program”). The device may include features and functions derived from Microsoft software or third -party software. If the device performs desktop functions (such as emai l, word processing, spreadsheets, database, network or Internet browsing, or scheduling, or personal finance), then the desktop functions: (1) may only be used for the purpose of supporting the Industry Program functionality; and (2) must be technically in tegrated with the Industry Program or employ technically enforced policies or architecture to operate only when used with the Industry Program functionality. “Managed Device” means any device on which any Affiliate in the Enterprise directly or indirectly controls one or more operating system environments. Examples of Managed Devices can be found in the Product Terms.
“Qualified Device” means any device that is used by or for the benefit of Enrolled Affiliate’s Enterprise and is: (1) a personal desktop comp uter, portable computer, workstation, or similar device capable of running Windows Pro locally (in a physical or virtual operating system environment), or (2) a device used to access a virtual desktop infrastructure (“VDI”). Qualified Devices do not inclu de any device that is: (1) designated as a server and not used as a personal computer, (2) an Industry Device, or (3) not a Managed Device. At its option, the Enrolled Affiliate may designate any device excluded above (e.g., Industry Device) that is used by or for the benefit of the Enrolled Affiliate’s Enterprise as a Qualified Device for all or a subset of Enterprise Products or Online Services the Enrolled Affiliate has selected. “Qualified User” means a person (e.g., employee, consultant, contingent st aff) who: (1) is a user of a Qualified Device, or (2) accesses any server software requiring an Enterprise Product Client Access License or any Enterprise Online Service. It does not include a person who accesses server software or an Online Service solely under a License identified in the Qualified User exemptions in the Product Terms. “Reseller” means an entity authorized by Microsoft to resell Licenses under this program and engaged by an Enrolled Affiliate to provide pre- and post-transaction assistance related to this agreement; “Reserved License” means for an Online Service identified as eligible for true -ups in the Product Terms, the License reserved by Enrolled Affiliate prior to use and for which Microsoft will make the Online Se rvice available for activation.
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"State/Local Entity" means (1) any agency of a state or local government in the United States, or (2) any United States county, borough, commonwealth, city, municipality, town, township, special purpose district, or other similar type of gover nmental instrumentality established by the laws of Customer’s state and located within Customer’s state’s jurisdiction and geographic boundaries. “Tribal Entity” means a federally recognized tribal entity performing tribal governmental functions and eligible for funding and services from the U.S. Department of Interior by virtue of its status as an Indian tribe.
“Use Rights” means, with respect to any licensing program, the use rights or term s of service for each Product and version published for that licensing program at the Volume Licensing Site and updated from time to time. The Use Rights include the Product -Specific License Terms, the License Model terms, the Universal License Terms, the Data Protection Terms, and the Other Legal Terms. The Use Rights supersede the terms of any end user license agreement (on -screen or otherwise) that accompanies a Product.
“Volume Licensing Site” means http://www.microsoft.com/licensing/contracts or a successor site.
2. Order requirements.
a. Minimum order requirements. Enrolled Affiliate’s Enterprise must have a minimum of 250 Qualified Users or Qualified Devices. The initial order must include at le ast 250 Licenses for Enterprise Products or Enterprise Online Services.
(i) Enterprise commitment. Enrolled Affiliate must order enough Licenses to cover all Qualified Users or Qualified Devices, depending on the License Type, with one or more Enterprise Products or a mix of Enterprise Products and the corresponding Enterprise Online Services (as long as all Qualified Devices not covered by a License are on ly used by users covered with a user License).
(ii) Enterprise Online Services only. If no Enterprise Product is ordered, then Enrolled Affiliate need only maintain at least 250 Subscription Licenses for Enterprise Online Services.
b. Additional Products. Upon satisfying the minimum order requirements above, Enrolled Affiliate may order Additional Products.
c. Use Rights for Enterprise Products. For Enterprise Products, if a new Product version has more restrictive use rights than the version that is current at the start of the applicable initial or renewal term of the Enrollment, those more restrictive use rights will not apply to Enrolled Affiliate’s use of that Product during that term.
d. Country of usage. Enrolled Affiliate must specify the count ries where Licenses will be used on its initial order and on any additional orders.
e. Resellers. Enrolled Affiliate must choose and maintain a Reseller authorized in the United States. Enrolled Affiliate will acquire its Licenses through its chosen Reseller . Orders must be submitted to the Reseller who will transmit the order to Microsoft. The Reseller and Enrolled Affiliate determine pricing and payment terms as between them, and Microsoft will invoice the Reseller based on those terms. Throughout this Agreement the term “price” refers to reference price. Resellers and other third parties do not have authority to bind or impose any obligation or liability on Microsoft.
f. Adding Products.
(i) Adding new Products not previously ordered . New Enterprise Products or Enterprise Online Services may be added at any time by contacting a Microsoft Account Manager or Reseller. New Additional Products, other than Online Services, may be used if an order is placed in the month the Product is first used. For Additional Prod ucts that are Online Services, an initial order for the Online Service is required prior to use.
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(ii) Adding Licenses for previously ordered Products. Additional Licenses for previously ordered Products other than Online Services may be added at any time but must be included in the next true-up order. Additional Licenses for Online Services must be ordered prior to use, unless the Online Services are (1) identified as eligible for true -up in the Product Terms or (2) included as part of other Licenses. g. True-up requirements. Enrolled Affiliate must submit an annual true -up order that accounts for any changes since the initial order or last order. If there are no changes, then an update statement must be submitted instead of a true-up order. (i) Enterprise Products. For Enterprise Products, Enrolled Affiliate must determine the number of Qualified Devices and Qualified Users (if ordering user -based Licenses) at the time the true-up order is placed and must order additional Licenses for all Qualified Devices and Qual ified Users that are not already covered by existing Licenses, including any Enterprise Online Services.
(ii) Additional Products. For Additional Products that have been previously ordered under this Enrollment , Enrolled Affiliate must determine the maximum nu mber of Additional Products used since the latter of the initial order, the last true -up order, or the prior anniversary date and submit a true-up order that accounts for any increase. (iii) Online Services. For Online Services identified as eligible for true -up in the Product Terms, Enrolled Affiliate may place a reservation order for the additional Licenses prior to use and payment may be deferred until the next true -up order. Microsoft will provide a report of Reserved Licenses ordered but not yet invoiced to Enrolled Affiliate and its Reseller. Reserved Licenses will be invoiced retrospectively to the month in which they were ordered.
(iv) Subscription License reductions. Enrolled Affiliate may reduce the quantity of Subscription Licenses at the Enrollment anniversary date on a prospective basis if permitted in the Product Terms, as follows:
1) For Subscription Licenses that are part of an Enterprise-wide purchase, Licenses may be reduced if the total quantity of Licenses and Software Assurance for a n applicable group meets or exceeds the quantity of Qualified Devices and Qualified Users (if ordering user-based Licenses) identified on the Product Selection Form, and includes any additional Qualified Devices and Qualified Users added in any prior true-up orders.
Step-up Licenses do not count towards this total count. 2) For Enterprise Online Services in a given Product pool that are not a part of an Enterprise-wide purchase, Licenses can be reduced as long as (a) the initial order minimum requirements are maintained and (b) all then -active users of each Online Service are included the total quantity of Licenses remaining afte r the reduction. An Enrolled Affiliate may reduce Licenses for Online Services on or before the Enrollment anniversary date and place a reservation order for such licenses within 90 days after the anniversary date; however, any licenses ordered as describe d in this section will be invoiced to the Enrolled Affiliate for the time period the licenses were made available.
3) For Additional Products available as Subscription Licenses, Enrolled Affiliate may reduce the Licenses. If the License count is reduced to zero, then Enrolled Affiliate’s use of the applicable Subscription License will be cancelled.
Invoices will be adjusted to reflect any reductions in Subscription Licenses at the true -up order Enrollment anniversary date and effective as of such date. (v) Update statement. An update statement must be submitted instead of a true -up order if, since the initial order or last true -up order, Enrolled Affiliate’s Enterprise: (1) has not changed the number of Qualified Devices and Qualified Users licensed w ith Enterprise Products or Enterprise Online Services; and (2) has not increased its usage of Additional
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Products. This update statement must be signed by Enrolled Affiliat e’s authorized representative.
(vi) True-up order period. The true -up order or update s tatement must be received by Microsoft between 60 and 30 days prior to each Enrollment anniversary date. The third - year true-up order or update statement is due within 30 days prior to the Expiration Date, and any license reservations within this 30 day period will not be accepted. Enrolled Affiliate may submit true -up orders more often to account for increases in Product usage, but an annual true-up order or update statement must still be submitted during the annual order period.
(vii) Late true-up order. If the true-up order or update statement is not received when due , Microsoft may invoice Reseller for all Reserved L icenses not previously invoiced and Subscription License reductions cannot be reported until the following Enrollment anniversary date (or at Enrollment renewal, as applicable). h. Step-up Licenses. For Licenses eligible for a step-up under this Enrollment, Enrolled Affiliate may step-up to a higher edition or suite as follows:
(i) For step-up Licenses included on an initial order, Enrolled Affiliate may order according to the true-up process.
(ii) If step -up Licenses are not included on an initial order, Enrolled Affiliate may step -up initially by following the process described in the Section titled “Adding new Products not previously ordered,” then for a dditional step-up Licenses, by following the true -up order process.
i. Clerical errors. Microsoft may correct clerical errors in this Enrollment, and any documents submitted with or under this Enrollment, by providing notice by email and a reasonable opportunity for Enrolled Affiliate to object to the correction. Clerical errors include minor mistakes, unintentional additions and omissions. This provision does not apply to material terms, such as the identity, quantity or price of a Product ordered. j. Verifying compliance. Microsoft may, in its discretion and at its expense, verify compliance with this Enrollment as set forth in the Enterprise Agreement.
3. Pricing.
a. Price Levels. For both the initial and any renewal term Enrolled Affiliate’s Price Level for all Products ordered under this Enrollment will be Level “D” throughout the term of the Enrollment. b. Setting Prices. Unless otherwise expressly agreed to by the parties and except for Online Services designated in the Product Terms as being exempt from fix ed pricing, Enrolled Affiliate’s prices for each Product or Service will be established by its Reseller. As long as Enrolled Affiliate continues to qualify for the same price level, Microsoft’s prices for Resellers for each Product or Service ordered will be fixed throughout the applicable initial or renewal Enrollment term. Microsoft’s prices to Resellers are reestablished at the beginning of the renewal term.
4. Payment terms.
For the initial or renewal order, Microsoft will invoice Enrolled Affiliate’s Reseller in three equal annual installments. The first installment will be invoiced upon Microsoft’s acceptance of this Enrollment and remaining installments will be invoiced on each subsequent Enrollment anniversary date. Subsequent orders are invoiced upon acceptance of the order and Enrolled Affiliate may elect to pay annually or upfront for Online Services and upfront for all other Licenses.
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5. End of Enrollment term and termination.
a. General. At the Expiration Date, Enrolled Affiliate must immediately order and pay for Licenses for Products it has used but has not previously submitted an order, except as otherwis e provided in this Enrollment.
b. Renewal option. At the Expiration Date of the initial term , Enrolled Affiliate can renew Products by renewing this Enrollment for one additional 36 -month term or by signing a new Enrollment. Microsoft must receive a Renewal Form, Product Selection Form , and renewal order prior to or at the Expiration Date. Microsoft will not unreasonably reject any renew al.
Microsoft may make changes to this program that will make it necessary for Customer and its Enrolled Affiliates to enter into new agreements and Enrollments at renewal. c. If Enrolled Affiliate elects not to renew.
(i) Software Assurance. If Enrolled Affiliate elects not to renew Software Assurance for any Product under its Enrollment, then Enrolled Affiliate will not be permitted to order Software Assurance later without first acquiring a new License with Software Assurance. (ii) Online Services eligible for an Extended Term. For Online Services identified as eligible for an Extended Term in the Product Terms, the following options are available at the end of the Enrollment initial or renewal term.
1) Extended Term. Licenses for Online Services will automatically expire in accordance with the terms of the Enrollment. An extended term option that allows Online Services to continue month -to-month (“Extended Term”) is available. During the Extended Term, Online Services will be invoiced monthly at the then -current published price as of the Expiration Date plus a 3% administrative fee for up to one year . If Enrolled Affiliate wants an Extended Term, Enrolled Affiliate must submit a request to Microsoft at least 30 days prior to the Expiration Date.
2) Cancellation during Extended Term. At any time during the first twelve months of the Extended Term, Enrolled Affiliate may terminate the Extended Term by submitting a notice of cancellation to Microsoft for each Online Service. Thereafter, Microsoft may condition the continued use of each Online Service on the acceptance of new terms by the Enrolled Affiliate. Enrolled Affiliate will be notified in writing of any new terms at least 60 days before any such changes take effect. Enrolled Affiliate acknowledges and agrees that after the notice described in this section , its continued use of each Online Service after the effective date provided in the notice will constitute its acceptance of the new terms. If Enrolled Affiliate does not agree to the new terms, it must stop using the Online Services and terminate the Extended Term as provided in this section. Enrolled Affiliate’s termination under this section will be effective at the end of the month following 30 days after Microsoft has received the notice. (iii) Subscription Licenses and Online Services not eligible for an Extended Term. If Enrolled Affiliate elects not to renew, the Licenses will be cance lled and will terminate as of the Expiration Date. Any associated media must be uninstalled and destroyed and Enrolled Affiliate’s Enterprise must discontinue use. Microsoft may request written certification to verify compliance.
d. Termination for cause. Any termination for cause of this Enrollment will be subject to the “Termination for cause” section of the Agreement. In addition, it shall be a breach of this Enrollment if Enrolled Affiliate or any Affiliate in the Enterprise that uses Government Community Cloud Services fails to meet and maintain the conditions of membership in the definition of Community.
e. Early termination. Any early termination of this Enrollment will be subject to the “Early Termination” Section of the Enterprise Agreement.
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For Subscription Licenses, in the event of a breach by Microsoft, or if Microsoft terminates an Online Service for regulatory reasons, Microsoft will issue Reseller a credit for any amount paid in advance for the period after termination.
6. Government Community Cloud.
a. Community requirements. If Enrolled Affiliate purchases Government Community Cloud Services, Enrolled Affiliate certifies that it is a member of the Community and agrees to use Government Community Cloud Services solely in its capacity as a mem ber of the Community and, for eligible Government Community Cloud Services, for the benefit of end users that are members of the Community. Use of Government Community Cloud Services by an entity that is not a member of the Community or to provide services to non-Community members is strictly prohibited and could result in termination of Enrolled Affiliate’s license(s) for Government Community Cloud Services without notice. Enrolled Affiliate acknowledges that only Community members may use Government Community Cloud Services. b. All terms and conditions applicable to non-Government Community Cloud Services also apply to their corresponding Government Community Cloud Services, except as otherwise noted in the Use Rights, Product Terms, and this Enrollment.
c. Enrolled Affiliate may not deploy or use Government Community Cloud Services and corresponding non-Government Community Cloud Services in the same domain. d. Use Rights for Government Community Cloud Services. For Government Community Cloud Services, notwithstanding anything to the contrary in the Use Rights:
(i) Government Community Cloud Services will be offered only within the United States. (ii) Additional European Terms, as set forth in the Use Rights, will not apply. (iii) References to geographic areas in the Use Rights with respect to the location of Customer Data at rest, as set forth in the Use Rights, refer only to the United States.
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Enrollment Details
1. Enrolled Affiliate’s Enterprise.
Identify which Agency Affiliates are included in the Enterprise. (Required) Enrolled Affiliate’s Enterprise must consist of entire offices, bureaus, agencies, departments or other entities of Enrolled Affiliate, not partial offices, bureaus, agencies, or departments, or other partial entities. Check only one box in this section. If no boxes are checked, Microsoft will deem the Enterprise to include the Enrolled Affiliate only. If more than one box is checked, Microsoft will deem the Enterprise to include the largest number of Affiliates:
Enrolled Affiliate only
Enrolled Affiliate and the following Affiliate(s):
Unless specifically identified above, all Affiliates of Customer, either existing at the execution of this Enrollment or created or acquired after the execution of this Enrollment, will be excluded from the Enterprise. To request that an additional Affiliate be included in Customer’s Enterprise, Customer must identify an Affiliate to Microsoft in writing and provide any required documentation. Microsoft will reasonably review requests under this paragraph and may approve the inclusion of an Affiliate in Customer‘s Enterprise in its sole discretion.
2. Contact information.
Each party will notify the other in writing if any of the information in the following contact information page(s) changes. The asterisks (*) indicate required fields. By providing contact information, Enrolled Affiliate consents to its use for purposes of administering this Enrollment by Microsoft, its Affiliates, and other parties that help administer this Enrollment. The personal information provided in connection with this Enrollment will be used and protected in accordance with the privacy statement available at https://www.microsoft.com/licensing/servicecenter.
a. Primary contact. This contact is the primary contact for the Enrollment from within Enrolled Affiliate’s Enterprise. This contact is also an Online Administrator for the Volume Licensing Service Center and may grant online access to others. The primary contact will be the default contact for all purposes unless separate contacts are identified for specific purposes Name of entity (must be legal entity name)* City of San Bernardino Contact name: First* Rolland Middle Last* Kornblau Contact email address* [email protected]
Street address* 290 North D Street
City* San Bernardino
State* CA
Postal code* 92401-1734 -
(Please provide the zip + 4, e.g. xxxxx-xxxx)
Country* United States
Phone* 909.384.5947 xt3017
Tax ID
* indicates required fields
b. Notices contact and Online Administrator. This contact (1) receives the contractual notices, (2) is the Online Administrator for the Volume Licensing Service Center and may grant online access to others, and (3) is authorized to order Reserved Licenses for eligible Online Servies, including adding or reassigning Licenses and stepping-up prior to a true-up order. Same as primary contact (default if no information is provided below, even if the box is not checked).
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EA20241EnrGov(US)SLG(ENG)(Oct2023) Page 9 of 10
Document X20-10636
Contact name: First* Rolland Middle Last* Kornblau Contact email address* [email protected]
Street address* 290 North D Street
City* San Bernardino
State* CA
Postal code* 92401-1734 -
(Please provide the zip + 4, e.g. xxxxx-xxxx)
Country* United States
Phone* 909.384.5947 xt3017
Language preference. Choose the language for notices. English This contact is a third party (not the Enrolled Affiliate). Warning: This contact re ceives personally identifiable information of the Customer and its Affiliates. * indicates required fields
c. Online Services Manager. This contact is authorized to manage the Online Services ordered under the Enrollment and (for applicable Online Services) to add or reassign Licenses and step-up prior to a true-up order.
Same as notices contact and Online Administrator (default if no information is provided below, even if box is not checked)
Contact name: First* Rolland Middle Last* Kornblau Contact email address* [email protected]
Phone* 909.384.5947 xt3017
This contact is from a third party organization (not the entity). Warning: This contact receives personally identifiable information of the entity. * indicates required fields
d. Reseller information. Reseller contact for this Enrollment is:
Reseller company name* Insight Direct USA, Inc.
Street address (PO boxes will not be accepted)* 2701 E. Insight Way City* Chandler
State* AZ
Postal code* 85286-1930
Country* United States
Contact name* Software *Contract Support
Phone* 800-624-0503
Contact email address* [email protected]
* indicates required fields
By signing below, the Reseller identified above confirms that all information provided in this Enrollment is correct.
Signature* Software *Contract Support
Printed name* Software *Contract Support
Printed title*
Date*
* indicates required fields
Changing a Reseller. If Microsoft or the Reseller chooses to discontinue doing business with each other, Enrolled Affiliate must choose a replacement Reseller. If Enrolled Affiliate or the Reseller intends to terminate their relationship, the initiating party must notify Microsoft and the other party using a form provided by Microsoft at least 90 days prior to the date on which the change is to take effect.
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EA20241EnrGov(US)SLG(ENG)(Oct2023) Page 10 of 10
Document X20-10636
e. If Enrolled Affiliate requires a separate contact for any of the following, attach the Supplemental Contact Information form. Otherwise, the notices contact and Online Administrator remains the default.
(i) Additional notices contact
(ii) Software Assurance manager
(iii) Subscriptions manager
(iv) Customer Support Manager (CSM) contact
3. Financing elections.
Is a purchase under this Enrollment being financed through MS Financing? Yes, No.
If a purchase under this Enrollment is financed through MS Financing, and Enrolled Affiliate chooses not to finance any associated taxes, it must pay these taxes directly to Microsoft.
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PrevEnrAgrForm(WW)(ENG)(Oct2019) Page 1 of 1
Document X20-12873
Previous Enrollment(s)/Agreement(s) Form
Entity Name: City of San Bernardino
Contract that this form is attached to: State Local Government For the purposes of this form, “ entity” can mean the signing entity, Customer, Enrolled Affiliate, Government Partner, Institution, or other party entering into a volume licensing program agreement.
Please provide a description of the previous Enrollment(s), Agreement(s) , Purchasing Account(s), and/or Affiliate Registration(s) being renewed or consolidated into the new contract identified above. a. Entity may select below any previous contract(s) from which to transfer MSDN subscribers to this new contract. Entity shall ensure that each MSDN subscriber transferred is either properly licensed under the new contract or is removed. b. Entity may select below only on e previous contract from which to transfer the Software Assurance (SA) Benefit contact details, i.e., benefits contact (not the SA manager) and the program codes, to this new contract.
c. An Open License cannot be used to transfer either the SA Benefit detail s or MSDN subscribers.
d. The date of the earliest expiring Enrollment/Agreement that contains SA or Online Services will be the effective date of the new contract (or SA coverage period for Select Plus). e. Please insert the number of the earliest expiring Enro llment/Agreement with SA or Online Services in the appropriate fields of the new contract.
Enrollment/Agreement/
Purchasing Account/Affiliate
Registration Description
Enrollment/Agreement/
Purchasing Account/Affiliate
Registration Public Customer
Number
Transfer
SA Benefit
Contact
Transfer
MSDN
Subscribers
Standard Enrollment 81451442 X X
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AmendmentApp v4.0 M97 B
Amendment to Contract Documents
Enrollment Number
5-0000011914155
This amendment (“Amendment”) is entered into between the parties identified on the attached program signature form. It amends the Enrollment or Agreement identified above. All terms used but not defined in this Amendment will have the same meanings provided in that Enrollment or Agreement.
Enterprise Enrollment
Invoice for Quoted Price
Amendment ID M97
The price quoted to Enrolled Affiliate is a fixed price based on an estimated order submission date.
Microsoft will invoice Enrolled Affiliate based on this fixed price quote. If this order is submitted later than the estimated order submission date, Enrolled Affiliate will be charged for net new Monthly Subscriptions (including Online Services) for the period during which these services were not provided.
For Indirect models, Pricing to Enrolled Affiliate is agreed between Enrolled Affiliate and Enroll ed Affiliate’s Reseller.
SKU Number SKU Description Existing Quantity Incremental quantities
U4S-00002 O365 G1 GCC Sub Per
User 60 0
AAA-11894 O365 G3 GCC Sub Per
User 871 0
P3U-00001 Visio P2 GCC Sub Per
User
8 0
MQN-00001 Entra ID P2 Gov Sub Per
User
1 0
3NS-00003 Exchange Online P2
GCC Sub Per User
200 0
NYH-00001 Teams AC with Dial Out
US/CA GCC Sub Add-on
841 90
Except for changes made by this Amendment, the Enrollment or Agreement identified above remains unchanged and in full force and effect. If there is any conflict between any provision in this Amendment and any provision in the Enrollment or Agreement identified above, this Amendment shall control.
This Amendment must be attached to a signature form to be valid.
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AmendmentApp v4.0 M97 B
Microsoft Internal Use Only:
(M97)EnrAmend(Ind)(InvoiceforQuotedPrice)(
WW)(ENG)(Jan2023)v2(IU).docx
M97 B
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Enterprise Enrollment Product Selection Form Microsoft | Volume Licensing Proposal ID Enrollment Number
2720397.002
Language: English (United States)
Enrolled Affiliate’s Enterprise Products and Enterprise Online Services summary for the initial order:
Profile Qualified Devices Qualified Users Device / User Ratio CAL Licensing Model Enterprise 931 931 1.0 User Licenses
Products Enterprise Quantity
Office 365 Plans
O365 G1 GCC 60
O365 G3 GCC 871
Enrolled Affiliate’s Product Quantities:
Price Group 1 2 3 4
Enterprise Products Office Professional Plus + M365 Apps for Enterprise + Office 365 (Plans E3 and E5)
+ Microsoft 365 Enterprise
Client Access License +
Office 365 (Plans E1, E3
and E5) + Microsoft
365 Enterprise
Client Access License +
Windows Intune + EMS
USL + Microsoft 365
Enterprise
Win E3 + Win E5 + Win
VDA + Microsoft 365
Enterprise
Quantity 871 931 0 0
Enrolled Affiliate’s Price Level:
Product Offering / Pool Price Level
Enterprise Products and Enterprise Online Services USLs: Unless otherwise indicated in associated contract documents, Price level set using the highest quantity from Groups 1 through 4. D
Additional Product Application Pool: Unless otherwise indicated in associated contract documents, Price level set using quantity from Group 1.
D
Additional Product Server Pool: Unless otherwise indicated in associated contract documents, Price level set using the highest quantity from Group 2 or 3. D
Additional Product Systems Pool: Unless otherwise indicated in associated contract documents, Price level set using quantity from Group 4.
D
Notes
Unless otherwise indicated in the associated contract documents, the price level for each Product offering / pool is set as described above, based upon the quantity to price level mapping below:
EA-EASProdSelForm(WW)(ENG)
MS Quote
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Enterprise Enrollment Product Selection Form Microsoft | Volume Licensing Quantity of Licenses and Software Assurance Price Level 2,399 and below A
2,400 to 5,999 B
6,000 to 14,999 C
15,000 and above D
Note 1: Enterprise Online Services may not be available in all locations. Please see the Product List for a list of locations where these may be purchased.
Note 2: If Enrolled Affiliate does not order an Enterprise Product or Enterprise Online Service associated with an applicable Product pool, the price level for Additional Products in the same pool will be price level “A” throughout the term of the Enrollment. Refer to the Qualifying Government Entity Addendum pricing provision for more details on price leveling.
EA-EASProdSelForm(WW)(ENG)
MS Quote
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- 1 -
PROFESSIONAL SOFTWARE SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND INSIGHT PUBLIC SECTOR INC.
1. PARTIES AND DATE.
This Agreement is made and entered into this 2nd day of October, 2024 (“Effective Date”), by and between the City of San Bernardino , a charter city and municipal corporation (“City”), and Insight Public Sector Inc., an Illinois corporation with its principal place of business at 6820 S. Harl Avenue, Tempe, AZ., 85283 (“Vendor”). Vendor is registered with the State of California and permitted to conduct the types of sales and business services included in this Agreement. City and Vendor are sometimes individually referred to as “Party” and collectively as “Parties.”
2. RECITALS.
2.1 City. City is a public agency of the State of California and is in need of professional software services for the following project:
Microsoft Enterprise License Subscription and Services (hereinafter referred to as “the Project”)
2.2 Vendor. Vendor desires to perform and assume responsibility for the provision of certain professional services including, but not limited to, software programming and on -going maintenance services as required by the City on the terms and conditions set forth in this Agreement. Vendor represents that it is experienced in providing Microsoft Licensing Solutions Enterprise cloud -based and server based projects to public agency clients, is licensed in the State of California, and is familiar with the computing environment of the City.
2.3 Grant of License. Vendor hereby represents and warrants to City that Vendor is the owner of the Application Software, as defined herein, or otherwise has the right to grant to City the rights to use of the Application Software, as set forth in this Agreement and the attached License Agreement.
2.4 Project. City desires to engage Vendor to render such services for the Microsoft Enterprise License Subscription and Services project (“Project”) as set forth in this Agreement.
2.5 Hardware Specifications. The Parties acknowledge and agree that the City has or will be purchasing certain hardware necessary for the proper operation of the System, defined below, in reliance on the recommendations and specifications to be provided by Vendor.
3. DEFINITIONS
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2 3.1 Acceptance. The term Acceptance as used in this Agreement shall refer to a thirty (30) day period following notification by the Vendor that the Application Software or any component or element thereof is ready for use. During this period, the City will test the Sys tem and if no Defects are reported, that component or element of the Application Software will be deemed Accepted. If Defects are reported, the Vendor will correct the Defect and a new Acceptance period will begin once the City has been notified by the Vendor.
3.2 Application Software. The term Application Software as used in this Agreement shall refer to the collection of software programs (i.e. executable code) provided to the City by Vendor that will perform the set of functions described in the Exhibit “B”.
3.3 Custom Software. The term Custom Software is computer programs developed under this Agreement that extends the functionality of the Application Software to include features specified or required as part of this Project and under this Agreement not originally part of the Vendor’s baseline or prior version of the Application Software.
3.4 Defect. The term Defect as used in this Agreement shall refer to any error or malfunction in the operation of the System under this Agreement that prevents the City or its agents or employees from using the Application Software to perform the features and functions proposed in Exhibit “B”.
3.5 Delivery. The term Delivery related to software shall mean the transfer and receipt (electronically) of the Application Software to the designated, City approved computing environment. Delivery of professional Services, as used in this Agreement, shall mean that the City’s designated agent under this Agreement has signed off on a given task or work order.
3.6 Final Acceptance. The term Final Acceptance as used in this Agreement shall be used to refer to the thirty (30) day period following the complete Acceptance and operation in productive use of all the components and elements of the System that is free of Defects. If Defects are reported by the City, the Vendor will correct the Defect(s) and notify the City after which a new Final Acceptance period will begin.
3.7 Installation. The term Installation as used in this Agreement shall refer to the loading of executable code necessary for the operation of the Application Software on one of the computing environments designated herein with the Platform Software.
3.8 License Agreement . The term License Agreement as used in this Agreement shall mean the license agreement(s) for the Application Softwa re attached hereto as Exhibit “F”.
3.9 On-going Maintenance and Support Services . The term On -going Maintenance and Support Services as used in this Agreement shall mean those Services required for on-going Application Software maintenance and support.
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3 3.10 Platform Software. The term Platform Software shall mean all of the server and client operating systems, utilities, objects, database software, and any 3 rd Party software necessary to operate the Application Software as required by this Agreement.
3.11 Project. The term Project as used in this Agreement shall refer to all of the materials, labor and Services required to deliver the System.
3.12 Project Deliverables. The term Products as used in this Agreement shall refer to, collectively, the Application Software, Custom Software, Platform Software, Updates, Source Code and any other products, including intellectual property, provided by Vendor under this Agreement, as more specifically set forth in Exhibit “B”.
3.13 Project Services. The term Project Services as used in this Agreement shall mean those Services to be provided by Vendor in order to complete the Project, through Final Acceptance.
3.14 Services. The term Services as used in this Agreement shall mean, collectively, the Project Services and the On-going Maintenance and Support Services.
3.15 Source Code. The term Source Code as used in this Agreement shall refer to all programming language code, objects, stored procedures, utilities, and compilers necessary to generate executable code for all of the Application Software and Custom Software provided under this Agreement, including all user, technical and system documentation necessary for a reasonable person to understand how to operate all elements of the System.
3.16 System. The term System shall be used in this Agreement to refer to the collection of software, firmware, operating system, database system, hardware and peripherals necessary to operate the Application Software to perform the f unctions specified in Exhibit “B”.
3.17 Update. The term Update shall be used in this Agreement to refer to any bug fix, patch, enhancement, error correction, revision, performance improvement, new version, added features to or replacement of the Application Software, or any component or element thereof, designed to perform the same functions as the Application Software on any Platform Software or computing environment.
4. TERMS.
4.1 Incorporation of Documents and Recitals; Order of Precedence . The attached exhibits and the recitals set forth above are incorporated into this Agreement by reference as though fully set forth herein.
4.2 Scope of Services and Term.
4.2.1 General Scope of Services . Vendor promises and agrees to furnish to the City all labor (technical consulting, training, programming, etc.), software,
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4 materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply Microsoft Enterprise License Subscription and Services necessary for the Project. The Project is more particularly described in Exhibit “A” (Statement of Work) attached hereto and incorporated herein by reference including definitions required for interpreting the services described. The Project shall be sub ject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
4.2.2 On-Going Maintenance and Support Services . Vendor further promises and agrees to furnish to the City all labor (technical consulting, training, programming, etc.), software, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the On -going Maintenance Services as required hereunder. The On -going Maintenance and Support Services are more particularly described in Exhibit “G” (On-going Maintenance Services Statement of Work) attached hereto and in corporated herein by reference including, if applicable, definitions required for interpreting the services described. The On -going Maintenance and Support Services shall be subject to, and performed in accordance with, the applicable provisions of this Agreement and the attached exhibits, and all applicable local, state and federal laws, rules and regulations.
4.2.3 Term.
4.2.3.1 License Agreement . The term of the License
Agreement shall continue in perpetuity, regardless of any termination of this Agreement or the provision by Vendor of On-going Maintenance and Support Services, as further set forth in the License Agreement.
4.2.3.2 On-going Maintenance and Support Services. The term of this Agreement as relates to the provision of On-going Maintenance and Support Services shall commence upon Final Acceptance and shall remain in effect for up to three (3) successive one (1) year periods, to be renewed annually in the City’s sole discretion.
4.2.3.3 Project Services . The term of this Agreement, as relates to the Project Services, shall commence on the Effective Date and shall terminate on the date of Final Acceptance. Notwithstanding the foregoing, the indemnification and warranty provisions of this Agreement shall remain in full force and effect as to such Services.
4.3 Responsibilities of Vendor.
4.3.1 Control and Payment of Subordinates; Independent Contractor .
The Project Deliverables and Services shall be provided by Vendor or under its supervision. Vendor will determine the means, methods and details of performing Project subject to the requirements of this Agreement. City retains Vendor on an independent contractor basis and not as an employee. Vendor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel
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5 performing the Services under this Agreement on behalf of Vendor shall also not be employees of City and shall at all times be under Vendor’s exclusive direction and control.
Vendor 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. Vendor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax wit hholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
4.3.2 Schedule of Services. Vendor shall perform the Project Services expeditiously, within the term of this Agreement, and in accordance with the Project Plan, attached hereto as Exhibit “D” and incorporated herein by this reference . Vendor shall perform the On -Going Maintenance and Support Services in accordance with the schedule therefor included in Exhibit “G”. Vendor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Vendor’s conformance with the foregoing schedules, City shall respond to Vendor’s submittals in a timely manner.
4.3.3 Conformance to Applicable Requirements . All work prepared and Services performed by Vendor shall be subject to the approval of City.
4.3.4 Warranty. Vendor warrants that the Application Software shall perform as proposed and represented in Exhibit “B”. In addition, Vendor represents and warrants that, at Final Acceptance, the Application Software shall perform all of the functions specified in Exhibit “B”.
4.3.5 Substitution of Key Personnel . Vendor has represented to City that certain key personnel will perform and coordinate the Services under this Agreement.
Should one or more of such personnel become unavailable, Vendor may substitute other personnel of at least equal competence upon wr itten approval of City. In the event that City and Vendor cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel 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 Vendor at the request of the City. The key personnel for performance of this Agreement are as follows: Faith Anderson and Chris Robertson.
4.3.6 Coordination of Services. Vendor agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, Vendors and other staff at all reasonable times.
4.3.7 Standard of Care; Performance of Employees . Vendor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Vendor represents and ma intains that it is skilled in the professional calling necessary to perform the Services. Vendor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the
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6 Services assigned to them. Finally, Vendor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business Licens e, 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, Vendor 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 Vendor’s failure to comply with the standard of care provided for herein. Any employee of the Vendor or its sub -Vendors 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 who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project or from the provision of On-Going Maintenance and Support Services by the Vendor and shall not be re-employed to perform any of the Services or to work on the Project.
4.3.8 Regulatory Compliance. Vendor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project and the On -Going Maintenance and Support Services, including all federal and state requirements, and shall give all notices required by law. Any and all Application Software provided under this Agreement shall be compliance with all relevant federal and state laws and regulations including, but not limited to IRS, Social Security, Federal Trade Commission, Homeland Security, California Public Employees Retirement System (CalPERS), and California Franchise Tax Board.
Vendor shall be liable for all violations of such laws and regulations in connection with delivery of Products and Services under this Agreement. If the Vendor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Vendor shall be solely responsible for all costs arising ther efrom.
Vendor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
4.3.9 Additional Provisions Related to On -going Maintenance and Support Services.
4.3.9.1 Defect Remediation. Vendor shall correct any reported Defects in a timely manner. Defects that result in the City’s inability to conduct its normal business operations may incur financial penalties as further described below.
4.3.9.2 Penalties. If Vendor cannot resolve the problem of a reported Defect within 48 hours, the Vendor shall pay the City $500 per day (24 hours) until the Defect is remedied and the City is able to resume its normal business operations.
4.3.9.3 Updates/Platform Protection. Vendor expressly agrees that the continuous payment for On-going Maintenance and Support Services hereunder shall entitle the City to all Updates released by Vendor (or the Application Software manufacturer), at no additional cost to the City, regardless of the operating system or
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7 database platform on which the Updates operate. Vendor shall, on a quarterly basis, make the City aware of any available Updates. Updates shall be installed only after completion, to City’s satisfaction, of reasonable testin g in a City test environment. The City shall only be responsible for data conversion and/or training costs associated with the Update, which shall be at the Vendor’s then current standard rates charged to similar customers for similar services, and as shall be agreed upon in writing, in advance by the Parties.
4.4 Party Representatives.
4.4.1 City’s Representative. The City hereby designates the Director of the Information Technology Department 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. Vendor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
4.4.2 Vendor’s Representative . Vendor hereby designates Faith Anderson and Chris Robertson, or his or her designee, to act as its representative for the performance of this Agreement (“Vendor’s Representative”). Vendor’s Representative shall have full authority to represent and act on behalf of the Vendor for all purposes under this Agreement. The Vendor’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, seq uences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
4.5 Insurance.
4.5.1.1 Time for Compliance . Vendor shall not commence the Project under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Vendor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section.
4.5.1.2 Additional Insured . The City of San Bernardino, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Vendor’s and its subvendors ’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.
4.5.1.3 Commercial General Liability
(A) The Vendor 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.
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8 (B) Coverage for Commercial General Liability
insurance shall be at least as broad as the following : Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (C) Commercial General Liability Insurance must
include coverage for the following:
(a) Bodily Injury and Property Damage
(b) Personal Injury/Advertising Injury
(c) Premises/Operations Liability
(d) Products/Completed Operations Liability
(e) Aggregate Limits that Apply per Project
(f) Explosion, Collapse and Underground
(UCX) exclusion deleted
(g) Contractual Liability with respect to this
Contract\
(h) Broad Form Property Damage
(i) Independent Vendors Coverage
(D) 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. (E) 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.
(F) 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.
4.5.1.4 Automobile Liability.
(A) At all times during the performance of the work
under this Agreement, the Vendor 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.
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9 (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, its elected and appointed officials, officers, employees, agents and City designated volunteers additional insured status.
(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.
4.5.1.5 Workers’ Compensation/Employer’s Liability.
(A) Vendor 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 Vendor has employees at any time
during the term of this Agreement, at all times during the performance of the work under this Agreement, the Vendor 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. Vendor shall require all sub vendors 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.
4.5.1.6 Professional Liability (Errors and Omissions). At all times during the performance of the work under this Agreement the Vendor 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 Vendor. “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.
4.5.1.7 Privacy/Network Security (Cyber). 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 l oss of service, and (4) the introduction, implantation or spread of malicious software code.
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10 4.5.1.8 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
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 limit
(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 t he parties required to be named as Additional Insured pursuant to this Agreement.
4.5.1.9 Evidence Required. Prior to execution of the Agreement, the Vendor 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, ag ent, 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.
4.5.1.10 Policy Provisions Required.
(A) Vendor shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Vendor shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non -payment of the premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Vendor shall deliver renewal
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11 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 Vendor’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. Vendor shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Vendor 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. (D) 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 Vendor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Vendor hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subvendors. (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 Vendor from liability in excess of such coverage, nor shall it limit the Vendor’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.
4.5.1.11 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 a llowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
4.5.1.12 Additional Insurance Provisions.
(A) The foregoing requirements as to the types and
limits of insurance coverage to be maintained by Vendor, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the
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12 liabilities and obligations otherwise assumed by the Vendor 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 Vendor or City will withhold amounts sufficient to pay premium from Vendor payments. In the alternative, City may cancel this Agreement. (C) The City may require the Vendor 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.
4.5.1.13 Subvendor Insurance Requirements . Vendor shall not allow any subcontractors or subvendors 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 subvendors 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 Vendor, City may approve different scopes or minimum limits of insurance for particular subcontractors or subvendors.
4.5.2 Safety. Vendor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Vendor 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 employees appropriate to the nature of the work and the conditions under which the work is to be performed.
4.6 Responsibilities of City.
4.6.1 City Support of Vendor. City shall furnish to the Vendor priority access to the System for the period of time reasonably required by the Vendor for Installation, testing, training, diagnostics, etc. City shall provide the following resources for Vendor's use in fulfillment of this Agreement:
(a) City personnel upon reasonable request of Vendor to answer questions and advise Vendor on City's facilitie s, operations and requirements.
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13 (b) Input data in accordance with the agreed upon test and Acceptance procedures for use by the Vendor in Acceptance Testing.
(c) Conversion format and proced ures that the Vendor shall complete at its expense.
(d) Upon completion of Installation and preliminary training, and following Final Acceptance, City shall be responsible for the operation and management of the Syst em, exclusive of
hardware maint enance and/or On -going Maintenance and
Support Services, which shall be the responsibility of Vendor.
4.7 Fees and Payments.
4.7.1 Compensation for Project Services . The Parties agree that the payment schedule is a performance based payment schedule. Vendor shall receive compensation, including authorized reimbursements, for all Project Services and License Agreements rendered under this Agreement at the rates and in accordance with the compensation schedule set for th in Exhibit “ C” attached hereto and incorporated herein by reference. The total compensation for Project Services shall not exceed [***INSERT WRITTEN DOLLAR AMOUNT***] ($[***INSERT NUMERICAL DOLLAR AMOUNT ***]) without written approval of City’s Representative.
4.7.2 Compensation for On-going Maintenance and Support Services.
Vendor shall receive compensation, including authorized reimbursements, for all On - going Maintenance and Support Services rendered under this Agreement at the rates set forth in Exhibit “ C”. Notwithstanding any other provision of this Agreement, the Parties agree that payment for the first year of On-going Maintenance and Support Services shall be covered under the warranty for the System, included as part of the payment specified in Section 4.7. 1 above, and no additional payment by the City shall be made for such services.
4.7.3 Process for Payment of Compensation; Itemized Statements .
Vendor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Vendor. The statement shall describe the nature and amount of Services provided; and shall clearly reflect charges against the items described in the “Compensation” set forth in Exhibit “ C” since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. Statements not in conformance with the foregoing, or statements containing questions or ambiguities, shall be returned to the Vendor for correction. City shall, within forty-five (45) days of receiving a statement in conformance with the requirements contained herein, review the statement and process for payment all approved and undisputed charges thereon.
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14 4.7.4 Partial Delivery. In the event that the Vendor fails to deliver all of the Application Software elements and Services included in the Project Deliverables, the City, at its sole option, may determine the value of the missing elements and withhold that amount from any payment due to Vendor. Alternatively, or in addition, as required to cover the value of the missing elements, Vendor shall submit to the City a cashier’s check for said amount and present it to the City, to be held as a “Project Bond” until the missing elements have been satisfactorily delivered and Accepted. Upon Acceptance of the missing elements, the City shall return the cashier’s check along with a ny withheld payment amounts, as applicable. If the Vendor fails to satisfactorily deliver the missing elements, the City may cash the cashier’s check and use the withheld monies to complete the outstanding deliverables with its own forces, or through any other available vendor or consultant.
4.7.5 Reimbursement for Expenses . Vendor shall not be reimbursed for any expenses unless included in Exhibit “C”, Exhibit “D” , or authorized in writing and in advance by City.
4.7.6 Modification of Scope . The City may, at any time, request a modification to the Project, or the Statement of Work for the Project Services or the On - going Maintenance and Support Services by submitting written notice to Vendor specifying the desired modifications. Vendor shall provide a written quote for the increased, changed or decreased Services within five (5) working days of receipt of City’s written request. Vendor shall suspend any Services following receipt of the City’s written request until fin al written agreement is reached on the requested modification. The Parties shall then negotiate in good faith any increased or decreased charges related to the requested modification. No request for modification shall be effective until a final agreement between the Parties has been reached, and either a written amendment to this Agreement, or a change order is executed by both Parties. No oral request for modification of Services shall be binding on either Party.
4.7.7 Discounts. Vendor shall identify applicable discounts and discount time periods from published list prices for any future Application Software or additional copies of purchased Application Software.
4.8 Accounting Records.
4.8.1 Maintenance and Inspection . Vendor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Vendor 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 cre ated pursuant to this Agreement. Vendor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
4.9 General Provisions.
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15 4.9.1 Termination of Agreement.
4.9.1.1 Grounds for Termination . City may, by written notice to Vendor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Vendor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Vendor shall be compensated only for those Services which have been adequately rendered to City, and Vendor shall be entitled to no further compensation.
Vendor may not terminate this Agreement except for cause.
4.9.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Vendor to provide all finished or unfinished Documents & Data, as defined herein, and other information of any kind prepared by Vendor in connection with the performance of Services under this Agreement. Vendor shall be required to provide such documents and other information within fifteen (15) days of the request.
4.9.1.3 Additional Services . 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.
4.9.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective Parties at 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, CA 92401
Attn: Rochelle Clayton, Acting City
Manager or
Rolland Kornblau, IT Director
Vendor
Insight Public Sector, Inc.
6820 S. Hart Avenue
Tempe, AZ. 85283
Attn: Faith Anderson or
Chris Robertson
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.
4.9.3 Ownership of Materials and Confidentiality.
4.9.3.1 Documents & Data; Licensing of Intellectual Property .
Excluding materials and data already owned by the Vendor prior to this Agreement, this Agreement creates a non -exclusive, irrevocable, and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other i ntellectual property embodied in plans, specifications, software programming, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of
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16 expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on digital media, including, without limitation, any Computer Aided Design and Drafting (“CADD”) data, which are prepared or caused to be prepared by Vendor under this Agreement (“Documents & Data”). Vendor shall require all subcontractors to agree in writing that City is granted a non -exclusive, irrevocable, and perpetual license for any Documents & Data, and Custom Software solutions the subcontractor p repares under this Agreement. Vendor represents and warrants that Vendor has the legal right to license any and all Documents & Data. Vendor makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Vendor or provided to Vendor by the City. City shall not be limited in any way in its use of the Documents & Data or Custom Software at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk. Any CADD data delivered to City shall not include the professional stamp or signature of an engineer, architect, or any other licensed professional, but shall be followed with a hard copy with such stamp or signature.
4.9.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Vendor in connection with the performance of this Agreement shall be held confidential by Vendor. Such materials shall not, without the prior written consent of City, be used by Vendor for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Vendor which is otherwise known to Vendor or is generally known, or has become known, to the related industry shall be deem ed confidential. Vendor shall not use City’s name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
4.9.3.3 Intellectual Property Indemnification. Vendor shall defend, indemnify, and hold harmless City, officials, officers, employees, volunteers and agents against any and all claims against City based upon allegations that Vendor has wrongfully utilized Intellectual Property of others in performin g work pursuant to this Agreement or that City has wrongfully used Intellectual Property developed by Vendor pursuant to this Agreement.
4.9.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
4.9.5 Attorney’s Fees. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney’s fees and all other costs of such action.
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17 4.9.6 Indemnification. To the extent permitted by law, Vendor shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to prope rty or persons, including wrongful death, in any manner arising out of or incident to any negligent acts or omissions or willful misconduct of Vendor, its officials, officers, employees, agents, Vendors and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all damages and attorneys’ fees and other related costs and expenses. Vendor shall defend, at Vendor’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Vendor shall pay and satisfy any such judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Vendor shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Vendor’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents or volunteers
4.9.7 Entire Agreement . This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both Parties. If the re are any conflicts in language in referenced or related agreements, the language in this Agreement shall prevail. Exhibits to this Agreement will include (if not provided for in the main Agreement) the following:
Exhibit A – Statement of Work
Exhibit B – Project Deliverables
Exhibit C – Compensation
Exhibit D – Project Plan
Exhibit E – Escrow Agreement
Exhibit F – Software License Agreement(s)
Exhibit G – Scope of Ongoing Maintenance
4.9.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.
4.9.9 Time of Essence . Time is of the essence for each and every provision of this Agreement.
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18 4.9.10 City’s Right to Employ Other Vendors . City reserves the right to employ other Vendors in connection with this Project.
4.9.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.
4.9.12 Assignment or Transfer . Vendor shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
4.9.13 Construction; References; Captions . Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing tim e, days or period for performance shall be deemed calendar days and not work days. All references to Vendor include all personnel, employees, agents, and subcontractors of Vendor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
4.9.14 Amendment; Modification . No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
4.9.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
4.9.16 No Third Party Beneficiaries . There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
4.9.17 Invalidity; Severability . If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
4.9.18 Prohibited Interests. Vendor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide agent of the Vendor, to solicit or secure this Agreement. Further, Vendor 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 Vendor, 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 member, officer or employee of City,
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19 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.
4.9.19 Equal Opportunity Employment. Vendor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 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.
4.9.20 Authority to Enter Agreement. Vendor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement.
Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
4.9.21 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
4.10 Subcontracting.
4.10.1 Prior Approval Required . Vendor shall not subcontract any portion of the work 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 all provisions stipulated in this Agreement.
4.11 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.
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20 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND INSIGHT PUBLIC SECTOR INS.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
LICENSOR
CITY OF SAN BERNARDINO
APPROVED BY:
Rochelle Clayton
Acting City Manager
ATTESTED BY:
Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
LICENSEE
INSIGHT PUBLIC SECTOR, INC.
Signature
Name
Title
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21 EXHIBIT A
EXHIBIT “A”
STATEMENT OF WORK
Services provided shall include all requirements specified in the Project Bid.
[***INSERT SERVICES***]
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22 EXHIBIT B
EXHIBIT “B”
PROJECT DELIVERABLES
This will be the list(s) of specific software features and functions requested.
[***INSERT PROJECT DELIVERABLES***]
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23 EXHIBIT C
EXHIBIT “C”
COMPENSATION
[***INSERT RATES OF COMPENSATION***]
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24 EXHIBIT D
EXHIBIT “D”
PROJECT PLAN
[***INSERT SCHEDULE OF SERVICES***]
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25 EXHIBIT E
EXHIBIT “E”
ESCROW AGREEMENT
If applicable, this will include any Escrow Agreement for the management of source code associated with this Agreement. [***DELETE EXHIBIT IF ESCROW NOT USED***]
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26 EXHIBIT F
EXHIBIT “F”
SOFTWARE LICENSE AGREEMENTS
This will include all related software license agreements for the Application Software and Platform Software, if applicable.
1. License in Perpetuity. The license to use all the Application Software shall be irrevocable and in perpetuity and shall not require an annual license fee for continued use after the initial warranty period, and shall survive any termination of this Agreement or the provision of On-going Maintenance and Support Services.
2. Right to Grant License; Remedies for Breach. Vendor represents and warrants to City that Vendor is the owner of the Application Software, or otherwise has the right to grant to City the rights to use of the Application Software. In the event of any breach or threatened breach of the foregoing rep resentation and warranty, City may, at its sole discretion, require Vendor to: i) procure, at Vendor's expense, the right to use the Application Software, ii) replace the Application Software or any part thereof t hat is in breach and replace it with software of comparable functionality, as determined by the City, that does not cause any breach, or iii) refund to City the full amount paid by the City for the Project upon the return of the Application Software and all copies thereof to Vendor.
3. Application Software Licensing Provisions
3.1 Source Code Escrow. Source code licensed for use under this License Agreement shall be protected and maintained in a source code escrow account that is kept current with all software releases, technical and user documentation so that in the event the Vendor is unable to perform according to the terms of this License Agreement by reason of bankruptcy, acquisition, or termination of the line of business operations for any other reason, the City shall be entitled to all of the then current source code, technical and user documentation so that it may continue operational use of the Application Software without Vendor restrictions. [***DELETE IF ESCROW WILL NOT BE USED***]
3.2 Disabling Code. The Vendor stipulates that there is no disabling code contained in the Application Software that would render the System unusable if certain events or actions do not occur.
3.3 Backup/Disaster Recovery. The City shall have the rights to install the Application Software on a backup/disaster recovery computer environment for the purposes of dynamic or static replication at a hotsite or backup data center. In the event the primary data center at which the Application Software is hosted is inoperable or otherwise unavailable, the City may use the backup version without additional licensing or other charges until the primary site is available again.
3.4 Development and Test Environments. The City shall be entitled to install and configure the Application Software on additional computing environments (servers, hosts, clients) for the purpose of development and/or testing.
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27 EXHIBIT F
4. Updates/Platform Protection. Vendor expressly agrees that the continuous payment for On-going Maintenance and Support Services hereunder shall entitle the City to all Updates released by Vendor (or the Application Software manufacturer), at no additional cost to the City, regardles s of the operating system or database platform on which the Updates operate. Vendor shall, on a quarterly basis, make the City aware of any available Updates. Updates shall be installed only after completion, to City’s satisfaction, of reasonable testing in a City test environment. The City shall only be responsible for data conversion and/or training costs associated with the Update, which shall be at the Vendor’s then current standard rates charged to similar customers for similar services, and as shall be agreed upon in writing, in advance by the Parties.
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28 EXHIBIT G
EXHIBIT “G”
SCOPE OF ONGOING-MAINTENANCE
[***INSERT SCOPE OF ON-GOING MAINTENANCE SERVICES***]
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2 7
CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: September 18, 2024
To: Honorable Mayor and City Council Members
From: Rochelle Clayton, Acting City Manager;
Gabriel Elliott, Director of Community Development and Housing Department: Community Development & Housing
Subject: Specific Plan Amendment 23-02 and Conditional Use Permit Revision 23-11 (Ward 6)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California , adopt Ordinance No. MC-1641 of the Mayor and City Council of the City of San Bernardino, California, approving Specific Plan Amendment 23-02 amending the CalMat/Cajon Creek Specific Plan Design Guidelines governing mining depths and areas within the City of San Bernardino Areas K, L, M, and N (Attachment 1).
Executive Summary
With respect to the proposal for Specific Plan Amendment 23-02 with approval of Conditional Use Permit Revision 23-11, the proposed project will maintain and allow the continuation of an existing authorized aggregate (sand and gravel) mining operation within the City and County of San Bernardino’s jurisdictions in accordance with the Surface Mining and Reclamation Act (SMARA).
Background
On August 21, 2024, the Mayor and City Council conducted a public hearing and took the following actions:
1. Adopted Resolution No. 2024-183 of the Mayor and City Council of the City of San Bernardino, California, considering an Environmental Impact Report, making Responsible Agency Findings, and adopting a Statement of Overriding Considerations, Mitigation Monitoring and Reporting Program, and an Addendum to the Environmental Impact Report; and
2. Introduced, read by title only, and waived further reading of Ordinance No. MC- 1641 of the Mayor and City Council of the City of San Bernardino, California, approving Specific Plan Amendment 23-02 amending the CalMat/Cajon Creek
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2 3
2 7
Specific Plan Design Guidelines governing mining depths and areas within the City of San Bernardino Areas K, L, M, and N; and
3. Adopted Resolution No. 2024-184 of the Mayor and City Council of the City of San Bernardino, California, approving Conditional Use Permit Revision 23-11 amending Conditional Use Permit 91-31/Reclamation Plan allowing the consolidation of the City’s Reclamation Plan with an updated Amended Reclamation Plan to allow for the continuation of an aggregate mining operation within the San Bernardino County Area Q and City of San Bernardino Areas K, L, M, and N on a project site containing approximately 530.5 acres located southwest of Cajon Boulevard between Institution Road to the north and Devils Creek Diversion Channel to the south within Specific Plan – CalMat/Cajon Creek Industrial Extractive and Industrial Light zone designations.
Discussion
General Plan Goals and Policies
The City of San Bernardino General Plan includes goals and policies to guide future development within the City. The proposed project is in compliance General Plan Element Chapter 12 (Natural Resources and Conservation) in where the following goal and policies align with mineral resources and extraction of those resources to meet the needs of the area:
✓General Plan Goal 12.4 - Properly manage designated areas for mineral extraction to meet the needs of the area.
✓General Plan Policies 12.4.1 - Continue to document current extraction sites, including sand and gravel quarries, including the status and duration of existing permits and approvals.
✓General Plan Policies 12.4.5 - Require that the operation and reclamation of surface mines be consistent with the State Surface Mining and Reclamation Act (SMARA) and the Development Code.
With respect to the proposal for Specific Plan Amendment 23-02 with approval of Conditional Use Permit Revision 23-11, the proposed project will maintain the existing mining operation and utilize the significant amount of on-site mineral resources that have been designated by the State, in such a manner at to be compatible with adjacent land uses. Through the incorporation of mitigation measures and conditions of approval that will protect the existing operation and surrounding land uses, mineral extraction and processing activities will continue to be regulated and maintained in accordance with SMARA. Therefore, the proposed project is in compliance with the Specific Plan and Development Code requirements, and the City’s General Plan goals and policies. 2021-2025 Strategic Targets and Goals
Specific Plan Amendment 23-02 with approval of Conditional Use Permit Revision 23- 11 aligns with Key Strategic Goal 4. Economic Growth and Development. Mineral deposits are important to many industries, including construction and transportation.
The value of mineral deposits is enhanced by their close proximity to urban areas.
However, these mineral deposits are endangered by the same urbanization that
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enhances their value. The non-renewable characteristic of mineral deposits necessitates careful and efficient development to prevent the unnecessary waste of these deposits due to careless exploitation and uncontrolled urbanization.
Management of these mineral resources will protect not only future development of mineral deposit areas but will also guide the exploitation of mineral deposits so that adverse impacts caused by mineral extraction will be reduced or eliminated. Mineral extraction is an important component of San Bernardino’s economy. In 1975, the State legislature adopted the Surface Mining and Reclamation Act (SMARA). This designated Mineral Resources Zones that were of State-wide or regional importance.
The proposed project site is one of those areas designated as having a significant mineral deposit that meets the State criteria for value and marketability. The proposed project will aim at ensuring that the mineral deposits are extracted to provide a resource for future development and ensure that such deposits are extracted safely.
Fiscal Impact
There is no negative financial impact to the City’s General Fund associated with this item.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Ordinance No. MC-1641 of the Mayor and City Council of the City of San Bernardino, California, approving Specific Plan Amendment 23-02 amending the CalMat/Cajon Creek Specific Plan Design Guidelines governing mining depths and areas within the City of San Bernardino Areas K, L, M, and N (Attachment 1).
Attachments
Attachment 1 Ordinance No. MC-1641 (Approving Specific Plan Amendment 23-02)
Attachment 2 Ordinance No. MC-1641 (Approving Specific Plan Amendment 23-02), Exhibit A - Plans
Ward:
Sixth Ward
Synopsis of Previous Council Actions:
On August 21, 2024, the Mayor and City Council introduced Ordinance No. MC- 1641 approving Specific Plan Amendment 23-02.
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Ordinance No. MC-1641
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4 ORDINANCE NO. MC-1641
ORDINANCE OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
APPROVING SPECIFIC PLAN AMENDMENT 23-02
AMENDING THE CALMAT/CAJON CREEK SPECIFIC
PLAN 90-01 DESIGN GUIDELINES GOVERNING MINING
DEPTHS AND AREAS WITHIN THE CITY OF SAN
BERNARDINO AREAS K, L, M, AND N, PURSUANT TO AN
ADDENDUM TO THE FINAL ENVIRONMENTAL IMPART
REPORT.
WHEREAS, on May 10, 1993, the City of San Bernardino approved the CalMat/Cajon Creek Specific Plan 90-01 that is a comprehensive planning and zoning document encompassing approximately 1,392 acres that authorized aggregate (sand and gravel) mining and related uses, industrial uses and open space; and Conditional Use Permit 91-31/Reclamation Plan that authorized mining and processing operations at the Cajon Creek Quarry on approximately 298 acres comprised of Areas L, M, and N, certified an Environmental Impact Report (California State Clearinghouse No. 1990020908/1993104312) for the CalMat/Cajon Creek Specific Plan and adopted the Mitigation Monitoring and Reporting Program; and WHEREAS, on January 22, 1998, the City of San Bernardino approved the sequential development of the aggregate plant and the hot‐mix asphalt plant under Development Permit Type II 97-24; and
WHEREAS, on September 3, 2020, the County of San Bernardino approved a zone change, conditional use permit and reclamation plan (PROJ-2019-00073) for mineral extraction in the area immediately south of the Cajon Creek Quarry known as Area Q to provide additional materials for ongoing operations at the Cajon Creek Quarry, certified an Environmental Impact Report (California State Clearinghouse No. 2020010528) for Area Q and adopted the Mitigation Monitoring and Reporting Program; and
WHEREAS, together, Specific Plan Amendment 23-02 and Conditional Use Permit Revision 23-11 constitute the Cajon Creek Consolidated Quarry Mine Reclamation Plan (“Project”); and
WHEREAS, Specific Plan Amendment 23-02 is a request to amend the CalMat/Cajon Creek Specific Plan Design Guidelines governing mining depths and areas within the City of San Bernardino Areas K, L, M, and N; and
WHEREAS, pursuant to the California Environmental Quality Act (“CEQA”; Public Resources Code, § 21000 et seq.), Section 21069, and State CEQA Guidelines (California Code of Regulations, § 15000 et seq.), Section 15381, the City of San Bernardino is the Responsible Agency for the Project; and
WHEREAS, pursuant to requirements of Section 15164(b) (Addendum to an EIR) of the California Environmental Quality Act, the Planning Division of the Community Development and
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Ordinance No. MC-1641
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4 Housing Department accepted the Addendum to the Final EIR prepared by Sespe Consulting on behalf of and submitted by the applicant for Project; and WHEREAS, On June 12, 2024, the Development and Environment Review Committee of the City of San Bernardino recommended that Specific Plan Amendment 23-02 and Conditional Use Permit Revision 23-11 move to the Planning Commission for consideration.
WHEREAS, on July 9, 2024, the Planning Commission of the City of San Bernardino held a duly-noticed public hearing to consider public testimony and the staff report, and, by a vote of 9-0, adopted Resolution No. 2024-024 forwarding a recommendation to the Mayor and City Council recommending approval of Specific Plan Amendment 23-02 and Conditional Use Permit Revision 23-11 amending Conditional Use Permit 91-31/Reclamation Plan and the CalMat/Cajon Creek Specific Plan’s Design Guidelines governing mining depths and areas; and, allow the consolidation of the City’s Reclamation Plan with an updated Amended Reclamation Plan allowing for the continuation of an aggregate mining operation within the San Bernardino County Area Q and City of San Bernardino Areas K, L, M, and N on a project site containing approximately 530.5 acres located southwest of Cajon Boulevard between Institution Road to the north and Devils Creek Diversion channel to the south within Specific Plan – Calmat/Cajon Creek Industrial Extractive And Industrial Light; and consider the Addendum to the final Environmental Impact Report under the California Environmental Quality Act; and WHEREAS, notice of the August 21, 2024, public hearing for the Mayor and City Council's consideration of this proposed Ordinance was published in The San Bernardino Sun newspaper on August 10, 2024, and was mailed to property owners and occupants of property within a 1,000-foot radius of the project site and interested parties in accordance with Development Code Chapter 19.52 (Hearings and Appeals); and
WHEREAS, no comments made in the public hearing conducted by the Mayor and City Council, and no additional information submitted to the City Council, has produced substantial new information requiring substantial revisions that would trigger recirculation of the Addendum to the Final Environmental Impact Report or additional environmental review under State CEQA Guidelines Section 15164; and
WHEREAS, pursuant to the requirements of Chapter 19.64 (Specific Plans) and Chapter
19.68 (Surface Mining and Land Reclamation) of the City of San Bernardino Development Code, the Mayor and City Council has the authority to take action on Specific Plan Amendment 23-02; and
WHEREAS, on August 21, 2024, during said public hearing the Mayor and City Council, pursuant to the requirement of 19.52 (Hearing and Appeals), Chapter 19.64 (Specific Plans) and Chapter 19.68 (Surface Mining and Land Reclamation) of the City of San Bernardino Development Code, the Mayor and City Council have the authority to take action on Specific Plan Amendment 23-02.
NOW THEREFORE, THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, DO ORDAIN AS FOLLOWS:
SECTION 1.The above recitals are true and correct and are incorporated herein by this reference.
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Ordinance No. MC-1641
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4 SECTION 2.Compliance with the California Environmental Quality Act. Based on the Addendum, the EIRs, Environmental Findings, Mitigation Monitoring and Reporting Programs, the Statement of Overriding Considerations, and all related information presented to the City Council, the City Council finds that the preparation of a subsequent or supplemental EIR is not required because the modification specified in the Addendum: (1) does not constitute substantial changes to the Project that will require major revisions of the 1993 EIR or 2020 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (2) does not constitute substantial changes with respect to the circumstances under which the Project is administered that will require major revisions of the 1993 EIR or 2020 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and (3) does not contain new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the 1993 EIR or 2020 EIR was certified, that shows any of the following: (a) the modification will have one or more significant effects not discussed in the 1993 EIR or 2020 EIR; (b) significant effects previously examined will be substantially more severe than shown in the 1993 EIR or 2020 EIR; (c) mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Project, but the City Council declined to adopt such measures; or (d) mitigation measures or alternatives considerably different from those analyzed in the 1993 EIR or 2020 EIR would substantially reduce one or more significant effects on the environment, but which the City Council declined to adopt.
SECTION 3.Finding of Facts – Specific Plan Amendment 23-02 Finding No. 1:The proposed plan is consistent with the General Plan.
Finding of Fact:The CalMat/Cajon Creek Specific Plan is a comprehensive planning and zoning document encompassing approximately 1,392 acres that laid out sixteen (16) planning areas (A-P), with development standards, guidelines, and authorized aggregate (sand and gravel) mining and related uses. The plan contains land use designations tailored to closely follow the topography, the vegetation, the natural resources, and the public infrastructure of the Specific Plan area. Areas within the plan have been designated by the State of California as aggregate deposits of regional significance and thus the plan as a regulatory document serves as a zoning ordinance allowing for the safe extraction of those resources. Additionally, the City of San Bernardino General Plan includes primary goals and policies to guide future development within the City. Accordingly, the Specific Plan provides a detailed explanation of the Specific Plan’s relationship to the City’s General Plan, including a comparison of goals, objectives and policies.
Specific Plan Amendment 23-02 proposes to amend the design guidelines governing mining depths and areas to allow for mining in Area K to a depth of 240 feet below ground surface (bgs), mining in Areas L and M to a depth of 240 bgs (an increase of the permitted 120 bgs), mining in the northern portion of Area N (currently designated for mineral processing) to a depth of 120 bgs, and mining the resources between Areas K, L and the County
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Ordinance No. MC-1641
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4 of San Bernardino’s Area Q. The Specific Plan’s zone designation is Industrial Extractive and Industrial Light and allows for the existing mining activity and proposed amendments as requested. With the approval of Specific Plan Amendment 23-02, as proposed, the areas will be consistent with the City’s General Plan.
Finding No. 2:The proposed plan would not be detrimental to the public interest, health, safety, convenience, or welfare of the City.
Finding of Fact:The CalMat/Cajon Creek Specific Plan established a land use and development framework on public infrastructure that respects the City’s natural resources and established an industrial corridor that preserves those resources. The Specific Plan is intended to encourage and capitalize on those industries that provide key industrial services while protecting the non-renewable characteristics of mineral deposits for safe extraction that is an important component to the regional economy.
The Specific Plan is not detrimental to the public interest, health, safety, convenience, or welfare of the City in that the primary purpose of the Specific Plan is to provide a vision and implementation program for the future development of vacant or under-utilized properties within Specific Plan boundaries and contains a comprehensive set of goals, objectives, strategies and guidelines to be used by the City to support, attract, facilitate and maintain development while preserving the physical environs.
Additionally, the Specific Plan will be maintained in accordance with all the mitigation measures contained in the Mitigation Monitoring and Reporting Program, all Conditions of Approval and all Standard Requirements as outlined in the Specific Plan. Therefore, Specific Plan Amendment 23-02 as proposed would not be detrimental to the public interest, health, safety, convenience, or welfare of the City.
Finding No. 3:The subject properties are physically suitable for the requested land use designations and the anticipated land use developments.
Finding of Fact:The CalMat/Cajon Creek Specific Plan is a comprehensive planning and zoning document encompassing approximately 1,392 acres that laid out sixteen (16) planning areas (A-P), with development standards, guidelines, and authorized aggregate (sand and gravel) mining and related uses.
Specific Plan Amendment 23-02 proposes to amend the design guidelines governing mining depths and areas to allow for mining in Area K to a depth of 240 feet below ground surface (bgs), mining in Areas L and M to a depth of 240 bgs (an increase of the permitted 120 bgs), mining in the northern portion of Area N (currently designated for mineral processing) to a depth of 120 bgs, mining the resources between Areas K, L and the County of San Bernardino’s Area Q. The Specific Plan’s zone designation is Industrial Extractive and Industrial Light and allows for the existing mining activity and proposed amendments as requested. Therefore, the project site is physically suitable for the requested land use designation and the proposed
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Ordinance No. MC-1641
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4 land use development with the approval of Specific Plan Amendment 23-
02. Finding No. 4:The proposed plan shall ensure development of desirable character which will be compatible with existing and proposed development in the surrounding neighborhood.
Finding of Fact:The CalMat/Cajon Creek Specific Plan is intended to encourage and capitalize on those industries that provide key industrial services while protecting the non-renewable characteristics of mineral deposits for safe extraction that is an important component to the regional economy. The land use plan accommodates for the increase in those developments and resource extractions and establishes sixteen (16) planning areas (A-P), that guide future development of those properties throughout the project area.
Specific Plan Amendment 23-02 proposes to amend the design guidelines governing mining depths and areas to allow for mining in Area K to a depth of 240 feet below ground surface (bgs), mining in Areas L and M to a depth of 240 bgs (an increase of the permitted 120 bgs), mining in the northern portion of Area N (currently designated for mineral processing) to a depth of 120 bgs, mining the resources between Areas K, L and the County of San Bernardino’s Area Q to allow for mining resources located between Areas K, L, and Q (County of San Bernardino’s Area) in one mining area, and M and N in another, creating two consolidated mining pits for efficient mineral resource recovery, which is an operation that is vital for development and will be compatible with existing and proposed development in the surrounding neighborhood with the implementation of the Reclamation Plan.
Finding No. 5:The proposed plan will contribute to a balance of land uses so that local residents may work and shop in the community in which they live.
Finding of Fact:The CalMat/Cajon Creek Specific Plan is a comprehensive planning and zoning document encompassing approximately 1,392 acres that laid out sixteen (16) planning areas (A-P), with development standards, guidelines, and authorized aggregate (sand and gravel) mining and related uses.
Furthermore, the Specific Plan intended to encourage and capitalize on those industries that provide key industrial services while protecting the non-renewable characteristic of mineral deposits for safe extraction that is an important component to the regional economy.
Specific Plan Amendment 23-02 proposes to amend the design guidelines governing mining depths and areas to allow for mining in Area K to a depth of 240 feet below ground surface (bgs), mining in Areas L and M to a depth of 240 bgs (an increase of the permitted 120 bgs), mining in the northern portion of Area N (currently designated for mineral processing) to a depth of 120 bgs, mining the resources between Areas K, L and the County of San Bernardino’s Area Q to allow for mining resources located between Areas
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Ordinance No. MC-1641
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4 K, L, and Q (County of San Bernardino’s Area) in one mining area, and M and N in another, creating two consolidated mining pits for efficient mineral resource recovery, which is an operation that is vital for development which contributes to a balance of land use with the approval of the Specific Plan Amendment 23-02.
SECTION 4.Specific Plan Amendment 23-02 is a request to amend the CalMat/Cajon Creek Specific Plan Design Guidelines governing mining depths and areas within the City of San Bernardino Areas K, L, M, and N, attached hereto and incorporated herein by reference as Exhibit A, is hereby approved.
SECTION 5.Notice of Determination: The Planning Division of the Community Development and Housing Department is hereby directed to file a Notice of Determination with the Clerk of the Board of San Bernardino County and the Office of Planning and Research within five (5) working days of final project approval certifying the City’s compliance with the California Environmental Quality Act in approving the Project.
SECTION 6.Severability: If any section, subsection, subdivision, sentence, or clause or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have adopted each section irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or ineffective.
SECTION 7.Effective Date. This Ordinance shall become effective thirty (30) days after the date of its adoption.
SECTION 8.Notice of Adoption. The City Clerk of the City of San Bernardino shall certify to the adoption of this Ordinance and cause publication to occur in a newspaper of general circulation and published and circulated in the City in a manner permitted under Section 36933 of the Government Code of the State of California.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 18th day of September 2024.
Helen Tran, Mayor
City of San Bernardino
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Ordinance No. MC-1641
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4 Attest:
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Sonia Carvalho, City Attorney
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Ordinance No. MC-1641
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4 CERTIFICATION
STATE OF CALIFORNIA)
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO)
I, Genoveva Rocha, MMC, City Clerk, hereby certify that the attached is a true copy of Ordinance No. MC-1641, introduced by the City Council of the City of San Bernardino, California, at a regular meeting held the 21 st day of August 2024. Ordinance No. MC-1641 was approved, passed and adopted at a regular meeting held the 18th day of September 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 ___ 2024.
Genoveva Rocha, CMC, City Clerk
Packet Page. 1325
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sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
ϭϮϬϬꢂhZꢅꢁEꢂꢃꢀEdꢀZꢂꢄZ/sꢀ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢁꢅꢁDꢁꢂϯϱϮϰϮ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
ꢃꢁ>DꢁdꢂꢃK͘
ϯϭꢂZꢁEꢃ,KꢂꢃꢁD/EKꢂꢄZ/sꢀ͕ꢂ^h/dꢀꢂϯϬϬ
WKDKEꢁ͕ꢂꢃꢁ>/&KZE/ꢁꢂϵϭϳϲϲ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
ꢃꢁ>DꢁdꢂꢃK͘ ꢃꢁ>DꢁdꢂꢃK͘ /Eꢄh^dZ/ꢁ>ꢂꢀydZꢁꢃd/sꢀꢂ;/ꢀͿ ꢃꢁ>DꢁdꢂꢃK͘ W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ ꢀꢋꢋꢃꢊꢅ ϯϭꢂZꢁEꢃ,KꢂꢃꢁD/EKꢂꢄZ/sꢀ͕ꢂ^h/dꢀꢂϯϬϬꢃꢁ>Dꢁdͬꢃꢁ:KEꢂꢃZꢀꢀ<ꢂ^Wꢀꢃ/&/ꢃ W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ WKDKEꢁ͕ꢂꢃꢁ>/&KZE/ꢁꢂϵϭϳϲϲ W>ꢁEꢂ;^WꢂϵϬͲϭϬͿ ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
ϭϮϬϬꢂhZꢅꢁEꢂꢃꢀEdꢀZꢂꢄZ/sꢀ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢁꢅꢁDꢁꢂϯϱϮϰϮ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
ꢃꢁ>DꢁdꢂꢃK͘
ϯϭꢂZꢁEꢃ,KꢂꢃꢁD/EKꢂꢄZ/sꢀ͕ꢂ^h/dꢀꢂϯϬϬ
WKDKEꢁ͕ꢂꢃꢁ>/&KZE/ꢁꢂϵϭϳϲϲ
/Eꢄh^dZ/ꢁ>ꢂꢀydZꢁꢃd/sꢀꢂ;/ꢀͿ ꢃꢁ>DꢁdꢂꢃK͘
ꢋꢋꢃꢆꢅ
ꢉꢉꢃꢋꢉ
ꢉꢌꢃꢋꢍ
ꢃꢁ>Dꢁdͬꢃꢁ:KEꢂꢃZꢀꢀ<ꢂ^Wꢀꢃ/&/ꢃ W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
W>ꢁEꢂ;^WꢂϵϬͲϭϬͿ ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
ꢃꢁ>DꢁdꢂꢃK͘
ϯϭꢂZꢁEꢃ,KꢂꢃꢁD/EKꢂꢄZ/sꢀ͕ꢂ^h/dꢀꢂϯϬϬ
WKDKEꢁ͕ꢂꢃꢁ>/&KZE/ꢁꢂϵϭϳϲϲ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
ꢃꢁ>DꢁdꢂꢃK͘ ꢃꢁ>DꢁdꢂꢃK͘
ϯϭꢂZꢁEꢃ,KꢂꢃꢁD/EKꢂꢄZ/sꢀ͕ꢂ^h/dꢀꢂϯϬϬ
WKDKEꢁ͕ꢂꢃꢁ>/&KZE/ꢁꢂϵϭϳϲϲ
/Eꢄh^dZ/ꢁ>ꢂꢀydZꢁꢃd/sꢀꢂ;/ꢀͿ ꢃꢁ>DꢁdꢂꢃK͘
$5($ꢀ1W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ ꢃꢁ>Dꢁdͬꢃꢁ:KEꢂꢃZꢀꢀ<ꢂ^Wꢀꢃ/&/ꢃ W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ W>ꢁEꢂ;^WꢂϵϬͲϭϬͿ ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ ꢁZhEꢄꢀ>ꢂꢃKDWꢁEz͕ꢂ>>ꢃ
ϭϮϬϬꢂhZꢅꢁEꢂꢃꢀEdꢀZꢂꢄZ/sꢀ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢁꢅꢁDꢁꢂϯϱϮϰϮ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
ꢁZhEꢄꢀ>ꢂꢃKDWꢁEz͕ꢂ>>ꢃ
W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
ꢃꢁ>DꢁdꢂꢃK͘
ϯϭꢂZꢁEꢃ,KꢂꢃꢁD/EKꢂꢄZ/sꢀ͕ꢂ^h/dꢀꢂϯϬϬ
WKDKEꢁ͕ꢂꢃꢁ>/&KZE/ꢁꢂϵϭϳϲϲ
>/',dꢂ/Eꢄh^dZ/ꢁ>ꢂ;/>Ϳ ꢃꢁ>DꢁdꢂꢃK͘
ꢃꢁ>Dꢁdͬꢃꢁ:KEꢂꢃZꢀꢀ<ꢂ^Wꢀꢃ/&/ꢃ W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
W>ꢁEꢂ;^WꢂϵϬͲϭϬͿ ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
ϭϮϬϬꢂhZꢅꢁEꢂꢃꢀEdꢀZꢂꢄZ/sꢀ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢁꢅꢁDꢁꢂϯϱϮϰϮ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
ꢃꢁ>DꢁdꢂꢃK͘ /Eꢄh^dZ/ꢁ>ꢂꢀydZꢁꢃd/sꢀꢂ;/ꢀͿ ꢃꢁ>DꢁdꢂꢃK͘
ꢀꢆꢉꢃꢆꢈ WKDKEꢁ͕ꢂꢃꢁ>/&KZE/ꢁꢂϵϭϳϲϲϯϭꢂZꢁEꢃ,KꢂꢃꢁD/EKꢂꢄZ/sꢀ͕ꢂ^h/dꢀꢂϯϬϬ ꢃꢁ>Dꢁdͬꢃꢁ:KEꢂꢃZꢀꢀ<ꢂ^Wꢀꢃ/&/ꢃ W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ W>ꢁEꢂ;^WꢂϵϬͲϭϬͿ ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
ϭϮϬϬꢂhZꢅꢁEꢂꢃꢀEdꢀZꢂꢄZ/sꢀ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢁꢅꢁDꢁꢂϯϱϮϰϮ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
/Eꢄh^dZ/ꢁ>ꢂꢀydZꢁꢃd/sꢀꢂ;/ꢀͿꢃꢁ>DꢁdꢂꢃK͘
ϯϭꢂZꢁEꢃ,KꢂꢃꢁD/EKꢂꢄZ/sꢀ͕ꢂ^h/dꢀꢂϯϬϬ
WKDKEꢁ͕ꢂꢃꢁ>/&KZE/ꢁꢂϵϭϳϲϲ
ꢃꢁ>DꢁdꢂꢃK͘
ꢀꢀꢃꢉꢅ
ꢉꢀꢃꢉꢆ
ꢃꢁ>Dꢁdͬꢃꢁ:KEꢂꢃZꢀꢀ<ꢂ^Wꢀꢃ/&/ꢃ W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
W>ꢁEꢂ;^WꢂϵϬͲϭϬͿ ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ $5($ꢀ4sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘ ϭϮϬϬꢂhZꢅꢁEꢂꢃꢀEdꢀZꢂꢄZ/sꢀ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢁꢅꢁDꢁꢂϯϱϮϰϮ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
ꢃꢁ>DꢁdꢂꢃK͘
ϯϭꢂZꢁEꢃ,KꢂꢃꢁD/EKꢂꢄZ/sꢀ͕ꢂ^h/dꢀꢂϯϬϬ
WKDKEꢁ͕ꢂꢃꢁ>/&KZE/ꢁꢂϵϭϳϲϲ
/Eꢄh^dZ/ꢁ>ꢂꢀydZꢁꢃd/sꢀꢂ;/ꢀͿ ꢃꢁ>DꢁdꢂꢃK͘
ꢃꢁ>Dꢁdͬꢃꢁ:KEꢂꢃZꢀꢀ<ꢂ^Wꢀꢃ/&/ꢃ W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
W>ꢁEꢂ;^WꢂϵϬͲϭϬͿ ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
ϭϮϬϬꢂhZꢅꢁEꢂꢃꢀEdꢀZꢂꢄZ/sꢀ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢁꢅꢁDꢁꢂϯϱϮϰϮ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
ϭϮϬϬꢂhZꢅꢁEꢂꢃꢀEdꢀZꢂꢄZ/sꢀ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢁꢅꢁDꢁꢂϯϱϮϰϮ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
ϭϮϬϬꢂhZꢅꢁEꢂꢃꢀEdꢀZꢂꢄZ/sꢀ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢁꢅꢁDꢁꢂϯϱϮϰϮ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
ϭϮϬϬꢂhZꢅꢁEꢂꢃꢀEdꢀZꢂꢄZ/sꢀ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢁꢅꢁDꢁꢂϯϱϮϰϮ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
ϭϮϬϬꢂhZꢅꢁEꢂꢃꢀEdꢀZꢂꢄZ/sꢀ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢁꢅꢁDꢁꢂϯϱϮϰϮ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
ϭϮϬϬꢂhZꢅꢁEꢂꢃꢀEdꢀZꢂꢄZ/sꢀ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢁꢅꢁDꢁꢂϯϱϮϰϮ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ EKdꢁ^͗
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
ϭϮϬϬꢂhZꢅꢁEꢂꢃꢀEdꢀZꢂꢄZ/sꢀ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢁꢅꢁDꢁꢂϯϱϮϰϮ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ 7+(ꢁ$))(&7('ꢁ3$5&(/6ꢁ$5(ꢁ,1&/8'('ꢁ,1ꢁ7+(ꢁ7$%/(ꢁꢎ/()7ꢏꢃꢁ'8(ꢁ72ꢁ7+(ꢁ180%(5 $1'ꢁ&203/(;,7<ꢁ2)ꢁ7+(ꢁ$))(&7('ꢁ3$5&(/6ꢇꢁ/(*$/ꢁ'(6&5,37,216ꢁ)25ꢁ/$1'6 7+$7ꢁ:,//ꢁ%(ꢁ$))(&7('ꢁ%<ꢁ7+(ꢁ0,1,1*ꢁ23(5$7,216ꢁ$5(ꢁ,1&/8'('ꢁ,1ꢁ$33(1',;ꢁ( 2)ꢁ7+(ꢁ5(&/$0$7,21ꢁ3/$1ꢁ5$7+(5ꢁ7+$1ꢁ21ꢁ7+,6ꢁ),*85(ꢃ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
ϭϮϬϬꢂhZꢅꢁEꢂꢃꢀEdꢀZꢂꢄZ/sꢀ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢁꢅꢁDꢁꢂϯϱϮϰϮ
'ꢀEꢀZꢁ>ꢂ/Eꢄh^dZ/ꢁ>ꢂ;'/Ϳ
ꢃKDDhE/dzꢂ/Eꢄh^dZ/ꢁ>ꢂ;ꢃ/Ϳ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
W͘K͘ꢂꢅKyꢂϯϴϱϬϭϰ
ꢅ/ZD/E',ꢁD͕ꢂꢁ>ꢂϯϱϮϰϮͲϱϬϭϰ
sh>ꢃꢁEꢂ>ꢁEꢄ^͕ꢂ/Eꢃ͘
ϭϮϬϬꢂhZꢅꢁEꢂꢃꢀEdꢀZꢂꢄZ/sꢀ
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Packet Page. 1332
CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: September 18, 2024
To: Honorable Mayor and City Council Members
From: Rochelle Clayton, Acting City Manager
Department: City Manager's Office
Subject: Approve $750,000 Funding Agreement with the County of San Bernardino for Gutierrez Park Field Improvements
(Ward 6)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2024-203:
1. Authorizing the City Manager, or designee, to execute the Funding Agreement with the County of San Bernardino to receive $750,000 in County funds for Gutierrez Park baseball field improvements; and
2. Authorizing the City Manager, or designee, to conduct all additional negotiations, signings, and submittals of necessary documents to receive the County funds; and
3. Authorizing the Director of Finance and Management Services to amend the FY 2024/25 budget in both revenues and expenditures, and appropriate $750,000 in County funds to be used towards Gutierrez Park baseball field improvements.
Executive Summary
The Funding Agreement with the County of San Bernardino (“County”) will provide $750,000 in additional funding assistance for the baseball field improvements at Gutierrez Park. The term of the Funding Agreement is through September 23, 2026, and there is no impact to the General Fund; the agreement’s minimum matching contribution of $187,500 is already satisfied by the City’s $250,000 Community Development Block Grant (CDBG) allocation that the Mayor and City Council approved for Gutierrez Park on May 15, 2024.
Background
On May 15, 2024, the Mayor and City Council adopted the 2024-25 Annual Action Plan
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allocating $250,000 in Community Development Block Grant (CDBG) funds towards baseball field improvements at Gutierrez Park. This funding allocation was made at the direction of the Mayor and City Council, where $1,000,000 of CDBG funds were equally divided between the Gutierrez Park baseball field, Encanto Park baseball field, El Sol Wellness Center, and Ruben Campos Community Center.
Discussion
The Funding Agreement with the County will provide $750,000 in funding assistance for baseball field improvements at Gutierrez Park. The funding comes from Supervisor Joe Baca Jr. and is through the County’s District Specific Priorities Program. This program utilizes the County Board of Supervisors Discretionary Fund, which allows each Supervisor to provide financial assistance for specific programs and projects within their district. The funding assistance for Gutierrez Park is being provided for the following specific improvements, which are outlined under Section B.1 of the Funding Agreement:
oElectrical improvements to be housed inside the concession stand oBaseball field lighting improvements
oInfield renovations (laser grading, dirt/clay, pitching mound, etc.) oRefurbished scoreboard
oNew fencing for play areas
oNew bullpen area
oBleacher shade
oBatting cage renovation
oReplacement of existing water fountain(s)
oBleacher foundation(s)
The terms of the Funding Agreement require the improvements to be completed by September 23, 2026. The County may provide an extension if requested by the City in writing; however, the extension cannot exceed twelve (12) months, nor can it result in a change to the project goals or scope of services. It is important to note that the County’s Fifth District Supervisor is the final authority in all matters pertaining to the agreement’s terms, services, and scope of work; any extension requires the Fifth District Supervisor’s approval, and any amendments to the agreement must be approved by the full Board of Supervisors.
Additionally, the Funding Agreement requires the City to provide a minimum matching contribution of at least 25% of the agreement amount. This equates to a minimum match of $187,500, which is already satisfied by the City’s $250,000 CDBG allocation for Gutierrez Park. The Department of Housing and Urban Development (HUD) allows for CDBG funds to be used to meet local match requirements of other projects, and the County has authorized the City to use its existing CDBG allocation to satisfy this requirement. The disbursement of the funds will be made to the City in one lump sum,
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which will be done within thirty (30) working days after the County approves the City’s invoice requesting the funds.
The Funding Agreement must first be approved by the Mayor and City Council before going to the entire County Board of Supervisors for final approval. County staff anticipate bringing the Funding Agreement for Board approval at their September 24, 2024, Board Meeting, provided the agreement is approved by the Mayor and City Council.
2021-2025 Strategic Targets and Goals
Authorizing the Funding Agreement with the County of San Bernardino for Gutierrez Park baseball field improvements aligns with Strategic Target No. 3: Improved Quality of Life.
Fiscal Impact
There is no fiscal impact to the General Fund. The FY 2024/25 operating budget will be amended by $750,000 in both revenues and expenditures. The $187,500 match requirement is satisfied by the City’s existing $250,000 CDBG fund allocation for Gutierrez Park.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2024-203:
1. Authorizing the City Manager, or designee, to execute the Funding Agreement with the County of San Bernardino to receive $750,000 in County funds for Gutierrez Park baseball field improvements; and
2. Authorizing the City Manager, or designee, to conduct all additional negotiations, signings, and submittals of necessary documents to receive the County funds; and
3. Authorizing the Director of Finance and Management Services to amend the FY 2024/25 budget in both revenues and expenditures, and appropriate $750,000 in County funds to be used towards Gutierrez Park baseball field improvements.
Attachments
Attachment 1 – Resolution No. 2024-203 Funding Agreement for Gutierrez Park Attachment 2 – County of San Bernardino Funding Agreement for Gutierrez Park Ward:
Sixth Ward
Synopsis of Previous Council Actions:
May 15, 2024 Mayor and City Council adopted the 2024-25 Annual Action Plan allocating $250,000 in Community Development Block Grant (CDBG) funds towards baseball field improvements at Gutierrez Park
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Resolution No. 2024-203
Resolution 2024-203
September 18, 2024
5 5
1 0
RESOLUTION NO. 2024-203
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
AUTHORIZING THE CITY MANAGER, OR DESIGNEE, TO
EXECUTE THE FUNDING AGREEMENT WITH THE
COUNTY OF SAN BERNARDINO TO RECEIVE $750,000 IN
COUNTY FUNDS FOR GUTIERREZ PARK BASEBALL
FIELD IMPROVEMENTS; AND AUTHORIZING THE CITY
MANAGER, OR DESIGNEE, TO CONDUCT ALL
ADDITIONAL NEGOTIATIONS, SIGNINGS, AND
SUBMITTALS OF NECESSARY DOCUMENTS TO
RECEIVE THE COUNTY FUNDS; AND AUTHORIZING
THE DIRECTOR OF FINANCE AND MANAGEMENT
SERVICES TO AMEND THE FY 2024/25 BUDGET IN BOTH
REVENUES AND EXPENDITURES, AND APPROPRIATE
$750,000 IN COUNTY FUNDS TO BE USED TOWARDS
GUTIERREZ PARK BASEBALL FIELD IMPROVEMENTS.
WHEREAS, the City intends to perform baseball field improvements at Gutierrez Park; and
WHEREAS, the Mayor and City Council have allocated $250,000 in Community Development Block Grant (CDBG) Funds towards baseball field improvements at Gutierrez Park; and
WHEREAS, the County of San Bernardino desires to provide $750,000 in funding to assist with the baseball field improvements located at Gutierrez Park.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1.The above recitals are true and correct and are incorporated herein by this reference.
SECTION 2, Mayor and City Council hereby authorize the City Manager, or designee, to execute the Funding Agreement with the County of San Bernardino to receive $750,000 in County funds for Gutierrez Park baseball field improvements; and SECTION 3, Mayor and City Council hereby authorize the City Manager, or designee, to conduct all additional negotiations, signings, and submittals of necessary documents to receive the County funds; and
SECTION 4 Mayor and City Council of City of San Bernardino hereby authorize the Director of Finance and Management Services to amend the FY 2024/25 budget in both revenues and expenditures, and appropriate $750,000 in County funds to be used towards Gutierrez Park baseball field improvements.
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Resolution No. 2024-203
Resolution 2024-203
September 18, 2024
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1 0
SECTION 5. The Mayor and City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
SECTION 6. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 7. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 18th day of September 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. 2024-203
Resolution 2024-203
September 18, 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. 2024-203, adopted at a regular meeting held on the 18th day of September 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 September 2024.
Genoveva Rocha, CMC, City Clerk
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Standard Contract Page 1 of 26
THE INFORMATION IN THIS BOX IS NOT A PART OF THE CONTRACT AND IS FOR COUNTY USE ONLY Board of Supervisors
Department Contract Representative Stephanie Maldonado
Telephone Number 909-387-4378
Contractor City of San Bernardino
Contractor Representative Rochelle Clayton
Telephone Number 909-384-5122
Contract Term 09/24/24-09/23/26
Original Contract Amount Not-to-Exceed $750,000
Amendment Amount
Total Contract Amount Not-to-Exceed $750,000
Cost Center 1025001000
IT IS HEREBY AGREED AS FOLLOWS:
WHEREAS, it is the policy of the Board of Supervisors (Board) to work with community partners through services provided by San Bernardino County (County) and contractual agreements to identify programs, projects, and initiatives, that support the mission of the County, and to provide services to citizens that promote health, safety, economic well-being, education, recreation, and other public services that enhance quality of life, and meet the needs of the County’s citizens; and
WHEREAS, under Government Code sections 26224 and 26227 the Board may contract with certain entities to provide certain services to County residents; and,
WHEREAS, on September 21, 2021 (Item No. 18), the Board approved the Board of Supervisors Discretionary Fund – District Specific Priorities Program (Priorities Program) and allocated $4 million to each of the five supervisorial districts; and
WHEREAS, on November 16, 2021 (Item No. 33), the Board approved an additional allocation of $7 million to each of the five supervisorial districts under the Priorities Program; and WHEREAS, on February 6, 2024 (Item No.61), the Board approved an additional allocation of $6 million to each of the five supervisorial districts under the Priorities Program; and Contract Number
SAP Number
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WHEREAS, on June 11, 2024 (Item No. 110), the Board approved an additional allocation of $3 million to each of the five supervisorial districts under the Priorities Program; and WHEREAS, County desires to provide funding to assist with field improvements of the baseball and softball fields (Project) located at the City of San Bernardino (Contractor or City) at Gutierrez Park; and WHEREAS, the County would like the City to manage these services; and WHEREAS, the County finds the City qualified to manage the contribution of these funds and utilize them towards the Project; and
WHEREAS, providing funding to Contractor serves the public purpose of providing for the social, educational, recreational, public health, and economic needs of County residents; and WHEREAS, the County residents of San Bernardino and the surrounding communities of the Fifth District will be served by the Project; and
WHEREAS, the County desires that such services be provided by Contractor and Contractor agrees to perform these services as set forth below.
NOW, THEREFORE, the County and Contractor mutually agree to the following terms and conditions:
A. PURPOSE OF CONTRACT
This Contract is made for the purpose of providing funding to support Contractor in providing funding to assist with field improvements of the baseball and softball fields located at the City of San Bernardino at Gutierrez Park to meet the needs of the residents of San Bernardino and surrounding communities.
B. CONTRACTOR RESPONSIBILITIES AND SCOPE OF SERVICES
B.1Funding arising out of this Contract will be used for a Scope of Services to provide financial support to Contractor for the following at Gutierrez Park:
1. Electrical improvements (to be housed inside the concession stand)
2. Baseball field lighting improvements
3. Infield renovation (laser grading, dirt/clay, pitching mound, etc.)
4. Refurbish scoreboard
5. New fencing for play areas
6. New bullpen area
7. Bleacher shade
8. Batting cage renovation
9. Replace existing water fountain(s)
10. Bleacher foundation(s)
B.2Contractor shall allow the County, its officers, agents and employees the privilege and right to on- site inspection of Gutierrez Park for the duration of this Contract. Contractor will ensure that its employees or agents furnish any information that in the judgment of the County, may be relevant to a question of compliance with contractual conditions, or the effectiveness, legality, and achievements of the program.
B.3Contractor shall provide the County all documentation regarding the scope of services covered by this Contract that the County requests from Contractor within 10 days of County’s request unless a different time is agreed to by the County.
B.4Contractor shall provide the County with documentation supporting completion of the project within 60 days of project completion.
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B.5Contractor acknowledges and agrees that it will make a matching contribution of at least 25% of the cost of the Services that Contractor will provide under this Contract. Contractor’s matching contribution will be a minimum of $187,500.
C. GENERAL CONTRACT REQUIREMENTS
C.1 Recitals
The recitals set forth above are true and correct and incorporated herein by this reference.
C.2 Contract Amendments
Contractor agrees any alterations, variations, modifications, or waivers of the provisions of the Contract, shall be valid only when reduced to writing, executed and attached to the original Contract and approved by the person(s) authorized to do so on behalf of Contractor and County.
C.3 Contract Assignability
Without the prior written consent of the County, the Contract is not assignable by Contractor either in whole or in part. Any attempt by Contractor to assign any performance of the terms of this Contract shall be null and void and shall constitute a material breach of this Contract.
C.4 Contract Exclusivity
This is not an exclusive Contract. The County reserves the right to enter into a contract with other contractors for the same or similar services. The County does not guarantee or represent that the Contractor will be permitted to perform any minimum amount of work, or receive compensation other than on a per order basis, under the terms of this Contract.
C.5 Attorney’s Fees and Costs
If any legal action is instituted to enforce any party’s rights hereunder, each party shall bear its own costs and attorney fees, regardless of who is the prevailing party. This paragraph shall not apply to those costs and attorney fees directly arising from a third-party legal action against a party hereto and payable under Indemnification and Insurance Requirements.
C.6 Background Checks for Contractor Personnel
Contractor shall ensure that its personnel (a) are authorized to work in the jurisdiction in which they are assigned to perform Services; (b) do not use legal or illegal substances in any manner which will impact their ability to provide Services to the County; and (c) are not otherwise disqualified from performing the Services under applicable law. If requested by the County and not in violation of applicable law, Contractor shall conduct a background check, at Contractor’s sole expense, on all its personnel providing Services. If requested by the County, Contractor shall provide the results of the background check of each individual to the County. Such background check shall be in the form generally used by Contractor in its initial hiring of employees or contracting for contractors or, as applicable, during the employment-screening process but must, at a minimum, have been performed within the preceding 12-month period. Contractor personnel who do not meet the County’s hiring criteria, in County’s sole discretion, shall not be assigned to work on County property or Services, and County shall have the right, at its sole option, to refuse access to any Contractor personnel to any County facility.
C.7 Change of Address
Contractor shall notify the County in writing, of any change in mailing address within ten (10) business days of the change.
C.8 Choice of Law
This Contract shall be governed by and construed according to the laws of the State of California.
C.9 Compliance with County Policy
In performing the Services and while at any County facilities, Contractor personnel (including subcontractors) shall (a) conduct themselves in a businesslike manner; (b) comply with the policies, procedures, and rules of the County regarding health and safety, and personal,
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professional and ethical conduct; (c) comply with the finance, accounting, banking, Internet, security, and/or other applicable standards, policies, practices, processes, procedures, and controls of the County; and (d) abide by all laws applicable to the County facilities and the provision of the Services, and all amendments and modifications to each of the documents listed in subsections (b), (c), and (d) (collectively, “County Policies”). County Policies, and additions or modifications thereto, may be communicated orally or in writing to Contractor or Contractor personnel or may be made available to Contractor or Contractor personnel by conspicuous posting at a County facility, electronic posting, or other means generally used by County to disseminate such information to its employees or contractors. Contractor shall be responsible for the promulgation and distribution of County Policies to Contractor personnel to the extent necessary and appropriate.
County shall have the right to require Contractor’s employees, agents, representatives and subcontractors to exhibit identification credentials issued by County in order to exercise any right of access under this Contract.
C.10 Confidentiality
Contractor shall protect from unauthorized use or disclosure names and other identifying information concerning persons receiving Services pursuant to this Contract, except for statistical information not identifying any participant. Contractor shall not use or disclose any identifying information for any other purpose other than carrying out the Contractor's obligations under this Contract, except as may be otherwise required by law. This provision will remain in force even after the termination of the Contract.
C.11 Primary Point of Contact
Contractor will designate an individual to serve as the primary point of contact for the Contract.
Contractor or designee must respond to County inquiries within two (2) business days. Contractor shall not change the primary contact without written acknowledgement to the County. Contractor will also designate a back-up point of contact in the event the primary contact is not available.
C.12 County Representative
The Fifth District Supervisor or his/her designee shall represent the County in all matters pertaining to the services to be rendered under this Contract, including termination and assignment of this Contract, and shall be the final authority in all matters pertaining to the Services/Scope of Work by Contractor. Except as provided under Section D of this Contract, if this Contract was initially approved by the San Bernardino County Board of Supervisors, then the Board of Supervisors must approve all amendments to this Contract.
C.13 Damage to County Property
Contractor shall repair, or cause to be repaired, at its own cost, all damages to County vehicles, facilities, buildings or grounds caused by the willful or negligent acts of Contractor or its employees or agents. Such repairs shall be made immediately after Contractor becomes aware of such damage, but in no event later than thirty (30) days after the occurrence.
If the Contractor fails to make timely repairs, the County may make any necessary repairs. The Contractor, as determined by the County, shall repay all costs incurred by the County for such repairs, by cash payment upon demand, or County may deduct such costs from any amounts due to the Contractor from the County, as determined at the County’s sole discretion.
C.14 Debarment and Suspension
Contractor certifies that neither it nor its principals or subcontractors is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or agency. (See the following United States General Services Administration’s System for Award Management website https://www.sam.gov).
Contractor further certifies that if it or any of its subcontractors are business entities that must be
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registered with the California Secretary of State, they are registered and in good standing with the Secretary of State.
C.15 Drug and Alcohol Free Workplace
In recognition of individual rights to work in a safe, healthful and productive work place, as a material condition of this Contract, the Contractor agrees that the Contractor and the Contractor’s employees, while performing service for the County, on County property, or while using County equipment:
C.15.1Shall not be in any way impaired because of being under the influence of alcohol or an illegal or controlled substance.
C.15.2Shall not possess an open container of alcohol or consume alcohol or possess or be under the influence of an illegal or controlled substance.
C.15.3Shall not sell, offer, or provide alcohol or an illegal or controlled substance to another person, except where Contractor or Contractor’s employee who, as part of the performance of normal job duties and responsibilities, prescribes or administers medically prescribed drugs.
The Contractor shall inform all employees that are performing service for the County on County property, or using County equipment, of the County’s objective of a safe, healthful and productive work place and the prohibition of drug or alcohol use or impairment from same while performing such service for the County.
The County may terminate for default or breach of this Contract and any other Contract the Contractor has with the County, if the Contractor or Contractor’s employees are determined by the County not to be in compliance with above.
C.16 Duration of Terms
This Contract, and all of its terms and conditions, shall be binding upon and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the respective parties, provided no such assignment is in violation of the provisions of this Contract.
C.17 Employment Discrimination
During the term of the Contract, Contractor shall not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, or military and veteran status.
Contractor shall comply with Executive Orders 11246, 11375, 11625, 12138, 12432, 12250, 13672, Title VI and Title VII of the Civil Rights Act of 1964, the California Fair Employment and Housing Act and other applicable Federal, State and County laws and regulations and policies relating to equal employment and contracting opportunities, including laws and regulations hereafter enacted.
C.18 Environmental Requirements
In accordance with County Policy 11-08, the County prefers to acquire and use products with higher levels of post-consumer recycled content. Environmentally preferable goods and materials must perform satisfactorily and be available at a reasonable price. The County requires Contractor to use recycled paper for any printed or photocopied material created as a result of this Contract. Contractor is also required to use both sides of paper sheets for reports submitted to the County whenever practicable.
To assist the county in meeting the reporting requirements of the California Integrated Waste Management Act of 1989 (AB 939), Contractor must be able to annually report the County’s environmentally preferable purchases. Contractor must also be able to report on environmentally
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preferable goods and materials used in the provision of their service to the County, utilizing a County approved form.
C.19 Improper Influence
Contractor shall make all reasonable efforts to ensure that no County officer or employee, whose position in the County enables him/her to influence any award of the Contract or any competing offer, shall have any direct or indirect financial interest resulting from the award of the Contract or shall have any relationship to the Contractor or officer or employee of the Contractor.
C.20 Improper Consideration
Contractor shall not offer (either directly or through an intermediary) any improper consideration such as, but not limited to cash, discounts, service, the provision of travel or entertainment, or any items of value to any officer, employee or agent of the County in an attempt to secure favorable treatment regarding this Contract.
The County, by written notice, may immediately terminate this Contract if it determines that any improper consideration as described in the preceding paragraph was offered to any officer, employee or agent of the County with respect to the proposal and award process. This prohibition shall apply to any amendment, extension or evaluation process once a contract has been awarded.
Contractor shall immediately report any attempt by a County officer, employee or agent to solicit (either directly or through an intermediary) improper consideration from Contractor. The report shall be made to the supervisor or manager charged with supervision of the employee or the County Administrative Office. In the event of a termination under this provision, the County is entitled to pursue any available legal remedies.
C.21 Informal Dispute Resolution
In the event the County determines that service is unsatisfactory, or in the event of any other dispute, claim, question or disagreement arising from or relating to this Contract or breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question or disagreement.
To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties.
C.22 Legality and Severability
The parties’ actions under the Contract shall comply with all applicable laws, rules, regulations, court orders and governmental agency orders. The provisions of this Contract are specifically made severable. If a provision of the Contract is terminated or held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full effect.
C.23 Licenses, Permits and/or Certifications
Contractor shall ensure that it has all necessary licenses, permits and/or certifications required by the laws of Federal, State, County, and municipal laws, ordinances, rules and regulations. The Contractor shall maintain these licenses, permits and/or certifications in effect for the duration of this Contract. Contractor will notify County immediately of loss or suspension of any such licenses, permits and/or certifications. Failure to maintain a required license, permit and/or certification may result in immediate termination of this Contract.
C.24 Material Misstatement/Misrepresentation
If during the course of the administration of this Contract, the County determines that Contractor has made a material misstatement or misrepresentation or that materially inaccurate information has been provided to the County, this Contract may be immediately terminated. If this Contract is terminated according to this provision, the County is entitled to pursue any available legal remedies.
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C.25 Mutual Covenants
The parties to this Contract mutually covenant to perform all of their obligations hereunder, to exercise all discretion and rights granted hereunder, and to give all consents in a reasonable manner consistent with the standards of “good faith” and “fair dealing”.
C.26 Nondisclosure
Contractor shall hold as confidential and use reasonable care to prevent unauthorized access by, storage, disclosure, publication, dissemination to and/or use by third parties of, confidential information that is either: (1) provided by the County to Contractor or an agent of Contractor or otherwise made available to Contractor or Contractor’s agent in connection with this Contract; or, (2) acquired, obtained, or learned by Contractor or an agent of Contractor in the performance of this Contract. For purposes of this provision, confidential information means any data, files, software, information or materials in oral, electronic, tangible or intangible form and however stored, compiled or memorialize and includes, but is not limited to, technology infrastructure, architecture, financial data, trade secrets, equipment specifications, user lists, passwords, research data, and technology data.
C.27 Notice of Delays
Except as otherwise provided herein, when either party has knowledge that any actual or potential situation is delaying or threatens to delay the timely performance of this Contract, that party shall, within twenty-four (24) hours, give notice thereof, including all relevant information with respect thereto, to the other party.
C.28 Ownership of Documents
All documents, data, products, graphics, computer programs and reports prepared by Contractor pursuant to the Contract shall be considered property of the County upon payment for services (and products, if applicable). All such items shall be delivered to County at the completion of work under the Contract, subject to the requirements of Section IV–Term of the Contract. Unless otherwise directed by County, Contractor may retain copies of such items.
C.29 RESERVED.
C.30 Air, Water Pollution Control, Safety and Health
Contractor shall comply with all air pollution control, water pollution, safety and health ordinances and statutes, which apply to the work performed pursuant to this Contract.
C.31 Records
Contractor shall maintain all records and books pertaining to the delivery of services under this Contract and demonstrate accountability for Contract performance. All records shall be complete and current and comply with all Contract requirements. Failure to maintain acceptable records shall be considered grounds for withholding of payments for invoices submitted and/or termination of the Contract.
All records relating to the Contractor’s personnel, consultants, subcontractors, Services/Scope of Work and expenses pertaining to this Contract shall be kept in a generally acceptable accounting format. Records should include primary source documents. Fiscal records shall be kept in accordance with Generally Accepted Accounting Principles and must account for all funds, tangible assets, revenue and expenditures. Fiscal records must comply with the appropriate Office of Management and Budget (OMB) Circulars, which state the administrative requirements, cost principles and other standards for accountancy.
C.32 Relationship of the Parties
Nothing contained in this Contract shall be construed as creating a joint venture, partnership, or employment arrangement between the Parties hereto, nor shall either Party have the right, power or authority to create an obligation or duty, expressed or implied, on behalf of the other Party hereto.
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C.33 Release of Information
No news releases, advertisements, public announcements or photographs arising out of the Contract or Contractor’s relationship with County may be made or used without prior written approval of the County.
C.34 Representation of the County
In the performance of this Contract, Contractor, its agents and employees, shall act in an independent capacity and not as officers, employees, or agents of the San Bernardino County.
C.35 Strict Performance
Failure by a party to insist upon the strict performance of any of the provisions of this Contract by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Contract thereafter.
C.36 Subcontracting
Contractor shall obtain County’s written consent, which County may withhold in its sole discretion, before entering into Contracts with or otherwise engaging any subcontractors who may supply any part of the Services to County. At County’s request, Contractor shall provide information regarding the subcontractor’s qualifications and a listing of a subcontractor’s key personnel including, if requested by the County, resumes of proposed subcontractor personnel. Contractor shall remain directly responsible to County for its subcontractors and shall indemnify County for the actions or omissions of its subcontractors under the terms and conditions specified in Section G. All approved subcontractors shall be subject to the provisions of this Contract applicable to Contractor Personnel.
For any subcontractor, Contractor shall:
C.36.1Be responsible for subcontractor compliance with the Contract and the subcontract terms and conditions; and
C.36.2Ensure that the subcontractor follows County’s reporting formats and procedures as specified by County.
C.36.3Include in the subcontractor’s subcontract substantially similar terms as are provided in Sections B. Contractor Responsibilities and C. General Contract Requirements.
Upon expiration or termination of this Contract for any reason, County will have the right to enter into direct Contracts with any of the Subcontractors. Contractor agrees that its arrangements with Subcontractors will not prohibit or restrict such Subcontractors from entering into direct Contracts with County.
C.37 Subpoena
In the event that a subpoena or other legal process commenced by a third party in any way concerning the Goods or Services provided under this Contract is served upon Contractor or County, such party agrees to notify the other party in the most expeditious fashion possible following receipt of such subpoena or other legal process. Contractor and County further agree to cooperate with the other party in any lawful effort by such other party to contest the legal validity of such subpoena or other legal process commenced by a third party as may be reasonably required and at the expense of the party to whom the legal process is directed, except as otherwise provided herein in connection with defense obligations by Contractor for County.
C.38 Termination for Convenience
The County and the Contractor each reserve the right to terminate the Contract, for any reason, with a thirty (30) day written notice of termination. Such termination may include all or part of the services described herein. Upon such termination, payment will be made to the Contractor for services rendered and expenses reasonably incurred prior to the effective date of termination.
Upon receipt of termination notice Contractor shall promptly discontinue services unless the
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notice directs otherwise. Contractor shall deliver promptly to County and transfer title (if necessary) all completed work, and work in progress, including drafts, documents, plans, forms, data, products, graphics, computer programs and reports.
County may immediately terminate this Contract upon the termination, suspension, discontinuation or substantial reduction in County funding for the Contract activity or if for any reason the timely completion of the scope of work described in Section A or B under this Contract is rendered improbable, infeasible or impossible.
Upon Contract termination, Contractor shall immediately transfer to County all County Funds on hand at the time of expiration and any accounts receivable attributable to the use of County Funds.
C.39 Time of the Essence
Time is of the essence in performance of this Contract and of each of its provisions.
C.40 Venue
The parties acknowledge and agree that this Contract was entered into and intended to be performed in San Bernardino County, California. The parties agree that the venue of any action or claim brought by any party to this Contract will be the Superior Court of California, San Bernardino County, San Bernardino District. Each party hereby waives any law or rule of the court, which would allow them to request or demand a change of venue. If any action or claim concerning this Contract is brought by any third party and filed in another venue, the parties hereto agree to use their best efforts to obtain a change of venue to the Superior Court of California, San Bernardino County, San Bernardino District.
C.41 Conflict of Interest
Contractor shall make all reasonable efforts to ensure that no conflict of interest exists between its officers, employees, or subcontractors and the County. Contractor shall make a reasonable effort to prevent employees, Contractor, or members of governing bodies from using their positions for purposes that are, or give the appearance of being motivated by a desire for private gain for themselves or others such as those with whom they have family business, or other ties.
Officers, employees, and agents of cities, counties, districts, and other local agencies are subject to applicable conflict of interest codes and state law. In the event the County determines a conflict of interest situation exists, any increase in costs, associated with the conflict of interest situation, may be disallowed by the County and such conflict may constitute grounds for termination of the Contract. This provision shall not be construed to prohibit employment of persons with whom Contractor’s officers, employees, or agents have family, business, or other ties so long as the employment of such persons does not result in increased costs over those associated with the employment of any other equally qualified applicant.
C.42 Former County Administrative Officials
Contractor agrees to provide, or has already provided information on former San Bernardino County administrative officials (as defined below) who are employed by or represent Contractor.
The information provided includes a list of former County administrative officials who terminated County employment within the last five years and who are now officers, principals, partners, associates or members of the business. The information also includes the employment with or representation of Contractor. For purposes of this provision, “County administrative official” is defined as a member of the Board of Supervisors or such officer’s staff, County Executive Officer or member of such officer’s staff, County department or group head, assistant department or group head, or any employee in the Exempt Group, Management Unit or Safety Management Unit.
C.43 Disclosure of Criminal and Civil Procedures
The County reserves the right to request the information described herein from the Contractor.
Failure to provide the information may result in a termination of the Contract. The County also reserves the right to obtain the requested information by way of a background check performed
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by an investigative firm. The Contractor also may be requested to provide information to clarify initial responses. Negative information discovered may result in Contract termination.
Contractor is required to disclose whether the firm, or any of its partners, principals, members, associates or key employees (as that term is defined herein), within the last ten years, has been indicted on or had charges brought against it or them (if still pending) or convicted of any crime or offense arising directly or indirectly from the conduct of the firm’s business, or whether the firm, or any of its partners, principals, members, associates or key employees, has within the last ten years, been indicted on or had charges brought against it or them (if still pending) or convicted of any crime or offense involving financial misconduct or fraud. If the response is affirmative, the Contractor will be asked to describe any such indictments or charges (and the status thereof), convictions and the surrounding circumstances in detail.
In addition, the Contractor is required to disclose whether the firm, or any of its partners, principals, members, associates or key employees, within the last ten years, has been the subject of legal proceedings as defined herein arising directly from the provision of services by the firm or those individuals. “Legal proceedings” means any civil actions filed in a court of competent jurisdiction, or any matters filed by an administrative or regulatory body with jurisdiction over the firm or the individuals. If the response is affirmative, the Contractor will be asked to describe any such legal proceedings (and the status and disposition thereof) and the surrounding circumstances in detail.
For purposes of this provision “key employees” includes any individuals providing direct service to the County. “Key employees” do not include clerical personnel providing service at the firm’s offices or locations.
C.44 Copyright
County shall have a royalty-free, non-exclusive and irrevocable license to publish, disclose, copy, translate, and otherwise use, copyright or patent, now and hereafter, all reports, studies, information, data, statistics, forms, designs, plans, procedures, systems, and any other materials or properties developed under this Contract including those covered by copyright, and reserves the right to authorize others to use or reproduce such material. All such materials developed under the terms of this Contract shall acknowledge the San Bernardino County as the funding agency and Contractor as the creator of the publication. No such materials, or properties produced in whole or in part under this Contract shall be subject to private use, copyright or patent right by Contractor in the United States or in any other country without the express written consent of County. Copies of all educational and training materials, curricula, audio/visual aids, printer material, and periodicals, assembled pursuant to this Contract must be filed with the County prior to publication.
C.45 Artwork, Proofs and Negatives
All artwork, proofs, and/or negatives in either print or digital format for anything produced under the terms of this Contract are the property of the County. These items must be returned to the County within ten (10) days, upon written notification to the Contractor. In the event of a failure to return the documents, the County is entitled to pursue any available legal remedies. In addition, the Contractor will be barred from all future solicitations, for a period of at least six (6) months.
C.46 Reserved
C.47 Prevailing Wage Laws
By its execution of this Contract, Contractor certifies that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq. as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Section 1720 of the California Labor Code states in part: “For purposes of this paragraph, ‘construction’ includes work performed during the design, site assessment, feasibility study, and other preconstruction phases of construction including, but not limited to,
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inspection and land surveying work…” If the Services/Scope of Work are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the project site. Contractor will also adhere to any other applicable requirements, including but not limited to, those regarding the employment of apprentices, travel and subsistence pay, retention and inspection of payroll records, workers compensation and forfeiture of penalties prescribed in the Labor Code for violations. Contractor shall defend, indemnify and hold the County, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with Prevailing Wage Laws. See Attachment A, which is attached and incorporated by reference, for additional information regarding Prevailing Wage Laws. Contractor shall comply with all applicable terms and conditions in Attachment A. The applicable general prevailing wage determinations are on file with the County and are available to any interested party on request.
Contractor shall post a copy of the applicable prevailing wage determinations at the job site.
C.48 Reserved
C.49 California Consumer Privacy Act
To the extent applicable, if Contractor is a business that collects the personal information of a consumer(s) in performing Services pursuant to this Contract, Contractor must comply with the provisions of the California Consumer Privacy Act (CCPA). (Cal. Civil Code §§1798.100, et seq.).
For purposes of this provision, “business,” “consumer,” and “personal information” shall have the same meanings as set forth at Civil Code section 1798.140. Contractor must contact the County immediately upon receipt of any request by a consumer submitted pursuant to the CCPA that requires any action on the part of the County, including but not limited to, providing a list of disclosures or deleting personal information. Contractor must not sell, market or otherwise disclose personal information of a consumer provided by the County unless specifically authorized pursuant to terms of this Contract. Contractor must immediately provide to the County any notice provided by a consumer to Contractor pursuant to Civil Code section 1798.150(b) alleging a violation of the CCPA, that involves personal information received or maintained pursuant to this Contract. Contractor must immediately notify the County if it receives a notice of violation from the California Attorney General pursuant to Civil Code section 1798.155(b).
D. TERM OF CONTRACT
The services to be provided by Contractor shall commence on September 24, 2024, and shall be completed by September 23, 2026, but may be terminated earlier in accordance with provisions of this Contract.
The County Chief Executive Officer, at the direction of the Fifth District Supervisor, may extend the term of the Contract, in writing, to allow Contractor to complete all requirements in the Contract under the following conditions:
a. In aggregate all extensions do not exceed twelve (12) calendar months; b. Are specifically requested by Contractor;
c. Will not change the project goals or scope of services; d. Are in the best interests of County and Contractor in performing the scope of services under this Contract; and
e. Do not alter the amount of compensation under this Contract.
E. RESERVED.
F. FISCAL PROVISIONS
F.1The maximum amount of payment under this Contract shall not exceed $750,000 and shall be subject to availability of other funds to the County. The consideration to be paid to Contractor, as
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provided herein, shall be in full payment for all Contractor’s services and expenses incurred in the performance hereof, including travel and per diem.
F.2Any costs in excess of the amount available in this section shall be the sole responsibility of Contractor. This condition however, does not preclude County from providing additional funding at its sole discretion. For the purpose of this Contract, County shall disburse compensation and monitor the Contractor’s performance in satisfying the scope of work obligations under the terms of this Contract.
Disbursement of funds to Contractor shall be made in one lump sum. Upon review/approval by County, County shall make payment to Contractor within thirty (30) working days after receipt of Contractor’s invoice or the resolution of any billing dispute. Contractor shall email County the Contractor’s invoice requesting one lump sum payment. The invoice(s) shall reflect the Entity Payable To Name and Address, Invoice Date, Invoice Number, Project Name, Contract Number, County-Issued Purchase Order (if applicable), the text “Final Invoice”, amount due, in a format acceptable to the County for services performed under this Contract. Contractor shall email invoice to County Administrative Office-Finance and Administration (County Finance) and shall include in the Subject Line: BOS – ENTITY NAME – PROJECT NAME – CONTRACT NUMBER – PO # [PURCHASE ORDER NUMBER]” (i.e. BOS-SAN BERNARDINO COUNTY-EDUCATION PROGRAM — 21-NNN – PO 4100NNNNNN).
Contractor shall submit a final expenditure report documented with “audit ready” supportive evidence of each expenditure and proof of payment until all funds have been justified 60 days after project completion. Documentation shall be submitted electronically, and Contractor shall supply hard copies upon request by County. Supportive evidence shall include, but is not limited to, copy of County’s approval email to Contractor, quotes, copy(ies) of purchase order, packing slips, a copy of the invoice submitted by Contractor requesting one lump sum payment from County, invoices paid by the Contractor for this project, proof of payment, etc., to County Finance. Email to County Finance shall include in the Subject Line: BOS – ENTITY NAME – PROJECT NAME – CONTRACT NUMBER – PO # [PURCHASE ORDER NUMBER]”-SUPPORTIVE DOCUMENTS.
F.3Contractor shall accept all payments from County via electronic funds transfer (EFT) directly deposited into the Contractor’s designated checking or other bank account. Contractor shall promptly comply with directions and accurately complete forms provided by County required to process EFT payments.
F.4County is exempt from Federal excise taxes and no payment shall be made for any personal property taxes levied on Contractor or on any taxes levied on employee wages. The County shall only pay for any State or local sales or use taxes on the services rendered or equipment and/or parts supplied to the County pursuant to the Contract.
F.5Costs for services under the terms of this Contract shall be incurred during the contract period except as approved by County. Contractor shall not use current year funds to pay prior or future year obligations.
F.6Funds made available under this Contract shall not supplant any federal, state or any governmental funds intended for services of the same nature as this Contract. Contractor shall not claim reimbursement or payment from County for, or apply sums received from County with respect to that portion of its obligations that have been paid by another source of revenue.
Contractor agrees that it will not use funds received pursuant to this Contract, either directly or indirectly, as a contribution or compensation for purposes of obtaining funds from another revenue source without prior written approval of the County.
F.7Contractor shall adhere to the County’s Travel Management Policy (8-02 and 08-02SP1) when travel is pursuant to this Contract and for which reimbursement is sought from the County. In
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addition, Contractor is encouraged to utilize local transportation services, including but not limited to, the Ontario International Airport.
F.8Contractor understands and agrees that any and all legal fees or costs associated with lawsuits concerning this Contract against the County shall be the Contractor’s sole expense and shall not be charged as a cost under this Contract.
F.9If the Contractor does not use the County funds provided under this Contract to pay appropriate costs associated with the Scope of Services by the termination date of this Contract, the Contractor shall return the County funds, or any unused portion thereof, to the County in accordance with any directions issued by County staff, within 60 days of written demand for the return of the County funds.
G. INDEMNIFICATION AND INSURANCE REQUIREMENTS
G.1 Indemnification
The Contractor agrees to indemnify, defend (with counsel reasonably approved by County) and hold harmless the County and its authorized officers, employees, agents and volunteers from any and all claims, actions, losses, damages and/or liability arising out of this Contract from any cause whatsoever, including the acts, errors or omissions of any person and for any costs or expenses incurred by the County on account of any claim except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence or degree of fault of indemnities. The Contractor indemnification obligation applies to the County’s “active” as well as “passive” negligence but does not apply to the County’s “sole negligence” or “willful misconduct” within the meaning of Civil Code section 2782.
G.2 Additional Insured
All policies, except for Worker’s Compensation, Errors and Omissions and Professional Liability policies shall contain additional endorsements naming the County and its officers, employees, agents and volunteers as additional named insured with respect to liabilities arising out of the performance of services hereunder. The additional insured endorsements shall not limit the scope of coverage for the County to vicarious liability but shall allow coverage for the County to the full extent provided by the policy. Such additional insured coverage shall be at least as broad as Additional Insured (Form B) endorsement form ISO, CG 2010.11 85.
G.3 Waiver of Subrogation Rights
The Contractor shall require the carriers of required coverages to waive all rights of subrogation against the County, its officers, employees, agents, volunteers, contractors and subcontractors.
All general or auto liability insurance coverage provided shall not prohibit the Contractor and Contractor’s employees or agents from waiving the right of subrogation prior to a loss or claim.
The Contractor hereby waives all rights of subrogation against the County.
G.4 Policies Primary and Non-Contributory
All policies required herein are to be primary and non-contributory with any insurance or self- insurance programs carried or administered by the County.
G.5 Severability of Interests
The Contractor agrees to ensure that coverage provided to meet these requirements is applicable separately to each insured and there will be no cross liability exclusions that preclude coverage for suits between the Contractor and the County or between the County and any other insured or additional insured under the policy.
G.6 Proof of Coverage
The Contractor shall furnish Certificates of Insurance to the County Department administering the Contract evidencing the insurance coverage at the time the Contract is executed, additional endorsements, as required shall be provided prior to the commencement of performance of services hereunder, which certificates shall provide that such insurance shall not be terminated
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or expire without thirty (30) days written notice to the Department, and Contractor shall maintain such insurance from the time Contractor commences performance of services hereunder until the completion of such services. Within fifteen (15) days of the commencement of this contract, the Contractor shall furnish a copy of the Declaration page for all applicable policies and will provide complete certified copies of the policies and endorsements immediately upon request.
G.7 Acceptability of Insurance Carrier
Unless otherwise approved by Risk Management, insurance shall be written by insurers authorized to do business in the State of California and with a minimum “Best” Insurance Guide rating of “A- VII”.
G.8 Deductibles and Self-Insured Retention
Any and all deductibles or self-insured retentions in excess of $10,000 shall be declared to and approved by Risk Management.
G.9 Failure to Procure Coverage
In the event that any policy of insurance required under this contract does not comply with the requirements, is not procured, or is canceled and not replaced, the County has the right but not the obligation or duty to cancel the contract or obtain insurance if it deems necessary and any premiums paid by the County will be promptly reimbursed by the Contractor or County payments to the Contractor will be reduced to pay for County purchased insurance.
G.10 Insurance Review
Insurance requirements are subject to periodic review by the County. The Director of Risk Management or designee is authorized, but not required, to reduce, waive or suspend any insurance requirements whenever Risk Management determines that any of the required insurance is not available, is unreasonably priced, or is not needed to protect the interests of the County. In addition, if the Department of Risk Management determines that heretofore unreasonably priced or unavailable types of insurance coverage or coverage limits become reasonably priced or available, the Director of Risk Management or designee is authorized, but not required, to change the above insurance requirements to require additional types of insurance coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against the County, inflation, or any other item reasonably related to the County’s risk.
Any change requiring additional types of insurance coverage or higher coverage limits must be made by amendment to this contract. Contractor agrees to execute any such amendment within thirty (30) days of receipt.
Any failure, actual or alleged, on the part of the County to monitor or enforce compliance with any of the insurance and indemnification requirements will not be deemed as a waiver of any rights on the part of the County.
G.11The Contractor agrees to provide insurance set forth in accordance with the requirements herein.
If the Contractor uses existing coverage to comply with these requirements and that coverage does not meet the specified requirements, the Contractor agrees to amend, supplement or endorse the existing coverage to do so.
Without in anyway affecting the indemnity herein provided and in addition thereto, the Contractor shall secure and maintain throughout the contract term the following types of insurance with limits as shown:
G.11.1Workers’ Compensation/Employer’s Liability – A program of Workers’ Compensation insurance or a state-approved, self-insurance program in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employer’s Liability with $250,000 limits covering all persons including volunteers
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providing services on behalf of the Contractor and all risks to such persons under this contract.
If Contractor has no employees, it may certify or warrant to the County that it does not currently have any employees or individuals who are defined as “employees” under the Labor Code and the requirement for Workers’ Compensation coverage will be waived by the County’s Director of Risk Management.
With respect to Contractors that are non-profit corporations organized under California or Federal law, volunteers for such entities are required to be covered by Workers’ Compensation insurance.
G.11.2Commercial/General Liability Insurance – The Contractor shall carry General Liability Insurance covering all operations performed by or on behalf of the Contractor providing coverage for bodily injury and property damage with a combined single limit of not less than one million dollars ($1,000,000), per occurrence. The policy coverage shall include:
a. Premises operations and mobile equipment.
b. Products and completed operations.
c. Broad form property damage (including completed operations). d. Explosion, collapse and underground hazards.
e. Personal injury.
f. Contractual liability.
g. $2,000,000 general aggregate limit.
G.11.3Automobile Liability Insurance – Primary insurance coverage shall be written on ISO Business Auto coverage form for all owned, hired and non-owned automobiles or symbol 1 (any auto). The policy shall have a combined single limit of not less than one million dollars ($1,000,000) for bodily injury and property damage, per occurrence.
If the Contractor is transporting one or more non-employee passengers in performance of contract services, the automobile liability policy shall have a combined single limit of two million dollars ($2,000,000) for bodily injury and property damage per occurrence.
If the Contractor owns no autos, a non-owned auto endorsement to the General Liability policy described above is acceptable.
G.11.4Umbrella Liability Insurance – An umbrella (over primary) or excess policy may be used to comply with limits or other primary coverage requirements. When used, the umbrella policy shall apply to bodily injury/property damage, personal injury/advertising injury and shall include a “dropdown” provision providing primary coverage for any liability not covered by the primary policy. The coverage shall also apply to automobile liability.
G.11.5Subcontractor Insurance Requirements - Subcontractor Insurance Requirements. The Contractor agrees to require all parties or subcontractors, including architects or others it hires or contracts with related to the performance of this contract to provide insurance covering the contracted operations with the basic requirements identified in Section G, including indemnification and the insurance specifications for all contracts, including waiver of subrogation rights, and naming the County as an additional insured. The Contractor agrees to monitor and review all such coverage and assumes all responsibility ensuring that such coverage is provided as required here.
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G.11.6Course of Construction/Installation (Builder’s Risk) property insurance providing all risk, including theft coverage for all property and materials to be used on the project.
The insurance policy shall not have any coinsurance penalty.
H. RIGHT TO MONITOR AND AUDIT
H.1The County, State and Federal government shall have absolute right to review and audit all records, books, papers, documents, corporate minutes, and other pertinent items as requested, and shall have absolute right to monitor the performance of Contractor in the delivery of services provided under this Contract. Contractor shall give full cooperation, in any auditing or monitoring conducted. Contractor shall cooperate with the County in the implementation, monitoring, and evaluation of this Contract and comply with any and all reporting requirements established by the County.
H.2All records pertaining to services delivered and all fiscal, statistical and management books and records shall be available for examination and audit by County representatives for a period of three years after final payment under this Contract or until all pending County, State and Federal audits are completed, whichever is later.
I. CORRECTION OF PERFORMANCE DEFICIENCIES
I.1Failure by Contractor to comply with any of the provisions, covenants, requirements or conditions of this Contract shall be a material breach of this Contract.
I.2In the event of a non-cured breach, County may, at its sole discretion and in addition to any other remedies available at law, in equity, or otherwise specified in this Contract:
a. Afford Contractor thereafter a time period within which to cure the breach, which period shall be established at the sole discretion of County; and/or b. Discontinue reimbursement to Contractor for and during the period in which Contractor is in breach, which reimbursement shall not be entitled to later recovery; and/or c. Withhold funds pending duration of the breach; and/or d. Offset against any monies billed by Contractor but yet unpaid by County those monies disallowed pursuant to Item “b” of this paragraph; and/or e. Terminate this Contract immediately and be relieved of the payment of any consideration to Contractor. In the event of such termination, the County may proceed with the work in any manner deemed proper by the County. The cost to the County shall be deducted from any sum due to the Contractor under this Contract and the balance, if any, shall be paid by the Contractor upon demand.
J. NOTICES
All written notices provided for in this Contract or which either party desires to give to the other shall be deemed fully given, when made in writing and either served personally, or by facsimile, or deposited in the United States mail, postage prepaid, and addressed to the other party as follows:
San Bernardino County
CAO – Finance and Administration
385 N. Arrowhead Ave., Fourth Floor
San Bernardino, CA 92415
Attn: BOS Finance Analyst
City of San Bernardino
290 North D Street
San Bernardino, CA 92401
Attn: Rochelle Clayton, Acting City Manager
Notice shall be deemed communicated two (2) County working days from the time of mailing if mailed as provided in this paragraph.
K. ENTIRE AGREEMENT
This Contract, including all Exhibits and other attachments, which are attached hereto and incorporated by reference, and other documents incorporated herein, represents the final, complete and exclusive agreement between the parties hereto. Any prior agreement, promises, negotiations or representations
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relating to the subject matter of this Contract not expressly set forth herein are of no force or effect. This Contract is executed without reliance upon any promise, warranty or representation by any party or any representative of any party other than those expressly contained herein. Each party has carefully read this Contract and signs the same of its own free will.
L. CONTRACT EXECUTION
This Contract may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute one and the same Contract.
The parties shall be entitled to sign and transmit an electronic signature of this Contract (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Each party providing an electronic signature agrees to promptly execute and deliver to the other party an original signed Contract upon request.
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IN WITNESS WHEREOF, the San Bernardino County and the Contractor have each caused this Contract to be subscribed by its respective duly authorized officers, on its behalf.
FOR COUNTY USE ONLY
Approved as to Legal Form Reviewed for Contract Compliance Reviewed/Approved by Department Julie Surber, Principal Assistant County
Counsel
Date Date Date
SAN BERNARDINO COUNTY CITY OF SAN BERNARDINO
(Print or type name of corporation, company, contractor, etc.) By
Dawn Rowe, Chair, Board of Supervisors (Authorized signature - sign in blue ink) Dated: Name Rochelle Clayton
SIGNED AND CERTIFIED THAT A COPY OF THIS (Print or type name of person signing contract)
DOCUMENT HAS BEEN DELIVERED TO THE
CHAIRMAN OF THE BOARD Title Acting City Manager
Lynna Monell
Clerk of the Board of Supervisors
of the San Bernardino County
(Print or Type)
By Dated:
Deputy
Address 290 North D Street
San Bernardino, CA 92401
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ATTACHMENT A
PREVAILING WAGE REQUIREMENTS
A. All or a portion of the Scope of Work in the Contract requires the payment of prevailing wages and compliance with the following requirements:
1. Determination of Prevailing Rates:
Pursuant to Labor Code sections 1770, et seq., the County has obtained from the Director of the Department of Industrial Relations (DIR) pursuant to the California Labor Code, the general prevailing rates of per diem wages and the prevailing rates for holiday and overtime work in the locality in which the Scope of Work is to be performed. Copies of said rates are on file with the County, will be made available for inspection during regular business hours, may be included elsewhere in the specifications for the Scope of Work, and are also available online at www.dir.ca.gov. The wage rate for any classification not listed, but which may be required to execute the Scope of Work, shall be commensurate and in accord with specified rates for similar or comparable classifications for those performing similar or comparable duties. In accordance with Labor Code section 1773.2, the Contractor shall post, at appropriate and conspicuous locations on the job site, a schedule showing all applicable prevailing wage rates and shall comply with the requirements of Labor Code sections 1773, et seq.
2. Payment of Prevailing Rates
Each worker of the Contractor, or any subcontractor, engaged in the Scope of Work, shall be paid not less than the general prevailing wage rate, regardless of any contractual relationship which may be alleged to exist between the Contractor or any subcontractor, and such worker.
3. Prevailing Rate Penalty
The Contractor shall, as a penalty, forfeit two hundred dollars ($200.00) to the County for each calendar day or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of the DIR for such work or craft in which such worker is employed by the Contractor or by any subcontractor in connection with the Scope of Work. Pursuant to California Labor Code section 1775, the difference between such prevailing wage rates and the amount paid to each worker for each calendar day, or portion thereof, for which each worker was paid less than the prevailing wage rate, shall be paid to each worker by the Contractor.
4. Ineligible Contractors:
Pursuant to the provisions of Labor Code section 1777.1, the Labor Commissioner publishes and distributes a list of contractors ineligible to perform work as a contractor or subcontractor on a public works project. This list of debarred contractors is available from the DIR website at http://www.dir.ca.gov/Public-Works/PublicWorks.html.
Any contract entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract, and any public money that may have been paid to a debarred subcontractor by a contractor on the project shall be returned to the County. The Contractor shall be responsible for the payment of wages to workers as a debarred subcontractor who has been allowed to work on the Scope of Work.
5. Payroll Records:
a. Pursuant to California Labor Code section 1776, the Contractor and each subcontractor, shall keep accurate certified payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed by them in connection with the Scope of Work.
The payroll records enumerated herein shall be verified by a written declaration made under penalty of perjury that the information contained in the payroll record is true and correct and that the Contractor or subcontractor has complied with the requirements of the California Labor Code sections 1771, 1811, and 1815 for any Scope of Work performed by his or her employees. The payroll records shall be available for inspection at all reasonable hours at the principal office of the Contractor on the following basis:
i. A certified copy of an employee's payroll record shall be made available for inspection or furnished to such employee or his/her authorized representative on request; ii. A certified copy of all payroll records shall be made available for inspection or furnished upon request to the County, the Division of Labor Standards Enforcement of the DIR; iii. A certified copy of payroll records shall be made available upon request to the public for inspection or copies thereof made; provided, however, that a request by the public shall be made through either the County or the Division of Labor Standards Enforcement. If the requested payroll records have not been previously provided to the County or the Division of Labor Standards Enforcement, the requesting party shall, prior to being provided the records, reimburse the cost of preparation by the Contractor, subcontractor and the entity through which the request was made; the public shall not be given access to such records at the principal office of the Contractor;
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iv. The Contractor shall file a certified copy of the payroll records with the entity that requested such records within ten (10) days after receipt of a written request; and v. Copies provided to the public, by the County or the Division of Labor Standards Enforcement shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address and social security number. The name and address of the Contractor or any subcontractor, performing a part of the Scope of Work shall not be marked or obliterated. The Contractor shall inform the County of the location of payroll records, including the street address, city and county and shall, within five (5) working days, provide a notice of a change of location and address. b. The Contractor shall have ten (10) days from receipt of the written notice specifying in what respects the Contractor must comply with the above requirements. In the event Contractor does not comply with the requirements of this section within the ten (10) day period, the Contractor shall, as a penalty to the County, forfeit one-hundred dollars ($100.00) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Labor Standards Enforcement, such penalty shall be withheld from any portion of the payments then due or to become due to the Contractor.
6. Limits on Hours of Work:
Pursuant to California Labor Code section 1810, eight (8) hours of labor shall constitute a legal day's work.
Pursuant to California Labor Code section 1811, the time of service of any worker employed at any time by the Contractor or by a subcontractor, upon the Scope of Work or upon any part of the Scope of Work, is limited and restricted to eight (8) hours during any one calendar day and forty (40) hours during any one calendar week, except as provided for under Labor Code section 1815. Notwithstanding the foregoing provisions, work performed by employees of Contractor or any subcontractor, in excess of eight (8) hours per day and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and one-half (1½) times the basic rate of pay.
7. Penalty for Excess Hours:
The Contractor shall pay to the County a penalty of twenty-five dollars ($25.00) for each worker employed on the Scope of Work by the Contractor or any subcontractor, for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any calendar day and forty (40) hours in any one calendar week, in violation of the provisions of the California Labor Code, unless compensation to the worker so employed by the Contractor is not less than one and one-half (1½) times the basic rate of pay for all hours worked in excess of eight (8) hours per day.
8. Senate Bill 854 (Chapter 28, Statutes of 2014) and Senate Bill 96 (Chapter 28, Statutes of 2017) Requirements:
a. Contractor shall comply with Senate Bill 854 and Senate Bill 96. The requirements include, but are not limited to, the following:
i. No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the DIR pursuant to Labor Code section 1725.5, with limited exceptions from this requirements for bid purposes only as allowed under Labor Code section 1771.1(a). ii. No contractor or subcontractor may be awarded a contract for public work or perform work on a public works project unless registered with the DIR pursuant to Labor Code section 1725.5. iii. This project is subject to compliance monitoring and enforcement by the DIR. iv. As required by the DIR, Contractor is required to post job site notices, as prescribed by regulation, regarding compliance monitoring and enforcement by the DIR. v. Contractors and all subcontractors must submit certified payroll records online to the Labor Commissioner for all public works projects.
1) The certified payroll must be submitted at least monthly to the Labor Commissioner. 2) The County reserves the right to require Contractor and all subcontractors to submit certified payroll records more frequently than monthly to the Labor Commissioner. 3) The certified payroll records must be in a format prescribed by the Labor Commissioner. vi. Registration with the DIR and the submission of certified payroll records to the Labor Commissioner are not required if the public works project is $25,000 or less when the project is for construction, alteration, demolition, installation or repair work, or if the public works project is $15,000 or less when the project is for maintenance work.
b. Labor Code section 1725.5 states the following:
“A contractor shall be registered pursuant to this section to be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any public work contract that is subject to the requirements of this chapter. For the purposes of this section, “contractor” includes a subcontractor as defined by Section 1722.1.
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(a) To qualify for registration under this section, a contractor shall do all of the following:
(1) (A) Register with the Department of Industrial Relations in the manner prescribed by the department and pay an initial nonrefundable application fee of four hundred dollars ($400) to qualify for registration under this section and an annual renewal fee on or before July 1 of each year thereafter. The annual renewal fee shall be in a uniform amount set by the Director of Industrial Relations, and the initial registration and renewal fees may be adjusted no more than annually by the director to support the costs specified in Section 1771.3.
(B) Beginning June 1, 2019, a contractor may register or renew according to this subdivision in annual increments up to three years from the date of registration. Contractors who wish to do so will be required to prepay the applicable nonrefundable application or renewal fees to qualify for the number of years for which they wish to preregister.
(2) Provide evidence, disclosures, or releases as are necessary to establish all of the following:
(A) Workers' compensation coverage that meets the requirements of Division 4 (commencing with Section 3200) and includes sufficient coverage for any worker whom the contractor employs to perform work that is subject to prevailing wage requirements other than a contractor who is separately registered under this section. Coverage may be evidenced by a current and valid certificate of workers' compensation insurance or certification of self-insurance required under Section 7125 of the Business and Professions Code. (B) If applicable, the contractor is licensed in accordance with Chapter 9 (commencing with Section 7000) of the Business and Professions Code.
(C) The contractor does not have any delinquent liability to an employee or the state for any assessment of back wages or related damages, interest, fines, or penalties pursuant to any final judgment, order, or determination by a court or any federal, state, or local administrative agency, including a confirmed arbitration award. However, for purposes of this paragraph, the contractor shall not be disqualified for any judgment, order, or determination that is under appeal, provided that the contractor has secured the payment of any amount eventually found due through a bond or other appropriate means. (D) The contractor is not currently debarred under Section 1777.1 or under any other federal or state law providing for the debarment of contractors from public works. (E) The contractor has not bid on a public works contract, been listed in a bid proposal, or engaged in the performance of a contract for public works without being lawfully registered in accordance with this section, within the preceding 12 months or since the effective date of the requirements set forth in subdivision (e), whichever is earlier. If a contractor is found to be in violation of the requirements of this paragraph, the period of disqualification shall be waived if both of the following are true:
(i) The contractor has not previously been found to be in violation of the requirements of this paragraph within the preceding 12 months.
(ii) The contractor pays an additional nonrefundable penalty registration fee of two thousand dollars ($2,000).
(b) Fees received pursuant to this section shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be used only for the purposes specified in that section. (c) A contractor who fails to pay the renewal fee required under paragraph (1) of subdivision (a) on or before the expiration of any prior period of registration shall be prohibited from bidding on or engaging in the performance of any contract for public work until once again registered pursuant to this section. If the failure to pay the renewal fee was inadvertent, the contractor may renew its registration retroactively by paying an additional nonrefundable penalty renewal fee equal to the amount of the renewal fee within 90 days of the due date of the renewal fee.
(d) If, after a body awarding a contract accepts the contractor's bid or awards the contract, the work covered by the bid or contract is determined to be a public work to which Section 1771 applies, either as the result of a determination by the director pursuant to Section 1773.5 or a court decision, the requirements of this section shall not apply, subject to the following requirements:
(1) The body that awarded the contract failed, in the bid specification or in the contract documents, to identify as a public work that portion of the work that the determination or decision subsequently classifies as a public work.
(2) Within 20 days following service of notice on the awarding body of a determination by the Director of Industrial Relations pursuant to Section 1773.5 or a decision by a court that the contract was for public work as defined in this chapter, the contractor and any subcontractors are registered under this section or are replaced by a contractor or subcontractors who are registered under this section.
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(3) The requirements of this section shall apply prospectively only to any subsequent bid, bid proposal, contract, or work performed after the awarding body is served with notice of the determination or decision referred to in paragraph (2).
(e) The requirements of this section shall apply to any bid proposal submitted on or after March 1, 2015, to any contract for public work, as defined in this chapter, executed on or after April 1, 2015, and to any work performed under a contract for public work on or after January 1, 2018, regardless of when the contract for public work was executed.
(f) This section does not apply to work performed on a public works project of twenty-five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.”
c. Labor Code section 1771.1 states the following:
“(a) A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.
(b) Notice of the requirement described in subdivision (a) shall be included in all bid invitations and public works contracts, and a bid shall not be accepted nor any contract or subcontract entered into without proof of the contractor or subcontractor's current registration to perform public work pursuant to Section 1725.5. (c) An inadvertent error in listing a subcontractor who is not registered pursuant to Section 1725.5 in a bid proposal shall not be grounds for filing a bid protest or grounds for considering the bid nonresponsive, provided that any of the following apply:
(1) The subcontractor is registered prior to the bid opening. (2) Within 24 hours after the bid opening, the subcontractor is registered and has paid the penalty registration fee specified in subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5. (3) The subcontractor is replaced by another registered subcontractor pursuant to Section 4107 of the Public Contract Code.
(d) Failure by a subcontractor to be registered to perform public work as required by subdivision (a) shall be grounds under Section 4107 of the Public Contract Code for the contractor, with the consent of the awarding authority, to substitute a subcontractor who is registered to perform public work pursuant to Section 1725.5 in place of the unregistered subcontractor. (e) The department shall maintain on its Internet Web site a list of contractors who are currently registered to perform public work pursuant to Section 1725.5.
(f) A contract entered into with any contractor or subcontractor in violation of subdivision (a) shall be subject to cancellation, provided that a contract for public work shall not be unlawful, void, or voidable solely due to the failure of the awarding body, contractor, or any subcontractor to comply with the requirements of Section 1725.5 or this section.
(g) If the Labor Commissioner or his or her designee determines that a contractor or subcontractor engaged in the performance of any public work contract without having been registered in accordance with this section, the contractor or subcontractor shall forfeit, as a civil penalty to the state, one hundred dollars ($100) for each day of work performed in violation of the registration requirement, not to exceed an aggregate penalty of eight thousand dollars ($8,000) in addition to any penalty registration fee assessed pursuant to clause (ii) of subparagraph (E) of paragraph (2) of subdivision (a) of Section 1725.5. (h)(1) In addition to, or in lieu of, any other penalty or sanction authorized pursuant to this chapter, a higher tiered public works contractor or subcontractor who is found to have entered into a subcontract with an unregistered lower tier subcontractor to perform any public work in violation of the requirements of Section 1725.5 or this section shall be subject to forfeiture, as a civil penalty to the state, of one hundred dollars ($100) for each day the unregistered lower tier subcontractor performs work in violation of the registration requirement, not to exceed an aggregate penalty of ten thousand dollars ($10,000). (2) The Labor Commissioner shall use the same standards specified in subparagraph (A) of paragraph (2) of subdivision (a) of Section 1775 when determining the severity of the violation and what penalty to assess, and may waive the penalty for a first time violation that was unintentional and did not hinder the Labor Commissioner’s ability to monitor and enforce compliance with the requirements of this chapter. (3) A higher tiered public works contractor or subcontractor shall not be liable for penalties assessed pursuant to paragraph (1) if the lower tier subcontractor’s performance is in violation of the requirements of Section 1725.5 due to the revocation of a previously approved registration.
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(4) A subcontractor shall not be liable for any penalties assessed against a higher tiered public works contractor or subcontractor pursuant to paragraph (1). A higher tiered public works contractor or subcontractor may not require a lower tiered subcontractor to indemnity or otherwise be liable for any penalties pursuant to paragraph (1).
(i) The Labor Commissioner or his or her designee shall issue a civil wage and penalty assessment, in accordance with the provisions of Section 1741, upon determination of penalties pursuant to subdivision (g) and subparagraph (B) of paragraph (1) of subdivision (h). Review of a civil wage and penalty assessment issued under this subdivision may be requested in accordance with the provisions of Section 1742. The regulations of the Director of Industrial Relations, which govern proceedings for review of civil wage and penalty assessments and the withholding of contract payments under Article 1 (commencing with Section 1720) and Article 2 (commencing with Section 1770), shall apply. (j)(1) Where a contractor or subcontractor engages in the performance of any public work contract without having been registered in violation of the requirements of Section 1725.5 or this section, the Labor Commissioner shall issue and serve a stop order prohibiting the use of the unregistered contractor or the unregistered subcontractor on all public works until the unregistered contractor or unregistered subcontractor is registered. The stop order shall not apply to work by registered contractors or subcontractors on the public work.
(2) A stop order may be personally served upon the contractor or subcontractor by either of the following methods:
(A) Manual delivery of the order to the contractor or subcontractor personally. (B) Leaving signed copies of the order with the person who is apparently in charge at the site of the public work and by thereafter mailing copies of the order by first class mail, postage prepaid to the contractor or subcontractor at one of the following:
(i) The address of the contractor or subcontractor on file with either the Secretary of State or the Contractors’ State License Board.
(ii) If the contractor or subcontractor has no address on file with the Secretary of State or the Contractors’ State License Board, the address of the site of the public work. (3) The stop order shall be effective immediately upon service and shall be subject to appeal by the party contracting with the unregistered contractor or subcontractor, by the unregistered contractor or subcontractor, or both. The appeal, hearing, and any further review of the hearing decision shall be governed by the procedures, time limits, and other requirements specified in subdivision (a) of Section 238.1.
(4) Any employee of an unregistered contractor or subcontractor who is affected by a work stoppage ordered by the commissioner pursuant to this subdivision shall be paid at his or her regular hourly prevailing wage rate by that employer for any hours the employee would have worked but for the work stoppage, not to exceed 10 days.
(k) Failure of a contractor or subcontractor, owner, director, officer, or managing agent of the contractor or subcontractor to observe a stop order issued and served upon him or her pursuant to subdivision (j) is guilty of a misdemeanor punishable by imprisonment in county jail not exceeding 60 days or by a fine not exceeding ten thousand dollars ($10,000), or both.
(l) This section shall apply to any bid proposal submitted on or after March 1, 2015, and any contract for public work entered into on or after April 1, 2015. This section shall also apply to the performance of any public work, as defined in this chapter, on or after January 1, 2018, regardless of when the contract for public work was entered.
(m) Penalties received pursuant to this section shall be deposited in the State Public Works Enforcement Fund established by Section 1771.3 and shall be used only for the purposes specified in that section. (n) This section shall not apply to work performed on a public works project of twenty-five thousand dollars ($25,000) or less when the project is for construction, alteration, demolition, installation, or repair work or to work performed on a public works project of fifteen thousand dollars ($15,000) or less when the project is for maintenance work.”
d. Labor Code section 1771.4 states the following:
“a) All of the following are applicable to all public works projects that are otherwise subject to the requirements of this chapter:
(1) The call for bids and contract documents shall specify that the project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. (2) The awarding body shall post or require the prime contractor to post job site notices, as prescribed by regulation.
(3) Each contractor and subcontractor shall furnish the records specified in Section 1776 directly to the Labor Commissioner, in the following manner:
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(A) At least monthly or more frequently if specified in the contract with the awarding body. (B) In a format prescribed by the Labor Commissioner.
(4) If the contractor or subcontractor is not registered pursuant to Section 1725.5 and is performing work on a project for which registration is not required because of subdivision (f) of Section 1725.5, the unregistered contractor or subcontractor is not required to furnish the records specified in Section 1776 directly to the Labor Commissioner but shall retain the records specified in Section 1776 for at least three years after completion of the work.
(5) The department shall undertake those activities it deems necessary to monitor and enforce compliance with prevailing wage requirements.
(b) The Labor Commissioner may exempt a public works project from compliance with all or part of the requirements of subdivision (a) if either of the following occurs:
(1) The awarding body has enforced an approved labor compliance program, as defined in Section 1771.5, on all public works projects under its authority, except those deemed exempt pursuant to subdivision (a) of Section 1771.5, continuously since December 31, 2011.
(2) The awarding body has entered into a collective bargaining agreement that binds all contractors performing work on the project and that includes a mechanism for resolving disputes about the payment of wages.
(c) The requirements of paragraph (1) of subdivision (a) shall only apply to contracts for public works projects awarded on or after January 1, 2015.
(d) The requirements of paragraph (3) of subdivision (a) shall apply to all contracts for public work, whether new or ongoing, on or after January 1, 2016.”
B. STATE PUBLIC WORKS APPRENTICESHIP REQUIREMENTS
1. State Public Works Apprenticeship Requirements:
a. The Contractor is responsible for compliance with Labor Code section 1777.5 and the California Code of Regulations, title 8, sections 230 – 230.2 for all apprenticeable occupations (denoted with “#” symbol next to craft name in DIR Prevailing Wage Determination), whether employed by the Contractor, subcontractor, vendor or consultant. Included in these requirements is (1) the Contractor’s requirement to provide notification (i.e. DAS-140) to the appropriate apprenticeship committees; (2) pay training fund contributions for each apprenticeable hour employed on the Contract; and (3) utilize apprentices in a minimum ratio of not less than one apprentice hour for each five journeyman hours by completion of Contract work (unless an exception is granted in accordance with Labor Code section 1777.5) or request for the dispatch of apprentices.
b. Any apprentices employed to perform any of the Scope of Work shall be paid the standard wage to apprentices under the regulations of the craft or trade for which such apprentice is employed, and such individual shall be employed only for the work of the craft or trade to which such individual is registered.
Only apprentices, as defined in California Labor Code section 3077, who are in training under apprenticeship standards and written apprenticeship agreements under California Labor Code sections 3070 et seq. are eligible to be employed for the Scope of Work. The employment and training of each apprentice shall be in accordance with the provisions of the apprenticeship standards and apprentice agreements under which such apprentice is training.
2. Compliance with California Labor Code section 1777.5 requires all public works contractors to:
a. Submit Contract Award Information (DAS-140):
i. Although there are a few exemptions (identified below), all Contractors, regardless of union affiliation, must submit contract award information when performing on a California public works project.
ii. The DAS-140 is a notification “announcement” of the Contractor’s participation on a public works project—it is not a request for the dispatch of an apprentice. iii. Contractors shall submit the contract award information (you may use form DAS 140) within 10 days of the execution of the prime contract or subcontract, but in no event later than the first day in which the Contractor has workers employed on the public work. iv. Contractors who are already approved to train apprentices (i.e. check “Box 1” on the DAS-140) shall only be required to submit the form to their approved program. v. Contractors who are NOT approved to train apprentices (i.e. those that check either “Box 2” or “Box 3” on the DAS-140) shall submit the DAS-140 TO EACH of the apprenticeship program sponsors in the area of your public works project. For a listing of apprenticeship programs see
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http://www.dir.ca.gov/Databases/das/pwaddrstart.asp.
b. Employ Registered Apprentices
i. Labor Code section 1777.5 requires that a contractor performing work in an “apprenticeable” craft must employ one (1) hour of apprentice work for every five (5) hours performed by a journeyman.
This ratio shall be met prior to the Contractor’s completion of work on the project. “Apprenticeable” crafts are denoted with a pound symbol “#” in front of the craft name on the prevailing wage determination.
ii. All Contractors who do not fall within an exemption category (see below) must request for dispatch of an apprentice from an apprenticeship program (for each apprenticeable craft or trade) by giving the program actual notice of at least 72 hours (business days only) before the date on which apprentices are required.
iii. Contractors may use the “DAS-142” form for making a request for the dispatch of an apprentice. iv. Contractors who are participating in an approved apprenticeship training program and who did not receive sufficient number of apprentices from their initial request must request dispatch of apprentices from ALL OTHER apprenticeship committees in the project area in order to fulfill this requirement.
v. Contractor should maintain and submit proof (when requested) of its DAS-142 submittal to the apprenticeship committees (e.g. fax transmittal confirmation). A Contractor has met its requirement to employ apprentices only after it has successfully made a dispatch request to all apprenticeship programs in the project area.
vi. Only “registered” apprentices may be paid the prevailing apprentice rates and must, at all times work under the supervision of a Journeyman (Cal. Code Regs., tit 8, § 230.1). c. Make Training Fund Contributions
i. Contractors performing in apprenticeable crafts on public works projects, must make training fund contributions in the amount established in the prevailing wage rate publication for journeymen and apprentices.
ii. Contractors may use the “CAC-2” form for submittal of their training fund contributions. iii. Contractors who do not submit their training fund contributions to an approved apprenticeship training program must submit their contributions to the California Apprenticeship Council (CAC), PO Box 420603, San Francisco, CA 94142-0603.
iv. Training fund contributions to the CAC are due and payable on the 15th day of the month for work performed during the preceding month.
v. The “training” contribution amount identified on the prevailing wage determination shall not be paid to the worker, unless the worker falls within one of the exemption categories listed below.
3. Exemptions to Apprenticeship Requirements:
a. The following are exempt from having to comply with California apprenticeship requirements. These types of contractors do not need to submit a DAS-140, DAS-142, make training fund contributions, or utilize apprentices:
i. When the Contractor holds a sole proprietor license (“Owner-Operator”) and no workers were employed by the Contractor. In other words, the contractor performed the entire work from start to finish and worked alone.
ii. Contractors performing in non-apprenticeable crafts. “Apprenticeable” crafts are denoted with a pound symbol “#” in front of the craft name on the prevailing wage determination. iii. When the Contractor has a direct contract with the Public Agency that is under $30,000. iv. When the project is 100% federally-funded and the funding of the project does not contain any city, county, and/or state monies (unless the project is administered by a state agency in which case the apprenticeship requirements apply).
v. When the project is a private project not covered by the definition of public works as found in Labor Code section 1720.
4. Exemption from Apprenticeship Rations:
a. The Joint Apprenticeship Committee shall have the discretion to grant a certificate, which shall be subject to the approval of the Administrator of Apprenticeship, exempting the Contractor from the 1-to-5 ratio set forth in this Section when it finds that any one of the following conditions are met:
i. Unemployment for the previous three-month period in such area exceeds an average of fifteen percent (15%); or
ii. The number of apprentices in training in such area exceeds a ratio of 1-to-5 in relation to journeymen; or
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iii. The Apprenticeable Craft or Trade is replacing at least one-thirtieth (1/30) of its journeymen annually through apprenticeship training, either on a statewide basis or on a local basis; or iv. If assignment of an apprentice to any work performed under the Contract Documents would create a condition which would jeopardize such apprentice's life or the life, safety or property of fellow employees or the public at large, or if the specific task to which the apprentice is to be assigned is of such a nature that training cannot be provided by a journeyman. b. When such exemptions from the 1-to-5 ratio between apprentices and journeymen are granted to an organization which represents contractors in a specific trade on a local or statewide basis, the member contractors will not be required to submit individual applications for approval to local Joint Apprenticeship Committees, provided they are already covered by the local apprenticeship standards.
5. Contractor’s Compliance:
a. The responsibility of compliance with this Section for all Apprenticeable Trades or Crafts is solely and exclusively that of the Contractor. All decisions of the Joint Apprenticeship Committee(s) under this Section are subject to the provisions of California Labor Code section 3081 and penalties are pursuant to Labor Code section 1777.7 and the determination of the Labor Commissioner.
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DISCUSSION
City of San Bernardino
Request for Council Action
Date: September 18, 2024
To: Honorable Mayor and City Council Members
From: Rochelle Clayton, Acting City Manager
Jeannie Fortune, Interim Director of Finance & Management Services
Mary Alvarez-Gómez, Grants Division Manager
Department: City Manager's Office
Subject: American Rescue Plan Update (Fall 2024) (All Wards) Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Receive and file an update on City of San Bernardino American Rescue Plan Act (ARPA) projects, allocations, and spending to date; and
2. Authorize the City Manager to formally obligate ARPA funds for City led projects per U.S Department of Treasury Guidelines, by executing Inter- Agency agreements for previously City Council approved ARPA projects; and
3. Provide staff direction on any unassigned ARPA funds.
Executive Summary
The City of San Bernardino was awarded $77,656,407 in American Rescue Plan Act (ARPA) funds. The City received 2 tranches, half of the funds in May 2021, and the remainder of the funds in May of 2022. As of September 2024, the City has allocated a total of $76,304,896 of the City’s $77,656,407 original distribution from the Treasury, and must formally obligate all funds prior to the December 31, 2024, deadline. Although the City has obligated over $30 million to City Council approved projects, approximately $47 million remains to be formally obligated through an agreement or contract.
Background
The U.S. Treasury issued the final rule for the use of the funds on January 6, 2022, providing clarification on allowable investments, but generally not expanding the list of
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eligible projects and programs. The City is allocating these funds and working within the guidance, focusing on investments in Qualified Census Tracts (QCTs) and other priority investments.
Treasury then issued the 2022 Final Rule and Overview of the 2022 Final Rule describing how recipients may use ARPA funds to:
•Replace lost public sector revenue, using the standard allowance portion of this funding to provide government services up to the amount of revenue lost due to the pandemic. The City of San Bernardino’s standard allowance is $10 million dollars.
•Respond to the far-reaching public health and negative economic impacts of the pandemic, by supporting the health of communities, and helping households, small businesses, impacted industries, nonprofits, and the public sector recover from economic impacts.
•Provide premium pay for essential workers, offering additional support to those who have and will bear the greatest health risks because of their service in critical sectors.
•Invest in water, sewer, and broadband infrastructure, making necessary investments to improve access to clean drinking water, to support vital wastewater and stormwater infrastructure, and to expand affordable access to broadband internet.
Additionally, the 2023 Interim Final Rule and Overview of the 2023 Interim Final Rule describe three additional eligible uses of ARPA funds:
•Emergency relief from natural disasters, to provide emergency relief from the physical and economic impacts of natural disasters.
•Surface transportation projects, utilizing funds for eligible projects through three pathways.
•Title I projects, investing in activities that are eligible under the CDBG and ICDBG programs, as listed in section 105(a) of the Housing and Community Development Act of 1974.
Discussion
The U.S. Treasury requires ARPA funds to be obligated by December 31, 2024, and fully expended by December 31, 2026. For ARPA funds to be considered obligated by the Treasury, a legally binding agreement committing the funds must be executed for each program or project. This is typically done through Professional Services Agreements, Construction Contracts, etc., where the City procures goods and services
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through third-party vendors (i.e., an “External Obligation”). For ARPA-funded programs that are being provided directly by the City, ARPA funds will need to be obligated through inter-agency agreements (i.e., an “Internal Obligation”). Simply allocating funds through a resolution alone is not sufficient by Treasury standards.
Currently, the Mayor and City Council have committed $76,304,896 of the City’s $77,656,407 ARPA funds. Of this amount, $30,229,301 has been obligated and $12,287,587 has been spent. The table below provides an overview of all ARPA- funded projects approved by the Mayor and City Council and their current obligation and expenditure status:
American Rescue Plan Act Fund Status
Economic Development Allocated Obligated Spent
Small Business Non-Profit
Assistance $3,126,300 $3,126,300* $2,575,000
Entrepreneur Resource
Center (Aspen Institute
Initiative)
$1,873,700 $1,873,700 $1,873,700
Façade Improvements
(Paintbrush Program) $1,000,000 $1,000,000* $0
Parks & Recreation Allocated Obligated Spent
Seccombe Park
Renovations $9,000,000 $408,245 $171,278
Nicholson Park $8,850,000 $5,740,402 $131,561
Roosevelt Bowl Renovation $600,000 $433,752 $74,803
Lytle Creek Soccer Fields $600,000 $600,000 $7,502
Guadalupe Fields $2,063,851 $1,572,402 $118,643
Encanto Community Center $655,887 $0 $0
City Services Allocated Obligated Spent
Graffiti Abatement $1,000,000 $1,000,000* $316,503
Violence Intervention
Program $1,000,000 $750,000 $511,588
Infrastructure Allocated Obligated Spent
Street Improvements $1,080,158 $0 $0
Water Infrastructure Lead
Connectors $5,160,000 $0 $0
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Homelessness Initiatives Allocated Obligated Spent
Lutheran Social Services
Community Wellness
Center Homekey Project
$5,000,000 $5,000,000 $0
Motel Voucher Program $973,500 $973,500 $0
Navigation Center
Construction $12,450,000 $379,500 $159,860
Navigation Center
Operations $4,500,000 $0 $0
Homelessness Outreach
Team $1,500,000 $1,500,000 $444,577
Mobile Showers & Laundry $150,000 $150,000 $99,651
Temporary Housing for ASU
Residents $76,500 $76,500* $76,500
Emergency Nuisance &
Building Health & Safety
Abatement
$500,000 $500,000* $400,024
IT Infrastructure Allocated Obligated Spent
Enterprise Resource
Planning System $10,000,000 $0 $181,397
Staff Salaries Allocated Obligated Spent
Hero Pay $5,145,000 $5,145,000* $5,145,000
Total Council Allocated: $76,304,896 $30,229,301 $12,287,587 ARPA Allocation $77,656,407
Unassigned Funds $1,351,511
*Budget line items with an asterisk represent an internal obligation by the City via the execution of an Inter-Agency Agreement.
*Obligation total amount makes the assumption that Council will approve the use of Inter-Agency agreements to formally obligate funds per U.S Treasury ARPA Guidelines.
Economic Development
Small Business Non-Profit Assistance (All Wards)
Provides small businesses and non-profits operating within the City of San Bernardino grants ranging from $10,000 to $35,000 to aid in their recovery from the pandemic. The
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program offered two (2) cycles of grant opportunities where successful applicants completed a selected business course offered by the Inland Empire Business Development Center as a prerequisite to receiving a grant award. •Current Status – The first round of the grant opportunities is complete, and the second round of grant opportunities is in process and ready to award. •Next Steps – An Inter-agency agreement will need to be executed to formally obligate the funds as the program is being administered directly by the City.
Entrepreneur Resource Center (Aspen Institute Initiative) (All Wards) A collaboration between the City of San Bernardino and the Inland Empire Center for Entrepreneurship (IECE) at California State University San Bernardino (CSUSB) to provide a center for local small businesses and non-profits to access valuable resources such as business counseling and other specialized business assistance programs to recover from the ongoing and residual effects of the pandemic. •Current Status – 100% of funds have been obligated and expended. •Next Steps – No additional actions are needed.
Parks & Recreation
Seccombe Park Renovations (Ward 1)
Outdoor and amenities improvements to the 43-acres of Seccombe Lake Park, located in the center of the City and within a qualified census tract (58.00). Additional $1M in funds from the San Manuel Band of Mission Indians was received to support the project.
•Current Status – The design plans are at the 90% stage and are under review. An RFP is currently in process of being drafted for release. •Next Steps – Staff anticipates bringing a construction contract for Council to award in November 2024.
Nicholson Park (Ward 6)
Closed for over 8 years, improvements to Nicholson Park will allow residents access to a revitalized outdoor space when completed. This project aligns with improved health outcomes and although not directly in a qualified census tract, serves a low- income area (tract 44.01) and a nearby qualified census tract (44.04). Additional funding sources for this project include $2.7M from CDBG and $150,000 from the Meadowbrook Bridge Settlement.
•Current Status – Construction began in April 2024 and the grand opening is expected in April/May 2025. The ARPA allocation for Nicholson Park currently exceeds the project cost; however, there are pending change orders that still need
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to be processed. The City is currently assessing the amount of ARPA funds that will be saved after the change orders.
•Next Steps – Staff will bring a recommendation to the Mayor and City Council to reallocate the ARPA savings from the Nicholson Park project to the Encanto Community Center project in November of 2024.
Roosevelt Bowl Renovation (Ward 2)
Built in 1934 and a historic asset, Roosevelt Bowl located at Perris Hill Park is an outdoor amphitheater currently underutilized due to needed and necessary upgrades to comply with the Americans with Disabilities Act (ADA). Landscaping and restoration of the of the access trail, and renovation of the main building and restrooms. An additional $1.4M in federal funds thanks to Congressman Pete Aguilar was received to complete this project. ARPA guidelines allow for investment in this project to address disproportionately impacted neighborhoods through park improvements that can be linked to better health outcomes.
•Current Status – The design plans are at the 90% stage and are under review. An RFP is currently in process of being drafted for release. •Next Steps – Staff anticipates bringing a construction contract for Council to award in November 2024.
Lytle Creek Soccer Fields (Ward 3)
With input from the community, a disused parking lot at the north end of Lytle Creek Park will be converted to two futsal courts, providing more opportunities for recreation for youth in the area. This project meets ARPA guidelines for investments in disproportionately impacted neighborhoods where park improvements that can be linked to better health outcomes are eligible for ARPA funds. •Current Status – A construction contract is being brought to Council for award at this September 18, 2024, meeting. If awarded, the ARPA funds will be fully obligated.
•Next Steps – No additional actions are needed. The project is expected to be completed in April 2025.
Guadalupe Fields (Ward 1)
City ARPA funding ($2,063,851) and County ARPA funding ($995,000) to improve the baseball fields at Sal Saavedra Park, a 2.25-acre park on Roberds Avenue in the westside of the city. The project will renovate the existing building & baseball field, upgrade lights, replace fences, install new bleachers and scoreboard, and install new park amenities.
•Current Status - All funds will be obligated by September 2024 and expended by February 2025.
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•Next Steps – No additional actions are needed at this time.
Encanto Community Center (Ward )
ARPA funds are allocated for the rehabilitation of the Encanto Community Center.
Project elements include building exterior rehab and fencing with ADA Access, staff offices and multipurpose rooms renovation, a commercial kitchen renovation, updating the gymnasium floor, and a complete overhaul of locker room. Additionally, the project includes parking lot updates and adding public art options in the front of the building. •Current Status – An RFP for a construction contract is currently out for bid. •Next Steps – Staff anticipates bringing a construction contract for Council to award in December 2024. Construction is anticipated to be completed in February 2026.
City Services
Graffiti Abatement and Clean-Up Program (All Wards)
This program is administered by the City to mitigate unsightly graffiti citywide and cleaning dump sites throughout the City. The program also supports paint supplies to a volunteer artist to paint utility boxes, benches, and murals in areas that were previously regularly tagged with graffiti. The Final Rule provided by Teasury specifically allows this use of ARPA funds as a method to improve the neighborhoods in which small businesses operate and attract new small business owners. •Current Status – The program is currently in operation and will run through the end of the period of performance on December 31, 2026.
•Next Steps – An Inter-agency agreement will need to be executed to formally obligate the funds as the program is being administered directly by the City.
Façade Improvements (Paintbrush Program) (All Wards)
The ”Paintbrush Program” focuses on facade improvement support to businesses operating within qualified census tracts throughout the City to enhance economic opportunities within the small business community and to encourage additional investment in the City’s commercial corridors. The Program will help create a pedestrian-friendly, aesthetically pleasing environment for residents, visitors, and tourists, and may also create substantial economic benefits for merchants and property owners as a result of increased interest and activity. The investment will increase the competitive advantage of operating a business in the city of San Bernardino. •Current Status – Applications for the program opened on August 26, 2024 and funds are expected to be exhausted in early 2025.
•Next Steps – An Inter-agency agreement will need to be executed to formally obligate the funds as the program is being administered directly by the City.
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Violence Intervention Program (All Wards)
This is an evidence-based program that works to provide culturally competent service delivery, in community-based, hospital-based, and school-based intervention services, to reduce gang violence, recidivism, and provide supportive services to individuals and families that are affected by gang violence. A wide range of services are provided including crisis response, conflict mediation and resolution, customized case management, mentoring and connections to educational and workforce development.
ARPA funds for this program are also used to leverage Cal VIP state grant funds.
Treasury guidelines allow for ARPA funds to be used to match state grant funds that enable the funding to go further for greater impact on the community. •Current Status – 75% of funds are obligated and the non-profit service providers continue to deliver violence intervention services.
•Next Steps - A plan to bring an item to Council for approval of the remaining allocation in November 2024.
Infrastructure
Street Improvements (All Wards)
This project was identified as an ARPA-eligible project to repair and rehab various streets throughout the City. At the time of award, specific streets needed to be identified and brought back to Council for approval.
•Current Status – Public Works has identified that these funds are no longer needed.
•Next Steps – Staff will bring a recommendation to the Mayor and City Council to reallocate these ARPA funds in November of 2024.
Water Infrastructure Lead Connectors
ARPA guidelines identify water projects as an allowable investment on projects such as water, sewer, and storm drainage infrastructure. The San Bernardino Municipal Water District (SBMWD) identified a number of lateral service line connectors that were installed in the Muscoy area during a time when materials used contained lead. San Anselmo was also suspected but after testing it was determined there was none, decreasing the amount of funding needed to complete the project. •Current Status - The procurement process was recently completed, and this project is scheduled for obligation in October 2024.
•Next Steps – An item to decrease the allocation amount for this project at a future Council meeting prior to December 31, 2024. Also, an Inter-agency agreement will need to be executed to formally obligate the funds for this program to the Water Department.
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Homelessness Initiatives
Treasury guidelines for the use of ARPA funds allow projects and initiatives to address public health and negative economic impacts eligible use category also includes emergency assistance for individuals experiencing homelessness, either individual- level assistance (e.g., rapid rehousing services) or assistance for groups of individuals.
Lutheran Social Services Community Wellness Center Homekey Project (All Wards) A 140-unit non-congregate housing, including 20 supportive housing units. The original allocation of ARPA funds for this project was intended to support the construction of the center however this project received $35M in HomeKey grant funds that will cover the cost of construction.
•Current Status - 100% of funds are obligated.
•Next Steps - A request for Council to reallocate the funds from construction to operations expenses is slated for a future Council meeting in November 2024.
Motel Voucher Program (All Wards)
The goal of this program is to provide a short-term strategy for serving the unhoused while the Navigation Center is under construction and during the process of encampment clean-ups throughout the City.
•Current Status - This program is paused.
•Next Steps - In anticipation of the injunction being lifted within the next few weeks, and encampment clean-up work resuming, staff can revisit issuing motel vouchers to any unhoused individuals needing relocation assistance.
Navigation Center Construction (All Wards)
The H.O.P.E Campus is a homeless shelter and navigation center with congregate and non-congregate facilities containing approximately 200 shelter beds, administrative offices and a commercial kitchen, laundry facilities and other related amenities. •Current Status – An RFP will be released in mid-September. •Next Steps – Staff anticipates bringing a contract for Council to award in November 2024. The construction of the facility is planned for completion in the fall of 2025.
Navigation Center Operations (All Wards)
This allocation is to support the costs associated with operating the Navigation Center through the remainder of the ARPA period of performance, December 31, 2026. •Current Status – Details on anticipated operation expenditures are being worked on simultaneously with the efforts for constructing the project site. •Next Steps – A request to Council to reallocate the funds from operations to
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construction expenses is slated for a future Council meeting in November 2024.
Homelessness Outreach Team (All Wards)
Hope The Mission is contracted by the City to provide outreach services to the unhoused population through the community. Services offered include supportive substance use disorder, mental health, and supplies that include food, water, hygiene kits, and clothing. The Outreach Team operates 7 days a week. •Current Status – 100% of funds are obligated.
•Next Steps – No additional action is needed at this time.
Mobile Showers & Laundry Services (All Wards)
Community Action Partnership is contracted by the City to operate a one-year Mobile Shower Project. Utilizing a 28 feet long mobile shower unit equipped with three (3) full- service restrooms, one of which is ADA accessible. The trailer also has an adjacent laundry area that contains two (2) washers and two (2) dryers allowing unhoused residents the ability to wash their clothing. The mobile shower and laundry unit operates two (2) times a week, each event lasting approximately 6 hours. The mobile shower unit will rotate through 4 different locations throughout the City to serve as many unhoused individuals as possible.
•Current Status – 100% of funds are obligated.
•Next Steps – No additional action is needed at this time.
Temporary Housing for ASU Residents (Ward 1)
Emergency response efforts to address individuals living in an unsafe condemned building, the City assisted 51 individuals/families through this Relocation Assistance Program, providing financial assistance in the amount of $1,500 per person/household. •Current Status – 100% of funds are obligated and expensed. •Next Steps – No additional action is needed at this time.
Emergency Nuisance & Building Health & Safety Abatement (All Wards) To mitigate imminent health and safety issues, properties identified throughout the City and deemed as ”red-tag,” or unsafe, the City will use a multi-departmental task force through this program to target such properties. Mitigation efforts includes securing the property or building with metal or wood fabrication to deter any potential for illegal occupancy.
•Current Status – 90% of funds have been expensed.
•Next Steps – No additional action is needed at this time.
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IT Infrastructure
Enterprise Resource Planning System
Utilizing the standard allowance in ARPA funds to replace the Enterprise Resource Planning (ERP) system. These necessary upgrades are needed to provide improved customer services with up-to-date permitting, planning, and financial systems and accompanying information technology equipment.
•Current Status – This project is funded through the $10M standard allowance in ARPA funds and can be utilized for government services. •Next steps – A request to Council to reallocate any anticipated funds no longer needed for this project is slated for a future Council meeting in November 2024.
Staff Salaries
Hero Pay
ARPA funding may be used to restore and support public sector employment. Eligible uses include providing worker retention incentives. Council approved a one-time $5,000 stipend to approximately 1,029 full-time and part-time staff in city departments, include the water department who were on staff within the period of time from the start of the pandemic through the date of Council action. The funds were disbursed and fully expended in September 2023.
•Current Status – 100% of funds are obligated and expended. •Next Steps – No additional action is needed at this time. 2021-2025 Strategic Targets and Goals
Investments in the community using the American Rescue Plan funds support Key Strategic Goal 2. Focused, Aligned Leadership and Unified Community, b. Evaluate operations and performance, investment in resources, technology, and tools to continually improve organizational efficiency and effectiveness; and Goal 3. Improved Quality of Life.
Fiscal Impact
There is no fiscal impact associated with receiving and filing a City of San Bernardino American Rescue Plan Act Update, or authorizing the City Manager to executed ARPA Inter-Agency agreements for previously City Council approved ARPA projects.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Receive and file an update on City of San Bernardino American Rescue Plan Act (ARPA) projects, allocations, and spending to date; and
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2. Authorize the City Manager to formally obligate ARPA funds for City led projects per U.S Department of Treasury Guidelines, by executing Inter-Agency agreements for previously City Council approved ARPA projects; and
3. Provide staff direction on any unassigned ARPA funds.
Attachments
Attachment 1 - San Bernardino Inter-Agency ARPA Agreement Template Ward:
All Wards
Synopsis of Previous Council Actions:
July 19, 2023 Mayor and City Council received and filed an update on ARPA funds, and adopted Resolution No. 2023-107
assigning $10,000,000 in American Rescue Plan Act
funds for the replacement of the City’s Enterprise
Resource Planning System, and amending the FY
2022/23-2024/24 Biennial Budget by $10,000,000.
May 17, 2023 Mayor and City Council reallocated unspent funding from the ASU Temporary Housing and the full
allocation from the San Bernardino Valley College for
a total of $973,500 for interim housing during
development of the SB Hope Campus
December 7, 2022 Mayor and City Council Adopted Resolution No. 2022- 26 Amending the FY 2021/22 Operating and Capital
Budget allocating $24,650,000 in ARPA funds
February 2, 2022 Mayor and City Council Adopted Resolution No. 2022- 26 Amending the FY 2021/22 Operating and Capital
Budget allocating $24,050,000 in ARPA funds
October 20, 2021 Mayor and City Council Adopted Resolution No. 2021- 247 Amending the FY 2021/22 Operating and Capital
Budget allocating $8,160,000 in ARPA funds
August 4, 2021 Mayor and City Council received a report and discussed the categories for spending the City’s
American Rescue Plan Allocation
March 17, 2021 Mayor and City Council received a presentation on the American Rescue Plan from Congressman Pete
Aguilar
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INTER-AGENCY AGREEMENT
BETWEEN
THE GRANTS DIVISION
AND
[***INSERT DEPARTMENT***]
THIS INTER-AGENCY AGREEMENT (“Agreement”) is made between two departments of the City of San Bernardino, a municipal corporation and charter city (“City”), namely the Grants Division of the Office of the City Manager (“Grants Division”) and the [***INSERT DEPARTMENT NAME***] (“Department”). The Grants Division and the Department may be individually referred to as “Party” and collectively as the “Parties”.
RECITALS
WHEREAS, the 2021 American Rescue Plan Act (“ARPA”) provided $77.6 million to the City from the Coronavirus State and Local Recovery Fund (“SLFRF”), which consists of the Coronavirus State Fiscal Recovery Fund (“CSFRF”) and Coronavirus Local Fiscal Recovery Fund (“CLFRF”) (hereinafter, collectively, called “ARPA funding”); WHEREAS, the U.S. Department of Treasury is the federal agency that administers the ARPA funding and has provided the City with the ARPA funding conditional on the City complying with its rules and regulations;
WHEREAS, the City has established a process for City departments to apply for ARPA funding;
WHEREAS, the Grants Division has administered the process for ARPA funding and recommends the Department receive ARPA funding for its program as described in this Agreement;
WHEREAS, the Grants Division and the Department wish to enter into this Agreement to memorialize each other’s responsibilities in regard to the ARPA funding for the program; and NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
AGREEMENT
A. PURPOSE
The Grants Division hereby agrees to provide ARPA funding, in the amount set forth herein, to the Department to facilitate the implementation of the program.
B. SCOPE OF PROGRAM
Department shall implement the program, including any milestones and deliverables, as described in Exhibit 1, which is appended hereto and made a part of this Agreement.
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C. TERM
The term of this Agreement shall begin on [***INSERT START DATE***] and end on December 31, 2026 unless terminated earlier in accordance with this Agreement.
D. FINANCIAL AND PERFORMANCE REQUIREMENTS
1.Funding. Subject to the availability of ARPA funding, the Grants Division shall provide funds to the Department for the program, in an amount not to exceed [***INSERT DOLLAR AMOUNT ($ .00)***] for the term. Any expenses/costs incurred by Department in excess of this amount shall be the sole responsibility of Department.
2.Budget. Department agrees that all expenditures are to be in accordance with the approved budget for the term of this Agreement. The approved budget is part of the proposal at Exhibit 1.
3. Payment. The City shall make ARPA funding as specified in this Agreement available for use. The ARPA funding shall be used to provide the services described in this Agreement and in Exhibit 1. The Department shall comply with the ARPA funding requirements listed at Exhibits 2 and 3. Any ARPA funding advanced to Department prior to the execution of this Agreement which is related to this Agreement is subject to the terms and conditions of this Agreement.
4. Reporting. The Department agrees to provide supporting documents and corresponding reports as requested by the U.S. Department of the Treasury and the Grants Division to meet any reporting deadlines. The Department shall adhere to the instructions and format, including specific forms required by the Grants Division and the U.S Department of Treasury for the ARPA funding.
Reporting terms and conditions are provided in Exhibit 4.
5. Audits. The Department shall comply with all applicable provisions of the federal Uniform Guidance (2 CFR 200), including the Cost Principles and Single Audit Act requirements.
At any time during business hours and as often as the City, State, or Federal agencies may deem necessary, there shall be made available to the government agency for examination, the Department’s records with respect to matters covered by this Agreement. The Department shall permit the City, State, or Federal agencies to audit, examine, and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, records of personnel, conditions of employment and other data relating to matters covered by this Agreement.
6. Records. The Department shall retain records related to this Agreement for a period of five (5) years after all funds have been expended or returned to the U.S. Department of Treasury, whichever is later.
7. Performance Management. The Department shall collect performance data from subrecipients and grantees, as applicable, to measure progress towards achieving each grant’s specific goals and objectives. The Department is required to establish performance reporting deadlines for subrecipients and grantees, as applicable, that match the reporting deadlines established in this Agreement (Exhibit 4). For example, if the Department reports to the Grants
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Division monthly, then the Department is expected to collect performance data on a monthly basis.
The Department should document the methodology for collecting and calculating performance data and use performance reports from subrecipients and grantees, as applicable, as the basis for monitoring, corrective action, and overall grant management.
8. Subrecipient and Grantee Monitoring. The Department shall conduct regular, consistent, and documented monitoring and oversight activities with subrecipients and grantees, as applicable, to ensure compliance with standards and progress towards each grant’s specific goals and objectives. The results of those activities should be used to correct deficiencies and provide technical assistance to subrecipients and grantees, as necessary and applicable. Monitoring activities may include on-sight visits, staff interviews, review of program documentation, review of internal controls, including financial systems, risk assessments, and other related activities. The type and frequency of monitoring activities must be based on a documented risk assessment and modified, as necessary, over each grant’s performance period based on documented performance and compliance.
E. CORRECTIVE ACTION AND TERMINATION
1. Corrective Action. Upon written notice, the Grants Division may require the Department to take corrective action so the Department is in compliance with federal, state, or local laws, regulations, or rules related to the ARPA funding for the program. Corrective action may be required for but is not limited to instances in which the Department: (a) fails to file a report, (b) fails to meet performance standards, (c) fails to meet milestones or timelines, or (d) misuses funds. The Grants Division may require corrective action of the Department, including but not be limited to: (a) a written warning, (b) additional technical assistance, (c) additional monitoring, (d) program suspension, and (e) reduction/repayment of funding.
2. Termination. Either party may terminate this Agreement by giving to the other party written notification prior to termination. Upon termination, the parties hereto agree that all reports and supporting documentation required for services rendered pursuant to this Agreement shall be provided to the Grants Division forthwith. Any funds advanced to the Department for services not yet rendered shall be returned to the Grants Division immediately.
F. MODIFICATIONS AND AMENDMENTS
The Department may submit a written request to the Grants Division asking for (i) an extension to the term of this Agreement; and/or (ii) a budget reallocation not to exceed twenty-five (25) percent of the ARPA funding. The request should include an explanation for why an extension and/or program budget reallocation is needed and be provided to the Grants Division at least sixty (60) days prior to the expiration date of this Agreement. The request must include all required documentation to justify the need for an extension and/or reallocation. The Grants Division will approve or deny the request in writing. The Department may not expend the ARPA funding under a reallocated program budget until such time they have received written approval from the Grants Division.
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G. GENERAL PROVISIONS AND CONDITIONS
1.Compliance with Laws. The Parties shall comply with all federal, state, and local laws, ordinances, rules, regulations, interim expenditure and annual report requirements, and applicable codes of ethics, pertaining to or regulating the services to be performed pursuant to this Agreement, including those now in effect and hereafter adopted. Any violation of such laws, ordinances, rules, regulations, or applicable codes of ethics by the Department shall constitute a material breach of this Agreement and shall entitle the Grants Division to terminate this Agreement immediately upon delivery of written notice of termination to the Department.
2.Nondiscrimination. The Parties shall operate under this Agreement so that no person, otherwise qualified, is denied employment or other benefits on the grounds of race, color, sex, religion, national origin, ancestry, age, physical or mental disability or sexual orientation except where a particular occupation or position reasonably requires consideration of these attributes as an essential qualification for the position. The Department shall post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this non-discrimination clause.
3. No Duplication of Funding. The Department shall not use different sources of federal funding to pay for the same services. The Department shall not use ARPA funding to pay for the same work that was reimbursed or paid by other sources of funding (e.g., FEMA or CARES funding).
4.Governing Law and Venue. This Agreement shall be construed by and governed under the laws of the State of California and subject to the jurisdiction of a court of competent jurisdiction in San Bernardino County.
5.No Assignment. This Agreement shall not be assigned by the Department to another party without the prior written approval of the Grants Division. This Agreement shall be binding upon the parties hereto and their successors and assigns.
6.Notice. Any notice required or permitted under this Agreement shall be in writing, be delivered by a reasonable and verifiable means (e.g., in person, mail, or e-mail) and be considered delivered upon receipt of the other party.
FOR THE GRANTS DIVISION:
Mary Alvarez-Gomez, Grants Division Manager
Office of the City Manager, Grants Division
290 North D Street
San Bernardino, CA 92401
[email protected]
FOR DEPARTMENT:
[***INSERT ADDRESS***]
7.Headings. Any heading of the paragraphs in this Agreement is inserted for convenience and reference only and shall be disregarded in construing and/or interpreting this Agreement.
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8. Incorporation. The recitals and exhibits are hereby incorporated as part of this Agreement.
9. Final Agreement. This Agreement constitutes the entire, full, and final understanding between the parties hereto and neither party shall be bound by any representations, statements, promises or agreements not expressly set forth herein.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURE PAGE TO
INTER-AGENCY AGREEMENT
BETWEEN
THE GRANTS DIVISION
AND
[***INSERT DEPARTMENT***]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF SAN BERNARDINO
GRANTS DIVISION OF THE OFFICE OF
THE CITY MANAGER
APPROVED BY:
Rochelle Clayton, Acting City Manager
CITY OF SAN BERNARDINO
[***INSERT DEPARTMENT***]
APPROVED BY:
[***INSERT DEPARTMENT HEAD***]
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EXHIBIT 1
SCOPE OF SERVICES AND BUDGET
1. The Department will implement the program in accordance with its proposal, as approved by the Grants Division, which is attached hereto and incorporated herein.
2. The Department’s implementation of the program may include but not be limited to contracting with subrecipients, grantees, or contractors, providing programmatic monitoring and oversight of subrecipients or grantees, as applicable, providing budget oversight, drafting reports, and overseeing program evaluation.
3. The Department supported by the Grants Division will provide grant management, fiscal, and programmatic oversight for the subrecipients or grantees, as applicable.
4. The Department will work with subrecipients, grantees, and contractors to track program outcomes and will provide draft program reports to the Grants Division as requested.
Information from the reports will be summarized and sent to the U.S. Department of Treasury by the Grants Division.
5. The Department will receive invoices from subrecipients, grantees, and contractors, track expenditures, and complete draft fiscal reports for submission to the Grants Division.
6. The Department supported by the Grants Division will provide technical assistance and operational support to subrecipients or grantees, as needed.
7. The Department shall follow the instructions of the Grants Division related to compliance with ARPA funding requirements.
[ATTACH PROPOSAL SCOPE OF WORK AND LINE-ITEM BUDGET APPROVED BY THE GRANTS DIVISION BEHIND THIS PAGE]
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EXHIBIT 2
FUNDING SOURCE IDENTIFICATION
Source of Funding: Federal
Name of Awarding
Agency:
U.S. Department of Treasury
Award Title: American Rescue Plan Act (“ARPA”) – Coronavirus State Fiscal Recovery Fund and Coronavirus Local Fiscal Recovery Fund, which together make up the Coronavirus State and Local Fiscal Recovery Funds
Assistance Listing
Number:
21.027
City Award Identification
Number:
SLT-1008
Term of Award:
Award Amount: $_____________________
1. Department acknowledges that the funding of this Agreement is from federal, state, and/or City funds. The identification of the source of funding is indicated above. As applicable, Department shall comply with the requirements of the funding source, including but not limited to the terms and conditions of the notice of grant award, statutes and regulations, and manuals.
Specific requirements of the funding source are incorporated herein, which include but are not limited to the following:
•Sections 602 and 603 of the Social Security Act, as added by Section 9901 of ARPA; •Coronavirus State and Local Fiscal Recovery Funds Guidance on Recipient Compliance and Reporting Responsibilities, the most current version; • “Treasury’s Portal for Recipient Reporting State and Local Fiscal Recovery Funds, the most current version;
•Coronavirus State and Local Fiscal Recovery Funds Final Rule, codified at 31 CFR Part 35 and effective April 1, 2022;
•Coronavirus State and Local Fiscal Recovery Funds Frequently Asked Questions, the most current version;
•2 C.F.R. Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, other than such provisions as the Treasury may determine are inapplicable to the ARPA funding and subject to such exceptions as may be otherwise provided by the Treasury; and
•U.S. Department of the Treasury Coronavirus State and Local Fiscal Recovery Fund Award Terms and Conditions attached hereto as Exhibit 3. The term “Recipient” in the foregoing shall mean the Department.
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2. With respect to any conflict between the funding source requirements, this Exhibit, the terms of this Agreement or the provisions of state law, and except as otherwise required under federal law or regulation, the more stringent requirement shall control and shall amend the Agreement to the extent, and only to the extent, of the conflict.
3. Department agrees to accept any additional conditions governing the use of funds or performance of programs as may be required by executive order, federal, state, or local statute, ordinance, rule, or regulation or by policy announced by the City.
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EXHIBIT 3
AWARD TERMS AND CONDITIONS
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EXHIBIT 4
REPORTING TERMS AND CONDITIONS
The Department shall submit performance reports about the activities funded under this Agreement. Reports shall provide the necessary information by using the procedures established by the Grants Division for that purpose. The Grants Division will meet with the Department on quarterly basis to discuss performance, unless otherwise determined.
Performance Reports
All monthly reports of finances, expenditures, and performance measures on ARPA-funded projects should be submitted to the Grants Division by the second Friday of each calendar month. Every month, the Department will provide a narrative report on all project activities. Reporting frequency subject to change.
Reporting deadlines prior to the approval of the agreement by the Board of Estimates do not apply.
Reporting deadlines after the end of the award term do not apply.
Calendar
Year
Period of Activity
Monthly Report
Due Date
2024 October 1, 2024 – October 31, 2024 November 8, 2024 2024 November 1, 2024 – November 30, 2024 December 13, 2024 2024 December 1, 2024 – December 31, 2024 January 10, 2025 2025 January 1, 2025 – January 31, 2025 February 14, 2025 2025 February 1, 2025 – February 28, 2025 March 14, 2025 2025 March 1, 2025 – March 31, 2025 April 11, 2025
2025 April 1, 2025 – April 30, 2025 May 9, 2025
2025 May 1, 2025 – May 31, 2025 June 13, 2025
2025 June 1, 2025 – June 30, 2025 July 11, 2025
2025 July 1, 2025 – July 31, 2025 August 15, 2025
2025 August 1, 2025 – August 31, 2025 September 12, 2025 2025 September 1, 2025 – September 30, 2025 October 10, 2025 2025 October 1, 2025 – October 31, 2025 November 14, 2025 2025 November 1, 2025 – November 30, 2025 December 12, 2025 2026 December 1, 2025 – December 31, 2025 January 9, 2026 2026 January 1, 2026 – January 31, 2026 February 13, 2026 2026 February 1, 2026 – February 28, 2026 March 13, 2026 2026 March 1, 2026 – March 31, 2026 April 10, 2026
2026 April 1, 2026 – April 30, 2026 May 8, 2026
2026 May 1, 2026 – May 31, 2026 June 12, 2026
2026 June 1, 2026 – June 30, 2026 July 10, 2026
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2026 July 1, 2026 – July 31, 2026 August 14, 2026
2026 August 1, 2026 – August 31, 2026 September 11, 2026 2026 September 1, 2026 – September 30, 2026 October 9, 2026 2026 October 1, 2026 – October 31, 2026 November 13, 2026 2026 November 1, 2026 – November 30, 2026 December 11, 2026 2027 December 1, 2026 – December 31, 2026 January 8, 2027
* Deadline modified due to a holiday on the second Friday of the month.
Expenditure Category: [LIST EXPENDITURE CATEGORY]
Performance reports shall provide the following information: [LIST PERFORMANCE MEASURES]
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