REQUEST FOR PROPOSALS FOR COMPREHENSIVE
INDEPENDENT POLICE AUDITOR
RFP NO. 59548
RFP Issue Date:
May 4, 2022
Proposal Submittal Due:
5:00 PM, Friday, May 27, 2022
City Manager’s Office, San Leandro City Hall,
835 E. 14th Street, San Leandro, CA 94577
RFP No. 59548 Page 2 of 40
TABLE OF CONTENTS
I. INTRODUCTION....................................................................................................... 3 II. BACKGROUND ......................................................................................................... 3 III. PROJECT OVERVIEW AND OBJECTIVES .......Error! Bookmark not defined.
IV. SCOPE OF SERVICES.............................................................................................. 4 V. PROPOSAL REQUIREMENTS............................................................................... 7 VI. SUBMITTAL REQUIREMENTS............................................................................. 8 VII. ESTIMATED SCHEDULE ....................................................................................... 9 VIII. EVALUATION OF PROPOSALS............................................................................ 9 IX. DELIVERABLES REQUIRED OF SELECTED CONSULTANT..................... 10 X. CONDITIONS ........................................................................................................... 10 Attachment A – Consulting Services Agreement
Attachment B – Living Wage Guidelines and Frequently Asked Questions (FAQs) Attachment C – Living Wage Self Verification Form
Attachment D – Community Police Review Board Ordinance
RFP No. 59548 Page 3 of 40
REQUEST FOR PROPOSALS FOR
INDEPENDENT POLICE AUDITOR
I. INTRODUCTION
The City of San Leandro (City) serves a diverse community of approximately 91,000 residents located in the East Bay of the San Francisco Bay Area, located between Oakland to the northwest and Ashland to the southeast.
The City is seeking the services of a qualified firm or individual to serve as the Independent Police Auditor (IPA) to audit critical incidents, complaints, policies, procedures, trainings and to potentially conduct independent investigations of the San Leandro Police Department (SLPD).
The IPA will be an independent contract position reporting directly to the City Manager. It was created by an ordinance adopted by the City Council on April 3, 2022, where the City Council also created a 9-member Community Police Review Board (the “Board”).
II. BACKGROUND
The IPA will be an independent contract position reporting directly to the City Manager. It was created by an ordinance adopted by the City Council on April 3, 2022, where the City Council also created a 9-member Community Police Review Board (the “Board”). The Board’s membership will include two (2) student members between the ages of eighteen (18) and twenty (22), one (1) member from each of the six (6) Council Member Districts and an at large member appointed by the Mayor. The IPA will work with the Board to create a cohesive partnership that focuses on evaluating complaints, concerns about policing, and to examine police policy.
The Board’s functions include:
1. Receive community feedback and complaints, and refer them for further review, as appropriate, to the IPA or the internal affairs function of the police department.
2. Receive reports from the IPA regarding personnel discipline and complaints, critical incidents, police department policies, and other law enforcement matters.
3. Evaluate police department policies of compelling community-wide concern based on trends and data, as deemed necessary by a majority of the CPRB.
4. Make recommendations to the City Manager on the job requirements, application process, and evaluation criteria of candidates for the Chief of Police.
5. Create and implement an annual work plan that consists of a community outreach plan to assure all members of the community have an opportunity to share concerns about policing.
The City is currently accepting applications for membership to the newly established Board.
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III. Minimum Qualifications of the Independent Police Auditor Subject to the discretion and judgment of the City Manager, the IPA shall at a minimum have professional experience, certifications, and other qualifications specifically related to law enforcement agency personnel investigations, and California law related to the Public Safety Officer’s Procedural Bill of Rights Act (California Government Code Section 3300 et seq., also known as “POBOR”).
Before appointment, the IPA shall be subject to a full background check, confidentiality oath or agreement, and training on access to SLPD personnel investigations and records.
IV. SCOPE OF SERVICES
The following scope of work is intended to cover the range of tasks the IPA may address over the course of the contract with the understanding that the amount of time spent on any one task may vary over time.
1. Serve as the law enforcement subject matter expert to the Board. a. Attend all monthly Board meetings.
b. Assist the Board with the preparation of their annual report including workplan. c. Provide training to the Board including but not exclusive to:
i. Public Records Act requirements
ii. Public Safety Officer Procedural Bill of Rights
iii. Internal Affairs Investigation
iv. Officer Involved Shootings Investigation
2. Review of SLPD Cases
a. Internal Affairs Investigations:
i. IPA will review all Department Internal Affairs investigations involving complaints against police officers that allege excessive or unnecessary force,
ii. IPA will review some or all other Department Internal Affairs investigations, including internally initiated allegations of misconduct, against police officers to determine if the investigation was complete, thorough, objective, and fair.
iii. IPA may attend Internal Affairs interviews of any civilian witness/complainant. The IPA may ask questions directly of civilians at the end of the interview in a manner that will not disrupt the timeliness or violate POBOR.
iv. IPA shall make a request, in writing, to the Police Chief for further investigation whenever the IPA concludes that further investigation is warranted.
v. Unless the IPA receives a satisfactory written response from the Police Chief, IPA may make a request in writing to the City Manager for further investigation.
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b. Officer-Involved Shootings - IPA will review each Department investigation of any officer- involved shooting (regardless of whether a person was injured) to determine if the investigation was complete, thorough, objective, and fair. c. Citizen Complaints – IPA may recommend to the Police Chief that an independent investigation of a citizen complaint involving allegations of excessive force or violation of civil rights be conducted. The IPA may interview any civilian witnesses or complainants in the course of the IPA’s review of the investigation into any citizen complaint.
d. Other review parameters:
i. At the discretion of the IPA, the IPA may attend interviews of complainants, public witnesses, and sworn officers.
ii. The IPA may ask questions directly (civilians) or through the lead investigator (police personnel), in a manner that will not disrupt the timeliness or violate POBOR.
iii. The IPA will have full access to completed complaint investigation files; all evidence related to the issue, reports (as allowed by state law), analysis, proposed findings, and any proposed discipline.
iv. The IPA will provide evaluations as to whether an investigation is complete, thorough, and objective and/or an explanation if more investigation or a change in finding is recommended.
v. The IPA will document any recommendations on policy, procedures, or training that arise from a complaint investigation.
vi. If an external investigator is used, the IPA will provide input into the scope of work of the investigator.
3. Receipt of Cases
a. The SLPD and IPA will jointly prepare a documented process that sends notice to the IPA of all complaints, classification of complaints and assigned investigator. b. The IPA shall have a publicly noticed email and phone number to receive complaints directly and will refer them to the SLPD for investigation. c. In order to monitor cases and coordinate interviews as needed, the IPA will receive updates from SLPD Internal Affairs regarding cases and investigations.
4. Notice of Death, Serious Injury, or Other Critical Incidents:
The IPA will receive timely notification of critical incidents with the ability to observe the scene at the IPA’s discretion. Critical incidents include:
a. Officer-involved shootings, regardless of whether a person was injured; b. A traffic collision involving police officers that result in death or serious bodily injury to another person;
c. A use of force resulting in death or serious bodily injury per California definition (injuries requiring hospitalization for an overnight stay) to another person; or d. All deaths while an arrestee/detainee is in the custodial care of the police department.
RFP No. 59548 Page 6 of 40
5. Audit SLPD Misconduct Complaint and Discipline Process a. The IPA will have access to the SLPD complaint database and regularly assess issues such as the nature of complaints, how complaints are classified, and whether investigation timelines are met.
b. The IPA will have access to SLPD personnel and discipline records and will assess the discipline system for fairness and appropriate levels of discipline.
6. Audit SLPD Policies, Procedures, and Training:
The IPA will audit SLPD policies, procedures, and training. The following nonexhaustive list of issues is indicative of what may be done:
a. Progress on meeting SLPD Strategic Plan goals – including in particular, goals with regards to training on procedural justice, the Guardian mindset, implicit/unconscious bias, and de-escalation;
b. Progress on SLPD compliance with CA Racial and Identity Profiling Act of 2015 (RIPA) requirements, including SLPD stop data using SLPD data reported under RIPA and other appropriate sources;
c. SLPD enforcement actions with regards to bias;
d. Individual use of force investigations, including Taser usage, and use of force aggregate data;
e. Body camera usage by officers and review by supervisors as compared to professional standards.
7. Recommend Changes/Improvements to Policy, Procedure, or Training a. The IPA will review SLPD existing policies and procedures and evaluate new or changed SLPD policies.
b. The IPA will review SLPD training.
c. Make written recommendations to the Police Chief for improvements or changes to SLPD policy, procedure, or training.
8. Produce Reports
a. Regarding reviews conducted:
i. The IPA shall provide evaluations of cases to the Board, with a copy provided to the City Manager and Police Chief.
ii. At least annually, the IPA shall review the IPA’s case evaluations with the City Council.
b. IPA will publish public reports, at least on an annual basis, to include:
information about misconduct complaint investigations and trends; recommendations concerning improvements to SLPD policy, procedures, and/or training; results of audits. The IPA may be requested to present reports to the City Manager and City Council.
9. Conduct Independent Investigations
In cases in which the IPA deems an investigation insufficient or the SLPD does not open an investigation, and recommendations for additional investigation are not heeded, after RFP No. 59548 Page 7 of 40
written notification to and concurrence from the City Manager and the City Attorney, the IPA may conduct an independent investigation.
V. Background Check Requirement
Only the IPA or IPA personnel who successfully pass the City required background check will be allowed to work on the City’s project(s) and within the City’s facilities. Background checks will be completed before the IPA is allowed facility and/or technology access. The City will be responsible for the payment of all fees associated with any background checks or fingerprinting. The IPA must be available to take City mandated, specialized training in order to work in certain City Departments that have access to criminal justice information. The City will be responsible for providing access to training for the IPA. The time of the IPA to participate in such training shall be billed at the standard pricing agreed upon as a result of this RFP.
VI. PROPOSAL REQUIREMENTS
Proposals shall include:
1. Scope of Services
a) A summary of the methodology to be used for the work specified in Section IV.
b) A discussion of the methods of management, quality control, and coordination that will be used to accomplish the work schedule for the tasks delineated in Section IV.
c) An estimate of the level of effort required (i.e. hours for each project component for each item of service or work).
2. Qualifications, including education, experience, certifications of key personnel who will be assigned to the project from start to finish, including subconsultants. Expertise applicable to the work specified in Section IV should be emphasized. Include the quantity, function and availability of personnel to be assigned to perform the work specified in Section IV including subconsultants.
3. Statement of past work performed on projects of a similar nature. Supply names of clients, client’s contact person and telephone number, type of projects, and description of prospective consultant’s activities. The City may contact the prospective consultant’s previous clients for additional information.
4. If applicable, provide names of entities associated with the proposer who may have a conflict of interest with the scope of services. Provide details and reasons. Proposers are subject to disqualification on the basis of conflict of interest as determined by the City.
5. A fee schedule for each job classification and subconsultant proposed.
6. A detailed statement explaining any provisions in Sections III, IV and/or V that the prospective consultant chooses not to address in the proposal RFP No. 59548 Page 8 of 40
7. Statement of Exceptions to the City standard Consulting Services Agreement, which is attached to this Request for Proposal as Attachment A. If no exceptions to the standard contract language are requested, a Statement of Exceptions should still be included as part of the proposal stating that no exceptions are needed.
Non-Collusion Affidavit
The Proposer declares, by signing and submitting a proposal, that the proposal is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the proposal is genuine and not collusive or sham; that the Proposer has not directly or indirectly induced or solicited any other proposer to put in a false or sham proposal, and has not directly or indirectly colluded, conspired, connived, or agreed with any proposer or anyone else to put in a sham proposal, or that anyone shall refrain from proposing; that the Proposer has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the proposal price of the Proposer or any other proposer, or to fix any overhead, profit, or cost element of the proposal price, or of that of any other proposer, or to secure any advantage against the City of anyone interested in the proposed contract; that all statements contained in the proposal are true; and, further, that the Proposer has not, directly or indirectly, submitted his or her proposal price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, proposal depository, or to any member or agent thereof to effectuate a collusive or sham proposal.
VII. SUBMITTAL REQUIREMENTS
Proposers shall submit Items 1-7 as stated in Section VI. - PROPOSAL REQUIREMENTS.
Proposer is required to indicate the Designated Contact in the proposal package. Include the designated contact individual’s name, address, phone number(s) and email address.
One original and three copies of the proposals shall be submitted, printed double-sided on recycled-content paper along with an electronic version in Adobe PDF format or similar open source file format. The original proposal must be clearly marked and contain original signatures and must be easily reproducible on a standard copying machine. The proposal shall be signed by an individual(s) authorized to execute legal documents on behalf of the Proposer.
Proposals must be received by the City of San Leandro Purchasing Office no later than 5:00 p.m. on Friday, May 27, 2022. Late proposals will not be considered under any circumstance. Mail or deliver proposals to:
City of San Leandro
Janelle Cameron
City Manager’s Office
835 E. 14th Street
San Leandro, CA 94577
(510) 577-3390 Voice
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Failure to provide all required submittals in completed form and/or a clearly marked original with original signatures may result in a proposal being found non-responsive and given no consideration. Proposals must be neat, complete, and fully address all information specified in Section VI.
For information concerning RFP questions, procedures and regulations (i.e., submission deadline, forms required, etc.) interested parties must contact the City’s Purchasing Agent. All questions shall be submitted via email.
CITY OF SAN LEANDRO
Sally Perez
Purchasing Technician
Email: [email protected]
VIII. ESTIMATED SCHEDULE
RFP Issue Date May 4, 2022
Deadline to Submit Questions for Q&A May 18, 2022
Proposal Submittal Due Date May 27, 2022
Firm Oral Presentation/Interviews June 2, 2022
Selection and Notification (Tentative) June 6, 2022
Award of Contract (Tentative) June 21, 2022
IX. EVALUATION OF PROPOSALS
Proposals must fully address the evaluation factors, contain complete technical submittals, references and data to verify qualifications and experience and include a statement that the City contract can be executed, listing any exceptions. Proposals without sufficient submittal data to provide a complete evaluation will be considered non-responsive. As part of the technical proposal, Consultants must evaluate the City’s proposal terms and conditions. Any exceptions taken to the proposal specifications and/or the City’s Consulting Services Agreement must be listed as a separate item as Exceptions to Specifications.
All proposals will be reviewed for compliance with specifications including documented capability to perform the prescribed work in a satisfactory manner. Proposals that appear to be compliant will be evaluated on a point system (0-100 points, with 100 being the best possible score) in accordance with the following:
Criterion Score
Does the proposal meet the minimum requirements to be
responsive (supplied all documentation required)?
Pass/Fail
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Does the proposal meet the minimum qualification requirements to be responsible (the documentation provided shows that the Proposer is capable of performing the work)?
Pass/Fail
Costs and Fee Schedule
The Proposer offering the lowest overall fee schedule (price) for the best value and the reasonableness of the total costs. 20 Points
Possible
Proposer Qualifications, Experience and References Proposer is qualified, responsible, and available, including its staff members, throughout the contract term; and company
profile and references (including experience and expertise of assigned team).
35 Points
Possible
Proposer’s Proposal to Provide the Scope of Services in Section IV.
Proposer’s ability to provide comprehensive, well organized and executable plans, means, and methods to deliver the Scope of Services in Section IV.
35 Points
Possible
Overall Quality of Proposal
Completeness of submitted documents and willingness to
accept the terms and conditions in the City’s standard
Agreement.
10 Points
Possible
Total 100 Points
Possible
The City reserves the unilateral right to amend this RFP in writing at any time. The City also reserves the right to cancel or reissue the RFP at its sole discretion. Additionally, the City may seek clarification or additional information from Proposers. All Proposers shall verify if any addendum for this project has been issued by the City and shall respond to the final written RFP and any exhibits, attachments and amendments. It is the Proposer’s responsibility to ensure that all requirements of contract addendum are included in their submittal. This RFP does not commit the City of San Leandro to sign an agreement, award a contract, or to pay any costs incurred in the preparation of a response to this RFP. All documents, conversations, correspondence, etc. with the City are subject to the laws and regulations that govern the City. All proposals submitted in response to this RFP become the property of the City and public records, and as such may be subject to public review.
The City reserves the right to reject any or all proposals and the right to waive minor irregularities in any proposals. Waiver of one irregularity does not constitute waiver of any other irregularities.
Because this proposal is negotiable, all pricing data will remain confidential until after award is made, and there will be no public opening and reading of proposals.
X. DELIVERABLES REQUIRED OF SELECTED CONSULTANT
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The selected Consultant(s) shall enter into a Consulting Services Agreement with the City of San Leandro and submit the following items within ten (10) days of notice of award:
1. City of San Leandro business license; to be maintained throughout length of contract.
2. Copy of Certificate(s) of Insurance and endorsements in compliance with the requirements of Section 4. of Attachment A- Consulting Services Agreement and naming the City of San Leandro as an additional insured.
3. Completed IRS W-9 tax form
4. Self-verification form which shows compliance with the City of San Leandro Living Wage Ordinance
XI. CONDITIONS
Permits and Codes
The selected Consultant shall comply with all laws, codes, rules and regulations of the State, County, and City, applicable to the work to be performed at the City’s location(s). The Consultant, who shall pay all lawful charges, shall obtain all permits lawfully required.
City of San Leandro Living Wage Ordinance
San Leandro Municipal Code Title 1, Chapter 6, San Leandro's Living Wage Ordinance (LWO), provides that Consultants who engage in a specified amount of business with the City (except where specifically exempted) under contracts which furnish services to or for the City during the City's fiscal year shall comply with all provisions of this ordinance. The LWO requires a City Consultant to provide City mandated minimum compensation to all eligible employees, as defined in the Ordinance. In order to determine whether this contract is subject to the terms of the LWO, the selected Consultant must submit a completed self-verification form. Please note that the LWO applies to those contracts where the Consultant has achieved a cumulative dollar contracting amount with the City. Therefore, even if the LWO is inapplicable to this contract, change orders to this contract or the entering into of subsequent contracts may make them subject to compliance with the LWO. Furthermore, the contract may become subject to the LWO if the status of the Consultant's employees change (i.e. additional employees are hired) so that Consultant falls within the scope of the Ordinance.
Insurance Requirements
Requirements are incorporated in Section 4 of Attachment A, Consulting Services Agreement (CSA).
Attachment A - DRAFT
RFP No. 59548 Page 12 of 40
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF SAN LEANDRO AND
[NAME OF PROFESSIONAL CONSULTANT]
FOR
[NAME OF PROJECT]
THIS AGREEMENT for consulting services is made by and between the City of San Leandro (“City”) and __________________ (“Consultant”) (together sometimes referred to as the “Parties”) as of ____________, 20__ (the “Effective Date”).
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on _______________, the date of completion specified in Exhibit A, and Consultant shall complete the work described in Exhibit A on or before that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City’s right to terminate the Agreement, as referenced in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Subsection 1.2 above and to satisfy Consultant’s obligations hereunder.
1.5 Public Works Requirements. Because the services described in Exhibit A include “work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work,” the services constitute a public works within the definition of Section 1720(a)(1) of the California Labor Code. As a result, Consultant is required to comply with the provisions of the California Labor Code applicable to public works, to the extent set forth in Exhibit D.
1.6 City of San Leandro Living Wage Rates. This contract may be covered by the City of San Leandro Living Wage Ordinance (LWO). Bidder’s attention is directed to the San Attachment A - DRAFT
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Leandro Municipal Code, Title 1, Chapter 6, Article 6. Successful Bidder must submit completed self-certification form and comply with the LWO if covered.
1.7 Public Works Contractor Registration. Consultant agrees, in accordance with Section 1771.1 of the California Labor Code, that Consultant or any subconsultant 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 Chapter 1 of Part 7 of Division 2 of the California Labor Code, unless currently registered and qualified to perform public work pursuant to California Labor Code 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. No contractor or subcontractor may be awarded a contract for public work on a public works project unless registered with the Department of Industrial Relations pursuant to California Labor Code section 1725.5. Consultant agrees, in accordance with Section 1771.4 of the California Labor Code, that if the work under this Agreement qualifies as public work, it is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed ________________, notwithstanding any contrary indications that may be contained in Consultant’s proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant’s proposal, attached as Exhibit B, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement.
Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City in writing, Consultant shall not bill City for duplicate services performed by more than one person.
Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant’s estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the Parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:
▪ Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.; Attachment A - DRAFT
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▪ The beginning and ending dates of the billing period; ▪ A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion;
▪ At City’s option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense;
▪ The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder;
▪ The Consultant’s signature;
▪ Consultant shall give separate notice to the City when the total number of hours worked by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours within a 12-month period under this Agreement and any other agreement between Consultant and City. Such notice shall include an estimate of the time necessary to complete work described in Exhibit A and the estimate of time necessary to complete work under any other agreement between Consultant and City, if applicable.
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this Agreement within 60 days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactorily performed.
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment.
Attachment A - DRAFT
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2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the compensation schedule attached hereto as Exhibit B.
2.6 Reimbursable Expenses. Reimbursable expenses are specified in Exhibit B, and shall not exceed $_______________. Expenses not listed in Exhibit B are not chargeable to City. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein.
City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before fully executing this Agreement, Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work.
Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid or proposal. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence to City that such insurance is in Attachment A - DRAFT
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effect. VERIFICATION OF THE REQUIRED INSURANCE SHALL BE SUBMITTED AND MADE PART OF THIS AGREEMENT PRIOR TO EXECUTION. Consultant shall maintain all required insurance listed herein for the duration of this Agreement.
4.1 Workers’ Compensation.
4.1.1 General Requirements. Consultant shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than $1,000.000 per accident. In the alternative, Consultant may rely on a self-insurance program to meet these requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator.
The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the entity for all work performed by the Consultant, its employees, agents, and subcontractors.
4.1.2 Submittal Requirements. To comply with Subsection 4.1, Consultant shall submit the following:
a. Certificate of Liability Insurance in the amounts specified in the section; and
b. Waiver of Subrogation Endorsement as required by the section.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General Requirements. Consultant, at its own cost and expense, shall maintain commercial general liability insurance for the term of this Agreement in an amount not less than $1,000,000 and automobile liability insurance for the term of this Agreement in an amount not less than $1,000,000 per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non-owned automobiles.
Attachment A - DRAFT
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4.2.2 Minimum Scope of Coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an “occurrence” basis. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001, Code 1 (any auto). No endorsement shall be attached limiting the coverage.
4.2.3 Additional Requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. The Insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
b. City, its officers, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of work or operations performed by or on behalf of the Consultant; or automobiles owned, leased, hired, or borrowed by the Consultant.
c. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from vendor by virtue of the payment of any loss.
Consultant agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation.
d. For any claims related to this Agreement or the work hereunder, the Consultant’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
4.2.4 Submittal Requirements. To comply with Subsection 4.2, Consultant shall submit the following:
a. Certificate of Liability Insurance in the amounts specified in the section; b. Additional Insured Endorsement as required by the section; c. Waiver of Subrogation Endorsement as required by the section; and d. Primary Insurance Endorsement as required by the section.
4.3 Professional Liability Insurance.
4.3.1 General Requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount Attachment A - DRAFT
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not less than $1,000,000 covering the licensed professionals’ errors and omissions. Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 Claims-Made Limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at least 5 years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant shall purchase an extended period coverage for a minimum of 5 years after completion of work under this Agreement. d. A copy of the claim reporting requirements must be submitted to the City for review prior to the commencement of any work under this Agreement.
4.3.3 Additional Requirements. A certified endorsement to include contractual liability shall be included in the policy.
4.3.4 Submittal Requirements. To comply with Subsection 4.3, Consultant shall submit the Certificate of Liability Insurance in the amounts specified in the section.
4.4 All Policies Requirements.
4.4.1 Acceptability of Insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII.
4.4.2 Verification of Coverage. Prior to beginning any work under this Agreement, Consultant shall furnish City with complete copies of all Certificates of Liability Insurance delivered to Consultant by the insurer, including complete copies of all endorsements attached to the policies. All copies of Certificates of Liability Insurance and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. If the City does not receive the required insurance documents prior to the Consultant beginning work, it shall not waive the Consultant’s obligation to provide them. The City reserves the right to require complete copies of all required insurance policies at any time.
4.4.3 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Attachment A - DRAFT
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Agreement. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, employees, and volunteers; or the Consultant shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4.4.4 Wasting Policies. No policy required by this Section 4 shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense).
4.4.5 Endorsement Requirements. Each insurance policy required by Section 4 shall be endorsed to state that coverage shall not be canceled by either party, except after 30 days’ prior written notice has been provided to the City.
4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
4.5 Submittal of Proof of Insurance Coverage. All certificates of insurance and original endorsements effecting coverage required in this Section 4 must be electronically submitted through the City’s online insurance document management program, PINS Advantage. Contractor shall comply with all requirements provided by City related to the PINS Advantage program.
4.6 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
▪ Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
▪ Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or ▪ Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES. Refer to the attached Exhibit C, which is incorporated herein and made a part of this Agreement.
Section 6. STATUS OF CONSULTANT.
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6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.
6.2 Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws and regulations applicable to the performance of the work hereunder, including but not limited to, the California Building Code, the Americans with Disabilities Act, and any copyright, patent or trademark law. Consultant’s failure to comply with any law(s) or regulation(s) applicable to the performance of the work hereunder shall constitute a breach of contract.
7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program.
7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City.
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7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.
Consultant may cancel this Agreement upon _____________ days’ written notice to City and shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period.
8.3 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties.
8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant.
Consultant may not assign this Agreement or any interest therein without the prior written Attachment A - DRAFT
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approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but are not limited to, the following:
8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both Parties.
9.2 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement.
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9.3 Inspection and Audit of Records. Any records or documents that Subsection 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $10,000.00, the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of 3 years after final payment under the Agreement.
Section 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Alameda or in the United States District Court for the Northern District of California.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties.
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Section 1090 et seq.
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Consultant hereby warrants that it is not now, nor has it been in the previous 12 months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous 12 months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of California Government Code Section 1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of California Government Code Section 1090 et seq., and, if applicable, will be disqualified from holding public office in the State of California.
At City’s sole discretion, Consultant may be required to file with the City a Form 700 to identify and document Consultant’s economic interests, as defined and regulated by the California Fair Political Practices Commission. If Consultant is required to file a Form 700, Consultant is hereby advised to contact the San Leandro City Clerk for the Form 700 and directions on how to prepare it.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by _______________________________ ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee.
10.10 Notices. Any written notice to Consultant shall be sent to:
____________________________________________
____________________________________________
____________________________________________
[EMAIL ADDRESS MUST BE INCLUDED]__________
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Any written notice to City shall be sent to:
____________________________________________
____________________________________________
____________________________________________
With a copy to:
City of San Leandro
Department of Finance
c/o Purchasing Agent
835 East 14th Street
San Leandro, CA 94577
10.11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example.
_________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
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10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A, B, and C represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral.
Exhibit A Scope of Services
Exhibit B Compensation Schedule & Reimbursable Expenses Exhibit C Indemnification
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
10.14 Certification per Iran Contracting Act of 2010. In the event that this contract is for one million dollars ($1,000,000.00) or more, by Consultant’s signature below Consultant certifies that Consultant, and any parent entities, subsidiaries, successors or subunits of Consultant are not identified on a list created pursuant to subdivision (b) of Section 2203 of the California Public Contract Code as a person engaging in investment activities in Iran as described in subdivision (a) of Section 2202.5, or as a person described in subdivision (b) of Section 2202.5 of the California Public Contract Code, as applicable.
SIGNATURES ON FOLLOWING PAGE
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The Parties have executed this Agreement as of the Effective Date. The persons whose signatures appear below certify that they are authorized to sign on behalf of the respective Party.
CITY OF SAN LEANDRO [NAME OF CONSULTANT]
Fran Robustelli, City Manager [NAME, TITLE]
Attest:
Consultant’s DIR Registration Number
(if applicable)
Kelly Clancy, Acting City Clerk
Approved as to Fiscal Authority:
Susan Hsieh, Finance Director
Account Number
Approved as to Form:
Richard D. Pio Roda, City Attorney
Per Section 10.7:
☐ Form 700 Not Required
☐ Form 700 Required
[Name, Title of Department Head]
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EXHIBIT A
SCOPE OF SERVICES
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EXHIBIT B
COMPENSATION SCHEDULE & REIMBURSABLE EXPENSES
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EXHIBIT C
INDEMNIFICATION
Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, elected officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including without limitation, attorney’s fees and costs and fees of litigation) (collectively, “Liability”) of every nature arising out of or in connection with Consultant’s performance of the services called for or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City.
Notwithstanding the forgoing, to the extent this Agreement is a “construction contract” as defined by California Civil Code Section 2782, as may be amended from time to time, such duties of Consultant to indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.
The Consultant’s obligation to defend and indemnify shall not be excused because of the Consultant’s inability to evaluate Liability or because the Consultant evaluates Liability and determines that the Consultant is not liable to the claimant. The Consultant must respond within 30 days to the tender of any claim for defense and indemnity by the City. If the Consultant fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due the Consultant under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the claim or suit for damages, or until the Consultant accepts or rejects the tender of defense, whichever occurs first.
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Attachment B
CITY OF SAN LEANDRO LIVING WAGE ORDINANCE (LWO)
Guidelines for Compliance & Frequently Asked Questions
July 2021
Guidelines for Compliance with the Living Wage Ordinance (LWO) Service Providers
For Profit Service Providers
Affects for-profit entities that provide services to the City valued at $25,000 or greater within the City’s fiscal year; and which has six (6) or more employees.
Any employee working on City services under contract with the City is covered by the LWO for the time spent performing said services.
Non-Profit Service Providers
Affects non-profit entities that provide services to the City valued at $100,000 or more within the City’s fiscal year; and which has six (6) or more employees Any employee working more than 25% of their time on the City-contracted services being procured by the City under the contract with the employer is subject to.
Lessees
Affects lessee’s of public property, licensees, concessionaires and franchises that generate $350,000 or more in annual (calendar) gross receipts.
Any employee who spends more than 25% of their working time on the leased property or engaged in work directly related to the license, concession or franchise is subject to.
Financial Aid Recipients
Affects any entity receiving more than $100,000 in City grants, loans, or other cash/non-cash assistance within the City’s fiscal year. Compliance is required for the duration of one year for each $100,000 of assistance, pro-rated up to a maximum duration of five (5) years after receiving said aide.
Any employees who spend more than 25% of their working time engaged in work directly related to the purposes for which the City’s aid was provided are subject to.
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Subcontractors/Sub-Lessees
Affects both for-profit and non-profit employers that enter into a subcontract with the primary employer/contractor and assumes some of the obligations of the primary employer/contractor.
Subcontractor’s and sub-lessee’s are also subject to the same living wage provisions and requirements as the primary employer or lessee. Employees who are or would be covered under the state prevailing wage rate requirement would only be covered by the Ordinance if their current prevailing wage rate was lower than the living wage rate.
Compensation
Covered businesses are required to pay no less than $17.73 per hour or $16.23 with health benefits valued at least $1.50 per hour, subject to annual CPI adjustment.
Reporting and Compliance
Covered businesses self-verify compliance and are subject to periodic re-verification and audit of living wage related records.
Frequently Asked Questions
1. What is the City of San Leandro’s Living Wage Ordinance? “Living wage” is an hourly wage level that sets wages at a level higher than the Federal or State minimum wage. The City of San Leandro Ordinance specifies that an hourly wage and a health benefit dollar level be applied to certain contracts, agreements and leases between the City and for-profit and non-profit entities. It does not apply to every business in the City.
2. When does the Living Wage take effect and when do businesses have to start complying and provide higher wages to their employees?
September 1, 2007 is the effective date. Applicable businesses must comply with the Ordinance when they enter into a lease, contract or concessionaire or other agreement with the City of San Leandro, or when an existing agreement is amended to benefit the business.
For example, if a lease contract expires in two years, compliance would not be required for the two years the lease remains in effect and unchanged. New contracts entered into or amended thereto affecting financial aid or expending the term after the effective date are subject to the Ordinance. Covered employees would be entitled to the higher wage on the effective date of the new or modified contract or agreement.
All contracts and agreements with the City of San Leandro will include the requirement that the Living Wage Ordinance shall be complied with.
3. What is the required Living Wage rate?
Covered businesses are required to pay no less than $17.73 per hour, which includes wages and employer health benefits. Health benefits must be valued at $1.50 per hour in order to be counted towards the requirement. In other words, an employee not receiving any employer RFP No. 59548 Page 33 of 40
health benefits would receive an hourly wage of at least $17.73, while one receiving health benefits would receive an hourly wage of at least $16.23.
The living wage rate will be adjusted annually in July to reflect the consumer price index.
4. Are there any other required employee benefits specified? Yes. It specifies that employees must receive at least 22 days off per year (calendar) for sick leave, vacation, holiday, or personal necessity. At least 12 of the required days off shall be compensated at the same rate as regular compensation while 10 of the required 22 days may be uncompensated days off. Part-time employees shall be entitled to accrue compensated days off in increments proportional to that accrued by full-time employees.
Employees shall be eligible to use accrued days off after the first 6 months of satisfactory employment or in accordance with the employer’s policy, whichever is sooner.
5. What types of employee’s are covered by the Ordinance? And does it cover full-time and part-time employees?
Employees spending at least 25% of their work time on a City of San Leandro contract are covered, as long as they work for a business applicable under the terms of a covered agreement or contract. Both part-time and full-time employees are covered if they meet those criteria. Employees who are or would be covered under the state prevailing wage rate requirement would only be covered by the Ordinance if their current prevailing wage rate was lower than the living wage rate.
Please see “Guidelines for Compliance” for additional detail.
6. What types of businesses are covered by the San Leandro Living Wage Ordinance? The Living Wage Ordinance applies to entities providing services to the City of San Leandro via contract or agreement, lessees of the City and recipients of City financial aid. Please see “Guidelines for Compliance” for the thresholds and criteria for each type of employer, lessee, financial aid recipient, or subcontractor and lessee.
7. Does the Living Wage Ordinance apply to sub-contractors or sub-lessees? Subcontractor’s and sub-lessee’s are also subject to the same living wage provisions and requirements as the primary employer or lessee. Employees who are or would be covered under the state prevailing wage rate requirement would only be covered by the Ordinance if their current prevailing wage rate was lower than the living wage rate. For example, employees of a firm hired to do building improvements for the contractor would be subject to the prevailing wage requirements under state law.
8. Does the Living Wage Rate affect tenants of a financial aid recipient? It depends on the circumstances, for example, if a developer receives a $500,000 city loan to rehab a commercial building and the tenants pay the market rate, they would not be subject to RFP No. 59548 Page 34 of 40
the LWO. However, the benefitting developer or business (and successors) would be subject to the LWO.
9. What types of employees are exempt?
The Ordinance shall not be applicable to employees under 18 years of age, volunteers, qualified temporary employees working for the City of San Leandro, other government employees, employees that participate in a job training program, qualified disabled employees covered by a sub-minimum wage certificate or equivalent, interns or employees receiving academic credit through a job training program, employees already subject to the State’s prevailing wage requirement (if living wage rate is higher than the prevailing wage rate, then the living wage rate would apply) , employees while working stand-by or on-call duty, and any other employee where the application of the Ordinance would be prohibited by State or Federal law.
10. Are any exemptions or waivers allowed for a business? Following City Manager review and recommendation, the City Council may approve waivers with or without conditions to any of the Living Wage provisions, upon determination that such action is in the best interest of the City.
11. What other types of businesses are not covered by the City of San Leandro Living Wage Ordinance?
Commodity suppliers and suppliers of goods (paper, office supplies, equipment, etc.) and their employees are not covered.
12. What steps are in place to prevent discrimination or employer retaliation against the provisions of the Ordinance?
Retaliation and discrimination against any person on account of having inquired into or having claimed a violation of the Ordinance is unlawful. Any employee who alleges violation of any of the Living Wage requirements may report such acts to the City. The City may investigate such complaints and take appropriate action to enforce the Ordinance.
13. How do the worker retention provisions of the Ordinance work? Briefly, any business that replaces another business in a lease, contract, subcontract, etc. is required to offer employment to the employees of the prior tenant or contractor for a period of 90 days. If the new business already has its own employees, then employment must be offered on the basis of seniority to its own and the prior employees. Managerial, supervisory, professional, paraprofessional, and confidential and office employees are exempted from this provision.
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14. How is the Living Wage Ordinance enforced? Are there penalties against businesses found not to be complying?
Employers self-verify compliance. The City may also periodically require employer reverification and review the businesses living wage related records. Each business is required to allow access to its workforce and living wage related records by authorized City of San Leandro representatives to ensure compliance.
Violations of the Living Wage Ordinance are subject to fines of up to $5,000, and/or the City may terminate the violator’s agreement. Any person may bring action against a business in the Superior Court of California to enforce the measure.
15. Who can answer more questions about the Ordinance; and where can I get a copy of it? The Finance Department of the City currently administers the Living Wage Ordinance. Please contact the department at 510-577-3376 if you have any questions. You may obtain a copy of the Ordinance from the Finance Department; or it is available on the City’s website at:
https://www.sanleandro.org/1015/Living-Wage-Ordinance
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Attachment C
CITY OF SAN LEANDRO
Living Wage Ordinance Self Verification Form for Providers of Personal Services
TO BE COMPLETED BY ALL PERSONS OR ENTITIES ENGAGING IN A CONTRACT FOR SERVICES WITH THE CITY OF SAN LEANDRO.
The San Leandro Municipal Code Title 1, Chapter 6, San Leandro's Living Wage Ordinance (LWO), provides that contractors who engage in a specified amount of business with the City (except where specifically exempted) under contracts which furnish services to or for the City during the City's fiscal year shall comply with all provisions of this ordinance. The LWO requires a City contractor to provide City mandated minimum compensation to all eligible employees, as defined in the Ordinance. In order to determine whether this contract is subject to the terms of the LWO, please respond to the questions below. Please note that the LWO applies to those contracts where the contractor has achieved a cumulative dollar contracting amount with the City. Therefore, even if the LWO is inapplicable to this contract, change orders to this contract or the entering into of subsequent contracts may make them subject to compliance with the LWO. Furthermore, the contract may become subject to the LWO if the status of the Contractor's employees change (i.e. additional employees are hired) so that Contractor falls within the scope of the Ordinance.
SECTION I
1. IF YOU ARE A FOR-PROFIT BUSINESS, PLEASE ANSWER THE FOLLOWING QUESTIONS a. During the period of July 1 -June 30 of the current city fiscal year, have you entered into contracts, including the present contract, bid, or proposal, with the City of San Leandro for a cumulative amount of $25,000.00 or more?
YES ____ NO ____
If no, this contract is NOT subject to the requirements of the LWO, and you may continue to Section II. If yes, please continue to question 1(b).
b. Do you have six (6) or more employees?
YES ____ NO ____
If you have answered, “YES” to questions 1(a) and 1(b) this contract IS subject to the LWO. If you responded "NO" to 1(b) this contract IS NOT subject to the LWO. Please continue to Section II.
2. IF YOU ARE A NON-PROFIT BUSINESS, AS DEFINED BY SECTION 501(C) OF THE INTERNAL REVENUE CODE OF 1954, PLEASE ANSWER THE FOLLOWING QUESTIONS. a. During the period of July 1 -June 30 of the current city fiscal year, have you entered into contracts, including the present contract, bid, or proposal, with the City of San Leandro for a cumulative amount of $100,000.00 or more?
YES ____ NO ____
If no, this Contract is NOT subject to the requirements of the LWO, and you may continue to Section II. If yes, please continue to question 2(b).
b. Do you have six (6) or more employees?
YES ____ NO ____
If you have answered, “YES” to questions 2(a) and 2(b) this contract IS subject to the LWO. If you responded "NO" to 2(b) this contract IS NOT subject to the LWO. Please continue to Section II on the following page.
RFP No. 59548 Page 37 of 40
SECTION II
Please read, complete, and sign the following:
THIS CONTRACT IS SUBJECT TO THE LIVING WAGE ORDINANCE. ¨ THIS CONTRACT IS NOT SUBJECT TO THE LIVING WAGE ORDINANCE. ¨ The undersigned, on behalf of himself or herself individually and on behalf of his or her business or organization, hereby certifies that he or she is fully aware of San Leandro's Living Wage Ordinance, and the applicability of the Living Wage Ordinance, and the applicability of the subject contract, as determined herein. The undersigned further agrees to be bound by all of the terms of the Living Wage Ordinance, as mandated in the San Leandro Municipal Code, Title 1, Chapter 6.
If, at any time during the term of the contract, the answers to the questions posed herein change so that Contractor would be subject to the LWO, Contractor will promptly notify the City Manager in writing.
Contractor further understands and agrees that the failure to comply with the LWO, this verification, or the terms of the Contract as it applies to the LWO, shall constitute a default of the Contract and the City Manager may terminate the contract and pursue any other legal remedies available to the city, including debarment. If the contractor is a for-profit business and the LWO is applicable to this contract, the contractor must pay a living wage to all employees engaged in work directly related to the contract with the City. If the contractor is a non-profit business and the LWO is applicable to this contract, the contractor must pay a living wage to all employees who spend 25% or more or their compensated time engaged in work directly related to the contract with the City.
These statements are made under penalty of perjury under the laws of the state of California.
Printed Name:
___________________________________Title:________________________________________ Signature: ___________________________________Date:_______________________________________ Business Entity:
______________________________________________________________________________ Contract Description/Specification No:
____________________________________________________________
SECTION III
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* * FOR ADMINISTRATIVE USE ONLY -- PLEASE PRINT CLEARLY * * * I have reviewed this Living Wage Ordinance Self Verification form, in addition to verifying Contractor's total dollar amount contract commitments with the City in the past twelve (12) months, and determined that this Contract IS / IS NOT (circle one) subject to San Leandro's Living Wage Ordinance.
Department Name _____________________ Department Representative ___________________ RFP No. 59548 Page 38 of 40
ATTACHMENT D
An Ordinance of the City of San Leandro City Council to Amend San Leandro Municipal Code sections 1-3-100, 1-3-110 and subsection (a) of section 1-3-115 to add Community Police Review Board and to Add Article 17 Community Police Review Board to San Leandro Municipal Code Chapter 1-3, Boards and Commissions
The City of San Leandro City Council hereby ORDAINS as follows:
1. San Leandro Municipal Code section 1-3-100 is amended in its entirety to read as follows:
The following Boards and Commissions are hereby created:
(a) Board of Appeals;
(b) Board of Zoning Adjustments;
(c) Handicapped Access Appeals Board;
(d) Human Services Commission;
(e) Library-Historical Commission;
(f) Personnel Relations Board;
(g) Planning Commission;
(h) Recreation and Parks Commission;
(i) Site Development Sub-Commission;
(j) Youth Advisory Commission;
(k) Rent Review Board;
(l) Senior Commission;
(m) Arts Commission; and
(n) Community Police Review Board.
2. San Leandro Municipal Code section 1-3-110 is amended in its entirety to read as follows:
One elector from each Council Member District shall be appointed to each of the following Boards and Commissions:
(a) Board of Zoning Adjustment;
(b) Human Services Commission;
(c) Library-Historical Commission;
(d) Planning Commission;
(e) Recreation and Parks Commission;
(f) Senior Commission;
(g) Arts Commission; and
(h) Community Police Review Board.
RFP No. 59548 Page 39 of 40
Except as provided in this Code, all other members of each such Board and Commission shall be an elector of the City and appointed at large. Two residents who are either secondary students in their third or fourth year of secondary school or college students between the ages of 18 and 22 (“Student Member”) who are able to attend in person meetings of the Community Police Review Board shall be appointed to the Community Police Review Board. Once these members reach the age of 23, they are no longer eligible to serve or eligible for reappointment to these designated seats. Residents who are interested in appointment to the Student Member designated seats shall complete an application that will be submitted to the City Clerk, who shall schedule a City Council Rules Committee meeting for the Committee to review the applications and, at the Council Rules Committee’s discretion, interview the applicants for recommendation to the City Council for appointment. Any vacancy in these designated seats must be addressed by the Council in accordance with San Leandro Municipal Code section 1-3-115. Three (3) residents selected at large shall be appointed to the Youth Advisory Commission by each Council Member, at least one resident selected from each Council Member District, and the remainder may be selected at large. No change in Council Member District boundaries shall operate to disqualify an incumbent from office before the expiration of the term for which such member was appointed.
3. Subsection (a) of San Leandro Municipal Code Section 1-3-115 is amended to read as follows:
(a) Members of the following Boards and Commissions who were appointed from a specific Council Member District pursuant to Section 1-3-110 of this Article (“District Members”) may hold office for up to four (4) years, commencing on the date of appointment:
(1) Board of Zoning Adjustments;
(2) Human Services Commission;
(3) Library-Historical Commission;
(4) Planning Commission;
(5) Recreation and Parks Commission;
(6) Senior Commission;
(7) Arts Commission; and
(8) Community Police Review Board.
Except as provided in this Code, the terms of District Members shall terminate upon the expiration of the regular term of the Council Member representing the Council Member District from which the District Member was appointed. As to the Community Police Review Board, the initial terms of Board members who are District Members from Districts 1, 3, 5, and the Mayor’s at large appointment shall expire December 31, 2023 and the terms of District Members from Districts 2, 4, and 6 shall expire December 31, 2024. Thereafter, all members of the Community Police Review Board may hold office for up to four years. The City Council may fill a vacancy by appointment for the unexpired remainder of the term.
RFP No. 59548 Page 40 of 40
4. Article 17, Community Police Review Board, is added to San Leandro Municipal Code Chapter 1-3, Boards and Commissions, as follows:
1-3-1700 Short title and Purpose.
This article shall be known as the City of San Leandro "Community Police Review Board Ordinance." The purpose of the board is to increase public trust, increase accountability, ensure that police operations reflect community values, and, in cooperation with the Independent Police Auditor, ensure prompt, impartial, and fair investigations of complaints brought by members of the public against San Leandro Police Department employees, including but not limited to complaints under California Penal Code section 832.5.
1-3-1710 Establishment.
There is created and established an appointed body of the City Council to be known as the Community Police Review Board and hereinafter called "board” or “CPRB." 1-3-1720 Membership and Conditions of Holding Office.
(a) The board shall consist of nine (9) members. The membership shall include one member from each of the six (6) Council Member Districts, an at large member appointed by the Mayor pursuant to Section 1-3-110 of this Code and two Student Members, as defined by San Leandro Municipal Code section 1-3-110.
1. Each member shall be a resident of the city.
2. Subject to the receipt of enough qualified applicants, the Council must appoint a majority of members to the board who reflect the diversity of the City, by including members who represent the City’s diverse geographic areas and socio-economic, cultural, racial, ethnic, gender, gender identity, sexual orientation, and age differences, and who have differing personal backgrounds, education, occupations, and life experiences.
3. To ensure the board’s independence from the San Leandro Police Department and other law enforcement agencies, no current or former employee of a police department or other law enforcement agency may serve on the board. In addition, no immediate family or household member, defined as the parent, spouse, domestic partner, sibling, child, or cohabitant, of a law enforcement officer, who works or worked for a law enforcement agency, may serve on the board. For purposes of this prohibition, law enforcement agencies include police departments of all cities, as well as all public agencies, county, state, and federal law enforcement officers, and city, county, state, and federal prosecutors and public defenders.
4. Practicing attorneys who handle, or are members of firms or entities that currently handle criminal or civil matters involving law enforcement agencies are ineligible to serve on the board.
(b) Board members are expected to comply with all of the duties and obligations required or expected of board members by this Article. A board member may be automatically removed from office by the Council for two unexcused absences in a calendar year. An excused absence RFP No. 59548 Page 41 of 40
is one where the board member notifies the board chair of their absence at least forty-eight hours in advance of the board’s next regular or special meeting. Notwithstanding anything to the contrary, the Council may remove a member for three absences of any type in a calendar year.
1-3-1730 Orientation, and training.
(a) No later than 90 days after appointment, each member shall:
1. Participate in a ride-along with the police department in a four-hour minimum shift; and
2. Receive approximately 30 hours of training in relevant subject matters facilitated by City staff, including but not limited to the police department, on topics including, at a minimum, constitutional rights and civil liberties, Penal Code Section 832.5, fundamentals of procedure, evidence, and due process, procedural rights and confidentialities afforded to police officers by California law (including, but not limited to, Government Code Section 3300 et seq. and Penal Code Sections 832.7 and 832.8), police department operations, policies, practices, and procedures, and duties, responsibilities, procedures, and requirements associated with all ranks and assignments, including support services; and
3. Receive ethics training as required by State law (AB 1234, Chapter 700, Stats. of 2005), and submit to the City Clerk annual statements of economic interest pursuant to the city's conflict of interest code.
1-3-1740 Annual report.
The board shall submit an annual report and workplan to the city council no later than June 30 of each year. Attendance records of members shall be included as part of the annual report. 1-3-1750 Purpose and functions.
(a) The board's function is to:
1. Receive community feedback and Penal Code Section 832.5 complaints and refer them for further review, as appropriate, to the independent police auditor or the internal affairs function of the police department;
2. In accordance with all Federal and State laws, including but not limited to the Peace Officers Procedural Bill of Rights Act, receive reports from the independent police auditor regarding personnel discipline and complaints, critical incidents, police department policies, and other law enforcement matters;
3. Monitor, review and provide input on police department policies, and receive reports from the police department on policies that indicate a need for review based on trends and data or that are, in the judgment of a majority of the board, of compelling community-wide concern. At the City Manager’s exclusive discretion and direction, City employees shall cooperate with and assist the board and its staff with the gathering and receipt of public records as defined by the California Public Records Act relevant to the Board’s function. Police department policy reviews may be initiated by either the independent police auditor or action by a majority of the board; (A) Notwithstanding the right to play a role in monitoring and reviewing police department policies, the board must refrain from any action or statement to prevent RFP No. 59548 Page 42 of 40
implementation of a police department policy that under State or Federal law is recommended by the Police Chief to take immediate effect or required to take immediate effect.
(B) Notwithstanding the right to play a role in reviewing and monitoring police department policies pertaining to personnel matters, the board must refrain from (i) directly or indirectly taking active participation in personnel matters; (ii) taking personnel actions; (iii) using or misusing records developed to take personnel actions; and/or (iv) directing that action be taken on police department employees. (C) Notwithstanding any other rights or functions contained herein, including the receipt and referral of Penal Code Section 832.5 complaints, the board must refrain from drafting or submitting any subpoena or soliciting a second legal opinion on a matter after receiving an opinion from the City Attorney without first submitting such request to the City Manager who shall forward it to the City Council.
4. Upon notice of vacancy for the position of Chief of Police, receive from the City Manager a report on the job requirements, application process, and evaluation criteria of candidates for the Chief of Police, and make recommendations to the City Manager regarding the job requirements, application process and evaluation criteria. 1-3-1760 Independent Police Auditor
There is hereby established an independent police auditor, who is appointed by and is a direct report to the City Manager, who shall perform the following functions:
(a) Serve as an independent monitor of the police department. (b) Participate in all internal affairs and administrative review processes conducted by the police department. The independent police auditor shall receive immediate notification of all critical incidents and may at its discretion provide advice to the police department’s administrative investigations team during its internal affairs investigation, and shall receive all of the same documents and records as the police department’s administrative investigators. (c) Serve as the law enforcement subject matter expert to the board. The independent police auditor shall assist the board with classifying Penal Code Section 832.5 complaints; analyze for the board local, State, and national police data and trends; make expert recommendations to the board and the Police Chief on police department policies, with specific expert recommendations pertaining to investigations, training, and discipline policies; assist the board with the preparation of the board’s annual report and workplan; and in collaboration with the City Manager support the board’s public outreach activities. (d) Recommend, with the Police Chief’s and the specifically affected police department personnel’s written consent, referrals for voluntary and confidential mediation of specific complaints to community based mediation services provided by trained or certified mediators. 1-3-1770 Qualifications of the Independent Police Auditor (a) Subject to the discretion and judgment of the City Manager, the independent police auditor shall at a minimum have professional experience, certifications, and other qualifications specifically related to law enforcement agency personnel investigations, and California law related to the Public Safety Officer’s Procedural Bill of Rights Act (California Government Code Section 3300 et seq.).
RFP No. 59548 Page 43 of 40
(b) Before appointment, the independent police auditor shall be subject to a full background check, confidentiality oath or agreement, and training on access to San Leandro police department personnel investigations and records.
5065839.1
5074838.1