Sunnyvale City Council
January 25, 2022

of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate in such action at its own expense with respect to attorneys’ fees and costs (but not liability); (ii) where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services will have the right to approve or disapprove any settlement or compromise, which approval will not unreasonably be withheld or delayed; and (iii) the State will reasonably cooperate in the defense and in any related settlement negotiations.

29. INVOICES: Unless otherwise specified, invoices shall be sent to the address set forth herein.

Invoices shall be submitted in triplicate and shall include the Contract number; release order number (if applicable); item number; unit price, extended item price and invoice total amount.

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State sales tax and/or use tax shall be itemized separately and added to each invoice as applicable.

30.REQUIRED PAYMENT DATE: Payment will be made in accordance with the provisions of the California Prompt Payment Act, Government Code Section 927 et. Seq. Unless expressly exempted by statute, the Act requires State agencies to pay properly submitted, undisputed invoices not more than 45 days after (i) the date of acceptance of Deliverables or performance of services; or (ii) receipt of an undisputed invoice, whichever is later.

31.TAXES: Unless otherwise required by law, the State of California is exempt from Federal excise taxes. The State will only pay for any State or local sales or use taxes on the services rendered or Goods supplied to the State pursuant to this Contract.

32.NEWLY MANUFACTURED GOODS: All Goods furnished under this Contract shall be newly manufactured Goods or certified as new and warranted as new by the manufacturer; used or reconditioned Goods are prohibited, unless otherwise specified.

33.CONTRACT MODIFICATION: No amendment or variation of the terms of this Contract shall Attachment 1

be valid unless made in writing, signed by the parties and approved as required. No oral understanding or agreement not incorporated in the Contract is binding on any of the parties.

34.CONFIDENTIALITY OF DATA: All financial statistical, personal, technical and other data and information relating to the State’s operation which are designated confidential by the state and made available to the Contractor in order to carry out this Contract, or which become available to the Contractor in carrying out this Contract, shall be protected by the Contractor from unauthorized use and disclosure through the observance of the same or more effective procedural requirements as are applicable to the State. The identification of all such confidential data and information as well as the State's procedural requirements for protection of such data and information from unauthorized use and disclosure shall be provided by the State in writing to the Contractor. If the methods and procedures employed by the Contractor for the protection of the Contractor's data and information are deemed by the State to be adequate for the protection of the State's confidential information, such methods and procedures may be used, with the written consent of the State, to carry out the intent of this paragraph. The Contractor shall not be required under the provisions of this paragraph to keep confidential any data or information which is or becomes publicly available, is already rightfully in the Contractor's possession without obligation of confidentiality, is independently developed by the Contractor outside the scope of this Contract, or is rightfully obtained from third parties.

35.NEWS RELEASES: Unless otherwise exempted, news releases, endorsements, advertising, and social media content pertaining to this Contract shall not be made without prior written approval of the Department of General Services.

36.DOCUMENTATION:
a) The Contractor agrees to provide to the State, at no charge, all Documentation as described within the Statement of Work, and updated versions thereof, which are necessary or useful to the State in its use of the Equipment or Software provided DGS PD 401IT (REVISED AND EFFECTIVE 9/5/14)
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hereunder. The Contractor agrees to provide additional Documentation at prices not in Attachment 1

excess of charges made by the Contractor to its other customers for similar Documentation.
b) If the Contractor is unable to perform maintenance or the State desires to perform its own maintenance on Equipment purchased under this Contract then upon written notice by the State the Contractor will provide at Contractor’s then current rates and fees adequate and reasonable assistance including relevant Documentation to allow the State to maintain the Equipment based on the Contractor’s methodology. The Contractor agrees that the State may reproduce such Documentation for its own use in maintaining the Equipment. If the Contractor is unable to perform maintenance, the Contractor agrees to license any other Contractor that the State may have hired to maintain the Equipment to use the above noted Documentation. The State agrees to include the Contractor’s copyright notice on any such Documentation reproduced, in accordance with copyright instructions to be provided by the Contractor.

37.RIGHTS IN WORK PRODUCT:
a) All inventions, discoveries, intellectual property, technical communications and records originated or prepared by the Contractor pursuant to this Contract including papers, reports, charts, computer programs, and other Documentation or improvements thereto, and including the Contractor’s administrative communications and records relating to this Contract (collectively, the “Work Product”), shall be the Contractor’s exclusive property.

The provisions of this sub-section a) may be revised in a Statement of Work. b) Software and other materials developed or otherwise obtained by or for the Contractor or its affiliates independently of this Contract or applicable purchase order (“Pre-Existing Materials”) do not constitute Work Product. If the Contractor creates derivative works of Pre-Existing Materials, the elements of such derivative works created pursuant to this Contract constitute Work Product, but other elements do not. Nothing in this Section 37 will be construed to interfere with the Contractor’s or its affiliates’ ownership of PreExisting Materials. c) The State will have Government Purpose Rights to the Work Product as Deliverable or delivered to the State hereunder. “Government Purpose Rights” are the unlimited, irrevocable, worldwide, perpetual, royalty-free, non-exclusive rights and licenses to use, Attachment 1

modify, reproduce, perform, release, display, create derivative works from, and disclose the Work Product. “Government Purpose Rights” also include the right to release or disclose the Work Product outside the State for any State government purpose and to authorize recipients to use, modify, reproduce, perform, release, display, create derivative works from, and disclose the Work Product for any State government purpose. Such recipients of the Work Product may include, without limitation, State Contractors, California local governments, the U.S. federal government, and the State and local governments of other states. “Government Purpose Rights” do not include any rights to use, modify, reproduce, perform, release, display, create derivative works from, or disclose the Work Product for any commercial purpose.

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d) The ideas, concepts, know-how, or techniques relating to data processing, developed during the course of this Contract by the Contractor or jointly by the Contractor and the State may be used by either party without obligation of notice or accounting. e) This Contract shall not preclude the Contractor from developing materials outside this Contract that are competitive, irrespective of their similarity to materials which might be delivered to the State pursuant to this Contract.

38.SOFTWARE LICENSE: Unless otherwise specified in the Statement of Work, the Contractor hereby grants to the State and the State accepts from the Contractor, subject to the terms and conditions of this Contract, a perpetual, irrevocable, royalty-free, non-exclusive, license to use the Software Products in this Contract (hereinafter referred to as “Software Products”). a) The State may use the Software Products in the conduct of its own business, and any division thereof.
b) The license granted above authorizes the State to use the Software Products in machinereadable form on the Computer System located at the site(s) specified in the Statement of Work. Said Computer System and its associated units (collectively referred to as CPU) are as designated in the Statement of Work. If the designated CPU is inoperative due to Attachment 1

malfunction, the license herein granted shall be temporarily extended to authorize the State to use the Software Products, in machine-readable form, on any other State CPU until the designated CPU is returned to operation.
c) By prior written notice, the State may redesignate the CPU in which the Software Products are to be used provided that the redesignated CPU is substantially similar in size and scale at no additional cost. The redesignation shall not be limited to the original site and will be effective upon the date specified in the notice of redesignation. d) Acceptance of Commercial Software (including third party Software) and Custom Software will be governed by the terms and conditions of this Contract.

39.PROTECTION OF PROPRIETARY SOFTWARE AND OTHER PROPRIETARY DATA:
a) The State agrees that all material appropriately marked or identified in writing as proprietary, and furnished hereunder are provided for the State’s exclusive use for the purposes of this Contract only. All such proprietary data shall remain the property of the Contractor. The State agrees to take all reasonable steps to insure that such proprietary data are not disclosed to others, without prior written consent of the Contractor, subject to the California Public Records Act.
b) The State will insure, prior to disposing of any media, that any licensed materials contained thereon have been erased or otherwise destroyed. c) The State agrees that it will take appropriate action by instruction, agreement or otherwise with its employees or other persons permitted access to licensed software and other proprietary data to satisfy its obligations in this Contract with respect to use, copying, modification, protection and security of proprietary software and other proprietary data.

40.RIGHT TO COPY OR MODIFY:

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a) Any Software Product provided by the Contractor in machine-readable form may be copied, in whole or in part, in printed or machine-readable form for use by the State with the designated CPU, to perform one-time benchmark tests, for archival or emergency Attachment 1

restart purposes, to replace a worn copy, to understand the contents of such machinereadable material, or to modify the Software Product as provided below; provided, however, that no more than the number of printed copies and machine-readable copies as specified in the Statement of Work will be in existence under this Contract at any time without prior written consent of the Contractor. Such consent shall not be unreasonably withheld by the Contractor. The original, and any copies of the Software Product, in whole or in part, which are made hereunder shall be the property of the Contractor. b) The State may modify any non-personal computer Software Product, in machine-readable form, for its own use and merge it into other program material. Any portion of the Software Product included in any merged program material shall be used only on the designated CPUs and shall be subject to the terms and conditions of the Contract.

41.FUTURE RELEASES: Unless otherwise specifically provided in this Contract, or the Statement of Work, if improved versions, e.g., patches, bug fixes, updates or releases, of any Software Product are developed by the contractor, and are made available to other licensees, they will be made available to the State at no additional cost only if such are made available to other licensees at no additional cost. If the Contractor offers new versions or upgrades to the Software Product, they shall be made available to the State at the State’s option at a price no greater than the Contract price plus a price increase proportionate to the increase from the list price of the original version to that of the new version, if any. If the Software Product has no list price, such price increase will be proportionate to the increase in average price from the original to the new version, if any, as estimated by the Contractor in good faith.

42.ENCRYPTION/CPU ID AUTHORIZATION CODES:
a) When Encryption/CPU Identification (ID) authorization codes are required to operate the Software Products, the Contractor will provide all codes to the State with delivery of the Software.
b) In case of inoperative CPU, the Contractor will provide a temporary encryption/CPU ID authorization code to the State for use on a temporarily authorized CPU until the designated CPU is returned to operation.
c) When changes in designated CPUs occur, the State will notify the Contractor via Attachment 1

telephone and/or facsimile/e-mail of such change. Upon receipt of such notice, the Contractor will issue via telephone and/or facsimile/e-mail to the State within 24 hours, a temporary encryption ID authorization code for use on the newly designated CPU until such time as permanent code is assigned.

43.PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY:
a) Contractor will indemnify, defend, and save harmless the State, its officers, agents, and employees, from any and all third party claims, costs (including without limitation reasonable attorneys’ fees), and losses for infringement or violation of any U.S.

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Intellectual Property Right by any product or service provided hereunder. With respect to claims arising from computer Hardware or Software manufactured by a third party and sold by Contractor as a reseller, Contractor will pass through to the State such indemnity rights as it receives from such third party (“Third Party Obligation”) and will cooperate in enforcing them; provided that if the third party manufacturer fails to honor the Third Party Obligation, Contractor will provide the State with indemnity protection equal to that called for by the Third Party Obligation, but in no event greater than that called for in the first sentence of this Section ). The provisions of the preceding sentence apply only to third party computer Hardware or Software sold as a distinct unit and accepted by the State.

Unless a Third Party Obligation provides otherwise, the defense and payment obligations set forth in this Section will be conditional upon the following:
i. The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and
ii. The Contractor will have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; provided that (a) when substantial principles of government or public law are involved, when litigation might create precedent affecting future State operations or liability, or when involvement of the State is otherwise mandated by law, the State may participate Attachment 1

in such action at its own expense with respect to attorneys’ fees and costs (but not liability); (b) where a settlement would impose liability on the State, affect principles of California government or public law, or impact the authority of the State, the Department of General Services will have the right to approve or disapprove any settlement or compromise which approval will not unreasonably be withheld or delayed; and (c) the State will reasonably cooperate in the defense and in any related settlement negotiations.
b) Should the Deliverables, or the operation thereof, become, or in the Contractor’s opinion are likely to become, the subject of a claim of infringement or violation of a U.S.

Intellectual Property Right, the State shall permit the Contractor, at its option and expense, either to procure for the State the right to continue using the Deliverables, or to replace or modify the same so that they become non-infringing. If none of these options can reasonably be taken, or if the use of such Deliverables by the State shall be prevented by injunction the Contractor agrees to take back such Deliverables and make every reasonable effort to assist the State in procuring substitute Deliverables. If, in the sole opinion of the State, the return of such infringing Deliverables makes the retention of other Deliverables acquired from the Contractor under this Contract impractical, the State shall then have the option of terminating such Contracts, or applicable portions thereof, without penalty or termination charge. The Contractor agrees to take back such Deliverables and refund any sums the State has paid the Contractor less any reasonable amount for use or damage.

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c) The Contractor shall have no liability to the State under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement which is based upon:
i. The combination or utilization of Deliverables furnished hereunder with Equipment, Software or devices not made or furnished by the Contractor or, Attachment 1

ii. The operation of the Equipment furnished by the Contractor under the control of any Operating Software; or
iii. The modification initiated by the State, or a third party at the State’s direction, of any Deliverable furnished hereunder, or
iv. The combination or utilization of Software furnished hereunder with noncontractor supplied Software.
d) The Contractor certifies that it has appropriate systems and controls in place to ensure that State funds will not be used in the performance of this Contract for the acquisition, operation or maintenance of computer Software in violation of copyright laws.

44.DISPUTES:
a) The parties shall deal in good faith and attempt to resolve potential disputes informally. If the dispute persists, the Contractor shall submit to the contracting Department Director or designee a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to or involving this Contract. Contractor’s written demand shall be fully supported by factual information, and if such demand involves a cost adjustment to the Contract, the Contractor shall include with the demand a written statement signed by an authorized person indicating that the demand is made in good faith, that the supporting data are accurate and complete and that the amount requested accurately reflects the Contract adjustment for which Contractor believes the State is liable. The contracting Department Director or designee shall have 30 days after receipt of Contractor’s written demand invoking this Section “Disputes” to render a written decision. If a written decision is not rendered within 30 days after receipt of the Contractor’s demand, it shall be deemed a decision adverse to the Contractor’s contention. If the Contractor is not satisfied with the decision of the contracting Department Director or designee, the Contractor may appeal the decision, in writing, within 15 days of its issuance (or the expiration of the 30 day period in the event no decision is rendered by the contracting department), to the Department of General Services, Deputy Director, Procurement Division, who shall have 45 days to render a final decision. If the Contractor does not appeal the decision of the contracting Department Attachment 1

Director or designee, the decision shall be conclusive and binding regarding the dispute and the Contractor shall be barred from commencing an action in court, or with the Victims Compensation Government Claims Board, for failure to exhaust Contractor’s administrative remedies.
b) Pending the final resolution of any dispute arising under, related to or involving this Contract, Contractor agrees to diligently proceed with the performance of this Contract, including the delivery of Goods or providing of services in accordance with the State’s DGS PD 401IT (REVISED AND EFFECTIVE 9/5/14)
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instructions regarding this Contract. Contractor’s failure to diligently proceed in accordance with the State’s instructions regarding this Contract shall be considered a material breach of this Contract.
c) Any final decision of the State shall be expressly identified as such, shall be in writing, and shall be signed by the Deputy Director, Procurement Division if an appeal was made.

If the Deputy Director, Procurement Division fails to render a final decision within 45 days after receipt of the Contractor’s appeal for a final decision, it shall be deemed a final decision adverse to the Contractor’s contentions. The State’s final decision shall be conclusive and binding regarding the dispute unless the Contractor commences an action in a court of competent jurisdiction to contest such decision within 90 days following the date of the final decision or one (1) year following the accrual of the cause of action, whichever is later.
d) For disputes involving purchases made by the Department of General Services, Procurement Division, the Contractor shall submit to the Department Director or designee a written demand for a final decision, which shall be fully supported in the manner described in subsection a above. The Department Director or designee shall have 30 days to render a final decision. If a final decision is not rendered within 30 days after receipt of the Contractor’s demand, it shall be deemed a final decision adverse to the Contractor’s contention. The final decision shall be conclusive and binding regarding the Attachment 1

dispute unless the Contractor commences an action in a court of competent jurisdiction to contest such decision within 90 days following the date of the final decision or one (1) year following the accrual of the cause of action, whichever is later. e) The dates of decision and appeal in this section may be modified by mutual consent, as applicable, excepting the time to commence an action in a court of competent jurisdiction.

45.STOP WORK:
a) The State may, at any time, by written Stop Work Order to the Contractor, require the Contractor to stop all, or any part, of the work called for by this Contract for a period up to 45 days after the Stop Work Order is delivered to the Contractor, and for any further period to which the parties may agree. The Stop Work Order shall be specifically identified as such and shall indicate it is issued under this clause. Upon receipt of the Stop Work Order, the Contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the Stop Work Order during the period of work stoppage. Within a period of 45 days after a Stop Work Order is delivered to the Contractor, or within any extension of that period to which the parties shall have agreed, the State shall either:
i. Cancel the Stop Work Order; or
ii. Terminate the work covered by the Stop Work Order as provided for in the termination for default or the termination for convenience clause of this Contract. b) If a Stop Work Order issued under this clause is canceled or the period of the Stop Work Order or any extension thereof expires, the Contractor shall resume work. The State shall DGS PD 401IT (REVISED AND EFFECTIVE 9/5/14)
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make an equitable adjustment in the delivery schedule, the Contract price, or both, and the Contract shall be modified, in writing, accordingly, if:
i. The Stop Work Order results in an increase in the time required for, or in the Contractor’s cost properly allocable to the performance of any part of this Contract; and
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ii. The Contractor asserts its right to an equitable adjustment within 60 days after the end of the period of work stoppage; provided, that if the State decides the facts justify the action, the State may receive and act upon a proposal submitted at any time before final payment under this Contract.
c) If a Stop Work Order is not canceled and the work covered by the Stop Work Order is terminated in accordance with the provision entitled Termination for the Convenience of the State, the State shall allow reasonable costs resulting from the Stop Work Order in arriving at the termination settlement.
d) The State shall not be liable to the Contractor for loss of by California law (“Conflict Laws”). In the event of any profits because of a Stop Work Order issued under this clause.

46. EXAMINATION AND AUDIT: The Contractor agrees that the State or its designated representative shall have the right to review and copy any records and supporting documentation directly pertaining to performance of this Contract. The Contractor agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated. The Contractor agrees to allow the auditor(s) access to such records during normal business hours and in such a manner so as to not interfere unreasonably with normal business activities and to allow interviews of any employees or others who might reasonably have information related to such records. Further, the Contractor agrees to include a similar right of the State to audit records and interview staff in any subcontract related to performance of this Contract. The State shall provide reasonable advance written notice of such audit(s) to the Contractor.

47. FOLLOW-ON CONTRACTS:
a) If the Contractor or its affiliates provides Technical Consulting and Direction (as defined below), the Contractor and its affiliates:
i. will not be awarded a subsequent Contract to supply the service or system, or any significant component thereof, that is used for or in connection with any subject of such Technical Consulting and Direction; and
ii. will not act as consultant to any person or entity that does receive a Contract Attachment 1

described in sub-section (i). This prohibition will continue for one (1) year after termination of this Contract or completion of the Technical Consulting and Direction, whichever comes later.
b) “Technical Consulting and Direction” means services for which the Contractor received compensation from the State and includes:
i. development of or assistance in the development of work statements, specifications, solicitations, or feasibility studies;
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ii. development or design of test requirements;
iii. evaluation of test data; (iv) direction of or evaluation of another Contractor; iv. provision of formal recommendations regarding the acquisition of Information Technology products or services; or
v. provisions of formal recommendations regarding any of the above. For purposes of this Section, “affiliates” are employees, directors, partners, joint venture participants, parent corporations, subsidiaries, or any other entity controlled by, controlling, or under common control with the Contractor. Control exists when an entity owns or directs more than fifty percent (50%) of the outstanding shares or securities representing the right to vote for the election of directors or other managing authority.
c) To the extent permissible by law, the Director of the Department of General Services, or designee, may waive the restrictions set forth in this Section by written notice to the Contractor if the Director determines their application would not be in the State’s best interest. Except as prohibited by law, the restrictions of this Section will not apply:
i. to follow-on advice given by vendors of commercial off-the-shelf products, including Software and Hardware, on the operation, integration, repair, or maintenance of such products after sale; or
ii. where the State has entered into a master agreement for Software or services Attachment 1

and the scope of work at the time of Contract execution expressly calls for future recommendations among the Contractor’s own products.
d) The restrictions set forth in this Section are in addition to conflict of interest restrictions imposed on public Contractors by California law (“Conflict Laws”). In the event of any inconsistency, such Conflict Laws override the provisions of this Section, even if enacted after execution of this Contract.

48.PRIORITY HIRING CONSIDERATIONS: If this Contract includes services in excess of $200,000, the Contractor shall give priority consideration in filling vacancies in positions funded by the Contract to qualified recipients of aid under Welfare and Institutions Code Section 11200 in accordance with PCC Section 10353.

49.COVENANT AGAINST GRATUITIES: The Contractor warrants that no gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by the Contractor, or any agent or representative of the Contractor, to any officer or employee of the State with a view toward securing the Contract or securing favorable treatment with respect to any determinations concerning the performance of the Contract. For breach or violation of this warranty, the State shall have the right to terminate the Contract, either in whole or in part, and any loss or damage sustained by the State in procuring on the open market any items which the Contractor agreed to supply shall be borne and paid for by the Contractor. The rights and remedies of the State provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or in equity.

50.NONDISCRIMINATION CLAUSE:

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a) During the performance of this Contract, the Contractor and its subcontractors shall not unlawfully discriminate, harass or allow harassment, against any employee or applicant for employment because of sex, sexual orientation, race, color, ancestry, religious creed, national origin, disability (including HIV and AIDS), medical condition (cancer), age, marital status, and denial of family care leave. The Contractor and subcontractors shall Attachment 1

insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. The Contractor and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12990 et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into this Contract by reference and made a part hereof as if set forth in full. The Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
b) The Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Contract.

51.NATIONAL LABOR RELATIONS BOARD CERTIFICATION: The Contractor swears under penalty of perjury that no more than one final, unappealable finding of contempt of court by a federal court has been issued against the Contractor within the immediately preceding twoyear period because of the Contractor’s failure to comply with an order of the National Labor Relations Board. This provision is required by, and shall be construed in accordance with, PCC Section 10296.

52.ASSIGNMENT OF ANTITRUST ACTIONS: Pursuant to Government Code Sections 4552, 4553, and 4554, the following provisions are incorporated herein:
a) In submitting a bid to the State, the supplier offers and agrees that if the bid is accepted, it will assign to the State all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of Goods, material or other items, or services by the supplier for sale to the State pursuant to the solicitation. Such assignment shall be made and become effective at the time the State tenders final payment to the supplier. b) If the State receives, either through judgment or settlement, a monetary recovery for a Attachment 1

cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from the State any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assignor but were not paid by the State as part of the bid price, less the expenses incurred in obtaining that portion of the recovery.

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c) Upon demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and i. the assignee has not been injured thereby, or
ii. the assignee declines to file a court action for the cause of action.

53. DRUG-FREE WORKPLACE CERTIFICATION: The Contractor certifies under penalty of perjury under the laws of the State of California that the Contractor will comply with the requirements of the Drug-Free Workplace Act of 1990 (Government Code Section 8350 et seq.) and will provide a drug-free workplace by taking the following actions:
a) Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations, as required by Government Code Section 8355(a).
b) Establish a Drug-Free Awareness Program as required by Government Code Section 8355(b) to inform employees about all of the following:
i. the dangers of drug abuse in the workplace;
ii. the person's or organization's policy of maintaining a drug-free workplace; iii. any available counseling, rehabilitation and employee assistance programs; and, iv. penalties that may be imposed upon employees for drug abuse violations. c) Provide, as required by Government Code Section 8355(c), that every employee who works on the proposed or resulting Contract:

Attachment 1

i. will receive a copy of the company's drug-free policy statement; and, ii. will agree to abide by the terms of the company's statement as a condition of employment on the Contract.

54. FOUR-DIGIT DATE COMPLIANCE: Contractor warrants that it will provide only Four-Digit Date Compliant (as defined below) Deliverables and/or services to the State. “Four Digit Date Compliant” Deliverables and services can accurately process, calculate, compare, and sequence date data, including without limitation date data arising out of or relating to leap years and changes in centuries. This warranty and representation is subject to the warranty terms and conditions of this Contract and does not limit the generality of warranty obligations set forth elsewhere herein.

55. SWEATFREE CODE OF CONDUCT:
a) Contractor declares under penalty of perjury that no equipment, materials, or supplies furnished to the State pursuant to the Contract have been produced in whole or in part by sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor or exploitation of children in sweatshop labor, or with the benefit of sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor or exploitation of children in sweatshop labor. The Contractor further declares under penalty of perjury that they adhere to the Sweatfree DGS PD 401IT (REVISED AND EFFECTIVE 9/5/14)
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Code of Conduct as set forth on the California Department of Industrial Relations website located at www.dir.ca.gov, and Public Contract Code Section 6108. b) The Contractor agrees to cooperate fully in providing reasonable access to its records, documents, agents or employees, or premises if reasonably required by authorized officials of the State, the Department of Industrial Relations, or the Department of Justice to determine the Contractor’s compliance with the requirements under paragraph (a).

56. RECYCLED CONTENT REQUIRMENTS: The Contractor shall certify in writing under penalty of perjury, the minimum, if not exact, percentage of post-consumer material (as defined in the Attachment 1

Public Contract Code (PCC) Section 12200-12209), in products, materials, goods, or supplies offered or sold to the State that fall under any of the statutory categories regardless of whether the product meets the requirements of Section 12209. The certification shall be provided by the contractor, even if the product or good contains no postconsumer recycled material, and even if the postconsumer content is unknown. With respect to printer or duplication cartridges that comply with the requirements of Section 12156(e), the certification required by this subdivision shall specify that the cartridges so comply (PCC 12205 (b)(2)). A state agency contracting officer may waive the certification requirements if the percentage of postconsumer material in the products, materials, goods, or supplies can be verified in a written advertisement, including, but not limited to, a product label, a catalog, or a manufacturer or vendor Internet web site.

Contractors are to use, to the maximum extent economically feasible in the performance of the contract work, recycled content products (PCC 12203(d)).

57. CHILD SUPPORT COMPLIANCE ACT: For any Contract in excess of $100,000, the Contractor acknowledges in accordance with PCC Section 7110, that:
a) The Contractor recognizes the importance of child and family support obligations and shall fully comply with all applicable State and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with Section 5200) of Part 5 of Division 9 of the Family Code; and
b) The Contractor, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department.

58. AMERICANS WITH DISABILITIES ACT: The Contractor assures the State that the Contractor complies with the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.).

59. ELECTRONIC WASTE RECYCLING ACT OF 2003: The Contractor certifies that it complies with the applicable requirements of the Electronic Waste Recycling Act of 2003, Chapter 8.5, Part 3 of Division 30, commencing with Section 42460 of the Public Resources Code. The Contractor shall maintain documentation and provide reasonable access to its records and Attachment 1

documents that evidence compliance.

60. USE TAX COLLECTION: In accordance with PCC Section 10295.1, the Contractor certifies that it complies with the requirements of Section 7101 of the Revenue and Taxation Code.

DGS PD 401IT (REVISED AND EFFECTIVE 9/5/14)
GENERAL PROVISIONS – INFORMATION TECHNOLOGY

Contractor further certifies that it will immediately advise the State of any change in its retailer’s seller’s permit or certification of registration or applicable affiliate’s seller’s permit or certificate of registration as described in subdivision (a) of PCC Section 10295.1.

61. EXPATRIATE CORPORATIONS: Contractor hereby declares that it is not an expatriate corporation or subsidiary of an expatriate corporation within the meaning of PCC Sections 10286 and 10286.1, and is eligible to contract with the State.

62. DOMESTIC PARTNERS: For contracts over $100,000 executed or amended after January 1, 2007, the contractor certifies that the contractor is in compliance with Public Contract Code Section 10295.3.

63. SMALL BUSINESS PARTICIPATION AND DVBE PARTICIPATION REPORTING REQUIREMENTS:
a) If for this Contract the Contractor made a commitment to achieve small business participation, then the Contractor must within 60 days of receiving final payment under this Contract (or within such other time period as may be specified elsewhere in this Contract) report to the awarding department the actual percentage of small business participation that was achieved. (Govt. Code § 14841.)
b) If for this Contract the Contractor made a commitment to achieve disabled veteran business enterprise (DVBE) participation, then Contractor must within 60 days of receiving final payment under this Contract (or within such other time period as may be specified elsewhere in this Contract) certify in a report to the awarding department: (1) the total amount the prime Contractor received under the Contract; (2) the name and address of the DVBE(s) that participated in the performance of the Contract; (3) the amount each DVBE received from the prime Contractor; (4) that all payments under the Contract have Attachment 1

been made to the DVBE; and (5) the actual percentage of DVBE participation that was achieved. A person or entity that knowingly provides false information shall be subject to a civil penalty for each violation. (Mil. & Vets. Code § 999.5(d); Govt. Code § 14841.)

64. LOSS LEADER: It is unlawful for any person engaged in business within this state to sell or use any article or product as a “loss leader” as defined in Section 17030 of the Business and Professions Code. (PCC 12104.5(b).)
Attachment 1

DocuSign Envelope ID: 895D2A90-533F-4A74-8650-530137EA9E81 ABAG/City Innovate
PROVIDER Bench Management Software

ATTACHMENT G
HCD/ABAG Grant Agreement No. 19-REAP-13915
Attachment 1

STATE OF CALIFORNIA-BUSINESS CONSUMER SERVICESMD HOUSING AGENCY

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

ADMINISTRATION AND MANAGEMENT DIVISION
Business and Contract Services Branch
Contracts Office
2020 W. El Camino Avenue, Suite 130, 95833
P. 0. Box 952054
Sacramento, CA 94252-2054
(916) 263-6928 / FAX (916) 263-6917
www .hcd.ca.gov
Therese McMillian
Executive Director
Association of Bay Area Governments
375 Beale Street, Suite 800
San Francisco, California 94015-2066
RE: Grant 19-13915
Dear Therese McMillan:

JUN 04 2020
GAVIN NEWSOM Governor
Congratulations on your Regional Early Action Planning Grant (REAP) award. Attached is an electronic copy of the Standard Agreement ("Agreement') with Exhibits A through E:

A. Standard Agreement Contents (STD 213 and Exhibits A through El STD 213 -Cover page
Exhibit A -Authority, Purpose and Scope of Work
Exhibit B -Budget Detail and Payment Provisions
Exhibit C* -State of California General Terms and Conditions - GTC 04/2017 *Exhibit C is now incorporated by reference; please see the STD 213 for additional information.

Exhibit D - REAP Terms and Conditions
Exhibit E -Special Conditions

8. For expeditious handling of the contract, the Department offers two options for returning signed STD 213; please complete the following:

1. Review the entire Agreement thoroughly and, if necessary, discuss the requirements · with your legal and financial advisors.

2. The person or persons authorized by the Resolution(s), must provide an original signature, printed name, title and date, must use blue ink, on the lower left-hand section entitled "Contractor'' on the STD 213 and/or on page 2 of the STD 213, if applicable.

3. Option One: For electronic signature processing, reply to this Standard Agreement email notification with the attached, fully signed STD 213 page(s). All signatures Association of Bay Area Governments
Attachment 1

19-REAP-13915 Page
2 of
2 must
be
original
and
in
blue
ink
. All
signers
must
be
included
in
the
reply
email
and
confirm
acceptance
of
e-signing
the
Agreement.

4. Option
Two:

Print
five
copies
of
the
Standard
Agreement,
STD
213.

Do
not
send
photocopies
of
the
signed
STD
213
page(s)
. All
five
copies
must
be
an
original
signature
with
wet,
blue
ink
; do
not
return
the
Exhibits
to
HCD.

5. Note:

If the
resolution
did
not
authorize
a designated
official
to
sign
the
STD
213
and
amendments
thereto
, your
governing
body
must
adopt
a
resolution
authorizing
a
designated
official(s)
to
sign
the
STD
213
and
any
subsequent
amendments.

If
the
authorized
designee
as
reflected
in
the
resolution,
the
awarded
NOFA
amount
or
your
entity
status
has
changed,
you
are
required
to
provide,
to
the
Department,
a
new
resolution
consistent
with
the
terms
of
the
NOFA
award
and
adopted
by
your
Board.

6. Return
thee-signed
copy
or
the
five
signed
copies
of
the
STD
213;
and,
if applicable,
the
certified
resolution
within
30 days
from
the
date
of
this
letter
to
the
following
address: Department
of
Housing
and
Community
Development
Business
&
Contract
Services
Branch
Contracts
Office,
Attn.

Kelvin
Singh
2020
West
El
Camino
Avenue,
Suite
130
Sacramento,
CA
95833

7. Maintain
a
complete
electronic
version
of
the
contract
Agreement,
STD
213
and
Exhibits,
for
your
pending
file.

Note:

The
contract
is
not
effective
until
it
is
signed
by
the
Awardee's
designated official
and
the
Department.

The
Department
reserves
the
right
to
cancel
any
pending
Standard
Agreement
in
its
entirety
if
not
returned
within
the
required
30-day
period.

Please
contact
Planning
Grants
Program
Manager,
Nurulain
Kausar,
at
nurulain
[email protected]
, if you
have
any
questions
regarding
the
Standard
Agreement
or
the
provisions
therein
.

Sincerely, Kelvin
Singh
Contract
Analyst
Attachment cc:

Regional
Early
Action
Planning
Grant
Program,
Paul
McDougall
Attachment 1

STATE OF CALIFORNIA - DEPARTMENT OF GENERAL

SERVICES

STANDARD AGREEMENT
STD 213 (Rev. 0312019)

AGREEMENT NUMBER
19-REAP-13915
PURCHASING AUTHORITY NUMBER (rf applicable)

1. Thia Agreement la entered Into bei-o the Contracting Agency and the Contractor named below:

CONTRACTING AGENCY NAME

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

CONTRACTOR'S NAME
Auociatlon of Bay Area Governments

2. The term of Ihle Agre«nent la:

START DATE
Upon HCD Approval

THROUGH END DA TE
12/31/2024

3. The maximum amount of this Agreement Is:
$5,900,000.00

4. The pwties agree to oomply with the terms and conditions of the followlng exhibits, which are by this reference made a part of the Agreement.

EXHIBITS
Eldllbit A Authority, Pll'pOSe and Scope of 'NcJf1<
Exhibit B Budget Detail and Payment Provisions
TITLE
Exhibit C- Stale of Califcmia General Tem15 and Conditions Exhibit D REAP General Terms and Conditions
Exhibit E Special Conditions

TOTAL NUMBER OF PAGES ATTACHED
nems sho..rl with an astenslc i). are h11ffJby lnaxporat11d by ffJferenotJ and mads part of this agreement a.s If attached hemlD.

These docunents can be viewed at hllps:/lwww.dgs.ca.gov/OLS/R11sou�s IN WITNESS w-fEREOF, THIS AGREEMENT HAS BEEN EXECUTED BY THE PARTIES HERETO.

CONTRACTOR
CONTRACTOR NAME (if other than an individual, state whether a corporation, partnership.etc.) Association of Bay Area Governments

CONTRACTOR BUSINESS ADDRESS
375 Beale Street, Suite 800

PRINTED NAME OF PERSON SIGNING

CONTRACTOR AUTHORIZED SIGNATURE

CONTRACTING AGENCY NAME
Department of Housing and Community Development

CONTRACTING AGENCY ADDRESS
2020 W. El Camino Ave., Suite 130

PRINTED NAME OF PERSON SIGNING
Synthia Rhinehart
CITY
San Francisco

STATE OF CALIFORNIA
CITY
Sacramento
STATE
CA
TITLE

DATE SIGNED
STATE
CA
TITLE
Contracts Manager,
PAGES
3 4
GTC • 04/2017
9 ZIP
94105
ZIP
95833
0 16
Buaineu & Contract Services BranCh

CONTRACTING AGENCY AUTHORIZED SIGNATURE DATE SIGNED
California Department of General Services Approval (or exemption, if applicable) Exempt per: SCM Vol. 1 ◄.O4.A.3 (DGS memo dated 6/12/1981) June 11, 2020
Therese W. Mcmillan Executive Director
Attachment 1

EXHIBIT
A
Association
of
Bay
Area
Governments
19-REAP-13915
Page
1 of
3 AUTHORITY,

PURPOSE
AND
SCOPE
OF
WORK

1. Authority

2. The
Local
Government
Planning
Support
Grants
Program
is
established
for
the
purpose
of
providing
regions
and
jurisdictions
with
one-time
funding,
including
grants
for
planning
activities
to
enable
jurisdictions
to
meet
the
sixth
cycle
of
the
regional
housing
needs
assessment.

Up
to
two
hundred
fifty
million
dollars
($250,000,000)
shall
be
distributed
under
the
program
in
accordance
with
Health
and
Safety
Code
sections
50515.02
and
50515.03.

Of
this
amount,
approximately
one
hundred
twenty-five
million
dollars
($125,000,000)
is
available
to
councils
of
governments
and
other
regional
entities.

The
Department
of
Housing
and
Community
Development
(Department
or
HCD)
shall
administer
the
Program
(referred
to
herein
as
the
Regional
Early
Action
Planning
Grant
Program,
or
"REAP")
to
councils
of
governments
and
other
regional
entities
in
accordance
with
the
Notice
of
Funding
Availability
("NOFA")
pursuant
to
Health
and
Safety
Code
section
50515.04,
subdivision
(f).

Pursuant
to
Health
and
Safety
Code
section
50515.02,
subdivision
(d)(3),
a
council
of
governments
or
a
fiscal
agent
of
a
multiagency
working group,
as
defined
in
section
50515.02,
may request
up
to
25 percent
of
its
available
funding
in
advance.

This
Standard
Agreement
authorizes
the
encumbrance
of
full
funds
available
to
the
applicant
pursuant
to
the
NOFA,
subject
to
all
statutory
requirements
and
all
applicable
provisions
including
the
NOFA,
initial
application
and
award
for
advance
payment,
subsequent
advance
payment
application
and
award,
application
and
award
for
the
full
remaining
fund
amount
and
amendment
to
this
agreement.

The
Grantee
shall
consult
with
the
Department
on
any
amendment
or
other
provision
related
to
the
implementation
of
the
Program.

The
Department
decisions
related
to
the
administration
of
the
Program
shall
be
final
pursuant
to
Health
and
Safety
Code
section
50515.04,
subdivision
(g).

Purpose In
accordance
with
the
authority
cited
above,
the
Grantee
has
been
awarded
financial
assistance
in
the
form
of
a
grant
from
the
Program.

The
Department has
agreed
to
make
the
grant
for
planning
activities
pursuant
to
the
NOFA
and
this
Agreement.

By
entering
into
this
Agreement and
thereby
accepting the
award
of
the
Program
funds,
the
Grantee
agrees
to
comply
with
the
terms
and
conditions
of
the
NOFA,
this Agreement,
subsequent
amendments
to
this
Agreement,
the
Regional
Early
Action
Planning
Grant
Program
(REAP)
NOFA
Date:

October
10,
2019
Approved
Date:

March
30,
2020
Prep
. Date:

March
31,
2020
(Rev. 5/28/2020)
Attachment 1

EXHIBIT
A
Association
of
Bay
Area
Governments
19-REAP-13915
Page
2 of
3 representations
contained
in
the
initial
advance
payment
and
subsequent
full
application(s),
and
the
requirements
of
the
authority
cited
above.

Based
on
all
representations
made
by
the
Grantee,
the
Department
shall
encumber
the
full
amount
pursuant
the
NOFA
and
provide
advance
payment
and
subsequent
payments
in
accordance
with
Exhibit
B.

All
terms,
conditions
and
other
relevant
provisions
will
be
subject
to
amendments
as
a
result
of
subsequent
applications
and
awards
for
remaining
funds
after
the
initial
application
up
to
25 percent
of
the
full
amount
described
in
Exhibit
B.

3. Definitions Terms
herein
shall
have
the
same
meaning
as
defined
by
the
NOFA.

4. Scope
of
Work

5. Grantee
shall
use
the
awarded
funds
in
accordance
with
the
approved
Scope
of
Work
as
contained
in
the
timeline
and
budget
and
related
information
outlined
in
the
application
for
25 percent
advance
payment
and
any
subsequent
applications
for
partial
or
full
funding.

The
Scope
of
Work
may
be
amended
in
compliance
with
statutory
requirements
subject
to
approval
by
the
Department.

Monitoring A
The
Grantee
shall
maintain
books,
records,
documents,
and
other
evidence
that
demonstrates
the
funding
was
used
for
the
appropriate
purposes,
as
described
in
the
Scope
of
Work,
approved
application,
subsequent
approved
applications
and
all
other
pertinent
documents.

These
books,
records,
documents
and
other
evidence
shall
be
made
available
for
audit
and
inspection
by
the
Department
at
any
point
during
the
term
of
the
agreement
and
subject
to
any
amendments
to
this
agreement.
. B.

The
Department
may
request
additional
information,
as
needed,
to
meet
the
statutory
requirements
of
the
Program
and
facilitate
amendments
to
this
agreement,
including
but
not
limited
to
reporting
or
audit
requirements,
progress
in
implementing
advance
payment(s),
or
award
of
the
full
amount
available
to
the
Grantee.

C.

The
Department
may
monitor
expenditures
and
activities
of
an
applicant,
as
the
Department
deems
necessary,
to
ensure
compliance
with
statutory
or
Department
requirements.

Regional
Early
Action
Planning
Grant
Program
(REAP)
NOFA
Date:

October
10,
2019
Approved
Date:

March
30,
2020
Prep.

Date:

March
31,
2020
(Rev. 5/28/2020)
Attachment 1

6. EXHIBIT A
Association of Bay Area Governments
19-REAP-13915

D. The Department may, as it deems appropriate or necessary, request the repayment of funds from an applicant, or pursue any other remedies available to it by law for failure to comply with statutory or Department requirements.

E. The Department's decision to approve or deny an application or request for funding pursuant to the Program, and its determination of the amount of funding to be provided, shall be final.

F. Monitoring provisions may be amended and are subject to additional provisions in accordance with this agreement or subsequent amendments.

Department Contract Coordinator
The Contract Coordinator of this Agreement for the Department is the Housing Policy Development Manager, or the Manager's designee. Unless otherwise informed, any notice, report, or other communication required by this Agreement shall be mailed by first class mail to the Department Contract Coordinator at the following address:

Department of Housing and Community Development
Housing Policy Development Division
Land Use Planning Unit
Attention: REAP Program Manager
2020 West El Camino Avenue, Suite 500
Sacramento, CA 95833
P. 0. Box 952050
Sacramento, CA 94252-2050
Regional Early Action Planning Grant Program (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: March 31, 2020
(Rev. 5/28/2020)
Attachment 1

Association of Bay Area Governments
19-REAP-13915

(Rev. 5/28/2020)

EXHIBIT B
Regi
onal Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: (March 31, 2020)

BUDGET DETAIL AND PAYMENT PROVISIONS

1. Application for Funds
A. The Department is entering into this Agreement on the basis of, and in reliance on facts, information, assertions and representations contained in any
application and award and any subsequent modifications or additions thereto approved by the Department. All awarde d applications for funding and
any approved modifications and additions thereto are hereby incorporate
d into this Agreement.

B. T
he Grantee warrants that all information, facts, assertions and representations contained in any approved application and approved modifications and additions thereto are true, correct, and complete to the best of the Grantee’s knowledge. In the event that any part of an application
and any approved modification and addition thereto is untrue, incorrect, incomplete, or misleading in such a manner that would substantially affect the Department's approval, disbursement, or monitori ng of the funding and the grant or activities governed by this Agreement, the Department may declare a breach hereof and take such acti on or pursue such remedies as are provided for breach hereof.

2. Grant
and Reimbursement Limit
A. The maximum total amount encumbered to the Grantee pursuant to this Agreement shall not exceed $ 5,900,000.00.

B. This Agreement authorizes an initial advance payment(s) up to 25% Award for
eligible activities as described in the 25 percent application.

C. This
Agreement authorizes subsequent award amounts or advance payment
up to the total award amount as described in Section 2A, of this Exhibit, and subject to Department approval.

D. T
he Grantee shall submit and follow a schedule for the expenditure of the 25 percent advance payment, any subsequent payment and the total Attachment 1

Association of Bay Area Governments
19-REAP-13915

(Rev. 5/28/2020)

EXHIBIT B
Region
al Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: (March 31, 2020)
amount prior to disbursement of funds. The schedule is subject to Department approval and may be revised as the Department deems necessary.

3. Grant Timelines
A. This
Agreement is effective upon approval by the Department
representative’s signature on page one of the fully executed Standard Agreement, STD 213, (the “Effective Date”).

B. All
Grant funds must be expended by December 31, 2023 pursuant to Health and Safety Code section 50515.04(c )(1).

C. The G
rantee shall deliver to the Department all final invoices for reimbursement on or before November 1, 2023, to ensure the Department meets the December 31, 2023 expenditure deadline. Under special circumstances, approved by the Department, the Department may provide exception, including, but not limited to, advance payment to carry out the terms of this agreement.

D. It
is the responsibility of the Grantee to monitor the project and timeliness of draws within the specified dates.

4. Allowable Uses of Grant Funds
A. The D
epartment shall not award or disburse funds unless it determines that the grant funds shall be expended in compliance with the terms and provisions of the NOFA which includes associated forms and guidelines and this Agreement.

B. Grant
funds shall only be used by the Grantee for project activities approved by the State that involve planning activities in accordance with the NOFA.

C. Grant
funds may not be used for administrative costs of persons employed by the Grantee for activities not directly related to eligible activities.

D. The Gr
antee shall use no more than 5 percent of the total grant amount for costs related to administration of the project.

Attachment 1

Association of Bay Area Governments
19-REAP-13915

(Rev. 5/28/2020)

EXHIBIT B
Region
al Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: (March 31, 2020)
E. A Grant
ee that receives funds under this Program may use a
subcontractor and Grantee shall be accountable to the Department to ensure subcontractor’s performance. The subcontract shall provide for compliance with all the requirements of the Program. The subcontract shall not relieve the Grantee of its responsibilities under the Program.

F. Aft
er the contract has been executed by the Department and all parties, approved and eligible costs for eligible activities may be reimbursed for the project(s) upon completion of deliverables or paid in advance in accordance with the scope of work and subject to the terms and conditions of this Agreement.

G. Only approved and eligible costs incurred for work after October 1, 2019, continued past the date of execution and acceptance of the Standard Agreement and completed during the grant term will be reimbursable.

5. Performance
The G
rantee will be subject to amendments to this section as a result of future applications and awards.

6. Fiscal Administration
A. The G
rantee will be subject to amendments to this section as a result of subsequent applications and awards.

B. It
is mutually agreed that if the Budget Act of the current year and/or any subsequent years covered under this Agreement does not appropriate sufficient funds for the program, this Agreement shall be terminated by the State by providing Contractor written notice of not less than thirty (30) days prior to the effective date of the termination. In the event of termination by the State due to lack of Budget appropriation, the State and Contractor shall be relieved of any and all obligations under this Grant Agreement on the effective date of termination.

C. Subjec
t to Section 6.B. above, if funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, the State shall Attachment 1

Association of Bay Area Governments
19-REAP-13915

(Rev. 5/28/2020)

EXHIBIT B
Region
al Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: (March 31, 2020)
have the sole discretion to cancel this Agreement without cause, no liability occurring to the State, or amend the current Grant Agreement and amount allocated to Contractor.

Attachment 1

Association of Bay Area Governments
19-REAP-13915

(Rev. 5/28/2020)

EXHIBIT D

Regional Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: (date inserted by Contract Manager when each SA is created)

REAP TERMS AND CONDITIONS

1. Reporting

A. During the term of the Standard Agreement the Grantee shall submit, upon request of the Department, a performance report that demonstrates satisfaction of all requirements identified in this Standard Agreement.

B. The Grantee will be subject to amendments to this section as a result of subsequent applications and awards.

2. Accounting Records

A. The Grantee, its staff, contractors and subcontractors shall establish and maintain an accounting system and reports that properly accumulate incurred project costs by line. The accounting system shall conform to Generally Accepted Accounting Principles (GAAP), enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment vouchers or invoices.

B. The Grantee shall establish a separate ledger account for receipts and expenditures of grant funds and maintain expenditure details in accordance with the scope of work, project timeline and budget. Separate bank accounts are not required.

C. The Grantee shall maintain documentation of its normal procurement policy and competitive bid process (including the use of sole source purchasing), and financial records of expenditures incurred during the course of the project in accordance with GAAP.

D. The Grantee agrees that the State or designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of the Standard Agreement.

E. Subcontractors employed by the Grantee and paid with moneys under the terms of this Standard Agreement shall be responsible for maintaining accounting records as specified above.

3. Audits

A. At any time during the term of the Standard Agreement, the Department may Attachment 1

Association of Bay Area Governments
19-REAP-13915

(Rev. 5/28/2020)

EXHIBIT D

Regional Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: (date inserted by Contract Manager when each SA is created)

perform or cause to be performed a financial audit of any and all phases of the award. At the Department’s request, the Grantee shall provide, at its own expense, a financial audit prepared by a certified public accountant. The State of California has the right to review project documents and conduct audits during and over the project life.

1) The Grantee agrees that the Department or the Department’s designee shall have the right to review, obtain, and copy all records and supporting documentation pertaining to performance of this Agreement.

2) The Grantee agrees to provide the Department or the Department’s designee, with any relevant information requested.

3) The Grantee agrees to permit the Department or the Department’s designee access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees who might reasonably have information related to such records and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpose of determining compliance with statutes, Program guidelines, and this Agreement.

B. I f a financial audit is required by the Department, the audit shall be performed by an independent certified public accountant. Selection of an independent audit firm shall be consistent with procurement standards contained in Exhibit D, Section 8 subsection A. of this Standard Agreement.

1) The Grantee shall notify the Department of the auditor's name and address immediately after the selection has been made. The contract for the audit shall allow access by the Department to the independent auditor's working papers.

2) The Grantee is responsible for the completion of audits and all costs of preparing audits.

3) If there are audit findings, the Grantee shall submit a detailed response acceptable to the Department for each audit finding within 90 days from the date of the audit finding report.

C. The Grantee agrees to maintain such records for possible audit after final payment pursuant to Exhibit D, Section 3, subsection E. below, unless a longer period of records retention is stipulated.

Attachment 1

Association of Bay Area Governments
19-REAP-13915

(Rev. 5/28/2020)

EXHIBIT D

Regional Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: (date inserted by Contract Manager when each SA is created)

1) If any litigation, claim, negotiation, audit, monitoring, inspection or other action has been started before the expiration of the required record retention period, all records must be retained by the Grantee, contractors and sub-contractors until completion of the action and resolution of all issues which arise from it. The Grantee shall include in any contract that it enters into in an amount exceeding $10,000.00, the Department’s right to audit the contractor’s records and interview their employees.

2) The Grantee shall comply with the caveats and be aware of the penalties for violation of fraud and for obstruction of investigation as set forth in California Public Contracts Code section 10115.10.

D. The determination by the Department of the eligibility of any expenditure shall be final.

E. The Grantee shall retain all books and records relevant to this Agreement for a minimum of (3) three years after the end of the term of this Agreement. Records relating to any and all audits or litigation relevant to this Agreement shall be retained for five years after the conclusion or resolution of the matter.

4. Remedies of Non-performance

A. Any dispute concerning a question of fact arising under this Standard Agreement that is not disposed of by agreement shall be decided by the Department’s Housing Policy Development Manager, or the Manager’s designee, who may consider any written or verbal evidence submitted by the Grantee. The decision of the Department’s Housing Policy Development Manager or Designee shall be the Department’s final decision regarding the dispute, not subject to appeal.

B. Neither the pendency of a dispute nor its consideration by the Department will excuse the Grantee from full and timely performance in accordance with the terms of this Standard Agreement.

C. In the event that it is determined, at the sole discretion of the Department, that the Grantee is not meeting the terms and conditions of the Standard Agreement, immediately upon receiving a written notice from the Department to stop work, the Grantee shall cease all work under the Standard Agreement. The Department has the sole discretion to determine that the Grantee meets the terms and conditions after a stop work order, and to deliver a written notice to the grantee to resume work under the Standard Agreement.

Attachment 1

Association of Bay Area Governments
19-REAP-13915

(Rev. 5/28/2020)

EXHIBIT D

Regional Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: (date inserted by Contract Manager when each SA is created)

D. Both the Grantee and the Department have the right to terminate the Standard Agreement at any time upon 30 days written notice. The notice shall specify the reason for early termination and may permit the Grantee or the Department to rectify any deficiency(ies) prior to the early termination date. The Grantee shall submit any requested documents to the Department within 30 days of the early termination notice.

E. A strong implementation component for the funded activity through this Program is required, including, where appropriate, agreement by Grantee and its subcontractors to formally adopt or complete a planning or other activity consistent with the NOFA. The Grantee must carry out provisions to ensure the adoption or completion of activities in accordance with the NOFA, including activities subcontracted to localities. Grantee may be subject to repayment of the grant should the Grantee or any of its subcontractors under this agreement fail to adopt or complete activities set forth in its application, this Agreement or any amendments to this Agreement.

F. The following shall each constitute a breach of this Agreement:

1) Grantee’s failure to comply with any term or condition of this Agreement.

2) Use of, or permitting the use of, grant funds provided under this Agreement for any ineligible costs or for any activity not specified and approved under this Agreement.

3) Any failure to comply with the deadlines set forth in this Agreement unless approved by the Program Manager in writing.

G. In addition to any other remedies that may be available to the Department in law or equity for breach of this Agreement, the Department may at its discretion, exercise a variety of remedies, including but not limited to:

1) Revoke existing REAP award(s) to the Grantee;

2) Require the return of unexpended REAP funds disbursed under this Agreement;

3) Require repayment of REAP Funds disbursed and expended under this agreement;

4) Seek a court order for specific performance of the obligation defaulted upon, or the appointment of a receiver to complete the obligations in accordance Attachment 1

Association of Bay Area Governments
19-REAP-13915

(Rev. 5/28/2020)

EXHIBIT D

Regional Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: (date inserted by Contract Manager when each SA is created)

with the REAP Program requirements; and

5) Other remedies available at law, by and through this agreement. All remedies available to the Department are cumulative and not exclusive.

6) The Department may give written notice to the Grantee to cure the breach or violation within a period of not less than 15 days.

H. The Grantee may be subject to amendment of this section as a result of subsequent applications and awards.

5. Indemnification

Neither the Department nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by the Grantee, its officers, employees, agents, its contractors, its sub-recipients or its subcontractors under or in connection with any work, authority or jurisdiction conferred upon the Grantee under this Standard Agreement. It is understood and agreed that the Grantee shall fully defend, indemnify and save harmless the Department and all of the Department’s staff from all claims, suits or actions of every name, kind and description brought forth under, including, but not limited to, tortuous, contractual, inverse condemnation or other theories or assertions of liability occurring by reason of anything done or omitted to be done by the Grantee, its officers, employees, agents contractors, sub-recipients, or subcontractors under this Standard Agreement.

6. Waivers

No waiver of any breach of this Agreement shall be held to be a waiver of any prior or subsequent breach. The failure of the Department to enforce at any time the provisions of this Agreement, or to require at any time, performance by the Grantee of these provisions, shall in no way be construed to be a waiver of such provisions nor to affect the validity of this Agreement or the right of the Department to enforce these provisions.

7. Relationship of Parties

It is expressly understood that this Standard Agreement is an agreement executed by and between two independent governmental entities and is not intended to, and shall not be construed to, create the relationship of agent, servant, employee, partnership, joint venture or association, or any other relationship whatsoever other than that of an independent party.

8. Third-Party Contracts
Attachment 1

Association of Bay Area Governments
19-REAP-13915

(Rev. 5/28/2020)

EXHIBIT D

Regional Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: (date inserted by Contract Manager when each SA is created)

A. All state-government funded procurements must be conducted using a fair and competitive procurement process. The Grantee may use its own procurement procedures as long as the procedures comply with all City/County laws, rules and ordinances governing procurement, and all applicable provisions of California state law.

B. Any contract entered into as a result of this Agreement shall contain all the provisions stipulated in this Agreement and shall be applicable to the Grantee’s sub-recipients, contractors, and subcontractors. Copies of all agreements with sub-recipients, contractors, and subcontractors shall be submitted to the Department’s program manager.

C. The Department does not have a contractual relationship with the Grantee’s sub- recipients, contractors, or subcontractors, and the Grantee shall be fully responsible for monitoring and enforcement of those agreements and all work performed thereunder.

9. Compliance with State and Federal Laws, Rules, Guidelines and Regulations

A. The Grantee agrees to comply with all state and federal laws, rules and regulations that pertain to construction, health and safety, labor, fair employment practices, equal opportunity, and all other matters applicable to the grant, the Grantee, its contractors or subcontractors, and any other grant activity.

B. During the performance of this Agreement, the Grantee assures that no otherwise qualified person shall be excluded from participation or employment, denied program benefits, or be subjected to discrimination based on race, color, ancestry, national origin, sex, gender, gender identity, gender expression, genetic information, age, disability, handicap, familial status, religion, or belief, under any program or activity funded by this contract, as required by Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 USC 3601-20) and all implementing regulations, and the Age Discrimination Act of 1975 and all implementing regulations.

C. The Grantee shall include the nondiscrimination and compliance provisions of this clause in all agreements with its sub-recipients, contractors, and subcontractors, and shall include a requirement in all agreements that each of them in turn include the nondiscrimination and compliance provisions of this Attachment 1

Association of Bay Area Governments
19-REAP-13915

(Rev. 5/28/2020)

EXHIBIT D

Regional Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: (date inserted by Contract Manager when each SA is created)

clause in all contracts and subcontracts they enter into to perform work under REAP.

D. The Grantee shall, in the course of performing project work, fully comply with the applicable provisions of the Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. (42 U.S.C. 12101 et seq.) E. The Grantee shall adopt and implement affirmative processes and procedures that provide information, outreach and promotion of opportunities in the REAP project to encourage participation of all persons regardless of race, color, national origin, sex, religion, familial status, or disability. This includes, but is not limited to, a minority outreach program to ensure the inclusion, to the maximum extent possible, of minorities and women, and entities owned by minorities and women, as required by 24 CFR 92.351.

10. Litigation

A. If any provision of this Agreement, or an underlying obligation, is held invalid by a court of competent jurisdiction, such invalidity, at the sole discretion of the Department, shall not affect any other provisions of this Agreement and the remainder of this Agreement shall remain in full force and effect. Therefore, the provisions of this Agreement are, and shall be, deemed severable.

B. The Grantee shall notify the Department immediately of any claim or action undertaken by or against it, which affects or may affect this Agreement or the Department, and shall take such action with respect to the claim or action consistent with the terms of this Agreement and the interests of the Department.

11. Changes in Terms/Amendments

A. The Grantee may be subject to amendments to this section as a result of subsequent applications and awards.

B. This Agreement may only be amended or modified by mutual written agreement of both parties.

12. State-Owned Data

A. Definitions

Attachment 1

Association of Bay Area Governments
19-REAP-13915

(Rev. 5/28/2020)

EXHIBIT D

Regional Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: (date inserted by Contract Manager when each SA is created)

1) Work:

The work to be directly or indirectly produced by the Grantee, its employees, or by and of the Grantee’s contractor’s, subcontractor’s and/or sub-recipient’s employees under this Agreement.

2) Work Product:

All deliverables created or produced from Work under this Agreement including, but not limited to, all Work and Deliverables conceived or made, either solely or jointly with others during the term of this Agreement and during a period of six months after the termination thereof, which relates to the Work commissioned or performed under this Agreement. Work Product includes all deliverables, inventions, innovations, improvements, or other works of authorship Grantee and/or Grantee’s contractor subcontractor and/or sub-recipient may conceive of or develop in the course of this Agreement, whether or not they are eligible for patent, copyright, trademark, trade secret or other legal protection.

3) Inventions:

Any ideas, methodologies, designs, concept, technique, invention, discovery, improvement or development regardless of patentability made solely by the Grantee or jointly with the Grantee’s contractor, subcontractor and/or sub- recipient and/or Grantee’s contractor, subcontractor, and/or sub-recipient’s employees with one or more employees of the Department during the term of this Agreement and in performance of any Work under this Agreement, provided that either the conception or reduction to practice thereof occurs during the term of this Agreement and in performance of Work issued under this Agreement.

B. Ownership of Work Product and Rights

1) All Work Products derived by the Work performed by the Grantee, its employees or by and of the Grantee's contractor's, subcontractor's and/or sub-recipient's employees under this Agreement, shall be owned jointly by the Department, Grantee, and any of Grantee’s sub-recipients (“joint owners”), and shall be considered to be works made for hire by the Grantee and the Grantee's contractor, subcontractor and/or subrecipient for the Department for the benefit of the joint owners. The joint owners shall jointly own all copyrights in the work product.

2) Grantee, its employees and all of Grantee's contractor's, subcontractor's and sub-recipient's employees agree to perpetually assign, and upon Attachment 1

Association of Bay Area Governments
19-REAP-13915

(Rev. 5/28/2020)

EXHIBIT D

Regional Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: (date inserted by Contract Manager when each SA is created)

creation of each Work Product automatically assign, to the joint owners, ownership of all United States and international copyrights in each and every Work Product, insofar as any such Work Product, by operation of law, may not be considered work made for hire by the Grantee's contractor, subcontractor and/or subrecipient from the Department. From time to time upon a joint owner's request, the Grantee's contractor, subcontractor and/or subrecipients, and/or its employees, shall confirm such assignments by execution and delivery of such assignment, confirmations or assignment or other written instruments as the Department may request.

Grantee hereby waives all rights relating to identification of authorship restriction or limitation on use or subsequent modification of the Work. 3) Grantee, its employees and all Grantee's contractors, subcontractors and sub-recipients hereby agree to assign to the Department joint ownership of all Inventions. The Grantee, its employees and Grantee's contractor, subcontractor and /or subrecipient shall promptly make a complete written disclosure to the Department of each Invention not otherwise clearly disclosed to the Department in the pertinent Work Product, specifically noting features or concepts that the Grantee, its employees and/or Grantee's contractor, subcontractor and/or subrecipient believes to be new or different.
4) Upon completion of all work under this Agreement, all intellectual property rights, ownership and title to all reports, documents, plans, specifications and estimates, produced as part of this Agreement shall automatically vest in the joint owners and no further agreement will be necessary to transfer ownership to the joint owners.

13. Special Conditions

The State reserves the right to add any special conditions to this Agreement it deems necessary to assure that the policy and goals of the Program are achieved.

Attachment 1