Sunnyvale City Council
January 25, 2022

November 5, 2021
Kent Steffens
City M
anager
City of Sunnyvale
456 W Olive Ave
Sunnyvale, CA 94088
RE: REGIONAL EARLY ACTION PLANNING (REAP) GRANT SUBALLOCATION

AGREEMENT, CITY OF SUNNYVALE
Dear Kent Steffens:

This le
tter, effective as of September 1, 2021 (“Effective Date”) is the agreement between
City of Sunnyvale (“Recipient”) and the Association of Bay Area Governments (“ABAG”) to support the performance of various housing program and policy work rel
ating to the update of the 2023-2031 Housing Element and implementation of the 2020 Housing Strategy (“the Agreement”).

WHERAS, ABAG has received funds from grant funds awarded to ABAG by the State of California Department of Housing and Community Development (HCD) Grant Agreement No. 19-REAP-13915 (“REAP Grant Agreement”), attached hereto and incorporated herein by this reference as Attachment B, pursuant to the Notice of Funding Availability – REAP (“REAP NOFA”), attached hereto and incorporated herein by this reference as Attachment C. Accordingly, any applicable clauses in Attachments B and C are hereby i
mposed upon Recipient; and
WHEREAS, ABAG has obtained funds from the California Department of Housing and Community Development (“HCD”), the state-required clauses in Attachment D, State- Required Clauses, are attached hereto and incorporated herein; and WHEREAS, ABAG has suballocated one hundred five thousand fifty nine dollars and zero cents ($105,059.00) of REAP funding to support the Project (“Maximum Payment”).

Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

1. It is agreed that Recipient either has or will perform all the services specified in Attachment A- 1, Scope of Work, according to the schedule in Attachment A-2, Project Payment Schedule, both attached hereto and incorporated herein by this reference, and in compliance with the requirements of all other attachments to this Agreement, which are also incorporated herein by this reference.

2. Work will be reviewed by Heather Peters or a designated representative (herein “ABAG Project Manager”) for compliance with the terms of this agreement including the terms of Attachments B and C hereto. Eligible activities must be related to housing planning and facilitate the streamlining and acceleration of housing production. Ineligible activities include:
a) RHNA appeals;
b) Activities unrelated to accelerating housing production; c) Activities unrelated to preparation and adoption of planning documents, and process improvements to accelerate housing production;
d) Activities that obstruct or hinder housing production, e.g., moratoriums, downzoning, planning documents with conditional use permits that significantly impact approval certainty and timing, planned development, or other similarly constraining processes; e) Capital financing, operation or funding related to programs of individual housing development projects; and
f) Administrative costs of persons employed by the grantee for activities not directly related to the preparation and adoption of the proposed Activity or Activities.

3. ABAG has developed a project management platform with City Innovate, Inc. (City Innovate) to assist in the procurement, contracting, and invoicing process. The Terms & Conditions of use for the City Innovate platform are attached hereto and incorporated as Attachment F-1 and the Software as a Service Agreement by City Innovate and ABAG dated April 15, 2021 is attached hereto and incorporated as Attachment F-2. Accordingly, Recipient shall comply with any and all applicable clauses in Attachment F-1 and Attachment F-2.

4. Recipient will be compensated for the work in accordance with Attachment A-2, Project Payment Schedule, attached hereto and incorporated herein by this reference. Expenses shall not exceed the Maximum Payment set forth above. ABAG shall make payments to Recipient in accordance with the provisions described in Attachment A-2.

Contingent upon Recipient’s satisfactory completion of work products or milestones, as applicable, required under Attachment A-1, Recipient shall submit invoices to ABAG for reimbursement of that portion of the funds available to Recipient that have been expended. This invoice will be in the format and provided no more frequently than prescribed by ABAG in Attachment A-2. In addition, all supporting documentation must accompany expenditures included on Recipient invoices. Payment shall be made by ABAG within thirty (30) days of receipt of an acceptable invoice, Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

which shall be subject to the review and approval of ABAG’s Project Manager or a designated representative. Approval of an invoice shall not be unreasonably withheld. Recipient should submit invoices electronically via email to ABAG at [email protected] or as directed by the ABAG Project Manager

5. To the extent requested by the ABAG Project Manager, Recipient, or consultant procured by ABAG on behalf of Recipient (if any), shall submit communications, progress reports no more frequently than quarterly and required documentation, including but not limited to invoices, requests for agreement modifications, and information on payments received and made to subrecipients, subrecipient utilization, and if applicable, certified payrolls, to the ABAG Project Manager or their designee via one or more web-based systems designated by ABAG to which ABAG will provide Recipient with system access. ABAG may withhold payment of invoices and/or require consultant procured by ABAG on behalf of Recipient to cease or suspend work pending receipt of such communications, progress reports and required documentation via the applicable web-based system.

6. Recipient acknowledges that a goal of ABAG’s Regional Housing Technical Assistance Program is to share work product funded in whole or in part by REAP widely to achieve economies of scale and to avoid inefficient duplication of effort. To further this goal, Recipient shall provide a copy of the final work product described in Attachment A-1 to ABAG via email to [email protected] within 10 days of completion. If completion of a task contained in Attachment A-1 does not result in the production of a document, then Recipient shall submit a short summary of the work completed to the reasonable satisfaction of ABAG, including lessons learned, to MTC/ABAG via email to [email protected] within 10 days of completion.

Additionally, Recipient acknowledges that all Work Product created pursuant to this Agreement is subject to the joint ownership requirements of Section 12, State-Owned Data, of Exhibit D, REAP Terms and Conditions, of Attachment B, REAP Grant Agreement, as Work Product is defined therein and Recipient shall take a necessary actions to comply and have its subcontractors and/or subconsultants comply with such requirements.

7. All work product described in Attachment A-1 shall comply with federal accessibility requirements, as specified in Section 508 of the Rehabilitation Act (29 U.S.C. § 798 SECTION 508”).

Compliance encompasses both website structure (design, layout, function), and website content (text, images, documents). ABAG shall provide training to Recipient or its subconsultants on Section 508.

8. Recipient acknowledges that a goal of ABAG’s Regional Housing Technical Assistance Program is to facilitate statewide, regional and subregional collaboration on housing planning. To further this goal, at all times through the term of this Agreement, Recipient shall designate at least one person who is currently responsible for providing housing planning services to it to receive communications from ABAG, HCD and subregional Planning Collaboratives and their representatives Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

regarding available technical assistance at the state, regional and subregional levels. Recipient designates the following person(s) to receive these communications and shall notify ABAG via email at [email protected] of a replacement designee in the event of a change in personnel within 10 days:

Jenny Carloni
Housing Officer
[email protected]
408-730-7465

9. The term of the Agreement shall begin on the Effective Date and conclude on December 31, 2023 unless ABAG terminates this agreement earlier as provided below.

10. If Recipient fails to perform as specified in the Agreement, or if HCD terminates REAP funding to ABAG due to failure of the California Legislature to appropriate sufficient funds for the REAP program, ABAG may terminate the Agreement for cause by advance 10-day written notice, providing Recipient with the opportunity to cure the default or present an acceptable plan for cure within the 10-day period. At the end of the 10-day period, if the default has not been cured or an acceptable plan of cure presented, ABAG may issue a notice of termination for default, effective immediately, and Recipient will be entitled only to costs incurred for acceptable work performed in accordance with the Agreement, not to exceed the maximum amount payable under the Agreement for such work.

11. Recipient agrees to obtain and maintain at its own expense for the duration of the Agreement the types of insurance listed in Attachment E, Insurance Provisions.

12. Except for invoices and any communications required to be submitted by Recipient via web- based system, all notices or other communications to either party by the other shall be deemed given when made in writing and delivered, mailed, or emailed to such party at their respective addresses as follows:

To ABAG: Attention: Heather Peters
Association of Bay Area Governments
375 Beale Street, Suite 800
San Francisco, CA 94105
Email: [email protected]
Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

To RECIPIENT: Attention:

Trudi Ryan
Community Development Director
City of Sunnyvale
P.O. Box 3707
Sunnyvale, CA 94088-3707
Email: [email protected]

13. In performing work under the Agreement, Recipient will be acting as an independent contractor and not as an agent or employee of ABAG. Recipient will have no authority to contract in the name of ABAG, and Recipient will be responsible for its own acts and those of its agents and employees.

14. Recipient shall indemnify, defend, and hold harmless ABAG, its board members, representatives, agents and employees (ABAG Indemnified Parties) from and against all claims, injury, suits, demands, liability, losses, damages and expenses, whether direct or indirect (including any and all costs and expenses in connection therewith), incurred by reason of any act or failure to act of Recipient, its officers, employees or agents, or subconsultants or any of them in connection with this Agreement.

15. Recipient agrees to establish and maintain an accounting system conforming to generally accepted accounting principles (GAAP) that is adequate to accumulate and segregate reasonable, allowable, and allocable project costs. Recipient further agrees to keep all records pertaining to the Project(s) being funded for audit purposes for a minimum of: (a) three (3) years following final payment to Recipient, (b) four (4) years following the fiscal year of last expenditure under the Agreement; or (c) until completion of any litigation, claim or audit, whichever is longest; and ABAG may inspect and audit such records during that period of time.

16. Any claim or controversy concerning the interpretation, application, or implementation of this Agreement between ABAG and Recipient that cannot be resolved through the informal, good faith efforts of the parties may, by specific agreement of the parties, be submitted to alternative dispute resolution (that is, mediation or arbitration) with the parameters for such dispute resolution being agreed to by the parties at the time. If a dispute is not resolved through discussion or the parties do not agree to alternative dispute resolution, either party may pursue available legal remedies in a California State or Federal court of competent jurisdiction. Recipient must file a government claim pursuant to Government Code section 910 et seq. in order to initiate a civil action. The prevailing party in any dispute shall be entitled to payment of its attorneys’ fees and costs. This section shall survive the termination or expiration of the Agreement.

17. All questions pertaining to the validity and interpretation of the Agreement shall be determined in accordance with the laws of the State of California applicable to agreements made and to be performed within the State.

Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

18. Recipient may subcontract to consultants or contractors for performance of portions of the work required under this Agreement, without the prior written consent of ABAG, provided Recipient complies with any other applicable requirements of this Agreement and the applicable Attachments hereto, and applicable federal and state requirements.

19. For purposes of this Agreement, “subconsultant” shall mean any consultant or contractor under contract with the Recipient to perform Project work. Any subconsultants must be engaged under written contract with Recipient with provisions allowing Recipient to comply with all requirements of this Agreement. Failure of a subconsultant to provide any insurance required under this Agreement shall be at the risk of Recipient. ABAG’s Project Manager shall be notified in writing of any substitution or addition of subconsultants.

20. Nothing contained in this Agreement or otherwise, shall create any contractual relation between ABAG and any subconsultants, and no subcontract shall relieve Recipient of his/her responsibilities and obligations hereunder. Recipient agrees to be as fully responsible to ABAG for the acts and omissions of its subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Recipient. Recipient 's obligation to pay its subconsultants is an independent obligation from ABAG's obligation to make payments to Recipient.

21. Applicable provisions of this Agreement shall be included in any subcontract or subconsultant agreement entered into under of this Agreement. If the Recipient already has a subconsultant in place performing applicable work, then Recipient is responsible for communicating to their subconsultant of all applicable provisions of this Agreement.

22. This Agreement constitutes the complete agreement between the parties and supersedes any prior written or oral communications. Any changes to this agreement may only be amended by mutual agreement of ABAG and Recipient at any time during the term of the Agreement. All such changes shall be incorporated in written amendments, which shall specify the changes in work performed and any adjustments in compensation and schedule. All amendments shall be executed by the authorized Executive or a designated representative of ABAG and Recipient and specifically identified as amendments to the Agreement. The ABAG Project Manager is not a designated representative, for purposes of executing an amendment.

23. If any term or condition of this Agreement is found to be illegal or unenforceable, such term or condition shall be deemed stricken and the remaining terms and conditions shall remain valid and in full force and effect.

24. This Agreement is not for the benefit of any person or entity other than the parties.

Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

If you agree, please sign this letter in the space provided below.

Very truly yours,
Therese W. McMillan
Executive Director
Accepted and Agreed to this:

Date: __________________
Kent Steffens
City Manager
City of Sunnyvale
Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

ATTACHMENT A-1
SCOPE OF WORK FOR CITY OF SUNNYVALE (“RECIPIENT”)
All work will support the overarching goals of the REAP program to support planning activities that (1) accelerate housing production or (2) facilitate compliance in implementing the sixth cycle of the RHNA.

Funds will only be used for planning activities and will not be used to support RHNA appeals or the development of specific housing projects, including capital financing, building operation costs, or resident services.

Project 1 – 2023-2031 Housing Element Update
Sunnyvale will use REAP funding to offset additional staff and consultant costs unable to be covered by LEAP grant funding. Sunnyvale executed a consultant contract of $175,000 however total Housing Element consultant costs are $190,000, not including staff time. Recipient intends to use $30,059 in REAP funding towards the outreach component of the Housing Element Update.

Task 1 – Community Engagement
Sunnyvale and its Consultant will prepare a community outreach plan that provides opportunities for meaningful engagement for a broad array of community interest and meets state requirements to make a diligent effort to engage lower income residents. As part of this task, various outreach events will be planned and outreach documents will be translated into the appropriate languages for Sunnyvale residents. In addition, an interpreter shall be made available during in person and/or virtual outreach meetings.

Task 1 Deliverables:

1.1 Interpreter at three, four-hour workshops

1.2 Translation of written materials for all workshops and surveys.

1.3 Staff support for outreach meetings (attendance of up to 4 housing division staff at 3, 4-hour meetings)
Project 2 – Sunnyvale Housing Strategy Implementation
The Housing Strategy is a comprehensive approach to addressing priority housing issues in Sunnyvale.

The selected strategies and implementation schedule were based on community and Council feedback and professional judgment on which strategies best suit Sunnyvale. Adopted strategies are organized around four themes (supply-side, demand-site, mobile home parks, age-friendly), and further prioritized into three Tiers for implementation. Tier 1 strategies were selected to address high priority (such as mobile home park rents) and relatively simple to implement (such as increasing ownership inclusionary percentage); work began immediately following adoption of the strategy:
• Mobile Home Park Memorandum of Understanding (MOU)
• Increase Ownership Inclusionary Percentage (from 12.5% to 15%) • Rezoning for More Residential (in specified area plans); and • Right to Lease Ordinance
Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

Tier 2, will start in FY 2021/2022:
• Promote New Age-Friendly Housing Production
• Tenant Protections/Relocation Assistance Ordinance
• Mobile Home Rent Stabilization – if MOU is not successful Tier 3 is currently unscheduled and includes:
• Protect At-Risk Affordable Senior Housing Projects and/or Preserve MHPs • Adapt Homes to Age in Place
• Modify Programs and/or Policies to Encourage Missing Middle Housing • De-Emphasize Dwelling Units per Acre as a Development Standard • Establish a Safe RV Parking Program
REAP funding will directly support implementation of the Housing Strategy, offsetting some of the costs for staff time needed for research, evaluation and outreach efforts primarily for the tenant protection and relocation assistance ordinance and Safe RV Parking.

Task 1: Tenant Protections/Relocation Assistance Ordinance Staff will prepare a new Ordinance of the Sunnyvale Municipal Code for tenant protections and relocation assistance in accordance with state law and community interest. This task includes staff time needed to research, hold outreach meetings, consult with legal staff, and prepare a draft ordinance for consideration by the City Council.

Task 1 Deliverables:

1.1 Research and Analysis on current state legislation addressing relocation (i.e. Housing Accountability Act and other new housing legislation).

1.2 Two outreach meetings, open to the public on the topic of tenant protections and relocation assistance needs.

1.3 Draft Ordinance and Staff report for Council consideration.

Task 2: Establish a Safe RV Parking Program
Staff will research and identify appropriate zoning designations in the city that can accommodate a new Safe RV Parking program. Staff will also prepare a new ordinance outlining the requirements of a new Safe RV Parking Program and hold various outreach meetings on the topic, prior to Ordinance consideration by the City Council.

Task 2 Deliverables:

2.1 Research and Analysis on current state legislation outlining temporary RV parking, homeless programs, and best practices of neighboring jurisdictions.

2.2 Two outreach meetings, open to the public on the topic of safe RV parking programs and potential appropriate zoning districts.

2.3 Draft Ordinance and Staff report for Council consideration.

Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

ATTACHMENT A-2

PROJECT PAYMENT SCHEDULE FOR CITY OF SUNNYVALE(“RECIPIENT”)

ABAG will reimburse Recipient for all expenses deemed reasonable and necessary by ABAG incurred by Recipient in the performance of this Agreement. Recipient shall submit invoices for:

DELIVERABLE DUE DATE AMOUNT
Project 1: Housing Element Update
Task 1 – Community Outreach Translation

1.1 Interpreter at three, four-hour workshops March 2022 $14,000

1.2 Translation of written materials for all workshops and surveys. March 2022 $1,000

1.3 Staff support for outreach meetings (attendance of up to 4 housing division staff at 3, 4-hour meetings)
March 2022 $15,059
Project 2: Housing Strategy Implementation
Task 1 – Tenant Protection and Relocation Assistance Ordinance

1.1 Research and Analysis on current state legislation outlining relocation (e.g. the Housing Accountability Act and other new legislation)
January 2022 $10,000

1.2 Two outreach meetings, open to the public on the topic of tenant protections and relocation assistance needs.

June 2022 $10,000

1.3 Draft Ordinance and Staff report for Council consideration August 2022 $10,000 Task 2 -Establish a Safe RV Parking Program

2.1 Research and Analysis on current state legislation outlining temporary RV parking, homeless programs, and best practices of neighboring jurisdictions.

October 2022 $15,000

2.2 Two outreach meetings, open to the public on the topic of safe RV parking programs and potential appropriate zoning districts.

April 2023 $20,000

2.3 Draft Ordinance and Staff report for Council consideration July 2023 $10,000

Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

ATTACHMENT B

STATE OF CALIFORNIA DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT GRANT AGREEMENT NO. 19-REAP-13915 (INCLUDES

AMENDMENTS)

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) 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
Region
al 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 awarded applications for funding and any
approved modifications and additions thereto are hereby incorporated
into this Agreement.

B. The
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 monitoring of
the funding and the grant or activities governed by this Agreement, the Department may declare a breach hereof and take such action 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. The
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
Regional
Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: (March 31, 2020)
E. A Grantee
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. After
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 Gr
antee will be subject to amendments to this section as a result of future applications and awards.

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

B. It i
s 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. Subject
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)
NO
FA 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. Dur
ing 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. Subc
ontractors 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

STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

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. O. 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:

RE: Grant 19-REAP-13915 AM.1
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 213A and Exhibits B) ST
D 213A:

Exhibit B, Section 2
Addition of 18,066,861.00 of remaining funding
Expenditure Period 10/1/2019-12/31/2023
B. For expeditious handling of the contract, the Department offers two options for returning signed
STD 213A; please complete the following:

1. Review the entire Agreement thoroughly and, if necessary, discuss the requirements with your legal an
d 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 213A and/or on page 2 of the STD 213A, if applicable.

3. Option
One: For electronic signature processing, reply to this Standard Agreement email notification with the attached, fully signed STD 213A page(s). All signatures APR 28 2021
Attachment 1

Association of Bay Area Governments
19-REAP-13915

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 a copy of the Standard Agreement, STD 213 A. Do not send photocopies of the signed STD 213A page(s). This copy 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 213A and amendments thereto, your governing body must adopt a resolution authorizing a designated official(s) to sign the STD 213 A 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 the e- signed copy or the copy of the STD 213A; 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 213A 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 [email protected], if you have any questions regarding the Standard Agreement or the provisions therein.

Sincer
ely,
Kelvin Singh
Contract Analyst
Attachment
cc: Regional Early Action Planning Grant Program, Paul McDougall Attachment 1

AMENDMENT NUMBER
1 AGREEMENT NUMBER
19-REAP-13915

STATE OF CALIFORNIA - DEPARTMENT OF GENERAL SERVICES

STANDARD AGREEMENT - AMENDMENT
STD 213A (Rev 04/2020)
☐ CHECK HERE IF ADDITIONAL PAGES ARE ATTACHED 3 PAGES SCO ID:

Purchasing Authority
Number

1. This Agreement is entered into between the State Agency and the Contractor named below:

STATE AGENCY NAME

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

CONTRACTOR NAME
Association of Bay Area Governments

2. The term of this Agreement is:

START DATE
06/11/2020

THROUGH END DATE
12/31/2024

3. The maximum amount of this Agreement after this Amendment is:
$23,966,861.00

4. The parties mutually agree to this amendment as follows. All actions noted below are by this reference made a part of the Agreement and incorporated herein:

The parties agree to comply with the terms and conditions of the following exhibits, which are by this reference made a part of the Agreement.

Exhibit B Budget Detail and Payment Provisions is being replaced with a new Exhibit B Budget Detail and Payment Provisions (revised 4/6/2021)
TOTAL NUMBER OF PAGES ATTACHED 3
All other terms and conditions shall remain the same.

IN WITNESS WHEREOF, 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
CITY
San Francisco
STA
TE
CA
ZIP
94105

PRINTED NAME OF PERSON SIGNING TITLE

CONTRACTOR AUTHORIZED SIGNATURE DATE SIGNED

STATE OF CALIFORNIA

CONTRACTING AGENCY NAME
Department of Housing and Community Development

CONTRACTING AGENCY ADDRESS
2020 W. El Camino Ave., Suite 130
CITY
Sacramento
STATE
CA
ZIP
95833

PRINTED NAME OF PERSON SIGNING
Shaun Singh
TITLE
Contracts Manager, Business & Contract Services Branch

CONTRACTING AGENCY AUTHORIZED SIGNATURE DATE SIGNED
CALIFORNIA DEPARTMENT OF GENERAL SERVICE APPROVAL EXEMPTION (If Applicable) Exempt per SCM Vol. 1. 4.04 A .3 (DGS memo dated
6/12/1981)

Attachment 1

Association of Bay Area Governments
19-REAP-13915, AM., 1

(Rev. 4/5/2021)

EXHIBIT B
Regi
onal Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 3, 2021
Prep. Date: April 5, 2021

BUDGET DETAIL AND PAYMENT PROVISIONS

1. Application for Funds
A. The D
epartment 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 awarded applications for funding and any approved modifications and additions thereto are hereby incorporated into this Agreement.

B. The G
rantee 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 monitoring of the funding and the grant or activities governed by this Agreement, the Department may declare a breach hereof and take such action 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 $23,966,861.00.

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

C. Th
is 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. The G
rantee shall submit and follow a schedule for the expenditure of the 25 percent advance payment, any subsequent payment and the total amount prior to disbursement of funds. The schedule is subject to Attachment 1

Association of Bay Area Governments
19-REAP-13915, AM., 1

(Rev. 4/5/2021)

EXHIBIT B
Regional E
arly Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 3, 2021
Prep. Date: April 5, 2021
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 Grantee 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 pr ovide 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 Department 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 approv
ed 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 Grantee 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, AM., 1

(Rev. 4/5/2021)

EXHIBIT B
Regional
Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 3, 2021
Prep. Date: April 5, 2021
E. A Grantee 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 Gr
antee will be subject to amendments to this section as a result of future applications and awards.

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

B. It i
s 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 immediately terminate and be of no further force and effect. In this event, the State and Contractor shall be relieved of any and all obligations under this Grant Agreement.

C. If f
unding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, the State shall 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

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

ATTACHMENT C
NOTICE OF FUNDING AVAILABILITY – REAP

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

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

ATTACHMENT D

STATE REQUIRED CLAUSES

FAIR EMPLOYMENT PRACTICES ADDENDUM

1. In the performance of the applicable Supplement, Recipient shall not discriminate against any employee for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g. cancer), age (over 40), marital status, and denial of family care leave. Recipient shall take affirmative action to ensure that employees are treated during employment without regard to their race, sex, sexual orientation, color, religion, ancestry, or national origin, physical disability, medical condition, marital status, political affiliation, family and medical care leave, pregnancy leave, or disability leave. Such action shall include, but not be limited to, the following: employment; upgrading; demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Recipient shall post in conspicuous places, available to employees for employment, notices to be provided by STATE setting forth the provisions of this Fair Employment section.

2. Recipient, its contractor(s) and all subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code Section 12900 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 12900(a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into the applicable Supplement by reference and made a part hereof as if set forth in full.

Each of the Recipient’s contractors and all subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreements as appropriate.

3. Recipient shall include the nondiscrimination and compliance provisions of this clause in all contracts and subcontracts to perform work under the applicable Supplement.

4. Recipient shall permit access to the records of employment, employment advertisements, application forms, and other pertinent data and records by STATE, the State Fair Employment and Housing Commission, or any other agency of the State of California designated by STATE, for the purposes of investigation to ascertain compliance with the Fair Employment section of the applicable Supplement.

5. Remedies for Willful Violation:

(a) STATE may determine a willful violation of the Fair Employment provision to have occurred upon receipt of a final judgment to that effect from a court in an action to which Recipient was a party, or upon receipt of a written notice from the Fair Employment and Housing Commission that it has investigated and determined that Recipient has violated the Fair Employment Practices Act and had issued an order under Labor Code Section 1426 which has become final or has obtained an injunction under Labor Code Section 1429.

Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

(b) For willful violation of this Fair Employment Provision, STATE shall have the right to terminate the applicable Supplement either in whole or in part, and any loss or damage sustained by STATE in securing the goods or services thereunder shall be borne and paid for by AGENCY and by the surety under the performance bond, if any, and STATE may deduct from any moneys due or thereafter may become due to Recipient, the difference between the price named in the Agreement and the actual cost thereof to STATE to cure Recipient’s breach of the applicable Supplement.

Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

ATTACHMENT E-1

INSURANCE PROVISION

Recipient shall, at its own expense, obtain and maintain (and/or cause its subconsultant(s) to obtain and maintain, as applicable) the types of insurance and financial security relevant to the project, against any and all claims, damages, and losses due to injuries to persons or damages to property or other losses that may arise in connection with the performance of work under this agreement. All policies will be issued by insurers acceptable to ABAG, generally with a Best’s Rating of A- or better with a Financial Size Category of VIII or better, or as otherwise specified in the applicable Supplement. Notwithstanding anything to the contrary, Recipient may satisfy the insurance requirements herein utilizing self-insurance providing equivalent coverage.

Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

ATTACHMENT E-2

INSURANCE PROVISION

1. INSURANCE
A. Minimum Coverages. The insurance requirements specified in this section shall cover Recipient’s own liability and the liability arising out of work or services performed under this Agreement by any subconsultants, subcontractors, suppliers, temporary workers, independent contractors, leased employees, or any other persons, firms or corporations that Recipient authorizes to work under this Agreement (hereinafter referred to as “Agents.”) Recipient shall, at its own expense, obtain and maintain in effect at all times during the life of this Agreement the following types of insurance against claims, damages and losses due to injuries to persons or damage to property or other losses that may arise in connection with the performance of work under this Agreement.

Recipient is also required to assess the risks associated with work to be performed by Agents under subcontract and to include in every subcontract the requirement that the Agent maintain adequate insurance coverage with appropriate limits and endorsements to cover such risks. To the extent that an Agent does not procure and maintain such insurance coverage, Recipient shall be responsible for said coverage and assume any and all costs and expenses that may be incurred in securing said coverage or in fulfilling Recipient’s indemnity obligation as to itself or any of its Agents in the absence of coverage.

In the event Recipient or its Agents procure excess or umbrella coverage to maintain certain requirements outlined below, these policies shall also satisfy all specified endorsements and stipulations, including provisions that Recipient’s insurance be primary without right of contribution from ABAG.

Prior to beginning work under this contract, Recipient shall provide ABAG with satisfactory evidence of compliance with the insurance requirements of this section.

The insurance listed hereunder shall be considered minimum requirements and any and all insurance proceeds in excess of the requirements shall be made available to ABAG. If the Recipient maintains broader coverage and/or higher limits than the minimum limits shown hereunder, ABAG shall be entitled to the broader coverage and/or higher limits maintained by the Recipient.

1. Workers' Compensation Insurance with Statutory limits, and Employer’s Liability Insurance with a limit of not less than $1,000,000 per employee and $1,000,000 per accident, and any and all other coverage of Recipient’s employees as may be required by applicable law. Such policy shall contain a Waiver of Subrogation in favor of ABAG. Such Workers’ Compensation & Employer’s Liability may be waived, if and only for as long as Recipient is a sole proprietor or a corporation with stock 100% owned by officers with no employees.

Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

2. Commercial General Liability Insurance for Bodily Injury and Property Damage liability, covering the premises and operations, and products and completed operations of Recipient and Recipient’s officers, agents, and employees and with limits of liability which shall not be less than $1,000,000 per occurrence with a general aggregate liability of not less than $2,000,000, a products/completed operations aggregate liability limit of not less than $2,000,000 and Personal & Advertising Injury liability with a limit of not less than $1,000,000. Such policy shall contain a Waiver of Subrogation or “Waiver of Transfer of Rights of Recovery Against Others to Us” provision included in the policy language or by endorsement in favor of ABAG.

Products and completed operations insurance shall be maintained for three (3) years following termination of this Agreement.

ABAG and those entities listed in Part 3 of this Attachment E (if any), and their commissioners, directors, officers, representatives, and employees are to be named as additional insureds for ongoing and completed operations. Such insurance shall be primary and non-contributory, and contain a Separation of Insureds Clause as respects any claims, losses or liability arising directly or indirectly from Recipient’s operations.

3. Business Automobile Insurance for all automobiles owned (if any), used or maintained by Recipient and Recipient’s officers, and employees, including but not limited to owned (if any), leased (if any), non-owned and hired automobiles, with limits of liability which shall not be less than $1,000,000 combined single limit per accident.

4. Excess or Umbrella Insurance in the amount of $2,000,000 providing excess limits over Employer’s Liability, Automobile Liability, and Commercial General Liability Insurance. Such umbrella coverage shall be following form to underlying coverage including all endorsements and additional insured requirements.

5. Errors and Omissions Professional Liability Insurance for errors and omissions and the resulting damages, including, but not limited to, economic loss to ABAG and having minimum limits of $1,000,000 per claim. Such policy shall contain cyber risk coverages including network and internet security liability coverage, privacy liability coverage and media coverage. Such cyber risk coverages shall include liability arising from the loss, theft or failure to protect, or unauthorized acquisition of ABAG’s personally identifiable information or confidential information. [If cyber risk coverages are included, the limit should match the limit for Errors and Omissions Professional Liability.]
The policy shall provide coverage for all work performed by Recipient and any work performed or conducted by any subcontractor/consultant working for or performing services on behalf of Recipient.

No contract or agreement between Recipient and any subcontractor/consultant shall relieve Recipient of Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

the responsibility for providing this Errors & Omissions or Professional Liability coverage for all work performed by Recipient and any subcontractor/consultant working on behalf of Recipient on the project.

B. Acceptable Insurers. All policies will be issued by insurers, generally with a Best’s Rating of A- or better with a Financial Size Category of VII or better, or an A rating from a comparable rating service.

C. Self-Insurance. Recipient’s obligation hereunder may be satisfied in whole or in part by adequately funded self-insurance, upon evidence of financial capacity satisfactory to ABAG.

D. Deductibles and Retentions. Recipient shall be responsible for payment of any deductible or retention on Recipient’s policies without right of contribution from ABAG. Deductible and retention provisions shall not contain any restrictions as to how or by whom the deductible or retention is paid.

Any deductible or retention provision limiting payment to the Named Insured is unacceptable.

In the event that ABAG seeks coverage as an additional insured under any Recipient insurance policy that contains a deductible or self-insured retention, Recipient shall satisfy such deductible or self- insured retention to the extent of loss covered by such policy, for any lawsuit arising from or connected with any alleged act of Recipient, subconsultant, subcontractor, or any of their employees, officers or directors, even if Recipient or subconsultant is not a named defendant in the lawsuit.

E. Claims Made Coverage. If any insurance specified above is written on a “Claims-Made” (rather than an “occurrence”) basis, then in addition to the coverage requirements above, Recipient shall:
(1) Ensure that the Retroactive Date is shown on the policy, and such date must be before the date of this Agreement or the beginning of any work under this Agreement; (2) Maintain and provide evidence of similar insurance for at least three (3) years following project completion, including the requirement of adding all additional insureds; and (3) If insurance is cancelled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the Agreement effective date, Recipient shall purchase “extended reporting” coverage for a minimum of three (3) years after completion of the work.

F. Failure to Maintain Insurance. All insurance specified above shall remain in force until all work or services to be performed are satisfactorily completed, all of Recipient’s personnel, subconsultants, subcontractors, and equipment have been removed from ABAG’s property, and the work or services have been formally accepted. Recipient must notify ABAG if any of the above required coverages are non-renewed or cancelled. The failure to procure or maintain required insurance and/or an adequately funded self-insurance program will constitute a material breach of this Agreement.

G. Certificates of Insurance. Prior to commencement of any work hereunder, Recipient shall deliver to Ebix, ABAG’s authorized insurance consultant, insurance documentation (including Certificates of Liability Insurance, Evidences of Property Insurance, endorsements, etc.) verifying the aforementioned coverages. Such evidence of insurance shall make reference to all provisions and Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

endorsements referred to above and shall be signed by the authorized representative of the Insurance Company shown on the insurance documentation. The Project name shall be clearly stated on the face of each Certificate of Liability Insurance and/or Evidence of Property Insurance.

CONSULTANT shall submit certificates of insurance to:

Associate of Bay Area Government
Insurance Compliance
P.O. Box 100085-M8
Duluth, GA 30096
or
Email: [email protected]
or
Fax: 1-888-617-2309

ABAG reserves the right to require copies of all required policy declarations pages or insurance policies, including endorsements, required by these specifications, at any time.

2. NOT USED

3. ADDITIONAL INSUREDS
The following entities are to be named as Additional Insureds under applicable sections of this Attachment E and as ABAG Indemnified Parties, pursuant to Article 14 of the Agreement.

Metropolitan Transportation Commission (MTC)

Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

ATTACHMENT F-1

TERMS & CONDITIONS OF USE FOR CITY INNOVATE PLATFORM

The Association of Bay Area Governments (“ABAG”) has entered into a Software as a Service Agreement with City Innovate, Inc. dated April 15, 2021 (the “ABAG Agreement” which is attached to this Agreement as Attachment F-2), to provide access to a proprietary online platform (the “Platform”) that is intended to allow government agencies to:
• Search profiles of consultants that have been pre-approved to sit on the Regional Planning Consulting Bench, review their pricing, experience, work samples and DBE/SBE status. • Streamline the informal vendor bidding process when local rules allow, including functionality allowing for drafting and submitting requests for bids and addendums. • Track progress on project milestones; and
• Route invoices for approval.

During the term of the ABAG Agreement, ABAG will provide Recipient with one (1) set of log in credentials for the Platform free of charge to utilize the features of the Platform listed above subject to the terms and conditions set forth in this Attachment. Recipient acknowledges that use of the Platform is provided only for Recipient’s own use and agrees not to use the Platform for the benefit of any third party.

Use of the Platform by Recipient will be subject to the terms and conditions of the ABAG Agreement which is incorporated herein by this reference.

ABAG makes no express or implied warranty regarding the Platform. Recipient assumes all risk of using the Platform and shall indemnify, hold harmless and defend ABAG against any claims made related to Recipient’s use of the Platform that was not required by ABAG.

ABAG reserves the right to require Recipient, through written notice of no less than 30 days, to utilize the Platform to track the project milestones and submit invoices related to this Agreement as set forth in Attachments A-1 and A-2 and to assist in the procurement of consultants to perform said services if Recipient elects to have ABAG administer that amount on behalf of Recipient to deliver the work outlined in Attachment A-1 in the timeframes outlined in Attachment A-2. Said notice, if given, shall include information on how Recipient can obtain training in the use of the Platform and contact information for Recipient to request assistance with any questions about use of the Platform. If at any time the Platform is unavailable through no fault of Recipient, then Recipient may submit any progress reports on project milestones and invoices required by this Agreement that are due during the time of said unavailability of the Platform via email to [email protected].

Recipient is responsible for enforcing its own procurement rules when directly procuring consultants using the Platform. ABAG makes no representation of the legality of procurements issued by Recipient using the Platform. ABAG’s procurement rules shall apply to all procurements by made by ABAG to perform Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

services if Recipient elects to have ABAG administer that amount on behalf of Recipient to deliver the work outlined in Attachment A-1 in the timeframes outlined in Attachment A-2.

Recipient acknowledges that the Platform is not intended for the storage of Sensitive Data, and Recipient agrees not to solicit or encourage the submission of Sensitive Data or itself submit Sensitive Data in connection with the Platform. “Sensitive Data” means: (i) Social Security or other tax identification numbers; (ii) account, credit or debit card numbers, with or without any required security code, access code, PIN or password that would permit access to an individual’s financial account, and account information, including balances and transaction data; (iii) user names, passwords or other credentials for accessing any accounts on any third party systems or platforms; (iv) any personally-identifiable information or PII as defined by applicable law; and (v) any other information with respect to which the unauthorized use or disclosure thereof would be reasonably likely to cause material loss or damage to any third party.

The Platform is not intended to be a data repository or archiving tool. Recipient is solely responsible for maintaining records of its direct procurements on the Platform and is required to comply with the California Public Records Act (Government Code §6250 et seq.).

Attachment 1

ABAG/City of Sunnyvale
Regional Early Action Planning (REAP),
Grant Suballocation Agreement,

ATTACHMENT F-2

SOFTWARE AS A SERVICE AGREEMENT BY AND BETWEEN CITY
INNOVATE, INC. AND THE ASSOCIATION OF BAY AREA GOVERNMENTS DATED APRIL 15, 2021

Attachment 1

DocuSign Envelope ID: 895D2A90-533F-4A74-8650-530137EA9E81

SOFTWARE AS A SERVICE AGREEMENT

between

ASSOCIATION OF BAY AREA GOVERNMENTS FINANCE

and

CITY INNOVATE INC.

for

Bench Management Software Services

FISCAL YEARS 2020-2021 to 2022-2023
Attachment 1

DocuSign Envelope ID: 895D2A90-533F-4A74-8650-530137EA9E81

ABAG/City Innovate
Bench Management Software

TABLE OF CONTENTS

ARTICLE PAGE

TABLE OF CONTENTS .......................................................................................................................................................... I

1. SCOPE OF SERVICES ................................................................................................................................................... 4

1.1 PROGRESS REPORTS .................................................................................................................................................. 4

1.2 SUBMISSION OF CONTRACT DOCUMENTS ..................................................................................................... 4

2. PERIOD OF PERFORMANCE ..................................................................................................................................... 5

3. COMPENSATION AND METHOD OF PAYMENT .................................................................................................. 5

4. KEY PERSONNEL .......................................................................................................................................................... 5

5. AMENDMENTS .............................................................................................................................................................. 6

6. TERMINATION .............................................................................................................................................................. 6

7. INSURANCE AND FINANCIAL SECURITY REQUIREMENTS ............................................................................ 7

8. INDEPENDENT CONTRACTOR ................................................................................................................................. 7

9. NOT USED ....................................................................................................................................................................... 7

10. DATA TO BE FURNISHED BY ABAG ........................................................................................................................ 7

10.1 NOT USED ................................................................................................................................................................... 8

10.2 NONDISCLOSURE OF CONFIDENTIAL INFORMATION ............................................................................... 8

11. NOT USED ....................................................................................................................................................................... 9

12. SUBCONTRACTS ........................................................................................................................................................... 9

13. ASSIGNMENT OF AGREEMENT ............................................................................................................................... 9

14. RECORDS ........................................................................................................................................................................ 9

15. AUDITS ........................................................................................................................................................................... 10

16. NOTICES ........................................................................................................................................................................ 10

17. SOLICITATION OF CONTRACT .............................................................................................................................. 10

18. PROHIBITED INTERESTS ......................................................................................................................................... 11

18.1 ORGANIZATIONAL CONFLICTS OF INTEREST ............................................................................................ 11

19. LAWS AND REGULATIONS ...................................................................................................................................... 12

20. CLAIMS OR DISPUTES .............................................................................................................................................. 12

21. REMEDIES FOR BREACH ......................................................................................................................................... 13

22. TEMPORARY SUSPENSION OF WORK ................................................................................................................. 13

23. NOT USED ........................................................................................................................................................................ 14

24. DISPUTE RESOLUTION ............................................................................................................................................. 14

25. CHOICE OF LAW ......................................................................................................................................................... 15

26. ATTORNEYS' FEES ..................................................................................................................................................... 15

27. PARTIAL INVALIDITY............................................................................................................................................... 15 Attachment 1

DocuSign Envelope ID: 895D2A90-533F-4A74-8650-530137EA9E81

ABAG/City Innovate
PROVIDER Bench Management Software

28. BENEFIT OF AGREEMENT ....................................................................................................................................... 15

29. NO THIRD PARTY BENEFICIARIES ....................................................................................................................... 16

30. ENTIRE AGREEMENT; MODIFICATION .............................................................................................................. 16 ATTACHMENT A SCOPE OF WORK AND PROJECT SCHEDULE ............................................................................ 17 ATTACHMENT B PROJECT PRICING AND PAYMENT SCHEDULE ........................................................................ 21 ATTACHMENT C INSURANCE AND FINANCIAL SECURITY (BOND) PROVISIONS ........................................... 22 ATTACHMENT D STATE REQUIRED CLAUSES ........................................................................................................... 26 ATTACHMENT E ................................................................................................................................................................... 37 CITY INNOVATE SOFTWARE SUPPORT AND MAINTENANCE POLICIES ........................................................... 37 ATTACHMENT F ................................................................................................................................................................... 40 GENERAL PROVISIONS – INFORMATION TECHNOLOGY ....................................................................................... 40 ATTACHMENT G .................................................................................................................................................................. 41 HCD/ABAG GRANT AGREEMENT NO. 19-REAP-13915 ............................................................................................... 41 Attachment 1

DocuSign Envelope ID: 895D2A90-533F-4A74-8650-530137EA9E81

ABAG/City Innovate
Bench Management Software

SOFTWARE AS A SERVICE AGREEMENT
Between

ASSOCIATION OF BAY AREA GOVERNMENTS
And
CITY INNOVATE INC.

For
Bench Management Software Services

THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is made and entered into as of April 15, 2021 (“Effective Date”), by and between the Association of Bay Area Governments (herein called “ABAG”) and City Innovate Inc., providing Software as a Service (SaaS), (herein called “PROVIDER”) a corporation organized under the laws of the State of California.

RECITALS
WHEREAS, ABAG intends to retain PROVIDER to provide an enterprise solution to create an interactive, dynamic, and collaborative space to streamline the procurement and oversight of the state-funded Regional Early Action Planning Grant Program (REAP), the federally-funded Priority Development Areas (PDA) Planning, Technical Assistance, and Staffing Programs for ABAG, MTC and the 109 local Bay Area jurisdictions (herein called the “Project”); and
WHEREAS, ABAG has obtained funds from the California Department of Housing and Community Development (“HCD”) to assist in financing the Project, and the state-required clauses in Attachment D, State-Required Clauses, attached hereto and incorporated herein, apply to the Project; and
WHEREAS, ABAG and the State of California Department of Housing and Community Development have entered into Grant Agreement No. 19-REAP-13915 (Grant Agreement), attached hereto and incorporated herein by this reference as Attachment G; WHEREAS, the services required for the Project cannot be performed satisfactorily by the officers and employees of ABAG; and
WHEREAS, ABAG and the Metropolitan Transportation Commission (“ABAG”) entered into a Contract for Services under which ABAG provides administrative and program services to ABAG. Effective July 1, 2017, the staffs of ABAG and ABAG were consolidated.

ABAG staff now serve both the Association of Bay Area Governments and the Metropolitan Transportation Commission. As such, all interactions between ABAG and PROVIDER contained within this Agreement, shall be conducted by ABAG staff on behalf of ABAG; WHEREAS, the parties hereto now wish to enter into this Agreement pursuant to which PROVIDER will render professional services in connection with the Project as hereinafter provided;
Attachment 1

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

NOW, THEREFORE, the parties hereto agree as follows:

1. SCOPE OF SERVICES
PROVIDER’s services are described in Attachment A, Scope of Work and Project Schedule, and PROVIDER’s service levels are described in Attachment E, City Innovate Software Support and Maintenance Policies, attached hereto and incorporated herein by this reference. PROVIDER agrees to perform or secure the performance of all specified services within the maximum payment specified in Article 3, subject to the prior written approval of a work plan by Heather Peters, (herein called “ABAG Project Manager”). The ABAG Project Manager is responsible for communication with PROVIDER and the administration of this Agreement. ABAG’s Executive Director or designated representative may substitute a new ABAG Project Manager by written notice to PROVIDER.

PROVIDER’s point of contact and the individual authorized to communicate to ABAG on behalf of PROVIDER is Kamran Saddique (“PROVIDER Project Manager”). A change in the PROVIDER Project Manager requires ABAG’s prior written approval.

In the performance of its services, PROVIDER represents that it has and will exercise the degree of professional care, skill, efficiency, and judgment of PROVIDERs with special expertise in providing such services, and PROVIDER represents that it carries and will maintain all applicable licenses, certificates, and registrations needed for the work in current and good standing.

1.1 PROGRESS REPORTS
PROVIDER shall provide ABAG with monthly progress reports according to the schedule and form approved by the ABAG Project Manager.

1.2 SUBMISSION OF CONTRACT DOCUMENTS
To the extent requested by the ABAG Project Manager, PROVIDER shall submit communications and required documentation, including but not limited to invoices, requests for contract modifications, and information on payments to the ABAG PROJECT MANAGER or their designee via one or more web-based systems designated by ABAG to which ABAG will provide PROVIDER with system access. ABAG may withhold payment of invoices pending receipt of such communications and required documentation via the applicable web-based system.

Attachment 1

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

2. PERIOD OF PERFORMANCE
PROVIDER’s services hereunder shall commence on or after April 15, 2021, and shall be completed no later than April 14, 2023, unless extended by a duly executed amendment or earlier terminated, as hereinafter provided. PROVIDER’s services shall be performed in accordance with the schedule included in Attachment A, Scope of Work and Project Schedule, attached hereto and incorporated herein by this reference.

3. COMPENSATION AND METHOD OF PAYMENT
Subject to duly executed amendments, ABAG will pay PROVIDER for its services as described in Attachment A, Scope of Work and Project Schedule, a total amount, including (as applicable) labor, supervision, applicable surcharges such as taxes, insurance, and fringe benefits, indirect costs, overhead, profit, travel, equipment, materials and supplies, expenses and any fixed fee, not to exceed one hundred seventy thousand three hundred thirty six dollars ($170,336) (“Maximum Payment”). ABAG shall make payments to PROVIDER in accordance with the provisions described in Attachment B, Project Pricing and Payment Schedule, attached hereto and incorporated herein by this reference.

All invoices shall be submitted electronically via email to ABAG at [email protected] or in writing to:

Attention: Accounting Section
Association of Bay Area Governments
Bay Area Metro Center, Suite 800
375 Beale Street
San Francisco, CA 94105

Payment shall be made by ABAG within thirty (30) days of receipt of an acceptable invoice, approved by the ABAG Project Manager or a designated representative.

4. KEY PERSONNEL
The key personnel assigned to this work by PROVIDER are Jay Nath, Co CEO, Kamran Saddique, Co CEO and Madeleine Chone, Product/Pipeline Manager; and any substitution of any of the personnel named herein requires the prior written approval of the ABAG Project Manager or a designee. PROVIDER shall maintain records documenting compliance with this Article, and such records shall be subject to the audit requirements of Article 15. PROVIDER agrees that all personnel assigned to this work will be professionally qualified for the assignment to be undertaken. ABAG reserves the right to direct removal of any individual, including key personnel, assigned to this work.

Attachment 1

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

5. AMENDMENTS
ABAG reserves the right to request changes in the services to be performed by PROVIDER. All such changes shall be incorporated in written amendments that specify the changes in work performed and any adjustments in compensation and schedule. All amendments shall be executed by the Executive Director or a designated representative and PROVIDER and specifically identified as amendments to the Agreement. The ABAG Project Manager is not a designated representative, for purposes of approving an amendment.

6. TERMINATION
A. Termination for Convenience. ABAG may terminate this Agreement for convenience, in whole or in part, at any time by written notice to PROVIDER. Upon receipt of notice of termination, PROVIDER shall stop work under this Agreement immediately, to the extent provided in the notice of termination, and shall promptly submit its termination claim to ABAG. PROVIDER shall be reimbursed for costs incurred for incomplete deliverables up to the time of termination and a reasonable profit not to exceed 3%, plus reasonable termination costs, not to exceed the amount payable for such deliverables. If PROVIDER has any property in its possession belonging to ABAG, PROVIDER will account for the same, and dispose of it in the manner ABAG directs. Except as provided above, ABAG shall not in any manner be liable for PROVIDER’s actual or projected lost profits had PROVIDER completed the services required by this Agreement.

B. Termination for Default. If PROVIDER does not deliver the work products specified in this Agreement in accordance with the delivery schedule or fails to perform in the manner called for in the Agreement, or if PROVIDER fails to comply with any other material provision of the Agreement, ABAG may terminate this Agreement for default. Termination shall be effected by serving a fifteen (15) day advance written notice of termination on PROVIDER, setting forth the manner in which PROVIDER is in default. If PROVIDER does not cure the breach or describe to ABAG’s satisfaction a plan for curing the breach within the fifteen (15) day period, ABAG may terminate the Agreement for default. In the event of such termination for default, PROVIDER will be entitled to be reimbursed only for work performed in full compliance with the contract requirements as follows: PROVIDER shall be reimbursed for costs incurred for incomplete deliverables up to the time of termination, not to exceed the amount payable for such deliverables. Such reimbursement will be offset by any costs incurred by ABAG to complete work required under the Agreement. In no event shall ABAG be required to reimburse PROVIDER for any costs incurred for work causing or contributing to the default. If PROVIDER has any property in its possession belonging to ABAG, PROVIDER will account for the same, and dispose of it in the manner ABAG directs. ABAG shall not in any manner be Attachment 1

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

liable for PROVIDER’s actual or projected lost profits had PROVIDER completed the services required by this Agreement.

C. If it is determined by ABAG that PROVIDER’s failure to perform resulted from unforeseeable causes beyond the control of PROVIDER, such as a strike, fire, flood, earthquake or other event that is not the fault of, or is beyond the control of PROVIDER, ABAG, after setting up a new delivery or performance schedule, may allow PROVIDER to continue work, or treat the termination as a termination for convenience.

7. INSURANCE AND FINANCIAL SECURITY REQUIREMENTS
PROVIDER shall, at its own expense, obtain and maintain in effect at all times for the duration of this Agreement the types of insurance and financial security listed in Attachment C, Insurance and Financial Security (Bond) Provisions, attached hereto and incorporated herein, against claims, damages and losses due to injuries to persons or damage to property or other losses that may arise in connection with the performance of work under this Agreement. All policies will be issued by insurers acceptable to ABAG, generally with a Best’s Rating of A- or better with a Financial Size Category of VII or better, or an A rating from a comparable rating service.

8. INDEPENDENT CONTRACTOR
PROVIDER is an independent contractor and not an employee or agent of ABAG and has no authority to contract or enter into any agreement in the name of ABAG. PROVIDER has, and hereby retains, full control over the employment, direction, compensation and discharge of all persons employed by PROVIDER who are assisting in the performance of services under this Agreement. PROVIDER shall be fully responsible for all matters relating to the payment of its employees, including compliance with social security, withholding tax and all other laws and regulations governing such matters. PROVIDER shall be responsible for its own acts and those of its agents and employees during the term of this Agreement.

9. NOT USED

10. DATA TO BE FURNISHED BY ABAG
All data, reports, surveys, studies, drawings, software (object or source code), electronic databases, and any other information, documents or materials (“ABAG Data”) made available to PROVIDER by ABAG for use by PROVIDER in the performance of its services under this Agreement shall remain the property of ABAG and shall be returned to ABAG at the completion or termination of this Agreement. No license to such ABAG Data, outside of the Scope of Work Attachment 1

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

of the Project, is conferred or implied by PROVIDER’s use or possession of such ABAG Data.

Any updates, revisions, additions or enhancements to such ABAG Data made by PROVIDER in the context of the Project shall be the property of ABAG and subject to the provisions of Article

11. 10.1 NOT USED

10.2 NONDISCLOSURE OF CONFIDENTIAL INFORMATION
The parties may be required to make available to each other certain confidential, non- public or proprietary information (“Confidential Information”) for purposes of carrying out the Project. Confidential Information shared by one party (the “Disclosing Party” to the other party (the “Receiving Party”) may be tangible, intangible, visual, oral, written, and/or electronic information, present or future, and includes: (i) proprietary information learned through inspection of drawings, specifications or equipment; (ii) descriptions of proprietary processes, designs, functionality or know-how; (iii) proprietary software, programming data, code or information; and (iv) other information disclosed in writing and marked as “Confidential” or with a similar notice. As between ABAG and PROVIDER, Confidential Information shall remain the sole and exclusive property of the Disclosing Party, and no license or other rights to Confidential Information or any works deriving from Confidential Information is granted or implied hereby. Confidential Information does not include information that: a) is now or subsequently becomes generally available to the public through no fault of the Receiving Party; b) the Receiving Party can demonstrate to have had rightfully in its possession prior to disclosure by the Disclosing Party or its contractors, vendors or licensors; c) the Receiving Party rightfully obtains from a third party who has the right to transfer or disclose it; or (d) is required to be disclosed by law or applicable legal process.

The Receiving Party agrees to take all necessary and reasonable precautions to maintain the confidentiality of Confidential Information and agrees not to use, copy, distribute or disclose such Confidential Information except for the business purpose underlying this Agreement, except as authorized in writing by the Disclosing Party. The Receiving Party further agrees to disclose Confidential Information only to its directors, officers, employees and providers who need to know such information, and who have agreed to be bound by the terms and conditions of this Agreement. Promptly upon the request of the Disclosing Party, at any time and for any reason, the Receiving Party shall destroy or return to the Disclosing Party, at the Disclosing Party’s option, all documents, computer files and other tangible materials that contain Confidential Information. These obligations survive the termination of this Agreement, unless otherwise agreed in writing by the Disclosing Party.

Attachment 1

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

11. NOT USED

12. SUBCONTRACTS
A. No subproviders, subconsultants or subcontractors are currently approved by ABAG for work under this Agreement. In advance of the assignment of any work to a subproviders, subconsultants or subcontractors, such subproviders, subconsultants or subcontractors must be approved in writing by the ABAG Project Manager and engaged under written contract with PROVIDER with provisions allowing subproviders, subconsultants or subcontractors to comply with all requirements of this Agreement, including without limitation Article 11, OWNERSHIP OF WORK PRODUCTS. Failure of a subproviders, subconsultants or subcontractors to provide insurance in accordance with Article 7, INSURANCE REQUIREMENTS, shall be at the risk of PROVIDER.

B. Nothing contained in this Agreement or otherwise, shall create any contractual relation between ABAG and any subproviders, subconsultants or subcontractors, and no subcontract shall relieve PROVIDER of its responsibilities and obligations hereunder.

PROVIDER agrees to be as fully responsible to ABAG for the acts and omissions of its subproviders, subconsultants or subcontractors and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by PROVIDER. PROVIDER's obligation to pay its subproviders, subconsultants or subcontractors is an independent obligation from ABAG's obligation to make payments to PROVIDER.

C. Applicable provisions of this Agreement shall be included in any subcontract or subproviders, subconsultants or subcontractors agreement in excess of $25,000 entered into under of this Agreement.

D. Substitution of listed subproviders, subconsultants or subcontractors shall generally be made in accordance with Public Contracts Code Section 4107.

13. ASSIGNMENT OF AGREEMENT
PROVIDER shall not assign this Agreement, or any part hereof without prior express written consent of ABAG and any attempt thereat shall be void and unenforceable.

14. RECORDS
PROVIDER agrees to establish and maintain an accounting system conforming to Generally Accepted Accounting Principles (GAAP) that is adequate to accumulate and segregate reasonable, allowable, and allocable project costs. PROVIDER further agrees to keep all records pertaining to the project being funded for audit purposes for a minimum of four (4) years Attachment 1

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

following the fiscal year of last expenditure under the Agreement; or until completion of any litigation, claim or audit, whichever is longer.

Any conflicting language regarding retention of records contained in Attachment D, State-Required Clauses, shall supersede this Article.

15. AUDITS
PROVIDER shall permit ABAG and ABAG’s authorized representatives to have access to PROVIDER's books, records, accounts, and any and all work products, materials, and other data relevant to this Agreement, for the purpose of making an audit, examination, excerpt and transcription during the term of this Agreement and for the period specified in Article 14.

PROVIDER shall in no event dispose of, destroy, alter, or mutilate said books, records, accounts, work products, materials and data for that period of time.

Any conflicting language regarding audits contained in Attachment D, State-Required Clauses, shall supersede this Article.

16. NOTICES
Except for invoices submitted by PROVIDER pursuant to Article 3, all notices or other communications to either party by the other shall be deemed given when made in writing and delivered, mailed, emailed, or faxed to such party at their respective addresses as follows:

To ABAG: Attention: Heather Peters
Association of Bay Area Governments
375 Beale Street, Suite 800
San Francisco, CA 94105
Email: [email protected]

To PROVIDER: Attention: Kamran Saddique
City Innovate Inc.

Co CEO
44 Montgomery Street,
Office 02-148
San Francisco, CA 94104
Email: [email protected]

17. SOLICITATION OF CONTRACT
PROVIDER warrants that it has not employed or retained any company or persons, other than a bona fide employee working solely for PROVIDER, to solicit or secure this Agreement, and that it has not paid or agreed to pay any company or person other than bona fide employees working solely for PROVIDER, any fee, commission, percentage, brokerage fee, gift, or any Attachment 1

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

other consideration contingent upon or resulting from the award or making of the Agreement.

For breach or violation of this warranty, ABAG shall have the right to terminate the Agreement without liability or, at its discretion, the right to deduct from PROVIDER's maximum payment the full amount of such fee, commission, percentage, brokerage fee, gift or contingent consideration.

18. PROHIBITED INTERESTS
PROVIDER covenants that it presently has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree or have the potential of conflicting with the performance of services required under the Agreement or the impartial rendering of assistance or advice to ABAG. PROVIDER further covenants that in the performance of the Agreement no person having any such interest shall be employed.

No member, officer, employee or agent of ABAG, during their tenure shall have any prohibited interest as defined by California Government Code Sections 1090, et seq. and 87100 et seq., direct or indirect, in the Agreement or the proceeds thereof. Prohibited interests include interests of immediate family members, domestic partners, and their employers or prospective employers. Accordingly, PROVIDER further covenants that it has made a complete disclosure to ABAG of all facts of which PROVIDER is aware upon due inquiry bearing upon any possible interest, direct or indirect, that it believes any member, officer, agent or employee of ABAG (or an immediate family member, domestic partner or employer or prospective employer of such member, officer, agent or employee) presently has, or will have in the Agreement, or in the performance thereof, or in any portion of the profits thereunder. Willful failure to make such disclosure, if any, shall constitute grounds for cancellation and termination hereof by ABAG.

18.1 ORGANIZATIONAL CONFLICTS OF INTEREST
PROVIDER shall take all reasonable measures to preclude the existence or development of an organizational conflict of interest in connection with work performed under this Agreement. An organizational conflict of interest occurs when, due to other activities, relationships, or contracts, a firm or person is unable, or potentially unable, to render impartial assistance or advice to ABAG; a firm or person’s objectivity in performing the contract work is or might be impaired; or a firm or person has an unfair competitive advantage in proposing for award of a contract as a result of information gained in performance of this or some other Agreement.

PROVIDER shall not engage the services of any subprovider, subconsultant, subcontractor or independent contractor on any work related to this Agreement if the subprovider, subconsultant, subcontractor or independent contractor, or any employee of the Attachment 1

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subprovider, subconsultant, subcontractor or independent contractor, has an actual or apparent organizational conflict of interest related to work or services contemplated under this Agreement.

If at any time during the term of this Agreement PROVIDER becomes aware of an organizational conflict of interest in connection with the work performed hereunder, PROVIDER shall immediately provide ABAG with written notice of the facts and circumstances giving rise to this organizational conflict of interest. PROVIDER’s written notice will also propose alternatives for addressing or eliminating the organizational conflict of interest. If at any time during the period of performance of this Agreement, ABAG becomes aware of an organizational conflict of interest in connection with PROVIDER’s performance of the work hereunder, ABAG shall similarly notify PROVIDER. In the event a conflict is presented, whether disclosed by PROVIDER or discovered by ABAG, ABAG will consider the conflict presented and any alternatives proposed and meet with PROVIDER to determine an appropriate course of action.

ABAG’s determination as to the manner in which to address the conflict shall be final.

Failure to comply with this section may subject PROVIDER to damages incurred by ABAG in addressing organizational conflicts that arise out of work performed by PROVIDER, or to termination of this Agreement for breach.

19. LAWS AND REGULATIONS
PROVIDER shall comply with any and all applicable laws, statutes, ordinances, rules, regulations, and procedural requirements of any national, state, or local government, and of any agency of any such government, including but not limited to ABAG, that relate to or in any manner affect the performance of the Agreement. Those laws, statutes, ordinances, rules, regulations and procedural requirements that are imposed on ABAG as a recipient of federal or state funds are hereby in turn imposed on PROVIDER.

Attachment D, State-Required Clauses, and its parts are attached hereto and incorporated herein by this reference.

20. CLAIMS OR DISPUTES
PROVIDER shall be solely responsible for providing timely written notice to ABAG of any claims for additional compensation and/or time in accordance with the provisions of the Agreement. It is ABAG’s intent to investigate and attempt to resolve any PROVIDE R claims before PROVIDER has performed any disputed work. Therefore, PROVIDER’s failure to provide timely notice shall constitute a waiver of PROVIDER’s claims for additional compensation and/or time.

PROVIDER shall not be entitled to the payment of any additional compensation for any cause, including any act, or failure to act, by ABAG, or the failure or refusal to issue a Attachment 1

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modification, or the happening of any event, thing, or occurrence, unless it has given ABAG due written notice of a p otential claim. The potential claim shall set forth the reasons for which PROVIDER believes additional compensation may be due, the nature of the costs involved, and the amount of the potential claim.

Such notice shall be given to ABAG prior to the time th at PROVIDER has started performance of the work giving rise to the potential claim for additional compensation.

If there is a dispute over any claim, PROVIDER shall continue to work during the dispute resolution process in a diligent and timely manner as directed by ABAG and shall be governed by all applicable provisions of the Agreement. PROVIDER shall maintain cos t records of all work that is the basis of any dispute.

If an agreement can be reached that resolves PROVIDER’s claim, the parties will execute an Agreement modification to document the resolution of the claim. If the parties cannot reach an agreement with respect to PROVIDER’s claim, they may choose to pursue dispute resolution pursuant to Article 24, DISPUTE RESOLUTION, or ABAG may terminate the Agreement.

21. REMEDIES FOR BREACH
In the event PROVIDER fails to comply with the requirements of the Agreement in any way, ABAG reserves the right to implement administrative remedies that may include, but are not limited to, withholding of progress payments and contract retentions, and te rmination of the Agreement in whole or in part.

The duties and obligations imposed by the Agreement and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by ABAG or PROVIDER shall constitute a waiver of any right or duty afforded any of them under the Agreement, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing.

22. TEMPORARY SUSPENSION OF WORK
ABAG, in its sole discretion, reserves the right to stop or suspend all or any portion of the work for such period as ABAG may deem necessary. The suspension may be due to the failure on the part of PROVIDER to carry out orders given or to perform any provision of the Agreement or to factors that are not the responsibility of PROVIDER. PROVIDER shall comply immediately with the written order of ABAG to suspend the work wholly or in part. The suspended work shall be resumed when PROVIDER is provided with written direction from ABAG to resume the work.

Attachment 1

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If the suspension is due to PROVIDER’s failure to perform work or carry out its responsibilities in accordance with this Agreement, or other action or omission on the part of PROVIDER, all costs shall be at PROVIDER’s expense and no schedule extensions will be provided by ABAG.

In the event of a suspension of the work, PROVIDER shall not be relieved of PROVIDER’s responsibilities under this Agreement, except the obligations to perform the work that ABAG has specifically directed PROVIDER to suspend under this section.

If the suspension is not the responsibility of PROVIDER, suspension of all or any portion of the work under this Section may entitle PROVIDER to compensation and/or schedule extensions subject to the Agreement requirements.

23. NOT USED

24. DISPUTE RESOLUTION
A. Informal Resolution of Disputes. PROVIDER and ABAG shall use good faith efforts to resolve all disputes informally at the project manager level. In the event such efforts are unsuccessful, either party may request that ABAG provide a written determination as to the proposed resolution of the dispute. Within twenty-one (21) calendar days of the request, the ABAG Project Manager shall provide a written determination as to the dispute, including the basis for their decision. Upon PROVIDER’s written acceptance of the ABAG Project Manager's determination, the Agreement may be modified and the determination implemented or, failing agreement, ABAG may in its sole discretion pay such amounts and/or revise the time for performance in accordance with the ABAG Project Manager’s determination.

If the ABAG Project Manager’s determination is not accepted by PROVIDER, the matter shall promptly be referred to senior executives of the parties having designated authority to settle the dispute. The senior executives will exchange memoranda stating the issues in dispute and their respective positions and then meet for negotiations at a mutually agreed time and place. If the matter has not been resolved within thirty (30) calendar days of commencement of senior management negotiations, the parties may mutually agree to try to settle the dispute by means of alternate dispute resolution methodologies, as set forth below.

B. Controversies Subject to Alternative Dispute Resolution. Any claim or controversy concerning the interpretation, application, or implementation of this Agreement between ABAG and PROVIDER that cannot be resolved through the informal efforts described above, may, by specific agreement of the parties, be submitted to alternative dispute resolution (that is, mediation or arbitration) with the parameters for such dispute resolution being agreed to by the parties at the time.

Attachment 1

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C. Other Remedies. If a dispute is not resolved through discussion or the parties do not agree to alternative dispute resolution, either party may pursue available legal remedies in a California State or Federal court of competent jurisdiction. PROVIDER must file a government claim pursuant to Government Code section 910 et seq. in order to initiate a civil action.

D. Pending Resolution. PROVIDER shall continue to work during the dispute resolution process in a diligent and timely manner as directed by ABAG, and shall be governed by all applicable provisions of the Agreement.

E. Cost of Alternative Dispute Resolution Proceedings. Each party shall bear the costs and expenses incurred by it in connection with such alternative dispute resolution processes. The cost of any mediator or independent decision maker shall be shared equally between the parties.

F. Survival of this Article. This Article shall survive completion or termination of this Agreement, but under no circumstances shall either party call for an alternative dispute resolution of any claim or dispute arising out of this Agreement after such period of time as would normally bar the initiation of legal proceeding to litigate such claim or dispute under the laws of the State of California.

25. CHOICE OF LAW
All questions pertaining to the validity and interpretation of the Agreement shall be determined in accordance with the laws of the State of California applicable to agreements made and to be performed within the State.

26. ATTORNEYS' FEES
If any legal proceeding should be instituted by either of the parties to enforce the terms of this Agreement or to determine the rights of the parties under this Agreement, the prevailing party in said proceeding shall recover reasonable attorneys' fees, in addition to all court costs.

27. PARTIAL INVALIDITY
If any term or condition of this Agreement is found to be illegal or unenforceable, such term or condition shall be deemed stricken and the remaining terms and conditions shall remain valid and in full force and effect.

28. BENEFIT OF AGREEMENT
The Agreement shall bind and benefit the parties hereto and their heirs, successors, and permitted assigns.

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29. NO THIRD PARTY BENEFICIARIES
This Agreement is not for the benefit of any person or entity other than the parties.

30. ENTIRE AGREEMENT; MODIFICATION
This Agreement, including any attachments, constitutes the complete agreement between the parties and supersedes any prior written or oral communications. PROVIDER represents that in entering into the Agreement it has not relied on any previous representations, inducements, or understandings of any kind or nature. This Agreement may be modified or amended only by written instrument signed by both PROVIDER and ABAG. In the event of a conflict between the terms and conditions of this Agreement and the attachments, the terms of this Agreement will prevail, except that in the event of a conflict between the terms and conditions of this Agreement and Attachment D, State Required Clauses, Attachment D, State Required Clauses will prevail.

For Attachment F, General Provisions – Information Technology, references to “State” shall deemed references to “ABAG.”

IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the day and year first written above.

Therese W. McMillan, Metropolitan
Transportation Commission Executive Director
Acting pursuant to the Contract for Services dated
May 30, 2017
Kamran Saddique, Co CEO
Attachment 1

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ATTACHMENT A

SCOPE OF WORK AND PROJECT SCHEDULE

1. BACKGROUND
MTC and ABAG (“Agencies”) are committed to advancing the Bay Area through collaborative partnerships that result in world-class plans, programs and policies. To further this mission, the Agencies provide technical assistance and grant funding to local jurisdictions.

The Agencies will offer Bay Area jurisdictions access to a pool of planning technical assistance consultants, yielding the following benefits:

● Streamlined access to qualified and diverse technical assistance ● Increase impact by eliminating manual and duplicative work ● Ensure compliance through open and competitive pricing ● Foster transparency and accountability

To manage the complexity and scale of hundreds of projects and thousands of transactions, for the Agencies consultant will provide an enterprise solution to create an interactive, dynamic, and collaborative space to streamline the procurement and oversight of planning technical assistance for the Agencies and 109 local Bay Area jurisdictions. Digital transactions managed by consultant will include: drafting and submitting requests for bids, addendums, bid review and award, project scoping, payment milestones, invoice submission and approvals, and running compliance reports.

2. OBJECTIVES
● Provide oversight and monitoring of consulting procurements and projects ● Reduce or eliminate manual processes and paperwork
● Improve consultant diversity and equity
● Scalable solution that can support similar grant programs in the future

3. SERVICES
Consultant will provide the following services:

Phase 1 - Configure Vendor Manager:

1. Dedicated project manager to execute all activities

2. Develop and manage detailed project charter and schedule

3. Facilitate workshops to review and accept Vendor Manager configuration

1. Vendor profile

2. Vendor categories

3. Project details

4. Bid details

5. Up to 10 Email templates and triggers

6. Project oversight

7. Invoice approval workflow
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8. Up to 10 Reports and dashboards

4. Design, develop, maintain and operate Invoice Management Module

1. Design workshops

2. Development

3. User acceptance testing

4. Maintenance and operation

5. Design and develop integration Docusign

The following deliverables will be accepted upon approval by the designated MTC Project Manager:

1. Project charter

2. Project schedule

3. Design documents for Vendor Manager

4. User Acceptance Testing (UAT) for Vendor Manager configuration

5. Design documents for Invoice management module

6. UAT for Invoice management module

Phase 2 - Training and Onboarding:

1. Develop training plan and schedule

2. Develop training and knowledge base articles

3. Develop train-the-trainer materials (optional)

4. Conduct one end-user training for each user group:

1. MTC/ABAG

2. Bay Area jurisdictions

3. Consultants

5. Conduct one admin training for MTC/ABAG staff

6. Conduct train-the-trainer (optional)

The following deliverables will be accepted upon approval by the designated MTC/ABAG Project Manager:

1. Training plan and schedule

2. Training materials

3. Knowledge base articles

4. End-user training

5. Admin training

Phase 3 - Maintenance and Operations

1. Provide release notes on new features

2. Provide training for new users or features

3. Conduct account management meetings
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4. Provide end-user and admin support

1. Real-time

2. Email

3. Phone

4. Self-service

5. Additional reports or integrations (optional)

4. SCHEDULE
Below is a high-level schedule. A detailed schedule with activities, durations, dependencies and resources will be developed at the beginning of the project.

Month 1 Month 2 Month 3 Month 4 - 24
Phase 1a - Configure Vendor Manager
Phase 1b - Develop Invoice Management
and integrations
Phase 2 - Training and Onboarding
Phase 3 - Maintenance and Operations

5. BENEFITS & FEATURES

Request for Bid (RFB)
REAP Portal Website ✅
Invitation based user accounts ✅
Vendor and Organization profile management ✅
User onboarding and profile management ✅
Develop RFB details ✅
Filter and search for vendors ✅
Invite vendors to bid ✅
RFB read receipt ✅
Track bid status ✅
Submit RFB addendum ✅
Vendor drafts and submits bid ✅
Review and award bid ✅
Automated system emails ✅
Configure email templates and triggers ✅
Configure vendor categories ✅
Configure Bay Area jurisdictions ✅
Attachment 1

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

Manage users ✅
Reporting ✅
Project Oversight
Collaborative project scope development ✅
Manage milestones ✅
Milestone audit trail ✅
Weekly red-yellow-green status reports ✅
Dashboard and reporting ✅
Invoice Management
Upload invoice and deliverable ✅
Approval process ✅
User notifications ✅
Reports ✅
Support
Phone ✅
Email ✅
Knowledge Base ✅
Account management ✅
Real-time chat ✅
Attachment 1

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

ATTACHMENT B
Project Pricing and Payment Schedule

Payment for Consultant's services shall be due in the firm fixed amounts indicated below, upon acceptance by Project Manager of the following milestones, described in detail in Attachment A, Scope of Work and Project Schedule:

1. PRICING

Description

Pricing
(Monthly)

Estimated
Users
Total
Annual
Price

Discount

2021

2022
Vendor Manager - MTC
staff (Super Users)

$1,350

1-10

$16,200

33%

$10,854

$10,854
Vendor Manager -
Cities, Counties,
Vendors (End Users)

$5,355

Unlimited

$64,260

75%

$16,065

$16,065
Reporting and Analytics
Module

$2,268

1-10

$27,216

33%

$18,235

$18,235
Project Oversight
Module

$5,355

Unlimited

$64,260

75%

$16,065

$16,065
SaaS Support Addon
includes Onboarding
and Training

$66,825.00

50%

$33,413

$33,413
Develop Invoice
Management Module

$24,300

2 Weeks

$12,150.00

100%

$0

$0
Develop Integration
with Docusign

$24,300

2 Weeks

$12,150.00

100%

$0

$0
Annual Total $263,061 64% $94,631 $94,631
Discounted for 2-year
contract term with
optional 1 year

10%

$85,168

$85,168

2. PAYMENT SCHEDULE

Due after design acceptance $ 21,292
Due after user acceptance test $ 21,292
Due after launch $ 42,584
Due 1 year after contract date $ 85,168
Attachment 1

DocuSign Envelope ID: 895D2A90-533F-4A74-8650-530137EA9E81 ABAG/City Innovate
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ATTACHMENT C
Insurance and Financial Security (Bond) Provisions

1. INSURANCE
A. Minimum Coverages. The insurance requirements specified in this section shall cover PROVIDER’s own liability and the liability arising out of work or services performed under this Agreement by any subproviders, subcontractors, subconsultants, suppliers, temporary workers, independent contractors, leased employees, or any other persons, firms or corporations that PROVIDER authorizes to work under this Agreement (hereinafter referred to as “Agents.”) PROVIDER shall, at its own expense, obtain and maintain in effect at all times during the life of this Agreement the following types of insurance against claims, damages and losses due to injuries to persons or damage to property or other losses that may arise in connection with the performance of work under this Agreement.

PROVIDER is also required to assess the risks associated with work to be performed by Agents under subcontract and to include in every subcontract the requirement that the Agent maintain adequate insurance coverage with appropriate limits and endorsements to cover such risks. To the extent that an Agent does not procure and maintain such insurance coverage, PROVIDER shall be responsible for said coverage and assume any and all costs and expenses that may be incurred in securing said coverage or in fulfilling PROVIDER’s indemnity obligation as to itself or any of its Agents in the absence of coverage.

In the event PROVIDER or its Agents procure excess or umbrella coverage to maintain certain requirements outlined below, these policies shall also satisfy all specified endorsements and stipulations, including provisions that PROVIDER’s insurance be primary without right of contribution from ABAG. Prior to beginning work under this contract, PROVIDER shall provide ABAG with satisfactory evidence of compliance with the insurance requirements of this section.

The insurance listed hereunder shall be considered minimum requirements and any and all insurance proceeds in excess of the requirements shall be made available to ABAG. If the PROVIDER maintains broader coverage and/or higher limits than the minimum limits shown hereunder, ABAG shall be entitled to the broader coverage and/or higher limits maintained by the PROVIDER.

1. Workers' Compensation Insurance with Statutory limits, and Employer’s Liability Insurance with a limit of not less than $1,000,000 per employee and $1,000,000 per accident, and any and all other coverage of PROVIDER’s employees as may be required by applicable law. Such policy shall contain a Waiver of Subrogation in favor of ABAG. Such Workers’ Compensation & Employer’s Liability may be waived, if and only for as long as Attachment 1

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PROVIDER is a sole proprietor or a corporation with stock 100% owned by officers with no employees

2. Commercial General Liability Insurance for Bodily Injury and Property Damage liability, covering the premises and operations, and products and completed operations of PROVIDER and PROVIDER’s officers, agents, and employees and with limits of liability which shall not be less than $1,000,000 per occurrence with a general aggregate liability of not less than $1,000,000, a products/completed operations aggregate liability limit of not less than $1,000,000 and Personal & Advertising Injury liability with a limit of not less than $1,000,000.

Such policy shall contain a Waiver of Subrogation or “Waiver of Transfer of Rights of Recovery Against Others to Us” provision included in the policy language or by endorsement in favor of ABAG.

Products and completed operations insurance shall be maintained for three (3) years following termination of this Agreement.

ABAG and those entities listed in Part 3 of this Attachment E (if any), and their commissioners, directors, officers, representatives, and employees are to be named as additional insureds for ongoing and completed operations. Such insurance shall be primary and non- contributory, and contain a Separation of Insureds Clause as respects any claims, losses or liability arising directly or indirectly from PROVIDER’s operations.

3. Business Automobile Insurance for all automobiles owned (if any), used or maintained by PROVIDER and PROVIDER’s officers, and employees, including but not limited to owned (if any), leased (if any), non-owned and hired automobiles, with limits of liability which shall not be less than $1,000,000 combined single limit per accident.

4. Excess or Umbrella Insurance in the amount of $1,000,000 providing excess limits over Employer’s Liability, Automobile Liability, and Commercial General Liability Insurance. Such umbrella coverage shall be following form to underlying coverage including all endorsements and additional insured requirements.

5. Errors and Omissions Professional Liability Insurance for errors and omissions and the resulting damages, including, but not limited to, economic loss to ABAG and having minimum limits of $1,000,000 per claim. Such policy shall contain cyber risk coverages including network and internet security liability coverage, privacy liability coverage and media coverage. Such cyber risk coverages shall include liability arising from the loss, theft or failure to protect, or unauthorized acquisition of ABAG’s personally identifiable information or confidential information.

The policy shall provide coverage for all work performed by PROVIDER and any work performed or conducted by any subcontractor/PROVIDER working for or performing services on behalf of PROVIDER. No contract or agreement between PROVIDER and any Attachment 1

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subcontractor/PROVIDER shall relieve PROVIDER of the responsibility for providing this Errors & Omissions or Professional Liability coverage for all work performed by PROVIDER and any subcontractor/PROVIDER working on behalf of PROVIDER on the project.

B. Acceptable Insurers. All policies will be issued by insurers, generally with a Best’s Rating of A- or better with a Financial Size Category of VII or better, or an A rating from a comparable rating service..

C. Self-Insurance. PROVIDER’s obligation hereunder may be satisfied in whole or in part by adequately funded self-insurance, upon evidence of financial capacity satisfactory to ABAG.

D. Deductibles and Retentions. PROVIDER shall be responsible for payment of any deductible or retention on PROVIDER’s policies without right of contribution from ABAG.

Deductible and retention provisions shall not contain any restrictions as to how or by whom the deductible or retention is paid. Any deductible or retention provision limiting payment to the Named Insured is unacceptable.

In the event that ABAG seeks coverage as an additional insured under any PROVIDER insurance policy that contains a deductible or self-insured retention, PROVIDER shall satisfy such deductible or self-insured retention to the extent of loss covered by such policy, for any lawsuit arising from or connected with any alleged act of PROVIDER, subprovider, subcontractor, or any of their employees, officers or directors, even if PROVIDER or subprovider is not a named defendant in the lawsuit.

E. Claims Made Coverage. If any insurance specified above is written on a “Claims- Made” (rather than an “occurrence”) basis, then in addition to the coverage requirements above, PROVIDER shall:
(1) Ensure that the Retroactive Date is shown on the policy, and such date must be before the date of this Agreement or the beginning of any work under this Agreement; (2) Maintain and provide evidence of similar insurance for at least three (3) ye ars following project completion, including the requirement of adding all additional insureds; and (3) If insurance is cancelled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Agreement effective date, PROVIDER shall purchase “extended reporting” coverage for a minimum of three (3) years after completion of the work.

F. Failure to Maintain Insurance. All insurance specified above shall remain in force until all work or services to be performed are satisfactorily completed, all of PROVIDER’s personnel, subproviderss, subcontractors, and equipment have been removed from ABAG’s Attachment 1

DocuSign Envelope ID: 895D2A90-533F-4A74-8650-530137EA9E81 ABAG/City Innovate
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property, and the work or services have been formally accepted. PROVIDER must notify ABAG if any of the above required coverages are non-renewed or cancelled. The failure to procure or maintain required insurance and/or an adequately funded self-insurance program will constitute a material breach of this Agreement.

G. Certificates of Insurance. Prior to commencement of any work hereunder, PROVIDER shall deliver to Ebix, ABAG’s authorized insurance PROVIDER, insurance documentation (including Certificates of Liability Insurance, Evidences of Property Insurance, endorsements, etc.) verifying the aforementioned coverages. Such evidence of insurance shall make reference to all provisions and endorsements referred to above and shall be signed by the authorized representative of the Insurance Company shown on the insurance documentation. The Project name shall be clearly stated on the face of each Certificate of Liability Insurance and/or Evidence of Property Insurance.

PROVIDER shall submit certificates of insurance to:

Metropolitan Transportation Commission
Insurance Compliance
P.O. Box 100085-M8
Duluth, GA 30096
or
Email to [email protected]
or
Fax to 1-888-617-2309

ABAG reserves the right to require copies of all required policy declarations pages or insurance policies, including endorsements, required by these specifications, at any time.

2. FINANCIAL SECURITY (BONDS) -- Not Used

3. ADDITIONAL INSUREDS
The following entities are to be named as Additional Insureds under applicable sections of this Attachment E and as ABAG Indemnified Parties, pursuant to Article 9 of the Agreement.

Association of Bay Area Governments (ABAG)
Metropolitan Transportation Commission (MTC)
Attachment 1

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ATTACHMENT D
State Required Clauses
ATTACHMENT D-1

FAIR EMPLOYMENT PRACTICES ADDENDUM

1. In the performance of this Agreement, PROVIDER shall not discriminate against any employee for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g. cancer), age (over 40), marital status, and denial of family care leave. PROVIDER shall take affirmative action to ensure that employees are treated during employment without regard to their race, sex, sexual orientation, color, religion, ancestry, or national origin, physical disability (including HIV and AIDS), medical condition, m arital status, political affiliation, family and medical care leave, pregnancy leave, or disability leave. Such action shall include, but not be limited to, the following:
employment; upgrading; demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. PROVIDER shall post in conspicuous places, available to employees for employment, notices to be provided by STATE setting forth the provisions of this Fair Employment section.

2. PROVIDER, its contractor(s) and all subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code Section 12900 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 12900(a -f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Each of the PROVIDER’S contractors and all subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreements as appropriate.

3. PROVIDER shall include the nondiscrimination and compliance provisions of this clause in all contracts and subcontracts to perform work under this Agreement.

4. PROVIDER shall permit access to the records of employment, employment advertisements, application forms, and other pertinent data and records by STATE, the State Fair Employment and Housing Commission, or any other agency of the State of California designated by STATE, for the purposes of investigation to ascertain compliance with the Fair Employment section of this Agreement.

5. Remedies for Willful Violation:

(a) STATE may determine a willful violation of the Fair Employment provision to have occurred upon receipt of a final judgment to that effect from a court in an action to which PROVIDER was a party, or upon receipt of a written notice from the Fair Employment and Housing Commission that it has investigated and determined that PROVIDER has violated the Fair Employment Practices Act and had issued an order under Labor Code Section 1426 which ha s become final or has obtained an injunction under Labor Code Section 1429.

Attachment 1

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PROVIDER Bench Management Software

(b) For willful violation of this Fair Employment Provision, STATE shall have the right to terminate funding for this Agreement either in whole or in part, and any loss or damage sustained by STATE in securing the goods or services thereunder shall be borne and paid for by PROVIDER and by the surety under the performance bond, if any, and STATE may deduct from any moneys due or thereafter may become due to PROVIDER, the difference between the price named in the Agreement and the actual cost thereof to STATE to cure PROVIDER’s breach of this Agreement.

Attachment 1

DocuSign Envelope ID: 895D2A90-533F-4A74-8650-530137EA9E81 ABAG/City Innovate
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ATTACHMENT D-2

NONDISCRIMINATION ASSURANCES

PROVIDER HEREBY AGREES THAT, as a condition to receiving any federal financial assistance from the STATE, acting for the U.S. Department of Transportation, it will comply with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d -42 U.S.C. 2000d -4 (hereinafter referred to as the ACT), and all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, “Nondiscrimination in Federally-Assisted Programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964” (hereinafter referred to as the REGULATIONS), the Federal-aid Highway Act of 1973, and other pertinent directives, to the end that in accordance with the ACT, REGULATIONS, and other pertinent directives, no person in the United States shall, on the grounds of race, color, sex, national origin, religion, age or disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity for which PROVIDER receives federal financial assistance from the Federal Department of Transportation. PROVIDER HEREBY GIVES ASSURANCE THAT PROVIDER shall promptly take any measures necessary to effectuate this agreement. This assurance is required by subsection 21.7(a) (1) of the REGULATIONS.

More specifically, and without limiting the above general assurance, PROVIDER hereby gives the following specific assurances with respect to its federal-aid Program:

1. That PROVIDER agrees that each “program” and each “facility” as defined in subsections 21.23 (e) and 21.23 (b) of the REGULATIONS, will be (with regard to a “program”) conducted, or will be (with regard to a “facility”) operated in compliance with all requirements imposed by, or pursuant to, the REGULATIONS.

2. That PROVIDER shall insert the following notification in all solicitations for bids for work or material subject to the REGULATIONS made in connection with the federal-aid Program and, in adapted form, in all proposals for negotiated agreements: PROVIDER hereby notifies all bidders that it will affirmatively insure that in any agreement entered into pursuant to this advertisement, minority business enterprises will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex, national origin, religion, age, or disability in consideration for an award.

3. That PROVIDER shall insert the clauses of Appendix A of this assurance in every agreement subject to the ACT and the REGULATIONS.

4. That the clauses of Appendix B of this Assurance shall be included as a covenant running with the land, in any deed affecting a transfer of real property, structures, or improvements thereon, or interest therein.

5. That where PROVIDER receives federal financial assistance to construct a facility, or part of a facility, the Assurance shall extend to the entire facility and facilities operated in connection therewith.

Attachment 1

DocuSign Envelope ID: 895D2A90-533F-4A74-8650-530137EA9E81 ABAG/City Innovate
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6. That where PROVIDER receives federal financial assistance in the form, or for the acquisition, of real property or an interest in real property, the Assurance shall extend to rights to space on, over, or under such property.

7. That PROVIDER shall include the appropriate clauses set forth in Appendix C and D of this Assurance, as a covenant running with the land, in any future deeds, leases, permits, licenses, and similar agreements entered into by the PROVIDER with other parties:

Appendix C;

(a) for the subsequent transfer of real property acquired or improved under the federal-aid Program; and

Appendix D;

(b) for the construction or use of or access to space on, over, or under real property acquired, or improved under the federal-aid Program.

8. That this assurance obligates PROVIDER for the period during which federal financial assistance is extended to the program, except where the federal financial assistance is to provide, or is in the form of, personal property or real property or interest therein, or structures, or improvements thereon, in which case the assurance obligates PROVIDER or any transferee for the longer of the following periods:

(a) the period during which the property is used for a purpose for which the federal financial assistance is extended, or for another purpose involving the provision of si milar services or benefits; or

(b) the period during which PROVIDER retains ownership or possession of the property.

9. That PROVIDER shall provide for such methods of administration for the program as are found by the U.S. Secretary of Transportation, or the official to whom he delegates specific authority, to give reasonable guarantee that PROVIDER, other recipients, sub-grantees, applicants, sub- applicants, transferees, successors in interest, and other participants of federal financial assistance under such program will comply with all requirements imposed by, or pursuant to, the ACT, the REGULATIONS, this Assurance and the Agreement.

10. That PROVIDER agrees that the United States and the State of California have a right to seek judicial enforcement with regard to any matter arising under the ACT, the REGULATIONS, and this Assurance.

11. PROVIDER shall not discriminate on the basis of race, religion, age, disability, color, national origin or sex in the award and performance of any STATE assisted contract or in the administration on its DBE Program or the requirements of 49 CFR Part 26. PROVIDER shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of STATE assisted contracts. The California Department of Transportation Disadvantaged Business Enterprise Program Implementation Agreement for Local Agencies is Attachment 1

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incorporated by reference in this Agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the recipient of its failure to carry out the Implementation Agreement, STATE may impose sanctions as provided for under 49 CFR Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 USC 1001 and/or the Program Fraud Civil Remedies Act of 1985 (31 USC 3801 et seq.)

THESE ASSURANCES are given in consideration of and for the purpose of obtaining any and all federal grants, loans, agreements, property, discounts or other federal financial assistance extended after the date hereof to PROVIDER by STATE, acting for the U.S. Department of Transportation, and is binding on PROVIDER, other recipients, subgrantees, applicants, sub- applicants, transferees, successors in interest and other participants in the federal-aid Highway Program.

Attachment 1

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

APPENDIX A TO ATTACHMENT D-2

During the performance of this Agreement, PROVIDER, for itself, its assignees and successors in interest (hereinafter collectively referred to as PROVIDER) agrees as follows:

(1) Compliance with Regulations: PROVIDER shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to ti me, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement.

(2) Nondiscrimination: PROVIDER, with regard to the work performed by it during the Agreement, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub -applicants, including procurements of materials and leases of equipment. PROVIDER shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the REGULATIONS, including employment practices when the agreement covers a program set forth in Appendix B of the REGULATIONS.

(3) Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by PROVIDER for work to be performed under a Sub -agreement, including procurements of materials or leases of equipment, each potential sub -applicant or supplier shall be notified by PROVIDER of the PROVIDER’s obligations under this Agreement and the REGULATIONS relative to nondiscri mination on the grounds of race, color, or national origin.

(4) Information and Reports: PROVIDER shall provide all information and reports required by the REGULATIONS, or directives issued pursuant thereto, and shall permit access to PROVIDER’s books, records, accounts, other sources of information, and its facilities as may be determined by STATE or FHWA to be pertinent to ascertain compliance with such REGULATIONS or directives. Where any information required of PROVIDER is in the exclusive possession of another who fails or refuses to furnish this information, PROVIDER shall so certify to STATE or the FHWA as appropriate, and shall set forth what efforts PROVIDER has made to obtain the information.

(5) Sanctions for Noncompliance: In the event of PROVIDER’s noncompliance with the nondiscrimination provisions of this agreement, STATE shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:

(a) withholding of payments to PROVIDER under the A greement within a reasonable period of time, not to exceed 90 days; and/or

(b) cancellation, termination or suspension of the Agreement, in whole or in part.

(6) Incorporation of Provisions: PROVIDER shall include the provisions of paragraphs (1) through (6) in every sub-agreement, including procurements of materials and leases of equipment, unless exempt by the REGULATIONS, or directives issued pursuant thereto.

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PROVIDER shall take such action with respect to any sub -agreement or procurement as STATE or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event PROVIDER becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, PROVIDER may request STATE enter into such litigation to protect the interests of STATE, and, in addition, PROVIDER may request the United States to enter into such litigation to protect the interests of the United States.

Attachment 1

DocuSign Envelope ID: 895D2A90-533F-4A74-8650-530137EA9E81 ABAG/City Innovate
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APPENDIX B TO ATTACHMENT D-2

The following clauses shall be included in any and all deeds effecting or recording the transfer of PROJECT real property, structures or improvements thereon, or interest therein from the United States.

(GRANTING CLAUSE)

NOW, THEREFORE, the U.S. Department of Transportation, as authorized by law, and upon the condition that PROVIDER shall accept title to the lands and maintain the project constructed thereon, in accordance with Title 23, United States Code, the Regulations for the Administration of federal-aid for Highways and the policies and procedures prescribed by the Federal Highway Administration of the Department of Transportation and, also in accordance with and in compliance with the Regulations pertaining to and e ffectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto PROVIDER all the right, title, and interest of the U.S. Department of Transportation in, and to, said lands described in Exhibit “A” attached hereto and made a part hereof.

(HABENDUM CLAUSE)

TO HAVE AND TO HOLD said lands and interests therein unto PROVIDER and its successors forever, subject, however, to the covenant, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and shall be binding on PROVIDER, its successors arid assigns.

PROVIDER, in consideration of the conveyance of said lands and interests in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns,

(1) that no person shall on the grounds of race, color, sex, national origin, religion, age or disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed (;) (and) *

(2) that PROVIDER shall use the lands and interests in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non -discrimination in federally - assisted programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended (;) and

(3) that in the event of breach of any of the above-mentioned nondiscrimination conditions, the U.S. Department of Transportation shall have a right to re -enter said lands and facilities on said land, and the above-described land and facilities shall thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this deed.*
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*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.

Attachment 1

DocuSign Envelope ID: 895D2A90-533F-4A74-8650-530137EA9E81 ABAG/City Innovate
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APPENDIX C TO ATTACHMENT D-2

The following clauses shall be included in any and all deeds, licenses, leases, permits, or similar instruments entered into by PROVIDER, pursuant to the provisions of Assurance 7(a) of Attachment D-2.

The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add ‘as covenant running with the land”) that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S.

Department of Transportation program or activity is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.), shall maintain and operate such facilities and services in c ompliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of Secretary, Part 21, Nondiscrimination in federally -assisted programs of the Department of Transportati on - Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended.

(Include in licenses, leases, permits, etc.)*

That in the event of breach of any of the above nondiscrimination covenants, PROVIDER shall have the right to terminate the (license, lease, permit etc.) and to re -enter and repossess said land and the facilities thereon, and hold the same as if said (license, lease, permit, etc.) had never been made or issued.

(Include in deeds)*

That in the event of breach of any of the above nondiscrimination covenants, PROVIDER shall have the right to re -enter said land and facilities thereon, and the above described lands and facilities shall thereupon revert to and vest in and become the absol ute property of PROVIDER and its assigns.

*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.

Attachment 1

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

APPENDIX D TO ATTACHMENT D-2

The following shall be included in all deeds, licenses, leases, permits, or similar agreements entered into by PROVIDER, pursuant to the provisions of Assurance 7 (b) of Attachment D-2 .

The grantee (licensee, lessee, permittee, etc., as appropriate) for himself, his personal representatives, successors in interest and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds, and leases add “as a covenant running with the land”) that:

(1) no person on the ground of race, color, sex, national origin, religion, age or disability, shall be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in the use of said facilities;

(2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the ground of race, color, sex, national origin, religion, age or disability shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; and

(3) that the (grantee, licensee, lessee, permittee, etc.,) shall use the premises in compliance with the Regulations.

(Include in licenses, leases, permits, etc.)*

That in the event of breach of any of the above nondiscrimination covenants, PROVIDER shall have the right to terminate the (license, lease, permit, etc.) and to re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, lease, permit, etc.) had never been made or issued.

(Include in deeds)*

That in the event of breach of any of the above nondiscrimination covenants, PROVIDER shall have the right to re -enter said land and facilities thereon, and the above described lands and facilities shall thereupon revert to and vest in and become the absolute property of PROVIDER, and its assigns.

*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to effectuate the purposes of Title VI of the Civil Rights Act of 1964.

Attachment 1

DocuSign Envelope ID: 895D2A90-533F-4A74-8650-530137EA9E81 ABAG/City Innovate
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ATTACHMENT E

CITY INNOVATE SOFTWARE SUPPORT AND MAINTENANCE POLICIES

This document describes the policies that govern City Innovate’s software maintenance services and service level agreement

SOFTWARE MAINTENANCE

1. Product Enhancements

1.1. CI makes it a priority to consistently update our product to ensure it is functioning as optimally as possible. We operate on an “agile” development protocol which allows us to consistently and flexibly identify, improve and implement new product features on a regular basis. This results in providing the Customer with a superior product experience that is as up to date as possible with developments in technology.

2. Planned Maintenance

2.1. CI strives to maintain the highest levels of availability for our Customer's sites.

However, some maintenance may require us to bring our platform down for short periods of time in order to perform upgrades or network changes. This is a standard policy for “Software as a Service” (SaaS) and gives CI the chance to fix bugs, improve security and add the capability for exciting new features while minimizing disruption to our Customer base.

2.2. Maintenance updates are scheduled second and fourth Sundays during off- business hours. The only times we make an exception to that is to deliver “hot fixes” for critical service issues. The aim is to have maintenance activities performed without causing any downtime. For scheduled maintenance requiring downtime, those times will be posted at our website.

2.3. Scheduled maintenance notifications will be sent to system administrators at least 48 hours before the beginning of the maintenance window.

2.4. The maintenance window schedule is subject to change. CI will provide a window maintenance schedule notice upon login for any scheduled maintenance outside of these normally scheduled times.

2.5. In-application maintenance notification reminders will be posted at least 48 hours before the beginning of the maintenance window. An alternative status page will be displayed during scheduled maintenance windows.

Attachment 1

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

System Service Level Agreement

1. Service Level Agreement Overview

1.1. The following describes the Service Level Agreement (SLA) for the production environment of Solicitation Builder. For purposes of this SLA, business hours are defined as Monday through Friday (8:00 am to 5:00 pm Pacific Time); however, the response times described below are based on a 24/7 clock. That is, if the response time for resolution is 24 hours, the resolution is required by the next day, not in 3 business days.

1.2. City Innovate will not be liable for any failure to meet SLAs resulting in whole or in part from events, causes, or responsibilities that are outside of City Innovate’s direct control, including, but not limited to a result of events of force majeure.

1.3. City Innovate is not accountable for the availability of hardware and software licensed and managed by MTC or MTC authorized vendor staff or other MTC partners

1.4. All Service Levels will be suspended on the occurrence of a disaster that requires execution of MTC’s Disaster Recovery Plan. Following such a disaster, Service level-based support as described in this section will only be resumed by mutual agreement of MTC and City Innovate.

1.5. Recovery Point Objective (RPO) . RPO is defined as the point in time to which Data can be recovered and/or systems restored when service is restored after an interruption. The Recovery Point Objective is expressed as a length of time between the interruption and the most proximate backup of Data immediately preceding the interruption.

1.6. Recovery Time Objective (RTO). RTO is defined as the period of time within which information technology services, systems, applications and functions must be recovered following an unplanned interruption. We will ensure that Recovery Point Objective and Recovery Time Objective of environments are 24 hours.

1.7. Uptime Service Level. We will use commercially reasonable efforts maintain the online availability of the SaaS Service for a minimum of availability in any given month as provided in the chart below (excluding maintenance scheduled downtime, outages beyond our reasonable control, and outages that result from any issues caused by you, your technology or your suppliers or contractors, Service is not in the production environment, you are in breach of this Agreement, or you have not pre-paid for SaaS Fees for the Software as a Service in the month in which the failure occurred).

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Uptime Penalties

Availability SLA of 99.9% during
business hours; Availability SLA of
99% outside of business hours

See 1.8 below

1.8. The penalties will take the form of reduced financial payments (that is, amounts withheld from MTC payments to City Innovate). In any calendar year, for each 30 continuous days of system unavailability, City Innovate shall provide MTC a credit in the amount as described below:

Uptime Penalty
Monthly Uptime Percentage for any calendar month is
between 99.9% and 97.0%
1 week credit
Monthly Uptime Percentage for any calendar month is
between 97.0% and 95.0%;
2 week credit
Monthly Uptime Percentage for any calendar month is
less than 95.0%.
3 week credit
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ATTACHMENT F
GENERAL PROVISIONS – INFORMATION TECHNOLOGY

(State of California, Department of General Services, California Multiple Award Schedule) Attachment 1

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

1. Definitions: Unless otherwise specified in the Statement of Work, the following terms shall be given the meaning shown, unless context requires otherwise. a) “Acceptance Tests” means those tests performed during the Performance period which are intended to determine compliance of Equipment and Software with the specifications and all other Attachments incorporated herein by reference and to determine the reliability of the Equipment.
b) “Application Program” means a computer program which is intended to be executed for the purpose of performing useful work for the user of the information being processed.

Application programs are developed or otherwise acquired by the user of the Hardware/Software system, but they may be supplied by the Contractor. c) “Attachment” means a mechanical, electrical, or electronic interconnection to the Contractor-supplied Machine or System of Equipment, manufactured by other than the original Equipment manufacturer that is not connected by the Contractor. d) “Business entity” means any individual, business, partnership, joint venture, corporation, S-corporation, limited liability company, sole proprietorship, joint stock company, consortium, or other private legal entity recognized by statute. e) “Buyer” means the State’s authorized contracting official. f) “Commercial Hardware” means Hardware developed or regularly used that: (i) has been sold, leased, or licensed to the general public; (ii) has been offered for sale, lease, or license to the general public; (iii) has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this Contract; or (iv) satisfies a criterion expressed in (i), (ii), or (iii) above and would require only minor modifications to meet the requirements of this Contract.
g) “Commercial Software” means Software developed or regularly used that: (i) has been sold, leased, or licensed to the general public; (ii) has been offered for sale, lease, or Attachment 1

license to the general public; (iii) has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this Contract; or (iv) satisfies a criterion expressed in (i), (ii), or (iii) above and would require only minor modifications to meet the requirements of this Contract.
h) “Contract” means this Contract or agreement (including any purchase order), by whatever name known or in whatever format used.
i) “Custom Software” means Software that does not meet the definition of Commercial Software.
j) “Contractor” means the Business Entity with whom the State enters into this Contract.

Contractor shall be synonymous with “supplier,” “vendor” or other similar term. k) “Data Processing Subsystem” means a complement of Contractor furnished individual Machines, including the necessary controlling elements (or the functional equivalent), operating Software and Software, if any, which are acquired to operate as an integrated group, and which are interconnected entirely by Contractor supplied power and/or signal DGS PD 401IT (REVISED AND EFFECTIVE 9/5/14)
GENERAL PROVISIONS – INFORMATION TECHNOLOGY

cables, e.g., direct access controller and drives, a cluster of terminals with their controller, etc.
l) “Data Processing System (System)” means the total complement of Contractorfurnished Machines, including one or more central processors (or instruction processors), Operating Software which are acquired to operate as an integrated group. m) “Deliverables” means Goods, Software, Information Technology, telecommunications technology, Hardware, and other items (e.g. reports) to be delivered pursuant to this Contract, including any such items furnished incident to the provision of services. n) “Designated CPU(s)” means for each product, if applicable, the central processing unit of the computers or the server unit, including any associated peripheral units. If no specific “Designated CPU(s)” are specified on the Contract, the term shall mean any and Attachment 1

all CPUs located at the site specified therein.
o) “Documentation” means manuals and other printed materials necessary or useful to the State in its use or maintenance of the Equipment or Software provided hereunder.

Manuals and other printed materials customized for the State hereunder constitute Work Product if such materials are required by the Statement of Work. p) “Equipment” is an all-inclusive term which refers either to individual Machines or to a complete Data Processing System or Subsystem, including its Hardware and Operating Software (if any).
q) “Equipment Failure” is a malfunction in the Equipment, excluding all external factors which prevents the accomplishment of the Equipment’s intended function(Is). If microcode or Operating Software residing in the Equipment is necessary for the proper operation of the Equipment, a failure of such microcode or Operating Software which prevents the accomplishment of the Equipment’s intended functions shall be deemed to be an Equipment Failure.
r) “Facility Readiness Date” means the date specified in the Statement of Work by which the State must have the site prepared and available for Equipment delivery and installation.
s) “Goods” means all types of tangible personal property, including but not limited to materials, supplies, and Equipment (including computer and telecommunications Equipment).
t) “Hardware” usually refers to computer Equipment and is contrasted with Software. See also Equipment.
u) “Installation Date” means the date specified in the Statement of Work by which the Contractor must have the ordered Equipment ready (certified) for use by the State. v) “Information Technology” includes but is not limited to, all electronic technology systems and services, automated information handling, System design and analysis, conversion of data, computer programming, information storage and retrieval, telecommunications which include voice, video, and data communications, requisite System controls, simulation, electronic commerce, and all related interactions between Attachment 1

people and Machines.

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

w) “Machine” means an individual unit of Data Processing System or Subsystem separately identified by a type and/or model number, comprised of but not limited to mechanical, electro-mechanical, and electronic parts, microcode, and special features installed thereon and including any necessary Software, e.g., central processing unit, memory module, tape unit, card reader, etc.
x) “Machine Alteration” means any change to a Contractor-supplied Machine which is not made by the Contractor, and which results in the Machine deviating from its physical, mechanical, electrical, or electronic (including microcode) design, whether or not additional devices or parts are employed in making such a change. y) “Maintenance Diagnostic Routines” means the diagnostic programs customarily used by the Contractor to test Equipment for proper functioning and reliability. z) “Manufacturing Materials” means parts, tools, dies, jigs, fixtures, plans, drawings, and information produced or acquired or rights acquired, specifically to fulfill obligations set forth herein.
aa) “Mean Time Between Failure (MTBF)” means the average expected or observed time between consecutive failures in a System or component.
bb) “Mean Time to Repair (MTTR)” means the average expected or observed time required to repair a System or component and return it to normal operation. cc) “Operating Software” means those routines, whether or not identified as Program Products, that reside in the Equipment and are required for the Equipment to perform its intended function(s), and which interface the operator, other Contractor-supplied programs, and user programs to the Equipment.
dd) “Operational Use Time” means for performance measurement purposes, that time during which Equipment is in actual operation by the State. For maintenance Operation Use Time purposes, that time during which Equipment is in actual operation and is not Attachment 1

synonymous with power on time.
ee) “Period of Maintenance Coverage” means the period of time, as selected by the State, during which maintenance services are provided by the Contractor for a fixed monthly charge, as opposed to an hourly charge for services rendered. The Period of Maintenance Coverage consists of the Principal Period of Maintenance and any additional hours of coverage per day and/or increased coverage for weekends and holidays.
ff) “Preventive Maintenance” means that maintenance, performed on a scheduled basis by the Contractor which is designed to keep the Equipment in proper operating condition. gg) “Principal Period of Maintenance” means any nine consecutive hours per day (usually between the hours of 7:00 a.m. and 6:00 p.m.) as selected by the State, including an official meal period not to exceed one hour, Monday through Friday, excluding holidays observed at the installation.
hh) “Programming Aids” means contractor supplied programs and routines executable on the Contractor’s Equipment which assists a programmer in the development of applications including language processors, sorts, communications modules, data base DGS PD 401IT (REVISED AND EFFECTIVE 9/5/14)
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management systems, and utility routines, (tape-to-disk routines, disk-to-print routines, etc.).
ii) “Program Product” means programs, routines, subroutines, and related items which are proprietary to the Contractor and which are licensed to the State for its use, usually on the basis of separately stated charges and appropriate contractual provisions. jj) “Remedial Maintenance” means that maintenance performed by the Contractor which results from Equipment (including Operating Software) failure, and which is performed as required, i.e., on an unscheduled basis.
kk) “Software” means an all-inclusive term which refers to any computer programs routines, or subroutines supplied by the Contractor, including Operating Software, Programming Attachment 1

Aids, Application Programs, and Program Products.
ll) “Software Failure” means a malfunction in the Contractor-supplied Software, other than Operating Software, which prevents the accomplishment of work, even though the Equipment (including its Operating Software) may still be capable of operating properly.

For Operating Software failure, see definition of Equipment Failure. mm) “State” means the government of the State of California, its employees and authorized representatives, including without limitation any department agency, or other unit of the government of the State of California.
nn) “System” means the complete collection of Hardware, Software and services as described in this Contract, integrated and functioning together and performing in accordance with this Contract.
oo) “U.S. Intellectual Property Rights” means intellectual property rights enforceable in the United States of America, including without limitation rights in trade secrets, copyrights, and U.S. patents.

2. CONTRACT FORMATION:
a) If this Contract results from a sealed bid offered in response to a solicitation conducted pursuant to Chapters 2(commencing with Section 10290), 3 (commencing with Section 12100), and 3.6 (commencing with Section 12125) of Part 2 of Division 2 of the Public Contract Code (PCC), then Contractor’s bid is a firm offer to the State which is accepted by the issuance of this Contract and no further action is required by either party. b) If this Contract results from a solicitation other than described in paragraph a), above, the Contractor’s quotation or proposal is deemed a firm offer and this Contract document is the State’s acceptance of that offer.
c) If this Contract resulted from a joint bid, it shall be deemed one indivisible Contract. Each such joint Contractor will be jointly and severally liable for the performance of the entire Contract. The State assumes no responsibility or obligation for the division of orders or purchases among joint Contractors.

3. COMPLETE INTEGRATION: This Contract, including any documents incorporated herein by express reference, is intended to be a complete integration and there are no prior or Attachment 1

contemporaneous different or additional agreements pertaining to the subject matter of the Contract.

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4. SEVERABILITY: The Contractor and the State agree that if any provision of this Contract is found to be illegal or unenforceable, such term or provision shall be deemed stricken and the remainder of the Contract shall remain in full force and effect. Either party having knowledge of such term or provision shall promptly inform the other of the presumed non-applicability of such provision.

5. INDEPENDENT CONTRACTOR: Contractor and the agents and employees of the Contractor, in the performance of this Contract, shall act in an independent capacity and not as officers or employees or agents of the State.

6. APPLICABLE LAW: This Contract shall be governed by and shall be interpreted in accordance with the laws of the State of California; venue of any action brought with regard to this Contract shall be in Sacramento County, Sacramento California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Contract.

7. COMPLIANCE WITH STATUTES AND REGULATIONS:
a) The State and the Contractor warrants and certifies that in the performance of this Contract, it will comply with all applicable statutes, rules, regulations and orders of the United States and the State of California. The Contractor agrees to indemnify the State against any loss, cost, damage or liability by reason of the Contractors violation of this provision.
b) The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and
c) 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 (i) 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 Attachment 1

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.
d) If this Contract is in excess of $554,000, it is subject to the requirements of the World Trade Organization (WTO) Government Procurement Agreement (GPA). e) To the extent that this Contract falls within the scope of Government Code Section 11135, the Contractor hereby agrees to respond to and resolve any complaint brought to its attention, regarding accessibility of its products or services.

8. CONTRACTOR’S POWER AND AUTHORITY: The Contractor warrants that it has full power and authority to grant the rights herein granted and will hold the State harmless from and against any loss, cost, liability, and expense (including reasonable attorney fees) arising out of any breach of this warranty. Further, the Contractor avers that it will not enter into any DGS PD 401IT (REVISED AND EFFECTIVE 9/5/14)
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arrangement with any third party which might abridge any rights of the State under this Contract.
a) The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and
b) 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 (i) 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 in such action at its own expense with respect to attorneys’ fees and costs (but not liability); (ii) where a settlement would impose liability Attachment 1

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.

9. ASSIGNMENT: This Contract shall not be assignable by the Contractor in whole or in part without the written consent of the State. The State’s consent shall not be unreasonably withheld or delayed. For the purpose of this paragraph, the State will not unreasonably prohibit the Contractor from freely assigning its right to payment, provided that the Contractor remains responsible for its obligations hereunder.

10.WAIVER OF RIGHTS: Any action or inaction by the State or the failure of the State on any occasion, to enforce any right or provision of the Contract, shall not be construed to be a waiver by the State of its rights hereunder and shall not prevent the State from enforcing such provision or right on any future occasion. The rights and remedies of the State herein are cumulative and are in addition to any other rights or remedies that the State may have at law or in equity.

11.ORDER OF PRECEDENCE: In the event of any inconsistency between the articles, attachments, specifications or provisions which constitute this Contract, the following order of precedence shall apply:
a) These General Provisions – Information Technology (In the instances provided herein where the paragraph begins: “Unless otherwise specified in the Statement of Work” provisions specified in the Statement of Work replacing these paragraphs shall take precedence over the paragraph referenced in these General Provisions); b) Contract form, i.e., Purchase Order STD 65, Standard Agreement STD 213, etc., and any amendments thereto;
c) Other Special Provisions;
d) Statement of Work, including any specifications incorporated by reference herein; e) Cost worksheets; and
f) All other attachments incorporated in the Contract by reference.

Attachment 1

12.PACKING AND SHIPMENT:

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a) All Goods are to be packed in suitable containers for protection in shipment and storage, and in accordance with applicable specifications. Each container of a multiple container shipment shall be identified to:
i. Show the number of the container and the total number of containers in the shipment and
ii. The number of the container in which the packing sheet has been enclosed. b) All shipments by the Contractor or its subcontractors must include packing sheets identifying: the State’s Contract number, item number, quantity and unit of measure; part number and description of the Goods shipped; and appropriate evidence of inspection, if required. Goods for different Contracts shall be listed on separate packing sheets. c) Shipments must be made as specified in this Contract, as it may be amended or otherwise directed in writing by the State’s Transportation Management Unit within the Department of General Services, Procurement Division.

13. TRANSPORTATION COSTS AND OTHER FEES OR EXPENSES: No charge for delivery, drayage, express, parcel post, packing, cartage, insurance, license fees, permits, cost of bonds, or for any other purpose will be paid by the State unless expressly included and itemized in the Contract.
a) The Contractor must strictly follow Contract requirements regarding Free on Board (F.O.B.), freight terms and routing instructions. The State may permit use of an alternate carrier at no additional cost to the State with advance written authorization of the Buyer. b) If “prepay and add” is selected, supporting freight bills are required when over $50, unless an exact freight charge is approved by the Transportation Management Unit within the Department of General Services Procurement Division and a waiver is granted. c) On "F.O.B. Shipping Point" transactions, should any shipments under the Contract be received by the State in a damaged condition and any related freight loss and damage Attachment 1

claims filed against the carrier or carriers be wholly or partially declined by the carrier or carriers with the inference that damage was the result of the act of the shipper such as inadequate packaging or loading or some inherent defect in the Equipment and/or material, the Contractor, on request of the State, shall at Contractor's own expense assist the State in establishing carrier liability by supplying evidence that the Equipment and/or material was properly constructed, manufactured, packaged, and secured to withstand normal transportation conditions.

14.DELIVERY: The Contractor shall strictly adhere to the delivery and completion schedules specified in this Contract. Time, if stated as a number of days, shall mean calendar days unless otherwise specified. The quantities specified herein are the only quantities required. If the Contractor delivers in excess of the quantities specified herein, the State shall not be required to make any payment for the excess Deliverables, and may return them to Contractor at the Contractor’s expense or utilize any other rights available to the State at law or in equity.

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15.SUBSTITUTIONS: Substitution of Deliverables may not be tendered without advance written consent of the Buyer. The Contractor shall not use any specification in lieu of those contained in the Contract without written consent of the Buyer.

16.INSPECTION, ACCEPTANCE AND REJECTION: Unless otherwise specified in the Statement of Work:
a) When acquiring Commercial Hardware or Commercial Software, the State shall rely on Contractor’s existing quality assurance system as a substitute for State inspection and testing. For all other acquisitions, Contractor and its subcontractors will provide and maintain a quality assurance system acceptable to the State covering Deliverables and services under this Contract and will tender to the State only those Deliverables that have been inspected and found to conform to this Contract’s requirements. The Contractor will keep records evidencing inspections and their result, and will make these records available to the State during Contract performance and for three years after final Attachment 1

payment. The Contractor shall permit the State to review procedures, practices, processes, and related documents to determine the acceptability of the Contractor’s quality assurance System or other similar business practices related to performance of the Contract.
b) All Deliverables may be subject to inspection and test by the State or its authorized representatives.
c) The Contractor and its subcontractors shall provide all reasonable facilities for the safety and convenience of inspectors at no additional cost to the State. The Contractor shall furnish to inspectors all information and data as may be reasonably required to perform their inspection.
d) Subject to subsection 16 (a) above, all Deliverables may be subject to final inspection, test and acceptance by the State at destination, notwithstanding any payment or inspection at source.
e) The State shall give written notice of rejection of Deliverables delivered or services performed hereunder within a reasonable time after receipt of such Deliverables or performance of such services. Such notice of rejection will state the respects in which the Deliverables do not substantially conform to their specifications. If the State does not provide such notice of rejection within fifteen (15) days of delivery for purchases of Commercial Hardware or Commercial Software or thirty (30) days of delivery for all other purchases, such Deliverables and services will be deemed to have been accepted.

Acceptance by the State will be final and irreversible, except as it relates to latent defects, fraud, and gross mistakes amounting to fraud. Acceptance shall not be construed to waive any warranty rights that the State might have at law or by express reservation in this Contract with respect to any nonconformity.
f) Unless otherwise specified in the Statement of Work, title to Equipment shall remain with the Contractor and assigns, if any, until such time as successful acceptance testing has been achieved. Title to a special feature installed on a Machine and for which only a DGS PD 401IT (REVISED AND EFFECTIVE 9/5/14)
GENERAL PROVISIONS – INFORMATION TECHNOLOGY
Attachment 1

single installation charge was paid shall pass to the State at no additional charge, together with title to the Machine on which it was installed.

17.SAMPLES:
a) Samples of items may be required by the State for inspection and specification testing and must be furnished free of expense to the State. The samples furnished must be identical in all respects to the products bid and/or specified in the Contract. b) Samples, if not destroyed by tests, may, upon request made at the time the sample is furnished, be returned at the Contractor’s expense.

18.WARRANTY:
a) Unless otherwise specified in the Statement of Work, the warranties in this subsection a) begin upon delivery of the goods or services in question and end one (1) year thereafter.

The Contractor warrants that (i) Deliverables and services furnished hereunder will substantially conform to the requirements of this Contract (including without limitation all descriptions, specifications, and drawings identified in the Statement of Work), and (ii) the Deliverables will be free from material defects in materials and workmanship. Where the parties have agreed to design specifications (such as a Detailed Design Document) and incorporated the same or equivalent in the Statement of Work directly or by reference, the Contractor will warrant that it’s Deliverables provide all material functionality required thereby. In addition to the other warranties set forth herein, where the Contract calls for delivery of Commercial Software, the Contractor warrants that such Software will perform in accordance with its license and accompanying Documentation. The State’s approval of designs or specifications furnished by Contractor shall not relieve the Contractor of its obligations under this warranty.
b) The Contractor warrants that Deliverables furnished hereunder (i) will be free, at the time of delivery, of harmful code (i.e. computer viruses, worms, trap doors, time bombs, disabling code, or any similar malicious mechanism designed to interfere with the intended operation of, or cause damage to, computers, data, or Software); and (ii) will not infringe or violate any U.S. Intellectual Property Right. Without limiting the generality of Attachment 1

the foregoing, if the State believes that harmful code may be present in any Commercial Software delivered hereunder, the Contractor will, upon the State’s request, provide a new or clean install of the Software
c) Unless otherwise specified in the Statement of Work:
i. The Contractor does not warrant that any Software provided hereunder is errorfree or that it will run without immaterial interruption.
ii. The Contractor does not warrant and will have no responsibility for a claim to the extent that it arises directly from (A) a modification made by the State, unless such modification is approved or directed by the Contractor, (B) use of Software in combination with or on products other than as specified by the Contractor, or (C) misuse by the State.
iii. Where the Contractor resells Commercial Hardware or Commercial Software it purchased from a third party, Contractor, to the extent it is legally able to do so, DGS PD 401IT (REVISED AND EFFECTIVE 9/5/14)
GENERAL PROVISIONS – INFORMATION TECHNOLOGY

will pass through any such third party warranties to the State and will reasonably cooperate in enforcing them. Such warranty pass-through will not relieve the Contractor from Contractor’s warranty obligations set forth above. d) All warranties, including special warranties specified elsewhere herein, shall inure to the State, its successors, assigns, customer agencies, and governmental users of the Deliverables or services.
e) Except as may be specifically provided in the Statement of Work or elsewhere in this Contract, for any breach of the warranties provided in this Section, the State’s exclusive remedy and the Contractor’s sole obligation will be limited to:
i. re-performance, repair, or replacement of the nonconforming Deliverable (including without limitation an infringing Deliverable) or service; or ii. should the State in its sole discretion consent, refund of all amounts paid by the State for the nonconforming Deliverable or service and payment to the State of Attachment 1

any additional amounts necessary to equal the State’s Cost to Cover. “Cost to Cover” means the cost, properly mitigated of procuring Deliverables or services of equivalent capability, function, and performance. The payment obligation in subsection (e)(ii) above will not exceed the limits on the Contractor’s liability set forth in the Section entitled “Limitation of Liability.” f) EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN THIS SECTION, THE

CONTRACTOR MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED,

INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

19.SAFETY AND ACCIDENT PREVENTION: In performing work under this Contract on State premises, the Contractor shall conform to any specific safety requirements contained in the Contract or as required by law or regulation. The Contractor shall take any additional precautions as the State may reasonably require for safety and accident prevention purposes.

Any violation of such rules and requirements, unless promptly corrected, shall be grounds for termination of this Contract in accordance with the default provisions hereof.

20.INSURANCE: The Contractor shall maintain all commercial general liability insurance, workers’ compensation insurance and any other insurance required under the Contract. The Contractor shall furnish insurance certificate(s) evidencing required insurance coverage acceptable to the State, including endorsements showing the State as an “additional insured” if required under the Contract. Any required endorsements requested by the State must be separately provided; merely referring to such coverage on the certificates(s) is insufficient for this purpose. When performing work on state owned or controlled property, Contractor shall provide a waiver of subrogation in favor of the State for its workers’ compensation policy.

21.TERMINATION FOR NON-APPROPRIATION OF FUNDS:
a) If the term of this Contract extends into fiscal years subsequent to that in which it is approved, such continuation of the Contract is contingent on the appropriation of funds for such purpose by the Legislature. If funds to effect such continued payment are not DGS PD 401IT (REVISED AND EFFECTIVE 9/5/14)
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Attachment 1

appropriated, the Contractor agrees to take back any affected Deliverables furnished under this Contract, terminate any services supplied to the State under this Contract, and relieve the State of any further obligation therefore.
b) The State agrees that if it appears likely that subsection a) above will be invoked, the State and Contractor shall agree to take all reasonable steps to prioritize work and Deliverables and minimize the incurrence of costs prior to the expiration of funding for this Contract.
c) THE STATE AGREES THAT IF PARAGRAPH a) ABOVE IS INVOKED, COMMERCIAL

HARDWARE AND SOFTWARE THAT HAS NOT BEEN PAID FOR SHALL BE

RETURNED TO THE CONTRACTOR IN SUBSTANTIALLY THE SAME CONDITION IN WHICH DELIVERED TO THE STATE, SUBJECT TO NORMAL WEAR AND TEAR. THE

STATE FURTHER AGREES TO PAY FOR PACKING, CRATING, TRANSPORTATION TO THE CONTRACTOR’S NEAREST FACILITY AND FOR REIMBURSEMENT TO THE

CONTRACTOR FOR EXPENSES INCURRED FOR THEIR ASSISTANCE IN SUCH PACKING AND CRATING.

22.TERMINATION FOR THE CONVENIENCE OF THE STATE:
a) The State may terminate performance of work under this Contract for its convenience in whole or, from time to time, in part, if the Department of General Services, Deputy Director Procurement Division, or designee, determines that a termination is in the State’s interest. The Department of General Services, Deputy Director, Procurement Division, or designee, shall terminate by delivering to the Contractor a Notice of Termination specifying the extent of termination and the effective date thereof. b) After receipt of a Notice of Termination, and except as directed by the State, the Contractor shall immediately proceed with the following obligations, as applicable, regardless of any delay in determining or adjusting any amounts due under this clause.

The Contractor shall:
i. Stop work as specified in the Notice of Termination. ii. Place no further subcontracts for materials, services, or facilities, except as Attachment 1

necessary to complete the continuing portion of the Contract. iii. Terminate all subcontracts to the extent they relate to the work terminated. iv. Settle all outstanding liabilities and termination settlement proposals arising from the termination of subcontracts;
c) After termination, the Contractor shall submit a final termination settlement proposal to the State in the form and with the information prescribed by the State. The Contractor shall submit the proposal promptly, but no later than 90 days after the effective date of termination, unless a different time is provided in the Statement of Work or in the Notice of Termination.
d) The Contractor and the State may agree upon the whole or any part of the amount to be paid as requested under subsection (c) above.
e) Unless otherwise set forth in the Statement of Work, if the Contractor and the State fail to agree on the amount to be paid because of the termination for convenience, the State will DGS PD 401IT (REVISED AND EFFECTIVE 9/5/14)
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pay the Contractor the following amounts; provided that in no event will total payments exceed the amount payable to the Contractor if the Contract had been fully performed:
i. The Contract price for Deliverables or services accepted or retained by the State and not previously paid for, adjusted for any savings on freight and other charges; and
ii. The total of:

A. The reasonable costs incurred in the performance of the work terminated, including initial costs and preparatory expenses allocable thereto, but excluding any cost attributable to Deliverables or services paid or to be paid;
B. The reasonable cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the terminated portion of the Contract; and
Attachment 1

C. Reasonable storage, transportation, demobilization, unamortized overhead and capital costs, and other costs reasonably incurred by the Contractor in winding down and terminating its work.
f) The Contractor will use generally accepted accounting principles, or accounting principles otherwise agreed to in writing by the parties, and sound business practices in determining all costs claimed, agreed to, or determined under this clause.

23.TERMINATION FOR DEFAULT:
a) The State may, subject to the clause titled “Force Majeure” and to sub-section d) below, by written notice of default to the Contractor, terminate this Contract in whole or in part if the Contractor fails to:
i. Deliver the Deliverables or perform the services within the time specified in the Contract or any amendment thereto;
ii. Make progress, so that the lack of progress endangers performance of this Contract; or
iii. Perform any of the other provisions of this Contract. b) The State’s right to terminate this Contract under sub-section a) above, may be exercised only if the failure constitutes a material breach of this Contract and if the Contractor does not cure such failure within the time frame stated in the State’s cure notice, which in no event will be less than fifteen (15) days, unless the Statement of Work calls for a different period.
c) If the State terminates this Contract in whole or in part pursuant to this Section, it may acquire, under terms and in the manner the Buyer considers appropriate, Deliverables or services similar to those terminated, and the Contractor will be liable to the State for any excess costs for those Deliverables and services, including without limitation costs third party vendors charge for Manufacturing Materials (but subject to the clause entitled “Limitation of Liability”). However, the Contractor shall continue the work not terminated.

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Attachment 1

d) If the Contract is terminated for default, the State may require the Contractor to transfer title, or in the case of licensed Software, license, and deliver to the State, as directed by the Buyer, any:
i. completed Deliverables;
ii. partially completed Deliverables, and,
iii. subject to provisions of sub-section e) below, Manufacturing Materials related to the terminated portion of this Contract. Nothing in this sub-section d) will be construed to grant the State rights to Deliverables that it would not have received had this Contract been fully performed. Upon direction of the Buyer, the Contractor shall also protect and preserve property in its possession in which the State has an interest.
e) The State shall pay Contract price for completed Deliverables delivered and accepted and items the State requires the Contractor to transfer under section (d) above. Unless the Statement of Work calls for different procedures or requires no-charge delivery of materials, the Contractor and Buyer shall attempt to agree on the amount of payment for Manufacturing Materials and other materials delivered and accepted by the State for the protection and preservation of the property; provided that where the Contractor has billed the State for any such materials, no additional charge will apply. Failure to agree will constitute a dispute under the Disputes clause. The State may withhold from these amounts any sum it determines to be necessary to protect the State against loss because of outstanding liens or claims of former lien holders.
f) If, after termination, it is determined by a final decision that is determined by a final decision that Contractor’s negligence or willful misconduct; or (iv) to costs the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the State. g) Both parties, State and Contractor, upon any termination for default, have a duty to mitigate the damages suffered by it.
h) The rights and remedies of the State in this clause are in addition to any other rights and remedies provided by law or under this Contract, and are subject to the clause titled Attachment 1

“Limitation of Liability.”

24.FORCE MAJEURE: Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess costs if the failure to perform the Contract arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include, but are not limited to:
a) Acts of God or of the public enemy, and
b) Acts of the federal or State government in either its sovereign or contractual capacity.

If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform

25.RIGHTS AND REMEDIES OF STATE FOR DEFAULT:

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a) In the event any Deliverables furnished or services provided by the Contractor in the performance of the Contract should fail to conform to the requirements herein, or to the sample submitted by the Contractor, the State may reject the same, and it shall become the duty of the Contractor to reclaim and remove the item promptly or to correct the performance of services, without expense to the State, and immediately replace all such rejected items with others conforming to the Contract.
b) In addition to any other rights and remedies the State may have, the State may require the Contractor, at Contractor’s expense, to ship Deliverables via air freight or expedited routing to avoid or minimize actual or potential delay if the delay is the fault of the Contractor.
c) In the event of the termination of the Contract, either in whole or in part, by reason of default or breach by the Contractor, any loss or damage sustained by the State in procuring any items which the Contractor agreed to supply shall be borne and paid for by the Contractor (but subject to the clause entitled “Limitation of Liability”).

Attachment 1

d) The State reserves the right to offset the reasonable cost of all damages caused to the State against any outstanding invoices or amounts owed to the Contractor or to make a claim against the Contractor therefore.

26.LIMITATION OF LIABILITY:
a) Except as may be otherwise approved by the Department of General Services Deputy Director, Procurement Division or their designee, Contractor’s liability for damages to the State for any cause whatsoever, and regardless of the form of action, whether in Contract or in tort, shall be limited to the Purchase Price. For purposes of this sub-section a), “Purchase Price” will mean the aggregate Contract price; except that, with respect to a Contract under which multiple purchase orders will be issued (e.g., a Master Agreement or Multiple Award Schedule contract), “Purchase Price” will mean the total price of the purchase order for the Deliverable(s) or service(s) that gave rise to the loss, such that the Contractor will have a separate limitation of liability for each purchase order. b) The foregoing limitation of liability shall not apply (i) to any liability under the General Provisions entitled “Compliance with Statutes and Regulations” (ii) to liability under the General Provisions, entitled “Patent, Copyright, and Trade Secret Indemnity” or to any other liability (including without limitation indemnification obligations) for infringement of third party intellectual property rights; (iii) to claims arising under provisions herein calling for indemnification for third party claims against the State for death, bodily injury to persons or damage to real or tangible personal property caused by the or attorney’s fees that the State becomes entitled to recover as a prevailing party in any action. c) The State’s liability for damages for any cause whatsoever, and regardless of the form of action, whether in Contract or in tort, shall be limited to the Purchase Price, as that term is defined in subsection a) above. Nothing herein shall be construed to waive or limit the State’s sovereign immunity or any other immunity from suit provided by law. d) In no event will either the Contractor or the State be liable for consequential, incidental, indirect, special, or punitive damages, even if notification has been given as to the DGS PD 401IT (REVISED AND EFFECTIVE 9/5/14)
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Attachment 1

possibility of such damages, except (i) to the extent that the Contractor’s liability for such damages is specifically set forth in the Statement of Work or (ii) to the extent that the Contractor’s liability for such damages arises out of sub- section b) (i), b) (ii), or b) (iv) above.

27. CONTRACTOR’S LIABILITY FOR INJURY TO PERSONS OR DAMAGE TO PROPERTY:
a) The Contractor shall be liable for damages arising out of injury to the person and/or damage to the property of the State, employees of the State, persons designated by the State for training, or any other person(s) other than agents or employees of the Contractor, designated by the State for any purpose, prior to, during, or subsequent to delivery, installation, acceptance, and use of the Deliverables either at the Contractor’s site or at the State’s place of business, provided that the injury or damage was caused by the fault or negligence of the Contractor.
b) The Contractor shall not be liable for damages arising out of or caused by an alteration or an Attachment not made or installed by the Contractor, or for damage to alterations or Attachments that may result from the normal operation and maintenance of the Deliverables provided by the Contractor during the Contract.

28. INDEMNIFICATION: The Contractor agrees to 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 due to the injury or death of any individual, or the loss or damage to any real or tangible personal property, resulting from the willful misconduct or negligent acts or omissions of the Contractor or any of its affiliates, agents, subcontractors, employees, suppliers, or laborers furnishing or supplying work, services, materials, or supplies in connection with the performance of this Contract. Such defense and payment will be conditional upon the following:
a) The State will notify the Contractor of any such claim in writing and tender the defense thereof within a reasonable time; and
b) 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 (i) when substantial principles Attachment 1