U P L A N D C I T Y C O U N C I L
A G E N D A
N ove mbe r 2 8 , 2 0 2 2
C ity C ou n ci l C h a mbe r
B I L L V E L T O, M A Y O R
S H A N N A N M A U S T, M A Y O R P R O T E M
J A N I C E E L L I O T T, C O U N C I L M E M B E R
C A R L O S A . G A R C I A , C O U N C I L M E M B E R
R U D Y Z U N I G A , C O U N C I L M E M B E R
M I C H A E L B L A Y , C I T Y M A N A G E R
S T E P H E N P . D E I T S C H , C I T Y A T T O R N E Y
D I S R U P T I O N O F M E E T I N G S
I n d ivid uals wh o d em onstrate d isru p tive cond uct d urin g C ity C ou ncil m eetin g s th at p revent th e C ity C oun cil from cond ucting its m eeting in an ord erly m ann er are g u ilty of a m isd em ean or as stated in P C 40 3, d isru p tin g a p ub lic m eeting , and are sub ject to rem oval from th e ch am b er or arrest.
* * * * * * * * * * * *
6 :0 0 P M - C losed S ession
1.C A L L T O O R D E R A N D R O L L C A L L
2.A D D I T I O N S -D E L E T I O N S T O A G E N D A
3.O R A L C O M M U N I C A T I O N S
T his is a tim e for an y citizen to c om m en t on it em l is ted on th e cl osed session ag end a on ly. A n yon e wish in g to ad d ress t he leg is lat ive b od y is req u est ed to sub m it a sp eaker card t o th e C ity C l erk at or p rior to sp eaking . T h e sp eakers are req u ested to keep th eir com m en ts to n o m ore t h an th ree (3 ) m inu tes. Th e use of visu al aid s w ill b e in clud ed in the tim e lim it.
4.C L O S E D S E S S I O N
A .C LO S E D S E S S I O N P U B L I C E M P LOY E E P E R F O R M A N C E E V A L U A T I O N P u rsuan t to G overn m en t C od e S ection 54 95 7
Title: C ity M anag er
B.C LO S E D S E S S I O N C O N F E R E N C E W I T H L A B O R N E G OT I A TO R S G overn m en t C od e S ection 54 95 7.6
C ity D esig n ated
Rep resentatives:
M ayor B i ll Vel to and C it y At torney S tep h en
D eitsch
U nrep resen ted E m p loyee:C ity M anag er
* * * * * * * * * * * *
7:00 P M
5.I N V O C A T I O N
Rab b i S tep h en E p stein , Tem p le S h olom
6.P L E D G E O F A L L E G I A N C E
7.P R E S E N T A T I O N S
P resentation of L ifesavin g A w ard to M i ke Pattison b y A ssistan t F i re C hief B irch field
8.C I T Y A T T O R N E Y
9.O R A L C O M M U N I C A T I O N S
T his i s a t im e for an y ci ti zen t o com m ent on an y it em li st ed or n ot li st ed on th e ag end a. A nyon e wi sh in g to ad d res s the leg islat ive b od y i s req u es ted t o su b m it a sp eaker card t o th e C i ty C lerk at or p rior to s p eaki n g . T h e sp eakers are req u ested t o keep th eir com m en ts to no m ore t h an three (3) m in u t es. S p eakers will b e g iven fi ve (5 ) m inu tes d u ri n g p ub lic h eari ng s. T h e use of visu al ai d s will b e i n c lu d ed in th e t im e li m i t. P ub li c com m ents an d q u est ion s for t h e p urp ose of h earing curren t m at ters of con cern in ou r com m u n i ty an d to p rovid e c it izen s a m eth od for th e p ub li c to h ear th ose con cerns in an op en ven u e is encourag ed .
H owever, u n d er t he p rovisions of t he B rown A ct , th e C ity C ou n c il is p rohib ited from d iscu ssion of it em s n ot listed on t he ag end a, and th erefore, th e C ity C oun cil, C ity M an ag er, or C it y A tt orn ey w il l t ake com m u n i cat ion s un d er ad visem en t for consid eration an d ap p rop riate resp on s e or d i sc u s si on at a later tim e.
10.C O N S E N T C A L E N D A R
A ll m at ters list ed u n d er th e C onsent C al en d ar are c on s id ered t o b e rou ti ne and will b e en act ed b y on e roll call vot e. T h ere w i ll b e no sep arat e d is cu ss ion of these i tem s u n l ess m em b ers of t h e l eg i sl ati ve b od y req uest sp ecific item s b e rem oved from th e C on sen t C alen d ar for sep arate action.
A .A P P R O V A L O F M I N U T E S
A p p rove th e Reg u lar M eetin g M in utes of N ovem b er 14 , 20 22 . (S taff Person: Keri J ohn son )
B.2 N D R E A D I N G O F O R D I N A N C E N O. 19 72 A D O P T I N G Z O N I N G C H A N G E N O. Z C-2 1-0 00 1 TO A M E N D Z O N I N G C O D E D E S I G N A T I O N O F F O U R E X I S T I N G LOT S ; A N D D E T E R M I N E T H E P R O J E C T I S E X E M P T F R O M
T H E C A L I F O R N I A E N V I R O N M E N TA L Q U A L I T Y A C T (C E Q A ) H old second read in g b y title only, w aive fu rther read in g , an d ad op t O rd in ance N o. 1 97 2 ad op ti n g Zoning C h an g e N o. Z C-2 1 -0 0 0 1 to am end th e Z oni ng C od e D es ig nat ion of fou r (4) exi st in g lots from O ffice P rofession al (O P ) to Resid ent ial S i ng le-Fam il y M ed iu m R S -7 .5 A P N : 10 47 - 07 2-2 2 (3 71 S. 2n d Aven ue), A P N : 1 04 7-0 72 -23 (38 1 S. 2 nd Avenu e), A P N : 10 47 -07 2-0 4 (37 8 S. 1st Aven u e), and A P N : 1 04 7-0 72 -05 (37 0 S. 1st Aven ue); an d d eterm ine the p roject is exem p t from review un d er th e C alifornia E nvi ron m en tal Q u ality A ct ("C E Q A ") (C ali forn ia P u b l ic Resources C od e S ect ion 21 00 0, et seq .), p u rs u an t t o S tat e C E Q A Reg u lation §1 50 61 (b )(3 ). (S taff Person: Rob ert D alq uest) C .A P P R O V A L O F O C TO B E R W A R R A N T A N D PA Y R O L L R E G I S T E R S A p p rove th e O ctob er Warran t Reg isters (check nu m b ers 40 85 8-4 11 60 ) and D irect D i sb u rsem en t s t otal in g $6,3 60 ,91 7.1 1 an d Payroll Reg isters totaling $ 1 ,47 7,0 77 .62 (c h ec k n u m b ers 16 27 46 -16 27 62 an d E lectronic F u nd Transfers 36 66 6-3 71 55 ). (S taff Person: S tep hen Parker) D.T R E A S U R E R 'S R E P O RT O C TO B E R 2 02 2 Receive and file th e O ctob er 20 22 Treasu rer's Rep ort. (S taff Person :
S tep h en Parker)
E .S E W E R S E R V I C E A G R E E M E N T N O. 20 22 -10 -13 A u th orize the C ity M an ag er to execute th e S ewer S ervice A g reem ent N o. 20 22 -10 -13 for th e p rop erty at 1 06 5 W. 23 rd S t reet . (S taff Person :
B rad en Yu)
F.P U R C H A S E O F A X O N TA S E R 7 A N D A B 3 B O DY W O R N C A M E R A S A p p rove a p urch ase ag reem en t with A xon E n terp rises, I nc . an d ac cep t th e p u rchase of t he O ffic er S afety P l an , inclu d ing n ew b od y w orn cam eras, n ew cam era d ocks , n ew TA S E R s, live cartrid g es, c lou d st orag e, an d w arranties for all A X O N p rod u ct s; an d au t h orize th e C ity M an ag er to execut e th e ag reem en t. (S taff Person : M arcelo B lanco)
11.P U B L I C H E A R I N G S
12.C O U N C I L C O M M I T T E E R E P O R T S
13.B U S I N E S S I T E M S
A .A P P R O V E A G R E E M E N T S W I T H Y I F T E E , I N C . A N D H I N D E R L I T E R , D E L L A M A S A N D A S S O C I A T E S, I N C . F O R T H E D E V E LO P M E N T O F A N
U P L A N D S M A L L B U S I N E S S D I G I TA L G I F T C A R D P R O G R A M W I T H A R PA
F U N D S
A p p rove ag reem en ts w i th Y ift ee, I n c . an d H in d erli ter, D e L lam as and A ssociates, I n c. to im p lem ent a strateg y of sup p orting l ocal b u sinesses w ith a d ig it al g ift card p rog ram , au th ori ze t h e C ity M anag er t o execu te th e ag reem en ts, an d ap p rove th e u se of $25 0,0 00 in A m erican Rescu e P lan A ct (A R PA ) fun d s. (S taff Person: S tep hen Parker)
14.C O U N C I L C O M M U N I C A T I O N S
15.C I T Y M A N A G E R
16.A D J O U R N M E N T
T he n ext reg ularly sc hed ul ed C ity C oun ci l m eetin g i s M on d ay, D ec em b er 12 , 2 02 2.
N O T E : I f yo u cha l l e ng e t h e p u b l i c h e a ri ng (s ) o r t he re l a t e d e nvi ro nm e n t a l d e t e rm i na t i o ns i n co u rt , yo u m a y b e l i m i t e d t o ra i s i n g o nl y t h o s e i s s ue s yo u o r s o m e o n e e l s e ra i s e d a t t h e p ub l i c h e a ri ng d e s cri b e d i n t h i s no t i ce , o r i n w ri t t e n co rre s p o nd e nce d e l i ve re d t o t he C i t y o f U p l a nd , a t , o r p ri o r t o , t he p ub l i c he a ri n g .
A l l A g e n d a i t e m s a n d b a ck-u p m a t e ri a l s a re a va i l a b l e f o r p u b l i c re vi e w a t t h e U p l a nd P ub l i c L i b ra ry, d o w n s t a i rs re f e re n ce d e s k a t 4 5 0 N o rt h E ucl i d A ve nue , t h e C i t y C l e rk's O f f i ce a t 460 N o rt h E ucl i d A ve nue a nd t h e C i t y w e b s i t e a t w w w.u p l a nd ca .g o v.
I n co m p l i a n ce w i t h t h e A m e ri ca n s w i t h D i s a b i l i t i e s A ct , i f yo u n e e d s p e ci a l a s s i s t a nce t o p a rt i ci p a t e i n t hi s m e e t i n g , p l e a s e co n t a ct t h e C i t y C l e rk's O f f i ce , 931-4 1 2 0 . N o t i f i ca t i o n 48 h o u rs p ri o r t o t h e m e e t i n g w i l l e n a b l e t he C i t y t o m a ke re a s o n a b l e a rra n g e m e n t s t o e n s ure a cce s s i b i l i t y t o t h i s me e t i ng . [2 8 C F R 3 5 .1 0 2 -35.104 A D A T i t l e I I ] P O S T I N G S T A T E M E N T : O n N o ve m b e r 2 3 , 2 0 2 2 a t rue a nd co rre ct co p y o f t h i s a g e n d a w a s p o s t e d o n t he b ul l e t i n b o a rd s a t 450 N . E ucl i d A ve nue (U p l a n d P ub l i c L i b ra ry) a n d 4 6 0 N . E u cl i d Ave n u e (U p l a nd C i t y H a l l ) a n d t he C i t y w e b s i t e a t w w w.up l a n d ca .g o v.
ORDINANCE NO. 1972
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
UPLAND, CALIFORNIA, APPROVING ZONE CHANGE NO.
ZC-21-0001 TO AMEND THE ZONING DESIGNATION OF
FOUR (4) EXISTING LOTS FROM OFFICE PROFESSIONAL
(OP) TO RESIDENTIAL SINGLE-FAMILY MEDIUM RS-7.5.
THE PROJECT SITE INCLUDES THE FOLLOWING PARCELS:
APN: 1047-072-22 (371 S. 2ND AVENUE), APN: 1047-072-
23 (381 S. 2ND AVENUE), APN: 1047-072-04 (378 S. 1ST
AVENUE) AND APN: 1047-072-05 (370 S. 1ST AVENUE).
WHEREAS, Leon Carter (Applicant) has filed applications requesting approval of Zone Change No. ZC-21-0001 and General Plan Amendment No. GPA-21-0001 for APN: 1047-072-05 (370 S. 1ST Avenue); and
WHEREAS, the City of Upland Planning Division has included APN: 1047-072- 22 (371 S. 2ND Avenue), APN: 1047-072-23 (381 S. 2ND Avenue), 1047-072-04 (378 S. 1ST Avenue) in the request; and
WHEREAS, Upland Municipal Code Section 17.49.050 requires that the City Council take action on General Plan Amendments; and
WHEREAS, Upland Municipal Code Section 17.48.050 requires that the City Council take action on Zone Changes; and
WHEREAS, on September 28, 2022 at 6:30 p.m. the Planning Commission conducted a public hearing for the project and heard and considered both oral and written evidence and recommended that the City Council adopt a Resolution and an Ordinance approving the project; and
WHEREAS, a notice of a public hearing on said application has been given in the manner and for the time required by law; and
WHEREAS, on November 14, 2022 at 7:00 p.m. the City Council conducted a public hearing for the project and heard and considered both oral and written evidence.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF UPLAND DOES ORDAIN AS FOLLOWS:
Section 1. The above recitals are true and correct and are hereby incorporated herein by this reference.
Section 2. Findings: Upland Municipal Code Section 17.48.060 provides that the approval body, before it may approve a Zoning Amendment, shall make a determination to allow the amendment based upon the following findings:
1. Finding: The proposed amendment is consistent with the General Plan and any applicable community or specific plan as provided by Government Code Section §65860.
Ordinance No. 1972
Evidence: This Zoning Amendment is to amend the Zoning District of the project site from Office Professional (OP) to RS-7.5 Residential Single-Family Medium. Government Code Section §65860 requires a city's zoning ordinance to be consistent with the General Plan, therefore the project is consistent with Government Code Section §65860.
The Amendment identifies consistency with the General Plan elements including the following goals and polices:
a. Land Use Element Goal LU-2: A community with stable
and livable residential neighborhoods.
Fact: 371 S. 2nd Avenue, 381 S. 2nd Avenue, 378 S. 1st
Avenue will be maintained as single-family residences,
ensuring their future preservation, ensuring a stable
residential community.
b. Focus Areas Element Policy FA-4.7: Housing. Provide a diverse range of housing types in the Southeast Quadrant that meet the needs of residents at all income levels.
Fact: The change will allow the development of 370 S. 1st Avenue into single-family residential housing, providing needed housing in the Southeast Quadrant available to
multiple income levels.
c. Focus Areas Element Policy FA-4.10: Neighborhood
Character. Ensure that new development is sensitive to the character of adjacent structures and the immediate
neighborhood.
Fact: The change will allow the development of 370 S. 1st Avenue into a single-family dwelling, and ensure the
existing dwellings will remain as single-family, preserving the character of adjacent structures and the immediate
neighborhood.
2. Finding: The proposed amendment will not be detrimental to the public interest, health, safety, or welfare of the City.
Evidence: The proposed Zoning Amendment will not be detrimental to the public interest, health, safety, or welfare because the amendment will result in residentially zoned land, consistent with the surrounding residential land uses, and the amendment will prohibit potential commercial uses allowed within the Office Professional (OP) zone that could present negative impacts the existing single-family neighborhood.
Furthermore, the project will preserve the existing community character as the amendment will result in the development of a currently vacant
Ordinance No. 1972
parcel and eliminate legal non-conforming status of existing single- family dwellings.
3. Finding: The affected site is physically suitable in terms of design, location, shape, size, and other characteristics to ensure that the proposed uses and development will not endanger, jeopardize, or otherwise constitute a hazard to the property, surrounding properties, and the community at large.
Evidence: Three of the four parcels are currently fully developed with single-family residences, which currently do not endanger, jeopardize, or otherwise constitute a hazard to the property, surrounding properties, and the community at large. The vacant parcel will allow for single-family residential construction consistent with the neighborhood.
The parcel is the typical size and shape of a single-family parcel, resulting adequate space on the lot to meet all residential development standards required for future development.
Section 3. Ordinance: Amending the Zoning Designation. The Zoning Designation of the following parcels shall be changed from Office Professional (OP) to Residential Single-Family Medium (RS-7.5) as shown in Exhibit A, attached hereto and incorporated herein by reference:
1. APN: 1047-072-22 (371 S. 2nd Avenue)
2. APN: 1047-072-23 (381 S. 2nd Avenue)
3. APN: 1047-072-04 (378 S. 1st Avenue)
4. APN: 1047-072-05 (370 S. 1st Avenue)
Section 4. Compliance with California Environmental Quality Act. This Ordinance is exempt from review under the California Environmental Quality Act ("CEQA") (California Public Resources Code Section 21000, et seq.), pursuant to State CEQA Regulation §15061(b)(3) (14 Cal. Code Regs. § 15061(b)(3)), the common sense exemption covering activities with no possibility of having a significant effect on the environment.
Section 5. Severability. If any section, subsection, subdivision, sentence, or clause or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have adopted each section irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, or phrases are declared unconstitutional, invalid, or ineffective.
Section 6. Effective Date. This Ordinance shall become effective thirty (30) days from its adoption.
Section 7. Publication. The City Clerk shall certify to the adoption of this Ordinance and cause it, or a summary of it, to be published in a newspaper of general
Ordinance No. 1972
circulation printed and published within the City of Upland, pursuant to all legal requirements.
PASSED, APPROVED, AND ADOPTED this 28th day of November, 2022.
Bill Velto, Mayor
I, Keri Johnson, City Clerk of the City of Upland, California, do hereby certify that the foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Upland held on the 14th day of November 2022, and was adopted at a regular meeting of the City Council of the City of Upland on the 28th day of November, 2022, by the following roll call vote:
AYES:
NOES:
ABSENT:
ABSTAINED:
ATTEST:
Keri Johnson, City Clerk
S T A F F R E P O R T
I T E M N O . 10.C .
D A T E :N ovem b er 28 , 20 22
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : S T E P H E N PA R K E R , C PA , A S S I S TA N T C I T Y M A N A G E R
LO N D A B O C K-H E L M S, C PA , F I N A N C E O F F I C E R S U B J E C T :A P P R O V A L O F O C TO B E R W A R R A N T A N D PA Y R O L L R E G I S T E R S
R E C O M M E N D E D A C T I O N
I t is recom m en d ed t h at C it y C ou n ci l ap p rove th e O ctob er Warran t Reg ist ers (check n um b ers 40 85 8-4 11 60 ) and D irect D isb u rsem en ts totaling $6 ,36 0,9 17 .11 and Payroll Reg isters totalin g $1 ,47 7,0 77 .62 (ch eck n um b ers 1 62 74 6-1 62 76 2 an d E lectron ic F u nd Transfers 36 66 6-3 71 55 ).
G O A L S T A T E M E N T
Th e p rop osed ac ti on su p p ort s the C i ty's g oal to m an ag e th e C it y's resources i n a fiscally resp on sib le and transp arent m an ner.
B A C K G R O U N D
Th e C i ty C ou ncil is p res en t ed w it h th e finan cial d is b u rs em en ts for the p u rch ase of m aterials, su p p lies, services, cap it al p rojects, an d p ayroll w arrants issu ed in t h e p rior m on th . T his p rocess p rovid es th e C ity C oun cil the op p ortu nity to review th e exp en ses of th e C ity.
I S S U E S /A N A L Y S I S
I n accord an ce w it h G overn m en t C od e S ect ion 3 72 08 , t h e F i n an ce O ffic er h ereb y certi fies th at th e at tached W arran t Reg i st ers, D i rec t D isb ursem ent s, an d Payroll Reg i st ers have b een foun d to conform to th e ap p roved b u d g et an d h ave b een p aid . T hese d em and s are su b m itted to the C ity C oun cil for review and ap p roval.
F I S C A L I M P A C T S
F u nd s are availab le for t he p aym en t of th e W arran t Reg i st ers, D i rec t D i sb ursem ent s, an d Payroll Reg isters in accord an ce with th e F Y 20 22 -23 op erating b u d g et.
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
Warrant Register October 2022
CHECK #CHECK DATE CHECK TYPE VENDOR #VENDOR NAME CHECK AMOUNT 40858 10/05/2022 PRINTED 15750 AFLAC PREMIUM HOLDING 990.28 40859 10/05/2022 PRINTED 6109 AMERICAN HERITAGE LIFE INS CO 93.09 40860 10/05/2022 PRINTED 1123 HYATT LEGAL PLANS, INC 735.00 40861 10/05/2022 PRINTED 37 5 STAR JANITORIAL 3,848.00
40862 10/05/2022 PRINTED 36721 ALHAMBRA REPROGRAPHICS INC 232.85 40863 10/05/2022 PRINTED 99181 ACCOUNTEMPS 7,398.55
40864 10/05/2022 PRINTED 291 ADVANCE STORE CO, INC 25.83 40865 10/05/2022 PRINTED 12564 ALL CITY MANAGEMENT SERVICES INC 8,640.00 40866 10/05/2022 PRINTED 1291 AMTECH ELEVATOR SERVICES 1,211.64 40867 10/05/2022 PRINTED 131971 ANNEALTA GROUP 10,800.00 40868 10/05/2022 PRINTED 6683 ATMAA INC 2,350.00
40869 10/05/2022 PRINTED 120021 BRIGHTVIEW 275.00
40870 10/05/2022 PRINTED 5944 BURRTEC WASTE INDUSTRIES 1,220,989.42 40871 10/05/2022 PRINTED 120091 CALIFORNIA BUILDING OFFICIALS 295.00 40872 10/05/2022 PRINTED 195 CALIFORNIA NEWSPAPERS PARTNERSHIP 1,613.09 40873 10/05/2022 PRINTED 12511 CALIFORNIA COMPUTER SCHOOLS 281.25 40874 10/05/2022 PRINTED 448 CINTAS CORPORATION 1,105.24 40875 10/05/2022 PRINTED 1459 ENERGAGE LLC 5,523.00
40876 10/05/2022 PRINTED 4402 VARGAS, LUPE B 180.00
40877 10/05/2022 PRINTED 10485 EXPERIAN 77.00
40878 10/05/2022 PRINTED 4456 FEDERAL EXPRESS 16.79
40879 10/05/2022 PRINTED 1486 FLORES, NORMA 26.00
40880 10/05/2022 PRINTED 96251 FORD OF UPLAND 209.25
40881 10/05/2022 PRINTED 58311 G H A TECHNOLOGIES 3,998.98 40882 10/05/2022 PRINTED 673 GARCIA, GABRIEL 330.44
40883 10/05/2022 PRINTED 28871 GRAFFITI PROTECTIVE COATINGS 6,668.20 40884 10/05/2022 PRINTED 129521 GRAFIX SYSTEMS 1,604.55 40885 10/05/2022 PRINTED 329 HOLLIDAY ROCK CO INC 1,016.09 40886 10/05/2022 PRINTED 114501 INTERWEST CONSULTING GROUP 15,240.00 40887 10/05/2022 PRINTED 1357 JACKS KEY SERVICE 1,603.15 40888 10/05/2022 PRINTED 1466 ROOFLINE INC 4,094.57
40889 10/05/2022 PRINTED 529 KAISER FOUNDATION HEALTH PLAN 24,635.88 40890 10/05/2022 PRINTED 529 KAISER FOUNDATION HEALTH PLAN 25,514.88 40891 10/05/2022 PRINTED 529 KAISER FOUNDATION HEALTH PLAN 135,509.49 40892 10/05/2022 PRINTED 1287 KOFF & ASSOCIATES 8,497.50 40893 10/05/2022 PRINTED 4500 KOONTZ, CLYDE 1,203.09
40894 10/05/2022 PRINTED 15595 L D M ASSOCIATES INC 41,015.00 40895 10/05/2022 PRINTED 102 LIGHTING INSTYLE 27.20
40896 10/05/2022 PRINTED 1463 MOUNTAIN PLAZA COMPANY 6,000.00 40897 10/05/2022 PRINTED 238 MOUNTAIN VIEW CHEVROLET 265.98 40898 10/05/2022 PRINTED 4850 MYERS AND SONS HI-WAY SAFETY INC 500.00 40899 10/05/2022 PRINTED 117121 NUCKLES OIL COMPANY INC 40,123.72 40900 10/05/2022 PRINTED 30971 OCCUPATIONAL HEALTH CENTERS 237.50 40901 10/05/2022 PRINTED 6625 P F SERVICES INC 1,425.00 40902 10/05/2022 PRINTED 1731 R E S ENVIRONMENTAL INC 1,280.00 40903 10/05/2022 PRINTED 240 RICHARD BRADY & ASSOCIATES INC 70,736.85 40904 10/05/2022 PRINTED 10638 RICHARDS, WATSON & GERSHON 1,120.00 40905 10/05/2022 PRINTED 1474 SCOTT SAVAGE 2,738.00
40906 10/05/2022 PRINTED 1472 SCHEU MANAGEMENT CORPORATION 3,471.00 40907 10/05/2022 PRINTED 131121 SHRED-IT USA JV LLC 584.25 40908 10/05/2022 PRINTED 43011 SMITH-EMERY LABORATORIES 1,504.00 City of Upland
Accounts Payable Check Reconciliation Register
10/01/2022 - 10/31/2022
Prepared By: Erin Myers Page 1 of 7
10/31/2022
CHECK #CHECK DATE CHECK TYPE VENDOR #VENDOR NAME CHECK AMOUNT 40909 10/05/2022 PRINTED 16607 STAPLES BUSINESS ADVANTAGE 612.94 40910 10/05/2022 PRINTED 10218 STATE OF CALIFORNIA DMV 2.00 40911 10/05/2022 PRINTED 1471 TAQUERIA EL ZARAPE MEXICAN FOOD INC 1,674.00 40912 10/05/2022 PRINTED 38131 U C ADVANTAGE INC 455.50 40913 10/05/2022 PRINTED 1481 UPLAND PET HOSPITAL, A VETERINARY CORPORATION 13,121.08 40914 10/05/2022 PRINTED 1454 VILLAGE GROVE SHOPPING CENTER 5,695.36 40915 10/05/2022 PRINTED 1487 WALKER, ALISON 158.00
40916 10/05/2022 PRINTED 635 ISOTECH PEST MANAGEMENT INC 1,693.10 40917 10/05/2022 PRINTED 1480 NADINA R REARTE 300.00
40918 10/05/2022 PRINTED 999999 BALMORE LEIVA 220.00
40919 10/05/2022 PRINTED 999999 DANIEL MOJARRO 350.00
40920 10/05/2022 PRINTED 999999 LUIS EMMANUEL PONCE NAVA 870.00 40921 10/05/2022 PRINTED 999999 MAE ELEANOR VALDEZ 124.82 40922 10/05/2022 PRINTED 999999 NANETTE HART 50.00
40923 10/05/2022 PRINTED 999999 SUKI JOHNSTON 4.00
40924 10/05/2022 PRINTED 999999 WILLIAM O'LOUGHLIN 79.00 40925 10/12/2022 PRINTED 1273 SOUTHWEST CONCRETE PRODUCTS 343.73 40926 10/12/2022 PRINTED 1133 DISTRIBUTOR OPERATIONS INC 117.78 40927 10/12/2022 PRINTED 99418 FRANCHISE TAX BOARD 75.00 40928 10/12/2022 PRINTED 125781 SAN BERNARDINO CENTRAL SHERIFF 218.83 40929 10/12/2022 PRINTED 1396 ALVAREZ, MARIA ELENA 538.65 40930 10/12/2022 PRINTED 3987 BALDY VIEW GYMNASTICS 601.52 40931 10/12/2022 PRINTED 1348 BAST, KAY 279.03
40932 10/12/2022 PRINTED 125851 COOPER, MARY KATHRYN 59.84 40933 10/12/2022 PRINTED 521 COUPLAND, DONNA 478.80
40934 10/12/2022 PRINTED 44891 FARLEY, SANDRA 2,192.70
40935 10/12/2022 PRINTED 6930 JONES, SANDY 598.50
40936 10/12/2022 PRINTED 56981 KENDALL, ANDREA 1,955.25 40937 10/12/2022 PRINTED 801 MCLELLAN, MCROBBIE 66.68
40938 10/12/2022 PRINTED 33021 PELLITTERI, CHRISTOPHER 232.75 40939 10/12/2022 PRINTED 407 SINGLETON, DENICE 136.80
40940 10/12/2022 PRINTED 16541 ANDREW TODD 63.35
40941 10/12/2022 PRINTED 5193 ZAILO, ROBERT 262.35
40942 10/12/2022 PRINTED 99181 ACCOUNTEMPS 27,144.50
40943 10/12/2022 PRINTED 291 ADVANCE STORE CO, INC 5,481.33 40944 10/12/2022 PRINTED 1243 AMERICAN GLOBAL SECURITY, INC 11,225.81 40945 10/12/2022 PRINTED 119831 AXON ENTERPRISE INC 3,376.00 40946 10/12/2022 PRINTED 862 BADGER METER INC 4,140.89
40947 10/12/2022 PRINTED 120021 BRIGHTVIEW 1,417.50
40948 10/12/2022 PRINTED 195 CALIFORNIA NEWSPAPERS PARTNERSHIP 2,640.21 40949 10/12/2022 PRINTED 83401 CARL WARREN & CO 5,380.38 40950 10/12/2022 PRINTED 163 CLINICAL LABORATORY OF SAN BERNARDINO, INC 2,551.50 40951 10/12/2022 PRINTED 4696 CUCAMONGA VALLEY WATER DISTRIC 82.46 40952 10/12/2022 PRINTED 986 BOROCH, MARK 20,000.00
40953 10/12/2022 PRINTED 584 DIRECT LIGHTING MANUFACTURING LLC 30,652.72 40954 10/12/2022 PRINTED 82651 ECONOLITE SYSTEMS 18,582.52 40955 10/12/2022 PRINTED 4402 VARGAS, LUPE B 180.00
40956 10/12/2022 PRINTED 2435 EVERSOFT 805.14
40957 10/12/2022 PRINTED 96251 FORD OF UPLAND 318.81
40958 10/12/2022 PRINTED 123041 FRIENDS OF UPL ANML SHLTR INC 906.50 40959 10/12/2022 PRINTED 78 FRONTIER 98.88
40960 10/12/2022 PRINTED 78 FRONTIER 127.99
40961 10/12/2022 PRINTED 78 FRONTIER 564.07
40962 10/12/2022 PRINTED 78 FRONTIER 1,613.76
40963 10/12/2022 PRINTED 58311 G H A TECHNOLOGIES 5,744.40 40964 10/12/2022 PRINTED 1192 GATEWAY PACIFIC CONTRACTORS, INC 324,585.17 Prepared By: Erin Myers Page 2 of 7
10/31/2022
CHECK #CHECK DATE CHECK TYPE VENDOR #VENDOR NAME CHECK AMOUNT 40965 10/12/2022 PRINTED 29491 GEO PLASTICS 2,320.02
40966 10/12/2022 PRINTED 111251 GNA BROOK FIRE PROTECTION INC 2,057.34 40967 10/12/2022 PRINTED 560 GOTIME CONTROL, INC 4,560.00 40968 10/12/2022 PRINTED 290 GRAINGER 3,225.23
40969 10/12/2022 PRINTED 1360 GRISWOLD INDUSTRIES 16,304.46 40970 10/12/2022 PRINTED 72691 HAAKER EQUIPMENT CO 459.58 40971 10/12/2022 PRINTED 306 HACH CO 589.00
40972 10/12/2022 PRINTED 329 HOLLIDAY ROCK CO INC 1,838.23 40973 10/12/2022 PRINTED 1333 HR GREEN PACIFIC 17,929.00 40974 10/12/2022 PRINTED 16340 INFOSEND INC 13.00
40975 10/12/2022 PRINTED 153 INLAND EMPIRE UTILITIES AGENCY 57,888.80 40976 10/12/2022 PRINTED 4884 INMARK 74.44
40977 10/12/2022 PRINTED 106951 INTEGRATED TECHNOLOGY 3,867.84 40978 10/12/2022 PRINTED 1161 IPS GROUP INC 67.68
40979 10/12/2022 PRINTED 63221 J C I JONES CHEMICALS INC 4,980.10 40980 10/12/2022 PRINTED 284 J G BAUTISTA CONSULTING 6,075.00 40981 10/12/2022 PRINTED 48371 JEEP CHRYSLER OF ONTARIO 398.48 40982 10/12/2022 PRINTED 267 LARA, JASON 202.00
40983 10/12/2022 PRINTED 1488 LUPERCIO, EDGAR 200.00
40984 10/12/2022 PRINTED 16385 MAIN STREET SIGNS 6,297.72 40985 10/12/2022 PRINTED 445 MATHISEN OIL CO INC 1,841.61 40986 10/12/2022 PRINTED 1406 HOUALLA ENTERPRISES, LTD 31,350.95 40987 10/12/2022 PRINTED 1221 METRON FARNIER, LLC 291,637.00 40988 10/12/2022 PRINTED 1151 OLVERA, GREGORIO 423.25
40989 10/12/2022 PRINTED 824 MK CONSULTING 1,979.82
40990 10/12/2022 PRINTED 1359 MONTE VISTA WATER DISTRICT 1,500.00 40991 10/12/2022 PRINTED 16233 MPOWER COMMUNICATIONS 236.87 40992 10/12/2022 PRINTED 1473 NUTT, STEVE H 8,900.00
40993 10/12/2022 PRINTED 788 O F WOLFINBARGER INC 892.17 40994 10/12/2022 PRINTED 30971 OCCUPATIONAL HEALTH CENTERS 217.50 40995 10/12/2022 PRINTED 4509 PARKHOUSE TIRE INC 506.57 40996 10/12/2022 PRINTED 1159 PARKMOBILE LLC 915.90
40997 10/12/2022 PRINTED 961 PATTEN SYSTEMS, INC 3,151.13 40998 10/12/2022 PRINTED 834 PRO-CAST PRODUCTS INC 700.38 40999 10/12/2022 PRINTED 909 PSYCHOLOGICAL CONSULTING ASSOCIATES INC 1,350.00 41000 10/12/2022 PRINTED 349 RAIN MASTER IRRIGATION SYSTEMS 245.85 41001 10/12/2022 PRINTED 1000 RICHARDSON BODY SHOP CORPORATION 1,055.90 41002 10/12/2022 PRINTED 1262 RUMBLE FISH PEST CONTROL INC 900.00 41003 10/12/2022 PRINTED 90591 S & J SUPPLY CO INC 386.18 41004 10/12/2022 PRINTED 3662 SAFETY-KLEEN SYSTEMS, INC 60.00 41005 10/12/2022 PRINTED 2225 SAN BERNARDINO COUNTY FIRE 3,791.00 41006 10/12/2022 PRINTED 637 SMART & FINAL IRIS CO 191.97 41007 10/12/2022 PRINTED 1195 SOUTHLAND INDUSTRIES 3,834.84 41008 10/12/2022 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 669.00 41009 10/12/2022 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 1,318.28 41010 10/12/2022 PRINTED 16607 STAPLES BUSINESS ADVANTAGE 359.45 41011 10/12/2022 PRINTED 127551 STEVE'S HEATING AND AIR 545.00 41012 10/12/2022 PRINTED 492 STEVE'S PROFESSIONAL GLASS TINTING & AUTO SECURITY 3,253.42 41013 10/12/2022 PRINTED 678 SUN BADGE COMPANY INC 243.20 41014 10/12/2022 PRINTED 1299 MARUTI HOSPITALITY LLC 4,904.90 41015 10/12/2022 PRINTED 688 TEAGUE, CAITLIN 208.73
41016 10/12/2022 PRINTED 11583 THOMPSON PLUMBING SUPPLY 394.69 41017 10/12/2022 PRINTED 1098 TIREHUB, LLC 338.04
41018 10/12/2022 PRINTED 626 TMP ENTERPRISES, LLC 200.00 41019 10/12/2022 PRINTED 68821 TOTAL CORPORATE SOLUTIONS 315.00 41020 10/12/2022 PRINTED 62321 U.S. TELEPACIFIC CORP 870.68 Prepared By: Erin Myers Page 3 of 7
10/31/2022
CHECK #CHECK DATE CHECK TYPE VENDOR #VENDOR NAME CHECK AMOUNT 41021 10/12/2022 PRINTED 1296 TRANSTECH 7,920.00
41022 10/12/2022 PRINTED 768 TRI-TECH FORENSICS, INC 2,396.00 41023 10/12/2022 PRINTED 3557 UNDERGROUND SERVICE ALERT 862.15 41024 10/12/2022 PRINTED 5522 UNITED RENTALS INC 826.71 41025 10/12/2022 PRINTED 133941 VERIZON 1,496.29
41026 10/12/2022 PRINTED 14735 VERIZON WIRELESS 4,925.58 41027 10/12/2022 PRINTED 98971 WARNER, MARC 255.00
41028 10/12/2022 PRINTED 1725 WEST COAST ARBORISTS INC 16,751.95 41029 10/12/2022 PRINTED 14050 WILLDAN FINANCIAL SERVICES 14,704.39 41030 10/12/2022 PRINTED 999999 ASCE 467.50
41031 10/12/2022 PRINTED 999999 SAMANTHA KUNZMAN 90.00
41032 10/12/2022 NOT PRINTED 0 NOT USED 0.00
41033 10/19/2022 PRINTED 1310 UNITED PET CARE LLC 145.30 41034 10/19/2022 PRINTED 99181 ACCOUNTEMPS 2,200.00
41035 10/19/2022 PRINTED 207 ADLERHORST INTERNATIONAL LLC 70.04 41036 10/19/2022 PRINTED 291 ADVANCE STORE CO, INC 1,480.60 41037 10/19/2022 PRINTED 851 ADVANTAGE SEALING SYSTEMS, INC 521.29 41038 10/19/2022 PRINTED 289 ARROW TRAILER SUPPLIES INC 59.50 41039 10/19/2022 PRINTED 308 ASPINALL, ROBIN JEAN 100.00 41040 10/19/2022 PRINTED 55 BABCOCK & SONS, INC 532.51
41041 10/19/2022 PRINTED 1769 BIO-TOX LABORATORIES 922.00 41042 10/19/2022 PRINTED 120021 BRIGHTVIEW 59,196.30
41043 10/19/2022 PRINTED 819 BRINKS, INC 904.83
41044 10/19/2022 PRINTED 120091 CALIFORNIA BUILDING OFFICIALS 780.00 41045 10/19/2022 PRINTED 1007 CALDWELL, CHRISTINE 100.00 41046 10/19/2022 PRINTED 195 CALIFORNIA NEWSPAPERS PARTNERSHIP 750.98 41047 10/19/2022 PRINTED 12511 CALIFORNIA COMPUTER SCHOOLS 125.00 41048 10/19/2022 PRINTED 3163 CHINO BASIN WATER 9,233.98 41049 10/19/2022 PRINTED 448 CINTAS CORPORATION 2,969.85 41050 10/19/2022 PRINTED 405 CLESCERI, CURTIS 138.98
41051 10/19/2022 PRINTED 1272 D&H WATER SYSTEMS 5,379.27 41052 10/19/2022 PRINTED 124 DEPARTMENT OF JUSTICE 707.00 41053 10/19/2022 PRINTED 816 DOG WASTE DEPOT 1,264.40
41054 10/19/2022 PRINTED 1002 DUNN-EDWARDS 500.32
41055 10/19/2022 PRINTED 4402 VARGAS, LUPE B 575.00
41056 10/19/2022 PRINTED 10485 EXPERIAN 79.40
41057 10/19/2022 PRINTED 96251 FORD OF UPLAND 1,027.74
41058 10/19/2022 PRINTED 78 FRONTIER 75.35
41059 10/19/2022 PRINTED 78 FRONTIER 591.76
41060 10/19/2022 PRINTED 58311 G H A TECHNOLOGIES 285.60 41061 10/19/2022 PRINTED 989 GRAHN, THOMAS 100.00
41062 10/19/2022 PRINTED 290 GRAINGER 97.98
41063 10/19/2022 PRINTED 158 HD SUPPLY FACILITIES MAINTENANCE LTD 131.58 41064 10/19/2022 PRINTED 36271 INLAND EMPIRE PRINTING 144.47 41065 10/19/2022 PRINTED 913 JOEL'S AUTOMOTIVE, INC 1,418.44 41066 10/19/2022 PRINTED 1269 JOHNSON, JEFFREY 100.00
41067 10/19/2022 PRINTED 93421 KABAYAN, ANTHONY 30.00
41068 10/19/2022 PRINTED 937 TURNER, KIMBERLY 11,862.00 41069 10/19/2022 PRINTED 20251 KIRK, JACOB 481.84
41070 10/19/2022 PRINTED 16001 LAYNE, RANDALL 199.29
41071 10/19/2022 PRINTED 134 LINKO TECHNOLOGY INC 1,685.00 41072 10/19/2022 PRINTED 1451 MAGNET FORENSICS USA INC 5,854.28 41073 10/19/2022 PRINTED 1482 MAROTTE, JAYLENE 100.00
41074 10/19/2022 PRINTED 1492 MARTIN & MCCORMICK 8,610.00 41075 10/19/2022 PRINTED 950 MAYER, SERGE 100.00
41076 10/19/2022 PRINTED 903 MCC CARPET CLEANING INC 982.96 Prepared By: Erin Myers Page 4 of 7
10/31/2022
CHECK #CHECK DATE CHECK TYPE VENDOR #VENDOR NAME CHECK AMOUNT 41077 10/19/2022 PRINTED 238 MOUNTAIN VIEW CHEVROLET 299.30 41078 10/19/2022 PRINTED 473 MUNICIPAL MAINTENANCE EQUIPMENT INC 2,236.16 41079 10/19/2022 PRINTED 109391 MYERS TIRE SUPPLY 29.44 41080 10/19/2022 PRINTED 42771 OCCU-MED LTD 1,020.00
41081 10/19/2022 PRINTED 30971 OCCUPATIONAL HEALTH CENTERS 74.00 41082 10/19/2022 PRINTED 6625 P F SERVICES INC 270.00
41083 10/19/2022 PRINTED 1159 PARKMOBILE LLC 3,000.00
41084 10/19/2022 PRINTED 532 PATTON SALES CORP 89.22
41085 10/19/2022 PRINTED 10638 RICHARDS, WATSON & GERSHON 724.00 41086 10/19/2022 PRINTED 112061 ROOMS N COVERS 6,350.00 41087 10/19/2022 PRINTED 1262 RUMBLE FISH PEST CONTROL INC 300.00 41088 10/19/2022 PRINTED 601 SAN ANTONIO WATER CO 8,000.00 41089 10/19/2022 PRINTED 601 SAN ANTONIO WATER CO 8,000.00 41090 10/19/2022 PRINTED 601 SAN ANTONIO WATER CO 239,219.63 41091 10/19/2022 PRINTED 507 SILVER & WRIGHT LLP 25,925.63 41092 10/19/2022 PRINTED 43011 SMITH-EMERY LABORATORIES 3,722.25 41093 10/19/2022 PRINTED 99141 SONSRAY MACHINERY LLC 2,011.58 41094 10/19/2022 PRINTED 28271 SOUTH COAST AQMD 151.85
41095 10/19/2022 PRINTED 28271 SOUTH COAST AQMD 7,116.74 41096 10/19/2022 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 100.63 41097 10/19/2022 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 134.98 41098 10/19/2022 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 144.98 41099 10/19/2022 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 193.11 41100 10/19/2022 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 1,040.33 41101 10/19/2022 PRINTED 16607 STAPLES BUSINESS ADVANTAGE 518.12 41102 10/19/2022 PRINTED 1439 STATON, BRIAN 100.00
41103 10/19/2022 PRINTED 952 T TACTICAL SOLUTIONS, INC 4,848.75 41104 10/19/2022 PRINTED 1154 T-MOBILE USA 75.00
41105 10/19/2022 PRINTED 126761 THE LINCOLN NATIONAL LIFE INS 3,704.75 41106 10/19/2022 PRINTED 11583 THOMPSON PLUMBING SUPPLY 413.90 41107 10/19/2022 PRINTED 62571 HD SUPPLY FACILITIES MAINTENANCE LTD.236.51 41108 10/19/2022 PRINTED 14735 VERIZON WIRELESS 5,290.77 41109 10/19/2022 PRINTED 1725 WEST COAST ARBORISTS INC 68,529.69 41110 10/19/2022 PRINTED 97071 WEST VALLEY MRF 1,815.59 41111 10/19/2022 PRINTED 50251 WESTERN AUDIO VISUAL CORP 2,923.80 41112 10/19/2022 PRINTED 1261 WEX HEALTH INC 297.00
41113 10/19/2022 PRINTED 297 WILLIAMS, MARCI 75.00
41114 10/19/2022 PRINTED 999999 JOHN ALVAREZ 220.00
41115 10/26/2022 PRINTED 99418 FRANCHISE TAX BOARD 75.00 41116 10/26/2022 PRINTED 627 STATE OF CALIFORNIA EMPLOYMENT DEVELOPMENT 426.56 41117 10/26/2022 PRINTED 16553 AA U-STOR-M 204.00
41118 10/26/2022 PRINTED 99181 ACCOUNTEMPS 3,240.00
41119 10/26/2022 PRINTED 291 ADVANCE STORE CO, INC 184.86 41120 10/26/2022 PRINTED 131971 ANNEALTA GROUP 14,550.00 41121 10/26/2022 PRINTED 308 ASPINALL, ROBIN JEAN 100.00 41122 10/26/2022 PRINTED 1193 BRIDGEPAY NETWORK SOLUTIONS 70.80 41123 10/26/2022 PRINTED 5944 BURRTEC WASTE INDUSTRIES 1,216,373.48 41124 10/26/2022 PRINTED 1007 CALDWELL, CHRISTINE 100.00 41125 10/26/2022 PRINTED 195 CALIFORNIA NEWSPAPERS PARTNERSHIP 2,690.56 41126 10/26/2022 PRINTED 1191 CATHOLIC CHARITIES SAN BERNARDINO & RIVERSIDE 3,252.00 41127 10/26/2022 PRINTED 82791 CHEM PRO LABORATORY INC 317.00 41128 10/26/2022 PRINTED 45421 COSTAR REALTY INFORMATION GROUP INC 604.00 41129 10/26/2022 PRINTED 1246 CRAIG JORDAN CONSTRUCTION 4,005.59 41130 10/26/2022 PRINTED 986 BOROCH, MARK 195.00
41131 10/26/2022 PRINTED 65 DM CONTRACTING, INC 310,021.95 41132 10/26/2022 PRINTED 11463 GENERAL PUMP CO 36,900.00 Prepared By: Erin Myers Page 5 of 7
10/31/2022
CHECK #CHECK DATE CHECK TYPE VENDOR #VENDOR NAME CHECK AMOUNT 41133 10/26/2022 PRINTED 989 GRAHN, THOMAS 100.00
41134 10/26/2022 PRINTED 36271 INLAND EMPIRE PRINTING 230.05 41135 10/26/2022 PRINTED 17528 INNOVATIVE PRINTING CONCEPTS 2,162.76 41136 10/26/2022 PRINTED 1269 JOHNSON, JEFFREY 100.00
41137 10/26/2022 PRINTED 80561 KEENAN & ASSOCIATES 4,833.33 41138 10/26/2022 PRINTED 26101 KONICA MINOLTA 4,369.27
41139 10/26/2022 PRINTED 53241 KONICA MINOLTA BUSINESS SOLUTIONS 5,519.43 41140 10/26/2022 PRINTED 15595 L D M ASSOCIATES INC 910.00 41141 10/26/2022 PRINTED 16091 LEAGUE OF CALIF CITIES/INLAND EMPIRE DIVISION 80.00 41142 10/26/2022 PRINTED 91491 LIBRARY SYSTEMS & SERVICES LLC 14,681.25 41143 10/26/2022 PRINTED 56971 LMWS INC 5,308.23
41144 10/26/2022 PRINTED 1482 MAROTTE, JAYLENE 100.00
41145 10/26/2022 PRINTED 950 MAYER, SERGE 100.00
41146 10/26/2022 PRINTED 1409 MILLER, PATRICIA 82.55
41147 10/26/2022 PRINTED 16877 NEXTDAY DELIVERY SERVICE, LLC 169.72 41148 10/26/2022 PRINTED 16760 POLY-CORR INDUSTRIES INC 2,990.06 41149 10/26/2022 PRINTED 41401 PRECIADO, ROCIO 74.97
41150 10/26/2022 PRINTED 869 PPS ENTERPRISES, INC 3,600.74 41151 10/26/2022 PRINTED 10638 RICHARDS, WATSON & GERSHON 1,085.00 41152 10/26/2022 PRINTED 1262 RUMBLE FISH PEST CONTROL INC 600.00 41153 10/26/2022 PRINTED 687 SONG, PAUL 112.40
41154 10/26/2022 PRINTED 16607 STAPLES BUSINESS ADVANTAGE 557.85 41155 10/26/2022 PRINTED 1439 STATON, BRIAN 100.00
41156 10/26/2022 PRINTED 1299 MARUTI HOSPITALITY LLC 4,904.90 41157 10/26/2022 PRINTED 4463 THE COUNSELING TEAM 1,800.00 41158 10/26/2022 PRINTED 2028 WESTERN WATER WORKS SUPPLY CO 757.05 41159 10/26/2022 PRINTED 999999 BRYNN SANDERLIN 30.00
41160 10/26/2022 PRINTED 999999 JASMINE MOLLER 11.00
PRINTED CHECKS (302 COUNT)4,889,345.18$
100322001 10/03/2022 MANUAL 10720 CITIZENS BUSINESS BANK 15,167.00 100322002 10/03/2022 MANUAL 10720 CITIZENS BUSINESS BANK 50,400.00 100422001 10/04/2022 MANUAL 132551 AMERICAN FIDELITY ASSURANCE 3,964.02 100422002 10/04/2022 MANUAL 32091 SOUTHERN CALIF EDISON CO 193,671.18 100422003 10/04/2022 MANUAL 543 SOUTHERN CALIF GAS COMPANY 1,403.33 100422004 10/04/2022 MANUAL 43651 U S BANK NATIONAL ASSN 34,473.03 100422005 10/04/2022 MANUAL 195 CALIFORNIA NEWSPAPERS PARTNERSHIP 1,445.59 100622001 10/06/2022 MANUAL 132551 AMERICAN FIDELITY ASSURANCE 3,772.58 100622002 10/06/2022 MANUAL 125761 CITY EMPLOYEE ASSOCIATES 287.50 100622003 10/06/2022 MANUAL 621 KAREN LONG 187.50
100622004 10/06/2022 MANUAL 441 MIDAMERICA ADMIN & RETIREMENT SOLUTIONS, LLC 810.78 100622005 10/06/2022 MANUAL 618 ICMA-RC 1,756.25
100622006 10/06/2022 MANUAL 622 UPLAND CITY EMPLOYEE ASSOCIATION 990.00 100622007 10/06/2022 MANUAL 736 UPLAND POLICE MANAGEMENT ASSN 988.50 100622008 10/06/2022 MANUAL 737 UPLAND POLICE OFFICERS ASSN 4,572.50 100722001 10/07/2022 MANUAL 624 DEPT OF THE TREASURY 350.00 100722002 10/07/2022 MANUAL 114711 METROPOLITAN LIFE INSURANCE CO 863.49 100722003 10/07/2022 MANUAL 441 MIDAMERICA ADMIN & RETIREMENT SOLUTIONS, LLC 27,382.91 101122001 10/11/2022 MANUAL 10720 CITIZENS BUSINESS BANK 50,400.00 101122002 10/11/2022 MANUAL 733 MASSACHUSETTS MUTUAL LIFE INSURANCE CO.47,021.96 101222001 10/12/2022 MANUAL 83401 CARL WARREN & CO 7,104.20 101222002 10/12/2022 MANUAL 83401 CARL WARREN & CO 18,736.84 101222003 10/12/2022 MANUAL 83401 CARL WARREN & CO 8,361.03 101222004 10/12/2022 MANUAL 83401 CARL WARREN & CO 5,898.85 101222005 10/12/2022 MANUAL 91491 LIBRARY SYSTEMS & SERVICES LLC 115,962.00 101822001 10/18/2022 MANUAL 32091 SOUTHERN CALIF EDISON CO 84,013.78 Prepared By: Erin Myers Page 6 of 7
10/31/2022
CHECK #CHECK DATE CHECK TYPE VENDOR #VENDOR NAME CHECK AMOUNT 102022001 10/20/2022 MANUAL 65181 CALPERS 163,058.06
102022002 10/20/2022 MANUAL 132551 AMERICAN FIDELITY ASSURANCE 3,899.14 102022003 10/20/2022 MANUAL 125761 CITY EMPLOYEE ASSOCIATES 299.00 102022004 10/20/2022 MANUAL 621 KAREN LONG 187.50
102022005 10/20/2022 MANUAL 441 MIDAMERICA ADMIN & RETIREMENT SOLUTIONS, LLC 1,014.79 102022006 10/20/2022 MANUAL 618 ICMA-RC 1,756.25
102022007 10/20/2022 MANUAL 622 UPLAND CITY EMPLOYEE ASSOCIATION 960.00 102022008 10/20/2022 MANUAL 736 UPLAND POLICE MANAGEMENT ASSN 988.50 102022009 10/20/2022 MANUAL 737 UPLAND POLICE OFFICERS ASSN 4,572.50 102122001 10/21/2022 MANUAL 132551 AMERICAN FIDELITY ASSURANCE 3,964.02 102122002 10/21/2022 MANUAL 624 DEPT OF THE TREASURY 350.00 102422001 10/24/2022 MANUAL 733 MASSACHUSETTS MUTUAL LIFE INSURANCE CO.45,995.02 102722001 10/27/2022 MANUAL 760 WATER FACILITIES AUTHORITY 565,014.84 MANUAL CHECKS (39 COUNT)1,472,044.44$
40144 08/03/2022 VOID 999999 JAZLYN MOLLER (11.00)
40320 08/17/2022 VOID 1133 DISTRIBUTOR OPERATIONS INC (117.78) 39074 05/11/2022 VOID 1273 SOUTHWEST CONCRETE PRODUCTS (343.73) VOIDED CHECKS (3 COUNT)(472.51)$
PRINTED CHECKS (302 COUNT)4,889,345.18$
MANUAL CHECKS (39 COUNT)1,472,044.44$
VOIDED CHECKS (3 COUNT)(472.51)$
PRINTED & MANUAL CHECK TOTALS 6,360,917.11$
Prepared By: Erin Myers Page 7 of 7
10/31/2022
S T A F F R E P O R T
I T E M N O . 10.D .
D A T E :N ovem b er 28 , 20 22
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : S T E P H E N PA R K E R , C PA , A S S I S TA N T C I T Y M A N A G E R
LO N D A B O C K-H E L M S C PA , F I N A N C E O F F I C E R S U B J E C T :T R E A S U R E R 'S R E P O R T O C TO B E R 20 22
R E C O M M E N D E D A C T I O N
I t is recom m end ed that th e C ity C oun cil receive and file th e O ctob er 20 22 Treasu rer's Rep ort.
G O A L S T A T E M E N T
Th e p rop osed ac ti on su p p ort s the C i ty's g oal to m an ag e th e C it y's resources i n a fiscally resp on sib le m an ner.
B A C K G R O U N D
Per C aliforn ia G overn m en t C od e S ect ion 53 64 6(b ), the C it y's treasu rer or ch ief fi sc al officer m ay rend er a treasu rer's rep ort t o th e C it y C ou n c il on a q uarterly b asi s. Th e C ity has elected to p rovi d e th is rep ort t o C i ty C ou nc il m onthly, b u t th e C i ty's I n vest m en t Pol ic y (ap p roved M ay 23 , 20 22 ) req u ires th e I nvestm ent O ffic er to p rovid e a rep ort q u art erl y t o t he F inan ce C om m ittee at reg u larly s ch ed u led m eet in g s . T his rep ort shall i nclu d e t he t yp e of in vestm en t, issu er, d ate of m atu ri ty, p ar, an d d ol lar am ou n t in vest ed on all secu rities, cu rrent m arket value as of th e d at e of th e rep ort , investm ent s and m on ies h eld b y th e local ag en cy, and shall ad d ition ally inclu d e a d esc ri p t ion of an y of th e l ocal ag en cy's fun d s, i nves tm ent s, or p rog ram s, th at are u nd er t he m an ag em ent of con tract ed p arties, i n c lu d i n g lend in g p rog ram s. Th e rep ort sh all in cl u d e a st atem ent of c om p li an c e wi th t he in vest m en t p olicy an d s hal l in clud e a statem ent n oting t h e C ity's ab ilit y t o m eet i ts exp en d it u re req u irem en ts for th e n ext six m on th s.
I S S U E S /A N A L Y S I S
Th e su b m ission of the m onthly Treasu rer's Rep ort is a com p liance m easure.
F I S C A L I M P A C T S
Th ere is n o fiscal im p act associated with th is action .
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
T reasurer's Report
S T A F F R E P O R T
I T E M N O . 10.E .
D A T E :N ovem b er 28 , 20 22
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : B R A D E N Y U, P U B L I C W O R K S D I R E C TO R
N I C O L E D E M O E T, E N V I R O N M E N TA L Q U A L I T Y A D M I N I S T R A TO R
E R I K S T E N E , A C T I N G A S S I S TA N T E N G I N E E R S U B J E C T :S E W E R S E R V I C E A G R E E M E N T N O. 2 02 2-1 0-1 3
R E C O M M E N D E D A C T I O N
I t is rec om m en d ed that t he C i ty C oun cil au t h orize th e C it y M an ag er to execut e t h e S ew er S ervice A g reem ent N o. 20 22 -10 -13 for the p rop erty at 1 06 5 W. 2 3rd S treet.
G O A L S T A T E M E N T
Th e p rop os ed act ion sup p orts th e C it y's g oal of p rovid in g sewer services to th e C oun ty un in corp orated area with in th e C ity's sp h ere of influen ce.
B A C K G R O U N D
O n J un e 13 , 19 89 , th e C ity en tered into a M em oran d u m of U nd erstan d ing w ith the C oun ty of S an B ernard i no c on c ern in g th e con veyan c e, treatm en t an d d is p os al of w ast ew ater from the C ou nty’s u nincorp orated areas with in th e C ity’s sp here of in flu ence.
P u rsuan t to S t ate law, th e L ocal A g en cy Form ati on C om m ission (L A F C O ) m u st ap p rove con nections of p arc els wi th in t he C ou nt y t o t he C ity’s sew er s yst em and review th e C ity’s service ag reem en ts for services outsid e the C ity’s b oun d ary.
O n D ecem b er 1 , 1 99 8, in the in terest of p rotecting the g roun d water su p p ly, th e C ity ad op ted a p ol ic y al lowi ng sew er con nections of t h e C ou nt y’s un in corp orated areas t o t he C ity’s sew er system (in lieu of u se of sep tic tan k), su b ject to sp ecific con d itions, in clud in g :
A p p roval of the conn ection b y L A F C O p u rsuan t to G overn m en t C od e S ection 56 13 3; Paym en t of all ap p licab le fees; an d
C om p lian ce with th e C ity’s con stru ction stand ard s, inclu d ing th e storm w ater p rotection and p revention reg ulations.
I S S U E S /A N A L Y S I S
M r. J oh n J. Th om p son & S ab rin a C . Th om p son , ow ners of th e si n g le-fam il y p rop erty (10 65 W. 23 rd S t .) l ocat ed in th e C oun ty’s u nincorp orat ed area, h ave ap p lied for a p erm it to con nect to th e C i ty’s sewer on 23 rd S t . T heir ap p l ic ati on w as reviewed b y th e C ity an d su b seq u ently su b m itted to L A F C O. O n O ct ob er 2 7, 2 02 2, L A F C O g rant ed s tat u t ory exem p t ion of the p rop osed s ew er servic e from envi ron m en tal review, an d ap p roved th e req u est ed sewer service ag reem en t.
Th e att ach ed S ewer S ervi ce A g reem ent N o. 20 22 -10 -13 will p erm i t th e own er to con nect sewer fac il it ies from t hei r p rop erty t o th e C it y’s sew er on 2 3rd S t . I t s ti p u lat es that t he own er w ill b e res p on si b l e for con stru ction cost as soc iat ed with t he con n ec ti on . T h e C ity w il l col lec t all fees ap p l ic ab l e to th e own er’s sewer conn ection and wastewater d is ch arg e, inclu d ing cos ts of con veyance, treatm ent, and d isp osal.
E N V I R O N M E N T A L I M P A C T S
Th e L oc al A g en cy Form at ion C om m i ss ion , as lead ag ency, h as ap p roved an d filed w ith the C lerk of th e S an B ern ard in o B oard of S u p ervis ors a N otice of E xem p tion for t h i s p roject u nd er th e C alifornia E nviron m en tal Q uality A ct.
F I S C A L I M P A C T S
Th e sewer in stallation cost w ill b e b orne b y th e ow ner. A ft er t h e c on n ect ion is m ad e, the ow ner shall b e su b jec t to th e m on th ly sewer service ch arg e, c om p ri si ng of th e C it y’s sew er service fee an d p ass -th rou g h sewerag e t reat m en t fee p aid t o th e I n lan d E m p ire U tilities A g ency.
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
Attachment 1: Sewer Service Agreement S S A-2022-10-13
Attachment 2: L AF C O L etter
Attachment 3: Notice of E xemption C E Q A
S T A F F R E P O R T
I T E M N O . 10.F .
D A T E :N ovem b er 28 , 20 22
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : M A R C E LO A . B L A N C O, P O L I C E C H I E F
C L I F F M A T H E W S, P O L I C E C A P TA I N
LO N T E A G U E , P O L I C E L I E U T E N A N T
S U B J E C T :P U R C H A S E O F A X O N TA S E R 7 A N D A B 3 B O DY W O R N C A M E R A S
R E C O M M E N D E D A C T I O N
I t is rec om m end ed t h at the C it y C ou nc il ap p rove a p u rchase ag reem en t wi th A xon E nterp rises, I nc. an d acc ep t t h e p u rc h as e of t he O fficer S afet y P lan , i n c lu d i n g n ew b od y worn cam eras, new cam era d ocks, n ew TA S E R s, live cartrid g es, cloud storag e, and w arranties for all A X O N p rod u cts; an d au th orize the C ity M an ag er to execute th e ag reem en t.
G O A L S T A T E M E N T
Th e p rop osed act ion su p p ort s t h e C it y’s g oal of p rovi d i n g safe an d effective law en forcem en t services for th e resid ents of U p land .
B A C K G R O U N D
Th e U p land Pol ic e D ep artm ent p urch ased A X O N F lex b od y worn cam eras , on a fi ve year con tract with A X O N E n terp rise, I nc., for field u se b y all officers i n O ctob er 20 14 . T h e contract w as ren ewed i n 20 17 for an ad d it ion al five years. I t i s set t o exp ire D ecem b er 2 02 2. A X O N is cu rrently th e i nd us try l ead er in b od y w orn cam era and TA S E R t ech n ol og y, wh ich is u sed b y several ag en c ies i n ou r reg i on . A X O N h as b een very accom m od ati ng t o t he need s of the Up lan d Pol ic e D ep art m en t; con seq u en tl y, we rec om m end ext end in g our existin g relationship w ith an ad d itional 5 year con tract . T h e O S P + inclu d es n ew b od y worn c am eras, new cam era d ocks, n ew TA S E R s, live cartrid g es, cloud storag e, and w arranties for all A X O N p rod ucts.
I S S U E S /A N A L Y S I S
Th e U p l and Pol ic e D ep artm ent c u rren tl y uses th e A X O N X 26 TA S E R and d u e to t he p rod uct life, t h e TA S E R S are b ec om i n g an t iq u at ed . TA S E R 7 i s t he curren t m od el b eing p rod u ced b y A X O N , w h i ch w ou ld rep l ace th e X 26 . T h e TA S E R 7 w oul d b e out fit ted for all un iform p erson nel.
Th e d ep art m en t c u rren tl y u ses th e A X O N A B 2 cam era. Th ese cam eras are also 5 years old and need rep lacin g to d u e w ear an d tear from d aily use. Th e A B 2 wou ld b e rep laced b y A X O N A B 3. Th e p urch ase of t h e A B 3 cam eras com es w it h a c om p reh en s ive, g u aran teed rep lacem en t w ith n o d ed uctib le w arranty for d am ag ed or m alfun ction in g cam eras.
At t h e exp i rat ion of t h e exis ti ng A X O N c on t rac t in D ecem b er 2 02 2, th e curren t l ot of cam eras and TA S E R S w ill b e out of w arranty and w ould n ot b e availab le for rep lacem ent or rep air.
Req u irin g th e D ep art m en t to u se fu n d i n g for an y rep airs or rep l acem en t s from everyd ay w ear and use.
F I S C A L I M P A C T S
Th e an n u al c ost is $2 28 ,22 1.1 1 for t h e fi rs t year and $2 2 8 ,2 2 0 .9 9 th e rem ain in g fou r years.
F iscal Year 22 /23 op erat in g b ud g et i nc lu d es t h e fu nd in g for th e first year of the con tract . N o ad d ition al ap p rop ri ati ons are nec ess ary. F u nd in g for t he rem ain in g fou r years of t he contract w ill b e in cl u d ed in th e I T op eratin g b ud g et an n u al ly. Th e tot al c ost will b e $1,1 41 ,10 5.0 7 over 5 years.
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
M S PA F inal from Axon
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 1 of 18
This Master Services and Purchasing Agreement (“Agreement”) is between Axon Enterprise, Inc., a Delaware corporation (“Axon”), and the agency listed below or, if no agency is listed below, the agency on the Quote attached hereto (“Agency”). This Agreement is effective as of the later of the (a) last signature date on this Agreement or (b) signature date on the Quote (“Effective Date”). Axon and Agency are each a “Party” and collectively “Parties”. This Agreement governs Agency’s purchase and use of the Axon Devices and Services detailed in the Quote Appendix (“Quote”). It is the intent of the Parties that this Agreement act as a master agreement governing all subsequent purchases by Agency for the same Axon Devices and Services in the Quote, and all such subsequent quotes accepted by Agency shall be also incorporated into this Agreement by reference as a Quote. The Parties agree as follows:
1. Definitions.
1.1. “Axon Cloud Services” means Axon’s web services for Axon Evidence, Axon Records, Axon Dispatch, and interactions between Axon Evidence and Axon Devices or Axon client software. Axon Cloud Service excludes third-party applications, hardware warranties, and my.evidence.com.
1.2. “Axon Device” means all hardware provided by Axon under this Agreement.
1.3. “Quote” means an offer to sell and is only valid for devices and services on the quote at the specified prices.
Any terms within Agency’s purchase order in response to a Quote will be void. Orders are subject to prior credit approval. Changes in the deployment estimated ship date may change charges in the Quote. Shipping dates are estimates only. Axon is not responsible for typographical errors in any offer by Axon, and Axon reserves the right to cancel any orders resulting from such errors.
1.4. “Services” means all services provided by Axon under this Agreement, including software, Axon Cloud Services, and professional services.
2. Term. This Agreement begins on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated (“Term”).
2.1. All subscriptions including Axon Evidence, Axon Fleet, Officer Safety Plans, Technology Assurance Plans, and TASER 7 plans begin on the date stated in the Quote. Each subscription term ends upon completion of the subscription stated in the Quote (“Subscription Term”).
2.2. Upon completion of the Subscription Term, the Subscription Term will automatically renew for an additional 1 year (“Renewal Term”). For purchase of TASER 7 as a standalone, Axon may increase pricing to its then - current list pricing for any Renewal Term. For all other purchases, Axon may increase pricing on all line items in the Quote up to 3% at the beginning of each year of the Renewal Term. New devices and services may require additional terms. Axon will not authorize services unti l Axon receives a signed Quote or accepts a purchase order, whichever is first.
3. Payment. Axon invoices upon shipment, or on the date specified within the invoicing plan in the Quote. Payment is due net 30 days from the invoice date. Payment obligations are non-cancelable with the exception of termination as outlined in Section 16 of this Agreement. Unless otherwise prohibited by law, Agency will pay interest on all past-due sums at the lower of one-and-a-half percent (1.5%) per month or the highest rate allowed by law. Agency will pay invoices without setoff, deduction, or withholding. If Axon sends a past due account to collections, Agency is responsible for collection and attorneys’ fees.
4. Taxes. Agency is responsible for sales and other taxes associated with the order unless Agency provides Axon a valid tax exemption certificate.
5. Shipping. Axon may make partial shipments and ship Axon Devices from multiple locations. All shipments are EXW (Incoterms 2020) via common carrier. Agency is responsible for any shipping charges in the Quote.
6. Returns. All sales are final. Axon does not allow refunds or exchanges, except warranty returns or as provided by state or federal law.
7. Warranty.
7.1. Limited Warranty; Disclaimer. Axon warrants that Axon-manufactured Devices are free from defects in workmanship and materials for 1 year from the date of Agency’s receipt, except Signal Sidearm and Axon - manufactured accessories, which Axon warrants for 30 months and 90 days, respectively, from the date of Agency’s receipt. Used conducted energy weapon (“CEW”) cartridges are deemed to have operated properly.
Extended warranties run from the expiration of the 1-year hardware warranty through the extended warranty term. All software and Axon Cloud Services, are provided "AS IS," without any warranty of any kind, either express or implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Axon Devices, software, and services that are not manufactured, published or performed by Axon (“Third-Party Products”) are not covered by Axon’s warranty and are only subject to the warranties of the third-party provider or manufacturer.
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 2 of 18
7.2. Claims. If Axon receives a valid warranty claim for an Axon-manufactured Device during the warranty term, Axon’s sole responsibility is to repair or replace the Axon -manufactured Device with the same or like Axon- manufactured Device, at Axon’s option. A replacement Axon-manufactured Device will be new or like new.
Axon will warrant the replacement Axon-manufactured Device for the longer of (a) the remaining warranty of the original Axon Manufactured Device or (b) 90-days from the date of repair or replacement.
7.2.1. If Agency exchanges a device or part, the replacement item becomes Agency’s property, and the replaced item becomes Axon’s property. Before delivering an Axon-manufactured Device for service, Agency must upload Axon-manufactured Device data to Axon Evidence or download it and retain a copy. Axon is not responsible for any loss of software, data, or other information contained in storage media or any part of the Axon-manufactured Device sent to Axon for service.
7.3. Spare Axon Devices. At Axon's reasonable discretion, Axon may provide Agency a predetermined number of spare Axon Devices as detailed in the Quote (“Spare Axon Devices”). Spare Axon Devices are intended to replace broken or non-functioning units while Agency submits the broken or non-functioning units, through Axon’s warranty return process. Axon will repair or replace the unit with a replacement Axon Device. Title and risk of loss for all Spare Axon Devices shall pass to Agency in accordance with shipping terms under Section
5. Axon assumes no liability or obligation in the event Agency does not utilize Spare Axon Devices for the intended purpose.
7.4. Limitations. Axon’s warranty excludes damage related to: (a) failure to follow Axon Device use instructions; (b) Axon Devices used with equipment not manufactured or recommended by Axon; (c) abuse, misuse, or intentional damage to Axon Device; (d) force majeure; (e) Axon Devices repaired or modified by persons other than Axon without Axon’s written permission; or (f) Axon Devices with a defaced or removed serial number.
Axon’s warranty will be void if Agency resells Axon Devices.
7.4.1. To the extent permitted by law, the above warranties and remedies are exclusive. Axon disclaims all other warranties, remedies, and conditions, whether oral, written, statutory, or implied. If statutory or implied warranties cannot be lawfully disclaimed, then such warranties are limited to the duration of the warranty described above and by the provisions in this Agreement.
7.4.2. Axon’s cumulative liability to any Party for any loss or damage resulting from any claim, demand, or action arising out of or relating to any Axon Device or Service will not exceed One Million Dollars ($1,000,000) Neither Party will be liable for direct, special, indirect, incidental, punitive or consequential damages, however caused, whether for breach of warranty or contract, negligence, strict liability, tort or any other legal theory.
7.5. Online Support Platforms. Use of Axon's online support platforms (e.g., Axon Academy and MyAxon) is governed by the Axon Online Support Platforms Terms of Use Appendix available at www.axon.com/sales- terms-and-conditions.
7.6. Third-Party Software and Services. Use of software or services other than those provided by Axon is governed by the terms, if any, entered into between Agency and the respective third-party provider, including, without limitation, the terms applicable to such software or services located at www.axon.com/sales-terms-and- conditions, if any.
7.7. Axon Aid. Upon mutual agreement between Axon and Agency, Axon may provide certain products and services to Agency, as a charitable donation under the Axon Aid program. In such event, Agency expressly waives and releases any and all claims, now known or hereafter known, against Axon, and its officers, directors, employees, agents, contractors, affiliates, successors, and assigns (collectively, "Releasees"), including but not limited to, on account of injury, death, property damage, or loss of data, arising out of or attributable to the Axon Aid program whether arising out of the negligence of Axon or any Releasees or otherwise. Agency agrees not to make or bring any such claim against Axon or any other Releasee, and forever release and discharge Axon and all other Releasees from liability under such claims. Agency expressly allows Axon to publicly announce its participation in Axon Aid and use its name in marketing materials. Axon may terminate the Axon Aid program without cause immediately upon notice to the Agency.
8. Statement of Work. Certain Axon Devices and Services, including Axon Interview Room, Axon Channel Services, and Axon Fleet, may require a Statement of Work that details Axon’s Service deliverables (“SOW”). In the event Axon provides an SOW to Agency, Axon is only responsible to perform Services described in the SOW. Additional services are out of scope. The Parties must document scope changes in a written and signed change order. Changes may require an equitable adjustment in fees or schedule. The SOW is incorporated into this Agreement by reference.
9. Axon Device Warnings. See www.axon.com/legal for the most current Axon Device warnings.
10. Design Changes. Axon may make design changes to any Axon Device or Service without notifying Agency or making
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 3 of 18
the same change to Axon Devices and Services previously purchased by Agency.
11. Bundled Offerings. Some offerings in bundled offerings may not be generally available at the time of Agency ’s purchase. Axon will not provide a refund, credit, or additional discount beyond what is in the Quote due to a delay of availability or Agency’s election not to utilize any portion of an Axon bundle.
12. Insurance. Axon will maintain General Liability, Workers’ Compensation, and Automobile Liability insurance. Upon request, Axon will supply certificates of insurance.
13. IP Rights. Axon owns and reserves all right, title, and interest in Axon-manufactured Devices and Services and suggestions to Axon, including all related intellectual property rights. Agency will not cause any Axon proprietary rights to be violated.
14. IP Indemnification. Axon will indemnify Agency Indemnitees against all claims, losses, and reasonable expenses from any third-party claim alleging that the use of Axon-manufactured Devices or Services infringes or misappropriates the third-party’s intellectual property rights. Agency must promptly provide Axon with written notice of such claim, tender to Axon the defense or settlement of such claim at Axon’s expense and cooperate fully with Axon in the defense or settlement of such claim. Axon’s IP indemnification obligations do not apply to claims based on (a) modification of Axon-manufactured Devices or Services by Agency or a third-party not approved by Axon; (b) use of Axon-manufactured Devices and Services in combination with hardware or services not approved by Axon; (c) use of Axon Devices and Services other than as permitted in this Agreement; or (d) use of Axon software that is not the most current release provided by Axon.
15. Agency Responsibilities. Agency is responsible for (a) Agency’s use of Axon Devices; (b) breach of this Agreement or violation of applicable law by Agency or an Agency end user; (c) a dispute between Agency and a third-party over Agency’s use of Axon Devices; (d) to ensure Axon Devices are destroyed and disposed of securely and sustainably at Agency’s cost; and (e) any regulatory violations or fines, as a result of improper destruction or disposal of Axon Devices.
16. Termination.
16.1. For Breach. A Party may terminate this Agreement for cause if it provides 30 days written notice of the breach to the other Party, and the breach remains uncured at the end of 30 days. If Agency terminates this Agreement due to Axon’s uncured breach, Axon will refund prepaid amounts on a prorated basis based on the effective date of termination.
16.2. By Agency. If sufficient funds are not appropriated or otherwise legally available to pay the fees, Agency may terminate this Agreement. Agency will deliver notice of termination under this section as soon as reasonably practicable.
16.3. Effect of Termination. Upon termination of this Agreement, Agency rights immediately terminate. Agency remains responsible for all fees incurred before the effective date of termination. If Agency purchases Axon Devices for less than the manufacturer’s suggested retail price (“MSRP”) and this Agreement terminates before the end of the Term, Axon will invoice Agency the difference between the MSRP for Axon Devices received, including any Spare Axon Devices, and amounts paid towards those Axon Devices. Only if terminating for non- appropriation, Agency may return Axon Devices to Axon within 30 days of termination. MSRP is the standalone price of the individual Axon Device at the time of sale. For bundled Axon Devices, MSRP is the standalone price of all individual components.
17. Confidentiality. “Confidential Information” means nonpublic information designated as confidential or, given the nature of the information or circumstances surrounding disclosure, should reasonably be understood to be confidential. Each Party will take reasonable measures to avoid disclosure, dissemination, or unauthorized use of the other Party’s Confidential Information. Unless required by law, neither Party will disclose the other Party’s Confidential Information during the Term and for 5 years thereafter. To the extent permissible by law, Axon pricing is Confidential Information and competition sensitive. If Agency receives a public records request to disclose Axon Confidential Information, to the extent allowed by law, Agency will provide notice to Axon before disclosure. Axon may publicly announce information related to this Agreement.
18. General.
18.1. Force Majeure. Neither Party will be liable for any delay or failure to perform due to a cause beyond a Party’s reasonable control.
18.2. Independent Contractors. The Parties are independent contractors. Neither Party has the authority to bind the other. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 4 of 18
18.3. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
18.4. Non-Discrimination. Neither Party nor its employees will discriminate against any person based on race; religion; creed; color; sex; gender identity and expression; pregnancy; childbirth; breastfeeding; medical conditions related to pregnancy, childbirth, or breastfeeding; sexual orientation; marital status; age; national origin; ancestry; genetic information; disability; veteran status; or any class protected by local, state, or federal law.
18.5. Export Compliance. Each Party will comply with all import and export control laws and regulations.
18.6. Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent. Axon may assign this Agreement, its rights, or obligations without consent: (a) to an affiliate or subsidiary; or (b) for purposes of financing, merger, acquisition, corporate reorganization, or sale of all or substantially all its assets.
This Agreement is binding upon the Parties respective successors and assigns.
18.7. Waiver. No waiver or delay by either Party in exercising any right under this Agreement constitutes a waiver of that right.
18.8. Severability. If a court of competent jurisdiction holds any portion of this Agreement invalid or unenforceable, the remaining portions of this Agreement will remain in effect.
18.9. Survival. The following sections will survive termination: Payment, Warranty, Axon Device Warnings, Indemnification, IP Rights, and Agency Responsibilities.
18.10. Governing Law . The laws of the state where Agency is physically located, without reference to conflict of law rules, govern this Agreement and any dispute arising from it. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
18.11. Notices. All notices must be in English. Notices posted on Agency’s Axon Evidence site are effective upon posting. Notices by email are effective on the sent date of the email. Notices by personal delivery are effective immediately. Notices to Agency shall be provided to the address on file with Axon. Notices to Axon shall be provided to Axon Enterprise, Inc., Attn: Legal, 17800 North 85th Street, Scottsdale, Arizona 85255 with a copy to [email protected].
18.12 Entire Agreement. This Agreement, including the Appendices and any SOW (s), represents the entire agreement between the Parties. This Agreement supersedes all prior agreements or understandings, whether written or verbal, regarding the subject matter of this Agreement. This Agreement may only be modified or amended in a writing signed by the Parties.
Each Party, by and through its respective representative authorized to execute this Agreement, has duly executed and delivered this Agreement as of the date of signature.
AXON: AGENCY:
Axon Enterprise, Inc. Upland Police Dept.
Signature:
Signature:
Name: Name:
Title:
Title:
Date:
Date:
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 5 of 18
Axon Cloud Services Terms of Use Appendix
1. Definitions.
1.1. “Agency Content” is data uploaded into, ingested by, or created in Axon Cloud Services within Agency’s tenant, including media or multimedia uploaded into Axon Cloud Services by Agency. Agency Content includes Evidence but excludes Non-Content Data.
1.2. “Evidence” is media or multimedia uploaded into Axon Evidence as 'evidence' by a n Agency. Evidence is a subset of Agency Content.
1.3. “Non-Content Data” is data, configuration, and usage information about Agency’s Axon Cloud Services tenant, Axon Devices and client software, and users that is transmitted or generated when using Axon Devices. Non- Content Data includes data about users captured during account management and customer support activities.
Non-Content Data does not include Agency Content.
1.4. “Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
2. Access. Upon Axon granting Agency a subscription to Axon Cloud Services, Agency may access and use Axon Cloud Services to store and manage Agency Content. Agency may not exceed more end users than the Quote specifies. Axon Air requires an Axon Evidence subscription for each drone operator. For Axon Evidence Lite, Agency may access and use Axon Evidence only to store and manage TASER CEW and TASER CAM data (“TASER Data”).
Agency may not upload non-TASER Data to Axon Evidence Lite.
3. Agency Owns Agency Content. Agency controls and owns all right, title, and interest in Agency Content. Except as outlined herein, Axon obtains no interest in Agency Content, and Agency Content is not Axon’s business records.
Agency is solely responsible for uploading, sharing, managing, and deleting Agency Content. Axon will only have access to Agency Content for the limited purposes set forth herein. Agency agrees to allow Axon access to Agency Content to (a) perform troubleshooting, maintenance, or diagnostic screenings; and (b) enforce this Agreement or policies governing use of the Axon products.
4. Security. Axon will implement commercially reasonable and appropriate measures to secure Agency Content against accidental or unlawful loss, access or disclosure. Axon will maintain a comprehensive information security program to protect Axon Cloud Services and Agency Content including logical, physical access, vulnerability, risk, and configuration management; incident monitoring and response; encryption of uploaded digital evidence; security education; and data protection. Axon agrees to the Federal Bureau of Investigation Criminal Justice Information Services Security Addendum.
5. Agency Responsibilities. Agency is responsible for (a) ensuring Agency owns Agency Content; (b) ensuring no Agency Content or Agency end user’s use of Agency Content or Axon Cloud Services violates this Agreement or applicable laws; and (c) maintaining necessary computer equipment and Internet connections for use of Axon Cloud Services. If Agency becomes aware of any violation of this Agreement by an end user, Agency will immediately terminate that end user’s access to Axon Cloud Services.
5.1. Agency will also maintain the security of end usernames and passwords and security and access by end users to Agency Content. Agency is responsible for ensuring the configuration and utilization of Axon Cloud Services meet applicable Agency regulation and standards. Agency may not sell, transfer, or sublicense access to any other entity or person. Agency shall contact Axon immediately if an unauthorized party may be using Agency’s account or Agency Content, or if account information is lost or stolen.
5.2. To the extent Agency uses the Axon Cloud Services to interact with YouTube®, such use may be governed by the YouTube Terms of Service, available at https://www.youtube.com/static?template=terms .
6. Privacy. Agency’s use of Axon Cloud Services is subject to the Axon Cloud Services Privacy Policy, a current version of which is available at https://www.axon.com/legal/cloud-services-privacy-policy . Agency agrees to allow Axon access to Non-Content Data from Agency to (a) perform troubleshooting, maintenance, or diagnostic screenings; (b) provide, develop, improve, and support current and future Axon products and related services; and (c) enforce thi s Agreement or policies governing the use of Axon products.
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 6 of 18
7. Axon Body 3 Wi-Fi Positioning. Axon Body 3 cameras offer a feature to enhance location services where GPS/GNSS signals may not be available, for instance, within buildings or underground. Agency administrators can manage their choice to use this service within the administrative features of Axon Cloud Services. If Agency chooses to use this service, Axon must also enable the usage of the feature for Agency’s Axon Cloud Services tenant. Agency will not see this option with Axon Cloud Services unless Axon has enabled Wi-Fi Positioning for Agency’s Axon Cloud Services tenant. When Wi-Fi Positioning is enabled by both Axon and Agency, Non-Content and Personal Data will be sent to Skyhook Holdings, Inc. (“Skyhook”) to facilitate the Wi-Fi Positioning functionality. Data controlled by Skyhook is outside the scope of the Axon Cloud Services Privacy Policy and is subject to the Skyhook Services Privacy Policy.
8. Storage. For Axon Unlimited Device Storage subscriptions, Agency may store unlimited data in Agency's Axon Evidence account only if data originates from Axon Capture or the applicable Axon Device. Axon may charge Agency additional fees for exceeding purchased storage amounts. Axon may place Agency Content that Agency has not viewed or accessed for 6 months into archival storage. Agency Content in archival storage will not have immediate availability and may take up to 24 hours to access.
For Third-Party Unlimited Storage the following restrictions apply: (i) it may only be used in conjunction with a valid Axon’s Evidence.com user license; (ii) is limited to data of the law enforcement agency that purchased the Third- Party Unlimited Storage and the Axon’s Evidence.com end user or Agency is prohibited from storing data for other law enforcement agencies; and (iii) Agency may only upload and store data that is directly related to: (1) the investigation of, or the prosecution of a crime; (2) common law enforcement activities; or (3) any Agency Content created by Axon Devices or Evidence.com.
9. Location of Storage. Axon may transfer Agency Content to third-party subcontractors for storage. Axon will determine the locations of data centers for storage of Agency Content. For United States agencies, Axon will ensure all Agency Content stored in Axon Cloud Services remains within the United States. Ownership of Agency Content remains with Agency.
10. Suspension. Axon may temporarily suspend Agency’s or any end user’s right to access or use any portion or all o f Axon Cloud Services immediately upon notice, if Agency or end user’s use of or registration for Axon Cloud Services may (a) pose a security risk to Axon Cloud Services or any third-party; (b) adversely impact Axon Cloud Services , the systems, or content of any other customer; (c) subject Axon, Axon’s affiliates, or any third-party to liability; or (d) be fraudulent. Agency remains responsible for all fees incurred through suspension. Axon will not delete Agency Content because of suspension, except as specified in this Agreement.
11. Axon Cloud Services Warranty. Axon disclaims any warranties or responsibility for data corruption or errors before Agency uploads data to Axon Cloud Services. Service Offerings will be subject to the Axon Cloud Services Service Level Agreement, a current version of which is available at https://www.axon.com/products/axon-evidence/sla .
12. Axon Records. Axon Records is the software-as-a-service product that is generally available at the time Agency purchases an OSP 7 bundle. During Agency’s Axon Records Subscription Term, if any, Agency will be entitled to receive Axon’s Update and Upgrade releases on an if-and-when available basis.
12.1. The Axon Records Subscription Term will end upon the completion of the Axon Records Subscription as documented in the Quote, or if purchased as part of an OSP 7 bundle, upon completion of the OSP 7 Term (“Axon Records Subscription”)
12.2. An “Update” is a generally available release of Axon Records that Axon makes available from time to time. An “Upgrade” includes (i) new versions of Axon Records that enhance features and functionality, as solely determined by Axon; and/or (ii) new versions of Axon Records that provide additional features or perform additional functions. Upgrades exclude new products that Axon introduces and markets as distinct products or applications.
12.3. New or additional Axon products and applications, as well as any Axon professional services needed to configure Axon Records, are not included. If Agency purchases Axon Records as part of a bundled offering, the Axon Record subscription begins on the later of the (1) start date of that bundled offering, or (2) date Axon provisions Axon Records to Agency.
12.4. Users of Axon Records at the agency may upload files to entities (incidents, reports, cases, etc) in Axon Records with no limit to the number of files and amount of storage. Notwithstanding the foregoing, Axon may limit usage should the Agency exceed an average rate of 100 GB per user per year of uploaded files. Axon will not bill for overages.
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 7 of 18
13. Axon Cloud Services Restrictions. Agency and Agency end users (including employees, contractors, agents, officers, volunteers, and directors), may not, or may not attempt to:
13.1. copy, modify, tamper with, repair, or create derivative works of any part of Axon Cloud Services;
13.2. reverse engineer, disassemble, or decompile Axon Cloud Services or apply any process to derive any source code included in Axon Cloud Services, or allow others to do the same;
13.3. access or use Axon Cloud Services with the intent to gain unauthorized access, avoid incurring fees or exceeding usage limits or quotas;
13.4. use trade secret information contained in Axon Cloud Services, except as expressly permitted in this Agreement;
13.5. access Axon Cloud Services to build a competitive device or service or copy any features, functions, or graphics of Axon Cloud Services;
13.6. remove, alter, or obscure any confidentiality or proprietary rights notices (including copyright and trademark notices) of Axon’s or Axon’s licensors on or within Axon Cloud Services; or
13.7. use Axon Cloud Services to store or transmit infringing, libelous, or other unlawful or tortious material; to store or transmit material in violation of third-party privacy rights; or to store or transmit malicious code.
14. After Termination. Axon will not delete Agency Content for 150 days following termination. There will be no functionality of Axon Cloud Services during these 150 days other than the ability to retrieve Agency Content. Agency will not incur additional fees if Agency downloads Agency Content from Axon Cloud Services during this time. Axon has no obligation to maintain or provide Agency Content after these 90-days and will thereafter, unless legally prohibited, delete all Agency Content. Upon request, Axon will provide written proof that Axon successfully deleted and fully removed all Agency Content from Axon Cloud Services.
15. Post-Termination Assistance. Axon will provide Agency with the same post-termination data retrieval assistance that Axon generally makes available to all customers. Requests for Axon to provide additional assistance in downloading or transferring Agency Content, including requests for Axon’s data egress service, will result in additional fees and Axon will not warrant or guarantee data integrity or readability in the external system.
16. U.S. Government Rights. If Agency is a U.S. Federal department or using Axon Cloud Services on behalf of a U.S. Federal department, Axon Cloud Services is provided as a “commercial item,” “commercial computer software,” “commercial computer software documentation,” and “technical data”, as defined in the Federal Acquisition Regulation and Defense Federal Acquisition Regulation Supplement. If Agency is using Axon Cloud Services on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Agency will immediately discontinue use of Axon Cloud Services.
17. Survival. Upon any termination of this Agreement, the following sections in this Appendix will survive: Agency Owns Agency Content, Privacy, Storage, Axon Cloud Services Warranty, and Axon Cloud Services Restrictions.
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 8 of 18
Axon Customer Experience Improvement Program Appendix
1. Axon Customer Experience Improvement Program (ACEIP). The ACEIP is designed to accelerate Axon’s development of technology, such as building and supporting automated features, to ultimately increase safety within communities and drive efficiency in public safety. To this end, subject to the limitations on Axon as described below, Axon, where allowed by law, may make limited use of Agency Content from all of its customers, to provide, develop, improve, and support current and future Axon products (collectively, “ACEIP Purposes”). However, at all times, Axon will comply with its obligations pursuant to the Axon Cloud Services Terms of Use Appendix to maintain a comprehensive data security program (including compliance with the CJIS Security Policy for Criminal Justice Information), privacy program, and data governance policy, including high industry standards of de-identifying Personal Data, to enforce its security and privacy obligations for the ACEIP. ACEIP has 2 tiers of particip ation, Tier 1 and Tier 2. By default, Agency will be a participant in ACEIP Tier 1. If Agency does not want to participate in ACEIP Tier 1, Agency can revoke its consent at any time. If Agency wants to participate in Tier 2, as detailed below, Agency can check the ACEIP Tier 2 box below. If Agency does not want to participate in ACEIP Tier 2, Agency should leave box unchecked. At any time, Agency may revoke its consent to ACEIP Tier 1, Tier 2, or both Tiers.
2. ACEIP Tier 1.
2.1. When Axon uses Agency Content for the ACEIP Purposes, Axon will extract from Agency Content and may store separately copies of certain segments or elements of the Agency Content (collectively, “ACEIP Content”). When extracting ACEIP Content, Axon will use commercially reasonable efforts to aggregate, transform or de-identify Agency Content so that the extracted ACEIP Content is no longer reasonably capable of being associated with, or could reasonably be linked directly or indirectly to a particular individual (“Privacy Preserving Technique(s)”). For illustrative purposes, some examples are described in footnote 11. For clarity, ACEIP Content will still be linked indirectly, with an attribution, to the Agency from which it was extracted. This attribution will be stored separately from the dat a itself, but is necessary for and will be solely used to enable Axon to identify and delete all ACEIP Content upon Agency request.
Once de-identified, ACEIP Content may then be further modified, analyzed, and used to create derivative works. At any time, Agency may revoke the consent granted herein to Axon to access and use Agency Content for ACEIP Purposes. Within 30 days of receiving the Agency’s request, Axon will no longer access or use Agency Content for ACEIP Purposes and will delete any and all ACEI P Content. Axon will also delete any derivative works which may reasonably be capable of being associated with, or could reasonably be linked directly or indirectly to Agency. In addition, if Axon uses Agency Content for the ACEIP Purposes, upon request, Axon will make available to Agency a list of the specific type of Agency Content being used to generate ACEIP Content, the purpose of such use, and the retention, privacy preserving extraction technique, and relevant data protection practices applicable to the Agency Content or ACEIP Content (“Use Case”). From time to time, Axon may develop and deploy new Use Cases. At least 30 days prior to authorizing the deployment of any new Use Case, Axon will provide Agency notice (by updating the list of Use Case at https://www.axon.com/aceip and providing Agency with a mechanism to obtain notice of that update or another commercially reasonable method to Agency designated contact) (“New Use Case”).
2.2. Expiration of ACEIP Tier 1. Agency consent granted herein, will expire upon termination of the Agreement. In accordance with section 1.1.1, within 30 days of receiving the Agency’s request, Axon will no longer access or use Agency Content for ACEIP Purposes and will delete ACEIP Content. Axon will also delete any derivative works which may reasonably be capable of being associated with, or could reasonably be linked directly or indirectly to Agency.
3. ACEIP Tier 2. In addition to ACEIP Tier 1, if Agency wants to help further improve Axon’s services, Agency may
1 For example; (a) when extracting specific text to improve automated transcription capabilities, text that could be used to di rectly identify a particular individual would not be extracted, and extracted text would be disassociated from identifying metadat a of any speakers, and the extracted text would be split into individual words and aggregated with other data sources (including publicly available data) to remove any reasonable ability to link any specific text directly or indirectly back to a particular individual; (b) when extracting license plate data to improve Automated License Plate Recognition (ALPR) capabilities, individual license plate characters would be e xtracted and disassociated from each other so a complete plate could not be reconstituted, and all association to other elements of the source video, such as the vehicle, location, time, and the surrounding environment would also be removed; (c) when extracting audio of potential acoustic events (such as glass breaking or gun shots), very short segments (<1 second) of audio that only contains the likely acoustic events would be extracted and all human utterances would be removed.
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 9 of 18
choose to participate in Tier 2 of the ACEIP. ACEIP Tier 2 grants Axon certain additional rights to use Agency Content, in addition to those set forth in Tier 1 above, without the guaranteed deployment of a Privacy Preserving Technique to enable product development, improvement, and support that cannot be accomplished with aggregated, transformed or de-identified data.
☐ Check this box if Agency wants to help further improve Axon’s services by participating in ACEIP Tier 2 in addition to Tier 1. Axon will not enroll Agency into ACEIP Tier 2 until Axon and Agency agree to terms in writing providing for such participation in ACEIP Tier 2.
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 10 of 18
Professional Services Appendix
If any of the Professional Services specified below are included on the Quote, this Appendix applies.
1. Utilization of Services. Agency must use professional services as outlined in the Quote and this Appendix within 6 months of the Effective Date.
2. Axon Full Service (Axon Full Service). Axon Full Service includes advance remote project planning and configuration support and up to 4 consecutive days of on-site service and a professional services manager to work with Agency to assess Agency’s deployment and determine which on-site services are appropriate. If Agency requires more than 4 consecutive on-site days, Agency must purchase additional days. Axon Full Service options include:
System set up and configuration
Instructor-led setup of Axon View on smartphones (if applicable) Configure categories and custom roles based on Agency need Register cameras to Agency domain
Troubleshoot IT issues with Axon Evidence and Axon Dock (“Dock”) access One on-site session included
Dock configuration
Work with Agency to decide the ideal location of Docks and set configurations on Dock Authenticate Dock with Axon Evidence using admin credentials from Agency On-site assistance, not to include physical mounting of docks Best practice implementation planning session
Provide considerations for the establishment of video policy and system operations best practices based on Axon’s observations with other agencies
Discuss the importance of entering metadata in the field for organization purposes and other best practices for digital data management
Provide referrals of other agencies using the Axon camera devices and Axon Evidence Recommend rollout plan based on review of shift schedules System Admin and troubleshooting training sessions
Step-by-step explanation and assistance for Agency’s configuration of security, roles & permissions, categories & retention, and other specific settings for Axon Evidence Axon instructor training (Train the Trainer)
Training for Agency’s in-house instructors who can support Agency’s Axon camera and Axon Evidence training needs after Axon has fulfilled its contractual on-site obligations Evidence sharing training
Tailored workflow instruction for Investigative Units on sharing Cases and Evidence with local prosecuting agencies
End user go-live training and support sessions
Assistance with device set up and configuration
Training on device use, Axon Evidence, and Evidence Sync Implementation document packet
Axon Evidence administrator guides, camera implementation guides, network setup guide, sample policies, and categories & roles guide
Post go-live review
3. Body-Worn Camera Starter Service (Axon Starter). Axon Starter includes advance remote project planning and configuration support and one day of on-site Services and a professional services manager to work closely with Agency to assess Agency’s deployment and determine which Services are appropriate. If Agency requires more than 1 day of on-site Services, Agency must purchase additional on-site Services. The Axon Starter options include:
System set up and configuration (Remote Support)
Instructor-led setup of Axon View on smartphones (if applicable) Configure categories & custom roles based on Agency need
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 11 of 18
Troubleshoot IT issues with Axon Evidence and Axon Dock (“Dock”) access /Dock configuration
Work with Agency to decide the ideal location of Dock setup and set configurations on Dock Authenticate Dock with Axon Evidence using “Administrator” credentials from Agency Does not include physical mounting of docks
Axon instructor training (Train the Trainer)
Training for Agency’s in-house instructors who can support Agency’s Axon camera and Axon Evidence training needs after Axon’s has fulfilled its contracted on-site obligations End user go-live training and support sessions
Assistance with device set up and configuration
Training on device use, Axon Evidence, and Evidence Sync Implementation document packet
Axon Evidence administrator guides, camera implementation guides, network setup guide, sample policies, and categories & roles guide
4. Body-Worn Camera Virtual 1-Day Service (Axon Virtual). Axon Virtual includes all items in the BWC Starter Service Package, except one day of on-site services.
5. CEW Services Packages. CEW Services Packages are detailed below:
System set up and configuration
Configure Axon Evidence categories & custom roles based on Agency need. Troubleshoot IT issues with Axon Evidence.
Register users and assign roles in Axon Evidence.
For the CEW Full Service Package: On-site assistance included For the CEW Starter Package: Virtual assistance included Dedicated Project Manager
Assignment of specific Axon representative for all aspects of planning the rollout (Project Manager). Ideally, Project Manager will be assigned to Agency 4–6 weeks before rollout Best practice implementation planning session to include:
Provide considerations for the establishment of CEW policy and system operations best practices based on Axon’s observations with other agencies
Discuss the importance of entering metadata and best practices for digital data management Provide referrals to other agencies using TASER CEW s and Axon Evidence For the CEW Full Service Package: On-site assistance included For the CEW Starter Package: Virtual assistance included System Admin and troubleshooting training sessions
On-site sessions providing a step-by-step explanation and assistance for Agency’s configuration of security, roles & permissions, categories & retention, and other specific settings for Axon Evidence Axon Evidence Instructor training
Provide training on the Axon Evidence to educate instructors who can support Agency’s subsequent Axon Evidence training needs.
For the CEW Full Service Package: Training for up to 3 individuals at Agency For the CEW Starter Package: Training for up to 1 individual at Agency TASER CEW inspection and device assignment
Axon’s on-site professional services team will perform functions check on all new TASER CEW Smart weapons and assign them to a user on Axon Evidence.
Post go-live review
For the CEW Full Service Package: On-site assistance included.
For the CEW Starter Package: Virtual assistance included.
6. Smart Weapon Transition Service. The Smart Weapon Transition Service includes:
Archival of CEW Firing Logs
Axon’s on-site professional services team will upload CEW firing logs to Axon Evidence from all TASER CEW Smart Weapons that Agency is replacing with newer Smart Weapon models.
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 12 of 18
Return of Old Weapons
Axon’s on-site professional service team will ship all old weapons back to Axon’s headquarters.
Axon will provide Agency with a Certificate of Destruction *Note: CEW Full Service packages for TASER 7 include Smart Weapon Transition Service instead of 1-Day Device Specific Instructor Course.
7. Signal Sidearm Installation Service. If Agency purchases Signal Sidearm Installation Service, Axon will provide one day of on-site Services and one professional services manager and will cover the installation of up 100 Signal Sidearm devices per package purchased. Agency is responsible for p roviding an appropriate work area and ensuring all holsters that will have Signal Sidearm installed onto them are available on the agreed -upon installation date(s). Installation includes:
Removal of existing connection screws that affix a holster to a holster mount Proper placement of the Signal Sidearm Mounting Plate between the holster and the mount Reattachment of the holster to the mount using appropriate screws Functional testing of Signal Sidearm device
8. Out of Scope Services. Axon is only responsible to perform the professional services described in the Quote and this Appendix. Any additional professional services are out of scope. The Parties must document scope changes in a written and signed change order. Changes may require an equitable adjustment in the charges or schedule.
9. Delivery of Services. Axon personnel will work Monday through Friday, 8:30 a.m. to 5:30 p.m., except holidays.
Axon will perform all on-site tasks over a consecutive timeframe. Axon will not charge Agency travel time by Axon personnel to Agency premises as work hours.
10. Access Computer Systems to Perform Services. Agency authorizes Axon to access relevant Agency computers and networks, solely for performing the Services. Axon will work to identify as soon as reasonably practicable resources and information Axon expects to use and will provide an initial itemized list to Agency.
Agency is responsible for and assumes the risk of any problems, delays, los ses, claims, or expenses resulting from the content, accuracy, completeness, and consistency of all data, materials, and information supplied by Agency.
11. Site Preparation. Axon will provide a hardcopy or digital copy of current user documentation for the Axon Devices (“User Documentation”). User Documentation will include all required environmental specifications for the professional Services and Axon Devices to operate per the Axon Device User Documentation. Before installation of Axon Devices (whether performed by Agency or Axon), Agency must prepare the location(s) where Axon Devices are to be installed (“Installation Site”) per the environmental specifications in the Axon Device User Documentation. Following installation, Agency must maintain the Installation Site per the environmental specifications. If Axon modifies Axon Device User Documentation for any Axon Devices under this Agreement, Axon will provide the update to Agency when Axon generally releases it
12. Acceptance. When Axon completes professional Services, Axon will present an acceptance form (“Acceptance Form”) to Agency. Agency will sign the Acceptance Form acknowledging completion. If Agency reasonably believes Axon did not complete the professional Services in substantial conformance with this Agreement, Agency must notify Axon in writing of the specific reasons for rejection within 7 calendar days from delivery of the Acceptance Form . Axon will address the issues and re-present the Acceptance Form for signature. If Axon does not receive the signed Acceptance Form or written notification of reasons for rejection within 7 calendar days of delivery of the Acceptance Form, Axon will deem Agency to have accepted the professional Services.
13. Agency Network. For work performed by Axon transiting or making use of Agency’s network, Agency is solely responsible for maintenance and functionality of the network. In no event will Axon be liable for loss, damage, or corruption of Agency’s network from any cause.
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 13 of 18
Te chnology Assurance Plan Appendix
If Technology Assurance Plan (“TAP”) or a bundle including TAP is on the Quote, this appendix applies.
1. TAP Warranty. The TAP warranty is an extended warranty that starts at the end of the 1-year hardware limited warranty.
2. Officer Safety Plan. If Agency purchases an Officer Safety Plan (“OSP”), Agency will receive the deliverables detailed in the Quote. Agency must accept delivery of the TASER CEW and accessories as soon as available from Axon.
3. OSP 7 Term. OSP 7 begins on the date specified in the Quote (“OSP 7 Term”).
4. TAP BWC Upgrade. If Agency has no outstanding payment obligations and purchased TAP, Axon will provide Agency a new Axon body-worn camera (“BWC Upgrade”) as scheduled in the Quote. If Agency purchased TAP Axon will provide a BWC Upgrade that is the same or like Axon Device, at Axon’s option. Axon makes no guarantee the BWC Upgrade will utilize the same accessories or Axon Dock.
5. TAP Dock Upgrade. If Agency has no outstanding payment obligations and purchased TAP, Axon will provide Agency a new Axon Dock as scheduled in the Quote (“Dock Upgrade”). Accessories associated with any Dock Upgrades are subject to change at Axon discretion. Dock Upgrades will only include a new Axon Dock bay configuration unless a new Axon Dock core is required for BWC compatibility. If Agency originally purchased a single-bay Axon Dock, the Dock Upgrade will be a single-bay Axon Dock model that is the same or like Axon Device, at Axon’s option. If Agency originally purchased a multi-bay Axon Dock, the Dock Upgrade will be a multi-bay Axon Dock that is the same or like Axon Device, at Axon’s option.
6. Upgrade Delay. Axon may ship the BWC and Dock Upgrades as scheduled in the Quote without prior confirmation from Agency unless the Parties agree in writing otherwise at least 90 days in advance. Axon may ship the final BWC and Dock Upgrade as scheduled in the Quote 60 days before the end of the Subscription Term without prior confirmation from Agency.
7. Upgrade Change. If Agency wants to upgrade Axon Device models from the current Axon Device to an upgraded Axon Device, Agency must pay the price difference between the MSRP for the current Axon Device and the MSRP for the upgraded Axon Device. If the model Agency desires has an MSRP less than the MSRP of the offered BWC Upgrade or Dock Upgrade, Axon will not provide a refund. The MSRP is the MSRP in effect at the time of the upgrade.
8. Return of Original Axon Device. Within 30 days of receiving a BWC or Dock Upgrade, Agency must return the original Axon Devices to Axon or destroy the Axon Devices and provide a certificate of destruction to Axon including serial numbers for the destroyed Axon Devices. If Agency does not return or destroy the Axon Devices, Axon will deactivate the serial numbers for the Axon Devices received by Agency.
9. Termination. If Agency’s payment for TAP, OSP, or Axon Evidence is more than 30 days past due, Axon may terminate TAP or OSP. Once TAP or OSP terminates for any reason:
9.1. TAP and OSP coverage terminate as of the date of termination and no refunds will be given.
9.2. Axon will not and has no obligation to provide the Upgrade Models.
9.3. Agency must make any missed payments due to the termination before Agency may purchase any future TAP or OSP.
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 14 of 18
TASER 7 Appendix
This TASER 7 Appendix applies to Agency’s TASER 7, OSP 7, or OSP 7 Plus purchase from Axon, if applicable.
1. Duty Cartridge Replenishment Plan. If the Quote includes “Duty Cartridge Replenishment Plan”, Agency must purchase the plan for each CEW user. A CEW user includes officers that use a CEW in the line of duty and those that only use a CEW for training. Agency may not resell cartridges received. Axon will only replace cartridges used in the line of duty.
2. Training. If the Quote includes a training voucher, Agency must use the voucher within 1 year of issuance, or the voucher will be void. Axon will issue Agency a voucher annually beginning on the start of the TASER Subscription Term. The voucher has no cash value. Agency cannot exchange it for another device or service. Unless stated in the Quote, the voucher does not include travel expenses and will be Agency’s responsibility. If the Quote includes Axon Online Training or Virtual Reality Content Empathy Development for Autism/Schizophrenia (collectively, “Training Content”), Agency may access Training Content. Axon will deliver all Training Content electronically.
3. TASER Upgrade. If Agency purchases Axon’s 10-year certification program for Axon’s latest version of its TASER energy weapon (“Certification Program”) and has no outstanding payment obligations as of the beginning of the 6th year of the Certification Program, Agency will qualify for an upgrade to any subsequent version of the Certification Program (“CEW Upgrade”). Agency will receive the CEW Upgrade at no additional cost, only to the extent such subsequent version of the Certification Program includes the same products or features as the Certification Program purchased by Agency. If Agency wants to upgrade to a Certification Program that includes additional products or features, Agency will pay the additional cost associated with such products and features. For the avoidance of doubt, Agency is not required to upgrade to any subsequent version of the Certification Program. Axon may ship the CEW Upgrade as scheduled in the Quote without prior confirmation from agency unless the Parties agree in writing otherwise at least 90 days in advance. If necessary to maintain compatibility among Axon Devices, within 30 days of receiving the CEW Upgrade, Agency must, if requested by Axon, return all hardware and related accessories received in connection with the Certification Program to Axon. In such event, Agency must ship batteries via ground shipping or in accordance with federal regulations in place at the time of the return. Axon will pay shipping costs for the return if Agency uses Axon’s RMA process.
4. Extended Warranty. If the Quote includes an extended warranty, the extended warranty coverage period warranty will be for a 5-year term, which includes the hardware manufacturer’s warranty plus the 4-year extended term.
5. Trade-in. If the Quote contains a discount on CEW -related line items, including items related to OSP, then that discount may only be applied as a trade-in credit, and Agency must return used hardware and accessories associated with the discount (“Trade-In Units”) to Axon. Agency must ship batteries via ground shipping. Axon will pay shipping costs of the return. If Axon does not receive Trade-In Units within the timeframe below, Axon will invoice Agency the value of the trade-in credit. Agency may not destroy Trade-In Units and receive a trade-in credit.
Agency Size Days to Return from Start Date of TASER 7 Subscription Less than 100 officers 30 days
100 to 499 officers 90 days
500+ officers 180 days
6. TASER 7 Subscription Term. The TASER 7 Subscription Term for a standalone TASER 7 purchase begins on shipment of the TASER 7 hardware. The TASER 7 Subscription Term for OSP 7 begins on the OSP 7 Start date.
7. Access Rights. Upon Axon granting Agency a TASER 7 Axon Evidence subscription, Agency may access and use Axon Evidence for the storage and management of data from TASER 7 CEW devices during the TASER 7 Subscription Term. Agency may not exceed the number of end users than the Quote specifies.
8. Privacy. Axon will not disclose Agency Content or any information about Agency except as compelled by a court or administrative body or required by any law or regulation. Axon will give notice if any disclosure request is received for Agency Content, so Agency may file an objection with the court or administrative body.
9. Termination. If payment for TASER 7 is more than 30 days past due, Axon may terminate Agency’s TASER 7 plan by notifying Agency. Upon termination for any reason, then as of the date of termination:
9.1. TASER 7 extended warranties and access to Training Content will terminate. No refunds will be given.
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 15 of 18
9.2. Axon will invoice Agency the remaining MSRP for TASER 7 products received before termination. If terminating for non-appropriations, Axon will not invoice Agency if Agency returns the CEW, rechargeable battery, holster, dock, core, training suits, and unused cartridges to Axon within 30 days of the date of termination.
9.3. Agency will be responsible for payment of any missed payments due to the termination before being allowed to purchase any future TASER 7 plan.
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 16 of 18
Axon Auto-Tagging Appendix
If Auto-Tagging is included on the Quote, this Appendix applies.
1. Scope. Axon Auto-Tagging consists of the development of a module to allow Axon Evidence to interact with Agency’s Computer-Aided Dispatch (“CAD”) or Records Management Systems (“RMS”). This allows end users to auto- populate Axon video meta-data with a case ID, category, and location-based on data maintained in Agency’s CAD or RMS.
2. Support. For thirty days after completing Auto-Tagging Services, Axon will provide up to 5 hours of remote support at no additional charge. Axon will provide free support due to a change in Axon Evidence, so long as long as Agency maintains an Axon Evidence and Auto-Tagging subscription. Axon will not provide support if a change is required because Agency changes its CAD or RMS.
3. Changes. Axon is only responsible to perform the Services in this Appendix. Any additional Services are out of scope. The Parties must document scope changes in a written and signed change order. Changes may require an equitable adjustment in fees or schedule.
4. Agency Responsibilities. Axon’s performance of Auto-Tagging Services requires Agency to:
4.1. Make available relevant systems, including Agency’s current CAD or RMS, for assessment by Axon (including remote access if possible);
4.2. Make required modifications, upgrades or alterations to Agency’s hardware, facilities, systems and networks related to Axon’s performance of Auto-Tagging Services;
4.3. Provide access to the premises where Axon is performing Auto-Tagging Services, subject to Agency safety and security restrictions, and allow Axon to enter and exit the premises with laptops and materials needed to perform Auto-Tagging Services;
4.4. Provide all infrastructure and software information (TCP/IP addresses, node names, network configuration) necessary for Axon to provide Auto-Tagging Services;
4.5. Promptly install and implement any software updates provided by Axon;
4.6. Ensure that all appropriate data backups are performed;
4.7. Provide assistance, participation, and approvals in testing Auto-Tagging Services;
4.8. Provide Axon with remote access to Agency’s Axon Evidence account when required;
4.9. Notify Axon of any network or machine maintenance that may impact the performance of the module at Agency; and
4.10. Ensure reasonable availability of knowledgeable staff and personnel to provide timely, accurate, complete, and up-to-date documentation and information to Axon.
5. Access to Systems. Agency authorizes Axon to access Agency’s relevant computers, network systems, and CAD or RMS solely for performing Auto-Tagging Services. Axon will work diligently to identify as soon as reasonably practicable resources and information Axon expects to use and will provide an initial list to Agency.
Agency is responsible for and assumes the risk of any problems, delays, losses, claims, or expenses resulting from the content, accuracy, completeness, and consistency of all data, materials, and information supplied by Agency.
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 17 of 18
Axon Respond Appendix
This Axon Respond Appendix applies to both Axon Respond and Axon Respond Plus, if either is included on the Quote.
1. Axon Respond Subscription Term. If Agency purchases Axon Respond as part of a bundled offering, the Axon Respond subscription begins on the later of the (1) start date of that bundled offering, or (2) date Axon provisions Axon Respond to Agency. If Agency purchases Axon Respond as a standalone, the Axon Respond subscription begins the later of the (1) date Axon provisions Axon Respond to Agency, or (2) first day of the month following the Effective Date. The Axon Respond subscription term will end upon the completion of the Axon Evidence Subscription associated with Axon Respond.
2. Scope of Axon Respond. The scope of Axon Respond is to assist Agency with real-time situational awareness during critical incidents to improve officer safety, effectiveness, and awareness. In the event Agency uses Axon Respond outside this scope, Axon may initiate good-faith discussions with Agency on upgrading Agency’s Axon Respond to better meet Agency’s needs.
3. Axon Body 3 LTE Requirements. Axon Respond is only available and usable with an LTE enabled body-worn camera. Axon is not liable if Agency utilizes the LTE device outside of the coverage area or if the LTE carrier is unavailable. LTE coverage is only available in the United States, including any U .S. territories. Axon may utilize a carrier of Axon’s choice to provide LTE service. Axon may change LTE carriers during the Term without Agency’s consent.
4. Axon Fleet 3 LTE Requirements. Axon Respond is only available and usable with a Fleet 3 system configured with LTE modem and service. Agency is responsible for providing LTE service for the modem. Coverage and availability of LTE service is subject to Agency’s LTE carrier.
5. Axon Respond Service Limitations. Agency acknowledges that LTE service is made available only within the operating range of the networks. Service may be temporarily refused, interrupted, or limited because of: (a) facilities limitations; (b) transmission limitations caused by atmospheric, terrain, other natural or artificial conditions adversely affecting transmission, weak batteries, system overcapacity, movement outside a service area or gaps in coverage in a service area and other causes reasonably outside of the carrier’s control such as intentional or negligent acts of third parties that damage or impair the network or disrupt service; or (c) equipment modifications, upgrades, relocations, repairs, and other similar activities necessary for the proper or improved operation of service.
5.1. With regard to Axon Body 3, Partner networks are made available as-is and the carrier makes no warranties or representations as to the availability or quality of roaming service provided by carrier partners, and the carrier will not be liable in any capacity for any errors, outages, or failures of carr ier partner networks. Agency expressly understands and agrees that it has no contractual relationship whatsoever with the underlying wireless service provider or its affiliates or contractors and Agency is not a third-party beneficiary of any agreement between Axon and the underlying carrier.
6. Termination. Upon termination of this Agreement, or if Agency stops paying for Axon Respond or bundles that include Axon Respond, Axon will end Axon Respond services, including any Axon-provided LTE service.
Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 15.0
Release Date: 8/31/2022 Page 18 of 18
Add-on Services Appendix
This Appendix applies if Axon Citizen for Communities, Axon Redaction Assistant, and/or Axon Performance are included on the Quote.
1. Subscription Term. If Agency purchases Axon Citizen for Communities, Axon Redaction Assistant, or Axon Performance as part of OSP 7, the subscription begins on the later of the (1) start date of the OSP 7 Term, or (2) date Axon provisions Axon Citizen for Communities, Axon Redaction Assistant, or Axon Performance to Agency.
1.1. If Agency purchases Axon Citizen for Communities, Axon Redaction Assistant, or Axon Performance as a standalone, the subscription begins the later of the (1) date Axon provisions Axon Citizen for Communities, Axon Redaction Assistant, or Axon Performance to Agency, or (2) first day of the month following the Effective Date.
1.2. The subscription term will end upon the completion of the Axon Evidence Subscription associated with the add- on.
2. Axon Citizen Storage. For Axon Citizen, Agency may store an unlimited amount of data submitted through the public portal (“Portal Content”), within Agency’s Axon Evidence instance. The post-termination provisions outlined in the Axon Cloud Services Terms of Use Appendix also apply to Portal Content.
3. Performance Auto-Tagging Data. In order to provide some features of Axon Performance to Agency, Axon will need to store call for service data from Agency’s CAD or RMS.
S T A F F R E P O R T
I T E M N O . 13.A .
D A T E :N ovem b er 2 8, 2 02 2
T O :M A YO R A N D C I T Y C O U N C I L
F R O M : M I C H A E L B L A Y, C I T Y M A N A G E R P R E P A R E D B Y : S T E P H E N PA R K E R , A S S I S TA N T C I T Y M A N A G E R S U B J E C T :A P P R O V E A G R E E M E N T S W I T H Y I F T E E , I N C . A N D H I N D E R L I T E R , D E L L A M A S A N D A S S O C I A T E S, I N C . F O R T H E D E V E LO P M E N T O F
A N U P L A N D S M A L L B U S I N E S S D I G I TA L G I F T C A R D P R O G R A M
W I T H A R PA F U N D S
R E C O M M E N D E D A C T I O N
I t is recom m en d ed t h at C it y C ou n ci l ap p rove ag reem en ts wi th Y ift ee, I nc. an d H in d erliter, D e L lam as an d A ssociat es, I n c . t o im p lem ent a strateg y of s up p orti ng local b u si n es ses with a d ig ital g i ft card p rog ram , au t h orize t h e C i ty M an ag er t o exec ut e t he ag reem en ts, an d ap p rove th e use of $2 50 ,00 0 in A m erican Rescu e P lan A ct (A R PA ) fu nd s.
G O A L S T A T E M E N T
Th e p rop osed action sup p orts th e C ity’s g oal of su p p ortin g local sm all b u sinesses.
B A C K G R O U N D
O n M arch 1 1, 20 21 , th e P resi d en t sig n ed i n t o law th e A m eri can Resc u e P lan A ct , als o kn ow n as “A R PA .” Th e fed eral s ti m u lu s p rog ram allocat es $1.9 trillion over t h e n ext t hree years to help st ate an d local g overnm ent s res p on d t o t h e econom ic an d p u b l ic health i m p act s of C O V I D -1 9. U n d er t h e l aw, each local g overn m en t ag en cy nat ion w id e recei ves an al loc ati on of A R PA fu n d s, b ased on a form ul a. T he C it y’s sh are is $1 5.2 m il li on. Th e st im u l u s p rog ram is d esig ned to g ive com m un it ies b road l ati tu d e on sp en d in g t h e fu n d s for eli g i b l e u s es. Th ese uses in clud e (1 ) resp on d ing t o t h e p ub lic h eal th em erg en cy or n eg ati ve econ om ic im p ac ts for hou seh old s an d b u sinesses, (2 ) res p on d i n g t o workers p erform in g essent ial w ork d u ri ng the em erg en cy b y p rovid in g p rem iu m p ay or p rovi d i n g g ran t s t o eli g i b l e em p loyers p erform in g essential w ork, (3 ) p rovid in g g overnm ent services, an d (4 ) m akin g n ecessary in vest m en ts in w ater, sewer, or b road b an d infrastru cture.
I S S U E S /A N A L Y S I S
S m all b u si n es ses in Up lan d c on t in u e to stru g g le t w o years aft er th e p and em ic b eg an an d are now d ealin g w ith rising inflation. O u r b u sinesses d ep en d on local foot traffic to b e successfu l, and the p an d em ic h as b een esp ecially hard on our com m un it y. Th e D ig ital G ift C ard P rog ram is an i n n ovati ve w ay t o st im ulate loc al consum er sp en d in g , t hereb y su p p ort in g locally-own ed , sm all, and in d ep end ent ly-own ed b u s in ess es i n Up lan d . W h en d oll ars are s p en t l ocal ly, m ost are rein vested in the local com m u nity in the form of job s an d taxes. T he H d L /Yiftee d ig ital g ift card p rog ram is b ein g u sed b y the cities of M u rrieta, L ake Forest, S an Lean d ro, C an yon L ake, H aw th orn e, B al d wi n Park, O akley, S ou th G ate, Lafayet te an d oth ers. Th e Y i ftee D ig ital G ift C ard P rog ram is a w ay to u tilize A m erican Rescu e P lan A ct fun d s to stim u late th e local econ om y and as si st sm all b us in ess es in recovery. I t al so p rovid es ad d itional s avin g s to resid ents wh o s hop locally. A s an exam p le, the fi rs t p h ase of the p rop osed d ig it al g ift card p rog ram w oul d h ave the resid ent s b u y a g ift c ard valu ed at $2 5, an d th e p rog ram w ould p rovid e an oth er $2 5 g i ft card for a com b in ed $5 0 in g ift card d ol lars to b e sp en t loc all y. T his w ould eq uate to a b uy on e g et one free g ift card p rog ram for resid ents.
To in it iat e t h e p rog ram , t he C i ty wou ld en ter i n t o Yiftee's C om m u ni ty C ard custom er A g reem ent (attach ed ). T here is no set-u p or m on th ly costs. T he costs p aid to Y iftee are:
1. Th e valu e of th e b on us card p rovid ed ;
2. Th e $1 p lus 5% eD elivery fee (p u rchaser fee) p lu s a $1 g ift fee p er card ; an d
3. Th e p articip atin g m erchan t fees ch arg ed b y M asterC ard (0 .5% "card not p resen t" fee)
To assist w ith th e b ran d ing costs associated with the d evelop m ent of th e S hop Local cam p aig n , m arket in g of th e d ig ital g ift c ard and relat ed sig nag e an d p osters for p articip atin g b u sinesses, we are p rop osin g an ag reem en t w it h H d L C om p an i es i n t heir E C O N S olution s d ivision . H d L has p art nered an d b rou g h t th is p rog ram to over a d ozen of th eir c li en t s over the last year. H d L wou ld w ork with s taff, th e U p l an d C h am b er of C om m erce an d H istoric D ow ntow n U p land to h elp ensure a su ccessful p rog ram . H d L C om p an ies has b een a critical p artn er wi th the C it y of U p l and p rovid ing ass is tan ce in th e sales tax, p rop erty t ax an d b u siness license tax areas for a nu m b er of years.
S taff h ave d iscussed t h e p rog ram w ith th e U p lan d C h am b er of C om m erce O p erat ion s M anag er and th e H i st ori c D ow n t ow n U p lan d P resid en t of the B oard an d sou g h t th eir assistance in su p p ortin g th e p rog ram an d assisting with the m arketing efforts to the Up lan d b u siness com m u nity. T h e d iscussions have b een p ositive an d t h ere is a b eli ef that th is p rog ram w ill help d rive b u siness to Up lan d 's sm all b usin ess com m u nity.
S taff's g oal i s t o h ave t h e p rog ram op erati on al p rior to C hristm as t o help p rom ote h olid ay sh op p in g w it h ou r local s m al l b u s in ess es. T he ti m el in e for g ettin g th e p rog ram u p an d ru nn in g is g enerally b etw een tw o and th ree weeks.
Th e d ig ital g ift card can on ly b e u s ed at p arti ci p at in g U p lan d b u si n es ses t h at are in d ep end ently ow n ed , not corp orate own ed or m u l ti -fran ch is ee ow ned . Th e C it y can lim it the typ e of b u s in ess cat eg ories th at can p art icip ate. M ost c it ies h ave l im it ed t he typ e of p articip atin g b usin esses to:
1. Retail (C ity can lim it retai l offeri n g t o n ot in cl u d e c an n ab i s, sm oke s h op s, li q u or stores, g as stations or g rocery stores);
2. Restaurant/C afé; an d
3. Personal S ervices
Th e b usin ess m u s t also op erate in a p h ys ic al storefron t locati on, h ave a cu rrent C it y b u siness licen se, an d have no c u rren t cod e en forcem en t ac ti on s p end in g ag ain st t hem . T h e valu es for th e d i g i tal g ift card s wi ll inclu d e $25 , $50 , an d $10 0 am ou nts. A d d it ion al lim itat ion s or restrictions w il l b e d eterm i n ed on ce t h e p rog ram i s ap p roved an d s taff form ally m eet s w ith H d L to d evelop the d ig ital g ift card p rog ram .
F I S C A L I M P A C T S
Th e Y iftee p rog ram fees are es ti m at ed to b e ap p roxi m at ely $1 5,0 00 . T h e H d L ag reem en t in clud es a n ot to exc eed exp en s e of $15 ,00 0. Th e rem ain in g $2 20 ,00 0 in A R PA fu nd in g w ould b e used t o p rovid e a b on u s g i ft card on top of loc al g ift card p u rch ases to in crease sp end in g at local sm all b usin esses. A s th is p rog ram w ou ld p rovi d e ass is tan ce to loc al sm all b u sinesses, it wou ld n ot b e c h arg ed ag ain st the C it y's A R PA revenu e los s cal cu lat ion . I f A R PA fu n d s are ap p roved for t hi s p rog ram , an est im ated $1 .5 m i ll ion in A R PA fu n d s rem ain to b e sp en t on non -reven ue loss categ ories.
A L T E R N A T I V E S
P rovid e altern ative d irection to staff.
AT TAC HM E NT S :
Description
Yiftee Community Card Agreement
HdL 's Yiftee Gift Card Program Administration Agreement
Community Card Customer Agreement
THIS AGREEMENT (the “Agreement”) is made effective as of November 28, 2022 (the “Effective Date”) by and between Yiftee Inc., a Delaware corporation, with an address at 325 Sharon Park Drive #215, Menlo Park, CA 94025 (“Yiftee”) and City of Upland with an address at 460 N. Euclid Ave. Upland, CA 91786(“Customer”). The parties agree a follows:
1. Definitions.
1.1 “Merchant” means a merchant, prospect or other contact that may be using or desire to use Yiftee Services to redeem eGifts.
1.2 “Participant” means a Merchant who has opted to participate in a Community Card by running an Activation Card and agreeing to the Merchant Agreement.
1.3 “Yiftee Services” means Yiftee’s gift-giving platform. It is the technology foundation for Community Cards.
1.4 “Purchaser” means a person or entity that purchases or redeems eGifts.
1.5 “eGift” means a digital virtual gift voucher used as payment for goods or services at a Participant.
1.6 “Offer” or “Offers” mean specific benefits that Participants provide to consumers who use their Community Cards in their store, as determined by the Participants and posted on their eGift Card web page.
2. Merchant Enrollment.
2.1 Merchant Enrollment Obligations
(a) Customer will collect a set of Merchants who have elected to participate in the Yiftee Services.
Merchants must all be located in the same state in the USA, due to varying gift card laws by state. Each Merchant must agree to the Yiftee Community Card Merchant Agreement located on the Yiftee.com website. Merchants who have not agreed to the Merchant Agreement will not be able to utilize the Yiftee Services to redeem eGifts. Customer will upload into the Yiftee Services or provide the names of the Merchants who intend to participate to Yiftee. Upon the agreed upon launch date, the billing for the Yiftee Services will begin (“Commencement Date”). This billing will include the agreed-upon cost for each Participant or group thereof as defined in Appendix A. (b) Yiftee will provide to Customer or directly to Merchants, upon receipt of the set of Merchant names in 2.1a, a set of unique Activation Cards to be run by each Merchant. Customer will inform Merchants of their individual Activation Card and provide instructions on its use. Additionally, Customer will inform Merchants that running the Activation Card implies consent to the Merchant Agreement located on the Yiftee.com website.
(c) As Merchants run the Activation Cards, they will be included in the set of Merchants enabled to participate in the Yiftee Services, i.e. the Participants. Participant may also post their Offers to be available for eGift Card holders who redeem gifts in their stores.
(d) Yiftee will bill Customer or Merchants as described in Appendix A. Customer can add or remove Participants and fees will be adjusted accordingly, if applicable. There will be no retroactive adjustments allowed by Yiftee (that is, a cancelled Participant’s billing obligation will result in that Participant’s cost to Customer, as defined in Appendix A, to be eliminated beginning only on the next annual billing cycle). A Participant may be added to the list of Participants at any time (“Enrollment Time”), with billing adjustment for said Participant to begin immediately and to be included in the current month’s billing. (e) Each party shall comply with good, ethical and moral business practices and all applicable laws and regulations in engaging in any activities here under. Yiftee shall also comply with federal regulations outlined in Appendix B of this Agreement.
(f) Fees and payment terms applicable to the subject matter here under shall be as set forth in Appendix A. Customer is not entitled to compensation other than what is described in Appendix A. (g) Customer is responsible and liable for any disputes or liability arising out of its relationships with Merchants and Participants, except with respect to any liability of Yiftee under this agreement.
2.2 Yiftee Materials.
Yiftee may provide Customer with certain materials for use in conjunction with promoting the Yiftee Services here under (“Yiftee Materials”). No rights or licenses, express or implied, are granted in those Yiftee Materials or otherwise, except as expressly and unambiguously set forth in this Agreement.
2.3 Limited Licenses.
Subject to the terms and conditions of this Agreement, Yiftee hereby grants to Customer, a non- exclusive, non-transferable, non-assignable, non-sublicensable right and license to access and use the Yiftee Services and Yiftee Materials solely for the purposes of Customer’s performance of this Agreement.
2.4 Trademark License.
Subject to the terms and conditions of this Agreement, Yiftee hereby grants Customer and Customer hereby grants Yiftee a non-exclusive, non-transferable, non-assignable, non-sublicensable, royalty- free license to use Yiftee’s or Customer’s name, trade names, trademarks, service marks, and logos (collectively, a party’s “Marks”) solely in connection with Customer’s and Yiftee’s promotion and marketing of the Yiftee Services, subject to written usage guidelines, if any, made mutually available.
3. Chargebacks. When purchasing eGifts using Purchasers’ credit cards or other forms of payment using the Yiftee “Order Desk” functionality or any purchase using Customer’s Community Card account with a third party credit card that is not Customer’s, Customer is responsible for verifying that the Purchaser owns the payment instrument and has authority to use it for said purchase. Should Yiftee receive a Chargeback, Yiftee will attempt to cancel any outstanding value on the eGift purchased and Customer will be liable for any remaining balance and fees incurred by Yiftee.
Customer is not liable for Chargebacks for gifts purchased through the normal Yiftee eGift process where Customer is not making the gift purchase.
4. Ownership. As between the parties, Yiftee owns all right, title and interest in and to the Yiftee Services, Yiftee’s Marks and the Yiftee Materials. Customer owns all right, title and interest in and to Customer’s Marks5. Warranties Disclaimer. YIFTEE AND ITS LICENSORS MAKE NO WARRANTIES TO
CUSTOMER, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL
WARRANTIES ARISING OUT OF USAGE OR TRADE, COURSE OF DEALING AND COURSE OF PERFORMANCE.
6. Liability .
6.1 Mutual Indemnification. Each Party hereby agree to indemnify, defend, save, and hold the other and their respective officers, agents, and employees, free and harmless from and against any claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries arising out of, pertaining to, or in any manner connected with the indemnifying party’s sole negligence or willful misconduct related to the performance of this Agreement.
6.2 Limitation of Liability. EXCEPT FOR LIABILITY ARISING UNDER SECTION 6.1 AND SECTION 8,
NEITHER PARTY (NOR ITS LICENSORS) WILL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
WHATSOEVER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE OR
CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE AND IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE GREATER OF $500 OR THE AMOUNTS PAID AND/OR
PAYABLE BY YIFTEE TO CUSTOMER (AND/OR BY CUSTOMER TO YIFTEE, IF PAYMENTS ARE PAYABLE BY CUSTOMER TO YIFTEE IN ACCORDANCE WITH PROPOSAL) HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM.
6.3 Insurance. Yiftee shall obtain insurance of the types and in the amounts described below and satisfactory to the Customer.
(a) Commercial General Liability Insurance. Yiftee shall maintain occurrence version commercial general liability insurance or equivalent form with a combined single limit of not less than two million dollars ($2,000,000) per occurrence and the general aggregate limit not less than four million dollars ($4,000,000). Such insurance shall:
1. Include the Customer, its officials, officers, employees, agents, and consultants as additional insureds with respect to the use of the Property and shall contain no special limitations on the scope of coverage or the protection afforded to the additional insureds;
2. Be primary with respect to any insurance or self-insurance programs covering the Customer, its officials, officers, employees, agents and consultants; and
3. Contain standard separation of insured provisions.
4. Contain a waiver of subrogation that waives any right the insurer has against Customer for any claims or suits.
(b) Workers' Compensation Insurance. Yiftee shall maintain workers' compensation insurance with statutory limits and employers' liability insurance with limits of not less than $1,000,000 per occurrence. (c) Certificates of Insurance. Yiftee shall furnish the Customer with properly executed certificates of insurance and, if requested by the Customer in writing, certified copies of endorsements and policies, which clearly evidence all insurance required under this Agreement and provide that such insurance shall be not canceled, allowed to expire or be materially reduced in coverage, except on thirty (30) days'
prior written notice to the Customer. The Customer shall have the sole discretion to determine whether the certificates and endorsements presented comply with the provisions of this Agreement. (d) Coverage Maintenance. Yiftee shall replace certificates, policies and endorsements for any insurance expiring prior to the termination of this Agreement. Unless otherwise provided for in this Agreement, Yiftee shall maintain such insurance from the execution of this Agreement until the termination of the Agreement.
(e) Licensed Insurer. Yiftee shall place such insurance with insurers having A.M. Best Company ratings of no less than A:VIII and licensed to do business in California, unless otherwise approved, in writing, by the Customer.
7. Term and Termination.
7.1 Term. This Agreement shall be effective as of the Effective Date and shall continue in full force on an annual period from the Effective Date, and thereafter shall automatically renew annually, unless and until either party terminates this Agreement pursuant to Section 6.2.
7.2 Termination.
(a) Either party may, at its option, terminate this Agreement upon thirty (30) days written notice to the other party for any reason or for no reason whatsoever. (b) Either party may terminate this Agreement if the other party materially breaches a term of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice of such breach from the non-breaching party.
(c) Participants are obligated to honor all outstanding eGifts issued by Yiftee for the entire duration of those eGift's validity periods. Termination does not relieve Participants from honoring conditions outlined in the Merchant Agreement.
7.3 Effect of Termination. Upon any termination: (a) Customer shall immediately cease all promotion of the Yiftee Services and shall immediately return to Yiftee, or at the option of Yiftee, destroy, all Confidential Information (as defined below) of Yiftee disclosed to Customer, Yiftee Materials, and any Yiftee Services, hardware and software provided to Customer here under, (b) Yiftee shall immediately return to Customer, or at the option of Customer, destroy, all Confidential Information of Customer disclosed to Yiftee here under, and (c) all licenses granted under this Agreement shall immediately cease. The following Sections shall survive termination and remain in effect 1, 4, 5, 6, 7.3, 8 and 9. Any termination of this Agreement shall be without prejudice to any other rights or remedies available under this Agreement or at law.
8. Confidentiality. Because of this Agreement, the parties may have access to information that is confidential to the disclosing party (“Confidential Information”). Confidential Information shall include, without limitation, Purchaser lists and information relating to the parties’ products and pricing and all information designated as confidential by the disclosing party at the time of disclosure. A party’s Confidential Information shall not include any information which (i) becomes generally publicly available through no wrongful act or omission of the receiving party; (ii) is lawfully acquired by the receiving party from a third party without any breach of a confidentiality obligation; or (iii) is independently developed
without use of or reference to the disclosing party’s Confidential Information. Each party agrees to maintain the confidentiality of the other party’s Confidential Information using the same degree of care that it uses with regard to its confidential information of like nature, but in no event less than reasonable care, and to protect as a trade secret any portion of the other party’s Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer of possession of such information. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor. The parties acknowledge that money damages will not be an adequate remedy if this Section 8 is breached and, therefore, either party may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety.
9. Non-solicitation
During the term of this Agreement, neither party will (on behalf of itself or any other person or entity) solicit any Purchaser or Merchant of the other party to restrict, limit, or terminate such Purchaser’s or Merchant’s participation in the other party’s products and services.
10. Miscellaneous
10.1 Choice of Law. This contract shall be governed by and construed in accordance with the laws of the State of California, without regard to the provisions of the conflict of laws thereof. The parties will resolve any disputes in the state or federal courts located in San Bernardino County, California, to whose exclusive jurisdiction and venue they irrevocably submit. Notwithstanding anything to the contrary, either party may pursue injunctive or other equitable relief in any court of competent jurisdiction.
10.2 Notices. Any notice or other communication required or permitted in this Agreement shall be in writing and shall be deemed to have been duly given on the day of service if served personally or by facsimile transmission with confirmation, or three (3) days after mailing if mailed by First Class mail, registered or certified, postage prepaid, and addressed to the respective parties at the addresses set forth above, or at such other addresses as may be specified by either party pursuant to the terms and provisions of this section.
10.3 Assignment. Customer may not assign or otherwise transfer, without the prior written consent of Yiftee, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part. Yiftee may freely assign or otherwise transfer this Agreement in connection with the sale of all or substantially all of its business or assets. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
10.4 Severability. Any provision of this Agreement that is determined to be unenforceable or unlawful shall not affect the remainder of the Agreement and shall be severable therefrom, and the unenforceable or unlawful provision shall be limited or eliminated to the minimum extent necessary to that this Agreement shall otherwise remain in full force and effect and enforceable.
10.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior agreements between them, whether written or oral, with respect to the subject matter hereof, and may not be amended, modified or provision hereof waived, except in a writing signed by the parties hereto. No waiver by either party, whether express or implied, of any provision of this Agreement, or of any breach thereof, shall constitute a continuing waiver of such provision or a breach or waiver of any other provision of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
Customer (Print): YIFTEE, INC.
By: By:
Name, Title: Michael Blay, Upland City Manager Name, Title: Donna Novitsky, Yiftee CEO
Community Card Customer Agreement
APPENDIX A
Pricing
Customer and Participants are not required to pay Yiftee a subscription fee or a revenue share. Yiftee does not take a percentage of the cards that are redeemed in the Participants’ stores.
Charges:
Purchasers pay the face value of the card plus a $1+5% of the eGift Card value eDelivery fee at the time of purchase. Bulk purchases of one thousand dollars ($1000) or more, and enterprise accounts may qualify for a reduced eDelivery fee by depositing funds into their Yiftee eGifting accounts by check or ACH and disabling credit cards.
Participants pay Mastercard processing fees for a card-not-present (CNP) transaction upon redemption.
Yiftee does not control these fees, they are set by the Merchant Acquirer who is their credit card processor.
Subject to applicable laws, Yiftee will implement a monthly maintenance fee on eGift Cards that have been inactive (i.e. no spending on the Card) for periods of greater than 12 months. This will be made clear to cardholders on the face of the eGift Card when implemented, as is required by law.
Yiftee eGift Cards do not generally expire. Subject to applicable laws, in some cases eGift Cards given by corporations or merchants as promotions, rewards and awards may have expiration dates. In the case of eGift Cards expiring, Yiftee retains 10% of the original eGift Card value not to exceed the remaining unspent funds and refunds the balance to the purchaser’s Yiftee eGift Card account. eDelivery fees are not refunded.
Participants may choose, at their discretion, to post Offers to encourage Purchasers to use their Community Cards in their stores.
Participants may choose, at their discretion, to offer rebates as fund raisers to local groups such as schools, churches and other non-profits. Such programs are an incentive for the local groups to sell Community Cards to their members, and for the Purchasers to use them in specific stores who are offering rebates. Yiftee will work with the Participants and Purchasers to execute such programs.
No tipping is allowed on Yiftee eGift Cards.
Community Card Customer Agreement
APPENDIX B
ARPA REQUIREMENTS
During the performance of this Agreement, Consultant shall comply with all applicable federal laws and regulations including, but not limited to, the federal contract provisions in this Appendix B.
1. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APPENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (2 C.F.R. § 200.327)
(a) Appendix II to Part 200 (A); Appendix II to Part 200 (B): Remedies for Breach; Termination for Cause/Convenience. The Contract Documents include remedies for breach and termination for cause and convenience.
(b) Appendix II to Part 200 (C) – Equal Employment Opportunity: If this Agreement meets the definition of a “federal assisted construction contract” in 41 CFR § 60-1.3, Consultant agrees as follows during the performance of this Agreement:
(i) The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Consultant will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(ii) The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(iii) The Consultant will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Consultant's legal duty to furnish information. (iv) The Consultant will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Consultant's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(v) The Consultant will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (vi) The Consultant will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(vii) In the event of the Consultant's noncompliance with the nondiscrimination clauses of this Agreement or with any of the said rules, regulations, or orders, this Agreement may be canceled, terminated, or suspended in whole or in part and the Consultant may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(viii) The Consultant will include the portion of the sentence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Consultant will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event the Consultant becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Consultant may request the United States to enter into such litigation to protect the interests of the United States.
The City further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work:
Provided, That if the City so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the Agreement.
The City agrees that it will assist and cooperate actively with the administering agency and t he Secretary of Labor in obtaining the compliance of the Consultant and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The City further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the City agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: cancel, terminate, or suspend in whole or in part the grant (contract, loan, insurance, guarantee) for this project; refrain from extending any further assistance to the applicant under the program with
respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
(c) Appendix II to Part 200 (D) – Davis-Bacon Act: Not applicable to this Agreement since it is funded by CSLFRF.
(d) Appendix II to Part 200 (D) – Copeland “Antti-Kickback” Act: Not applicable to this Agreement since it is funded by CSLFRF.
(e) Appendix II to Part 200 (E) – Contract Work Hours and Safety Standards Act:
(i) Overtime Requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (ii) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (ii) of this section the Consultant and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (ii) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (ii) of this section. (iii) Withholding for unpaid wages and liquidated damages. The City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Consultant or subcontractor under any such contract or any other Federal contract with the Consultant, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the Consultant, such sums as may be determined to be necessary to satisfy any liabilities of Consultant or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (iii) of this section. (iv) Subcontracts. The Consultant or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (ii) through (v) of this Section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Consultant shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (ii) through (v) of this Section. (f) Appendix II to Part 200 (F) – Rights to Inventions Made Under a Contract or Agreement: If the Federal award meets the definition of “funding agreement” under 37 CFR § 401.2 (a) and the Consultant wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the Consultant must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency..
(g) Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act:
(i) Pursuant to the Clean Air Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
(ii) Pursuant to the Federal Water Pollution Control Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
(h) Appendix II to Part 200 (H) – Debarment and Suspension:
(i) This Agreement is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is required to verify that none of the Consultant, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). (ii) Consultant must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
(iii) This certification is a material representation of fact relied upon by City. If it is later determined that Consultant did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. (iv) Consultant warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Consultant also agrees to verify that all subcontractors performing work under this Agreement are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above. Consultant further agrees to notify the City in writing immediately if Consultant or its subcontractors are not in compliance during the term of this Agreement.
(i) Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act: Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency. (j) Appendix II to Part 200 (J) – §200.323 Procurement of Recovered Materials:
(i) Consultant shall comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement. (ii) In the performance of this Agreement, the Consultant shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired: competitively within a timeframe providing for compliance with the contract performance schedule; meeting contract performance requirements; or at a reasonable price. (iii) Information about this requirement, along with the list of EPA-designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program . (iv) The Consultant also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.” (k) Appendix II to Part 200 (K) – §200.216 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment:
(i) Consultant shall not contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system funded under this Agreement. As described in Public Law 115–232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). (1) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
(2) Telecommunications or video surveillance services provided by such entities or using such equipment.
(3) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
(ii) See Public Law 115-232, section 889 for additional information. (l) Appendix II to Part 200 (L) – §200.322 Domestic Preferences for Procurement:
(i) Consultant shall, to the greatest extent practicable, purchase, acquire, or use goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subcontracts.
(ii) For purposes of this section:
(1) “Produced in the United States’’ means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(2) ‘‘Manufactured products’’ means items and construction materials composed in whole or in part of nonferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
2. CONTRACTING WITH SMALL AND MINORITY FIRMS, WOMEN’S BUSINESS ENTERPRISE AND LABOR SURPLUS AREA FIRMS (2 C.F.R. § 200.321) (a) Consultant shall be subject to 2 C.F.R. § 200.321 and will take affirmative steps to assure that minority firms, women’s business enterprises, and labor surplus area firms are used when possible and will not be discriminated against on the grounds of race, color, religious creed, sex, or national origin in consideration for an award.
(b) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and women's business enterprises on solicitation lists;
(ii) Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources; (iii) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises;
(iv) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises; and (v) Using the services/assistance of the Small Business Administration (SBA), and the Minority Business Development Agency (MBDA) of the Department of Commerce. (c) Consultant shall submit evidence of compliance with the foregoing affirmative steps when requested by the City.
3. COMPLIANCE WITH U.S. DEPARTMENT OF THE TREASURY CORONAVIRUS
LOCAL FISCAL RECOVERY FUND AWARD TERMS AND CONDITIONS
(a) Maintenance of and Access to Records. Consultant shall maintain records and financial documents sufficient to evidence compliance with section 603(c) of the Act, Treasury’s regulations implementing that section, and guidance issued by Treasury regarding the foregoing.
Consultant agrees to provide the City, Treasury Office of Inspector General and the Government Accountability Office, or any of their authorized representatives access to any books, documents, papers, and records (electronic an otherwise) of the Consultant which are directly pertinent to this Agreement for the purposes of conducting audits or other investigations. Records shall be maintained by Consultant for a period of five (5) years after completion of the Project. (b) Compliance with Federal Regulations. Consultant agrees to comply with the requirements of section 603 of the Act, regulations adopted by Treasury pursuant to section 603(f) of the Act, and guidance issued by Treasury regarding the foregoing. Consultant also agrees to
comply with all other applicable federal statutes, regulations, and executive orders, including, without limitation, the following:
(i) Universal Identifier and System for Award Management (SAM), 2 C.F.R.
Part 25, pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 25 is hereby incorporated by reference.
(ii) Reporting Subaward and Executive Compensation Information, 2 C.F.R.
Part 170, pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 170 is hereby incorporated by reference.
(iii) OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement), 2 C.F.R. Part 180, including the requirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 C.F.R.
Part 180, subpart B) that the award is subject to 2 C.F.R. Part 180 and Treasury’s implementing regulation at 31 C.F.R. Part 19.
(iv) Recipient Integrity and Performance Matters, pursuant to which the award term set forth in 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference. (v) Governmentwide Requirements for Drug-Free Workplace, 31 C.F.R. Part
20. (vi) New Restrictions on Lobbying, 31 C.F.R. Part 21. (vii) Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C. §§ 4601-4655) and implementing regulations.
(c) Compliance with Federal Statutes and Regulations Prohibiting Discrimination.
Consultant agrees to comply with statutes and regulations prohibiting discrimination applicable to the CSLFRF program including, without limitation, the following:
(i) Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) and Treasury’s implementing regulations at 31 C.F.R. Part 22, which prohibit discrimination on the basis of race, color, or national origin under programs or activities receiving federal financial assistance.
(ii) The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. §§ 3601 et seq.), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability.
(iii) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discrimination on the basis of disability under any program or activity receiving federal financial assistance.
(iv) The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.), and Treasury’s implementing regulations at 31 C.F.R. Part 23, which prohibit discrimination on the basis of age in programs or activities receiving federal financial assistance. (v) Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. §§ 12101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
(d) False Statements. Consultant understands that making false statements or claims in connection with the CSLFRF program is a violation of federal law and may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from participating in federal awards or contracts, and/or any other remedy available by law.
(e) Protections for Whistleblowers.
(i) In accordance with 41 U.S.C. § 4712, Consultant may not discharge, demote, or otherwise discriminate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant. (ii) The list of persons and entities referenced in the paragraph above includes the following:
(1) A member of Congress or a representative of a committee of Congress;
(2) An Inspector General;
(3) The Government Accountability Office;
(4) A Treasury employee responsible for contract or grant oversight or management;
(5) An authorized official of the Department of Justice or other law enforcement agency;
(6) A court or grand jury; or
(7) A management official or other employee of Consultant, or a subcontractor who has the responsibility to investigate, discover, or address misconduct. (f) Increasing Seat Belt Use in the United States. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Consultant is encouraged to adopt and enforce on-the-job seat belt policies and programs for their employees when operating company-owned, rented or personally owned vehicles, and encourage its subcontractors to do the same (g) Reducing Text Messaging While Driving. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Consultant should encourage its employees and subcontractors to adopt and enforce policies that ban text messaging while driving, and Consultant should establish workplace safety policies to decrease accidents caused by distracted drivers. (h) Assurances of Compliance with Civil Rights Requirements. The Civil Rights Restoration Act of 1987 provides that the provisions of this assurance apply to the Project, including, but not limited to, the following:
(i) Consultant ensures its current and future compliance with Title VI of the Civil Rights Act of 1964, as amended, which prohibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs and activities receiving f ederal funds, of any person in the United States on the ground of race, color, or national origin (42 U.S.C. §
2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at 31 CFR Part 22 and other pertinent executive orders such as Executive Order 13166; directives; circulars; policies; memoranda and/or guidance documents.
(ii) Consultant acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency (LEP),” seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, are limited in their English proficiency. Consultant understands that the denial of access to persons to its programs, services and activities because of their limited proficiency in English is a form of national origin discrimination prohibited under Title VI of the Civil Rights Act of 1964. Accordingly, Consultant shall initiate reasonable steps, or comply with Treasury’s directives, to ensure meaningful access to its programs, services and activities to LEP persons. Consultant understands and agrees that meaningful access may entail providing language assistance services, including oral interpretation and written translation where necessary to ensure effective communication in the Project.
(iii) Consultant agrees to consider the need for language services for LEP persons during development of applicable budgets and when conducting programs, services and activities. As a resource, the Department of the Treasury has published its LEP guidance at 70 FR 6067. For more information on LEP, please visit http://www.lep.gov . (iv) Consultant acknowledges and agrees that compliance with this assurance constitutes a condition of continued receipt of federal financial assistance and is binding upon Consultant and Consultant’s successors, transferees and assignees for the period in which such assistance is provided.
(v) Consultant agrees to incorporate the following language in every contract or agreement subject to Title VI and its regulations between the Consultant and the Consultant’s subcontractors, successors, transferees and assignees:
The subcontractor, successor, transferee and assignee shall comply with Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from excluding from a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by Department of the Treasury Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement). Title VI also extends protection to persons with “Limited English proficiency” in any program or activity receiving federal financial assistance, 42 U.S.C. § 2000d et seq., as implemented by Department of the Treasury Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement).
(vi) Consultant understands and agrees that if any real property or structure is provided or improved with the aid of federal financial assistance by the Department of the Treasury, this assurance obligates the Consultant, or in the case of a subsequent transfer, the transferee, for the period during which the real property or structure is used for a purpose for which the federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. If any personal property is provided, this assurance obligates the Consultant for the period during which it retains ownership or possession of the property. (vii) Consultant shall cooperate in any enforcement or compliance review activities by the Department of the Treasury of the aforementioned obligations. Enforcement may include investigation, arbitration, mediation, litigation, and monitoring of any settlement agreements that may result from these actions. Consultant shall comply with information requests, on-site compliance reviews, and reporting requirements.
(viii) Consultant shall maintain a complaint log and inform the Department of the Treasury of any accusations of discrimination on the grounds of race, color, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Act of 1964 and implementing regulations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome. Consultant must also inform the Department of the Treasury if Consultant has received no complaints under Title VI. (ix) Consultant must provide documentation of an administrative agency’s or court’s findings of non-compliance of Title VI and efforts to address the non-compliance, including any voluntary compliance or other agreements between the Consultant and the administrative agency that made the finding. If the Consultant settles a case or matter alleging such discrimination, Consultant must provide documentation of the settlement. If Consultant has not been the subject of any court or administrative agency finding of discrimination, please so state. (x) If Consultant makes sub-awards to other agencies or other entities, Consultant is responsible for assuring that sub-recipients also comply with Title VI and all of the applicable authorities covered in this assurance.
-1-
PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF UPLAND AND
HINDERLITER, DE LLAMAS AND ASSOCIATES, INC.
1. PARTIES AND DATE.
This Agreement is made and entered into this 28th day of November, 2022, by and between the City of Upland, a municipal corporation, organized under the laws of the State of California ("City") and Hinderliter, De Llamas and Associates, Inc., with its principal place of business at 120 S. State College Blvd. Suite 200, Brea CA 92821 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing professional economic development consulting services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for the planning of and administrative support for a digital gift card program with Yiftee ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional economic development consulting necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
Additionally, Consultant shall comply with all Federal requirements applicable to the Services as set forth in Exhibit “D.” attached hereto and incorporated herein by reference.
3.1.2 Term. The term of this Agreement shall be for a 1 year period unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Responsibilities of Consultant.
3.2.1 Independent Contractor; Control and Payment of Subordinates. The
-2-
Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Any personnel performing the Services on behalf of Consultant shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Services in a prompt and timely manner and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows: Barry Foster, Principal/Managing Director and Ken Duran, Senior Advisor.
3.2.5 City's Representative. The City hereby designates Stephen Parker, Assistant City Manager, or his designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The City Administrator shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the provisions contained in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from any person other than the City Administrator, City's Representative or his/her designee.
3.2.6 Consultant's Representative. Consultant hereby designates Barry Foster, Principal/Managing Director, or his designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement.
The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with City staff
-3-
in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.
3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub - consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the Ci ty, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.9 Period of Performance. Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”).
Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
3.2.10 Laws and Regulations; Employee/Labor Certification. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.
All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.2.10.1 Employment Eligibility; Consultant. Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement.
3.2.10.2 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to
-4-
initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.2.10.3 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.2.10.4 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed.
3.2.11 Insurance.
3.2.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
3.2.11.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
(A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 0001, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement.
(B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office For m CA 0001 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence.
-5-
(C) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease.
3.2.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.
Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability. (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day wr itten notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(C) Workers' Compensation: (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
3.2.11.4 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
3.2.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
3.2.11.6 Deductibles and Self-Insured Retentions. Any deductible or self- insured retention must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they
-6-
would have been protected had the policy or policies not contained a deductible or self-insured retention.
3.2.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
3.2.11.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.2.11.9 Enforcement of Agreement Provisions (non estoppel).
Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.2.11.10 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.
3.2.11.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project.
-7-
(D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virt ue of this Agreement.
(E) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relie ve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.2.11.12 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
3.2.12 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority.
Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this Section, or any other relevant water quality law, regulation, or policy.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed Fifteen Thousand Dollars ($15,000.00) without written approval of the City Council
-8-
or City Manager as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. The City Manager will have authority to approve Extra Work within 10% of the total compensation.
3.3.2 Payment of Compensation. Consultant shall submit to City a quarterly invoice, no later than the fifteenth (15th) calendar day of each quarter, which indicates work completed and hours of Services rendered by Consultant during the prior month. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice. City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein.
Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.
3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.3.5 Rate Increases. In the event that this Agreement is renewed pursuant to Section 3.1.2, the rate set forth in Exhibit “C” may be adjusted at the time of renewal as set forth in Exhibit “C.”
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4.2 Registration/DIR Compliance. If the Services are being performed on a
-9-
public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the project and require the same of any subconsultants. This project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.
3.4.3 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5 Accounting Records.
3.5.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.6 General Provisions.
3.6.1 Termination of Agreement.
3.6.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause.
3.6.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
-10-
3.6.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.6.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Consultant: HdL Companies
120 S. State College Blvd. Suite 200
Brea, CA 91821
ATTN: Barry Foster, Principal/Managing Director
City: City of Upland
460 N. Euclid Avenue
Upland, California 91786
ATTN: Stephen Parker, Assistant City Manager
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notic e occurred, regardless of the method of service.
3.6.3 Ownership of Materials and Confidentiality.
3.6.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
3.6.3.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents &
-11-
Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
3.6.3.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the tim e they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.
3.6.3.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
3.6.3.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.6.3.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's le gal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.
Consultant shall have five (5) working days after receipt of the Release Notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal
-12-
action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of the Objection Notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.
3.6.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.6.5 Indemnification.
3.6.5.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
3.6.5.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.6.6 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.6.7 Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in Los Angeles County.
In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
-13-
3.6.8 Attorney’s Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney’s fees and all other costs of such action.
3.6.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.6.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.
3.6.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.6.12 Assignment; Subcontracting. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
3.6.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.6.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.6.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.6.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.6.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.6.18 Prohibited Interests. Consultant maintains and warrants that it has not
-14-
employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or ot her consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.6.19 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.6.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.6.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination
3.7 Federal Provisions
Funds from the Coronavirus State Fiscal Recovery Fund and/or the Coronavirus Local Fiscal Recovery Fund, together known as the Coronavirus State and Local Fiscal Recovery Funds (“CSLFRF”) program, will be used to fund all or a portion of this Agreement. As applicable, Consultant shall comply with all federal requirements including, but not limited to, the following, all of which are expressly incorporated herein by reference:
3.7.1 Sections 602 and 603 of the Social Security Act as added by Section 9901 of the American Rescue Plan Act of 2021 (the “Act”);
3.7.2 U.S. Department of the Treasury (“Treasury”) Final Rule for the Act;
3.7.3 Treasury Compliance and Reporting Guidance for the Act;
3.7.4 2 C.F.R. Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, other than such provisions as the U.S. Department of the Treasury may determine are inapplicable to the CSLFRF program and subject to such exceptions as may be otherwise provided by the U.S. Department of the Treasury;
3.7.5 Treasury Coronavirus Local Fiscal Recovery Fund Award Terms and Conditions; and
3.7.6 Federal contract provisions attached hereto as Exhibit “D”.
Subcontracts, if any, shall contain a provision making them subject to all of the provisions
-15-
stipulated in this Agreement. With respect to any conflict between such federal requirements and the terms of this Agreement and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control. [SIGNATURES ON NEXT PAGE]
-16-
SIGNATURE PAGE TO
PROFESSIONAL SERVICES AGREEMENT BY AND
BETWEEN THE CITY OF UPLAND AND HINDERLITER,
DE LLAMAS AND ASSOCIATES, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF UPLAND HINDERLITER, DE LLAMAS AND ASSOCIATES, INC.
By: ____________________________ By:________________________________ Michael Blay Andrew Nickerson
City Manager President/CEO
By:________________________________
Richard Park
CFO
(Two Signatures of Corporate Officers Required
For Corporations)
Attest: ____________________________
Keri Johnson
City Clerk
Approved as to Form:
______________________________
Stephen Deitsch
City Attorney
Exhibit “A”-1
EXHIBIT "A"
SCOPE OF SERVICES
Consultant shall provide services pursuant to the terms set forth in this agreement and formulate a plan for and the administration of a digital gift card program with Yiftee, including but not limited to the following components.
Assist the City in designing, developing, marketing and/or refining, plus administrative support for implementing and operating a digital gift card program with Yiftee. Helping the City to develop a strategy for spending limits, targeted business participants, plus marketing and outreach coordination with City staff and local business representatives for implementing and operating a shop local digital gift card program with Yiftee.
Exhibit B-1
EXHIBIT “B”
SCHEDULE OF SERVICES
Consultant shall complete the Services within the schedules agreed upon by the City and Consultant to complete the Services within the term of the Agreement.
Exhibit “C”-1
EXHIBIT "C"
COMPENSATION
Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth below for a total compensation amount not to exceed Fifteen Thousand Dollars ($15,000.00) over the term of the Agreement.
Hourly Consulting Rates
Staff Position Hourly Rate
Principal $250
Sr. Advisor $180
Analyst $100
Exhibit “D”-1
EXHIBIT “D”
FEDERAL CONTRACT PROVISIONS
During the performance of this Agreement, Consultant shall comply with all applicable federal laws and regulations including, but not limited to, the federal contract provisions in this Exhibit “D”.
1. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APPENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (2 C.F.R. § 200.327)
(a) Appendix II to Part 200 (A); Appendix II to Part 200 (B): Remedies for Breach; Termination for Cause/Convenience. The Contract Documents include remedies for breach and termination for cause and convenience.
(b) Appendix II to Part 200 (C) – Equal Employment Opportunity: If this Agreement meets the definition of a “federal assisted construction contract” in 41 CFR § 60-1.3, Consultant agrees as follows during the performance of this Agreement:
(i) The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Consultant will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(ii) The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(iii) The Consultant will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Consultant's legal duty to furnish information. (iv) The Consultant will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding , a notice to be provided advising the said labor union or workers' representatives of the Consultant's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(BB&K 2017)
Exhibit “D”-2
(v) The Consultant will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (vi) The Consultant will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(vii) In the event of the Consultant's noncompliance with the nondiscrimination clauses of this Agreement or with any of the said rules, regulations, or orders, this Agreement may be canceled, terminated, or suspended in whole or in part and the Consultant may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(viii) The Consultant will include the portion of the sentence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Consultant will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event the Consultant becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Consultant may request the United States to enter into such litigation to protect the interests of the United States.
The City further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work:
Provided, That if the City so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the Agreement.
The City agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of the Consultant and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The City further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors
(BB&K 2017)
Exhibit “D”-3
by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the City agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: cancel, terminate, or suspend in whole or in part the grant (contract, loan, insurance, guarantee) for this project; refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
(c) Appendix II to Part 200 (D) – Davis-Bacon Act: Not applicable to this Agreement since it is funded by CSLFRF.
(d) Appendix II to Part 200 (D) – Copeland “Antti-Kickback” Act: Not applicable to this Agreement since it is funded by CSLFRF.
(e) Appendix II to Part 200 (E) – Contract Work Hours and Safety Standards Act:
(i) Overtime Requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (ii) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (ii) of this section the Consultant and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (ii) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (ii) of this section. (iii) Withholding for unpaid wages and liquidated damages. The City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Consultant or subcontractor under any such contract or any other Federal contract with the Consultant, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the Consultant, such sums as may be determined to be necessary to satisfy any liabilities of Consultant or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (iii) of this section. (iv) Subcontracts. The Consultant or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (ii) through (v) of this Section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Consultant shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (ii) through (v) of this Section.
(BB&K 2017)
Exhibit “D”-4
(f) Appendix II to Part 200 (F) – Rights to Inventions Made Under a Contract or Agreement: If the Federal award meets the definition of “funding agreement” under 37 CFR § 401.2 (a) and the Consultant wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the Consultant must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.. (g) Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act:
(i) Pursuant to the Clean Air Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
(ii) Pursuant to the Federal Water Pollution Control Act, (1) Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Consultant agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Consultant agrees to include these requirements in each subcontract exceeding $150,000.
(h) Appendix II to Part 200 (H) – Debarment and Suspension:
(i) This Agreement is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Consultant is required to verify that none of the Consultant, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). (ii) Consultant must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
(iii) This certification is a material representation of fact relied upon by City. If it is later determined that Consultant did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. (iv) Consultant warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Consultant also agrees to verify that all subcontractors performing work under this Agreement are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above. Consultant
(BB&K 2017)
Exhibit “D”-5
further agrees to notify the City in writing immediately if Consultant or its subcontractors are not in compliance during the term of this Agreement.
(i) Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act: Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency. (j) Appendix II to Part 200 (J) – §200.323 Procurement of Recovered Materials:
(i) Consultant shall comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement. (ii) In the performance of this Agreement, the Consultant shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired: competitively within a timeframe providing for compliance with the contract performance schedule; meeting contract performance requirements; or at a reasonable price. (iii) Information about this requirement, along with the list of EPA-designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program . (iv) The Consultant also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.” (k) Appendix II to Part 200 (K) – §200.216 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment:
(i) Consultant shall not contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system funded under this Agreement. As described in Public Law 115–232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). (1) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications
(BB&K 2017)
Exhibit “D”-6
Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
(2) Telecommunications or video surveillance services provided by such entities or using such equipment.
(3) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
(ii) See Public Law 115-232, section 889 for additional information. (l) Appendix II to Part 200 (L) – §200.322 Domestic Preferences for Procurement:
(i) Consultant shall, to the greatest extent practicable, purchase, acquire, or use goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subcontracts.
(ii) For purposes of this section:
(1) “Produced in the United States’’ means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(2) ‘‘Manufactured products’’ means items and construction materials composed in whole or in part of nonferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
2. CONTRACTING WITH SMALL AND MINORITY FIRMS, WOMEN’S BUSINESS ENTERPRISE AND LABOR SURPLUS AREA FIRMS (2 C.F.R. § 200.321) (a) Consultant shall be subject to 2 C.F.R. § 200.321 and will take affirmative steps to assure that minority firms, women’s business enterprises, and labor surplus area firms are used when possible and will not be discriminated against on the grounds of race, color, religious creed, sex, or national origin in consideration for an award.
(b) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and women's business enterprises on solicitation lists;
(ii) Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources;
(BB&K 2017)
Exhibit “D”-7
(iii) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises;
(iv) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises; and (v) Using the services/assistance of the Small Business Administration (SBA), and the Minority Business Development Agency (MBDA) of the Department of Commerce. (c) Consultant shall submit evidence of compliance with the foregoing affirmative steps when requested by the City.
3. COMPLIANCE WITH U.S. DEPARTMENT OF THE TREASURY CORONAVIRUS
LOCAL FISCAL RECOVERY FUND AWARD TERMS AND CONDITIONS
(a) Maintenance of and Access to Records. Consultant shall maintain records and financial documents sufficient to evidence compliance with section 603(c) of the Act, Treasury’s regulations implementing that section, and guidance issued by Treasury regarding the foregoing.
Consultant agrees to provide the City, Treasury Office of Inspector General and the Government Accountability Office, or any of their authorized representatives access to any books, documents, papers, and records (electronic an otherwise) of the Consultant which are directly pertinent to this Agreement for the purposes of conducting audits or other investigations. Records shall be maintained by Consultant for a period of five (5) years after completion of the Project. (b) Compliance with Federal Regulations. Consultant agrees to comply with the requirements of section 603 of the Act, regulations adopted by Treasury pursuant to section 603(f) of the Act, and guidance issued by Treasury regarding the foregoing. Consultant also agrees to comply with all other applicable federal statutes, regulations, and executive orders, including, without limitation, the following:
(i) Universal Identifier and System for Award Management (SAM), 2 C.F.R.
Part 25, pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 25 is hereby incorporated by reference.
(ii) Reporting Subaward and Executive Compensation Information, 2 C.F.R.
Part 170, pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 170 is hereby incorporated by reference.
(iii) OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement), 2 C.F.R. Part 180, including the requirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 C.F.R.
Part 180, subpart B) that the award is subject to 2 C.F.R. Part 180 and Treasury’s implementing regulation at 31 C.F.R. Part 19.
(iv) Recipient Integrity and Performance Matters, pursuant to which the award term set forth in 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference. (v) Governmentwide Requirements for Drug-Free Workplace, 31 C.F.R. Part
20.
(BB&K 2017)
Exhibit “D”-8
(vi) New Restrictions on Lobbying, 31 C.F.R. Part 21.
(vii) Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C. §§ 4601-4655) and implementing regulations.
(c) Compliance with Federal Statutes and Regulations Prohibiting Discrimination.
Consultant agrees to comply with statutes and regulations prohibiting discrimination applicable to the CSLFRF program including, without limitation, the following:
(i) Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) and Treasury’s implementing regulations at 31 C.F.R. Part 22, which prohibit discrimination on the basis of race, color, or national origin under programs or activities receiving federal financial assistance.
(ii) The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. §§ 3601 et seq.), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability.
(iii) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discrimination on the basis of disability under any program or activity receiving federal financial assistance.
(iv) The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.), and Treasury’s implementing regulations at 31 C.F.R. Part 23, which prohibit discrimination on the basis of age in programs or activities receiving federal financial assistance. (v) Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. §§ 12101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
(d) False Statements. Consultant understands that making false statements or claims in connection with the CSLFRF program is a violation of federal law and may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and penalt ies, debarment from participating in federal awards or contracts, and/or any other remedy available by law.
(e) Protections for Whistleblowers.
(i) In accordance with 41 U.S.C. § 4712, Consultant may not discharge, demote, or otherwise discriminate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant. (ii) The list of persons and entities referenced in the paragraph above includes the following:
(BB&K 2017)
Exhibit “D”-9
(1) A member of Congress or a representative of a committee of Congress;
(2) An Inspector General;
(3) The Government Accountability Office;
(4) A Treasury employee responsible for contract or grant oversight or management;
(5) An authorized official of the Department of Justice or other law enforcement agency;
(6) A court or grand jury; or
(7) A management official or other employee of Consultant, or a subcontractor who has the responsibility to investigate, discover, or address misconduct. (f) Increasing Seat Belt Use in the United States. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Consultant is encouraged to adopt and enforce on-the-job seat belt policies and programs for their employees when operating company-owned, rented or personally owned vehicles, and encourage its subcontractors to do the same (g) Reducing Text Messaging While Driving. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Consultant should encourage its employees and subcontractors to adopt and enforce policies that ban text messaging while driving, and Consultant should establish workplace safety policies to decrease accidents caused by distracted drivers. (h) Assurances of Compliance with Civil Rights Requirements. The Civil Rights Restoration Act of 1987 provides that the provisions of this assurance apply to the Project, including, but not limited to, the following:
(i) Consultant ensures its current and future compliance with Title VI of the Civil Rights Act of 1964, as amended, which prohibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs and activities receiving federal funds, of any person in the United States on the ground of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at 31 CFR Part 22 and other pertinent executive orders such as Executive Order 13166; directives; circulars; policies; memoranda and/or guidance documents.
(ii) Consultant acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency (LEP),” seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, are limited in their English proficiency. Consultant understands that the denial of access to persons to its programs, services and activities because of their limited proficiency in English is a form of national origin discrimination prohibited under Title VI of the Civil Rights Act of 1964. Accordingly, Consultant shall initiate reasonable steps, or comply with Treasury’s directives, to ensure meaningful access to its programs, services and activities to LEP persons. Consultant understands and agrees that meaningful access may entail providing language assistance
(BB&K 2017)
Exhibit “D”-10
services, including oral interpretation and written translation where necessary to ensure effective communication in the Project.
(iii) Consultant agrees to consider the need for language services for LEP persons during development of applicable budgets and when conducting programs, services and activities. As a resource, the Department of the Treasury has published its LEP guidance at 70 FR 6067. For more information on LEP, please visit http://www.lep.gov . (iv) Consultant acknowledges and agrees that compliance with this assurance constitutes a condition of continued receipt of federal financial assistance and is binding upon Consultant and Consultant’s successors, transferees and assignees for the period in which such assistance is provided.
(v) Consultant agrees to incorporate the following language in every contract or agreement subject to Title VI and its regulations between the Consultant and the Consultant’s subcontractors, successors, transferees and assignees:
The subcontractor, successor, transferee and assignee shall comply with Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from excluding from a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by Department of the Treasury Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement). Title VI also extends protection to persons with “Limited English proficiency” in any program or activity receiving federal financial assistance, 42 U.S.C. § 2000d et seq., as implemented by Department of the Treasury Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement).
(vi) Consultant understands and agrees that if any real property or structure is provided or improved with the aid of federal financial assistance by the Department of the Treasury, this assurance obligates the Consultant, or in the case of a subsequent transfer, the transferee, for the period during which the real property or structure is used for a purpose for which the federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. If any personal property is provided, this assurance obligates the Consultant for the period during which it retains ownership or possession of the property. (vii) Consultant shall cooperate in any enforcement or compliance review activities by the Department of the Treasury of the aforementioned obligations. Enforcement may include investigation, arbitration, mediation, litigation, and monitoring of any settlement agreements that may result from these actions. Consultant shall comply with information requests, on-site compliance reviews, and reporting requirements. (viii) Consultant shall maintain a complaint log and inform the Department of the Treasury of any accusations of discrimination on the grounds of race, color, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Act of 1964 and implementing regulations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome. Consultant must also inform the Department of the Treasury if Consultant has received no complaints under Title VI.
(BB&K 2017)
Exhibit “D”-11
(ix) Consultant must provide documentation of an administrative agency’s or court’s findings of non-compliance of Title VI and efforts to address the non-compliance, including any voluntary compliance or other agreements between the Consultant and the administrative agency that made the finding. If the Consultant settles a case or matter alleging such discrimination, Consultant must provide documentation of the settlement. If Consultant has not been the subject of any court or administrative agency finding of discrimination, please so state. (x) If Consultant makes sub-awards to other agencies or other entities, Consultant is responsible for assuring that sub-recipients also comply with Title VI and all of the applicable authorities covered in this assurance.