HomeMy WebLinkAboutFCEOC - Coordination Agreement - 03.17.2022WASTE TIRE AMNESTY COLLECTION PROGRAM
COORDINATION AGREEMENT
BETWEEN
CITY OF FRESNO
AND
FRESNO COUNTY ECONOMIC OPPORTUNITIES COMMISSION
THIS AGREEMENT is made and entered into effective this t] +II day of
:YY)AjLC,/-1 , 2022, by and between the FRESNO COUNTY ECONOMIC
OPPORTUNITIES COMMISSION, a California nonprofit public benefit corporation
(Contractor), and the CITY OF FRESNO, a California municipal corporation (City), and
pertains to the Local Government Waste Tire Amnesty Grant Program, Fiscal Year 2022-
2023, (Grant Program).
RECITALS
WHEREAS, the City and the Contractor desire to memorialize the ongoing
coordinated efforts of the City and the Contractor as it pertains to the Grant Program; and
WHEREAS, the Grant Program requires the City and the Contractor to enter into
a coordination agreement; and
WHEREAS, the City and the Contractor have worked closely together during the
past several years to provide free and convenient waste tire collection events for the
public whereby the public is encouraged to bring in waste tires as part of the Waste Tire
Amnesty Collection Program Events (Tire Amnesty Events);
WHEREAS, this coordination agreement outlines the active roles of the City and
the Contractor as it pertains to the Tire Amnesty Events.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and promises hereinafter contained to be kept and performed by the
respective parties, the parties hereby agree as follows:
1. City's Obl igatio ns. The City shall:
(i) Provide staffing for the Tire Amnesty Events, which will include a
sufficient number of City employees to efficiently conduct each Tire
Amnesty Event;
(ii) Coordinate Tire Amnesty Event efforts with the Contractor's
employees;
(iii) Be responsible for the cost of hauling and disposing waste tires
collected at the Tire Amnesty Events;
(iv) Coordinate efforts with the Contractor to advertise and promote each
Tire Amnesty Event as described in Section 5 of this Agreement;
(v) Coordinate efforts with the Contractor to locate and secure sites
where Tire Amnesty Events will be held; and
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(vi) Coordinate efforts with the Contractor to provide active event
orientation and training to the Contractor's personnel, including
laborers, during each Tire Amnesty Event.
2. Contractor's Obligations. The Contractor shall:
(i) Provide staffing for the Tire Amnesty Events, which will include a
minimum of six contractor employees, to effectively conduct each
Tire Amnesty Event:
Actively cooperate in coordinating efforts with the City to advertise
and promote each Tire Amnesty Event as described in Section 5 of
this Agreement; and
(iii) Cooperate in staffing each event appropriately with qualified
personnel.
3. Term of Agreement. This Agreement shall be effective from the date first
set forth above (Effective Date) and shall continue in full force and effect through
September 30, 2023, subject to any earlier termination in accordance with this
Agreement.
4. Termination . Remedies , and Force Majeure.
(a) This Agreement shall terminate without any liability of the City to the
Contractor upon the earlier of: (i) the Contractor's filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third
party against the Contractor; (ii) seven calendar days prior written notice with or without
cause by the City to the Contractor; (iii) the City's non-appropriation of funds sufficient to
meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient
funding for the Grant Program; or (iv) expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement,
the Contractor shall immediately stop all work hereunder.
5. Tire Amnestv Event Promotion. The Tire Amnesty Events will be advertised
and promoted in the following manner:
(i) On the radio through public service announcements;
(ii) On television through public service announcements;
(iii) On social media platforms including, but not limited to Facebook,
Twitter, and the City of Fresno's website; and
(iv) In print media through announcements in a local newspaper.
6. Indemnification. The City shall indemnify, hold harmless, and defend the
Contractor and each of its officers, officials, employees, agents, and volunteers from any
and all loss, liability, fines, penalties, forfeitures, costs, and damages (whether in contract,
tort, or strict liability, including but not limited to personal injury, death at any time, and
property damage) incurred by the Contractor, the City, or any other person, and from any
and ali claims, demands, and actions in law m equity (including attorney's fees and
litigation expenses), arising or alleged to have arisen directly or indirectly from the
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officers, officials, employees, agents, or volunteers in the performance of this Agreement,
provided nothing herein shall constitute a waiver by the City of governmental immunities
including California Government Code section 810 et seq.
The Contractor shall indemnify, hold harmless, and defend the City and each of its
officers, officials, employees, agents, volunteers and subcontractors from any and all loss,
liability, fines, penalties, forfeitures, costs, and damages (whether in contract, tort, or strict
liability, including but not limited to personal injury, death at any time, and property
damage) incurred by the City, the Contractor, or any other person, and from any and all
ciairns, demands, and actions in law or ·equity (including attorney's fees and litigation
expenses), arising or alleged to have arisen directly or indirectly from the negligent or
intentional acts or omissions, or willful misconduct of the Contractor or any of its officers,
officials, employees, agents, volunteers or subcontractors in the performance of this
Agreement.
In the event of concurrent negligence on the part of the City, or any of its officers,
officials, employees, agents, or volunteers, and the Contractor, or any of its officers,
officials, employees, agents, volunteers or subcontractors, the liability for any and all such
claims, demands, and actions in law or equity for such losses, fines, penalties, forfeitures,
costs, and damages shall be apportioned under the State of California's theory of
comparative negligence as presently established or as may be modified hereafter.
This section shall survive termination or expiration of this Agreement.
7. Insurance.
(a) Throughout the life of this Agreement, the Contractor shall pay for
and maintain in full force and effect all insurance as required in Exhibit A, which is
incorporated into and part of this Agreement, with an insurance company(ies) either (i)
admitted by the California Insurance Commissioner to do business in the State of
California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as
may be authorized in writing by the City's Risk Manager or his/her designee at any time
and in his/her sole discretion. The required policies of insurance as stated in Exhibit A
shall maintain limits of liability of not less than those amounts stated therein. However,
the insurance limits available to the City, its officers, officials, employees, agents, and
volunteers as additional insureds, shall be the greater of the minimum limits specified
therein or the full limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension, the
Contractor or any of its subcontractors/sub-consultants fail to maintain any required
insurance in full force and effect, al! services and work under this Agreement shall be
discontinued immediately, and all payments due or that become due to the Contractor
shall be withheld until notice is received by the City that the required insurance has been
restored to full force and effect and that the premiums therefore have been paid for a
period satisfactory to the City. Any failure to maintain the required insurance shall be
sufficient cause for the City to terminate this Agreement. No action taken by the City
pursuant to this section shall in any way relieve the Contractor of its responsibilities under
this Agreement. The phrase "fail to maintain any required insurance" shall include, without
limitation, notification received by the City that an insurer has commenced proceedings,
or has had proceedings commenced against it, indicating that the insurer is insolvent.
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(c) The fact that insurance is obtained by the Contractor shall not be
deemed to release or diminish the liability of the Contractor, including, without limitation,
liability under the indemnity provisions of this Agreement. The duty to indemnify the City
shall apply to all ·claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of indemnification
to be provided by the Contractor. Approval or purchase of any insurance contracts or
policies shall in no way relieve from liability nor limit the liability of the Contractor, its
principals, officers, agents, employees, persons under the supervision of the Contractor,
vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone
employed directly or indirectly by any of them.
(d) If the Contractor should subcontract all or any portion of the services
to be performed under this Agreement, the Contractor shall require each
subcontractor/sub-consultant to provide insurance protection, as an additional insured, to
the City and each of its officers, officials, employees, agents, and volunteers in
accordance with the terms of this section, except that any required certificates and
applicable endorsements shall be on file with the Contractor and the City prior to the
commencement of any services by the subcontractor. The Contractor and any
subcontractor/sub-consultant shall establish additional insured status for the City, its
officers, officials, employees, agents, and volunteers by using Insurance Service Office
(ISO) form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 3710 01 or by an executed
manuscript company endorsement providing additional insured status as broad as that
contained in ISO Form CG 20 10 1185.
8. Governing Law and Venu e. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction. Venue
for purposes of the filing of any action regarding the enforcement or interpretation of this
Agreement and any rights and duties hereunder shall be Fresno County, California.
9. Headings . The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain, modify, or add to
the interpretation or meaning of the provisions of this Agreement.
10. Severab i lity. The provisions of this Agreement are severable. The invalidity
or unenforceability of any one provision in this Agreement shall not affect the other
provisions.
11. Interpretation. The parties acknowledge that this Agreement in its final form
is the result of the combined efforts of the parties and that, should any provision of this
Agreement be found to be ambiguous in any way, such ambiguity shall not be resoived
by construing this Agreement in favor of or against either party, but rather by construing
the terms in accordance with their generally accepted meaning.
12. Attorney 's Fees . If either party is required to commence any proceeding or
legal action to enforce or interpret any term, covenant, or condition of this Agreement, the
prevailing party in such proceeding or action shall be entitled to recover from the other
party its reasonable attorney's fees and legal expenses.
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13. Exhibits. Each exhibit and attachment referenced •in this Agreement is, by
the reference, incorporated into and made a part of this Agreement.
14. Precedence of Document s. In the event of any conflict between the body
of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the
body of this Agreement shall control and take precedence over the terms and conditions
expressed within the Exhibit or Attachment. Furthermore, any terms or conditions
contained within any Exhibit or Attachment hereto which purport to modify the allocation
of risk between the parties, provided for within the body of this Agreement, shall be null
and void.
15. Cumulat ive Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
16. Extent of A greement. Each party acknowledges they have read and fully
understand the contents of this Agreement. This Agreement represents the entire and
integrated agreement between the parties with respect to the subject matter hereof and
supersedes all prior negotiations, representations, or agreements, either written or oral.
This Agreement may be modified only by written instrument duly authorized and executed
by both the City and the Contractor.
17. Cou nterparts . This Agreement may be executed in any number of copies
by the parties to this Agreement on separate counterparts and will become effective upon
signature by all parties upon one or more of such counterparts.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written .
CITY OF FRESNO,
a California municipal ,oor p rati on
a;l ~)Q__,· an\;;;rena
Chief Assistant City Attorney
Code Enforcement
ATTEST:
TODD STERMER, CMC
Clerk
By
City ~ __:z(
e,c:; epu ~
APPROVED AS TO FORM :
DOUGLAS T. SL N
City
By: .t-:-_~~====~L--~ f-!-J-1.~-
randon M. Collet
Senior Deputy City Attorney
Addresses :
CITY:
City of Fresno
Attention: Christina Pasillas
2600 Fresno Street Room 3076
Fresno, CA 93721
Phone: (559) 621-8400
FAX: (559) 488-1078
FRESNO COUNTY ECONOMIC
OPPORTUNITIES COMMISSION,
a California nonprofit public benefit
corporation
By: {Jktu. 7f,,s
Emilia Reyes
Chief Executive Officer
CONTRACTOR:
Fresno County Economic Opportunities
Commission
Attention:
1920 Mariposa Mall, Suite 300
Fresno, CA 93721
Phone: (559) 263-1100
FAX:
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Exhibit A
INSURANCE REQUIREMENTS
Waste TireAmnesty Collection Program Coordination Agreement
between City of Fresno ("City")
and Fresno County Economic Opportunities Commission ("Contractor")
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial
General Liability Coverage Form CG 00 01 , providing liability cove rage
arising out of your business operations. The Commercial General Liability
policy shall be written on an occurrence form and shall provide coverage for
"bodily injury," "property damage," and "personal and advertising injury" with
coverage for premises and operations (including the use of owned and non
owned equipment), products and completed operations, and contractual
liability (including, without limitation, indemnity obligations under the
Agreement) with limits of liability not less than those set forth under "Minimum
Limits of Insurance."
2. The most current version of ISO *Commercial Auto Coverage Form CA 00
01, providing liability coverage arising out of the ownership, maintenance or
use of automobiles in the course of your business operations. The
Automobile Policy shall be written on an occurrence form and shall
provide coverage for all owned, hired , and non-owned automobiles or
other licensed vehicles (Code 1-Any Auto). lfpersonal automobile coverage
is used, the City, its officers, officials, employees, agents, and volunteers
are to be listed as additional insureds .
3. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
MINIMU M LIMITS OF INSURANCE
The Contractor shall procure and maintain for the duration of the contract, and for five
years thereafter, insurance with limits of liability not less than those set forth below. However,
insurance limits available to the City, its officers, officials, employees, agents, and volunteers
as additional insureds, shall be the greater of the minimum limits specified herein or the full
limit of any insurance proceeds available to the named insured:
1. COMMERCIAL GENERAL LIA BILITY:
(i) $1 ,000,000 peroccurrencefor bodily injury and property damage;
(ii) $1,000,000 peroccurrenceforpersonal and advertising injury;
(i) $2,000 ,000 aggregate for products and completed operations; and,
(w) $2,000,000 general aggregate applying separately to t he work
performed under the Agreement.
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2. COMMERCIALAUTOMOBI LE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS' COMPENSATION IN SURANCE as required by the State of
California with statutory limits and EMPLOYER'S LIABILITY with limits of
liability not less than:
(i) $1,000,000 each accident for bodily injury;
(i) $1,000,000 disease each employee; and,
(i) $1,000,000 disease policy limit.
UMBRELLA OR E XCESS INSURANCE
In the event the Contractor purchases an Umbrella or Excess insurance policy(ies) to
meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and
afford no less coverage than the primary insurance policy(ies). In addition, such
Umbrella or Excess insurance policy(ies) shall also apply on a primary and non
contributory basis for the benefit of the City, ~s officers, officials, employees, agents,
and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
The Contractor shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and the Contractor shall also be responsible for
payment of any self-insured retentions. Any deductibles or self-insured retentions must
be declared on the Certificate of Insurance, and approved by, the City's Risk Manager or
his/herdesignee. Atthe option of the City's Risk Manager or his/herdesignee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the City, its officers, officials, employees, agents, and
volunteers; or
(ii) The Contractor shall provide a financial guarantee, satisfactory to the
City's Risk Manager or his/her designee, guaranteeing payment of losses
and related investigations, claim administration and defense expenses. At
no time shall the City be responsible for the payment of any deductibles or
self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
(i) A// policies of Insurance required herein shall be endorsed to provide that
the coverage shall not be cancelled, non-renewed, reduced in coverage or in
limits except after thi rty calendar days' written notice has been given to the
City, except ten days for nonpayment of pre m ium. The Contractor is also
responsible fo r providing written notice to the City under the sa m e terms
and conditions. Upon issuance by the insurer, broker, or agent of a notice
of cancellation, non-renewal, or reduction in coverage or in li m its, the
Contractor shall furnish the City with a new certificate and applicable
endorsements for such poiicy(ies). !nthe event any policy is due to expire
during the work to be performed for the City, the Contractor shall provide a
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new certificate, and applicable endorsements, evidencing renewal of such
policy not less than fifteen calendar days prior to the expiration date of the
expiring policy.
(ii) The Commercial General and Automobile Liability insurance policies shall
be written on an occurrence form.
(iii) The Commercial General and Automobile Liability insurance policies shall
be endorsed to name City, its officers, officials, agents, employees, and
volunteers as an additional insured. The Contractor shall establish
additional insured status for the City and for all ongoing and completed
operations under both Commercial General and Commercial Pollution
Liability policies by use of ISO Forms or an executed manuscript insurance
company endorsement providing additional insured status. The Commercial
General endorsements must be as broad as that contained in ISO Forms:
GC 20 101185 or both CG 20 10and CG 2037.
(iv) All such policies of insurance shall be endorsed so the Contractor's
insurance shall be primary and no contribution shall be required of the
City. The coverage shall contain no special limitations on the scope of
protection afforded to the City, its officers, officials, employees, agents,
and volunteers. If the Contractor maintains higher limits of liability than
the minimums shown above , the City requires and shall be entitled to
coverage for the higher limits of liability maintained by the Contractor.
(v) Should any of these policies provide that the defense costs are paid within
the Limits of Liability, thereby reducing the available limits by defense
costs, then the requirement for the Limits of Liability of these polices will be
twice the above stated limits.
(vi) For any claims related to this Agreement, the Contractor's insurance
coverage shall be primary insurance with respect to the CITY, its officers,
officials, agents, employees, and volunteers. Any insurance or self
insurance maintained by the City, its officers, officials, agents, employees,
and volunteers shall be excess of the Contractor's insurance and shall not
contribute with it.
(vii) The Workers' Compensation insurance policy shall contain, or be endorsed
to contain, a waiver of subrogation as to the City, its officers, officials,
agents, employees, and volunteers.
PROVIDING OF DOCUMENTS: The Contractor shall furnish the City with all
certificate(s) and applicable endorsements effecting coverage required herein. Jrn
certificates and applicable endorsements are to be re ceived a!1ldl approved by the
City's Risk Manager or his/her designee prior to the City's execution of the
Agree m ent and be fo tre work commences. All non-ISO endorsements amending policy
coverage shall be executed by a licensed and authorized agent or broker. Upon request
of th e C ity , th e Co ntractor sha ll imme di atel y furnish the City with a complete copy of any
insurance po li cy re quired under this Agreem ent , including all endorsements, with said
copy certified by the underwriter to be a true and correct copy of the original policy. Tl1is
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requirement shall survive expiration or termination of this Agreement. All subcontractors
working under the direction of the Contractor shall also be required to provide all
documents noted herein.
M A INTE N A N CE OF COVERAGE : lfat any time during the life of the Agreement or
any extension, the Contractor or any of its subcontractors fail to maintain any
required insurance in full force and effect, all work under this Agreement shall be
discontinued immediately until notice is received by the City that the required
insurance has been restored to full force and effect and that the premiums therefore
have been paid for a period satisfactory to the City. Any failure to maintain the
required insurance shall be sufficient cause for the City to terminate this
Agree m ent. No action taken by the City hereunder shall in any way re lieve the
Contractor of its responsibilities under this Agreement. The phrase "fail to maintain
any required insurance" shall include, without limitation, notification received by the
City that an insurer has commenced proceedings, or has had proceedings commenced
against it, indicating that the insurer is insolvent.
The fact that insurance is obtained by the Contractor shall not be deemed to release or
diminish the liability of the Contractor, including, without limitation, liability under the
indemnity provisions of this Agreement. The duty to indemnify the City shall apply to all
claims and liability regardless of whether any insurance policies are applicable. The
policy limits do not act as a limitation upon the amount of indemnification to be provided
by the Contractor. Approval or purchase of any insurance contracts or policies shall in
no way relieve from liability nor limit the liability of the Contractor, its principals,
officers, agents, employees, persons under the supervision of the Contractor, vendors,
suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed
directly or indirectly byanyofthem.
SUBCONTRACTORS: f the Contractor subcontracts any or all of the services to be
performed under this Agreement, the Contractor shall require, at the discretion of the
City's Risk Manager or designee, subcontractor(s) to enter into a separate Side
Agreement with the City to provide required indemnification and insurance protection.
Any required Side Agreement(s) and associated insurance documents for the
subcontractor must be reviewed and preapproved by the City's Risk Manager or
designee. lfno Side Agreement is required, the Contractor shall require and verify that
subcontractors maintain insurance meeting all the requirements stated herein and the
Contractor shall ensure that the City, its officers, officials, employees, agents, and
volunteers are additional insureds. The subcontractors' certificates and endorsements
shall be on file with the Contractor, and the City, prior to commencement of any work by
the subcontractor.
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AGREEMENT
BY AND BETWEEN
THE CITY OF FRESNO AND
Housing Authority City of
Fresno FOR THE
ADMINISTRATION OF
CORONAVIRUS HEARTH EMERGENCY SOLUTIONS GRANT FUNDS
(E-20-MW-06-0001)
THIS AGREEMENT is made and entered into effective upon execution by both parties, by
and between the CITY OF FRESNO (the CITY), and Housing Authority City of Fresno
(the SUBRECIPIENT), to provide a functioning Homeless Management Information
System (HMIS).
RECITALS
WHEREAS, the United States Department of Housing and Urban Development
(HUD has provided an allocation of HEARTH Emergency Solutions Grant-Coronavirus
(HESG or ESG) funds to the CITY under Coronavirus Aid, Relief and Economic Security
Act (CARES Act) (Public Law 116-136) to protect the health and safety of people
experiencing homelessness and reduce the spread of the COVID-19 outbreak; and
WHEREAS, the SUBRECIPIENT will provide a functioning Homeless
Management Information System for the purpose of gathering and analyzing
community data to assess the effectiveness of the homeless response system and
inform decision making on housing and service needs for individuals/families
impacted by COVID-19 and experiencing homelessness; and
WHEREAS, the SUBRECIPIENT hereby represents that it desires to and is
professionally and legally capable of operating the Homeless Management Information
System in a manner consistent with HUD and CITY requirements; and
WHEREAS, this Agreement will be administered for the City by its City Manager
through the Planning and Development Department, Division of Housing and Community
Development or other designee of the City Manager.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions and premises hereinafter combined to be kept and performed by the
respective Parties, it is mutually, agreed as follows:
ARTICLE 1
DEFINITIONS. Wherever used in this Agreement or any of the contract documents, the
following words shall have the meaning herein given, unless the context requires a
different meaning.
A. "ACT" -24 CFR Part 576 et seq. as revised by the Emergency Solutions Grant
and Consolidated Plan Conforming Amendments Interim Rule, published in the Federal
Register on December 5, 2011 (76 Fed. Reg. 75954).
B. "Administrator" and "Contract Administrator" shall mean the Manager of the
1
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Housing and Community Development Division of the Planning and Development
Department of CITY or other designee of the City Manager.
C. "Budget" shall mean SUBRECIPIENT's Cost Proposal submitted with the Bid
Proposal.
D. "CARES ACT" shall mean Coronavirus Aid, Relief and Economic Security Act
(CARES Act) (Public Law 116-136)
E. "City Manager'' shall mean the City Manager of the CITY.
F. "Contract" or "Contract Documents" shall mean and refer to this Agreement
including its exhibits.
G. "ESG" or "HESG" shall mean the HEARTH Emergency Solutions Grant as set
forth in the ACT.
H. "ESG-CV" shall mean the Emergency Solutions Grant provisions as set forth in
the CARES ACT.
I. "HMIS" means the Homeless Management Information System. HMIS is the
information system designated by the local Continuum of Care (CoC) to comply with the
requirements of CoC Program interim rule 24 CFR 578. It is a locally-administered data
system used to record and analyze client, service, and housing data for individuals and
families who are homeless or at risk of homelessness.
J. "Program" shall mean services provided under the Federal funding source.
K. "Program Component" shall mean the five program components of: Street
Outreach, Emergency Shelter, Rapid Rehousing, Homelessness Prevention, and HMIS
as more fully described at 24 CFR 576.101 through 576.107. Administration of the
program is an activity and not a Program Component.
L. "Program income" for the specific purpose of this Agreement shall be as defined
in the ACT. Unless otherwise provided for in the ACT, program income shall include any
and all gross income earned by or accruing to SUBRECIPIENT in its pursuit hereof
provided that the term program income does not include rebates, credits, discounts
or refunds realized by SUBRECIPIENT in its pursuit hereof.
M. "Progressive Expenditure Deadlines" for the specific purpose of this Agreement,
100% of the grant award shall be expended by March 31, 2022. Failure to meet these
deadlines will result in the recapture of an amount equal to the difference between the
required expenditure by the applicable deadline and the actual expenditure by the
applicable deadline.
N. "Progressive Reimbursement Request Deadlines" for the specific purpose of this
Agreement, the SUBRECIPIENT's requests for reimbursement of eligible ESG-CV
expenditures shall be made within 30 days of the respective Progressive Expensive
Deadlines. The Progressive Reimbursement Deadlines in an amount not less than
100% of the grant award's allowed cost must be made by April 30, 2022.
0. "Proiect" shall mean the SUBRECIPIENT'S operating name for distinct ESG
Program Component.
P. "Recapture" shall mean the CITY may recapture up to 100% of SUBRECIPIENT's
total ESG-CV award if SUBRECIPIENT has not requested reimbursement of 100% of
2
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allowed ESG-CV costs through March 31, 2022, by April 30, 2022.
Q. "Scope of Services or Services" shall mean those services submitted with
SUBRECIPIENT's bid proposal to be offered in fulfillment of the Program and
included in Exhibit A.
R. Subaward shall mean an award of City funds provided by the SUBRECIPIENT
to a Subrecipient (2 CFR 200.330(a)) of the SUBRECIPIENT in order to carry out a part
of SUBRECIPIENT's administration of the Scope of Work.
S. Subcontract shall mean a SUBRECIPIENT's agreement, with a vendor or
subcontractor, which is selected in accordance with the SUBRECIPIENT's board
approved procurement policy and Federal procurement and contracting requirements
at 2 CFR 200.318 through 200.326.
T. Subrecip ient shall mean an entity that receives a Subaward from the
SUBRECIPIENT to carry out a part of the program, program component and/or project,
but shall not include an individual that is a beneficiary of such program. A
Subrecipient may also be a recipient of other grant awards directly from the CITY.
1. Contract Administration. This Agreement including all the Contract
Documents shall be administered according to the order of precedence set forth herein
for CITY by Administrator who shall be SUBRECIPIENT's point of contact and to
whom SUBRECIPIENT shall report.
2. Scope of Services. SUBRECIPIENT shall provide the Program in
conformance with the Contract Documents and perform to the satisfaction of CITY those
services set forth in Exhibit A and services necessarily related or incidental thereto even
though not expressly set forth therein.
3. Effective Date and Term of Agreement. It is the intent of the Parties that
this Agreement be effective as of the date first set forth above as to all terms and
conditions of the Agreement. Services of SUBRECIPIENT shall commence on January
1, 2022, through March 31, 2022, followed by a 30-day invoice and data submission
period which may be extended another 30 days for the SUBRECIPIENT to have the
opportunity to correct invoice documentation and accomplishment data errors or
deficiencies. The CITY will also conduct it final close-out monitoring by or before
November 30, 2022.
4. Compensation and Method of Payment. CITY shall pay
SUBRECIPIENT the aggregate sum not to exceed Fifty-Six Thousand Dollars and Zero
Cents (56 ,000.00) for satisfactory performance of the services rendered therefore and
as set forth in Exhibit B attached hereto and incorporated herein. Compensation is
based on actual expenditures, supported by properly executed payrolls, time records,
invoices, contracts, vouchers, orders, or any other accounting documents pertaining in
whole or in part to this Agreement and shall be clearly identified and submitted by the
SUBRECIPIENT to the CITY with each request for reimbursement. The
SUBRECIPIENT's request for reimbursement shall also be in accordance with the
Budget set forth in Exhibit B, the Progressive Expenditure Deadlines and Recapture
Provisions set forth in Exhibit A, and the Spending Plan by Expenditure Deadline as set
forth in Exhibit C. It is understood that all expenses incidental to SUBRECIPIENT's
performance of services under this Agreement shall be borne by the SUBRECIPIENT.
If SUBRECIPIENT should fail to comply with any provisions of this Agreement,
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including but not limited to the Progressive Expenditure Deadlines or Progressive
Reimbursement Request Deadlines. CITY shall be relieved of its obligation for further
compensation. Notwithstanding any payment provisions herein, SUBRECIPIENT's
failure to timely and properly submit required records and reports set forth in this
Agreement may be cause for CITY to suspend or delay reimbursement payments to
SUBRECIPIENT.
Payments shall be made by the CITY to SUBRECIPIENT in arrears for services
provided during the preceding month. Such payment by CITY shall be made in the
normal course of business, generally within thirty (30) days after the date of receipt by
CITY of a correctly completed and supported invoice in accordance with the provisions
of this paragraph, and shall be for the actual expenditures incurred by
SUBRECIPIENT in accordance with Exhibit B. Payments shall be made after receipt
and verification of actual expenditures. All invoices are to be submitted CITY at the
address given for notices on the signature page hereof or at such address the CITY
may from time to time designate by written notice. The Administrator may, in his or her
sole discretion, agree in writing to revise the payment schedule in subsection (a), above,
upon SUBRECIPIENT's showing that such will facilitate delivery of the services;
provided, however, that total payments under this Agreement shall not exceed the total
amount provided for in subsection and the revision will not adversely impact the
Progressive Expenditure Deadline and result in a return of funds to HUD.
a. Any funds paid by CITY hereunder which remain unearned at the
expiration or earlier termination of the Agreement shall be, and remain in trust, the
property of CITY and shall be remitted to CITY within 10 days of expiration or earlier
termination of this Agreement. Any interest thereon must be credited to or returned to
CITY. All funds advanced pursuant to this Agreement and not expended shall be
returned to CITY.
b. CITY will not be obligated to make any payments under this
Agreement if the request for payment is received by the CITY more than 30 days after
the date of termination of this Agreement or the date of expiration of this Agreement,
whichever occurs first.
c. SUBRECIPIENT understands and agrees that the availability of
ESG-CV Funding hereunder is subject to the control of HUD and should the ESG-CV
funding be encumbered, withdrawn, or otherwise made unavailable to CITY whether
earned or promised to SUBRECIPIENT and/or should CITY in any fiscal year
hereunder fail to appropriate said funds, CITY shall not provide said funds to
SUBRECIPIENT unless and until they are made available for payment to CITY by HUD
and CITY receives and appropriates said Funds. No other funds owned or controlled
by CITY shall be obligated under this Agreement to the project(s). Should sufficient
funds not be appropriated, the Services provided may be modified, or this Agreement
terminated, at any time by the CITY as provided in section 8 below.
d. SUBRECIPIENT shall use the funds provided by CITY solely
for the purpose of providing the services required under Section 2 of this Agreement.
5. Loss of Third-Party Funding. In the event any funding provided by a party
other than CITY for the Program or services being performed by SUBRECIPIENT is
suspended, reduced or withdrawn, then Administrator may suspend this Agreement
immediately upon its receipt of notice thereof, or terminate this Agreement as provided
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in Section 8 below. SUBRECIPIENT shall notify CITY in writing within 7 days if any
of the following events occur:
a. Suspension, reduction or withdrawal of SUBRECIPIENT'S funding
by other funding source(s).
b. The CITY, in its sole discretion, may stay such suspension of the
Agreement for a period not to exceed 30 days to allow SUBRECIPIENT to either (i)
submit a new service or funding plan for evaluation by the CITY who may accept or
reject in its sole discretion, or (ii) complete an orderly phase out of services. If the
CITY accepts such new service or funding plan, then such plan will be subject to the
requirements in Section 13 below.
6. Disposition of Program Income. Absent the CITY's written consent,
any program income generated hereunder shall be used to reduce the CITY's
reimbursement obligations hereunder, or in the absence thereof promptly remitted
entirely to the CITY.
7. Events of Default. When in the opinion of CITY, there is an occurrence
of any one or more of the following provisions it will represent an Event of Default
for purposes of this Agreement.
a. An illegal or improper use of funds.
b. A failure to comply with any term, covenant or condition of this
Agreement. Report(s) are submitted to CITY which are incorrect or incomplete in any
material respect.
c. The services required hereunder are incapable of or are
improperly being performed by SUBRECIPIENT.
d. Refusal of SUBRECIPIENT to accept change under Section 18
e. SUBRECIPIENT fails to maintain any required insurance.
f. There is a loss of third-party funding (see Section 5 above).
g. SUBRECIPIENT's breach of any other material condition,
covenant, warranty, promise or representation contained in this Agreement not
otherwise identified within this Section.
8. Termination and Remedies. Upon the occurrence of an Event of Default,
CITY shall give written notice to SUBRECIPIENT of the Event of Default by specifying
(1) the nature of the event or deficiency giving rise to the default, (2) the action
required to cure the deficiency, if, in the sole discretion of CITY, any action to cure is
possible, and (3) if the Event of Default is curable, a date, which shall not be less
than thirty (30) calendar days from the date of the notice, by which such deficiency
must be cured, provided, however that if such failure cannot be remedied in such time,
SUBRECIPIENT shall have an additional thirty (30) days to remedy such failure
so long as SUBRECIPIENT is diligently and in good faith pursuing such remedy.
a. This Agreement shall terminate without any liability of CITY to
SUBRECIPIENT upon the earlier of: (i) the happening of an Event of Default by
SUBRECIPIENT and a failure to cure said Event of Default within the time specified in
the notice of Event of Default; (ii) 7 calendar days prior written notice without cause
by CITY to SUBRECIPIENT; (iii) CITY'S non-appropriation of funds sufficient to
5
meet its obligations hereunder during any CITY fiscal year of this Agreement, or
insufficient funding for the services provided by SUBRECIPIENT; or (iv) expiration of
this Agreement.
b. Immediately upon any termination or expiration of this Agreement,
SUBRECIPIENT shall (i) immediately stop all work hereunder; (ii) immediately cause
any and all of its subcontractors to cease work; and (iii) return to CITY any and all
unearned payments and all properties and materials in the possession of
SUBRECIPIENT that are owned by CITY. Subject to the terms of this Agreement,
SUBRECIPIENT shall be paid compensation for services satisfactorily performed
prior to the effective date of termination. SUBRECIPIENT shall not be paid for any
work
avoided.
or services performed or costs incurred which reasonably could have been
c. Upon any breach of this Agreement by SUBRECIPIENT, CITY
may
i. exercise any right, remedy (in contract, law or equity), or
privilege which may be available to it under applicable laws of the State
of California or any other applicable law;
ii. proceed by appropriate court action to enforce the terms of
the Agreement; and/or
iii. recover all direct, indirect, consequential, economic and
incidental damages for the breach of the Agreement. If it is determined
that CITY improperly terminated this Agreement for default, such
termination shall be deemed a termination forconvenience.
d. In no event shall any payment by CITY pursuant to this Agreement
constitute a waiver by CITY of any breach of this Agreement or any default which may
then exist on the part of SUBRECIPIENT, nor shall such payment impair or prejudice
any remedy available to CITY with respect to the breach or default.
e. CITY expressly reserves the right to demand of
SUBRECIPIENT the repayment to CITY of any funds disbursed to SUBRECIPIENT
under this Agreement which, in the judgment of CITY, were not expended in
accordance with the terms of this Agreement, and SUB RECIPIENT agrees to promptly
refund any such funds within 10 days of CITY'S written demand.
9. Level of Skill; Subcontractors.
a. SUBRECIPIENT may, at its sole discretion, subcontract any of the
services required under this Agreement, in compliance with the terms of this
Agreement. It is further mutually understood and agreed by and between the parties
hereto that inasmuch as SUBRECIPIENT represents to City that SUBRECIPIENT and its
subcontractors, if any, are skilled in the profession and shall perform in accordance with
the standards of said industry necessary to perform the services agreed to be done by it
under this Agreement, City relies upon the skill of SUBRECIPIENT and its subcontractors,
if any, to do and perform such services in a skillful manner and SUBRECIPIENT agrees
to thus perform the services and require the same of any subcontractors. Therefore, any
acceptance of such services by City shall not operate as a release of SUBRECIPIENT or
any subcontractors from said industry and professional standards.
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b. City reserves the right to hire additional contractors to perform the
services required under this Agreement, and offset any future payment to
SUBRECIPIENT accordingly, so long as such hiring and associated offset is
memorialized in an Addendum executed by the parties, setting forth the amount of the
offset.
c. If SUBRECIPIENT subcontracts any or all of the services to be
performed under this Agreement where the subcontract is for a total of $250,000 or
greater during any calendar year, SUBRECIPIENT shall require, at the discretion of the
City Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement
with the City to provide required indemnification and insurance protection. Any required
Side Agreement(s) and associated insurance documents for the subcontractor must be
reviewed and preapproved by City Risk Manager or designee. If no Side Agreement is
required, SUBRECIPIENT will be solely responsible for ensuring that its subcontractors
maintain insurance coverage at levels no less than those required by applicable law and
is customary in the relevant industry.
d. To the full extent required by applicable federal and state law, each
party and its contractors and agents shall comply with the Davis-Bacon Act, as amended,
California Labor Code Section 1720 et seq., and the regulations adopted pursuant thereto
("Prevailing Wage Laws"), if so required, and shall be solely responsible for carrying out
the requirements of such provisions. Each party shall indemnify, defend and hold the
other and its elected and appointed officers, officials, employees, agents, consultants, and
contractors harmless from and against all liability, loss, cost, expense (including without
limitation attorneys' fees and costs of litigation), claim, demand, action, suit, judicial or
administrative proceeding, penalty, deficiency, fine, order, and damage which directly or
indirectly, in whole or in part, are caused by, arise in connection with, result from, relate
to, or are alleged to be caused by, arise in connection with, or relate to, the payment or
requirement of payment of prevailing wages (including without limitation, all claims that
may be made by contractors, subcontractors, or third party claimants pursuant to Labor
Code sections 1726 and 1781 ), the failure to comply with any state or federal labor laws,
regulations or standards in connection with this Agreement, including, but not limited to
the Prevailing Wage Laws, or any act or omission of that party related to the payment or
requirement of payment of prevailing wages.
10. Indemnification. To the furthest extent allowed by law, SUBRECIPIENT
shall indemnify, hold harmless and defend CITY and each of its officers, officials,
employees, agents and volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damages (whether in contract, tort or strict liability, including but not
limited to personal injury, death at any time and property damage), and from any and all
claims, demands and actions in law or equity (including reasonable attorney's fees and
litigation expenses) that arise out of, pertain to, or relate to the negligence, recklessness
or willful misconduct of SUBRECIPIENT, its principals, officers, employees, agents or
volunteers in the performance of this Agreement.
If SUBRECIPIENT should subcontract all or any portion of the services to be performed
under this Agreement, SUBRECIPIENT shall require each subcontractor to indemnify,
hold harmless and defend CITY and each of its officers, officials, employees, agents, and
volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
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11. Insurance. The SUBRECIPIENT shall comply with all of the insurance
requirements in Exhibit E to this Agreement.
12. On-Site Monitoring. Authorized representatives of HUD and/or the
CITY shall have the right to monitor the SUBRECIPIENT's performance under this
Agreement. Such monitoring may include inspection activities, review of records, and
attendance at meetings: SUBRECIPIENT shall reasonably make its facilities, books,
records, reports and accounts available for CITY's inspection in pursuit hereof.
This section 12 shall survive termination or expiration of this Agreement.
13. Records, Reports and Inspection. SUBRECIPIENT shall establish and
maintain records in accordance with all requirements prescribed by CITY, HUD and
generally accepted accounting principles, with respect to all matters covered by this
Agreement. As applicable, SUBRECIPIENT shall comply with all applicable
requirements of CFR Part 200 -Uniform Administrative Requirements, Cost Principles,
and Audit Requirements for Federal Awards, including the provision of a single audit
(generally applicable where funding from all federal sources in any fiscal year exceeds
$750,000), and to such extent shall submit to the CITY any applicable auditor's reports
and audited financial statements no later than three (3) months after the
SUBRECIPIENT's fiscal year end. SUBRECIPIENT shall be responsible for determining
the applicability of the foregoing.
On a quarterly basis the SUBRECIPIENT shall submit a report utilizing and
completing the form attached as EXHIBIT D -ESG Quarterly Report. The report shall
be submitted within thirty days of the close of each quarter of the fiscal year for the
duration of the Agreement. SUBRECIPIENT shall ensure the ESG grant funds provided
by GRANTEE are clearly identified as a subaward and include the following information:
• Subrecipient Name: Housing Authority City of Fresno .
• Subrecipient ID (DUNS #): 071870877
• Federal Award Identification Number (ESG-CV Grant# E-20-MW-
06-0001)
• Federal Award Date: April 8, 2021
• Period of Performance: January 01, 2022-March 31, 2022
• Federal Funds Obligated by this Agreement: Yes
• Total Federal Funds Obligated to SUBRECIPIENT: $56,000.00
• Total Amount of the Federal Award: $10,948,953.00
• Federal Award project description: ESG-CV FHA -HMIS
• Name of Federal awarding agency: Department of Housing Urban
Development
• Name of pass-through entity: City of Fresno, California
• Award Official Contact Information: Jennifer Clark, Director, Dept. of
Planning and Development, 2600 Fresno, St., Fresno CA 93721
• CFDA Number: 14.231
• CFDA Name: HEARTH Emergency Solutions Grant -Coronavirus 2nd
Tranche
• Identification of R&D: No
• Indirect cost rate for the Federal award: Up to the greater of a di minimus
10% indirect cost rate.
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