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HomeMy WebLinkAboutSANTA ANA SECURITY SERVICES-A-2020-093INSURAM'E moT ON FILE Dr`•^CEED A-2020-093 vUUNCIL CONSULTANT AGREEMENT JAI E' CITY OF SANTA ANA W(v eyyers THIS AGREEMENT is made and entered into on this E d 'ay of iL , 2020, by and between Santa Ana,Security-Services Inc., a: California corporation ("Consultant'), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS o A. On March 17, 2020, the Santa Ana City Council adopted Resolution No. 2020-016 proclaiming the existence of a local emergency to ensure the availability of mutual aid and `- support an expedient response to the novel coronavirus ("COVID-19") pandemic. r- 2�:B. In response to the-GOVID-19 pandemic, the City received an allocation of 22 trailers from the State of California on April 7, 2020, which are to be utilized as an additional resource for The Link shelter to provide isolation for those individuals who are 65 years and older, or are medically vulnerable or symptomatic. C. The City now desires to retain a consultant having special skill and knowledge to provide security services for the COVID-19 trailers at The Link. D. Consultant represents that Consultant is able and willing to provide such services to the City. E. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant wider this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in the Security Service Proposal attached hereto as Exhibit A and incorporated herein by reference. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services for City, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall not exceed $100,000.00 during the term of this Agreement. Page 1 of 9 b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall continence on the date first written above and continue for a -three (3) month term, unless terminated earlier in accordance with Section 13 below, or pursuant to_the terms of the City's resolution proclaiming a local emergency. . This Agreement shall also cover any and all services provided by the Consultant to the City prior to the Effective Date. The Term of this Agreement may be extended by a writing executed by the City Manager and the City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single Ifinit of not less than $1,000,000 per occurrence. Such insurance shall include Page 2 of 9 coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self. insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d• If Consultant is or employs a licensed professional such as an architect or engineer: Professional Habfliy (errors and omissions) insurance, with a combined single Emit of not less than $1,000,000 per claim with $2,000,000 in the aggregate.. e. The foflowing requirements apply to the insurance to be provided by Consultant pursuant to this section: i. Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. iii. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. iv. Where the amounts or coverage provided by the certificates of insurance provides coverage greater than those listed by this Agreement, the amounts provided by the certificates of insurance shall be incorporated by reference into the Agreement. V. Consultant shall supply City with a fully executed additional insured endorsement. £ If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to ftrnish the City with required proof that insurance has been procured and is in force andpaid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. G. IN7DEMNIFICATION Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death; and claws for property damage, which may arise from the negligent operations of the Consultant, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described hi section I of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and Page 3 of 9 hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personaluij<uy, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, orrelate to the negligence, recklessness, or willful misconduct of the Consultant. 7. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular busniess hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 8. CONI+IDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Infornnation" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually; electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. Page 4of9 CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10. NON-DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties, In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 12. ASSIGNMENT Inasmuch as this Agreement is untended to secure the specialized services of Consultant, Connstiltant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 13. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions; Page 5 of 9 a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate, b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 14. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies, 15. JURISDICTION -VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 16. PROFESSIONAL LICENSES Consultant shall, throughout the terra of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Page 6of9 Santa Ana, CA 92702-1988 Fax: 714- 647-6956 With courtesy copies to: Community Development Agency City of Santa Ana 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, California 92702-1988 Facsimile (714) 647-6549 To Consultant: Mitre Gonzalez Operations Manager/Owner Santa Ana Security Services Inc. 301 West Second Street, #110 Santa Ana, CA 92701 (714) 883-6377 A party may change its address by giving notice inn writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address, If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duty registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shalt be excluded. 18. FEDERAL REQUIRE' MENTS FEMA financial assistance will be used to fund all or a portion of this contract. The Contractor shall comply with all federal requirements including, but not limited to, the following: 1. 2 C.F.R. Part 200 — Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which is expressly incorporated herein by reference. 2. Federal Contract Provisions attached hereto as Exhibit B and incorporated hereon by reference. Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in the contract, including but not limited to, 2 C.F.R. Part 200 and the Federal Contract Provisions. Page 7 of 9 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 sball control. 19. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. (signatures on following page) Page 8 of 9 as IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Daisy Gome;a Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: . 14 11 Ryan O. dg Assistant'City Attorney RECOMMENDED FOR APPROVAL: —Ak� Steven A. Mendoza Executive Director Commiuuty Development Agency CITY OF SANTA ANA K11s e Ridge City Manager SANTA VECURITY SERVICES INC.:ft Operations Manag!Pl4wner Tax ID#-m!%*jn n �� n Page 9 of 9 �. SECURITY SERVICE PROPOSAL "Santa Ana Security Services Inc." 301 W. 211 Street 411.0 Santa Ana, CA 92701(714)883-6377 Security m../1 Service Proposal For: City of Santa Ana Link COVID-19 Trailer Security S Submitted by: Mike Gonzalez Operations Manager / Owner Santa Ana Security Services, Inc. Cell: (714)883.6377 or (714)856-1647 PO Box 3511 Santa Ana, CA, 92703 onzalec04. 33C@ be lobalmet "Santa na Security Services Inc.99 301 W. tad Street #110 Santa Ana, CA 92701(714)883-6377 PRIVATE SECURITY SERVICE P.P.O 13824 Santa Ana Security Services, Inc, shall provide all management, training, supervision, manpower material, supplies, and equipment, and shall plan, schedule, coordinate, and assure effective performance of all services described herein. All of the following rates include: Federal and State taxes, Unemployment, workers compensation and liability insurance, training, turnover cost, recruiting, criminal records checks, drug testing, uniforms, personnel cost, as well as other management and supervision costs, Bid for Basic Services Unarmed Officer: $21,00 per hour Total Amount of 48 hours per day, 336 hours per week: $7,056,00, 721 hours per 151" days $15,120.00 and 1,440 hours per 30 days $30,240.00 The Link COVID-19 Trailers Security Shift Thee Shelter Site _ Hrs. 6 am To: 2 pm Two Guards 16 2 m To: 10 m Two Guards 16 10 to To: 6 ax i Two Guards 16 T Total 6 Guards A--fE Service shall commence as of: April291, of 2020 at: 6 am or until cancelled by a notice in writing in 30 day advance by either of both parties, or unless specified: This ? Ciaacrrds areittst for the trailers and tivill not be inside the shelter or doha ct�rk'lhir«ErtairtiraG to the slaeltr'r". "Santa na Security Services Inc." 301 W. 2"' Street #110 Santa Ana, CA 92701(71.4)883-6377 An interest rate of one and one half percent (L 1/2%) will be charged per month, for the total of eighteen percent (18%) per annum on all delinquent accounts. Billing periods for onsite security guards services are on Bi-monthly basis. Hours of operations will be Sunday through Saturday 24 hrs. On the 161 day of the month we provide you with the first bill of two weeks billing (frorn the 1" to the 15111) and on the I" will be sending you another invoice (from the 161 to the end of the month) and it will be like that until we finish our year contract. If Santa Ana Security Services, Inc Officers are required to work on the following holidays Client Agrees to pay: T1rne and halt' per Iloiar. o Christmas o New Year o "Mai ksgi, vine o Labor Day o Presidents Dav 2-Veterans Dav All Security officers must be employees of Santa Ana Security Services, Inc. Assigned at: City of Santa Ana The Link COVID-19 TghIer Security 2320 Red Hill Ave. Santa Ana CA 92705 This is an entire and sole agreement between client and Santa Ana Security Services, Inc. Airy agreement or representation not expressly set forth herein is null and void. Special Functions: Officers will be posted at different areas and other needed measures, Date: April 29TI, 2020 Client: City of Santa Ana Homeless Services Manager Signature: Terri Eggers, MPA Santa Ana Security Services, Inc. Signature: Mike Gonzalez EXHIBIT B FEDERAL CONTRACT PROVISIONS During the performance of this contract, Consultant (or "Vendor") shall comply with all applicable federal laws and regulations including but not limited to the federal contract provisions in this Exhibit. In this Exhibit, the term "Agency" shall mean the City as the local agency entering into this contract with the Vendor. CONTRACTING WITH SMALL AND MINORITY FIRMS, WOMEN'S BUSINESS ENTERPRISE AND LABOR SURPLUS AREA FIRMS (2 C.F.R. § 200,321) (A) Vendorshall be subjectto2 C.F.R. § 200.321 and Wil 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: 0) 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 wheneverthey 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), andthe Minority Business Development Agency (MBDA) of the Department of Commerce. Vendor shall submit evidence of compliance with the foregoing affirmative steps when requested by the Agency. Notwithstanding the foregoing, the affirmative steps requirements detafled above do not apply in the case of a noncompetitive procurement made under the emergency exception/exigency exception to competitive procurements. 2. COST PRINCIPLES (2 G.F.R. PART 200, SUBPART E) (A) If any indirect costs WWI be charged to the Agency under this contract, such costs must conform to the cost principles set forth under the Uniform Rules at 2 C.F.R. Part 200, subpart E ("Cost Principles"). In general, costs must (i) be necessary and reasonable; (ii) allocable to the grant award; (ill) conform to any limitations or exclusions set forth in the Cost Principles; (iv) be adequately documented; and (v) be determined in accordance with generally accepted accounting principles ("GAAP"), except, for state and local governments and Indian tribes only, as otherwise provided for in 2 C.F.R. Part 200, subpart E. 2 C.F.R. § 200.403.. Costs that are determined unallowable pursuant to a federal audit are subject to repayment by Vendor. 3. ACCESS TO RECORDS & RECORD RETENTION (2 C.F.R. 200.336) (A) Vendor shall comply with 2 C.F.R. § 200.336 and provide the Federal Agency, Inspectors General, the Comptroller General of the United States, Agency, and the State of California or any of their authorized representatives access, during normal business hours, to documents, papers, books and records which are directly pertinentto this contraotfor the purposes of making and responding to audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to the Vendor's personnel for the purpose of interviewand discussion related to the books and records. (B) The Vendor agrees to permit any of the foregoing parties to reproduce by any means Whatsoever or to copy excerpts and transcriptions as reasonably needed. (C) The Vendoragrees to providethe FederalAgency or its authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. 4. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APPENDIX II TO PART 200 — CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (2 G.F.R. § 200.326) (A) or ause onvenignce. If the contract is in excess of $10,000 and the contract does not include provisions for both termination for cause and termination for convenience by the Agency, including the manner by which it will be effected and the basis for settlement, then the following termination clauses shall apply. If the contract is for more than the simplified acquisition threshold (see 2 C.F. R. § 200.88) at the time the contract is executed and does not provide for administrative, contractual, or legal remedies in instances where Contractor violates or breaches the terms of the contract, then the following termination clauses shall apply and have precedence over the contract. Otherwise, the following termination clauses shall not be applicable to the contract. (i) Termination for Convenience The Agency may, by written notice to Vendor, terminate this contract for convenience, in whole or in part, at any time by giving written notice to Vendor of such termination, and specifying the effective date thereof ("Notice of Termination for Convenience"). If the termination is for the convenienceof the Agency, the Agency shall compensate Vendor for work or materials fully and adequately provided through the effective date of termination, No amount shall be paid for unperformed work or materials not provided, including anticipated profit. Vendor shall provide documentation deemed adequate by the Agency to show the work actually completed or materials provided by Vendor prior to the effective date of termination. This contract shall terminate on the effective date of the Notice of Termination. (ii) Termination for Cause. If Vendorfails to perform pursuant to the terms of this contract, the Agency shall provide written notice to Vendor specifying the default ("Notice of Default"). If Vendor does not cure such default within ten (10) calendar days of receipt of Notice of Default, the Agency may terminate this contract for cause, If Vendor fails to cure a default as set forth above, the Agency may, by written notice to Vendor, terminate this contract for cause, in whole or in part, and specifying the effective date thereof ("Notice of Termination for Cause"). If the termination is for cause, Vendor shall be compensated for that portionof the work or materials provided which has been fully and adequately completed and accepted bythe Agency as of the date the Agency provides the Notice of Termination. In such case, the Agency shall have the right to take whatever steps it deems necessary to complete the project and correct Vendor's deficiencies and charge the cost thereof to Vendor, who shall be liable for the full cost of the Agency's corrective action, including reasonable overhead, profit and attomeys' fees. (iii) Reimbursement: Damage, . The Agency shall be entitled to reimbursement for any compensation paid in excess of work rendered or materials provided and shall be entitled to withhold compensation for defective work or other damages caused by Vendor's performance of the work. (iv) Additional Termination Provisigns. Upon receipt of a Notice of Termination, either for cause or for convenience, Vendor shall promptly discontinue the work unless the Notice directs to the contrary. Vendor shall deliver to the Agency and transfer title (if necessary) to all provided materials and completed work, and work in progress including drafts, documents, plans, forms, maps, products, graphics, computer programs and reports. The rights and remedies of the parties provided in this Section are in addition to any other rights and remedies provided by lawor under this contract. Vendor acknowledges the Agency's right to terminate this contract with or without cause as provided in this Section, and hereby waives any and all claims for damages that might arise from the Agency's termination of this contract. The Agency shall not be liable for any costs other than the charges or portions thereof which are specified herein. Vendor shall not be entitled to payment for unperformed work or materials not provided, and shall not be entitled to damages or compensation for termination of work or supply of materials. If Agency terminates this contract for cause, and it is later determined that the termination for cause was wrongful, the termination shall automatically be converted to and treated as a termination for convenience. In such event, Vendor shall be entitled to receive only the amounts payable underthis Section, and Vendor specificallywaives any claimfor any other amounts or damages, including, but not limited to, any claim for consequential damages or lost profits. The rights and remedies of the Agency provided in this Section shall not be exclusive and are in addition to any other rights and remedies provided bylaw, equity or underthis contract including, but not limited to, the right to specific performance. (B) Appendix II to Part 200 (C) _ Eaual Employment Opportunity_* Except as otherwise provided under41 C.E.R. Part60, Vendor shall comply with the following equal opportunity clause, in accordance with Executive Order 11246 of September24, 1965 entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13, 1967 and implementation regulations at41 C.F.R. Chapter 60: (i) Vendor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. Vendor will take affirmative action to insure that applicants are employed and that employees are treated equally during employment, without regard to race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: employment upgrading, demotion, transfer, recruitment, or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection fortraining including apprenticeship. Vendor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided bytheAgency setting forth the provisions of this nondiscrimination clause. (ii) Vendor will, in all solicitations or advertisements for employees placed by or on behalf of Vendor, state that all qualified applicants will receive consideration for employment without regard to their race, color, religion, sex, or national origin. (III) Vendor 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 Vendor's legal duty to furnish information. (iv) Vendor will send to each labor union or representative of workers Wth which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under Section 202 of Executive Order No. 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (v) VendorwiA 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) Vendor will furnish all information and reports required by Executive Order No, 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliancewith such rules, regulations, and orders. (vii) In the event of Vendor's noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Govem mentcontracts in accordance Wth procedures authorized in Executive Order No.11246 of Sept. 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No.11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (viii) Vendor will include the provisions of paragraphs (i) through (viii) 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 No. 11246 of September 24,1965, so that such provisions will be binding upon each subcontractor or vendor. Vendor will take such action with respect to any subcontract or purchase orderas may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event Vendor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, Vendor may request the United States to enter into such litigation to protect the interests of the United States. (C) Appendix II to Part 200 (D) Davis Bacon Act: Copgland Act Not applicable to this contract. (D) A,.ppendixll to Part 200 Q —Contract Work Hours and Safety Standards Act: (i) If this contract is in excess of $100,000 and involves the employment of mechanics or laborers, Vendor shall comply with 40 U.S.G. 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. Part 5). Under 40 U.S.C. 3702, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided thatthe worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours In the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic mustbe required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. (ii) No contractor or subcontractor contracting for any partof 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. (III) In the event of any violation of the clause set forth in paragraph (ii) of this section the contractor 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. (iv) The Agency shall upon its own action or upon written request of an authorized representative of the Departmentof Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Vendoror subcontractor under any such contractor any other Federal contract with the same prime contractor, or any other federally -assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (iii) of this section. (v) The Vendor 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 Contractor 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. (E) Appendixll to Part 200 (F) — Rights to Inventions Made Under a Cogtract orA e ent: (i) If the Federal award meets the definition of "funding agreement" under 37 G.F.R. § 401.2(a) and the non -Federal entity 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 researchwork under that "funding agreement," the non -Federal entity must comply with the requirements of 37 C.F.R. Part 401(Rig hts to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements), and any implementing regulations issued by the Agency. (ii) The regulation at 37 C.F.R. § 401.2(a) currently defines "funding agreement' as any contract, grant, or cooperative agreement entered into between any Federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental, or research work funded in whole or in part by the Federal government. This term also includes any assignment, substitution of parties, or subcontract of any type entered into for the performance of experimental, developmental, or research work under a funding agreement as defined in the first sentence of this paragraph. (iii) This requirement does not apply to the Public Assistance, Hazard Mitigation Grant Program, Fire Management Assistance Grant Program, Crisis Counseling Assistance and Training Grant Program, Disaster Case Management Grant Program, and Federal Assistance to Individuals and Households — Other Needs Assistance Grant Program, as FEMA awards under these programs do not meet the definition of "funding agreement." (F) Appendix II to Part 200 (G) —Clean Air Act and Federal Water Pollution Control Act If this contract is in excess of $150,000, Vendor shall comply with all applicable standards, orders, or requirements issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). (i) Pursuant to the Clean Air Act, (1) Vendor agrees to comply with all applicable standards, orders or regulations issued pursuanttothe Clean AirAct, as amended, 42 U.S.C. § 7401 et seq., (2) Vendor agrees to report each violation to the Agency and understands and agrees thatthe Agency 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) Vendor agrees to include these requirements in each subcontract exceeding $150,000. (ii) Pursuant to the Federal Water Pollution Control Act, (1) Vendor agrees to comply with all applicable standards, orders or regulations issued pursuantto the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 at seq., (2) Vendor agrees to report eachviolation to the Agency and understands and agrees that the Agency 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) Vendor agrees to include these requirements in each subcontract exceeding $150,000. (G) Appendix11 to Part 200 (H) — Debarment and Suspension A contractaward (see 2 C.F.R. § 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM), In accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 C. F.R. part 1 g86 Comp., p.189) and 12689 (3 C.F.R. part 1989 Comp., p. 235), "Debarment and Suspension." SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. (i) This contractis a covered transaction forpurposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Vendor is required toverifythat none of the Vendor, its principals (defined at 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. § 180.936). (ii) Vendor 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 Agency. If it is later determined that Vendor 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 Agency, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. (iv) Vendor warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Vendor also agrees to verify that all subcontractors performing work under this contract are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above. Vendor further agrees to notify the Agency in writing immediately if Vendor or its subcontractors are not in compliance during the term of this contract. (FI) Appendix II to Part 200 (1) — Byrd Anti -Lobbying Act If this contract is in excess of $100,000, Vendor shall have submitted and filed the required certification pursuant to the Byrd Anti -Lobbying Amendment (31 U.S.C. § 1353). If at any time during the contract term funding exceeds $100,000, 00, Vendor shall file with the Agency the Federal Standard Form LLL titled "Disclosure Form to Report Lobbying." Vendors 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 wth 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. (1) Appendix II to Part 200 (J) — Procurement of RecQyered ITV atgrjgb5;, (i) Vendor 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 contract, the Vendorshall 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. (ill) Information about this requirement, along with the list of EPA -designate items, is available at EPA's Comprehensive Procurement Guidelines web site, h ttp s: //www. e p a. g o v/s m nVc o m p r e h e n s i ve-procurement-guideline -c p g-program. MISCELLANEOUS PROVISIONS (A) The Vendor shall not use the DHS seal(s), logos, crests, or reproductions of Flags or likenesses of DHS agency officials without specific FEMA preapproval. (B) This is an acknowledgement that FEMA financial assistance will be used to fund the contractonly. The Vendorwill complywth all applicable federal law, regulations, executive orders, FEMA policies, procedures, and directives. (C) Vendor acknowledges that 31 U.S.C. Chapter 38 (Administrative Remedies for False Claims and Statements) applies to the Vendor's actions pertaining to this contract. (D) The Federal Government is not a party to this contract and is not subjectto any obligations or liabilities to the Agency, Vendor, any subcontractors or any other party pertaining to any matter resulting from the contract. (E) General and Administrative Excenses ._And...Profit For Time And Material- (i) General and administrative expenses shall be negotiated and must conform to the Cost Principles. (ii) Profit shall be negotiated as a separate element of the cost. To establish a fair and reasonable profit, consideration must be given to the complexity of the work to be performed, the risk borne by the Vendor, the Vendor's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work. (iii) Any agreement, amendment or change order for work performed on a time and materials basis shall include a ceiling price that Vendor exceeds at its own risk.