HomeMy WebLinkAboutESSERGY 1- 2010
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INSUR~NCE ON FILE
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CLERK OF COUNCIL
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~-( AGREEMENT UNDER THE WORKFORCE INVESTMENT ACT
(AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009)
THIS AGREEMENT, made and entered into this 16th day of February, 2010, by and
between the City of Santa Ana, a charter city and municipal corporation duly organized and existing
under the Constitution and laws of the State of California ("CITY") and Essergy Consulting
("CONTRACTOR") effective as of February 1,2010.
W-I-T-N-E-S-S-E-T-H
Recitals:
A. CITY has been designated a Local Workforce Investment Area (L WIA) under
the Workforce Investment Act of 1998, Public Law 105-220 ("the Act").
B. The State of California has created the L WIA to administer the Act programs
operated by the State of California pursuant to the Act.
C. As a L WIA, CITY is entitled to receive federal funds to establish programs to
increase training opportunities for unemployed individuals and also to preserve and create jobs. One
goal of California's Workforce Investment System is to provide the opportunities to achieve career
goals that will allow individuals to successfully compete in the labor market and prepare them for
higher education.
D. The American Recovery and Reinvestment Act of 2009 (the "Recovery Act")
includes provisions for WIA Adult and Dislocated Worker funds, WIA Youth funds including summer
youth employment activities, and Wagner-Peyser Act funds for reemployment services.
E. CONTRACTOR has experience in offering education, occupational
development, business training, lay-off aversion and employment programs for the labor market
participants in the City of Santa Ana ("said program").
F.
California law.
CONTRACTOR is willing to operate said program pursuant to the Act and
WHEREFORE, for and in consideration of the respective and mutual covenants and
promises hereinafter contained and made, and subject to all the terms and conditions hereof, the parties
hereto do hereby agree as follows:
I.
CONTRACTOR'S OBLIGATIONS
A. CONTRACTOR agrees to provide the following services pursuant to said
program, as more specifically set forth in CONTRACTOR'S program narrative contained in "Exhibit
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A" and in the Statement of Work ("Exhibit B"), attached hereto and by this reference incorporated
herein: Provide small business technical assistance through workshops, seminars and mentoring to
Santa Ana small businesses.
CONTRACTOR'S failure to provide said services may be grounds for CITY to readjust
the level of payment to CONTRACTOR otherwise provided for hereinafter or terminate this
Agreement as provided in Section XV hereof.
B. CONTRACTOR agrees to provide benefits to individuals who participate in the
activities and services funded by this Agreement ("participants") in accordance with the standards and
requirements set forth in Workforce Investment Act of 1998, Public Law 105-220 and the American
Recovery and Reinvestment Act of 2009 ("Recovery Act").
C. CONTRACTOR agrees to perform the servIces set forth herein In a
professional, timely and diligent manner.
D. CONTRACTOR agrees to include prominent labels and tags In program
announcements and literature that clearly distinguish them as "Recovery Act" programs.
E. CONTRACTOR shall adhere to the Labor Standards described in the Act
including Section 181 of the Act.
F. CONTRACTOR agrees to comply with the "Complaint Handling Procedures under
the WIA", attached hereto as "Exhibit e" and incorporated herein as though fully set forth in 20 CFR
~667.200, Subpart F. CONTRACTOR shall advise participants of their rights to file complaints under
the Act and the procedures for resolution of any complaints. CITY's procedures for handling
complaints alleging a violation of the Act, regulations, grants, or other agreements under the Act shall
be followed and any decision of CITY, the State or the federal government relating to the complaint
shall be binding and followed by CONTRACTOR. CONTRACTORS who are employers shall
operate a grievance system that incorporates CITY's procedures for resolution of complaints relating to
the terms and conditions of employment; these procedures shall be approved in writing by CITY.
G. As a condition of this award of financial assistance under the Act to
CONTRACTOR from CITY, CONTRACTOR assures, with respect to operation of all programs or
activities funded with funds provided pursuant to the Act, and all agreements or arrangements to carry
out such programs or activities, that it will comply fully with the nondiscrimination and equal
opportunity provisions ofthe Act (Section 188); the Nontraditional Employment for Women Act of
1991; Title VI of the Civil Rights Act of 1964, as amended; section 504 of the Rehabilitation Act of
1973, as amended; the Age Discrimination Act of 1975, as amended; the Americans with Disabilities
Act of 1990; and with all applicable requirements imposed by or pursuant to regulations implementing
those laws, including, but not limited to, 29 CFR part 37. The United States, the State of California
and CITY have the right to seek judicial enforcement of this assurance.
H. CONTRACTOR agrees that no participant(s) shall commence training prior to
completion of a specialized assessment that demonstrates an ability to benefit from program.
CONTRACTOR agrees that no participant(s) shall commence training prior to the
approval of funding pursuant to Section 123 of the Act.
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1. CONTRACTOR agrees to maintain such records and submit such reports, data and
information, on the form and containing such information, at such times as CITY may request or
require regarding the performance of CONTRACTOR'S services or activities, costs or other data,
including but not limited to, participants' attendance, payroll records and job duty statements.
CONTRACTOR agrees to provide the CITY with monthly progress reports.
CONTRACTOR agrees to forward to the Santa Ana Work Center Administrative
Office, 1000 East Santa Ana Blvd., Suite 200, Santa Ana, California 92701 a completed Workforce
Investment Act Application form (WIA EWIR) and supporting documents within 45 days of
application date; a complete Workforce Investment Act EnrollmentlRegistration form (WIA EWIE)
within 30 days of determination (reviewer) date; any subsequent updates to EWIE within 10 days of
the begin date of activity or end date of an activity; Workforce Investment Act Exit form (WIA EWIT)
within 15 days of completion/termination of active enrollment of trainee (if/when required by the
program being offered).
CITY, the State of California and the United States government and/or their
representatives shall have access for purposes of monitoring, auditing and examining of
CONTRACTOR'S activities, performance, books, documents, papers, and records of CONTRACTOR
subcontractors, bookkeepers and accountants, and employees and participants related to this
Agreement. Such agencies or representatives shall also schedule on-site monitoring in their discretion.
Monitoring activities may also include, but are not limited to, questioning employees and participants
and entering any premises or onto any site in which any of the services or activities funded hereunder
are conducted or in which any of the records of CONTRACTOR are kept. Nothing herein shall be
construed to require access to any privileged or confidential information as set forth in federal or state
law.
In the event CONTRACTOR does not make the above-referenced documents available
within the City of Santa Ana, California, CONTRACTOR agrees to pay all necessary and reasonable
expenses incurred by CITY in conducting any audit at the location where said records and books of
account are maintained.
All accounting records and evidence pertaining to all costs of CONTRACTOR and all
documents related to this Agreement shall be kept available at the location where CONTRACTOR
conducted the program, as well as in the County of Orange, for the duration of this Agreement and
thereafter for three (3) years after completion of an audit. Records which relate to (a) complaints,
claims, administrative proceedings or litigation arising out of the performance of this Agreement, or
(b) costs and expenses of this Agreement to which CITY, the State of California or the United States
Government take exception, shall be retained beyond the three (3) years until resolution of disposition
of such appeals, litigation, claims, or exceptions.
J. Without prejudice to any other section of this Agreement, CONTRACTOR
shall, where applicable, maintain the confidential nature of information provided to it concerning
participants in accordance with the requirements of federal and state law. Notwithstanding the
foregoing, CONTRACTOR agrees to submit to CITY, the State of California and/or the United States
Government or their representatives, all records requested for administrative purposes, including
audits, examinations, monitoring and verification of records submitted by CONTRACTOR, costs
incurred and services rendered hereunder.
K. CONTRACTOR agrees to complete in triplicate, a monthly Invoice/Voucher on
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CITY's InvoiceN oucher form, showing in detail the amount of money already expended by
CONTRACTOR hereunder, as this is a cash reimbursement contract. Accounting records must be
supported by such source documentation such as cancelled checks, paid bills, payrolls, time and
attendance records, contract and subgrant award documents [29 CFR-Subpart C, Section 97.20 (b)(6)].
CONTRACTOR agrees to submit the above-stated documents to the WIB Administrative Office, 1000
East Santa Ana Blvd., Suite 200, Santa Ana, California, 92701, by the tenth (lOth) day of the month
following the month in which CONTRACTOR'S services are performed. Should CONTRACTOR fail
to deliver said documents to CITY, CITY shall have the option to cancel this Agreement by giving
CONTRACTOR ten (l0) days written notice thereof. CONTRACTOR shall either return to the CITY
excess revenues over costs or use such excess revenues as program income by utilizing such program
income for additional training activities authorized under the Act.
L. CONTRACTOR agrees to expend all funds in accordance with all applicable
federal, state and local laws and regulations. CONTRACTOR also agrees to provide at
CONTRACTOR'S own expense supplies and other costs of said PROGRAM.
M. CONTRACTOR shall arrange independently for an audit that includes WIA
funds received from CITY, in accordance with the Act, 20 CFR Section 667.200 and OMB Circular A-
133. CONTRACTOR shall submit one original of each required audit report to CITY within (30) days
after the date received by CONTRACTOR. Should CONTRACTOR fail to comply with these
requirements, CITY may at its option withhold payment of funds, or disallow funds or suspend
additional grant funds.
N. CONTRACTOR shall not expend funds pursuant to this Agreement to provide
services to any participant where costs of training are paid for by any other person or entity.
O. CONTRACTOR shall comply with the provisions of Circular A-I02 of the U.S.
Office of Management and Budget (OMB) and the related "Common Rule" entitled "Uniform
Administrative Requirements for Grants and Cooperative Agreements to State and Local
Government", Subpart C, paragraphs 37 and 42, Circular A-I28, and all other applicable federal
statutes and executive orders and their implementing regulations, including regulations at 29 CFR Part
97.
P. CONTRACTOR shall comply with the requirements of federal regulations
found at 29 CFR 93 which provide that no appropriated funds may be expended by the recipient of a
federal contract, grant, loan or cooperative agreement to pay any person for influencing or attempting
to influence an officer or employee of any agency, member of Congress or an officer or employee of a
member of Congress in connection with awarding of any federal contract, the making of any federal
grant or loan, entering into any cooperative agreement and the extension, renewal, amendment or
modification of any federal contract, grant, loan or cooperative agreement. CONTRACTOR shall sign
a certification to that effect in a form as set forth in "Exhibit D," attached hereto and by this reference
incorporated herein. CONTRACTOR shall submit said signed certification to CITY prior to
performing any of its obligations under this Agreement and prior to any obligation arising on the part
of CITY to pay any sums to CONTRACTOR under the terms and conditions of this Agreement.
Q. CONTRACTOR agrees to provide a drug-free work place and to execute a
certification as set forth in "Exhibit E" attached hereto and incorporated herein by this reference.
R. CONTRACTOR, in accordance with the Child Support Compliance Act,
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recognizes and acknowledges the importance of child and family support obligations and shall fully
comply with all state and federal laws relating to child and family support enforcement, including, but
not limited to: disclosure of information and compliance with earnings assignment orders, as provided
in Chapter 8 (commencing with Section 5200) of Part 5 of Division 9 of the state Family Code; and, to
the best of its knowledge is fully complying with the earnings assignment orders of all employees and
is providing the names of all new employees to the New Employee Registry maintained by the
California Employment Development Department (EDD).
S. CONTRACTOR agrees to comply with all applicable provisions of the ACT and
the federal regulations, including but not limited to the regulations found at 20 CFR part 629.
T. CONTRACTOR agrees to provide priority of services for veterans and eligible
spouses pursuant to 20 CFR part 1010 and the regulations implementing priority of service for veterans
and eligible spouses in Department of Labor job training programs under the Jobs for Veterans Act
published at 73 Fed.Reg. 78132 on December 19,2008.
II.
CITY'S OBLIGATIONS
A. CITY agrees to pay to CONTRACTOR when, if and to the extent federal funds
are received under the provisions of the Act a sum not to exceed $150.000.00 for CONTRACTOR'S
performance in accordance with the payment schedule attached hereto as "Exhibit F" during the
period of this Agreement. Said sum shall be paid after CITY receives invoices submitted by
CONTRACTOR as provided hereinabove.
B. CITY agrees to provide for on-site monitoring reviews of said
program operation at least twice annually. In addition, monthly desk-top reviews of pertinent
information will be conducted.
C. CITY has the right to de-obligate the funds hereunder and take such funding
back from CONTRACTOR due to any of the following reasons: (a) lack of performance by
CONTRACTOR; (b) lack of fiscal accountability of CONTRACTOR; or (c) decrease in available
funding.
III.
TIME PERIOD OF AGREEMENT
Services pursuant to this Agreement shall commence as of February 1, 2010, and all
duties arising under this Agreement shall have been performed by January 31, 2011. The term of this
Agreement may be extended by a writing executed by the Deputy City Manager for Development
Services and the City Attorney.
IV.
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
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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.
v.
WORKER'S COMPENSATION AND EMPLOYER'S RIGHTS
A. CONTRACTOR shall use appropriate funds received from CITY to provide
workers' compensation to all those hired by CONTRACTOR under this Agreement.
B. CONTRACTOR shall have the right to hire, dismiss, or promote its employees
or contract personnel hired under this Agreement so long as its hiring or dismissal policy or standard
does not violate Title VII of the Civil Rights Act of 1964, Fair Labor Standards Act of 1938, or any
other applicable law, and CONTRACTOR maintains itself as an Equal Opportunity employer.
VI.
APPLICABLE GUIDELINES
A. The parties hereto agree that CONTRACTOR shall comply with all applicable
federal and state laws and regulations, including, but not limited to the Performance Standards
(Exhibit B) and general program requirements described in Sections 106 and 141 of the Act (29 USC
Sections 1516 and 1551) and applicable regulations, the Recovery Act and the U.S. Department of
Labor guidelines and regulations, including amendments or revisions made during the terms of this
Agreement. Said applicable laws are hereby incorporated by reference and made as part of this
Agreement as though fully set forth herein.
B. CONTRACTOR also assures and certifies that:
1. CONTRACTOR shall comply with Title VII of the Civil Rights Act of
1964 (P.L. 83-354) and in accordance with Title VII of the Act, no person shall, on the grounds of
race, color, religion, sex, age, handicap or national origin be excluded from participation in, be denied
the benefits of, or be otherwise subjected to discrimination under this Agreement.
2. CONTRACTOR shall comply with any and all federal laws limiting the
political activity of employees hired under this Agreement.
3. CONTRACTOR shall comply with the requirements that no program
under the Act shall involve political activities.
4. RECORD INSPECTION. CONTRACTOR shall provide the U.S.
Department of Labor and the Controller General, by and through any authorized representative, as well
as the WIB Administrative Office, access to and the right to examine all records, books, papers or
documents relating to the accounting and use of funds under this Agreement for a three-year period
from and after the effective date of this Agreement.
5. No person with responsibilities in the operation of any program under
the Act shall discriminate with respect to any program participant or any application for participation
in such program because of race, creed, color, national origin, sex, political affiliation or beliefs.
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6. CONTRACTOR shall maintain appropriate standards for health and
safety in work and training situations.
7. CONTRACTOR shall comply with general provisions, assurances, and
certifications attached hereto as "Exhibit G" and incorporated herein.
8. EQUAL OPPORTUNITY. Any literature distributed by
CONTRACTOR for the purpose of apprising businesses, participants, or the general public of its
programs under this Agreement shall state that its programs are supported by the City of Santa Ana
and the Santa Ana Workforce Investment Board, and shall state that the program is an "equal
opportunity employer/program" and that "auxiliary aids and services are available upon request to
individuals with disabilities."
9. Based on the population eligible to be served, or likely to be
directly affected by the WIA program or activity, the services or information may need to be provided
in a language other than English in order to allow such population to be effectively informed about or
able to participate in the program or activity. Pursuant to 29 CFR 37.35, the Contractor must take
reasonable steps to provide services and information in appropriate languages after considering the
scope of the program or activity, and the size and concentration of the population that needs services or
information in a language other than English.
10. CONTRACTOR certifies that all property, [mished or unfinished
documents, data, studies and reports prepared or purchased under this Agreement, will be disposed of
in accordance with the direction of the CITY. In addition, any tools and/or equipment furnished to the
CONTRACTOR by the CITY and/or purchased by the CONTRACTOR with funds pursuant to this
Agreement, will be limited to use within the activities outlined in this agreement and will remain the
property of the United States Government and/or CITY. Upon termination of this Agreement,
CONTRACTOR will immediately return such tools and/or equipment to the CITY or dispose of them
in accordance with the direction of the CITY.
11. CONTRACTOR certifies that this Agreement does not provide for the
advancement or aid to any religious sect, church or creed, or sectarian purpose nor does it help to
support or sustain any school, college, university, hospital or other institution controlled by any
religious creed, church, or sectarian denomination, as specified by Article XVI, Section 5, of the
Constitution of the State of California, regarding separation of church and state.
12. PATENT, COPYRIGHTS AND RIGHTS IN DATA. The
CONTRACTOR will disclose to the CITY any invention, written product, computer program
developed or data assembled as a result of performance of work under this Agreement within seventy
four (74) days of invention, development or assembly. The CITY, State of California, and U.S.
Department of Labor will have the right to patent any invention and copyright any written product or
computer program or data generated by CONTRACTOR. Upon written request, CONTRACTOR will
transfer all pertinent information, specifications and right, title and interest to the designated agency.
13. INVENTIONS, PATENTS AND COPYRIGHTS.
A. Reporting Procedure. If any project produces patentable items, patent rights,
processes, or inventions in the course of work under a U.S. Department of Labor (DOL) grant or
agreement, the CONTRACTOR shall report the fact promptly and fully to the CITY. The CITY shall
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report the fact to the Grant Officer, at the DOL. Unless there is a prior agreement between the CITY
and the DOL and its representative on these matters, the DOL shall determine whether to seek
protection on the invention or discovery. The DOL and its representative shall determine how the
rightsin the invention or discovery, including rights under any patent issued thereon, will be allocated
and administered in order to protect the public interest consistent with the "Governmental Patent
Policy" (President's Memorandum for Heads of Executive Departments and Agencies, August 23,
1971, and Statement of Government Patent Policy as printed in 36 FR 16889).
B. Copyright Policy.
1. Unless otherwise provided in the terms of the grant or agreement, when copyright-
able material is developed in the course of or under a DOL Grant or agreement, the author and the
CITY which developed the work is free to copyright material or to permit others to do so. The
CONTRACTOR and the Workforce Investment Board (WIB) shall have a royalty-free, nonexclusive
and irrevocable license to reproduce, publish, use and to authorize others to use all copyrighted
material.
2. The DOL reserves a royalty-free, nonexclusive, and irrevocable license to
reproduce, publish or otherwise use, and to authorize others to use, for Federal Government purposes:
(a) The copyright in any work developed under any grant, sub-grant, or contract under a grant or
subgrant; (b) Any right of copyright to which a grantee, subgrantee or a CONTRACTOR purchases
ownership with grant support; and (c) CONTRACTOR shall comply with the requirements of29
CFR Part 97.34.
C. Rights to Data. The DOL and the CITY shall have unlimited rights to any data
first procured or delivered under this Agreement.
14. CLEAN AIR / CLEAN WATER ACT. If the grant hereunder
exceeds $100,000, CONTRACTOR must comply with Section 306 of the Clean Air Act [(42 USC
1875(h)]; Section 508 of the Clean Water Act (33 USC 1368); Executive Order 11738 and
Environmental Protection Agency ("EP A") regulations (40CFR Part 15) as any may now exist or be
hereafter amended. Under these laws and regulations, the CONTRACTOR assures that:
(a) No facility to be utilized in the performance of the proposed grant has been listed
on the EP A List of Violating Facilities;
(b) It will notify CITY prior to award of the receipt of any communication from the
Director, Office of Federal Activities, U.S. EPA, indicating that a facility to be
utilized for the grant is under consideration to be listed on the EP A List of
Violating Facilities;
(c) It will notify the CITY and the EP A about any known violation of the above laws
and regulations.
C. CONTRACTOR agrees to adhere to the following STANDARDS OF CONDUCT:
1. General Assurance. Every reasonable course of action will be taken by CONTRACTOR in
order to maintain the integrity of this expenditure of public funds and to avoid favoritism. This
Agreement will be administered in an impartial manner, free from errors to gain personal, financial
political gain. CONTRACTOR, its officers and employees, in administering this Agreement, will
avoid situations which give rise to a suggestion that any decision was influenced by prejudice, bias,
special interest or desire for personal gain.
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2. Employment of Former State or CITY Emplovees. CONTRACTOR will ensure that any of
its employees who were formerly employed by the State of California or CITY, in a position that could
have enabled such individuals to impact policy regarding or implementation of programs covered by
this Agreement, will not be assigned to any part or phase of the activities conducted pursuant to this
Agreement for a period of not less than two years following the termination of such employment.
3. Conducting Business Involving Relatives. No relative by blood, adoption or
marriage of any executive or employee of CONTRACTOR will receive favorable treatment when
considered for enrollment in programs provided by, or employment with, CONTRACTOR.
4. Conducting Business Involving Close personal Friends and Associates.
Executives and employees of CONTRACTOR will be particularly aware of the varying degrees of
influence that can be exerted by personal friends and associates and, in administering this Agreement,
will exercise due diligence to avoid situations which give rise to an assertion that favorable treatment is
being granted to friends and associates. When it is in the public interest for CONTRACTOR to
conduct business with a friend or associate of an executive or employee of CONTRACTOR, an elected
official in the area or a voting or non-voting member of the Workforce Investment Board (WIB), a
permanent record of the transaction will be retained.
5. Avoidance of Conflict of Economic Interest. No executive or employee of
CONTRACTOR elected official in the area, or voting or non-voting member of a WIB, will solicit or
accept money or any other consideration from a third person, for the performance of an act reimbursed
in whole or part by CONTRACTOR or CITY. Supplies, materials, equipment or services purchased
with Agreement funds will be used solely for purposes asserted or allowed under this Agreement. No
voting member of the WIB will cast a vote on the provision of services or vote on any matter which
would provide direct financial benefit to that member or any business or organization which the
member directly represents.
6. Salary and Bonus Limitations. All Subrecipients of WI A program funds are required to
comply with federal requirements regarding the limitations on salary and bonus payments in
accordance with Public Law 109-149, Section 7013.
VII.
HOLD HARMLESS
A. CONTRACTOR shall indemnify and save harmless CITY, its officers, agents
and employees, from and against any and all damages to property or injuries to or death of any person
or persons, including property and employees or agents of CITY, and shall defend, indemnify and save
harmless CITY, its officers, agents and employees, from any and all claims, demands, suits, actions or
proceedings of any kind or nature, including, but not by way of limitation, workers' compensation
claims, resulting from or arising out of the negligent acts, errors or omission of CONTRACTOR, its
employees or subcontractors.
B. CONTRACTOR shall indemnify and save harmless CITY, its officers, agents
and employees, from and against any and all damages to property or injuries to or death of any person
or persons, including property and employees or agents of CITY, and shall defend, indemnify and save¾harmless CITY, its officers, agents and employees, from and against any and all claims,
demands,
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suits, actions or proceedings therefore, resulting from or arising out of the intentional or malicious acts
of CONTRACTOR, its employees or subcontractors.
VIII.
INSURANCE
1. Commercial General Liability. CONTRACTOR agrees to obtain and keep in force
during the term of this Agreement a policy of comprehensive commercial public liability insurance
insuring the State of California, CITY, and CONTRACTOR against any liability for accident, injury or
death arising out of or in consequence of this Agreement. Such insurance shall be in an amount not
less than One Million Dollars ($1,000,000.00) for any injury to or death of any person or persons in
any single accident or occurrence. Said policy of comprehensive public liability insurance shall be
endorsed to provide to CITY and to the State of California, Employment Development Department, at
least thirty (30) days written notice prior to cancellation; name CITY, its officers, agents, employees,
and volunteers, and the State of California, its officers, employees, and volunteers as additional
insured; and state that such coverage is primary to any other coverage or self-insurance of the State of
California and CITY. Governmental entities may substitute a certificate of self-insurance.
2. Automobile Liability Coverage... CONTRACTOR shall also obtain and maintain,
during the effective period ofthis Agreement, broad form automobile liability coverage with a
$1,000,000 limit unless reduced by CITY, which applies to both ownedlleased and non-owned
automobiles used by CONTRACTOR employees or participants in performance of this Agreement, or,
in the event that CITY will not utilize such owned/leased automobiles but intends to require
employees, participants or other agents to utilize their own automobiles in the performance of this
Agreement, CONTRACTOR shall secure and maintain on file from all such employees, participants,
or agents as self-certification of automobile insurance coverage. Governmental entities may substitute
a certificate of self-insurance.
3. Workers' Compensation. If CONTRACTOR is an "employer", as set forth in
California Labor Code Section 3300 et seq., or utilizes participants as "employees," as set forth in
California Labor Code Section 3350 et seq., CONTRACTOR shall obtain and keep in force during the
term of this Agreement full Workers' Compensation insurance coverage for injuries suffered by
participants. Said insurance policy shall guarantee CITY at least thirty (30) days written notice of
cancellation or modification. CONTRACTOR shall carry medical and accident insurance for those
participants not qualifYing as "employees" for Worker's Compensation Coverage, pursuant to
California Labor Code Section 3350, et seq.
4. Equipment Coverage. CONTRACTOR shall purchase a policy or policies of
insurance covering loss or damage to any and all Equipment provided to or purchased by
CONTRACTOR in accordance with this Agreement. Said insurance shall be in the amount of the full
replacement value thereof, providing protection against the classification of fire, extended coverage,
vandalism, malicious mischief, theft, and special extended perils. Governmental entities may
substitute a certificate of self-insurance.
5. Proof of Insurance. Certificates and endorsements must be submitted and approved
by CITY prior to any work under this Agreement. CONTRACTOR understands that CITY will make
no payments under this Agreement until the required certificates and endorsements have been
approved by CITY.
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IX.
CORPORATE STATUS
All corporate CONTRACTORS shall be in good standing, without suspension by the
California Secretary of State, Franchise Tax Board and Internal Revenue Service. Any change in
corporate status or suspension shall be reported immediately to CITY.
X.
ASSIGNABILITY
None ofthe duties of, or work to be performed by, CONTRACTOR under this Agreement
shall be subcontracted or assigned to any agency, consultant, or person without the prior written
consent of CITY. CONTRACTOR must submit all subcontracts and other agreements that relate to
this Agreement to CITY. No subcontract or assignment shall terminate or alter the legal obligations of
CONTRACTOR pursuant to this Agreement.
XI.
LAWS GOVERNING THIS AGREEMENT
In its performance under this Agreement, CONTRACTOR shall fully comply with the
requirements of the following, whether or not otherwise referred to in this Agreement:
1. The Act and all applicable federal statutes, regulations, policies, procedures and directives,
including but not limited to, 20 C.F.R. Parts 652 and 660 through 671; and
2. The American Recovery and Reinvestment Act of 2009 (the "Recovery Act") (P.L. 111-5); and
3. All applicable State statutes, regulations, policies, procedures and directives;
4. All applicable CITY policies, procedures and directives;
5. All applicable local ordinances and requirements, including use permits and licensing;
6. Court orders applicable to its operation; and,
7. The terms and conditions of this Agreement.
If any of the foregoing is enacted, amended, or revised, CONTRACTOR will comply with
such or will notify CITY after enactment or modification that it cannot so comply. CITY may
thereupon terminate this Agreement, if necessary.
XII.
EXCLUSIVITY AND AMENDMENT OF AGREEMENT
This Agreement supersedes any and all other agreements, either oral or in writing,
between the parties hereto with respect to the employment of CONTRACTOR by CITY, and contains
all the covenants and agreements between the parties with respect to such employment. 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 are not
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embodied herein, and that no other agreement or amendment hereto shall be effective unless executed
in writing and signed by both CITY and CONTRACTOR.
XIII.
FRAUD
CONTRACTOR shall immediately report to CITY all instances and facts concerning
possible fraud, abuse or criminal activity relating to expenditure or receipt of funds under this
Agreement.
XIV.
CONTINGENCY OF FUNDS
CONTRACTOR acknowledges that approval of and funding for this Agreement is
contingent upon State approval, and funds received or obligated from the State of California to CITY.
If such approval of funds is not forthcoming, or is otherwise limited, CITY shall immediately notify
CONTRACTOR. Within twenty (20) days of receipt of such notice, CONTRACTOR shall modify or
cease operations as directed by CITY and negotiate necessary modification to this Agreement and/or
reimbursement of costs incurred hereunder.
XV.
TERMINATION
A. This Agreement may be terminated by either party at its sole discretion, upon thirty (30)
days written notice to the other party. Notice shall be deemed served on the date of mailing. However,
CONTRACTOR may not terminate this Agreement if undue hardship will result to any participant.
B. In the event CONTRACTOR defaults by failing to fulfill all or any of its obligations
hereunder, CITY may declare a default and termination of this Agreement by written notice to
CONTRACTOR, which default and termination shall be effective on a date stated in the notice which is to
be not less than ten (10) days after certified mailing or personal service of such notice, unless such default
is cured before the effective date of termination stated in such notice. If terminated for cause, CITY shall
be relieved of further liability or responsibility under this Agreement, or as a result of the termination
thereof, including the payment of money, except for payment for approved expenses incurred for services
satisfactorily and timely performed prior to the mailing or service of the notice of termination, and except
for reimbursement of (1) any payments made for services not subsequently performed in a timely and
satisfactory manner, and (2) costs incurred by CITY in obtaining substitute performance.
XVI.
DISPUTES
Except as otherwise provided in this Agreement, any dispute concerning any question
arising under this Agreement shall be decided by CITY. In such a case CITY shall reduce its decision
to writing and mail or otherwise furnish a copy thereof to CONTRACTOR. The decision of the City
shall be final and conclusive unless within thirty (30) calendar days from the mailing or delivery of
such copy, CITY receives from CONTRACTOR written request to appeal said decision.
Procedures governing the appeal shall be prescribed by CITY and/or the State of
California in accordance with the Act and all corresponding regulations and OMB circulars. Pending
Page 12 of 15
final disposition of the appeal, CONTRACTOR shall act in accordance with CITY's decision unless
the dispute involves a change order.
XVII.
BREACH - SANCTIONS
If, through any cause, CONTRACTOR violates any of the terms and conditions of this
Agreement, and/or prior agreements whereby grant funds were received by CONTRACTOR pursuant
to this Agreement, or if CONTRACTOR reports inaccurately or if any Audit Report makes
disallowances, CONTRACTOR shall promptly remedy its acts or omissions and/or repay CITY all
amounts due CITY as a result of CONTRACTOR's violation. For any such failures or violations,
CITY shall also have the right at its sole discretion to either: (1) discontinue program support until
such time as CONTRACTOR fulfills its obligations or remedies all violations of this agreement or
prior agreements; and/or (2) collect outstanding amounts as determined by CITY due CITY by
offsetting or debiting from current claims or invoices, if after thirty (30) days' written notice
CONTRACTOR has failed to repay same or a repayment schedule has not been made; and/or (3)
terminate this Agreement by giving written notice to CONTRACTOR of such termination in
accordance the notice provision in Paragraph XVIII herein below.
XVIII.
NOTICES
All notices, reports and correspondence between the parties hereto respecting this
Agreement shall be in writing and deposited in the United States Mail, postage prepaid, addressed as
follows:
CITY:
City of Santa Ana
Manager, WIB Administrative Office
P.O. Box 1988 (M-73)
Santa Ana, CA 92702
and,
CLERK:
Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Telefacsimile (714) 647-6956
CONTRACTOR:
Essergy Consulting
235 E. Broadway, Suite 520
Long Beach, CA 90802
Phone: (562)608-8270
FAX: (562)452-6516
Attn: Dr. Philip Borden
Page 13 of 15
XIX.
MERGER
This Agreement, together with the attachments hereto, expresses the total understanding
of the parties. There are no oral understandings of the parties or tenus and conditions other than as
stated herein.
xx.
VALIDITY
The invalidity in whole or in part of any provision of this Agreement shall not void or
affect the validity of any other provision of this Agreement.
XXI.
MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature hereinbelow has the power,
authority and right to bind their respective parties to each of the tenus 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 ofthis Agreement.
Page 14 of 15
.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first
above-written.
ATTEST:
CITY OF SANTA ANA, a municipal
corporation of the State of California
"CITY"
1AY~H0;/tlr/A
I v Clerk of the Council
By:
l}~~
David N. Ream
City Manager
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
"CONTRACTOR"
BY:
~L' (.~
Lisa E. Storck
Assistant City Attorney
BY:
Na e: Dr. P dip Borden
Title: Principal
Tax 10 #: ).,4- 0"12"'71
Page 15 of 15
PROPOSAL OVERVIEW: OPERATIONAL PROCESS AND METHODOLOGY
Essergy Consulting proposes the following step-by-step plan to reduce the rate of
business failure, retain jobs, and possibly stimulate business growth in Santa Ana:
· Identify small businesses downsizing, laying off or moving, along with the WIB;
a Produce workshops for identified businesses that offers solutions to common
problems affecting struggling companies;
· Offer workshop attendees and other selected business owners specific information
online or in printed format on business improvement techniques;
· Conduct one.on..one interviews with business owners in order to identify the best
and most committed prospects for intense counseling;
· Choose businesses that can be salvaged through financial, marketing, technical
assistance and other forms of support;
· Form an Essergy Team of consultants to address the issues with the owners of the
identified companies;
· Provide low-cost actions that can be implemented immediately and longer-term
recommendations to assist the business owner/manager going forward.
· Assess the results using rigorous quantitative and qualitative methods, to utilize as
the basis of a model that can be implemented on a broader scale.
· Create a model to be used by the Santa Ana WIB to extend the program.
Essergy's approach will be based on the following methodologies:
· Rapid Response Services successfully implemented in Western Pennsylvania
successfully over a four-decade period;
a Business support materials utilized worldwide, highly detailed, written in everyday
language, and tested in underserved communities worldwide;
a Business development framework based on competitive advantage theory;
B Evaluations based on quantitative and qualitative results derived from hard data and
attitudinal change evaluated on anthropological field work principles.
I. EXPERIENCE
Essergy's Experience In Providing Similar Services. Essergy Consulting was
established in late 2007. We began providing conSUlting services to private companies and
government entities in environmentally and socially oriented economic development in mid-
2008. Our 26 core team members have ari" aggregate experience totaling nearly half a
millennium. We have served as elected and appointed officials and contractors to city,
county, state and national governments, as well as consultants to universities. colleges and
private clients.
Xsseroy consufting Rapid Response Services: A Proposal to Santa Ana W!O/R/K Center. 10/29/2009. Page 1
FXHIRIT A
Our core team has written over 400 books, articles and presentations on business and
economic development, technology and management for refereed and popular journals and
presented to professional associations and governments on five continents.
Essergy's Current Projects and Clients. Among Essergy's current contracts directly
comparable to the Santa Ana project as of October 30, 2009, are active contracts with:
· Work Investment Board (WIB) and Community Development Department
(COD) in Los Angeles to develop its fundamental green jobs strategy [total value,
$49.500]. Outcome is an in-depth report on four fundamental business sectors
cross-cutting construction, food processing, apparel manufacture, transportation,
logistics, and hospitality/tourism.
· California Space Authority, City of Anaheim and City of Lompoc economic
development/job development retainerships [total annual value of open contracts
approximately $98,000, with possible 10- year follow-on for California Space
Authority]. Outcomes include development of 77 acres of green/small business
support under long-term lease by Vandenberg Air Force Base; small and large
business- and job- retention strategies and tactics involving dozens of businesses;
creation of business center surrounding transportation plaza, resulting in the
creation of at least 1,500 jobs over 10 years.
· Incubator evaluation contracts with the County of Los Angeles [total value
$95,000 with potential follow on of $500,000] In 2010. Outcome is feasibility and
possible building of technology incubator projects In Antelope Valley and Whiteside
area of Los Angeles, to result In possible built incubators providing over 100 high-
value jobs over five years.
· Modesto Junior College, Louisiana State University, 4 Points Solutions (in Iraq
for U.S. Department of State), for small business support, small business disaster
recovery, and Small and Medium Enterprise (SME) market evaluation [total value
$65,000]. Outcomes involve job retention and possible creation for small
businesses in two states, totaling at least 100 jobs over three years, plus an
unknown number of jobs In eight provinces of Iraq over a decade.
In addition, Essergy's contract co-manager was a founding member of the Los Angeles
and Long Beach WIBs.
Letters of Support. See Attachment G.
Funding Base and Financial Management System. For detail on how Essergy will
manage the project, which includes financial management policies, see Section III.
Funding Base. Essergy is funded mostly by contracts with government economic
development entities (90%) and to a lesser extent by private companies. We do not have
any grant funding. We established a 501 rc][3l Community Investment Research Institute,
accepted by the I.R.S. in August 2009. It is not yet active.
Compliance. Essergy complies with GAAP accounting standards and principles.
Essergy employs project management software capable of tracking several funding
streams at once. Our management understands the principles of both government and
nonprofit accounting, and the necessities for cost separation they require. As experts in
'Essergy consultinn Rapid Response Services: A Proposal to Santa Ana W/O/R/K Center. 10/29/2009. Page 2
I=)(J..IIRIT A
Sarbanes Oxley compliance, Essergy meets the financial, management, security and
organizational standards demanded of a much larger organization.
Controls. Essergy employs a modified IIC-Spec" system. Once used In military
contracts, the Essergy version ties specific expenditures to milestones and compares
actual and monthly expenditures on a regular basis. This system provides a method for
monitoring actual expenditures and measuring them against budgetary projections. The
program also insures that problems are identified early; a consideration linked to both
performance and cost impact.
Client Transparency. We provide frequent reporting and client access to electronic
records on demand in order to create a high degree of transparency, important for both
client confidence and for fraud control.
Accounting Review. Essergy employs an outside CPA who prepares and reviews
monthly statements.
Pricing and Invoicing Strategy. Essergy bills all costs as direct costs. It does not charge
an overhead rate.
Two Added Essergy Benefits for the Santa Ana WIB
· Quality, locality, experience. Essergy's approach leverages the skills, savvy and
experience of a highly-qualified team of local experts. Almost all of Essergy's Senior
Associates live in or close to Orange County and Santa Ana. All of Essergy's
partners are local. Not only will Essergy bring high-end skills to this project, it will
also bring tested tools. Essergy will use business-development models that have
been implemented successfully all over the globe.
· Ability to Add Financing Value. Essergy has previous experience in using public
and community resources to enhance services. So far, in 2009, Essergy has
secured over $10 million in EDA funding for the City of Anaheim and California
Space Authority. Since Essergy's inception, it has a 100% success track record in
securing funding for clients. In addition, Essergy has three experts in public/private
financing strategies, totaling more than 75 years of experience in the public sector.
II. SERVICES TO BE PROVIDED
Description of Services to Be Offered. This narrative is divided into the methodology
behind the services to be offered, a milestone chart describing the services in detail and
how and when they will be delivered, and the expected outcomes and how they will be
measured.
Project Goals
· Focus is on business assistance for existing businesses, not start-ups.
· Retained/sustained employment: Advise 10 - 12 companies and retain or add at
least 30 jobs, for a per job cost of less than $5,OOO/job.
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I=YI-lIRIT /!J.
· Increased company stability: The decision to keep doors open is, In Itself, a
victory for employment, taxes and the secondary effects generated by company
retention.
· Attitude changes. Essergy will utilize questionnaires to and interviews with owners
in the targeted companies to establish attitudes about the future.
Essergy's Models and Methods: Tried and True.1
· Overall Theoretical Framework. We will utilize Michael Potier's value~chain
analysis to identify those aspects of the business that provide its competitive
advantage, plus the external and internal constraints that inhibit the value chain. We
will focus on constraint removal, plus product, brand, management and financial re~
engineering techniques to stabilize the company and perhaps prepare it for later
investment. This theory also will provide an analytic framework for the one-an-one
interview process to take place at the workshops.
.. Workshops.
· Goal/driven workshops. The individual team members have each developed
workshops, workshop materials and served as workshop leaders and/or
participants. The team values goal~driven workshops that provide more than an
overview of an issue, but serve as the basis for business~owner involvement and
the understanding of how the individual Essergy Team members can work directly
with them to help resolve barriers and provide forward-moving actions.
· Workshop materials. Both the workshops and materials will rest on the contents
of the SME Toolkit, developed for underserved areas by the International Finance
Corporation of the World Bank. Divided into highly interactive chapters on
aspects of management, marketing, and finance, this toolkit, which rests in large
measure on Porter's Insights, is being used successfully across a broad spectrum
of societies and business environments.
1 See Michael Porter, Competitive Strategies (1980) and Competitive Advantage (1985), plus the development of
those theories Into business enabling environments and as modified for less affluent areas In a series of articles,
1990-2006, many of which have appeared In the Harvard Business Review. This work has been widely applied not
only in the World Bank materials. but by the United States Agency for International Development. One of the latest of
such studies Involves an assessment of SME development in Babll Province In Iraq, by Mohammad Shohaleb, Eric
Nigh. and Philip Borden (219 pp, forthcoming In November, 2009). The SME Toolkit was Just pUblished In English
and several other languages. For rapid response, see Rapid Response Layoff Avers/on Guide (2002).
http://www.steelvalley.om/sub.aso?ID:::15&subID:::12. The guide deals with the last recession. However, because It
was a national study and general toolkit, many of Its approaches are sUII relevant. The State of Michigan and City of
Anaheim have more recent studies Identifying the affected workforce and created labor-orlented strategies. Stuart
Gordon (OTIC). L1na Ramos (EGE). and Philip Borden (Essergy) returned In September, 2009 from advising the
government of Brazil and the UN's World Intellectual Property Organization on the techniques mentioned. Borden's
three presentations on support and financing for SMEs and university spin-out businesses Is available on request, as
Is Borden's "Very Small Business Creates Very Large Change,~ Minority and Small Business Review (2009), with
Terry Blbbens. On qualitative analysis. see Robert Georges and Michael O. Jones, People Studying People (1980),
and Borden, "Evaluating Entrepreneurial Training: A Report to the ReconstrucUon Management Office of the
Department of State (2007), with Tamra Hackett.
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FXHIRIT A
· Individualized Rapid Response Services.
· Rapid Response Toolkit. The Steel Valley Authority of Western Pennsylvania's
Layoff A version Guide will furnish the basic toolset. Developed for an area
where economic struggles have been a fact of life for three decades, it has the
largest number of published layoff~aversion tools and the broadest best-practices
listings.
· The Process of Selective Immersion. The Office of Technology Transfer and
Commercialization of California State University San Bernardino (OTTC) and
Emerging Growth Enterprise (EGE) will guide Essergy's multidisciplinary
approach. This targeted approach uses a team of experts that devote their
energies to improving a few companies chosen for their high potential for
success. OTTC has achieved 80% success in achieving venture funding for its
companies, and EGE has achieved returns on Investment in quadruple figures.
Measurement of Results/Outcomes
· Schedule of deliverables. The Santa Ana WIS will determine the schedule of
deliverables in negotiation with Essergy.
· Quantitative. The numbers are sufficiently small that quantitative analysis will be
straightforward and will not require specialized analytic software.
· Qualitative analysis needs to be controlled in a better way than simply to
interview service recipients. The theoretical framework favored by Essergy has
been derived from folklorlstics and anthropology fieldwork techniques as
expressed in a standard work by two UCLA professors, cited in the general
footnote.
· Limits on success measurements. While we will monitor company"added
revenue generation and profitability, longer-term longitudinal measures of success
will not be possible in a statistically reliable way.
Project Plan and Tlmeline. Essergy's general approach is expressed below as a
project timeline. In order to bring maximum assistance to Santa Ana businesses in the
most efficient and effective way, the majority of Essergy's activities will be telescoped
into the first six months with maintenance follow-up provided during the remainder of the
contract year. Following contract negotiations, this time line will be implemented,
beginning in January 2010.
Due Date Task
January, Essergy managers analyze preliminary target list.
2010 · Work with Santa Ana WIB staff to determine which small businesses are
in the greatest danger of layoffs, and which ones have the greatest
immediate potential and possibilities of longerMterm success.
February, Essergy conducts Initial half-day workshop for owners of small
2010 businesses that have been selected by Santa Ana WIS staff working
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1=)(I-IIRIT fj.
with Essergy, plus half day one-an-one evaluation session to select
target companies for one-an-one counseling.
Workshop topics:
· Market and competitive analysis
· Operational streamlining and savings
· Communicating your value proposition, including utilizing Internet
marketing and social media
· Understanding and finding financing
Workshop materials:
· IFC SME Toolkit - also to be made available to non-workshop
participants through the Orange County Hispanic Chamber of
Commerce
Selection process guidelines:
· Does the company have viable market and business prospects?
· What is the likelihood of relatively near-term success?
· Are there Willing potential industry and other collaborators?
· What is the likely cost per job saved?
· Is the company willing to provide access to its records?
· Is the owner ready to support. implement and "champion" any
suggested changes?
February - Essergy Project Managers analyze selected companies, establish
March, work plan, desired outcomes, success Indicators and measurement
2010 milestones.
· Project managers conduct initial triage to identify key challenges for
each company selected. and to prioritize solutions.
· Project managers create specific Essergy Team for each company. Not
every company will need every service.
· Project managers create schedule, measurable milestones for each
Essergy Team engagement
March - Essergy Teams work with selected companies to adopt practices that
August, will retain employees or keep the company from moving out of the
2010 County.
· Site visits. owner meetings, staff interviews as appropriate, etc.
· Methods and tools indicated in preceding methodology section:
· Quick interventions on "crisis" issues
· Identify current and potential assets. value-chain contributors and
constraints, etc.
· Leverage Santa Ana WIS, Hispanic Chamber, Essergy r~sources and
contacts (including angel financing If appropriate).
· Continuous progress evaluation and strategy adjustment
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!::YI-lI~IT 11
August - Essergy Project Managers, selected Essergy Team members follow
October, up with regular weekly or bi-weekly meetings to monitor continued
2010 progress.
February - Essergy Project Managers provide monthly reports, billings to WIB
October, · Based on C-Spec system or preferred WIB format
2010
November, Essergy Project Managers write and submit final report.
2010 · Final report for WIS, evaluating project success according to measures
adopted above
· Final private report for each selected company, specific to each
company
· Model created, with suggested "trainer training" for One.Stop expansion
of program
III. PROGRAM MANAGEMENT
Essergy's Project Orga.nlzation Chart. See Attachment H.
Essergy's Project Management Plan. Essergy has a management plan In place for
detecting project slippage, creating corrective actions, Identifying and addressing
potential fraud, and creating an atmosphere of continuous improvement. Specifically,
for managing this contract, Essergy will:
· Assign a Project Manager as the single point of contact. The Project Manager will
be available at all times via telephone, text messaging, email, and/or Web
interaction. With two associate managers, someone will always be on call.
· Establish a password-protected SharePoint site through which all project personnel
can share information and documents while maintaining privacy from those engaged
in other Essergy projects. Essergy is a fully computerized facility, with a virtual
private network accessible from anywhere.
· Utilize Essergy's internally-developed C-Spec related project management software
that integrates financial data with a PERT chart, as well as Microsoft Project
software for deliverables control and ability to re-Ievel resources, including the
controls and transparency procedures Indicated in Section II.
· Begin by constructing a work breakdown structure that defines the contract SOW
deliverables as concrete tasks/subtasks and assign dollar amounts, primary
responsibility for each task and backup responsibility.
· Require weekly team member reports and conduct weekly project team meetings
either face-to-face or via conference call or teleconference backed by exchange of
data through software. Use meetings to identify potential concerns and any required
re.leveling or reassignment of personnel.
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I:VUIOIT ^
· Issue regular progress reports in a format that quickly summarizes progress, identifies
potential challenges, problems, contractual needs and upcoming deliverables.
Essergy software links the identification of problems to schedule and cost.
· Review all project deliverables for quality prior to release. The review is conducted
by the Project Manager.
· . Maintain all reports, correspondence, schedules and cost matters electronically and
in separate hard files. Such files may be accessed by clients in person or remotely
by computer. Essergy has a strong reputation for maintaining "clean" records.
Project Personnel. Project personnel are divided into Essergy employees and
partners. We indicate which partners are paid and which will be contributors of in-kind
leveraged funding.
Essergy Consulting
· 'Phllip Borden, Ph.D., Project Co-Management/CapltaIlFlnance. A co-founder of
Essergy Consulting, several of whose projects are listed previously, Dr. Borden is a
business consultant who has led Women's Enterprise Development Corporation,
Asian American Economic Development Enterprises, and Active Capital. All were
non profits engaged in improving small business opportunity and workforce
development. He returned in mid-October from his fourth trip to Iraq on SME
development projects for the Department of State, and just prior from an
engagement in Brazil on financing SMEs. He has written nearly 100 articles and
presented papers on small business development in Japan, China, and Russia.
Over his 35 year career, he has been a professor at UCLA and use (Visiting), a
serial entrepreneur whose companies have been cited for their innovative character
in Business Week, Entrepreneur, and on NBC and CBS news.
· Joseph D. Ames, Project Co-Management/Candidate Company Triage. Mr.
Ames specializes in collaborative strategies, including facilitation, project
management, change management and executive coaching. For the Maryland
Department of Labor, he facilitated the transfer of Adult Education programs from
the Department of Education to the Labor Department, aligning workers' education
and training with employers' needs. For SRI International, he developed a
governance plan linking SRI research to the economic needs of the Shenandoah
Valley In Virginia. For the University of California, Irvine, he serves as executive
director of a national science consortium funded by the National Institutes of Health.
For Resources Global Professionals, he coached executives on strategic
challenges. For The Orange County Register. he led teams while holding a variety of
key editing posts.
Essergy Partners
· Linda Miller Ames, APR, Communications Operations. Ms. Ames has
developed stakeholder communications involving small business marketing
communications, Internet marketing and social media to promote product benefits.
Operationally, she has researched sales and operational practices, identified
efficiencies and best practices, recommended changes, documented and rolled out
. new policies and procedures. She has worked with management to develop
'Essergy consufti1lB Rapid Response Services: A Proposal to Santa Ana W/O/R/K Center. 10/29/2009. Page 8
EXHIBIT A
"champions" for companywide change and created internal communications
programs to help employees through systemic changes; She has also developed
and implemented strategic community programs and handled crisis communications.
In addition, she developed communications I culture Change programs for eight bank
mergers in four years, involving a review of products I pricing and merging of
Offerings.
· Patricia Minassian, Market Analysis/Marketing and Business Development.
Ms. Minassian is a senior marketing strategist in the areas of medical devices,
healthcare, technology, manufacturing and non-profits. She provides outsourced
marketing analysis, marketing and business advisory services to small
manufacturing clients through a California non-profit program funded by the U.S.
Department of Commerce. She works one-on-one with clients to problem-solve,
identify opportunities, develop strategies and write recommendations designed to
help small businesses succeed. She has also worked with a number of private-
sector companies including VQ Orthocare, The Merit Companies and LifeMasters,
Inc., directing strategic initiatives, and brand positioning and alignment with the
company direction. For Apria Healthcare Group, she designed brand promotions,
clinical education and messaging.
· The Orange County Hispanic Chamber of Commerce. The Hispanic Chamber will
provide wOrkshop sponsorship and meeting space, as well as support business
owners in learning to use technology to enhance their businesses, Including Internet
training.
pssergy consuftine Rapid Response Services: A Proposal to Santa Ana W/O/R/K Center. 10/29/2009. Page 9
I:Vl-IlQIT A
PROJECT PLAN FOR SANTA ANA RAPID RESPONSE SERVICES
y will provide technical assistance, through workshops, and seminars to 50 Santa Ana small businesses
witli 0 or less employees. Advise 10 -12 companies and retain or add at least 30 jobs, for a per job cost of
less than $5,000jjob.
ITEM FEB MAR APR MAY JUN JUL AUG SEP
Contract sign off/kick off meeting with Santa Ana WIB 0
Generate preliminary list of target companies with WIB 0
Plan and hold first workshop [1] 0 .
Develop general success measure criteria [2] 0 .
Triage of first group of companies [2] .
Establish first group of companies to be aided .
Develop work plan .for each company aided [3] 0 .
Develop specific success measure for each company aided 0 .
(3]
Plan and hold second workshop (only if needed) [1] [J .
Consulting/advising/mentoring individual companies [4] 0 [J 0 0 0
Follow-up and progress monitoring of companies aided [J [J Cl 0
[4]
Monthly progress reports/billings [5] . . . . . .
Final report/billing [5] Cl 0 .
NOTES
(1] Planning will be done by Essergy and the Hispanic Chamber of Commerce. Companies to be invited will
be determined by Essergy, the Hispanic Chamber, and the City of Santa Ana. Any advertising needed will
be done through the Hispanic Chamber and City. The site will be the Hispanic Chamber. The target
group will be 50 Santa Ana businesses.
The workshop will be a half day. Topics covered In the workshop will partially depend on the types and sizes of
the companies selected, but will cover at least the folloWing topics:
· Market and competitive analysis
· Operational streamlining and savings
· Communicating your value proposition, including utilizing Internet marketing and social media
· Understanding and finding financing
At the end of the workshop we will ask which companies would like to have get free consulting by the workshop
presenters and others. We will hold a second workshop if and only if it becomes necessary due to low enrollment
in workshop or unacceptable selection results.
EXHIBIT 8
'Essergy consuftine Page 1
(2J We will select companies for further counseling from among the volunteers based on one-on-one Interviews with
Essergy staff and answers to a questionnaire scored according to the following criteria that indicate the likelihood
of relatively near term success
. The presence of a viable market for the company's product or service, and a company's of reaching It;
. The willingness of the company to provide access to its records and Information under an appropriate
nondisclosure agreement;
. The willingness of the owner/manager to support, implement, and champion suggested changes, plus his/her
ability to do so;
. The availability of potential industry and other collaborators;
· The possibility of access to financing; and
. The likely number and cost of jobs to be saved.
The Essergy team will meet to select 5-8 companies for further counseling.
[3J The Essergy team will assign a principle counselor to each company selected. The principle counselor will identify
the challenges and constraints specific the target company and its assets for addressing them. He/she will
prioritize the challenges and develop a work plan and criteria for measuring success after in-depth analysis of
each company. Written materials developed will be communicated to the Santa Ana WIB. Each business owner
will be required to "sign on" to the goals developed with the principle counselor. Essergy team counselors wlll be
free to invite other Essergy members with specific expertise to help In the counseling process.
. The work plan will be written and will have outcomes and a tlmeline.
. The criteria for success will be worked out with the business owner/manager and agreed to by the parties.
(4] The principle counselor will work the plan developed in (3J, initially intensively, then will check up on the target
businesses on a regular basis, to insure that they are following the plan and to adjust the plan and consulting
levels as appropriate to achieve the results agreed upon. He/she will provide quick crisis interventions as
appropriate.
The principle counselors will meet regularly to discuss cases. At the end of the perIod Essergy will provide each
targeted company with a report and plan for carrying forward after the test period. As appropriate, companies
will be referred for further support through the Hispanic Chamber or WIB, and may be prepared for banking
and/or Investment and may be introduced to potential funders.
[5] The Essergy team will track Job Creation, Job Retention, Increased Revenue, and Increased Profits to be submitted
in the monthly reports. Monthly reports will measure progress according to the plan, identify issues to address In
the coming period, and bill for the costs incurred. Essergy understands that the CIty may be a hold-back a
percentage, depending on its regulations. The final report wlll summarize the project and suggest elements of a
model that could be extended by Santa Ana or others to carry the work forward. The report also may contaIn
suggestIons for training those to follow.
'Esseroy consu{tinn Page 2
EXHIBIT B
COMPLAINT HANDLING
UNDER THE
WORKFORCE INVESTMENT ACT
SANTA ANA
WIA
Santa Ana Local Workforce Investment Area
Revised May 7,2009
Exhibit C
Table of Contents
I. Information Regarding Complaints
A. Nondiscrimination and Equal Opportunity Complaints
1. Policy Statement
2. Civil Rights
3. Nondiscrimination laws under WIA
4. How to File Your Complaint
B. Criminal Complaints
II. General Procedures for Handling Non-Criminal Violations of the Act
III. Procedures for Handling Complaints at the LWIA Level
IV. Procedures for Handling Complaints at the State Level
V. Procedures for Handling Discrimination Complaints by Participants
VI. Procedures for Handling Handicap Complaints by Participants
3
3
3
4
4
5
6
6
8
12
15
17
20
GLOSSARY OF WIA TERMS
2
EXHIBIT C
I. Information Regarding Complaints
A. Nondiscrimination and Equal Opportunity Complaints
1. Policy Statement
In carrying out the purpose of the Workforce Investment Act (WIA), the City of Santa
Ana Local Workforce Investment Area (LWIA) will establish programs to prepare
youth and unskilled adults for entry into the labor force and to afford job training to
those individuals facing serious barriers to employment. Every effort will be made to
provide services necessary for eligible individuals to obtain productive employment.
In implementing WIA, all contractors in the Santa Ana LWIA will foster equal
opportunity and non-discrimination, as provided in State and Federal equal
opportunity and non-discrimination laws including, but not limited to:
· Title VI of the Civil Rights Act of 1964
· Title VII of the Civil Rights Act of 1964
· The Age Discrimination Act of 1975, as amended
· Section 503 of the Rehabilitation Act of 1973
· Section 504 of the Rehabilitation Act of 1973
· Title IX of the Education Amendments of 1972
· Section 188 of the Workforce Investment Act of 1998
In keeping with our commitment, no individual shall be excluded from participation in,
denied benefits of, subjected to discrimination under, or denied employment, in the
administration or of in connection with any WIA funded program because of race,
color, religion, sex, national origin, age, handicap, or political affiliation or belief.
Participation in programs and activities financially assisted in whole or in part under
WIA shall be open to citizens and nationals of the United States, lawfully admitted
permanent resident aliens, lawfully admitted refugee, parolees, and other individuals
authorized by the Attorney General to work in the United States.
No individual will be intimidated, threatened, coerced, or discriminated against
because of filing a complaint, furnishing information, or assisting or participating in
any manner in an investigation, compliance review, hearing or any other activity
related to the administration of WIA.
3
EXHIBIT C
Administration responsibility for this Equal Opportunity/Affirmative Action (EO/AA)
Program is delegated to the Equal Employment Opportunity (EEO) Officer for the
Santa Ana local Workforce Investment Area. Equal opportunity and non-
discrimination, however, will only be achieved through leadership and implementation
of a viable Affirmative Action Equal opportunity Program.
2. Civil Rights
No one applying for or enrolled in the Workforce Investment Act (WIA) programs may
be discriminated against because of race, color, creed, handicap, national origin, sex,
age, political affiliation, or beliefs.
This means that - for any of the characteristics listed above:
· You may not be denied the opportunity to enroll in WIA.
· No benefits or services may be denied you for discriminatory reasons.
· You may not be segregated or treated any differently from other applicants or
participants, while you are being registered, interviewed, counseled or tested; or
while you are working or attending classes as part of the program.
· You must be provided an equal chance to use all facilities available in the
program.
· Fair employment practices must be provided to all staff with regard to recruiting,
hiring, transferring, promotions, training, compensation, benefits, layoff, and
termination.
You have the right to make a complaint if you feel you have been denied any of the
above opportunities. You cannot in any way be penalized for filing a complaint. Your
WIA sponsor has established a mechanism for handling complaints and grievances.
Your complaint must be filed within 180 days. All complaints will be handled
confidentially.
3. Nondiscrimination Laws under WIA
Title VI of the Civil Riohts Act of 1964
Prohibits discrimination on the basis of race, color, national origin, or religion.
The Aoe Discrimination Act of 1975
Prohibits arbitrary discrimination against persons age 40-70.
The Rehabilitation Act of 1973
4
EXHIBIT C
Prohibits discrimination based on handicap.
Title IX of the Education Amendments of 1972
Prohibits discrimination in any education or training program or activity receiving
federal financial assistance.
OTHER CIVIL RIGHTS LAWS:
Title VII of the Civil RiQhts Acts of 1964
Prohibits discrimination in employment based on race, color, religion, sex, or
national origin in all terms and conditions of employment and establishes the
Equal Employment Opportunity Commission as the administrative agency.
White House Executive Order no. 11246 as Amended by Executive Order No.
11375
Creates the office of Federal Contract Compliance and prohibits discrimination
based on race, color, sex, religion, or national origin.
Department of Labor Secretary's Order no. 4-73
Prohibits discrimination based on sex.
Equal Pay Act of 1963
Prohibits pay differential solely because of sex.
Emeroency Employment Act of 1971
Prohibits discrimination based on race, creed, national origin, political affiliation, or
beliefs.
4. How to File Your Complaint
a. Put your complaint in writing.
b. Have it sworn to before a notary public, if possible.
c. Provides details that tell what happened, where it happened and when it happened.
d. Give the name and addresses of all persons who were present or who had anything
to do with the matter.
...Complaints on the basis of race, color, or national origin, age, sex, religion,
political affiliation or belief, retaliation and citizenship, must be filed within 180
days of the alleged occurrence directly with:
5
EXHIBIT C
Director
Civil Rights Center
U.S. Department of Labor, Room N-4123
200 Constitution Ave., NW
Washington, D.C. 20210
Complaints on the basis of handicap must be filed within 180 days of the alleged
occurrence. These complaints must be filed directly with the WIA administrative
entity. The WIA administrative entity shall issue a written decision within 30 days
of the filing of the complaint. If the complaint is still unresolved, an appeal may be
made to the Chief of State Workforce Investment Division Office.
The Department of Labor, the Civil Service Commission, the Equal Employment
opportunity Commission, and many other offices and agencies are committed to
assuring equal employment opportunities for all persons. They will protect you.
A case may be taken to court if the other processes do not yield satisfactory results.
You may hire your own lawyer, or if you cannot afford one, the court may appoint one
for you.
It is unlawful for an employer, union, or employment agency to punish you or any
witness for attempting to present the facts in a case.
YOUR CIVIL RIGHTS UNDER THE
WORKFORCE INVESTMENT ACT
Santa Ana Local Workforce Investment Area
1000 E. Santa Ana Blvd., Ste 200
Santa Ana, CA 92701
(714 )565-2600
B. Criminal Complaints
In accordance with the WIA (P.L. 105-200) and the implementing code of Federal section
667.600.... Federal handling of criminal complaints and report fraud, abuse and other
criminal activity. "All information and complaints involving fraud, abuse or other criminal
activity shall be reported directly and immediately to the City of Santa Ana and the
Secretary of Labor."
II. General Procedures for Handling Non-Criminal Violations of the
Act
The following procedure is promulgated to meet the requirements of Title 20, of the Code of
Federal Regulations, Section 667.600 through 667.640 of the WIA regulations, and Section
181(c) of the Act (Public Law 105.200: 29 U.S. Code Sec. 2931 et seq.) at the State and LWIA
level for the receipt, investigation, hearing, and resolution of complaints by WIA participants,
6
EXHIBIT C
sub recipients, applicants for participation, or financial assistance, labor unions, community
based organizations, or any other persons.
These procedures provide for resolution of non-criminal complaints arising from the operation of
the Santa Ana LWIA.
A complaint.is defined here as a written expression by a party alleging a violation of the Act,
regulations promulgated under the Act, recipient grants, sub agreements, or other specific
agreements under the Act, including terms and conditions of employment of such
participants in employment training programs. All complaints, amendments and withdrawals
shall be in writing. These procedures are intended to resolve matters which concern policies,
procedures or action(s) arising in connection with WIA programs operated by each LWIA grant
recipient and sub recipient under the Act.
These procedures shall not be construed as affecting any other available legal remedy outside
of the WIA complaint process (Le., disputes regarding terms and conditions of employment of
any employee who is not a participant), either separately or simultaneously, that a person may
wish to pursue in the resolution of a non-WIA complaint. Also, these procedures do not restrict
the LWIA grant recipient staff in carrying out informal discussion
Procedures do not restrict the LWIA grant recipient staff in carrying out informal discussion and
resolution of any problems outside of and without resort to the formal complaint procedure.
A. The following principles and rules apply to all complaints at all steps of the complaint
procedures:
1. All complaints must be made in writing within 180 days of the alleged occurrence,
except complaints alleging fraud or criminal activity.
2. All persons filing a complaint shall be free from restraint, coercion, reprisal, or
discrimination. Good faith efforts shall be made to informally resolve the complaint
prior to the scheduled hearing. Complainants have the right to withdraw their
complaints (in writing) at any time prior to the hearing. A complainant may amend
his/her complaint to correct technical deficiencies but not to add issues.
3. Complainants shall have the right to be represented at their own expense by
person(s) of their choosing at all levels of the complaint process.
4. Upon enrollment into employment or training, participants shall be provided with a
written description of these procedures, including notification of their right to file
complaints and instructions for filing.
An employer of participants, including private-for-profit employers of participants, may
use this or other complaint resolution procedures so long as the participant is
informed of the complaint resolution procedure they are to follow and the time frames
governing review of complaints are met.
7
EXHIBIT C
III.
A "participant", within the meaning of these procedures, is an individual who receives
employment-training services under a program funded by Santa Ana LWIA. The
Complaint Resolution Procedures contained herein (or the alternative procedures
which an employer may use) shall be available to participants to resolve disputes
regarding items and conditions of employment of such participants in employment
training programs. However, such procedures shall not be used to resolve disputes
reQardinQ terms and conditions of employment of any employee who is not a
participant. as defined herein.
5. If a complaint does not receive a decision at the LWIA grant recipient level within 60
days of filing the complaint or receives an unsatisfactory decision, the complainant
then has a right to request a review of the complaint by the Governor.
6. Complainants must initially file and exhaust LWIA grant recipient/hearing procedures
prior to appealing to the State except where the State determines that the LWIA grant
recipient's procedures are not in compliance with the State's procedures.
Procedures for Handling Complaints at the l WIA level
A.
Receipt Complaints
Pursuant to the WIA regulations found at 20 CFR, Section 667.600, the LWIA administrative
entities have the responsibility to conduct hearings and resolve complaints made by
individuals about the administration of programs in the LWIA. "LWIA level" encompasses
LWIA administrative entity and employers to which the administrative entity has delegated
the complaint resolution process. The following comprise the guidelines for resolving issues
arising in connection with WIA programs operated by the Santa Ana LWIA including
resolutions of complaints arising from actions, such as audit disallowances or the imposition
of sanctions taken by the Governor with respect to audit findings, investigations or
monitoring reports.
1. Form and Filing of Compliant
Official filing date of the compliant is the date the written complaint is received. The filing
of the complaint with the Santa Ana LWIA Equal Employment Opportunity Officer shall
be considered as a request for hearing and a decision must be issued within 60 days.
The complaint must be in writing and must be signed and dated. The complaint should
also contain the following information:
a. Full name, telephone number, if any, and mailing address of the complainant;
b. Full name, telephone number, and mailing address of the agency involved (respondent);
c. Clear and concise statement of facts including dates constituting alleged violation;
d. What provisions under the Act, regulations, grant or other agreements under the Act, are
believed to have been violated;
8
EXHIBIT C
e. Remedy sought by the complainant; and
f. If the complainant is a private or public entity or corporation, and not a natural person,
the filing of the complaint must be duly authorized by the governing body of such entity
or corporation.
The absence of any of the requested information shall not be a basis for dismissing the
complaint.
A copy of the complaint must be sent to the respondent and both parties notified of the
opportunity for an informal resolution. At each step of the complaint process, the complainant
must be notified in writing of the next procedural step.
2. Informal Conference
Informal conferences will be utilized by the Santa Ana LWIA to resolve complaints;
however, such informal conferences shall not extend the time within which a decision
must be issued after receipt of a complaint. Attempts at informal resolution will
commence with two (2) weeks of the date of filing of the complaint.
a. The EEO Officer will review the case and ascertain facts prior to the conference so that
appropriate resolution can take place at the time of this meeting whenever possible.
b. Although the complainant should be encouraged to attend this conference, his/her failure
to do so should not preclude his/her right to request a hearing on the matter.
c. If mutually satisfactory resolution results and the Santa Ana LWIA concurs, the EEO
Officer will write a brief report for the file stating the issues and resolution. The matter
shall then be considered closed.
d. If resolution does not result, the complainant shall be provided the necessary information
and assistance to request a hearing if he/she so desires.
3. Request for Hearing
a. As in the case of the complaint, the request for a hearing should be put in writing and
be filed in person or by mail. A governing board resolution of authorization to appeal
should also be submitted when appropriate. The request should be filled with:
Anita Queen
Sr. Personnel Analyst - EEO Officer
20 Civic Center Drive, M-24
Santa Ana, CA 92701
(714) 647-5157
9
EXHIBIT C
b. A hearing will be scheduled by the EEO Officer within thirty (30) days of the date of
filing of the complaint.
4. Notice of Hearing
Upon receipt of the request for hearing, the complainant and the respondent will be
notified in writing of the hearing ten (10) calendar days prior to the date of the hearing.
The ten-day notice may be shortened with the written consent of the parties. A decision
will be issued by the Santa Ana LWIA within sixty (60) days of the date of filing of the
complaint.
The hearing notice shall be in writing and contain the following information:
a. The date of notice, name of the complainant, and the name of the party against whom
the complaint is filed.
b. The date, time and place of hearing before an impartial hearing officer.
c. A statement( s) of the alleged violation( s)
d. Advise as to where information or assistance may be obtained, and the name, address,
and telephone number of the Santa Ana LWIA Equal Employment Opportunities (EEO)
Officer who can answer inquiries.
B. Conduct of Hearing
The hearing shall be conducted in an informal manner with strict rules of evidence not
applicable. Unnecessary technicalities should be avoided. It should provide the flexibility to
enable adjustment to the circumstances presented.
1. The hearing officer shall have complete independence to obtain facts and make
decisions. The hearing officer shall be in a position to render impartial decisions and
thus should not be subordinate to the Santa Ana LWIA or its sub recipients. The hearing
officer will be selected from a list of names on file with the EEO Officer.
2. Full regard must be given to the requirements of due process to insure a fair and
impartial hearing.
3. The hearing office designated by the EEO Officer to function in a quasi-judicial capacity
should begin the hearing by summarizing the record and the issue and should explain
the manner in which the hearing will be conducted, making sure that everyone involved
understands the proceedings. Such explanations should be adapted to the needs of the
specific situation. The hearing officer might take testimony under oath or affirmation to
give some assurance of veracity to the hearing.
4. The burden of proof should be reasonable and flexible, dependent upon the
circumstances of the case involved. The hearing officer determines the order of proof.
10
EXHIBIT C
Generally, the party making the complaint has the obligation of establishing his or her
case and should be examined first.
5. The party involved should have the right to be represented (at their own expense) if
he/she so desires. Other he/she is limited to his/her own abilities and those to the
hearing officer in obtaining testimony in the case.
6. It is important that the hearing officer obtain the fullest information for the record. If the
parties involved, or their representatives, do not know how to ask the right or pertinent
questions in pursuing their right to due process, it shall be necessary for the hearing
officer to step in to have all the materials and relevant facts elicited.
7. The practice in informal hearings is generally not to apply strict rules of evidence in
obtaining facts. However, the quantity of evidence required to support a decision on an
issue should be sufficiently credible that the state (or other appropriate agency), upon
reviewing the decision, would conclude that the decision is supported by substantial
evidence.
8. The hearing officer should attempt to negotiate a resolution of the issue at any time prior
to the conclusion of the hearing.
9. Within ten (10) days of the conclusion of the hearing, the hearing officer will issue a
recommended decision to the LWIA for final determination. The recommended decision
shall be in writing and may be accepted, rejected or modified by the Santa Ana
Workforce Investment Board.
C. Issuance of Decision
Within sixty (60) calendar days of filing of the complaint, the Santa Ana LWIA shall issue a
written decision to all parties by first class mail. The final decision shall contain the following
information:
1. The name of the parties involved.
2. A statement of the alleged violation and issues related to the alleged violation.
3. A statement of the facts.
4. The decision and the reasons for the decision.
5. A statement of corrective action, if any, to be taken.
6. Notice of the right to request, within ten (10) calendar days of receipt of the decision, a
review of the decision by the State Review Panel.
D. Record of Hearing
An administrative file containing support documents on the complaint resolution process
hearing conducted will be retained by the Santa Ana LWIA. The purpose of a record is to
serve as substantiation of the process followed by the Santa Ana LWIA on the resolution of
11
EXHIBIT C
the issues and the results. This information would then be available for subsequent review
in the event the matter is raised with the State. Such records must be retained for a three-
year period after the grant has been officially closed out.
The Santa Ana LWIA's written decision will be included in the record. Evidence received at
the hearing, notes by the hearing officer, stenographer's notes and tape recordings may
also be used.
E. Establishment of Complaint Procedures
In accordance with Section 667.600, each employing agency including private-for-profit
employers of participants under the Act is required to establish a complaint procedure for
resolving matters relating to the terms and conditions of employment. Employers may
operate their own grievance system or may utilize the Santa Ana LWIA's established
procedures under Section 667.600. At a minimum these procedures must include:
1. Written notice, upon enrollment into employment training services, of the scope and
availability of such procedures. Employer's grievance procedures shall be set forth in a
written document and must meet the regulation mandate that a complaint will be
resolved with sixty (60) days from the date the complaint was filed. A copy of employer's
grievance procedure shall be provided to each participant upon enrollment in
employment training.
2. Written notice, at the time the grievance is filed, of the procedures under which the
grievance will be processed.
3. Written notification of the disposition of the grievance and a written decision shall be
issued within thirty (30) days of the filing of the grievance unless a present and long
established grievance specifically provides other limits; and
4. Written notification of the participant's right to request a review of the employer's
decision by the Santa Ana LWIA and the State Review Panel in accordance with Section
667.600.
IV. Procedures for Handling Complaints at the State level
Section 181 (c) of the Act and the WIA regulations at 20 CFR, Section 667.600 (d) requires the
Governor to establish a State Review process of complaints filed at the LWIA grant recipient
level and of complaints initially filed at the State level.
Appeals of decisions issued at the LWIA level including audit disallowances and sanctions shall
be reviewed by the State Review Panel. The State Review Panel shall review the record
established at the LWIA level and shall issue a decision based on the information contained
therein.
Complaints which may be initially filed at the State level will be heard by an independent
hearing officer designated by the State Workforce Investment Division (WID). The hearing
officer shall conduct a hearing and issue a recommended decision to the State Panel. The
12
EXHIBIT C
recommended decision shall be in writing and may be accepted, rejected or modified by the
State Review Panel.
A. Form and Filing of Complaint.
1. Request for State Review of LWIA Level Decisions
On receipt of a complainant's request for review because of an unsatisfactory decision,
the State shall provide for an independent state review.
2. Filing of Requests for State Review
The State Review Panel shall review all LWIA level decisions when a request for review
is filed within 10 days of receipt of the adverse decision. Such requests must be filed in
writing with the Chief of the WID Office. The request for review should contain the
following information:
a. Full name, address, and telephone number of the party requesting the review
b. Full name, address, and telephone number of the other party
c. A copy of the decision
d. Brief statement of reasons for review or the section of the LWIA decision to be
reviewed including regulatory and statutory citations
e. A statement of the relief sought.
3. Complainant Responsibility
It is the responsibility of the complainant to include in the request for review a written
statement setting forth the facts presented at the LWIA hearing which support the
requested relief.
The Chief, WID, shall mail a copy of the request for review to the other party and to the
LWIA. It shall be the responsibility of the LWIA to submit the complete record including a
typed record of the hearing to the Chief, WID, within ten (10) days.
B. Conduct of Hearings.
1. Request for Hearing at the State Level
If no decision has been issued at the LWIA level or the State has determined an audit
disallowance or imposed sanctions, the complainant may request a hearing. The
hearing officer will then issue a recommended decision to the State's Review Panel for
final determination.
2. Filing for Request for Review
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EXHIBIT C
The request for a State hearing shall be filed within ten (10) days after LWIA should
have issued a decision or ten (10) days after the issuance of the audit disallowance or
sanction. The request shall be filed directly with the Chief of the WID in writing and
should include the following:
a. Full name, address, and telephone number of the LWIA
b. Name, address, and telephone number of the LWIA
c. Copies of complaints made at LWIA level from which no decisions were
issued or sanctions and imposed.
d. A statement of basis for the request for hearing.
3. Evidentiary Hearing
Upon receipt of the request for a State level hearing, a hearing before a designated
hearing officer will be scheduled.
The hearing will be recorded mechanically or by court reporter.
Both parties concerned will have the opportunity to present oral and written testimony
under oath, to call and question witnesses in support of his/her position, to present oral
and/or written arguments, to examine records and documents relevant to the issue(s),
and to be represented.
The hearing officer shall issue a written decision, which shall be forwarded to the State
Review Panel for final determination.
The State Review Panel may accept, reject or modify this recommendation. The
decision of the State Review Panel is final except for audit disallowances, which must be
approved by the Secretary of Labor
C. State Review Panel
The State Review Panel will consist of a panel of three representatives from the
Employment Development Department: one from the Legal Offices, one from the WID,
and one from the Director's office. The panel will issue a written decision, which will be
sent to the appropriate parties within thirty (30) days of receipt of the request for State
review.
Decisions issued by this panel, under the authority of the Governor, are final.
D. Issuance of State Review Decision.
The State review will be limited to violations of the WIA, implementing WIA regulations or
the grant agreement. This review shall be limited to the record established at the LWIA
hearing.
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EXHIBIT C
v. Procedures for Handling Discrimination Complaints by
Participants.
A. Complaints on the basis of race, color, or national origin, age, sex, religion, political
affiliation or belief, retaliation, and citizenship, where appropriate, must be filed within 180
days of the alleged occurrence.
1. It is the responsibility of the Santa Ana LWIA's Equal Employment Opportunity (EEO)
Officer to determine jurisdiction and to make the complainant aware of and provide
assistance in filing a complaint in accordance with the Santa Ana LWIA's procedure
under Section II (A).
PROCEDURES FOR HANDLI
No later than
180 days of
alleged
discrimination
Handling of complaints filed at L WIA level arising in connection with WIA
proqrams operated by L WIAs
EXHIBIT C
Informal Resolution Process
Filing of Complaint/Request for Hearing I--
Notice of Hearing issued by LWIA
I
Hearing Conducted I--
I
LWIA Decision within 60 days
l.u
o
"
Cl
~
c
C
t:
c
'"
v
Within 10 days of
receipt of
unsatisfactory
decision or 10
days from date
LWIA decision
should have been
issued.
Unsatisfactory Decision or LWIA Decision not issued within 60 davs
Request for State Review
l.u
o
"
Cl
~
Governor's Decision issued by State Review Panel
If no decision issued by State Review Panel
Appeal to DOL
2. In cases where areas of authority overlap, it is the responsibility of the EEO Officer to
advise the complainant of the existence of State, Federal and other proper action
agencies, which may also have a bearing.
3. Complainants alleging discrimination under this part will be made aware of their right to
file directly with the Office of Civil Rights (OCR), U.S. Department of Labor and
applicable procedures~
16
EXHIBIT C
4. Complainants must file their complaint directly with:
Anita Queen
Sr. Personnel Analyst - EEO Officer
20 Civic Center Drive, M-24
Santa Ana, CA 92701
(714) 647-5157
VI. Procedures for Handling Handicap Complaints by Participants
Complaints alleging discrimination on the basis of handicap will be filed and processed under
the Department of Labor regulations implementing Section 504 of the Rehabilitation Act of 1973
at 29 Code of Federal Regulations Section 32.
1. Complaints must exhaust the Santa Ana LWIA's informal resolution procedures
before filing their complaint with OCR.
2. Complainants will be made aware of the 180 days requirement in which to file his/her
complaint.
A. Procedures at the LWIA Level
1. The complainant shall file his/her complaint directly with the Santa Ana LWIA. Upon
receipt of the complaint, the EEO Officer shall investigate and gather information
concerning the complaint.
2. An informal conference will be held with the parties concerned in an effort to resolve the
issue( s). The complainant has the right to be present and may be represented during
the conference.
3. The Santa Ana LWIA shall issue in writing its decision to the complainant no later than
thirty (30) days after the filing of the complaint.
B. Procedures at the State Level
1. The complainant may appeal to the State if he/she is not satisfied with the decision of the
Santa Ana LWIA.
2. The Complainant must file his/her appeal as a request for review directly with the Chief
WID within ten (10) calendar days after the receipt of the Santa Ana LWIA's decision.
3. The Chief-WID, shall issue a decision no later than thirty (30) calendar days after receipt
of the request for review.
4. After the complainant has received a decision or no decision has been received from the
Director of Employment Development Department (on behalf of the Governor), the
17
EXHIBIT C
No later than
180 days of
alleged
discrimination
complainant has the right to appeal his/her complaint within thirty (30) calendar days to
the Office of Civil Rights (OCR) with the Department of Labor.
URES FOR HANDLING H
Filing of complaint on the basis Of Handicap with LWIA
- Day 1
I
I
Informal Resolution
-
EXHIBIT C
If no resolution reached
Request for Hearing
Notice of Hearing
Hearing Conducted
Day /45 Day
lWIA Decision
Unsatisfactory Decision or No Decision
State Review
Filed within 30
days of
lWIA!State
Decision or 90
days from date of
initial filing of
complaints
Governor's Decision
60 Days
Appeal to Assistant Secretary Department of labor
GLOSSARY OF WIA TERM
AGE DISCRIMINATION ACT - A law passed by Congress in 1975 which prohibits discrimination on
the basis of age by any program or activity receiving Federal Funds.
APPLICANT - An individual who applies to a subrecipient or contract for services provided under
WIA and who has not yet transitioned to the status of participant.
19
EXHIBIT C
ASSESSMENT - Services designed to determine each participant's employability, aptitudes, abilities
and interests and to develop a plan to achieve the participant's employment and related goals; also to
identify the available employment and traning activities appropriate for the participant. Testing and
counseling may also be used during assessment process.
CHARGING PARTY (CP), COMPLAINANT, GRIEVANT, OR AGGRIEVED PERSON - The person
who charges that he/she has been discriminated against under Department of Justice
nondiscrimination and civil rights regulations and/or guidelines.
DISCRIMINATION - In general, a failure to treat all equally, whether intentional or unintentional; the
effect of an action, policy or practice which selects an individual or class of persons to receive
unequal treatment.
ELIGIBLE NON-CITIZEN - Lawfully admitted permanent resident, aliens, lawfully admitted refugees,
and parolees and other individuals authorized by the Attorney General to work in the United States.
EMPLOYER - An employer subject to the provisions of the Civil Rights Act of 1964, as amended,
including state and local governments and any Federal agency subjects to the provisions of Section
717 of the Civil Rights Act, as amended; and any Federal contractor or subcontractor covered by
executive Order 11246, as amended.
GRIEVANCE - An allegation that something imposes an illegal obligation or burden or denies some
equitable or legal right, or causes injustice .
HANDICAPPED INDIVIDUAL - Any individual who has a physical or mental disability that constitutes
or results in a substantial handicap to employment.
INTAKE - Includes screening to determine eligibility; to select from eligible applicants those
individuals who are most in need and can benefit from program services; to complete procedural
requirements necessary to enroll an individual into the program and to refer those not enrolled to
other programs.
JOINT COMPLAINT - A complaint of employment discrimination covered by Title VII or the Equal
Pay Act and by Title VI or Title IX. Individual "joint complaints" are normally investigated by EEOC
unless OCR has a compelling reason to investigate. "Joint complaints" alleging discrimination in
employment and other practices and pattern or practice "joint complaints" are normally investigated
by OCR.
JURISDICTION - Authority to investigate and resolve complaints against an institution subject to a
law or statute which has been assigned to OCR for enforcement, Le., Title VI, Title IX, etc.
PARTICIPANT - Any applicant who has: (1) Been determined eligible for participation upon intake;
and (2) Who is receiving subsidized employment, training or services (except post-termination
services) funded under the Act, following intake, except for an individual who receives only outreach
and/or intake and assessment services.
20
EXHIBIT C
21
EXHIBIT C
CERTIFICATION REGARDING LOBBYING
CERTIFICATION FOR CONTRACTS. GRANTS. LOANS
and COOPERATIVE AGREEMENTS
The undersigned certifies, to the best of his or her knowledge and belief, that:
1) No Federal appropriated funds have been paid or will be paid, by or on behalf of
the undersigned, to any person for influencing or attempting to influence an
officer or employee of any agency, a Member of Congress in connection with the
awarding of any Federal contract, the making of any Federal grant, the making of
any Federal loan, the entering into of any cooperative agreement, and the
extension, continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
2) If any funds other than Federal appropriated funds have been paid or will be paid
to any person for influencing or attempting to influence an officer or employee of
any agency, a Member of Congress, an officer or employee of Congress, or an
employee of a member of Congress in connection with this Federal contract,
grant, loan. or cooperative agreement, the undersigned shall complete and
submit Standard Form-LLL, "Disclosure Form to Report Lobbying." in
accordance with its instructions.
3) The undersigned shall require that the language of this certification be included in
the award documents for all subawards at all tiers (including agreements) and
that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed
when this transaction was made or entered into. Submission of this certification is a
prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352.
Any person who fails to file the required certification shall be subject to a civil penalty of
not less than $10,000 and not more than $100,000 for each such failure occurring on or
before October 23, 1996, and of not less than $11,000 and not more than $110,000 for
each such failure.
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Name of Certifying Official drgnature
EXHIBIT D
Certification Reaardina Drua-Free Workplace Reauirements
The certification set out below is a material representation upon which reliance is placed
by the U.S. Department of Housing and Urban Development in awarding the grant. If it
is later determined that the contractor knowingly rendered a false certification, or
otherwise violates the requirements of the Drug-Free Workplace Act, the U.S.
Department of Housing and Urban Development, in addition to any other remedies
available to the Federal Government, may take action authorized under the Drug-Free
Workplace Act.
CERTIFICATION
A. The contractor certifies that it will provide a drug-free workplace by:
(a) Publishing a statement notifying employees that the unlawful manufacture,
distribution, dispensing, possession or use of a controlled substance is
prohibited in the contractor's workplace and specifying the actions that will
be taken against employees for violation of such prohibition;
(b) Establishing a drug-free awareness program to inform employees about -
(1) The dangers of drug abuse in the workplace;
(2) The contractor's policy of maintaining a drug-free workplace;
(3) Any available drug counseling, rehabilitation, and employee
assistance program; and
(4) The penalties that may be imposed upon employees for drug abuse
violations occurring in the workplace;
(c) Making it a requirement that each employee who will be engaged in the
performance of the grant be given a copy of the statement required by
paragraph (a);
(d) Notifying the employee in the statement required by paragraph -(a) that,
as a condition of employment under the contract, the employee will -
(1 ) Abide by the terms of the statement; and
(2) Notify the employer of any criminal drug statute conviction for a
violation occurring in the workplace no later than five days after
such conviction.
EXHIBIT E
Pg.2
(e) Notifying the U.S. Department of Housing and Urban Development within
ten days after receiving notice under subparagraph (d)(2) from an
employee or otherwise receiving actual notice of such conviction;
(f) Taking one of the following actions, within 30 days of receiving notice
under subparagraph (d)(2), with respect to any employee who is so
convicted -
( 1) Taking appropriate personnel action against such an employee, up
to and including termination; or
(2) Requiring such employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such
purposes by a Federal, State, or local health, law enforcement, or
other appropriate agency;
(g) Making a good faith effort to continue to maintain a drug-free workplace
through implementation of paragraphs (a), (b), (c), (d), (e) and (f).
B. The contractor shall insert in the space provided on the attached "Place of
Performance" form the site(s) for the performance of work to be carried out with
the grant funds (including street address, city, county, state, and zip code) .the
contractor further certifies that, if it is subsequently determined that additional
sites will be used for the performance of work under the contract, it shall notify
the U.S. Department of Housing and Urban Development immediately upon the
decision to use such additional sites by submitting a revised "Place of
Performance" form.
Dated:
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EXHIBIT E
DIVISION OF EMPLOYMENT SERVICES
PLACE OF PERFORMANCE
FOR CERTIFICATION REGARDING DRUG-FREE
WORKPLACE REQUIREMENTS
Name: 6~7-~~~ Lv/2;J--pr
Name of Contractor: Ph;..
Contractor Number:
Date: ?;( ( II 0
The Contractor shall insert in the space provided below the site(s) expected to be used
for the performance of work under the contract covered by the certification:
Place of Performance (include street address, city, county, state, zip code for each site):
2-3 f Eo. 6 VZf4.-~
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EXHIBIT E
BUDGET FORM
Notes
Salaries 5,600 42,000 47,600 Borden only administrator, Borden and J. Ames program
Benefits 1,120 8,400 9,520 Bebefits Include statutory costs, 6 pro-rated vacation days
Other (list)
Total Personnel 6,720 50,400 57,120
Rent or user fee
Utilities
Phones 1,000 1,000 2,000 Phone & Internet fees, plus Internet maintenance total $7280/
Internet fees 200 300 500 month. Santa Ana about 35% of total Income for period.
Pa rklng fees 100 100 200 Parking fees for meetings
Security
Maintenance
Insurance
Equipment
Rental Fees
Purchase
Vehicle lease charges
Office expenses (consumables) 11000 1,500 2,500 Usual consumabJes, copies of SME Toolkit, etc.
Accounting services 200 100 300 Most accounting handled In-house, except for program audits
Legal services Program Total
Auditing services 3,000 3,000 * Partners
Intirect costs** Hispanic Chamber 10,000 10,000
Staff training Linda Miller Ames 30,000 30,000
Staff travel/mileage Patricia Minassian 30,000 30,000
Customer training Total partners 70,000
Support services* See above for total support services, substantiated by
Partner fees contracts with partners.
Profit 1,220 Profit Is 10% of subtotal, 9% of tot
Other (list)
Total operating expenses 6,720 85,340
GRAND TOTAL 13,440 135,740 149,180
u No overhead rate claimed. All costs are db'ect costs
EXHIBIT F
BUDGET NARRATIVE
.-..------..--.n-~_____U______b._______. .._ __._.. .__........~_.-__.____
The notes for each line item requiring explanation on the Budget Form Is In the box to the Immediate right
of the Item and on the same line. Essergy reaffirms Its acceptance of the cost reimbursement nature of the
contract. Therefore, each bUdget line Item should be considered an approximation and "not-to-exceed"
number, to be billed as an actual cost, properly supported. Essergy affirms that It wllJ bill every cost as a
direct cost without overhead, except for labor. Labor overhead Is calculated below:
.___h__.__.__._..__......_.____~__._.._...._____~_~__.____~.______._.....
.-~---_.__......__.._,_..,,~-..-._._----_.__._..-
---.---.-...-.--.."'.'.-.....-...-------.-.-.---...-.....,-_.,--~.......-.
--.-...U,-.-..-.-~__.___________.__.___h..,_._.._._._,"",_'
ITEM PERCENT NOTES
Statutory labor overhead 13.15
ProfessIonal liability /E&O 2.00 Insurance policies available upon request
Fringes 5.00 Includes 7 holidays, 1 week vacaton /year
TOTAL LABOR OVERHEAD 20.15
ROUNDED FOR BUDGET 20.00
~ _oJ -----......-.. . ..~._-_._-~-_.._----._.- --".---1
Below Is a summary of the cost elements from the Budget Form. Note, profit Is 10% when calculated on
subtotal.
. ._"'~"'-.~-
........... --,...~".._-- - ..,.~-... ,~-~,--,_.... -~.. ,....- -
ITEM ADMIN PROGRAM TOTAL PERCENT
Personnel (Including labor OH) 6,720 50,400 57,120 38.29%
Partners - 70,000 70,000 46.92%
Operating expenses 51500 3,000 8,500 5.70%
Profit 1,220 12,340 13,560 9.09%
TOTAL 13,440 1351740 149,180 100.00%
PERCENT 9.01% 90.99% 100.00%
EXHIBIT F