Attachment B LBRA Pro Forma REFERENCE ONLY~1.pdf

LEM:kjm A21-05354 01367535.docx LBRA City Funded Services Agreement Boilerplate Rev 3-9-22

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LONG BEACH RECOVERY ACT SERVICES AGREEMENT

THIS LONG BEACH RECOVERY ACT SERVICES AGREEMENT

(“Agreement”) is made and entered into, as of __________________, 20___, for reference purposes only, by and between the CITY OF LONG BEACH (“City”), a municipal corporation, with its principal place of business at 411 West Ocean Blvd., Long Beach, California 90802, and [Organization] (“CONTRACTOR”), a __________with its principal place of business at [organization’s address].

WHEREAS, the American Rescue Plan Act (ARPA) was passed by Congress on March 10, 2021 and signed into law on March 11, 2021, to provide $350 billion in emergency funding for eligible state, local, territorial, and Tribal governments to respond to the Coronavirus Disease 2019 (COVID-19) public health emergency and bring back jobs;

WHEREAS, on March 16, 2021, the Long Beach City Council approved the

Long Beach Recovery Act (LB Recovery Act), a COVID-19 recovery program that utilizes federal ARPA funds among other funding sources to support City programs in three main categories - Economic Recovery, Healthy and Safe Community, and Securing Our City’s

Future;

WHEREAS, the purpose of this LB Recovery Act contract award to

CONTRACTOR is to respond to the COVID-19 public health emergency; and

WHEREAS, City has selected CONTRACTOR in accordance with City's administrative procedures [insert language if applicable re: “using a Request for

Qualifications _________ (“RFQ”) and/or through a limited Request for Proposal (“RFP”)

______________,] and City has determined that CONTRACTOR and its employees are qualified, licensed, if so required, and experienced in performing the services related to the

Program (as defined below); and

WHEREAS, City desires to have CONTRACTOR perform these services related to the Program, and CONTRACTOR is willing and able to do so on the terms and

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-4 conditions, including exhibits, in this Agreement;

WHEREAS, the terms of any RFP/RFQ, if applicable, and the terms and conditions of the CONTRACTOR’S application, and any amendments thereto as may be approved by the City, are incorporated herein by reference; and

NOW, THEREFORE, in consideration of the mutual terms, covenants, and conditions in this Agreement, the City and the CONTRACTOR agree as follows:

1. PROGRAM. The City agrees to provide funding to the

CONTRACTOR for the development and implementation of the [title of the program]

(“Program”). The anticipated scope of work for the Program is set forth in Exhibit “A” attached hereto and incorporated by this reference.

2. GRANT FUNDS. The CONTRACTOR hereby acknowledges and agrees that the City’s total contribution for the CONTRACTOR’S approved Program shall not exceed [dollar amount].

3. GRANT AMOUNT, INVOICING, AND METHOD OF PAYMENT.

Grant funding shall be expended by CONTRACTOR for authorized eligible expenditures in accordance with the Program budget, delineated in Exhibit “___” attached hereto and incorporated by this reference. [CONTRACTOR may with the prior written approval of

[___________________________________], make adjustments within and among the categories of expenditures in Exhibit “___” provided, however, that such adjustments shall not cause the amount of the total budget stated in Exhibit “___” to be exceeded.] [Charges to City made by CONTRACTOR for services in performance of this Agreement shall be based on CONTRACTOR’S “[____________________],” attached hereto as Exhibit [___] and incorporated by this reference. City shall pay CONTRACTOR in due course following receipt from CONTRACTOR and approval by City of invoices showing the goods and/or services or task performed, the time expended (if billing is hourly) and hourly rates, the name of the Program, and the City number assigned to this Agreement. CONTRACTOR shall certify on the invoices that CONTRACTOR has performed the services in full conformance with this Agreement and is entitled to receive payment.]

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4. GRANT TERM. The term of this Agreement shall commence upon execution of this Agreement by the City Manager (“Commencement Date”) and, subject to the termination provisions of paragraph ___, end on the earlier of ____________, or the final disbursement of the full Grant amount and completion of any required close out activities and reports (the “Term”). CONTRACTOR shall not begin work until the

Agreement term has commenced and until CONTRACTOR’S evidence of insurance has been delivered to and approved by City. The Term is subject to the termination provisions of this Agreement. In performance of the Program, all expenditures must be incurred by

CONTRACTOR, and all services must be provided by CONTRACTOR within the Term.

City will not be obligated to reimburse expenses incurred after the Agreement term, and

CONTRACTOR will be obligated to repay City for any funds received but not expended within the Term.

5. AUDIT AND RECORD REQUIREMENTS. City shall have the right at all reasonable times during the term of this Agreement and for a period of five (5) years after termination or expiration of this Agreement to examine, audit, inspect, review, extract information from and copy all books, records, accounts and other documents of

CONTRACTOR relating to this Agreement. The CONTRACTOR shall follow all generally accepted accounting procedures and practices and shall maintain books, records, documents, and other evidence which sufficiently and properly account for the expenditure of funds. The books, records and documents shall be subject at all reasonable times to inspection, reviews, or audits by the City in order that the Program, management, and fiscal policies of the CONTRACTOR may be evaluated to assure the proper and effective expenditure of public funds.

6. REPORTING REQUIREMENTS. CONTRACTOR shall coordinate its performance reporting with City's representative, if any, named in [Exhibit “___”], attached to this Agreement and incorporated by this reference. CONTRACTOR shall provide any reports requested by City regarding performance of the Agreement in the form requested by City and shall be provided in a timely manner as requested by City and as outlined in

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Exhibit [___].

7. TERMINATION. The City may, in its sole discretion, terminate this

Agreement for convenience or otherwise, without recourse, liability or penalty against City, upon written notice to CONTRACTOR. Additionally:

A. In the event CONTRACTOR fails to perform or comply with an obligation or a term, condition or provision of this Agreement, the City may notify the

CONTRACTOR in writing of the delay or nonperformance, and if not cured in five

(5) working days, the City may terminate this Agreement in its entirety, or any part thereof, or the City may, upon written notice to CONTRACTOR, terminate this

Agreement for cause, without further notice or opportunity to cure. Such notification will state the effective date of termination, and if no effective date is specified, the effective date will be the date of the notification.

B. City and CONTRACTOR may mutually agree to terminate this

Agreement. City in its sole discretion will determine if, as part of the agreed termination, CONTRACTOR is required to return any or all the disbursed grant funds.

C. Termination is not an exclusive remedy but will be in addition to any other rights and remedies provided in equity, by law, or under this Agreement.

Following termination by City, CONTRACTOR shall continue to be obligated to City for the return of grant funds in accordance with applicable provisions of this

Agreement. In the event of termination under this section, City’s obligation to reimburse CONTRACTOR is limited to allowable costs incurred and paid by the

CONTRACTOR prior to the effective date of termination, and any allowable costs determined by City in its sole discretion to be reasonable and necessary to cost-effectively wind up the Agreement. Termination of this Agreement for any reason or expiration of this Agreement shall not release the parties from any liability or obligation set forth in this Agreement that is expressly stated to survive any such termination or expiration.

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D. Notwithstanding any expiration or termination of this

Agreement, the rights and obligations pertaining to the grant, cooperation and provision of additional information, return of grant funds, audit rights, records retention, public information, and any other provision implying survivability shall remain in effect after the expiration or termination of this Agreement.

E. In the event of termination under this Section, City shall pay

CONTRACTOR for services satisfactorily performed and costs incurred up to the effective date of termination for which CONTRACTOR has not been previously paid. The procedures for payment in paragraph 3 with regard to invoices shall apply. Within five (5) working days of the effective date of termination and as a condition for City’s final payment to CONTRACTOR, CONTRACTOR shall deliver to City all Data developed or accumulated in the performance of this Agreement, whether in draft or final form, or in process.

8. RECAPTURE OF FUNDS AND AUTHORITY TO WITHHOLD

MONEY DUE. The discretionary right of City to terminate this Agreement for convenience notwithstanding, City shall have the right to terminate the Agreement and to recapture, and be reimbursed for any payments made by City: (i) that are not allowed under applicable laws, rules, and regulations; or (ii) that are otherwise inconsistent with this Agreement, including any unapproved expenditures. The City may also withhold such amounts due or to become payable under this Agreement to the CONTRACTOR as may be necessary to protect the City against liability or to satisfy the obligations of the CONTRACTOR to the

CITY.

9. CONFLICT OF INTEREST SAFEGUARDS. The CONTRACTOR will establish safeguards to prohibit its employees from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest or personal gain, whether for themselves or others, particularly those with whom they have family, business, or other ties. The CONTRACTOR will operate with complete independence and objectivity without actual, potential, or apparent conflict of interest with

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-4 respect to its performance under this Agreement.

10. FRAUD, WASTE, AND ABUSE. The CONTRACTOR understands that City does not tolerate any type of fraud, waste, or misuse of funds. City’s policy is to promote consistent, legal, and ethical organizational behavior, by assigning responsibilities and providing guidelines to enforce controls. Any violations of law or standards of ethical conduct will be investigated, and appropriate actions will be taken. The CONTRACTOR understands and agrees that misuse of award funds may result in a range of penalties, including suspension of current and future funds, suspension or debarment from federal, state, and City grants, recoupment of monies provided under an award, and civil and/or criminal penalties.

11. SEVERABILITY. If any provisions of this Agreement are rendered or declared illegal for any reason, or shall be invalid or unenforceable, such provision shall be modified or deleted in such manner so as to afford the party for whose benefit it was intended the fullest benefit commensurate with making this Agreement, as modified, enforceable, and the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby, but shall be enforced to the greatest extent permitted by applicable law.

12. AMBIGUITIES. To the extent the terms and conditions of this

Agreement do not address a particular circumstance or are otherwise unclear or ambiguous, such terms and conditions are to be construed consistent with the general objectives, expectations and purposes of this Agreement and in all cases, according to its fair meaning. The parties acknowledge that each party and its counsel have reviewed this

Agreement and that any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this

Agreement. Any vague, ambiguous or conflicting terms shall be interpreted and construed in such a manner as to accomplish the purpose of the Agreement.

13. INDEPENDENT CONTRACTOR. In performing its services, CONTRACTOR is and shall act as an independent contractor and not an employee, O F

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-4 representative or agent of City. CONTRACTOR shall have control of CONTRACTOR’S work and the manner in which it is performed. CONTRACTOR shall be free to contract for similar services to be performed for others during this Agreement. CONTRACTOR acknowledges and agrees that (a) City will not withhold taxes of any kind from

CONTRACTOR’S compensation; (b) City will not secure workers’ compensation or pay unemployment insurance to, for or on CONTRACTOR’S behalf; and (c) City will not provide and CONTRACTOR is not entitled to any of the usual and customary rights, benefits or privileges of City employees. CONTRACTOR expressly warrants that neither

CONTRACTOR nor any of CONTRACTOR’S employees or agents shall represent themselves to be employees or agents of City.

14. INSURANCE.

A. As a condition precedent to the effectiveness of this

Agreement, CONTRACTOR shall procure and maintain, at CONTRACTOR's expense for the duration of this Agreement, from insurance companies that are admitted to write insurance in California and have ratings of or equivalent to A:V by

A.M. Best Company or from authorized non-admitted insurance companies subject to Section 1763 of the California Insurance Code and that have ratings of or equivalent to A:VIII by A.M. Best Company, the following insurance:

(a) Commercial general liability insurance (equivalent in scope to

ISO form CG 00 01 11 85 or CG 00 01 10 93) in an amount not less than

$1,000,000 per each occurrence and $2,000,000 general aggregate. This coverage shall include but not be limited to broad form contractual liability, cross liability, independent contractors liability, and products and completed operations liability. City, its boards and commissions, and their officials, employees and agents shall be named as additional insureds by endorsement (on City’s endorsement form or on an endorsement equivalent in scope to ISO form CG 20 10 11 85 or CG 20 26 11 85), and this insurance shall contain no special limitations on the scope of protection given to City, O F

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-4 its boards and commissions, and their officials, employees and agents. This policy shall be endorsed to state that the insurer waives its right of subrogation against City, its boards and commissions, and their officials, employees and agents.

(b) Workers' Compensation insurance as required by the California

Labor Code and employer’s liability insurance in an amount not less than

$1,000,000. This policy shall be endorsed to state that the insurer waives its right of subrogation against City, its boards and commissions, and their officials, employees and agents.

(c) Professional liability or errors and omissions insurance in an amount not less than $1,000,000 per claim.

(d) Commercial automobile liability insurance (equivalent in scope to ISO form CA 00 01 06 92), covering Auto Symbol 1 (Any Auto) in an amount not less than $500,000 combined single limit per accident.

B. Any self-insurance program, self-insured retention, or deductible must be separately approved in writing by City’s Risk Manager or designee and shall protect City, its officials, employees and agents in the same manner and to the same extent as they would have been protected had the policy or policies not contained retention or deductible provisions.

C. Each insurance policy shall be endorsed to state that coverage shall not be reduced, non-renewed or canceled except after thirty (30) days prior written notice to City, shall be primary and not contributing to any other insurance or self-insurance maintained by City, and shall be endorsed to state that coverage maintained by City shall be excess to and shall not contribute to insurance or self-insurance maintained by CONTRACTOR. CONTRACTOR shall notify City in writing within five (5) days after any insurance has been voided by the insurer or cancelled by the insured.

D. If this coverage is written on a “claims made” basis, it must

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-4 provide for an extended reporting period of not less than one hundred eighty (180) days, commencing on the date this Agreement expires or is terminated, unless

CONTRACTOR guarantees that CONTRACTOR will provide to City evidence of uninterrupted, continuing coverage for a period of not less than three (3) years, commencing on the date this Agreement expires or is terminated.

E. CONTRACTOR shall require that all sub-contractors used by

CONTRACTOR in the performance of these services maintain insurance in compliance with this Section unless otherwise agreed in writing by City’s Risk

Manager or designee.

F. Prior to the start of performance, CONTRACTOR shall deliver to City certificates of insurance and the endorsements for approval as to sufficiency and form. In addition, CONTRACTOR shall, within thirty (30) days prior to expiration of the insurance, furnish to City certificates of insurance and endorsements evidencing renewal of the insurance. City reserves the right to require complete certified copies of all policies of CONTRACTOR and sub-contractors, at any time.

CONTRACTOR shall make available to City's Risk Manager or designee all books, records and other information relating to this insurance, during normal business hours.

G. Any modification or waiver of these insurance requirements shall only be made with the approval of City’s Risk Manager or designee. Not more frequently than once a year, City’s Risk Manager or designee may require that

CONTRACTOR and sub-contractor change the amount, scope or types of coverages required in this Section if, in his or her sole opinion, the amount, scope or types of coverages are not adequate.

H. The procuring or existence of insurance shall not be construed or deemed as a limitation on liability relating to CONTRACTOR's performance or as full performance of or compliance with the indemnification provisions of this

Agreement.

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15. INDEMNITY.

A. CONTRACTOR shall indemnify, protect and hold harmless

City, its Boards, Commissions, and their officials, employees and agents

(“Indemnified Parties”), from and against any and all liability, claims, demands, damage, loss, obligations, causes of action, proceedings, awards, fines, judgments, penalties, costs and expenses, arising or alleged to have arisen, in whole or in part, out of or in connection with (1) CONTRACTOR’S breach or failure to comply with any of its obligations contained in this Agreement, including any obligations arising from the Program’s compliance with or failure to comply with applicable laws, including all applicable federal and state labor requirements including, without limitation, the requirements of California Labor Code section 1770 et seq. or (2) negligent or willful acts, errors, omissions or misrepresentations committed by

CONTRACTOR, its officers, employees, agents, sub-CONTRACTORs, or anyone under CONTRACTOR’S control, in the performance of work or services under this

Agreement (collectively “Claims” or individually “Claim”).

B. In addition to CONTRACTOR’S duty to indemnify, CONTRACTOR shall have a separate and wholly independent duty to defend

Indemnified Parties at CONTRACTOR’S expense by legal counsel approved by

City, from and against all Claims, and shall continue this defense until the Claims are resolved, whether by settlement, judgment or otherwise. No finding or judgment of negligence, fault, breach, or the like on the part of CONTRACTOR shall be required for the duty to defend to arise. City shall notify CONTRACTOR of any

Claim, shall tender the defense of the Claim to CONTRACTOR, and shall assist

CONTRACTOR, as may be reasonably requested, in the defense.

C. If a court of competent jurisdiction determines that a Claim was caused by the sole negligence or willful misconduct of Indemnified Parties, CONTRACTOR’S costs of defense and indemnity shall be (1) reimbursed in full if the court determines sole negligence by the Indemnified Parties, or (2) reduced by

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-4 the percentage of willful misconduct attributed by the court to the Indemnified

Parties.

D. The provisions of this Section shall survive the expiration or termination of this Agreement.

16. LAWS AND REGULATIONS. The CONTRACTOR shall be responsible for being fully informed of all City, state and federal laws, ordinances, codes, rules and regulations, which in any manner may affect this Agreement and the performance thereof.

17. REMEDIES NOT EXCLUSIVE. The express provision herein of certain measures that may be exercised by the City for its protection shall not be construed to preclude the City from exercising any other or further legal or equitable right to protect its interests.

18. JURISDICTION/VENUE. This Agreement shall be construed in accordance with the laws of the State of California, and the venue for any legal actions brought by any party with respect to this Agreement shall be the County of Los Angeles, State of California for state actions and the Central District of California for any federal actions. CONTRACTOR shall cause all work performed in connection with the Program to be performed in compliance with (1) all applicable laws, ordinances, rules and regulations of federal, state, county or municipal governments or agencies (including, without limitation, all applicable federal and state labor standards, including the prevailing wage provisions of sections 1770 et seq. of the California Labor Code); and (2) all directions, rules and regulations of any fire marshal, health officer, building inspector, or other officer of every governmental agency now having or hereafter acquiring jurisdiction.

19. ASSIGNMENT. The CONTRACTOR may not assign rights or duties under an award, or subcontract delivery of services, without the prior written consent of the

City. Such consent shall not relieve the CONTRACTOR of liability in the event of default by its assignee.

20. CONSTRUCTION OF AGREEMENT. The masculine shall be

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-4 deemed to embrace and include the feminine and the singular shall be deemed to embrace and include the plural whenever required in the context of this Agreement.

21. NOTICES. Any notices to be given under this Agreement shall be given in writing. Such notices may be served by personal delivery, facsimile transmission or by first class regular mail, postage prepaid. Any such notice, when served by mail, shall be effective two (2) calendar days after the date of mailing of the same, and when served by facsimile transmission or personal delivery shall be effective upon receipt. For the purposes hereof, the address of City, and the proper person to receive any such notices on its behalf, is: [________________]; and the address of CONTRACTOR as indicated above.

22. TAX IMPLICATIONS AND CONSEQUENCES. The City makes no representations as to the tax consequences associated with the disbursement of grant funds related to this Agreement, and any determination related to this issue is the sole responsibility of the CONTRACTOR. CONTRACTOR acknowledges consulting with its own tax advisors or tax attorneys regarding this transaction or having had an opportunity to do so prior to signing this Agreement. CONTRACTOR acknowledges the City cannot provide advice regarding the tax consequences or implications of the grant funds disbursed to CONTRACTOR under the terms of this Agreement.

23. OWNERSHIP OF DATA. All materials, information and data prepared, developed, assembled or recorded by CONTRACTOR or furnished to

CONTRACTOR in connection with this Agreement, including but not limited to documents, estimates, calculations, studies, maps, graphs, charts, computer disks, computer source documentation, samples, models, reports, summaries, drawings, designs, notes, plans, information, material, memorandum, binary files (e.g. user-submitted attachments), all tabular data, data gathered/generated during the course of CONTRACTOR providing end-user support, helpline phone recordings, and grant applicant/beneficiary information

(“Data”) shall be the exclusive property of City. Data shall be given to City, in a format identified by City, and City shall have the unrestricted right to use and disclose the Data in

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-4 any manner and for any purpose without payment of further compensation to

CONTRACTOR. Copies of Data may be retained by CONTRACTOR but CONTRACTOR warrants that Data shall not be made available to any person or entity for use without the prior approval of City. This warranty shall survive termination of this Agreement.

24. DATA ACCESS. City strongly prefers programmatic access to software systems via a well-documented Application Programing Interface (API) using modern frameworks. Other preferred means of data access include direct connections with common BI tools (e.g. Tableau and PowerBI), Extract Transform Load (ETL) tools, and/or data warehouse utilities (e.g. Snowflake, Redshift, Azure Synapse.) Within seven (7) calendar days of a request by City, CONTRACTOR shall make available to the City all

Data contained within any system(s) covered as part of this Agreement in a non-proprietary, machine-readable format.

25. CONFIDENTIALITY. CONTRACTOR shall keep all Data confidential and shall not disclose the Data or use the Data directly or indirectly, other than in the course of performing its services, during the term of this Agreement or following expiration or termination of this Agreement. In addition, CONTRACTOR shall keep confidential all information, whether written, oral or visual, obtained by any means whatsoever in the course of performing its services for the same period of time. CONTRACTOR shall not disclose any or all of the Data to any third party, or use it for CONTRACTOR’S own benefit or the benefit of others except for the purpose of this Agreement.

26. BREACH OF CONFIDENTIALITY. CONTRACTOR shall not be liable for a breach of confidentiality with respect to Data that: (a) CONTRACTOR demonstrates

CONTRACTOR knew prior to the time City disclosed it; or (b) is or becomes publicly available without breach of this Agreement by CONTRACTOR; or (c) a third party who has a right to disclose does so to CONTRACTOR without restrictions on further disclosure; or

(d) must be disclosed pursuant to subpoena or court order.

27. COPYRIGHTS AND PATENT RIGHTS.

A. CONTRACTOR shall place the following copyright protection on all

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Data: © City of Long Beach, California ____, inserting the appropriate year.

B. City reserves the exclusive right to seek and obtain a patent or copyright registration on any Data or other result arising from CONTRACTOR’S performance of this Agreement. By executing this Agreement, CONTRACTOR assigns any ownership interest CONTRACTOR may have in the Data to City.

C. CONTRACTOR warrants that the Data does not violate or infringe any patent, copyright, trade secret or other proprietary right of any other party. CONTRACTOR agrees to and shall protect, defend, indemnify and hold City, its officials and employees harmless from any and all claims, demands, damages, loss, liability, causes of action, costs or expenses (including reasonable attorney’s fees) whether or not reduced to judgment, arising from any breach or alleged breach of this warranty.

28. COUNTERPART AND ELECTRONIC SIGNATURES. This

Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which when taken together shall constitute one Agreement. The reference to “electronic signatures” in this Agreement shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (a.k.a. “eSignatures”) or digital signatures (including, without limitation, DocuSign and Adobe Sign). The use of electronic signatures herein, or in any amendments to this Agreement, and any electronic records related to this Agreement (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means), shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law.

29. SIGNATURE AUTHORITY. By signing this Agreement, each individual executing this Agreement on behalf of the CONTRACTOR represents and warrants that such individual has been duly authorized by any necessary action of the

CONTRACTOR to execute this Agreement on behalf of the CONTRACTOR and bind the

CONTRACTOR to the terms of this Agreement.

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IN WITNESS WHEREOF, the parties have caused this document to be duly executed with all formalities required by law as of the date first stated above.

(NAME OF CONTRACTOR)

_________________________, 2022 By________________________________ Name_____________________________ Title_______________________________

Name_____________________________ Title_______________________________

“CONTRACTOR”

CITY OF LONG BEACH, a municipal corporation

City Manager

“City”

This Agreement is approved as to form on ______________________, 2022.

CHARLES PARKIN, City Attorney

By _________________________________

Lauren Misajon, Deputy