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HomeMy WebLinkAbout FULL PACKET_2015-08-18REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: AUGUST 4, 20'15 TITLE: AGREEMENT WITH RANCHO SANTIAGO COMMUNITY COLLEGE DISTRICT FOR REIMBURSEMENT OF A LAND CONVERSION EVALUATION CRITERIA STU (S IC PLAN NO. 5, 4A} C'r9f/�t2aS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended �J As Amended ❑ Ordinance on 'I81 Reading ❑ Ordinance on 2 "d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUEDTo AUG 18 2015 5M. ►TIM, 50 1. Authorize the City Manager and Clerk of the Council to execute an agreement with Rancho Santiago Community College District for reimbursement of a land conversion evaluation criteria study in the amount of $334,000, for a term to expire when the City is fully reimbursed for the expenses or mutually agreed upon by both parties, subject to non - substantive changes approved by the City Manager and City Attorney. 2. Approve an appropriation adjustment recognizing funds in the amount of $334,000 in the Recreation /Community Services Acquisition & Development revenue account and appropriating the same amount to the Recreation /Community Services Acquisition & Development expenditure accounts. DISCUSSION Centennial Park was obtained from the United States government with certain use restrictions, which require the land to be used for public recreational purposes. The National Park Service (NPS) Is charged with interpreting and enforcing the use restrictions. Through a license agreement in 1979, the City licensed approximately 1.76 acres within the Park to the Rancho Santiago Community College District _(District) to build and operate an educational facility that was approved by the NIPS. The district was later allowed to expand its Daycare area east of the facility to include a total of approximately 2.6 acres. The entire facility is known as Centennial Career Education Center, The 30 year license agreement was set to expire on November 2009, but has been extended twice, to allow time for the District to vacate the site or work with the city on a possible land conversion plan, The current amended license agreement expires in November 2019. 20A -1 Agreement with Rancho Santiago Community College District August 4, 2015 Page 2 The District has expressed interest to convert the license agreement into a long -term lease in order to make improvements to its facilities. This request was initially denied by the NPS because it did not satisfy the public recreational use restrictions. A land conversion approved by NPS would effectively release the License Area from the use restrictions and transfer the use restrictions to a new park site of equal size and value. Only then can the city negotiate any type of land license for this area. The NPS has established a protocol for land conversion approval which is identified as an Evaluation Criteria Study. Under this process, the NPS has approved a City -owned parcel of 1.4 acres (McFadden(Orange site). NIPS indicated the 1.4 acre parcel is not of equal value to the 2.6 acres occupied by the district. Two additional sites of 1.51 acres are being proposed by the City to NPS to fulfill the equal land and recreational value requirement for the land conversion. The District has previously reimbursed the City for costs associated with the earlier Evaluation Criteria Study and wishes to reimburse the City for additional costs to be incurred in the Evaluation Criteria Studies for the additional sites. The City will proceed to work with the College District to submit the required park planning documents for the land exchange to the National Park Service. In addition, City staff will discuss with the District an alternative opportunity for the College District to move the Centennial Career Education Center from their current location to the 3.5 acre undeveloped lot owned by the City within the Centennial Park boundary. This lot has a federal deed restriction in that it can only be used for educational purposes. In addition, staff will begin discussing with the College District the concept of them using the Godinez High parking structure when available for adult education student parking and providing a student shuttle from the structure to the campus site. The purpose of this is to relieve parking congestion to help park users wishing to use the north side of the park. The city is requesting to enter into a reimbursement agreement with Rancho Santiago Community College District in an amount not to exceed $334,000 for costs associated to the Evaluation Criteria Study. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #5 Community Health, Livability, Engagement & Sustainability, Objective #4 (Support neighborhood vitality and livability), Strategy A (Support the design and construction of parks to provide increased open space and opportunities for recreation throughout the city, construct the Roosevelt Walker Park and Community Center, and develop concepts and proposals for the Library Park in the Civic Center and Centennial Santa Ana River Eco- Park). 20A -2 Agreement with Rancho Santiago Community College District August 4, 2015 Page 3 FISCAL IMPACT The appropriation adjustment will recognize anticipated Rancho Santiago Community College District Reimbursement revenue in the amount of $334,000 in the Recreation /Community Services Acquisition & Development revenue account (no. 30113002 57304) and appropriating the same amount to the Recreation /Community Services Acquisition & Development expenditure accounts (no. 30113260 62300 )for the following fiscal year: FY 2015 -2016 - $334,000. sr' Gerardo Mouet Executive Dir for Parks, Recre ticn and Community Services Agency EXHIBIT: Agreement APPROVED AS TO FUNDS AND ACCOUNTS: �r Francisco Gu errez, Executive Director Finance and Management Services Agency 20A -3 20A -4 REVISED REIMBURSEMENT AGREEMENT FOR COMPLETION OF LAND CONVERSION APPROVAL FOR CENTENNIAL EDUCATION CENTER "Phis Reimbursement Agreement for Completion of Land Conversion Approval for Centennial Education Center ( "Agreement ") is made and entered into on August 18, 2015, by and between Rancho Santiago Community College District ("District") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ( "City "). RECITALS A. The City owns Centennial Parkin the City of Santa Ana. B. The City obtained the land for Centennial Park from the United States govermnent subject to certain use restrictions imposed in the grant deed by which title to the land was conveyed to the City ( "Use Restrictions "). The Use Restrictions require the land to be used for public recreational proposes. 'the National Park Service ( "NPS ") is charged with interpreting and enforcing the Use Restrictions. C. By License Agreement in 1979, the City licensed approximately 1.76 acres within the Park to the District ( "License Area ") to build and operate an educational facility that was approved by the NPS. The District was later allowed to expand the License Area to include a total of approximately 2.6 acres. The entire facility is known as Centennial Education Center. D. The License Agreement original expiration date was November 2009 and has been extended twice, to allow time for the District to vacate the site or work with the City on a possible land conversion plan. The License Agreement presently expires in November 2019. E. The District has expressed its interest to convert the License Agreement into a long -terrm lease in order to permit the District to make improvements to its facilities. This request was initially denied by the NPS because it did not satisfy the Use Restrictions. F. A long -tern lease may only be negotiated if a land conversion is approved by NPS, which would effectively release the License Area from the Use Restrictions and transfer the Use Restrictions to one or more new park sites of equal size and value. The NPS has established requirements for land conversion approval under Section 6(f)(3) of the Land and Water Conservation Fund Act that are more specifically delineated at 36 C.F.R. § 59.3 ( "Land Conversion Requirements "). G. One City -owned parcel of 1.4 acres has already been identified and approved by NPS under this process, and it is expected that two additional sites ( "Replacement Properties ") wilI be proposed by the City to NPS for consideration in order to complete the land conversion. The Replacement Properties are identified as follows: Rat ittnl Mvrtl,e. Parcel 1.09 acres Licv Neighborhood Parcels 42 acres Total 1.51 acres H. The District has previously reimbursed the City for costs associated with the earlier land conversion and wishes to reimburse the City for additional costs to be incurred to f i fill the Land Conversion Requirements for the Replacement Properties. 20A -5 The parties therefore agree: 1. In consideration for the District's obligations in this Agreement, the City agrees to initiate and pursue the Land Conversion Requirements and take all other actions necessary to obtain the NPS's approval of the Replacement Properties and removal of the Use Restrictions from the License Area in order to allow the City and the District to enter into negotiations for a long -term lease of the License Area. 2. The District agrees to cooperate with the City in fulfilling the Land Conversion Requirements and to reimburse the City in an amount not to exceed Three Hundred Thirty -Four Thousand Dollars ($334,000) for its costs at such times and in such amounts set forth in this Agreement. 3. The scope of the Land Conversion Requirements shall conform with those requirements found at 36 C.F.R. § 59.3, which are incorporated by reference, and any other applicable requirements hereafter established by the NPS. 4. The estimated costs of the Land Conversion Requirements are set forth in Exhibit A and are based on the City's prior experience in the earlier land conversion. Notwithstanding the foregoing, the District shall reimburse the City for the actual costs for the tasks described in Exhibit A and any others required by the Land Conversion Requirements, subject to the provisions of subsection 4,c and Section 5 below, and provided in all cases that such reimbursement shall not exceed the amount specified in Section 2 above. Additionally, the Executive Director of the City's Parks, Recreation and Community Services Agency ( "Executive Director ") and the District's Vice Chancellor of Business Operations /Fiscal Services ( "District Official ") are hereby authorized to add any additional categories of expense if so required by the NPS, provided that the total reimbursement obligation of the District shall not exceed $334,000 without written approval by the City Council and the District's governing board, which approval must be granted by both the City and the District before such additional expenses are incurred. a. City shall ensure that the scope of work and deliverable(s) of cacti consultant utilized will comply with the scope of the Land Conversion Requirements. b. City shall formally bid and award contracts in accordance with City's rules and regulations for the procurement of materials, supplies, labor, and equipment. c. Prior to offering any contract for the performance of any task described in Exhibit A or otherwise required in connection with the Land Conversion Requirements ( "Contract "), whether such offer is made through private negotiations or in connection with an invitation for public bids, the City shall deliver a copy of such Contract to the District. The District shall have ten (10) business days in which to cornment upon and request modifications to the Contract, including without limitation changes to the proposed contract price or any portion of the proposed scope of work which the District considers unnecessary to accomplishing the goal of obtaining NPS approval to the removal of the Use Restrictions from the License Area. To the extent practical, and if not otherwise prohibited by the City charter, municipal code, or applicable law, the City will modify the Contract to address the District's concerns. 5. Payment by the District shall be made within thirty (30) clays of the District's receipt of (a) the City's payment request based on invoices received by the City from its consultants for the required . tasks and services described on Exhibit A, (b) copies of those invoices, (c) any work product or other "deliverables" given by that party to the City which are referenced in or otherwise pertain to the invoices 20A -6 and (d) copies of any other supporting documentation reasonably requested by the District to evidence that the work invoiced by the consultant has actually been performed. Within said 30 -day period the District shall have the right to dispute any or all of the requested reimbursement amount. If the parties are unable to agree upon an appropriate reduction within that time, the District shall pay the requested amount but may do so under protest, reserving its right to resolve claims over disputed amounts at a later time. 6. This Agreement shall commence on the date first written above and expire on the latter of the dates when (a) the City has been reimbursed in full for the expenses that are the subject of this Agreement or (b) the NPS has rendered its Final decision as to whether the Replacement Properties are acceptable to cause the Use Restrictions to be removed from the License Area This Agreement may be terminated earlier by mutual agreement of the parties, provided that the City is paid in full for all expenses it has incurred at the time of the effective date of termination. 7. The City acknowledges that the District is providing the funding which is the subject of this Agreement with the understanding that if and when the Use Restrictions are removed from the License Area by the NPS, the City and the District will enter into negotiations for a long -term lease agreement for the District's use of the License Area on terms and conditions mutually acceptable to the City and the District. If, within thirty -six months following the removal of the Use Restrictions, the parties do not enter into a mutually acceptable lease, and the City enters into a lease for the License Area with a different party, the City shall require as a term of that lease the payment by the lessee to the District of the sum of all amounts paid by the District to the City under this Agreement. 8. The City and the District shall indemnify, defend, and hold harmless each other, their respective officers, agents, and employees from any expense, liability, or claim for death, injury, loss, damage or expense to person or property that may arise or is claimed to have arisen pursuant to this Agreement to the extent that such expenses, liability, or claim is proximately caused by any act or omission of the other, or its officers, agents, or employees. 9. Any notice to be given in connection with this Agreement shall be in writing and directed to the addresses below or such other addresses as either party may later specify in writing. Notice is deemed effective on the date it is given if hand - delivered that same day and on the day delivered by over- night trail. Notice given by U.S. mail shall be deemed effective three (3) days after it is deposited in the U.S. mail, postage prepaid and addressed as follows: DISTRICT: Rancho Santiago Cormnunity College District Vice Chancellor Business Operations /Fiscal Services 2323 N. Broadway Santa Ana, CA 92706 -1640 CITY: City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 Attn: Clerk of the Council 10. This Agreement constitutes the entire agreement between the City and District regarding the subject matter herein, and supersedes all other agreements, oral or written, between the parties. This Agreement may only be modified in a writing signed by authorized representatives of both parties. 20A -7 11. This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed by and construed in accordance with the taws of the State of California. The parties father agree that Orange County, Cali fornia, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with, or by reason of this Agreement. WHEREFORE, the parties have entered into this Agreement on the date first written above. ATTEST MARIA D. FIIIIZ.AR Clerk of the Council APPROVED AS TO FORM SONIA R. CARVALHO City Attorney 1 Assistant City Attorney 20A -8 CITY OF SANTA ANA DAVID CAVAZOS City Manager RANCHO SANTIAGO COMNtUNITY COLLEGE DISTRICT PETER HARDASFI Vice Chancellor, Business Operations and Financial Services EXHIBIT A Tasks Ordinarily Associated with Land Conversion Requirements Task Documents from city evidencing desire to substitute land of equivalent fair market and recreational value. Appraisal report of substitute parcels. Replacement property must be of at least equal fair market value and of reasonably equivalent usefulness and location, Justification and assessment of public recreational value In land exchange. Phase 1 Environmental Site Assessment of substitute property, indicating it is environmentally safe and not latently contaminated. National Environmental Policy Act Assessment (NEPA) of proposed release of park /recreation use of former property and assessment of potential Impact of new park development, A copy of the state, city or county recreation map showing present park land In relationship to proposed substitute land. A copy of the legal description for the proposed replacement property and proposed property to be converted. SUBTOTAL Contingency (10 %) TOTAL 20A -9 Estimated Cost Actual costs by city $ 30,000 $ 64,000 $ 14,400 $187,050 Actual costs by city $ 8,000 $ 303,450 30,345 $333,795 20A -10 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: AUGUST 4, 2015 TITLE: APPROPRIATION ADJUSTMENT ACCEPTING EDWARD BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT FUNDS {STRATEGIC PLAN NO 1 3B} L°J. Ci0lsrr?��' CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 18' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO AUG 18 2015 FILE NUMBER Approve an appropriation adjustment recognizing supplemental Edward Byrne Memorial Justice Assistance Grant funding for the following fiscal year(s) 2011 -2012- $12,687, 2012 - 2013 - $11,543, and 2013 - 2014 - $11,358; totaling $35,588 into the Byrne Justice Assistance revenue account and appropriate same to expenditure account. DISCUSSION The Edward Byrne Memorial Justice Assistance Grant (JAG) program provides federal criminal justice funding to state and local jurisdictions. It is a formula grant that blends the previous Byrne Formula and Local Law Enforcement Block Grant (LLEBG) programs. JAG requires a single unit of county government to function as the applicant/fiscal agent to apply for, receive, and administer the funds on behalf of the entire County. A memorandum of understanding designated the County of Orange, Sheriff - Coroner Department as the lead agency for this program. JAG allows the fiscal agent for each county to use a portion of the award for costs associated with administering the funds, and, as a result, the Orange County Sheriff - Coroner Department retains 9% for administrative costs. For the 2011 -2012, 2012 -2013, and 2013 -2014 grant years, 10% was allocated to support the Anti - Drug Abuse Enforcement Team Program to supplement their resources. The County recently informed the City that this program is no longer a priority funded program through the Federal Justice Assistance Grants (JAG) and that the funds would be redistributed to the City to further enhance JAG program operations. These funds in the amount of $35,588 will be utilized by the Police Department for overtime to augment gang enforcement, enhance educational opportunities, and enhance community policing efforts consistent with our 2011 -2012, 2012 -2013, and 2013 -2014 grant applications. 20B -1 Appropriation Adjustment — Justice Assistance Grants (JAG) August 4, 2015 Page 2 STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #1 Community Safety, Objective #3 (promote fiscal accountability to ensure financial responsibility at all levels of the organization), Strategy B (promote ongoing efforts to obtain grant funding for activities that will assist in preventing and reducing criminal activity and traffic collisions). FISCAL IMPACT The appropriation adjustment will recognize funding in the amount of $35,588 into the Byrn e 52001) and appropriate same to expenditure year(s): Edward Byrne Memorial Justice Assistance Grant Justice Assistance revenue account (no. 12814002 - account (no. 12814409 61040) in the following fiscal 2015 -16 2011 -12 $12,687 2016 -17 2012 -13 $11,543 2016 -17 2013 -14 $11,358 �1 : �ri7317�1iORWARI1117_TKKi11J1011R Francisco G rrez l Executive Director Finance & Mgmt. Services Agency 20B -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL, MEETING DATE: AUGUST 4, 2019 TITLE: WqlidliA K5=_1[11J1ffqfi*Qj CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on 2 "a Reading Implementing Resolution ❑ Set Public Hearing For CONTINUED TO AUG 18 2015 FILE NUMBER 1. increase the contingency for construction of the Grand Avenue Roadway and Storm Brain Improvements from First street to Fourth Street by $290,000, which increases the total estimated construction delivery to $4,183,432.39. 2. Approve an appropriation adjustment to recognize expense reimbursement from Southern California Edison in the amount of $42,961,27 Into the Measure M Street Construction revenue account and appropriate the funds in the Measure M2 Local Fairshare expenditure account. 3. Approve an appropriation adjustment to appropriate $90,000 from the Public Works Storm Drain Construction revenue account to the Public Works Storm Drain Construction expenditure account. On June 17, 2014, the City Council awarded a contract to Excel Paving Company in the amount of $3,179,068.24 to construct the Grand Avenue Improvements, Included in the scope of work is the Installation of Class 2 bike lanes, landscaped parkways, sidewalks, bus turnouts, raised landscaped median, and the relocation of existing utilities along the project. The project also Includes constructing a 78 -inch storm drain to provide additional drainage capacity to minimize the potential for flooding in this area. The approved total project delivery cost of $3,933,432.3$ Includes $387,421 In construction management and inspection costs, as well as a $360,963,16 contingency to cover construction quantity adjustments and miscellaneous cost extras, During construction of the 78 -inch, 13 -foot -deep storm drain, significant unforeseen conditions were encountered In Grand Avenue from the south side of First Street to the centerline of Fourth Street, Several utility lines needed to be adjusted and rerouted because they Interfered with the 20C -1 Increase Contingency for Grand Avenue Roadway and Storm Drain Improvements August 4, 2015 Page 2 , storm drain placement. These utility lines Included water and sewer main lines; two, large communication duct banks; and two, high - pressure gas mains, Also approved by Council on June 17, 2014, was a $49,000 payment to Southern California Edison (SCE) to prepare engineering drawings and install the street light poles and lights, Subsequently, the City began the process to purchase all SCE -owned street lights within the City limits, Because it would be more expensive to purchase the newly installed street lights back from SCE, it was determined to be more cost effective for the City to use the engineering drawings prepared by SCE, purchase the poles and lights, and have the Excel Paving Company install them with the required conduit, As a result, SCE will be reimbursing the City $42,961,27 for the initial payment less the cost of the engineering work. Presently, the Grand Avenue project is approximately 68 percent complete, Total amount of the change orders to date for the utility adjustments and the street light installation is $259,115.41. It is anticipated that additional change orders will be needed before the project is completed. Job site conditions have been significantly different from the information provided in the plans, primarily related to interfering underground utilities associated with the storm drain improvements. Therefore, staff is recommending a contingency increase of $250,000 to ensure that, if expenditures continue to exceed the Council authorized construction contract amount awarded in 2014, construction may proceed uninterrupted, until completed, With the increased contingency, the new total delivery cost will be $4,183,432.39, Including the construction contract, construction administration, inspection, testing, and survey (Exhibit 1), ENVIRQNMENTAL IMPACT There is no environmental impact associated with this action, STRATEGIC PLAN ALIGNMENT Approval of this Item supports the City's efforts to meet Goal #6 Community Facilities Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City assets), Strategy B (equitably maintain existing streets and associated assets in a state of good repair so they are clean, safe and aesthetically pleasing for all users), Strategy C (invest resources and technology to extend the service life of existing infrastructure to protect the City's investment and support a high quality of life standard), and Strategy G (develop and implement the City's Capital Improvement Program in coordination with the Community Investment and Deferred Maintenance Plans FISCAL IMPACT $250,000 will be added to the Grand Avenue Roadway and Storm Drain Improvements project contingency budget for expenditure in Fiscal Year 2015/2016 from the following sources; 20Ci-2 Increase Contingency for Grand Avenue Roadway and Storm Drain Improvements August 4, 2015 Page 3 An appropriation adjustment will be prepared to recognize expense reimbursement from Southern California Edison in the amount of $42;961.27 into the Measure M Street Construction revenue account (No. 03217002 - 57000) and appropriate the funds in the Measure M2 Local Fairshare expenditure account (No. 03217662 - 66220) for Project 08 -1732. 2. $157,038.73 in Measure M2 Local Fairshare Funds already appropriated to the project in prior fiscal years will be reallocated to the project contingency (Account No. 03217662 - 66220, Project 08- 1732). 3. A second appropriation adjustment will appropriate $25,000 from Fund 224 Local Drainage Area IV revenue account (No. 22417002 - 50001) and $25,000 from Fund 225 Local Drainage Area V revenue account (No. 22517002 - 50001) to the respective expenditure accounts (Nos. 22417660 -66220 and 22517660- 66220) for Project 12 -6604. re Mousavipour Executive Director Public Works Agency FMIEWG /KW APPROVED AS TO FUNDS AND ACCOUNTS: Executive Director Finance & Management Services Agency Exhibit 'I: Cost Analysis 2: Grand Avenue Widening Location Map 3: Request for Council Action dated June 17, 2014 20C -3 20C -4 COST ANALYSIS INCREASE CONTINGENCY FOR GRAND AVENUE IMPROVEMENTS AND WIDENING FROM FIRST STREET TO FOURTH STREET AND GRAND AVENUE STORM DRAIN FROM FIRST STREET TO FOURTH STREET (PROJECT NOS. 081732 & 126604) Construction Contract $3,179,058.24 Contract Administration $103,207.00 Inspection and Testing $208,654.00 Survey Staking & Street Light Design $12,599.00 Southern California Edison Reimbursement $42,961.00 Original Contingencies $386,953.15 Increased Contingencies $250,000.00 TOTAL ESTIMATED CONSTRUCTION COSTS $4,183.432.39 Exhibit 1 20C -5 20C -6 4 (NTS) FOURTH STREET i i i 1 j 1 i j j j j 1 j i j ! e i j i j 1 LEGEND: PROJECT LIMITS SANTA ANA ■ Inl A � ■ W& .OxRi �OFNCY FIRST STREET Exhibit 2 • ■ ■: c — • ❑ 20C -1 20C -8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 17, 2014 TITLE: CONTRACT AWARD FOR GRAND AVENUE IMPROVEMENTS AND WIDENING FROM FIRST STREET TO FOURTH STREET AND GRAND AVENUE STORM DRAIN FROM FIRST STREET TO FOURTH STREET (PROJECT NOS. 081732 & 126604) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended [7 Ordinance on 1a' Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution © Set Public Hearing For CONTINUED TO FILE NUMBER Award a contract to Excel Paving Company, the lowest responsible bidder, in accordance with unit bid prices, totaling $3,179,058.24, for the construction of the Grand Avenue Widening from First Street to Fourth Street and Grand Avenue Storm Drain from First Street to Fourth Street. 2. Approve the Cost Analysis for a total estimated project delivery cost of $3,933,432.39. 3. Authorize a payment to Southern California Edison not to exceed $49,400 as payment for the installation of new street lights on Grand Avenue from First Street to Fourth Street. DISCUSSION The recommended action will allow the City to proceed with construction of the Grand Avenue Roadway Improvements and Storm Drain from First Street to Fourth Street. Grand Avenue from First Street to Fourth Street will be widened to a total of six lanes (three lanes in each direction) to be consistent with the City of Santa Ana General Plan Circulation Element and the County of Orange Master Plan of Arterial Highways. The proposed project would also include Class 2 bike lanes, landscaped parkways, sidewalks, bus turnouts, raised landscaped median, new streetlights, and the relocation of existing utilities along the project segment. The City's Drainage Master Plan identifies the need for an additional storm drain mainline on Grand Avenue north of the Santa Ana /Santa Fe Channel. The storm drain, constructed as part of the Grand Avenue roadway improvements, will provide additional drainage capacity to minimize the potential for flooding in this area. A Notice Inviting Bids was advertised on March 28 and 29, 2014, and bids were opened on April 23, 2014. The following is a summary of the bid invitations mailed and received, and the bid results: E� hit 9 Contract Award for Grand Avenue improvements and Widening Project Nos, 08 -1732 and 12 -6604 June 17, 2014 Page 2 Contractor Participation Data Santa Ana contractors receiving notices 19 Contractors re uesti bidding documents 19 Bids received 6 Bids received from Santa Ana contractors 0 Bid Results Summary RANK 1 BIDDERS NAME Excel Pavinq Company LOCATION Lonq Beach BID AMOUNT $3,179,058 2 All American Asphalt Corona $3,288,899 3 Griffith Company Oceanside $3,296,064 4 5 Los Angeles Engineering R.J. Noble Covina $3,449,501 $3,654,407 6 —.Orange The Sun Group Costa Mesa $4,518,433 A total of six bids were received and all were deemed responsive. The Excel Paving Company bid amount of $3,179,058 is 2.5% over the Engineer's estimate of $3,100,000. ENVIRONMENTAL IMPACT Categorical Exemption Environmental Review No. 2014 -41 has been filed for the Grand Avenue Storm Drain project, while a Final Environmental Impact Report (State Clearinghouse #1998051068) was previously prepared in October 2002 for the Grand Avenue Widening project and adopted by City Council on November 18, 2002 under Resolution No. 2002 -096. Additionally, in accordance with the National Environmental Policy Act, an Environmental Assessment with Finding of No Significant Impact was previously prepared in August 2011 for the Grand Avenue Widening project and approved by the California Department of Transportation on September 1, 2011. FISCAL IMPACT The estimated total delivery cost of this project is $3,933,432.39, which includes construction administration, inspection, testing, survey and contingencies (Exhibit 1). Funds for the Grand Avenue Widening project are available in the following accounts: Gas Tax Fund (Account 05917663- 66220), Measure M Fund (Accounts 03217660 -66220 and 03217662- 66220). Funds for the Grand Avenue Storm Drain project are available in the Drainage Assessment Fee Fund (Accounts 22417660 - 66220, 22517660 - 66220, and 22617660- 66220). 20C -10 Contract Award for Grand Avenue Improvements and Widening Project Nos. 08 -1732 and 12 -6604 June 17, 2014 Page 3 c Edwin "William" alvez Interim Executive Director Public Works Agency EW"VV Exhibit 1: Cost Analysis 2: Grand Avenue Widening Location Map APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 20C -11 Contract Award for Grand Avenue Improvements and Widening Project Nos. 08 -1732 and 12 -6604 June 17, 2014 Page 4 Exhibit 1 COST ANALYSIS CONTRACT AWARD FOR GRAND AVENUE WIDENING FROM FIRST STREET TO FOURTH STREET AND GRAND AVENUE STORM DRAIN FROM FIRST STREET TO FOURTH STREET (PROJECT NOS. 081732 & 126604) Construction Contract $3,179,058.24 Contract Administration $103,207.00 Inspection and Testing $208,654.00 Survey Staking $6,160.00 Southern California Edison Streetlights $49,400.00 Contingencies $386,953.15 TOTAL ESTIMATED CONSTRUCTION COSTS $3,933,432.39 20C -12 Contract Award for Grand Avenue Improvements and Widening Project Nos. 08 -1732 and 12 -6604 June 17, 2014 Page 5 A�� - --r- CNTSa FOURTH BTAEET ® - PROJECT LIMITS INUffu l' Ir. •_, -y .a; X71121'' _ 20C -13 20C -14 REQUEST FOR C©'UNCIL ACTION CITY COUNCIL MEETING DATE: AUGUST 18, 2015 TITLE: RESOLUTION, APPROPRIATION ADJUSTMENT, AND SUBGRANT AGREEMENT ACCEPTING FEDERAL WORKFORCE INNOVATION AND OPPORTUNITY ACT TITLE I FUNDS FOR PROGRAM YEAR 2015 -2016 {STRATEGIC PLAN NO �;4} RECOMMENDED ACTION! CLERK OF COUNCIL USE ONLY: APPROVED ❑', As Recommended ❑I As Amended ❑ Ordinance on Tst Reading. ❑ Ordinance on 2 0d Reading Implementing Resolution ❑' Set Public Hearing, For CONTINUED TO FILE NUMBER 1. Adopt a resolution authorizing the City Manager or designee to enter into a sub -grant agreement, for a period from April 1, 2015 to June 30, 2017, to receive funds for the Federal Workforce Innovation and Opportunity Act with the State of California Employment Development Department. 2. Authorize the City Manager and Clerk of the Council to execute the attached sub -grant agreement and all necessary documents with the State of California Employment Development Department, for a period from April 1, 2015 to June 30, 2017, for an amount of $1,136,469. 3. Approve an appropriation adjustment recognizing an additional $13,554 of Workforce Innovation and Opportunity Act Youth funds in the revenue account and appropriating the same in expenditure accounts. DISCUSSION The federal Workforce Innovation and Opportunity Act (WIOA) was signed into law on July 22, 2014. WIOA is designed to help job seekers access employment, education, training, and support services to succeed in the labor market and to match employers with the skilled workers they need to compete in the global economy. WIOA supersedes the Workforce Investment Act of 1998 and is the first legislative reform of the public workforce system in 15 years. The Act takes effect on July 1, 2015 with the Department of Labor responsible for its implementation. California is a direct recipient of WIOA funding and contracts with designated Local Workforce Development Areas (LWDA) to address workforce needs of employers and the community. 55A -1 WIOA Title I Sub -grant for PY 2015 -16 August 18, 2015 Page 2 Recently, the California Workforce Investment Board recommended approval that Santa Ana be designated as a local workforce development area under WIOA. The Governor and Secretary of the Labor and Workforce Development Agency concurred with the recommendation. The designation is from July 1, 2015 to June 30, 2017 and will be reviewed and evaluated every two years against federal performance and compliance outcomes. A new sub -grant agreement is required at the beginning of each program year in order to receive WIOA funds as allocated by the State of California. Upon document execution and submission to the Workforce Services Division of the State Employment Development Department (EDD), the City's allocation for Program Year 2015 -2016 will be: No further action will be required by the City to receive the Adult, Dislocated Worker, and Rapid Response funds as EDD will disburse through unilateral subgrant modifications later in the program year. Upon receipt of the modifications, requests to authorize the expenditure of the additional program grant funds will be brought back to Council. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #2 Youth Education, Recreation, Objective #4 (Partner with groups and organizations to promote education, senior services, job training and development for all Santa Ana residents). FISCAL IMPACT The adopted FY 2015 -16 budget included the estimated $1,122,915 in WIOA Youth grant funding. The final program allocation total is $13,554 greater than the original amount budgeted. Approval of the appropriation adjustment will recognize $13,554 in revenue account (no. 12318002- 52001) and increase the budgets in the following expenditure accounts: Account Amount 12318750 -69135 WIB Youth Council Payment to Subagent $12,199 12318752 -61000 One Stop Admin Salaries - Regular 1,355 TOTAL $13,554 Planned expenditures for FY 2015 -16 is approximately $890, 295. Any remaining balances at the end of the fiscal year will be carried forward for expenditure in FY 2016 -17. 55A -2 Adult Dislocated Worker Youth Rapid Response Totals Final Allocation Amounts $1,112,927 $713,948 $1,136,469 $332,738 $3,296,082 Budgeted Amounts $1,100,490 $702,725 $1,122,915 $173,260 $3,099,390 Difference $ 12,437 $ 11,223 $ 13,554 $159,478 $ 196,692 No further action will be required by the City to receive the Adult, Dislocated Worker, and Rapid Response funds as EDD will disburse through unilateral subgrant modifications later in the program year. Upon receipt of the modifications, requests to authorize the expenditure of the additional program grant funds will be brought back to Council. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #2 Youth Education, Recreation, Objective #4 (Partner with groups and organizations to promote education, senior services, job training and development for all Santa Ana residents). FISCAL IMPACT The adopted FY 2015 -16 budget included the estimated $1,122,915 in WIOA Youth grant funding. The final program allocation total is $13,554 greater than the original amount budgeted. Approval of the appropriation adjustment will recognize $13,554 in revenue account (no. 12318002- 52001) and increase the budgets in the following expenditure accounts: Account Amount 12318750 -69135 WIB Youth Council Payment to Subagent $12,199 12318752 -61000 One Stop Admin Salaries - Regular 1,355 TOTAL $13,554 Planned expenditures for FY 2015 -16 is approximately $890, 295. Any remaining balances at the end of the fiscal year will be carried forward for expenditure in FY 2016 -17. 55A -2 WIOA Title I Sub -grant for PY 2015 -16 August 18, 2015 Page 3 Kelly Re de Executi Director Community Development Agency DS /sb Exhibit: 1. Resolution 2. Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 55A -3 55A -4 ROH — 08/04115 RESOLUTION NO. 2015- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE CITY MANAGER OR DESIGNEE TO EXECUTE A SUBGRANT AGREEMENT AND ALL NECESSARY DOCUMENTS TO RECEIVE FUNDS FOR THE WORKFORCE INNOVATION AND OPPORTUNITY ACT WITH THE STATE OF CALIFORNIA, WORKFORCE SERVICES DIVISION, THROUGH PROGRAM YEAR 2018 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The Workforce Innovation and Opportunity Act (WIOA) of 2014 provides funds to Local Workforce Development Areas (LWDA) to operate job - training programs permissible under the Act for adults, dislocated workers and youth meeting specific criteria set forth in the Act. B. Recently the California Workforce Investment Board recommended approval that Santa Ana be designated as a local workforce development area under WIO& The Governor and Secretary of the Labor and Workforce Development Agency concurred with the recommendation. The designation Is from July 1, 2015 to June 30, 2017. C. A new sub -grant Is required at the beginning of each fiscal year in order to avoid the commingling of funds from the previous year, Submittal of this sub - grant is the first step in the process enabling the City of Santa Ana to receive WIOA funds as they are allocated by the State of California at the beginning of each new fiscal year. D. Submittal of the sub -grant agreement will enable the City to receive WIOA Youth Formula Funds. The City will also receive Adult and Dislocated Worker Formula Funds through a unilateral modification from the State of California, E. The sub -grant and other related documents from the State of California must be reviewed and executed by the City of Santa Ana in order to receive said funding. Section 2, The City Council of the City of Santa Ana hereby authorizes the City Manager or his designee to execute all necessary documents related to the sub - grant with the State of California, Workforce Services Division, for the next three (3) EXHIBIT 1 Resolution No, 2015•XXX 55A -5 Page 1 of 2 years of the WIOA program, until ,tune 30, 2018, so long as the City remains designated as a local workforce development area under WiOA. Section I This Resolution shall take effect Immediately upon Its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of 2015. 1. APPROVED AS TO FORM: Sonla f, yalh4, City Attorney ME City AYES: Councilmembers: NOES: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Counclimembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of Council, do hereby attest to and certify the attached Resolution No. 2015- to be the original resolution adopted by the City Council of the City of Santa Ana on .2015. Date: Clerk of Council City of Santa Ana • ' •, Resolution No, 2015 -XXX Page 2 of 2 WIOA SUBGRANT AGREEMENT SUBGRANT NO: X698383 MODIFICATION NO: New SAN - 083153247 SANTA ANA WORKFORCE INV BOARD SUBGRANTER CODE: SAN SUBGRANTOR: SUBGRANTEE: SANTA ANA WORKFORCE INV BOARD State of California 1000 E. SANTA ANA BLVD, Employment Development Dept. SANTA ANA, CA 92701 Workforce Services Division P.O.Box 826680, MIC 69 GOVERNMENTAL ENTITY: Yes Sacramento, CA 94280 -0001 This Subgrant Agreement is entered into by and between the State of California, Employment Development Department, hereinafter the Subgrantor, and the SANTA ANA WORKFORCE INV BOARD, hereinafter the Subgrantee. The Subgrantee agrees to operate a program in accordance with the provisions of this Subgrant and to have an approved WIOA Local Plan for the above name Subgrantor filed with the Subgrantor pursuant to the Workforce Innovation and Opportunity Act (WIOA). This modification consists of this sheet and those of the following exhibits, which are attached hereto and by this reference made a part hereof: Funding Detail Chart. General Provisions Youth Formula Rd I ALLOCATION(s) PRIOR AMOUNT: $0.00 The Subgrantor agrees to reimburse the Subgrantee INCREASE /DECREASE: $1,136,469.00 not to exceed the amount listed hereinafter 'TOTAL' TOTAL: $1,136,469.00'. TERM OF AGREEMENT Terms of Exhibits are as From:4 /1/2015 To: 6/30/2017 designated on each exhibit'. PURPOSE: To initiate Program Year (PY) 2015 -16 WIOA Subgrant and incorporate WIOA Youth formula funding under grant code 301. Term of these funds is from 04/01/2015 - 06/30/2017 APPROVED FOR SUBGRANTOR(EDD)(By Signature) Name and Title LfOSk LUIS MARQUEZ CHIEF WORKFORCE SERVICES DIVISION APPROVED FOR SUBGRANTEE (By Signature) Name and Title David Cavazos City Manager I hereby certify that to my knowledge, the budgeted This agreement does not fall within the meaning of funds are available for the period and purpose of Section 10295 of Chapter 2 of Part 2 of Division 2 of expenditures as stated herein the Public Contract Code of the State of California and pursuant to 58 OPS Cal. Atty. Gen 586, is exempt from review or approval of the Dept. of General Services and the Dept. of Finance Signature of EDO Accounting Officer Bvd,d Item: 7100 Pond: 0669 Budgetary Atlwhm.W: No Chepter, 025 Smtute: 2014 F;14115 Attorney Signature of EDD Contract Officer 55A -7 Page I of 13 Page 1 $QEGRANT AGREEMENT $UBGRANT NO: K698383 FUNDING DETAIL SHEET MODIFICATION NO: New BANTA ANA WORKFORCE INV BOARD T. Allocation All reference we f.o the Workforce Innovation and opportunity Ae.c of 2014, Title I„ unless otherwise noted. page 2 of 13 For modifications purposes only. All other estme end conditions of this exhibit not inwluded heroin remain '• • NARRATIVE SUBGRANT NO:K688383 MODIFICATION N0: 0 SUBGRANTEE;SANTA ANA WORKFORCH INV HOARD FUNDING SOURCE: Youth Formula Rd 1 - 301 TERM OF THESE FUNDS: 04/01/2015 - 06/30/2017 ............................ .. ............................. ... vee oP funds added by this nlodif ication is Limited to this :period and additionally limited by the recapture provisions ,applicable to this funding source. The state may at its ;discretion recapture funds obligated under this exhibit, if ;expenditure plans are not being met. ' .................................... ......................... I PROGRAM NARRATIV2 The purpose of this action is to initiate this Local Workforce Development Area's (LWDA) new Program Year (PY) 2015 -16 Workforce Innovation and Opportunity Act (WIOA) Title I subgrant agreement and to incorporate WIOA Youth formula funding into Grant Code (GC) 301. The amount in GC 301 represents this LWDA's entire youth formula allocation for PY 2015 -16. The term date for theme funds is April 1, 2015 to Tune 30, 2017. The LWDA will operate the WIOA program in accordance with the approved Workforce Innovation and opportunity Plan on file in the Central Office Workforce services Division of the Employment Development Department, P.O. Box 826882, MIC 50, Sacramento, CA 92480 -0001. ......................... e_._.._..__..__.__.................,.... ......,..,..,.................. 4Thi5 exhibit adds to and dose not replace the terms and conditions of any other exhibit included ;in this agreement which terms and conditions remain in full force and effect. .. ............................................... ......__..._.._-- .._.__. -._... ............. WIOA (2015) 55A -9 Page 3 of 13 Subgrantee:SANTA ANA WORKFORCE INV BOARD Subgrant No;K6983B3 Modification NOS New WIOA SUSGRANT AGREEMENT 1• Compliance In performance of this subgrant agreement, Subgrantee will fully comply with: a), The provisions of the Workforce Innovation and Opportunity Act (WIOA), the Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards; Final Rule at 2 Code of Federal Regulations (CFR) Chapter I and Chapter IT, Part 200, at a1 (here after referred to as Uniform Guidance 2 CFR Part 200) and the Department. of Labor's (DOE) exceptions at 2 CFR Chapter II, Part 2900, at al, (here after referred to as DOE Exceptions 2 CFR Part 2900) and all regulations, legislation, directives, policies, procedures and amendments issued pursuant thereto. b). All State legislation and regulations to the extent permitted by federal law and all policies, directives and /or procedures, which implement the WIOA. c). The provisions of Public Law 109 -280, Sobs for veterans Act, as the law applies to DOL job training programs. d) . Subgrantee will ensure diligence in managing programs under this subgrant agreement, including performing appropriate monitoring activities and taking prompt corrective action against known violations of the WIOA• Subgrantee agrees to conform to the provisions of the WTOA and the contract requirements as referenced in Uniform Guidance 2 CFR Part 200, Appendix IT, and DOD Exceptions 2 CFR Part 2900, Appendix II to Part 200. This subgrant agreement contains the entire agreement of the parties and supersedes all negotiations, verbal or otherwise and any other agreement between the parties hereto. This subgrant agreement is not intended to and will not be construed to create the relationship of agent, servant, employee, partnership, joint venture or association between the "pass - through' entity and the Subgrantee. Subgrantee represents and warrants it is free to enter into and fully perform this subgrant agreement. 2. Certification / Assurances Except as otherwise indicated, the following certifications apply to all Subgrantee's• a) . Corporate Registration: The Subgrantee, if it is a corporation, certifies it is registered with the Secretary of State of the State of California. b). The Subgrantee agrees to comply with the Americans with Disabilities Act (ADA) of 1990, which, prohibits discrimination on the badio of disability, as well as all applicable regulations and guidelines issued pursuant to AGA, ( 42 U.5.C.12101 at seq) . c). Sectarian Acti.Vi.t.ie6: The Subgrantee certifies that this subgrant agreement does not provide for the advancement or aid to any religious seat, 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 whatsoever, as specified by Article XVI, Section 5, of the Constitution, regarding separation of church and state. d). National Labor Relations Hoard: The Subgrantee (if not a public entity), by signing this subgrant agreement, does swear under penalty of perjury, that no more than one final unappeasable finding of contempt of court by a federal egart has been issued against the Subgrantee within the immediately preceding two -year period because of Subgrantee's failure to comply with an order of a federal ucurt, which orders the Subgrantee to comply with an order of the National Labor Relations Board (PCC10296). e). Prior Findings: Subgrantee, by signing this subgrant agreement, dose swear under penalty of perjury, that it has not failed to satisfy any major condition in a current or previous subgrant agreement with the DOE or the State of California and has not failed to satisfy conditions relating to the resolution of a final finding and determination, including repayment of debts. f) . Drug -Free Workplace Certification: By signing this subgrant agreement the Subgrantee hereby certifies under penalty of perjury, under the laws of the State of California, that the Subgrantee will comply with the requirements of the Drug -pree workplace Act of 1990 and will provide a drug -free workplace by Lakilty the fol'iuwing actions: (1) . Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations. (2). Establish a Drug -Free Awareneos Program as required to inform employees about: - the dangers of drug abuse I. the workplace; - the person's or organization's policy of maintaining a drug -free workplace; - any available counseling, rehabilitation and employee assistance programs; and, - penalties that may be imposed upon employees for drug abuse violations, (3). Every employee who works on this subgrant agreement will: - receive a copy of the company's drug -fz'ee policy statement) and, - agree to abide by the terms of the company's statement as a condition of employment on the subgrant/contract, g). Child Support Compliance Act: In accordance with the Child Support Compliance Act, the Subgrantee recognizes and acknowledges: (1) . The importance of child and family support: Obligations and shall fully comply with applicable state and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of informan.ton and compliance with earnings assignment orders, as provided in Chapter 8 Page i of 13 55A -10 (commencing with Section 5200) of Part 5 of Division 9 of the Family Code; and that 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 Employea Registry maintained by the California Employment Development Department (EDD). h), Debarment and Suspension Certification: By signing this subgrant agreement, the Subgrantee hereby certifies under penalty of perjury under the laws of the State of California that the Subgrantee will comply with regulations .implementing Executive Order 12549, Debarment and Suspension, Uniform Guidance 2 CFR Part 200, Appendix I that the prospective participant (i.e., grantee), to the beet of its knowledge and belief, that it and its principals: (1) . Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency. (2), gave not within a three -year period preceding this subgrant agreement been convicted of or had a civil judgement rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction, violation of federal or state antitrust statutes, or commission of . embezzlement, theft, forgery, bribery, falsification, or destruction of records, making false statements, or receiving stolen property. (3). Are not presently indicted for or otherwise criminally or civilly charged by a government entity (federal, . state or local) with commission of any of the offenses enumerated in Section 2 of this certification. (4). Have not within a three -year period preceding this subgrant agreement had one or more public transactions (federal, state or local) terminated for cause of default. Where the Subgrantee is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this agreement. i) . Lobbying Restrictions: By signing this subgrant agreement the Subgrantee hereby assures and certifies to the lobbying restrictions which are codified in the DOL regulations at Uniform Guidance 2 CPR Part 200 and DOL Exceptions 2 CPR 2900, (1). No federal appropriated funds have been paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an 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, 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, and officer or employee of Congress, or an employee of a Member of Congress, in connection with this subgrant 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 the lobbying restrictions be included in the award documents for subgrant agreement transactions over $100,000 (per OMs) at all tiara (including subgrant agreements, contracts and subcontract*, under grants, loan, or cooperative agreements) , and that all subrecipients shall certify and disclose accordingly. (4). This certification in a material representation of fact upon which reliance is placed when this transaction is executed. Submission of the Lobbying Certification is a prerequisite for making or entering into this transaction imposed by Section IS52, Title 31, and U.S. Code. 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 iailure, j). Priority Hiring Considerations: If this subgrant includes services in excess of $200,0001 the Subgrantee shall give priority consideration in filling vacancies in positions funded by the subgrant to qualified recipients of aid under Welfare and Institutions Section Code 1.1200 in accordance with Public Contract Code S 10353, k). Sweatfree Code of Conduct: (1), All Subgrantees contracting for the procurement or laundering of apparel, garments or corresponding accessories, or the procurement of equipment, materials, or supplies, other than procurement related to a public works contract, declare under penalty of perjury that no apparel, garmenLS or corresponding accessories, equipment, or supplies furniahed to the state pursuant to the contract have been laundered or produoed is whole or in part by sweatshop labor, forced labor, convict labor, .indait,ned labor undar panel .sanction, abusive forms of child labor or exploitation of children in sweatshop labor, or with the benefit of sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor or exploitation of children in sweatshop labor. The Subgrantee further declares under penalty of perjury that they adhere to the Sweatfree Code of Conduct as set forLh on the California ))apartment of Industrial Relations wob,si,te located at www.dir.ca.gov, and Public Contract Code Portion 6108. (2) . The Subgrantee agrees to cooperate fully in providing reasonable access to the subgrantees' records, documents, agents or employees, or premises if reasonably required by authorized officials of the 'pass - through" entity, the Department of Industrial Relations, or the Department of Justice to determine the subgrantees' compliance with the requirements under paragraph a of the Sweatfree Code of Conduct. 1.) , Unenforceable Provision: In the event thaL any provision of this subgrant agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this subgrant agreement have force and effect and shall not be affected hereby, ill) . Nondiscrimination Clause: (1). The conduct of the parties to this subgrant agreement will be in accordance with 'Title VI of the Civil Rights Act of 1964, and the Rules and Regulations promulgated there Linder and the provisions of WIOA, Section 165. (a) . As a condition to the award of financial assistance from the Department of Labor under Title I of WIDA, the grant applicant assures that it wil.1 comply fully with the nondiscrimination and equal opportunity provisions of the following laws: Section 108 of the WIDA, which prohibits discrimination against all individuals in the United States on the basis of race, color, religion, sex, national origin, age disability, political, affiliation or belief, and against beneficiaries on the basis of either oitizenuhip /status as a lawfully admitted i.mmlgrant authorized to work in the United Static or participation in any WIDA Title I - financially Page 5 of 13 55A -11 assisted program or activity; Title VI of the Civil Rights Act of 7,964, as amended, which prohibits discrimination on the basis of race, color and national origin; Section 504 of the Rehabilitation Bet of 1973, as amended, which prohibits discrimination against qualified individuals with disabilities; The Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; and Title Ix of the Education Amendments of 1972, as amended, which prohibits discrimination on the basis of sex in educational programs. The grant applicant also assures that it will comply with Uniform Guidance 2 CFR Part 200, DOE Exceptions 2 CFR Part 2900 and all other regulations implementing the laws listed above. This assurance applies to the grant applicant's operation of the WIOA Title I- financially assisted program or activity, and to all agreements that grant applicant makes to carry out the W70A Title S- financially assisted program or activity, The grant applicant understands that the United States has the right to seek judicial enforcement of this assurance. (b). This Subgrantee shall include the nondiscrimination and compliance previsions of this clause in all subcontracts to perform work under the subgrant agreement. (e). This Subgrantea agrees to conform to nondiscrimination provisions of the WIOA and other federal nondiscrimination requirements as referenoad in WIQA Sec, 188. n) . Indemnification: (1), The following provision applies only if the Subgrantee is a governmental entity; Pursuant to the prevision of Section 895.4 of the California Government Cede, each party agrees to indemnify and hold the other party harmless from all liability for damage_ to persons or property arising out of or resulting from acts or omissions of the indemnifying party. (2). The following provision applies only if the Subgrantee is a non - governmental entity: The Subgrantee agrees to the extent permitted by law, to indemnify, defend and save harmless the "pass - through" entity, its officers, agents and employees from any and all claims and losses accruing or resulting to any and all contractors, oubcontractors, materials persona, laborers and any other persons, firms or corporations, furnishing or supplying work, services, materials, or supplies in connection with the performance of this agreement, and from any and all claims and losses accruing or resulting to any persons, firms or corporations which may be injured or damaged by the Subgrantee in the performance of this subgrant agreement. Failure to comply with all requirements of the certifications in Section 2 may result in suspension of payment under this subgrant agreement or termination of this subgrant agreement or both, and the Subgrantee may be ineligible for award of future state subgrant agreements /contracts if the department determineo that any of the following has occurred; (1) false information on the certifications, or (2) violation of the terms of the certifications by failing to carry out the requirements as noted above. o). Salary and Bonus Limitations: In compliance with Public Law 109 -234, none of the funds appropriated in Public Law 109 -149 or prior Acts under the heading "Employment and Training" that are available for expenditure on or after June 15, 2006, shall be used by a recipient or subrecipent of such (undo to pay the salary and bonuses of an individual, either as direct eosto.or indirect costs, at a rate in excess of Executive Level, II, except as provided for under section 101 of Public Law 109 -149. This limitation shall not apply to vendors providing goods and services as defined in Uniform Guidance 2 CFR Part 200 and the DOE Exceptions 2 CFR Part 2900, Where States are recipients of such funds, States may establish a lower limit for salaries and bonuses of those receiving salaries and bonuses from subrecipients of such funds, taking into account factors including the relative cost -of- living in the States, the compensation levels for programs involved including Employment and Training Administration programs. See Training and Employment Guidance Letter number 5 -06 for further clarification. The incurrence of costs and receiving reimbursement for these costs under this award certifies that your organization has read the above special condition and is in compliance. p). Federal Funding Accountability and Transparency Act (FFATA): As required by the FFATA, recipients of federal awards are required to report sub -award and executive compensation information. By signing this subgrant agreement the Subgrantee hereby aceurco and certifies to comply with the provisions of FRATA, which includes requirements referenced in Uniform Guidance 2 CFR Part 200 and DOL Exceptions 2 CFR part 2900. q). AIR OR WATER POLLUTION VIOLATION: Under the State laws, the Contractor shall not be: (1) in violation of any order or resolution not subject to review promulgated by the State Air Reseurees Board or an air pollution control district; (2) subject to cease and desiSL order not subject to review issued pursuant to Section 13301 of the Water Code for violation of weota di.srharge requirements or, discharge prohibitions; or (3) finally determined to be in violation of provisions of federal law relating to air or water pollution. 3. Standards of Conduct The following standards apply to all Subgrantees: a) . General Assurance: Every reasonable course of action will be taken by the Subgrantee in order to maintain the integrity of this expenditure of public funds and to avoid favoritism and questionable or improper conduct. This subgrant agreement will be administered in an impartial manner, free from efforts to gain personal, financial or political gain. The .Subgrantee agrees to conform to the nondiscrimination requirements as referenced in WIOA, Section 188, b), Avoidance of Conflict of Economic Interest: An executive or employee of the Subgrantoe, on elected official in the area or a member of the Local Hoard, will not solicit or accapt money or any other, consideration from a third person, for the performance of an act reimbursed in whole nr, part by the Subgrantee or "pass- through" entity: Supplier,., materials, equipment or services purchased with subgrant agreement funds will be used solely for purposes allowed under this subgrant agreement, No member of the Local Board will cast a vote on the provision of services by that member (or any organization, which that member reproscut6) or vote on any matter which would provide direct financial benefit to that member (or immediate family of the member) or any business or organization which the member directly represents, 4. Coordination Subgrantee will, to the maximum extent feasible, coordinate a17. programs and activities supported under this part with other programs under the WIoA, including the Wagner- Peyser Act, Title 38 of the United States Code, and other employment and training programs at the state and local level. Subgrantee will console with the appropriate labor organizations and /or employer representatives in the design, operation or modification of the programs under this subgrant agreement. Page 6 of 13 55A -12 5, Subcontracting A). Any of the work or services specified in this subgrant agreement which will be performed by other than by the Subgrantee will be evidenced by a written agreement specifying the terms and conditions of such performance. b). The Subgrantee will maintain and adhere to an appropriate system, consistent with federal, state and local law, for the award and monitoring of contracts which contain acceptable standards for insuring accountability, c). The system for awarding contracts will Contain safeguards to insure that the Subgrantee does not contract With any entity whose officers have been convicted of fraud or misappropriation of funds within the last two years, 6. Insurance Except for city and county governmental entities, Subgrantees must provide the "pace- through" entity evidence of the coverage specified in a, b, c and d below, The evidence of coverage shall include the registration number of the subgrant agreement for identification purposes. a). Subgrantee will obtain a fidelity bond in an amount of not less than prior to the receipt of funds under this subgrant agreement, If the bond is canceled or reduced, Subgrantee will immediately so notify the "pass- through" entity, In the event the bond is canceled or revised, the "pass- through" entity will make no further disbursements until it is assured that adequate coverage has been obtained. b) . Subgrantee will provide general liability insurance with a combined limit of $1,000,000 or. public liability and property damage coverage with a combined limit of not less than $1,000,000. c). Subgrantea will provide broad form automobile liability coverage with limits as set forth in (b) above, which applies to both owned /leased and non -owned automobiles used by the Subgrantee or its agents in performance of this subgrant agreement, or, in the event that the Subgrantee will not utilize owned /leased automobiles but intends to require employees, trainees or other agents to utilize their own automobiles in performance of this subgrant agreement, Subgrantee will secure and maintain on file from all such employees, trainees or agents a self- certification of automobile insurance coverage. d). Suhgrantae will provide worker's Compensation insurance, which complies with provisions of the California Labor Code, covering all employees of the Subgrantee and all participants enrolled in work experience programs. Medical and Accident Insurance will be carried for those participants not qualifying as "employee" (Section 3350, at seg. of the California Labor Cade) for Worker's Compensation. a). The "pass- through" entity will be named as "Certificate Holder" of policies secured in compliance with paragraphs a -d above and will be provided certificates of insurance or insurance company "binders" prior to any disbursement of funds under this subgrant agreement, verifying the insurance requirements have been complied with. The coverage noted in Is and c above must contain the following clauses: (1). Insurance coverage will not be canceled or changed unless 30 days prior to the effective date of cancellation or change written notice is sent by the Subgrantee to: Employment Development Department Workforce Services Division Financial Management Unit P. 0. Box 826880, MIC 69 Sacramento, CA 90280 -0001 W. State of California, its officers, agents, employees and servants are included as additional insured, but only insofar as the operations under this subgrant agreement are concerned. (3), The State of California is not responsible for payment of premiums or assessments on this policy. 7. Resolution A county, city, district or other local public body must provide the state with a copy of a resolution, order, motion, or ordinance of the local governing body which by law has authority to enter into an agreement, author12ing exe011ti,en of this subgrant agreement. Preferably resolutions should authorize a designated position rather than a named individual. 8, Funding It is mutually understood between the parties that this subgrant agreement may have been written before ascertaining the availability of congressional and legislative appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal. delays which would occur if the subgrant agreement was executed after that dstarmi.nation was made. This subgrant agreement is valid and enforceable only if (1) sufficient funds are made available by the State Budget Act of the appropriate state fiscal years covered by this subgrant agreement for the purposes of this program and; (2) sufficient funds available to the state by the United .States Government for the fiscal years covered by this subgrant agreement for the purposes of this program, In addition, this subgrant agreement is subject to any additional restrictions, limitations, or conditions enacted by the Congress and Legislature or any status enacted by the Congress and Legislature which may affect the provisions, terms, or funding of this subgrant agreement in any manner. a). At the expiration of the terms of this subgrant agreement or upon termination prior to the expiration of this subgrant agreement, funds not obligated for the purpose of this subgraut agreement will be immediately remitted to the "pass- through" Entity, and no longer available to the Subgrantee, b) . The "pass- through" entity regains the right to suspond financial assistance, in whole or in part, to protect the integrity of the funds or to ensure proper operation of the program, providing the Subgrantee is given prompt notice and the opportunity for an informal review of the "pass- through" entity's decision, The Chief Deputy Director or his designee will perform this informal review and will issue the final administrative decision within 60 Days of receiving the written request for r'evi,aw. Failure on the part of the Subgrantee or a Subcontractor of the Subgrantee to comply with the provisions of this subgrant agreement, or with the WIOA or regulations, when such failure involver fraud or misappropriation of funds, may result in immediate withholding of funds. c) . The local Chief Elected Official (CEO) of a unit of general local government designated as a Local Wor]force Development Area (LWDA) shall be liable to the EDD for all funds not expended in accordance with WIOA, and shall return to the EDD all of those funds. If there is more than one unit of general local government in a LWDA, the CEO(s) will be the individuals) designated under an agreement executed by the CEO(s) of the local unitsf of government. The CGO(s) designated under the agreement shall be Page 7 of 13 55A -13 liable to the EDb for all funds not expended in accordance with the WIDA, and shall return to the SEC all of those funds, 9, Accounting and Cash Management A), subgrantee. will comply With controls, record keeping and fund accounting procedure requirements of WIOA, federal and state regulations and directives to ensure the proper disbursal of, and accounting for, program funds paid to the Subgrantee and disbursed by the Subgrantee, under this subgrant agreement. b). Subgrantee will submit requests for cash to coincide with immediate cash needs and assure that no excess cash is on deposit in their accounts or the accounts of any Sub- contracting service provider in accordance with procedures established by the "paes- through" entity. Failure to adhere to these provisions may result in suspending cash draw down privileges and providing funds through a reimbursement process. c) . The "pass- through" entity retains the authority to adjust specific amounts of cash requested if the "pass - through" entity 's records and subsequent verification With the Subgrantee indicate that the Subgrantee has an excessive amount of cash in its account. d). Income (including interest income) generated as a result of the receipt of WIOA activities, will be utilized in accordance with policy and procedures established by the "pass- through" entity, Subgrantee will account for any such generated income separately, a). Subgrantee shall not he required to maintain a separate bank account but shall separately account for WIOA funds on deposit. All funding under this subgrant agreement, will be made by check or wire transfer payable to the Subgrantee for deposit in Subgrantee's bank account or city and county governmental bank accounts. To provide for the necessary and proper internal controls, funds should be withdrawn and disbursed by no less than two representatives of the Subgrantee. The "pass- through" entity will have a lien upon any balance of WIOA funds in these accounts, which will take priority over all other liens or claims. 10. Amendments This subgrant agreement may be unilaterally modified by the "pass- through" entity under the following circumstancea: a). Thane is an increase or decrease in federal or state funding levels, b), A modification to the Subgrant is required in order to implement an adjustment to a Subgrantee's plan. c). Funds awarded to the Subgrantee have not been expended in accordance with the schedule included in the approved Subgrantee's plan. After consultation with the Subgrantee, the "pass - through" entity has , determined that funds will not be spent in a timely manner, and such funds are for that reason to the extent permitted by and in a manner consistent with state and federal law, regulations and policies, reverting to the "pass- through" entity. d). There is a change in state and federal law or regulation requiring a. change in the provisions of this subgrant agreement. a).An amendment is required to change the Smbgrantees' name as listed on this subgrant agreement. Upon receipt of legal documentation of the name change the state will preeess the amendment. Payment of invoices presented with a new name cannot be paid prior to approval of said amendment, Except as provided above, this subgrant agreement may be amended only in writing by the mutual agreement of both parties. 11. Reporting 9ubgrautce will compile and submit reports of activities, expenditures, status of cash and closeout Information by the specified dates as prescribed by the -pass- through" entity. All expenditure reports most be submitted upon the accrual basis of accounting. Failure to adhere to the reporting requirements of this agreement will result in funds not being released. 12. Termination This subgrant agreement may be terminated in whole Or in part for either of the two following circumstances: a). Termination for Convenience - Either the "pass - through" entity or the Subgrantee may request a termination, in whole or in part, for convenience. The Subgrantee will give a ninety (90) calendar -day advance notice in writing to the "pass- through" entity. The "pass- through" entity will give a ninety (90) calendar -day advance notice in writing to the subgrantee, b). Termination for Cause - The "pass- through" entity may terminate this subgrant agreement in whole or in part when it has determined that the Subgrantee has substantially violated a specific provision of the WIOA regulations, the Uniform Guidance or implementing state legislation and corrective action hag not been taken. (1), All notices of termination must be in writing and be delivered personally or by deposit in the V. S. Mail, postage prepaid, ^Certified Mail- keturn Receipt Requested ^, and will be deemed to have been given at the time of personal delivery or of the date of postmark by the V. S. Postal Service. Notices to the subgrenteo will be addressed to: Kelly, Reenders Director / Adminietrator SANTA ANA WORKFORCE INV BOARD 1000 F, ,SANTA ANA BLVD. SANTA ANA, CA 92701 Notices to the "Pass - through" Entity will be addressed to: Employment Development Department Workforce Services Divisidn Financial Management Unit P. 0. Box 826880, MIC 69 ORCramento, CA 94280 -0001 13. Records 55A -14 page 9 of 13 a). If participants are served under this subgrant agreement, the Subgrantee will establish a participant data system as prescribed by the "pass- through° entity. b). Subgrantee will retain all records pertinent to this subgrant agreement for a period of three years from the date of final payment of this aubgrutt agreement. If, at the end of three years, there is litigation or an audit involving those records, the Subgrantse will retain the records until the resolution of such litigation or audit. Refer to Uniform guidance, Subpart D, Part 200.333 - 200.337. a) . The "pass- through' entity and /or the DOL, or their designee (refer to Uniform Guidance, Subpart F, Part 200.500- 200.521)will have Recess to and right to examine, monitor and audit all records, documents, conditions and activities related to programs funded by this subgrant agreement. For purposes of this section, "access to" means that the Subgrantee shall at all times maintain within the State of California a complete set of records and documents related to programs funded by this agreement. The Subgrantee shall comply with this requirement regardless of whether it ceases to operate or maintain a presence within the State of California before the expiration of the subgrant. Subgrantee's performance under the terms and conditions herein specified will be subject to an evaluation by the "pass- through" entity of the adequacy of the services performed, timeliness of response and a general impression of the competency of the firm and its staff. 14. Audits a), The Subgrantee will 'maintain and make available to auditors, at all levels, accounting and program records including supporting source documentation and cooperate with all auditors. All governmental and non - profit organizations must follow the audit requirements (single audit or program - specific audit requirement) of Uniform Guidance 2 CPR Part 200 and DOL Exceptions 2 CFR Part 2900, b). The Subgrantee and /or auditors performing monitoring or audits of the Subgrantee or its sub- contracting service providers will immediately report to the "pees- through" entity any incidents of fraud, abuse or other criminal activity in relation to this aubgrant agreement, the WIOA, or its regulations, 15, Disallowed Costs Pxoept. to the extent that the state determines it will assume liability, the Subgrantee will be liable for and will repay, to the "pass- through" entity, any amounts expended tinder this subgrant agreement found not to be in accordance with WIOA including, but not limited to, disallowed costs. Such repayment will be from funds (Non - Federal), other than those received under the WIOA, 16. Conflicts a), Subgrantee will cooperate in the resolution of any conflict with the DOI, that may occur from the activities funded under this agreement. b) . In the event of a dispute between the "pass- tlmough" entity and the Subgrantee over any part of this subgrant agreement, the dispute may be submitted to non - binding arbitration upon the consent of both the "pass- through" entity and the Subgrantee. An election for arbitration pursuant to this provision will not preclude either party from pursuing any .remedy for relief otherwise available. 17. Grievances and Complaint System Subgrantee will establish and maintain a grievance and complaint procedure in compliance with the W10A, the Uniform Guidance 2 CPR Part 200, VOL Exceptions 2 MR Part 2900, federal regulations and state statues, regulations and policy, 18. Property All property, whether finished or unfinished dooumanes, data, studies and reports prepared or purchased by the Subgrantee under this subgrant agreement, will be disposed of in accordance with the direction of the "pass- through" entity. In addition, any tools and /or equipment furnished to the Subgrantee by the "pass- through" entity and /or purchased by the Subgrantee with funds pursuant to this subgrant agreement will be limited to use within the activities outlined in this subgrant agreement and will remain the property of the United States Government and /or the "pass- through" entity. Upon termination of this subgrant agreement, Subgrantee will. immediately return such tools and /or equipment to the "pees- through" entity or dispose of then in accordance with the direction of the "pass- through" entity. 19. intellectual Property Provisions a).Foderal Funding In any subgrant funded in whole or in part by the federal government, "pass- through" entity may acquire and maintain the intellectual Property rights, title, and ownership, which result directly or indirectly from the subgrant, except as provided in 37 CPR Part 401.111. However, pursuant to Uniform Guidance 2 CPR Part 200 and DOL Exceptions 2 CFR Part 2900 the federal government shall have a royalty -free, non- exclusive, irrevocable, paid -up license throughout the world to use, duplicate, or dispose of such Intellectual. Property throughout the world in any manner for governmental purposes and to have and permit others to do so. b).Ownership (1),Except where "pass - through^ entity has agreed in a s.ignad writing to accept a license, "pass- through" entity shall be and remain, without additional compensation, the sole owner of any and all rights, title and interest in all intellectual property, from the moment of creation, whether or not jointly conceived, that are made, conceived, derived from, or redur-ed to practice by Suhgrantoa or, "pass - through" entity and which result directly or indirectly from this subgrant agreement, (2).For the purposes of this subgrant agreement, Intellectual Property means recognized protectabls rights and interest such as: patents, (whether or not issued) copynights, trademarks, service marks, applications for any of the foregoing, inventions, trade secrets, trade dress, logos, insignia, color combinations, slogans, moral rights, right of publicity, author's rights, contract and licensing rights, worlds, mas], wox:ks, industrial design rights, richto of priority, know how, design fl,owo, methodologies, devdceo, business processes, developments, innovations, good will, any data or Information maintained, . collected or stored in the ordinary course of business by "pass - through" entity, and all other legal rights protecting intangible proprietary information as may exist now and /or hereafter some into existence, and all renewals and extensions, regardless of whether those rights arise under the laws of the United States, or any other state, country or jurisdiction. (a) . Far the purPnneo of the definition of Intellectual Property, "works" means all literary works, writings and printed matter including the medium by which they are reoordod or reproduced, photographs, art work, pictorial and graphic representati.on5 and works of a similar nature, film, motion pictures, digital images, animation cells, and other audiovisual works including positives and negatives thereof, sound recordings, tape$, educational materials, interactive vi.dens, computer software and any other page 9 of 13 55A -15 materials or products created, produced, conceptualized and fixed in a tangible medium of expression, It includes preliminary and final products and any materials and information developed for the purposes of producing those final products, "Works" does not include articles submitted to peer review or reference journals or independent research projects. (3) In the performance of this subgrant agreament, Subgrantee may exercise and utilize certain of its Intellectual. Property in existence prior to the effective date of this subgrant agreement. In addition, under this subgrant agreement, Subgrantee may access and utilize certain of "pass- through" entity's intellectual property in existence prior to the effective date of this subgrant agreement. Except as otherwise set forth herein, Subgrantee shall not use any of "pass- through" entity's Intellectual Property now existing or hereafter existing for any purposes without the prior written permission of "pass - through" entity. Except as otherwise set. forth herein, neither the Subgrantee nor "pass- through" entity shall give any ownership interest in or rights to its Intellectual Property to the other Party. If, during the term of this subgrant agreement, Subgrantee accesses any third -party Intellectual Property that is licensed to "pass-through' entity, Subgrantee agrees to abide by all license and confidentiality restrictions applicable to "pass- through" entity in the third- partyls license agreement. (4),Subgrantee agrees to cooperate with "pass- through" entity in establishing or maintaining "pass - through" entity's exclusive rights in the Intellectual Property, and in assuring "pass- through" entity's sole rights against third parties with respect to the Intellectual Property. If the Subgrantee enters into any agreements or subcontracts with other parties in order to perform this subgrant agreement, Subgrantee shall require the terms of the egreement(s) to include all Intellectual Property provisions of paragraph nineteen a) through nineteen i). Such terms must include, but are not limited to, the subcontractor assigning and agreeing to assign to "pass- through" entity all rights, title and interest in Intellectual Property made, conceived, derived Prom, or reduced to practice by the subcontractor, subgrantee or "pass- through" entity and which result directly or indirectly from this subgrant agreement or any subcontract. (5). Pursuant to paragraph nineteen (b) (4) of the intellectual Property Provisions in Exhibit AB to this subgrant agreement, the requirement for the Subgrantee to include all Intellectual Property Provisions of paragraph nineteen a) through nineteen i) of the Intellectual Property Provisions in all agreements and subcontracts it enters into with other parties does not apply to subgrant agreements or subcontracts that are for customized and tarthe -job training as authorized under 20 CER 663.700 -730. (6).Subgrantee further agrees to assist and cooperate with "pass- through" entity in all reasonable respects, and execute all documents and, subject to reasonable availability, give testimony and take all further acts reasonably necessary to acquire, transfer, maintain, and enforce "pass- through" entity's Intellectual Property rights and interests. e), Retained Righte / License Rights (1), Except for Intellectual Proper "passProper "pass - through" entity ty made, conceived, derived from, or reduced to practice by Subgrantee or "pass- through" entity and which result directly or indirectly from this subgrant agreement, Subgrantee shall retain title to all of its Intellectual Property to the extent such Intellectual Property to in existence prior to the effective data of this subgrant agreement. Subgrantee hereby grants to "pass - through" entity, without additional compensation, a permanent, non- exclusive, royalty free, paid -up, worldwide, irrevocable, perpetual, non - terminable - license to use, reproduce, manufacture, sell, offer to sell, import, export, modify, publicly and privately display /perform, distribute, and dispose of Subgrantee's Intellectual Property with the right to sublicense through multiple layers, for any purpose whatsoever, to the extent it is i.noorporated in the Intellectual Property resulting from this subgrant, unless Subgrantee assigns all rights, title and interest .in the Intellectual Property as set forth herein. (2) . Nothing in this provision shall. restrict, limit, or otherwise prevent Subgrantee from using any ideas, concepts, know -how, methodology or techniques related to its performance under this subgrant agreement, provided that Subgrantee -9 user does not infringe the patent, copyright, trademark rights, license or othat Int.ollectuil Property rights of "pass- through" entity or third party, or result in a breach or default of any provisions of paragraph nineteen a) through nineteen i) or result in a breach of any provisions of law relating to confidentiality. d). copyright (1) Subgrantee agreoe that for purposes of copyright law, all works (as defined in Ownership, paragraph nineteen (b) (2) (a) of authorship made by or on behalf of Subgrantee in connection with Subgrantee -s performance of this subgrant agreement shall he deemed "works made for hire." Subgrantee Further agrees that the work of each person utilized by Subgrantee in connection with the performance of this subgrant agreament will he a "work made for hire," whether that person is an employee of Subgrantee or that person has entered into an agreement with ,9ubgrantee to perform the work. Subgrantee shall enter into a written agreement with any such Person that: (i) all work performed for Subgrantee .shall be deemed a "work made for hire" under the Copyright Act and iii) that person shall assign all right, title, and interest to "pass- through" entity to any work product made, conceived, derived from or reduced to practice by Subgrantee or "pass- through" entity and which result directly or indirectly from this subgrant agreement. Rotor to Uniform Guidance 2 CFR Part 200 and EOL Exceptions 2 CFR Part 2900. (2) All materials, including, but not limited to, computer software, visual works or text, reproduced or distributed pursuant to this subgrant agreement that include Intellectual Property made, conceived, derived from, or reduced to practice by Subgrantee or "pass- through" entity and which result directly or indirectly from this subgrant agreement may not be reproduced or disseminated without prior written permission from "pass- through" entity.. a). Patent Rights With respect to inventions (refer to uniform Guidance 2 CFR Part 200 and P074 Exceptions 2 CFR Part 2900, made by Subgrantee in the performance of thi.s subgrant agreement, which did not result from research slid development specifically included in the Subgrantes scope of work, Subgrantee hereby grants to "paso- through" entity a license as described under paragraph nineteen c) for devices or material incorporating, or made through the use of such inventions. If such inventions result from research and development work specifically included within the subgrant agreement's scope of work, then Subgrantee agrees to assign to " pass- through" entity, without addition compensation, all its right, title and interest in and to such inventions and to assist "pass - through" entity in securing United states and foraign patents with respect thereto. Page 10 of 13 55A -16 f). Third -Party Intellectual Property Except as provided 'herein, Subgrantee agrees that its performance of this subgrant agreement shall not be dependent upon or include any Intellectual Property of Subgrantee or third party without first: (i.) obtaining "pass- through" entity's prior written approval; and (ii) granting to or obtaining for ^pass - through" entity's, without additional compensation, a license, as described in paragraph nineteen c), for any of Subgranteee or third- party's Intellectual Property in existence prior to the effective date of this subgrant agreement. If such a license upon these terms is unattainable, and "pass - through" entity determines that the Intellectual Property should be included in or is required for Subgranteee performance of this subgrant agreement, Subgrantee shall obtain a license under terms acceptable to -pass-through- entity, g). Warranties (1). Subgrantee represents and warrants that; (a). It has secured and will aecu'ra all rights and licensee necessary for its performance of this subgrant agreement. (b). Neither Subgrantee'¢ performance of this subgrant agreement, nor the exercise by either Party of the rights granted in this subgrant agreement, nor any use, reproduction, manufacture, sale, offer to sell, import, export, modification, public and private display /performance, distribution, and disposition of the InLallemtual property made, conceived, derived from, or reduced to practice by Subgrantee or "pass - througb" entity and which result directly or indirectly from this subgrant agreement will infringe upon or violate any intellectual Property right, non - disclosure obligation, or other proprietary right or interest of any third -party or entity now existing under the laws of, or hereafter existing or issued by, any state, the United States, or any foreign Country. There are currently no actual or threatened claims by any ouch third party based on an alleged violation of any such right by Subgrantee. (c), Neither Subgranteee performance nor any part of its performance will violate the right of privacy of, or constitute a libel or slander against any person or entity. (d). It has secured and will secure all rights and licenses necessary for Intellectual Property including, but not limited to, comments, waivers or releases from all authors. (e). Of music or performances used, and talent (radio, television and motion picture talent), owners of any interest in and to real estate, sites locations, property or props that may be used or shown. (f) . It has not granted and shall not grant to any person or entity any right that would or might derogate, encumber, or interfere with any of the rights granted to "pass- through" entity in this subgrant agreement, (g). It has appropriate systems and controls in place to ensure that state and federal funds will not be used in the performance of this subgrant agreement for the acquisition, operation Or maintenance of computer software in violation of copyright laws. (h) . It has no knowledge of any outstanding claims, licenses or other charges, liens, or encumbrances of any kind or nature whateoaven that could affect in any way Subgranteee performance of this subgrant agreement. (2) . "PASS - THROUGH" ENTITY MAKES NO WARRANTY THAT THE INTELLECTUAL PROPERTY RESULTING FROM THIS SUAGRANT AGREEMENT DOES NOT INFRINGE UPON ANY PATENT, TRADEMARK, COPYRIGHT OR THE LI$E NOW EXISTING OR ,SUBSEQUF,NTLY ISSUED. h). Intellectual Property Indemnity (1) . Subgrantee shall indemnify, defend and hold harmless "palm- through" entity and its licensees and assignees, and its officers, directors, empleyeee, agents, representatives, successors, and users of iLo Products, ( "$adeauaitiea ") from and against all claims, actions, damages, losses, liabilities (or actions or proceedings with respect to any thereof) , whether or not rightful, arising from any and all Actions or elaimo by any third party or expenses related thereto (including, but not limited to, all legal expenses, court costs, and attorney's fees incurred in investigating, preparing, serving as a witness in, or defending against, any such claim action, or proceeding, commenced or threatened) to which any of the Indemnities may be subject, whether or not Subgrantee is a party to any pending or threatened litigation, which arise out of or are related to (i) the incorrectness or breach of any of the representations, warranties, covenants or agreements of Subgrantee pertaining to Intellectual Property; or (11) any Intellectual Property infringement, or any other, type of actual or alleged infringement claim, arising out of "pass- through" entity's use, reproduction, manufacture, sale, offer to sell, distribution, import, export, modi.ficati.on, public and private performance /display, license, and disposition of the Intellectual Property made, conceived, derived from, or reduced to practice by Subgrantee or "pass - through" entity and which result directly or indirectly from this subgrant agreement. This indemnity obligation shall apply irrespective of whether the infringement claim is based on a patent, trademark or copyright registration that was issued after the effective date of this subgrant agreemeuL, "pace - through" entity reoerves the right to participate in and /or control, at Subgrantee'¢ expense, any much infringement action brought against "pass- through" entity. (a.). Should any Intellectual Property licensed by the Subgrantee to "paoo- through" entity under this subgrant agreement become the subject of an intellectual Property infringement claim, ,Subgrantee will exercise its authority reasonably arid in good faith to preserve "pass- through" entity's right to use the licensed intellectual Property in accordance with this subgrant agreement at no expense to "pass- through" entity. °pass- through" entity shall, have the right to monitor and appear through its own counsel (at Subgra.ntee's expense) in any such claim or action. In the defense or settlement of the claim, Subgrantee may obtain the right for "pass- through" entity to continue using the licensed Intellectual Property or, replace or modify the licensed Intellectual Property so that the replaced or. modified Intellectual Property becomes non - infringing provided that such replaoement or modification is functionally equivalent to the original licensed intellectual. Properly. If ouch ramedies are not reasonably available, "pass - through" entity may be entitled to a refund of all monies paid under this subgrant agreement, without restriction or limitation of any other rights and remedies available at law or in equity, (3). ,Subgrantee agrees that damages alone would be inadequate to compensate "pass- through" entity for breach of any term of these Intellectual Property provisions of paragraph ninetoen a� through nineteen I) by Subgrantee. Subgrantee Acknowledges "peso- througHP' entity would suffer irreparable harm in the event of such breach and agrees "pass - through" entity shall be entitled to obtain equitable relief, including without limitation an injunction, from a court of competent jurisdiction, without restriction or limitation cf any other rights and remedies available at law or in equity. Page 11 of 13 55A -17 i), Survival The provisions set forth herein shall survive any termination or expiration of this subgrant agreement or any project schedule. 20, Confidentiality Requirements The State of California and the Subgrantee will exchange various kinds of information pursuant to this subgrant agreement. That information will include data, applications, program files, and databases. These data and information are confidential when they define an individual or an employing unit. Confide ce.ial ,information requires special precautions to protect it from unauthorized use, access, disclosure, modification, and destruction. The sources of information may include, but are not limited to, the EDD, the California Department of Social Services, the California Department of Education, the California Department of Corrections and Rehabilitation, the County Welfare Department(s), the County IV- D Directors Office of Child Support, the Office of the District Attorney, the California Department of Mental Health, the California Office of Community Colleges and the Department of Alcohol and Drug Programs, - The "pass - through" entity and Subgrantee agree that: a), Each party shall keep all information that is exchanged between them in the strictest confidence and make much information available to their own employees only on a "need -to- know" basic. b). Each party shall provide security sufficient to ensure protection of confidential information from improper use and disclosures, including sufficient administrative, physical, and technical safeguards to protect this information from reasonable unanticipated threats to the security or confidentiality of the rnformat.ion, c). The Subgrantee agrees that information obtained under this subgrant agreement will not be reproduced, published, sold or released in original or in any other form for any purpose other than those specifically identified in this agreement, (1) Aggregate Summaries: All reports and /or publications developed by the Subgrantee based on data obtained under this agreement shall contain confidential data in aggregated or statistical summary form only, "Aggregated" refers to a data output that does not allow identification of an individual or employer unit. (2) Publication; Prior to publication, Subgrantee shall carefully analyze aggregated data outputs to ensure the identity of individuals and /or employer units cannot be inferred pursuant to Unemployment Insurance Code Section 1094(e). Personal identifiers must be removed. Geographic identifiers should be specified only In large areas and as needed, and variables should be recorded in order to protect Confidentiality. (3) Minimum Data Cell Size: The minimum data cell size or derivation thereof shall be three participants for any data table xeleased to outside parties or to the public. d). Each party agrees that no disaggregate data, identifying individuals or minelayers, shall be released to outside parties or the public. e) . The Subgrantee Shall notify "pass- through" entity's Information Security Office of any actual or attempted information security incidents, within 24 hours of initial detection, by telephone at (916) 654- 6231, Information Security Incidents include, but are not limited to, any event (intentional or unintentional), that. causes the loss, damage, or destruction, or unauthorized access, use, modification, or disclosure of information assets. The Subgrantee shall cooperate with the ^pacts- through" entity in any investigation of security incidents. The system or device affected by an information security incident and containing confidential, data obtained in the administration of this program shall be immediately removed from operation upon confidential data exposure or a known security breach. It shall remain removed from operation until correction and mitigation measures are applied, If the Subgrantee learns of a breach in the security of the syatam which contains confidential data obtained under this Subgrant, then the Subgrantee must provide notification to individuals pursuant. to Civil Code Section 1798.82. f). The Subgrantee shall provide for the management and control of physical access to information assets (including personal computer systems, computer terminals, mobile computing devices, and various electronic storage media) used in performance of this Subgrant. This shall include, but is not limited to, security measures to physically prated data, systems, and workstations from unauthorized access and malicious activity the. prevention, detection, and suppression of fires; and the prevention, detection, and minimization of water damage. g). At no time will confidential data obtained pursuant to this agreement be placed on a mobile computing device, or on any form of removable electronic .storage media of any kind unless the data are fully encrypted. h) . Each party shall. provide its employees with access to confidential. informat'ca with written instructions fully disclosing and explaining the penalties for unauthorized use or disclosure of confidential information found in Section 1798,55 of the Civil. Code, Section 502 of the Penal Code, Section 2111 of the Unemployment Insurance Code, Section 1.0850 of the Welfare and lnctitutions Code and other applicable local, state and federal laws. i). Each party shall ( %Ilxems iL is appropriate) atone and process information in electronic format, in such a way that unauthorized persons Cannot reasonably retrieve the information by means of a computer. i). Each party shall promptly return to the other party confidential information When its use ends, or destroy the confidential information utilizing an approved method of destroying confidential informati.cn: shredding, burping, or certified or witnessed destruction. Magnetic media are to be degsnsmed or returned to the other party. k) . If the °pass- thrcughP entity or Subgrantee enters into an agreement with a third party to provide WIOA services, the "pass- through" entity or Subgrantee agrees to inolude tines data and security and confidentiality requiiremento in the agreement With that third party. In no event shall said information be disclosed to any individual outside of that third party's authorized staff, subcontractor(s), service providers, or employees. 1) . The Subgrantee may, in its operation of the America's ,lob Center of California (A.ICC), permit an ASCC Oporitor to enter into a subcontract to manage confidential information. This subcontract may allow an individual to register for resume- distribution mervices at the same time the individual enrolls in CalSCSS, Subgrantee shall, enters that all Such subcontracts comply with the .intellectual property requirements of paragraph 19 of this Subgrant, de confidentiality requirements of paragraph 20 of this subgrant and any other terms of this Subgrant that may be applicable. In addition, the fallowing Page 12 of 13 55A -18 requirements must be included in the subcontracts: (1). All client information submitted over the iuternet to the subcontractor's databases must be protected, at a minimum, by 328 -bit Secure socket Layer (SSL) encryption. Clients' social security numbers must be stared in a separate database within the subcontractor's network of servers, and protected by a firewall and a secondary database server firewall or AES1 data encryption. If a subcontractor receives client social security numbers or other confidential information in the course of business, for example a resume- distribution service that provides enrollment in CalJGBS, social security numbers must be destroyed within two days attsr the client registers for Ca1JOPS. If a subcontractor obtains confidential information as an agent of the subgrantee, the subcontract must specifically state the purpose for the data collection and the term of records retention must be stated, and directly related, to the purpose and use of the information. In accordance with Uniform Guidance 2 CFR Part 200 and DOE Exceptions 2 CFA Part 2900, social security numbers and Other client specific information shall not be retained for more than three years after a client completes services. The aubgrantee should extend this period, only if any litigation, Claim, negotiation, audit, or other action involving the records has been started before the end of the three -year retention period. In this case the records should be maintained until completion of the action and resolution of all issues arising from it, or until the close of the three -year retention period, whichever is later. Uniform Guidance 2 CFR Part 200 and DOL Exceptions 2 CPR Part 2900. (2). Client information (personal information that identifies a client such as name and social security number) and /or demographic information of a client (such as wage history, address, and previous employment) shall not be used as a basis for commercial solicitation during the time the client or agency is using the subcontractor's services. Client information and /or demographic information shall not be used for any purposes other than those specific program purposes set forth in the subcontract. (S). An AJCC Client must still be given the option to use the AJCC's services, including Cd1JOBS, even if he or she chooses not to use any services of the subcontractor. This option shall be prominently, clearly and immediately communicated to the client upon registration within the AJCC or for CalJOBS, the subcontractor's resume - distribution services, or any other services subcontractor offers to the client or the AJCC Operator, (4). The subcontractor must clearly disclose all of its potential and intended uses of the client's personal and /or demographic information for the services the client seeks and for any other services the subcontractor offers. The subcontractor shall not use a client's personal and /or demographic information without the client's prior permission, A link to the subcontractor's Privacy Policy shall appear prominently on the registration screens that list the potential and intended uses of the client's personal and /or demographic information, (5). When the °pass- through" entity modifies State automated systems such as the State CalJOBS System, it shall provide reasonablo notice of ouch changes to the Subgrantee. The Subgrantee shall be responsible to communicate ouch changes to the AJCC operators) in the local area. m). Each party shall designate an employee who shall be responsible for overall security and confidentiality of its data and information systems and oacb party shall notify the other of any changes in that designation. As of this date, the fallowing are those individuals: FOR THE "PASS - THROUGH" ENTITY Name: Jaime Gutierrez Title: Section Manager Addr000: P.O. Box 826850, MIC 50 Sacramento, CA "280 -0001 Telephone: (916) 654 -9699 Fax: (916) 654 -9586 FOR THE SUBGRANTEE Deborah Sanchez Title; Economic Development Specialist III Telephone, (714) 565 -2621 Fax: (71.4) 565 -2602 21. Signatures This subgrant agreement is of no force and effect until signed by both of the parties hereto. Subgrantee will not commence performance prior to the beginning of this subgrant agreement. Page 13 of 13 55A -19 55A -20 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: AUGUST 18, 2015 TITLE: RESOLUTION AUTHORIZING EXECUTION OF CERTAIN DOCUMENTS REQUIRED BY THE CALIFORNIA BOARD OF EQUALIZATION TO COLLECT THE CITY'S UTILITY USERS' TAX ON PREPAID WIRELESS SERVICE (STRgATEGIC PLAN NO. 4,3A) i CITY MANA ER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2 "d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a Resolution Authorizing the City Manager and Clerk of the Council to execute a contract and related certification statement with the California Board of Equalization to perform functions incidental to the administration and collection of prepaid mobile telephony services surcharge and local charges. 2. Authorize the City Manager and Clerk of the Council to execute a Local Charge Agreement with the California Board of Equalization, subject to non - substantive changes approved by the City Manager and City Attorney. 3. Authorize the City Attorney and Clerk of the Council to execute an accompanying certification statement required by the California Board of Equalization, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION As a result of the passage of Assembly Bill 1717 ( "AB 1717') a new methodology was established regarding the assessment and collection of a variety of surcharges on phone services, specifically Prepaid Mobile Telephony Services ( "MTS "). In addition, AB 1717 also mandates local jurisdictions contract with the California Board of Equalization ( "BOE ") in order to receive revenue imposed on consumers of Prepaid Mobile Telephony Services ( "MTS ") which becomes effective on January 1, 2016. 5513-1 Resolution Authorizing the Execution of Certain Documents Required by the California Board of Equalization to Collect The City's Utility Users' Tax on Prepaid Wireless Service August 18, 2015 Page 2 The BOE provided notification to local jurisdictions, via a press release on July 29, 2015, requiring local public agencies to enter into a contract with the BOE by September 1, 2015 to ensure uninterrupted collection of these local revenues. Additionally, as indicated by the BOE, failure to enter into the contract would result in the City of Santa Ana Utility Users' Tax ( "UUT ") imposed upon MTS not to be collected by the sellers. Consequently, the City will not receive the Utility Users' Tax revenue from prepaid MTS providers. Furthermore, if local jurisdictions fail to enter into the above - referenced contract by September 1, 2015, the next opportunity to enter into a contract with the BOE will be December 1, 2015. Delay in entering into a contract would result in the BOE not collecting charges imposed upon MTS until April 1, 2016. Thus, cities would forfeit revenues for the period January 1, 2016 through March 31, 2016. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal No. 4 City Financial Stability, Objective No. 3 (Achieve a structurally balanced budget with appropriate reserve levels), Strategy A (Modernize and adopt the City's utility user's tax ordinance by June 2014). FISCAL IMPACT There is no fiscal impact associated with this action. Francisco Gutierrez Executive Director Finance & Management Services Agency Exhibit 1 Resolution Exhibit 2 Local Charge Agreement Exhibit 3 Certification Statement Exhibit 4 California Board of Equalization Press Release SV/WH 55B -2 8.12.15 LS RESOLUTION NO. 2015- A RESOLUTION OF THE CITY OF SANTA ANA AUTHORIZING THE CITY MANAGER AND THE CITY ATTORNEY TO EXECUTE AGREEMENT WITH THE STATE BOARD OF EQUALIZATION FOR IMPLEMENTATION OF THE LOCAL PREPAID MOBILE TELEPHONY SERVICES COLLECTION ACT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA, AS FOLLOWS: Section 1: The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Pursuant to Utility Users' Tax Ordinance No. NS -2860 of the City of Santa Ana and the California "Local Prepaid Mobile Telephony Services Collection Act ", the City of Santa Ana, wishes to enter into a contract with the State Board of Equalization for implementation of the Local Prepaid Mobile Telephony Services Collection Act. B. The State Board of Equalization requires that City of Santa Ana take the following actions: 1) enter into a contract with the State Board of Equalization by September 1, 2015 for implementation of the Local Prepaid Mobile Telephony Services Collection Act; and 2) certify the City of Santa Ana's Utility Users' Tax ordinance, its applicable rate, and its applicability to prepaid mobile telephony services. NOW, THEREFORE IT IS RESOLVED AND ORDERED AS FOLLOWS: Section 2: WHEREAS, on August 18, 2015, the City of Santa Ana hereby certifies that Ordinance No. NS -2860 applies the City of Santa Ana's local utility users' tax charge to prepaid mobile telephony services; and WHEREAS, the Local Prepaid Mobile Telephony Services Collection Act mandates the Board of Equalization (BOARD) to administer and collect the local charges for all applicable local jurisdictions (Rev. & Tax Code section 42103); and WHEREAS, the BOARD will perform all functions incident to administration and collection of the local charges for the City of Santa Ana; and WHEREAS, the BOARD requires that the City of Santa Ana enter into an "Agreement for State Collection and Administration of Local Charges" prior to implementation of the Local Prepaid Mobile Telephony Services Collection Act; and EXHIBIT 1 55B -3 8.12.15 LS Whereas, the BOARD requires that the City of Santa Ana authorize the agreement. NOW, THEREFORE IT IS RESOLVED AND ORDERED AS FOLLOWS: Section 3. The City Council of the City of Santa Ana hereby agrees that the attached "Agreement for State Collection and Administration of Local Charges" is hereby approved, and the City Manager is hereby authorized to execute the agreement, as approved to form by the City Attorney, including any other related documents required by the BOARD to perform all functions incident to the administration and collection of the City of Santa Ana's local utility users' tax charge as applicable to prepaid mobile telephony services. Section 4. The City Attorney is hereby authorized to sign on behalf of the City of Santa Ana a certification required by the BOARD certifying certain information regarding the City of Santa Ana's utility users' tax ordinance, the applicable rate, and that it applies to prepaid mobile telephony services. Section 5. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. 55B -4 8.12.15 LS ADOPTED this day of 2015. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By Lisa E. Storck Assistant City Attorney AYES: Councilmembers: NOES: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of Council, do hereby attest to and certify the attached Resolution No. 2015- to be the original resolution adopted by the City Council of the City of Santa Ana on 2015. Date: Clerk of Council City of Santa Ana 3 55B -5 55B -6 Local Jurisdiction City of Santa Ana AGREEMENT FOR STATE COLLECTION AND ADMINISTRATION OF LOCAL CHARGES This Agreement is for the purpose of implementing the Local Prepaid Mobile Telephony Services Collection Act (Part 21.1, commencing with Section 42100) of Division 2 of the Revenue and Taxation Code), hereinafter referred to as the Local Charge Act. The City of Santa Ana and the State Board of Equalization, hereinafter called �,,.y��o���„��, �W ..«u... „n. the Board, do agree as follows: ARTICLE I DEFINITIONS Unless the context requires otherwise, wherever the following terms appear in this Agreement they shall be interpreted to mean the following: A. "Administrative Expenses” means all expenses incurred by the Board in the administration and collection of the local charges, including preparation and wind down costs which are reimbursable to the Board from the revenues dollected by the Board on behalf of the local jurisdiction. B. "Contingent Fee" includes, but is not limited to, a fee that is based on a percentage of the tax liability reported on a return, a fee that is based on a percentage of the taxes owed, or a fee that depends on the specific tax result attained. C. "Direct Seller" means a prepaid Mobile Telephony Service (MTS) provider or service supplier, as defined in section 41007, that makes a sale of prepaid mobile telephony services directly to a prepaid consumer for any purpose other than resale in the regular course of business. A direct seller includes, but is not limited to, a telephone corporation, a person that provides an interconnected Voice over Internet Protocol (Vole) service, and a retailer as described in section 42004(b)(1). D. "Local Charges" means a utility user tax imposed on the consumption of prepaid mobile telephony services, as described in section 42102, and charges for access to communication services or to local "911" emergency telephone systems imposed by a local jurisdiction, as described in section 42102.5. E. "Local Jurisdiction" or "local agency" means a city, county, or city and county, which includes a charter city, county, or city and county of this State, which has adopted an ordinance imposing a local charge of the kind described in Part 21.1 of Division 2 of the Revenue and Taxation Code and has entered into a contract with the Board to perform all functions incident to the collection of the local charges. F. "Ordinance" means an ordinance of a local jurisdiction imposing a local charge, including any local enactment relating to the filing of a refund or a claim arising under the ordinance, attached hereto, as amended from time to time. EXHIBIT 2 1 55B -7 G. "Quarterly local charges" means the total amount of local charges transmitted by the Board to a local jurisdiction for a calendar quarter, as set forth in section 42106(a)(1). H. "Refund" means the amount of local charges deducted by the Board from a local jurisdiction's quarterly local charges in order to pay that jurisdiction's share of a local charge refund due to one taxpayer. I. "Section"— all section references are to the Revenue and Taxation Code. J. "Seller" means a person that sells prepaid mobile telephony service to a person in a retail transaction. ARTICLE II BOARD ADMINISTRATION AND COLLECTION OF LOCAL CHARGES A. Administration. The Board and the local jurisdiction agree that the Board shall perform functions incident to the collection of the local charges from sellers that are not direct sellers. B. Collection. The Board shall collect the local charges in the same manner as it collects the prepaid NITS Surcharge in the Prepaid Mobile Telephony Services Surcharge Collection Act, subject to specified limitations in the Local Charge Act for which the local jurisdiction is responsible, as set forth in Article III of this Agreement. C. Audits. The Board's audit duties shall be limited to verification that the seller that is not a direct seller complied with the Local Charge Act. D. Other applicable laws. The Board and the local jurisdiction agree that all provisions of law applicable to the administration and operation of the Local Charge Act, Prepaid Mobile Telephony Services Surcharge Collection Act, and the Fee Collection Procedures Law (FCPL) shall be applicable to the collection of local charges. References in the FCPL to feepayer include a person required to pay the local charge, including the seller. All future amendments to applicable laws are automatically incorporated into this Agreement. E. Deposit of Local Charges. All local charges collected by the Board shall be deposited in the Local Charges for Prepaid Mobile Telephony Services Fund in the State Treasury to be held in trust for the local taxing jurisdiction. Local charges shall consist of all taxes, charges, interest, penalties, and other amounts collected and paid to the Board, less payments for refunds and reimbursement to the Board for expenses incurred in the administration and collection of the local charges, including preparation and wind - down costs. F. Allocation of Expenses. The Board shall allocate the total combined annual expenses incurred for administration and collection pursuant to the Prepaid Mobile Telephony Services Surcharge Collection Act and the Local Charge Act on a pro rata basis according to revenues collected for: (1) the emergency telephone users surcharge portion of the prepaid NITS surcharge, (2) the Public Utilities Commission surcharges 55B -8 portion of the prepaid NITS surcharge, and (3) local charges. The Board shall charge a local jurisdiction its pro rata share of the Board's cost of collection and administration. G. Transmittal of money. All local charges collected by the Board shall be transmitted to the local jurisdiction once in each calendar quarter. Transmittals may be made by mail or by deposit to the account of the local jurisdiction in a bank designated by that jurisdiction. The Board shall furnish a statement quarterly indicating the amounts paid and withheld for expenses of the Board. H. Rules. The Board shall prescribe and adopt such rules and regulations as in its judgment are necessary or desirable for the administration and collection of local charges and the distribution of the local charges collected. I. Security. The Board agrees that any security which it hereafter requires to be furnished under the FCPL section 55022 will be upon such terms that it also will be available for the payment of the claims of the local jurisdiction for local taxes owing to it as its interest appears. The Board shall not be required to change the terms of any security now held by it, and the local jurisdiction shall not participate in any security now held by the Board. J. Records of the Board. 1. Information obtained by the local jurisdiction from the examination of the Board's records shall be used by the local jurisdiction only for purposes related to the collection of the prepaid mobile telephony services surcharge and local charges by the Board pursuant to this Agreement. 2. When requested by resolution of the legislative body of a local jurisdiction, the Board shall permit any duly authorized officer or employee or other person designated by that resolution to examine any information for its own jurisdiction that is reasonably available to the Board regarding the proper collection and remittance of a local charge of the local jurisdiction by a seller, including a direct seller, subject to the confidentiality requirements of sections 7284.6, 7284.7 and 19542. (sections 42110(b), 42103(e).). 3. The resolution of the local jurisdiction shall certify that any person designated by the resolution, other than an officer and an employee, meets all of the following conditions: a. Has an existing contract with the local jurisdiction that authorizes the person to examine the prepaid NITS surcharge and local charge records. b. Is required by that contract with the local jurisdiction to disclose information contained in or derived from, those records only to an officer or employee of the local jurisdiction authorized by the resolution to examine the information. c. Is prohibited by that contract from perforn- ing consulting services for a seller during the term of that contract. d. Is prohibited by that contract from retaining information contained in, or derived from, those prepaid NITS surcharge and local charge records, after that contract has expired. 55B -9 4. Any third party contract between the local jurisdiction and an entity or person authorized by the local jurisdiction to request information from the Board shall be subject to the following limitations: a. Any third party shall, to the same extent as the Board, be subject to Section 55381, relating to unlawful disclosures. b. A third party contract shall not provide, in whole or in part, in any manner a contingent fee arrangement as payment for services rendered. 5. Information obtained by examination of Board records shall be used only for purposes related to the collection of the prepaid NITS surcharge and local charges by the board pursuant to the contract, or for purposes related to other governmental functions of the local jurisdiction set forth in the resolution. 6. If the Board believes that any information obtained from the Board's records related to the collection of the prepaid NITS surcharge and local charges has been disclosed to any person not authorized or designated by the resolution of the local jurisdiction, or has been used for purposes not permitted by section 42110(b), the board may impose conditions on access to its local charge records that the board considers reasonable, in order to protect the confidentiality of those records. (section 42110 (c).) 7. The costs incurred by the Board in complying with a request for information shall be deducted by the Board from those revenues collected by the Board on behalf of the local jurisdiction making the request, as authorized by section 42110(b)(1). ARTICLE III LOCAL JURISDICTION ADMINISTRATION AND RESPONSIBILITIES A. The local jurisdictions shall be solely responsible for all of the following: 1. Defending any claim regarding the validity of the ordinance in its application to prepaid mobile telephony service. The claim shall be processed in accordance with the provisions of the local ordinance that allows the claim to be filed. 2. Interpreting any provision of the ordinance, except to the extent specifically superseded by section 42105 of the Local Charge Act. The claim shall be processed in accordance with the provisions of the local enactment that allows the claim to be filed. 3. Responding to specified consumer claims for refund involving: (1) rebutting the presumed location of the retail transaction; (2) a consumer claim of exemption from the local charge under the ordinance; or (3) any action or claim challenging the validity of a local tax ordinance, in whole or part. The claim shall be processed in accordance with the provisions of the local enactment that allows the claim to be filed. 4. Refunding the taxes in the event a local jurisdiction or local government is ordered to refund the tax under the local ordinance. 55B -10 5. Reallocating local charges as a result of correcting errors relating to the location of the point of sale of a seller or the known address of a consumer, for up to two past quarters from the date of knowledge. 6. Collecting local charges on prepaid mobile telephony service and access to communication services or access to local 911 emergency telephone systems imposed on direct sellers. 7. Enforcement, including audits, of the collection and remittance of local charges by direct sellers pursuant to the ordinance. 8. The local jurisdiction shall be the sole necessary party defendant on whose behalf the local charge is collected in any action seeking to enjoin collection of a local charge by a seller, in any action seeking declaratory relief concerning a local charge, in any action seeking a refund of a local charge, or in any action seeking to otherwise invalidate a local charge. There shall be no recovery from the State for the imposition of any unconstitutional or otherwise invalid local charge that is collected under the Local Act. 9. Entering into an agreement with the Board to perform the functions incident to the collection of the local charges imposed on sellers that are not direct sellers. 10. Submitting an executed Certification to the Board, certifying that: (a) the local jurisdiction's ordinance applies the local charge to prepaid mobile telephony services; (b) the amount of the rate charged for access to local 911 emergency telephone systems or access to communications services complies with the requirements of section 42102.5; and/or applies the tiered rate for the utility user tax, as identified in section 42102. (c) The local jurisdiction shall further certify that it agrees to indemnify and to hold harmless the Board, its officers, agents, and employees for any and all liability for damages that may result from the Board's collection pursuant to this Agreement. 11. Submitting signed documents to the Board to include agreement(s), certification, copy of ordinance(s), and resolution(s). 12. Providing payment to the Board of the local jurisdiction's pro rata share of the Board's cost of collection and administration as established pursuant to subdivision (e) of section 42020. 5 55B -11 ARTICLE IV LOCAL CHARGES A. Local Charges — Timeliness — This part shall remain in effect until proposed California Code of Regulations, title 18, section 2460 is adopted by the Board and approved by the Office of Administrative Law. 1. Ordinances in effect as of September 1, 2015. On or after January 1, 2016, a local charge imposed by a local jurisdiction on prepaid mobile telephony services shall be collected from the prepaid consumer by a seller at the same time and in the same manner as the prepaid MTS surcharge is collected under Part 21 (commencing with section 42001) provided that, on or before September 1, 2015, the local jurisdiction enters into a contract with the Board pursuant to section 42101.5. Thereafter, all subsequently enacted local charges, increases to local charges, or other changes thereto, shall become operative pursuant to paragraphs (2), (3), and (4). 2. New charges. When a local jurisdiction adopts a new local charge after September 1, 2015, the local jurisdiction shall enter into a contract with the Board, pursuant to section 42101.5, on or before December I", with collection of the local charge to commence April 1st of the next calendar year. 3. Increases in local charges. When a local jurisdiction increases an existing local charge after September 1, 2015, the local jurisdiction shall provide the Board written notice of the increase, on or before December 1st, with collection of the local charge to commence April 1't of the next calendar year. 4. Inaccurate rate posted on the Board's website. When a local jurisdiction notifies the Board in writing that the rate posted on the Board's Internet Web site (posted rate) for a local charge imposed by that local jurisdiction is inaccurate, including scenarios where the local charge was reduced or eliminated, the recalculated rate applicable to the local jurisdiction shall become operative on the first day of the calendar quarter commencing more than 60 days from the date the Board receives the local jurisdiction's written notification that the posted rate is inaccurate. A. Local Charges — Timeliness — This part shall take effect and supersede the above "Local Charges — Timeliness section when California Code of Regulations, title 18, section 2460 is adopted by the Board and approved by the Office of Administrative Law. 1. Ordinances in effect as of September 1, 2015. On or after January 1, 2016, a local charge imposed by a local jurisdiction on prepaid mobile telephony services shall be collected from the prepaid consumer by a seller at the same time and in the same manner as the prepaid MTS surcharge is collected under Part 21 (commencing with section 42001) provided that, on or before September 1, 2015, the local jurisdiction enters into a contract with the Board pursuant to section 42101.5. In the event a local jurisdiction does not enter into a contract with the Board by September 1, 2015, the local jurisdiction may enter into a contract with the Board, pursuant to section 42101.5, on or before December fat, with collection of the local charge to commence April 1" of the next calendar year. Thereafter, all subsequently 6 55B -12 enacted local charges, increases to local charges, or other changes thereto, shall become operative pursuant to paragraphs (2), (3), (4) and (5) of this subdivision. 2. New charges. When a local jurisdiction adopts a new local charge after September 1, 2015, the local jurisdiction shall enter into a contract with the Board, pursuant to section 42101.5, on or before December I't, with collection of the local charge to commence April 1st of the next calendar year. 3. Increases in local charges. When a local jurisdiction increases an existing local charge after September 1, 2015, the local jurisdiction shall provide the Board written notice of the increase, on or before December I", with collection of the local charge to commence April 1st of the next calendar year. 4. Advance written notification. When a local charge is about to expire or decrease in rate, the local jurisdiction imposing the local charge shall notify the Board in writing of the upcoming change, not less than 110 days prior to the date the local charge is scheduled to expire or decrease. The change shall become operative on the first day of the calendar quarter commencing after the specified date of expiration or decrease in rate. If advance written notice is provided less than 110 days prior to the specified date of expiration or decrease in rate, the change shall become operative on the first day of the calendar quarter commencing more than 60 days after the specified date of expiration or decrease. 5. Inaccurate Rate Posted on the Board's Web site. When a local jurisdiction notifies the Board in writing that the rate posted on the Board's Internet Web site (posted rate) for a local charge imposed by that local jurisdiction is inaccurate, including scenarios where the local charge was reduced or eliminated and the local jurisdiction failed to provide advance written notice pursuant to paragraph 4 of this subdivision, the recalculated rate applicable to the local jurisdiction shall become operative on the first day of the calendar quarter commencing more than 60 days from the date the Board receives the local jurisdiction's written notification that the posted rate is inaccurate. The local jurisdiction shall promptly notify the Board in writing of any such discrepancies with the posted rate that are lmown or discovered by the local jurisdiction. ARTICLE V COMPENSATION The local jurisdiction agrees to pay the Board its pro rata share of the Board's cost of collection and administration of the local charges, as established pursuant to section 42020, subdivision (e). Such amounts shall be deducted from the local charges collected by the Board for the local jurisdiction. ARTICLE VI MISCELLANEOUS PROVISIONS A. Communications. Communications and notices may be sent by first -class United States Mail. A notification is complete when deposited in the mail. Communications and notices to be sent to the Board shall be addressed to: 7 55B -13 State Board of Equalization P.O. Box 942879 MIC: 27 Sacramento, California 94279 -0001 Attention: Supervisor, Local Revenue Allocation Unit Communications and notices to be sent to the local jurisdiction shall be addressed to: Francisco Gutierrez, Executive Director Finance and Management Services Agency City of Santa Ana 20 Civic Center Plaza (M17) P.O. Box 1968 Santa Ana, CA 92702 -1968 Fax 714 - 647 -5414 B. Term. The date of this Agreement is the date on which it is approved by the Department of General Services. The Agreement shall take effect on the first day of the calendar quarter next succeeding the date of such approval, but in no case before the operative date of the local jurisdiction's ordinance, not on a day other than the first day of a calendar quarter. This Agreement shall be renewed automatically from year to year until January 1, 2020, when the Local Charge Act is repealed, unless a statute enacted prior to that date extends that date. In such event, this Agreement will continue to renew automatically from year to year to the date authorized by statute. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Lisa Storck Assistant City Attorney STATE BOARD OF EQUALIZATION By Administrator, Return Analysis and Allocation Section LOCAL JURISDICTION City of Santa Ana By (Signature on this line) David Cavazos (Type name here) Citv ManaEer 55B -14 (Type title here) CERTIFICATION I, Sonia R. Carvalho am authorized to sign this certification on behalf of City of Santa Ana (Inrart Om of wowf.[49dw[�.n) I certify to the following: Please check all the following that apply to your jurisdiction: 1. 911 Charges /Access to Communication Services - Ordinance No. — of the imposes the local charge set forth in the ordinance to prepaid mobile J..' d'.. d l...Iju.lediwlanl telephony services for access to communication services or to local 911 emergency telephone systems. As required by section 42102.5, the percentage reflecting the rate for access to the local 911 emergency telephone systems or access to communications services is 2. X Utility User Tax - Ordinance No. NS -2860 of the City of Santa Ana imposes the local Q.r n .of l.c.ljwvJwti.nJ charge set forth in the ordinance to the consumption of prepaid mobile telephony services. The tiered rate for the utility user tax, as identified in section 42102 is 5.5% 3. The City of Santa Ana agrees to indemnify and to hold harmless the Board of (mo . �,m..[wmNd=wmloo) Equalization (Board), its officers, agents, and employees for any and all liability for damages that may result from the Board's collection pursuant to this agreement. Executed in the ATTEST: MARIA D. HUIZAR Clerk of the Council ity of Santa Ana on August 18, 2015 (Ins.rt — ofl— Ijukd,aN -) (Add dare) APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Lisa Storck Assistant City Attorney CITY OF SANTA ANA Printed name SONIA R. CARVALHO Title of person City Attorney EXHIBIT 3 55B -15 55B -16 Local Jurisdictions MUST Contract with 130E for Collection of Local Charges on Prepaid Mobile Telephony Services Beginning January 1, 2016, a new law AB 717 requires local jurisdictions to contract with the California State Board of Equalization (BOE) in order to receive revenue from local utility user taxes (UUT), local 911 charges, and any other local charges imposed on consumers of prepaid mobile services. To ensure the uninterrupted collection of these local revenues, local jurisdictions must contract with the BOE by September 1, 2015. If a local jurisdiction does not contract with the BOE, any local charges imposed upon prepaid mobile telephony services (MTS) will not be collected by the sellers and the local jurisdiction will not receive local charge revenue from prepaid MTS once the new law is effective on January 1, 2016. If the local jurisdiction does not contract with BOE by September 1, 2015, the next deadline is December 1, 2015, for collection beginning April 1, 2016. In order to contract with the BOE, local jurisdictions must have an ordinance that applies its local charge to prepaid MTS. Current law imposes a variety of surcharges on phone services, including prepaid mobile phone services. Currently, phone carriers are generally responsible for collecting and paying these surcharges (for example, the 911 emergency surcharge and California Public Utilities Commission surcharges) to the state. The new law replaces all current charges imposed upon prepaid mobile phone services with a new prepaid MTS surcharge. The prepaid MTS surcharge will be paid by purchasers of prepaid wireless services in California and be collected at the time of purchase. Under the new law, the MTS surcharge will be the only method for local jurisdictions to collect taxes and surcharges imposed upon prepaid mobile telephone services sold in their jurisdiction. For more information about contracting with BOE for the collection of UUT and /or local 911 charges, please contact the BOE's Local Revenue Allocation Unit at 1- 916- 324 -3000 or by email at readiudaaboe ca.goy. For general information about the new Prepaid MTS surcharge, please see our Prepaid Mobile Telephony Services Surcharge guide, or visit our website at www.boe.ca.gov. 55B -17 55B -18