LICENSE AGREEMENT THIS LICENSE AGREEMENT (?Agreement?), dated as of April 14, 2020, is by and between the TRANSBAY JOINT POWERS AUTHORITY, a joint powers authority created under California Government Code Sections 6500 et seq. and CITY AND COUNTY OF, SAN FRANCISCO, a municipal corporation, by and through its Department of Public Works, whose address is 30 Van Ness Avenue, Fourth Floor, San Francisco, CA 94102 THIS AGREEMENT IS MADE WITH REFERENCE TO THEFOLLOWING FACTS AND CIRCUMSTANCES: A. TJPA owns that certain real property in the City and County of San Francisco bounded by Howard, Main, Folsom, and Beale Streets including certain buildings and improvements thereto (Block 3739, Lots 002, 004,- 006, 007, and 008) and commonly referred to as Blocks 2, 3, and 4 (?Premises?), as illustrated on the diagram attached hereto as Attachment A. B. In reSponse to the COVID-19 pandemic, on March 4, 2020, Governor Gavin Newsom proclaimed a State of Emergency to exist in California. San ranciscd?s Public Health Officer issued a Stay at Home Order on March 17, 2020, and updated on March 31, 2020 (as it' may be ?irther updated, the ?Order?). In addition, Mayor London Breed has issued emergency declarations and the San Francisco Board of Supervisors have enacted emergency legislation related to the pandemic (collectively, the ?Emergency Laws?). C. The Order and Emergency Laws, among other things, impose shelter in place limitations, requiring everyone to stay safe at home except for certain essential needs; prohibiting gatherings of individuals with anyone outside of their household or living unit, with limited exceptions; and generally closing all non-essential businesses. During the temporary period of these restrictions under the Order and Emergency Laws, any commercial use of the Premises is severely limited. D. On March 16, 2020, the Governor issued Executive Order recognizing that homelessness can exacerbate vulnerability to 9, and California must take measures to preserve and increase housing security for califomians to protect public health. The San Francisco Public Health Order recognizes that homeless individuals are exempt from the shelter in place requirement, but urges government agencies to take steps needed to provide shelter for those individuals. E. Among the Emergency Laws, on March 23, 2020, the Mayor issued the Fifth Supplement to Mayoral Proclamation, describing the City?s immediate action to procure facilities so that the City can provide'temporary shelter to vulnerable persons, and explaining that it is in the public interest to suspend local laws that may slow the process or disincentivize owners of certain facilities from making their properties available for this purpose. The supplement explains that such rooms shall not be ?rental units?_ for the purpose of the Rent Ordinance under San Francisco Administrative Code Section and individuals staying in such rooms shall not be ?tenants? under Administrative Code Section F. City desires to obtain from TJPA the right, through City?s Agents and Invitees (each to temporarily enter upon the Premises with vehicles,?equipment, facilities, and other personal property. required to make use of the Premises for a safe sleeping site for tent camping by unhoused persons (?Safe Sleeping Site?). G. TJPA is prepared to permit such temporary entry on the PremiSes on the terms and conditions set forth in this Agreement. ACCORDINGLY, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, TJPA and City agree as follows: 1. Grant of Rights: Terms of Entry. TJPA grants City, through City?s employees, Agents and Invitees, the exclusive right to enter on and use the Premises for the Safe Sleeping Site and for no other purpose. As consideration for the City?s use of the Premises as provided in this Agreement, and in light of the emergency circumstances described above and the limited commercial uses that TJPA could otherwise make of the Premises while such emergency circumstances exist, the City will pay TJPA reimbursement of the actual cost of gas, electrical, and water utilities provided at the Premises and used by City, its Agents, and/or Invitees during the Term. City?s right to enter on and use the Premises for the Safe Sleeping Site will commence on April 15, 2020 and terminate thirty (30) days after the Order is lifted and Emergency Laws related to unhoused persons at the Safe Sleeping Site have expired or otherwise become inapplicable (such periOd referred to as the ?Term?). Notwithstanding the foregoing, TJPA may terminate the Term on thirty (30) days? advance written notice to the City in its sole discretion. On or before the last day of the Term, City will, and will cause its Agents and InVitees to, peaceably and quietly leave, yield up, vacate, and surrender the Premises to TJPA in Substantially the same condition as the Premises was in at the commencement of the Term (ordinary wear and tear, damage due to casualty or condemnation excepted), including removing all personal property, equipment, and waste, sanitizing improvements, and pressure washing surfaces. If City, and its Agents and Invitees, do not vacate the Premises on or before the end of the Term, in?addition to any other rights or remedies of TJPA, City agrees to indemnify and protect TJPA from and reimburse TJ PA for any and all Losses (as de?ned below) arising from any delays in conveying, selling, or developing the Premises due to its Agents or Invitees?, failure to vacate and abandon the Premises. This obligation shall survive termination of this Agreement. (11) City shall not engage in or allow, and shall prevent its Agents and Invitees from engaging in, any invasive activity on the Premises boring, trenching). City shall not causeor allow, and shall prevent is Agents and Invitees from causing or allowing, the deposit or disposal of any hazardous material on the Premises. TJPA shall provide access to any existing gas, electrical, and water utilities on the Premises for City?s reasonable uses associated with the Safe Sleeping Site, including, but not limited to, the lavatories and the building, the actual cost of use of which shall be subject to reimbursement by City within thirty (30) days after City?s receipt of an invoice therefor. City shall tender to TJPA a deposit in the amount of Eight Thousand Dollars ($8,000) from which TJPA may deduct the actual cost of electrical and water utilities use by City hereunder; City shall replenish the deposit and/ or increase the amount of the deposit based on reasonable Written request. At the conclusion of the Term, TJPA shall refund to City any amount deposited by City that is in excess of the aggregate actual cost of electrical and water utilities use by the City hereunder net of aggregate reimbursements made by City. TJPA shall not be liable in damages or otherwise for any failure or interruption of such utilities, unless directly caused by TJPA. City shall otherwise be obligated to provide and shall bear all costs or expenses of any kind or nature in connection with the Safe Sleeping Site, including, but not limited to: security, maintenance, janitorial, and waste disposal. For-the avoidance of doubt, City 'shall be responsible for all costs to secure its equipment and materials on the Premises. City hereby expressly waives the right to make repairs at the expense of TJPA and waives the bene?ts of the provisions of Section 1941 and 1942 of the California Civil Code or any successor thereto. No permanent improvements of any kind shall be placed in, on, or upon the Premises, and no alterations shall be made in, on, or upon the Premises without the prior written consent of TJPA, which it may grant or withhold in its sole discretion. City shall keep the Premises free and clear of any mechanics? liens or other claims of lien arising out of or in any way connected with the Safe Sleeping Site. TJ PA shall have the right to satisfy or bond off any such liens at City?s expense if City fails to do so within ten (10) calendar days after prior written notice, and City shall reimburse TJPA on demand for the, cost thereo? including reasonable attorneys and consultant fees. This obligation shall survive termination of this Agreement. City shall not use or permit, and shall prevent its Agents and Invitees from using or permitting, anything to be done on or about the Premises in connection with the Safe Sleeping Site that will in any way con?ict with any law, statute, zoning restriction, ordinance, or governmental rule, regulation, or requirement now in force or which may hereafter be in force, relating to or affecting the condition, use, or occupancy of the Premises. City shall not cause, maintain, or permit, and shall prevent its Agents and Invitees from causing, maintaining, or permitting, any nuisance in, on, or about the Premises; but TJ PA acknowledges that the Premises will be used for tent camping by (1) unhoused persons City shall not commit or suffer to be committed, and shall prevent its Agents?and Invitees from committing, any waste in or upon the Premises. City shall obtain all permits, authorizations, licenses, and approvals of any regulatory agencies having jurisdiction over the Safe Sleeping Site. City shall use, and shall cause its Agents and Invitees to use, all due care at all times to avoid any damage or harm to the Premises, its improvements, or any persons or personal property. City shall notify TJ PA of any damage to the Premises or its improvements or ?xtures during the Term. City shall, at its sole cost and expense, repair any and all such damage. This obligation shall survive termination of this Agreement. City accepts the Premises in its existing ?as is? condition as of the execution date of this Agreement. City?s entry on the Premises shall'in itself constitute acknowledgement that the Premises are in good and tenantable condition. City assumes all risk of entering and using the Premises for the Safe Sleeping Site, and TJ PA shall have no duty to City to inspect, disclose conditions in, or make the Premises safe for entry by City, its employees, Agents, or Invitees for the Safe Sleeping Site. City, for-itself, its successors and assigns, hereby waives, releases, remises, acquits and forever discharges TJPA, of and from, any and all Losses that City now has or which City may have in the future on account of or in any way arising out of or in connection with this Agreement. This waiver and release is a general release. City is aware of California Civil Code Section 1542, which reads as follows: A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. This obligation shall survive termination of this Agreement. TJPA does not make any representations or warranties of any kind-whatsoever, either express or implied, with respect to any matters related to the Premises,.including: the legal use, condition (whether physical, legal, zoning, environmental, or other), encumbrances, occupation, or management of the Premises; status of, need for, or ability to secure entitlements to use the Premises; the compliance of the Premises with applicable statutes, laws, codes, ordinance, regulations, or requirements relating to leasing, zoning, subdivision, planning, building, ?re, safety, health, or environmental- matters; suitability of the Premises for City?s intended use; and the presence of hazardous materials on the Premises. City acknowledges that it is entering into this Agreement on the basis of City?s own investigation of the condition of the Premises. City assumes the risk that adverse conditions may not have been revealed by its investigation.- City assumes responsibility for responding to all inquiries relating to the use of the Premises under this Agreement. Subject to Paragraph this Agreement gives City a temporary, non-possessory right to enter the Premises. This Agreement does not provide for nor grant any right, title, estate, lien, or interest in or to the Premises. (C) Consistent with Mayoral Proclamation, the Premises shall not be a ?rental unit? and the individuals using the Premises for a Safe Sleeping Site shall not be ?tenants? under the Administrative Code. At the end of the Term, the City, and its Agents and Invitees .will not be ?diSplaced persons? and will not be entitled to relocation assistance under the California Relocation Assistance Act (Cal. Gov. Code sections 7260 et seq.), or the Uniform Relocation Assistance Act of 1970 (42 sections '4601 et seq.). Commencement and Termination This Agreement shall commence on the date that it is fully executed. This Agreement shall terminate concurrent with the end of the Term, except as to those obligations of City that survive termination. Insurance and Indemni?cation City shall indemnify, defend, and hold harmless TJPA, its member agencies ([reserved], AC Transit, Caltrain, and California High Speed Rail Authority), and their respective board members, of?cers, direCtors, agents, employees, consultants, contractors, and representatives, and their respective heirs, legal representatives, sucCessors, and assigns, and each of them (collectively, the Parties?), from and?against any and all third party claims, demands, losses, damages, or damages or loss to persons or property, . including, without limitation, compensation for loss of income and any bodily injury or death, liens, causes of action, legal actions, judgments, awards, liabilities, costs and expenses, including, without limitation, reasonable outside attomeys? fees (collectively, ?Losses?) to the extent arising out of: the condition, use, or occupation of the Premises by City and/or its Agents or Invitees; (ii) the acts or omissions of City, and/or any of its Agents or Invitees in the performance of this Agreement or the use of- the Premises; and anything else done or permitted to be done by City and/or its Agents, or Invitees in or about the Premises; except to the extent that any such Losses arise out of the gross negligence or willful misconduct of TJPA, the TJPA Parties, or its or their Agents or Invitees. This obligation shall survive termination of this Agreement. TJPA acknoWledges that City is self-insured, and will not provide third party insurance coverage. ?Agents? when used in reference to either party to this Agreement or any Other person means the of?cers, directors, employees, agents, and contractors 'of that party or other person, and the party?s or person?s respective heirs, legal representatives, successor, and assigns. The term ?Agent? docs not apply so as to make a counterpart an agent of a party, unless an express agency is in effect under the terms of this Agreement. ?Invitees? means invitees,licensees, patrons, guests, Agents, and any other person whose entry on to the Premises is permitted (directly or indirectly) by a party then in control of the Premises. (C) (D General Conditions Authority to Bind. TJPA and City each represent and warrant to the other that the individual signing this Agreement has the full right, power, and authority to sign on behalf of and bind its entity under this Agreement. Amendments. This Agreement may be amended or modi?ed only by a written instrument executed by TJPA and City. Severability. If any provision of this Agreement, or its application to any person or circumstance, is held invalid by any court, the invalidity or inapplicability of such provision shall-not affect any other provision of this Agreement or theapplication of such provision to any other person or circumstance, and the remaining portions of this Agreement shall continuein full force and effect, unless enforcement of this Agreement as so modi?ed by and in response to such invalidation would be unreasonable or grossly inequitable under all of the circumstances or would frustrate the fundamental purposes of this Agreement. Non-waiver. No waiver made by a party with respect to the performance, or manner or time of performance, or any obligation of another party or any condition to its own obligation under this Agreement will be considered a waiver with respect to the particular obligation of the other party or condition to its own obligation beyond those expressly waived to the extent of such waiver, or a waiver in any respect in-regard to any other rights of the party making the waiver or any other obligations of the other party. Successors and Assigns. This Agreement is personal to City, and shall not be assigned by City, in whole or in part, without the prior written consent of TJPA, which consent TJPA shall have no obligation to provide. The TJPA may assign its rights and obligations under this Agreement to any successor owner of the Premises. This Agreement shall be binding upon, and inure to the bene?t of, the parties hereto and their respective successors, heirs, administrators, and assigns. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance With the laws of the State of California. Venue for all actions or proceedings arising directly or indirectly under this Agreement shall be in the City and County of San Francisco, California. Entire Agreement. This Agreement contain or will contain all the representations and the entire agreement between the parties With respect to the subject matter?of this Agreement and may not be contradicted by evidence of any prior or contemporaneous oral or written agreements or understandings. Any prior correspondence, memoranda, agreements, warranties or representations relating to such subject matter are superseded in total by this Agreement. No prior drafts of this Agreement or related agreements, or changes from those draftsito the executed version of this Agreement, shall be introduced as evidence in any litigation or other dispute resolution proceeding by either party or any other person and no court or other body shall consider those drafts in interpreting this Agreement. Time Is of the Essence. Time is of the essence with respect to. each provision of this Agreement. Counterparts; Electronic Signature. This documentrnay be executed in counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument. This Agreement may be executed by electronic, scanned, or similar signature. 0) Notices. A notice or communication under this Agreement by any party to the others shall besuf?ciently given or delivered if personally delivered or if dispatched by registered or certi?ed mail, postage prepaid, return receipt requested or reputable overnight courier service and addressed as follows: In the case of a notice or communication to TJPA: Transbay ointPowers Authority 425 Mission Street, Suite 250 San Francisco, CA 94105 Attn: Executive Director Mark Zabaneh Telephone: (415) 597-4620 With a copy to: Shute, Mihaly Weinberger LLP 396 Hayes Street San Francisco, CA 94102 Attn: Deborah Miller Telephone: (415) 552-7272 In the case of a notice or communication to City: San Francisco Public Works Attn: Ronald Alameida 30 Van Ness Avenue, Fourth Floor San Francisco, California 94102 The on-site point of contact for City during the Safe Sleeping Site use is: Name: Dennis Oates Telephone: 415-686-4320 Notice shall be deemed given when received or delivery is ?rst refused. (0) (6) Attachment A and Appendix 1 attached to this Agreement are incorporated by this reference. Ci?h' Provisions Controller's Certi?cation of Funds. The terms of this Agreement are goVemed by and subject to the budgetary and ?scal provisions of the City's Charter. Notwithstanding anything to the contrary contained in this Agreement, there is no obligation for the payment or expenditure of money by City under this Agreement unless the Controller of the City and County of San Francisco ?rst certi?es, pursuant to Section 3.105 of the City's Charter, that there is a valid appropriation from which the expenditure may be made and that unencumbered funds are available from the appropriation to pay the expenditure. Without limiting the foregoing, if in any ?scal year of City after the ?scal year in Which the term of this Agreement-commences, suf?cient funds for any payments required under this Agreement are not appropriated, then City may terminate this Agreement, without penalty, liability or expense of any kind to City, as of the last date on which suf?cient funds are appropriated. City will use its reasonable efforts to give TJ PA reasonable advance notice of such termination. Compliance with City Business and Tax Regulations Code. TJPA acknoWledges that under Section 6.10-2 of the San Francisco Business and Tax Regulations Code, the City Treasurer and Tax Collector may require the withholding of payments to any vendor that is delinquent in the payment of any amounts that the vendor is required to pay the City under the San Francisco Business and Tax Regulations Code. If, under that authority, any payment City is required to make to TJPA under this Agreement is withheld, then City will not be in breach or default under this Agreement, and the Treasurer and Tax Collector will authorize release of any payments withheld under this paragraph to TJPA, without interest, late fees, penalties, or other charges, upon TJPA comingback into compliance with its San Francisco Business and Tax RegulationsCode obligations. 7 Macbride Principles- Northern Ireland. The provisions of San Francisco Administrative Code are incorporated herein by this reference and made part of- this Agreement. By signing this Agreement, TJPA con?rms that TJPA has read and understood that the City urges companies doing business 1n Northern Ireland to resolve employment inequities and to abide by the MacBride Principles, and urges San Francisco companies to do business with corporations that abide by the MacBride Principles. Sunshine Ordinance. TJPA understands that the City's Sunshine Ordinance (San Francisco Administrative Code Chapter 67) and the State Public Records Law (Gov't Code Section 6250 et seq.) apply to this Agreement and all records, information, and materials submitted to City in connection with this Agreement. Accordingly, those records, information, and materials may be subject to public disclosure in accordance with the City?s Sunshine Ordinance and the State Public Records Law. TJPA authorizes City to disclose all records, information, and materials submitted to City in connection with this Agreement. Con?ict of Interest. Through its execution of this Agreement, TJPA acknowledges that it is familiar with the provisions of Article 111, Chapter 2 of City's Campaign and (0 Governmental Conduct Code, and Section '87100 et seq and Section 1090 et seq. of the Government Code of the State of California, and certi?es that it does not know 0f any facts that would constitute a violation of those provisions. If PA becomes aware of any such fact during the term of this Agreement TJPA will immediately notify the City. Noti?cation of Prohibition on Contributions. Through its execution of this Agreement, TJPA acknowledges its obligations under Section 1.126 of the San Francisco Campaign and Governmental Conduct Code, which prohibits any person who contracts with the City for the selling or leasing of any land or building to or from the City whenever the transaction would require the approval by a City elected Of?cer, the board on which that City elected of?cer serves,-or a board on which an appointee of that elected of?cer serves, from making any campaign contribution to the City elected of?cer if the contract must be approved by that of?cial, (2) a candidate for the City elective of?ce, or (3) a committee controlled by the elected of?cer or candidate, at any time from the commencement of negotiations for the contract until the later of either the termination of negotiations for the contract or twelve (12) months after the date the contract is approved. TJPA acknowledges that the foregoing restriction applies only if the contract or a. combination or series of contracts approved by the same elected of?cer 0r board in a ?scal year have a total anticipated or actual value of $100,000 or more. TJPA ?irther acknowledges that the-prohibition on contributions applies to each each - member of TJPA's board of directors, and chief executive of?cer, chief ?nancial of?cer, and chief operating of?cer; any person with an ownership interest of more than ten percent in any subcontractor listed in the contract; and any committee that is sponsored or Controlled by TJPA and (ii) within thirty (30) days of the submission of a proposal for the Lease, the City department With whom Tenant is leasing is obligated to submit to the Ethics Commission the parties to the lease and any subtenant. Additionally, Tenant certi?es that it has informed each such person of the limitation on contributions imposed by Section 1.126 by the time it submitted a proposal for the lease, and has provided the names of the persons required to be informed to the City department with whom it is leasing. Non-Discrimination. In the performance of this Agreement, TJPA will not discriminate against any employee of TJPA, any City employee working with TJPA, or applicant for employment with TJPA, or against any peISOn seeking accommodations, advantages, facilities, privileges, services, or membership in all business, social or other establishments or organizations, on the basis of the fact or perception of a person?s race, color, creed, religion, national origin, ancestry, age, height, weight, sex, sexual orientation, gender identity, domestic partner status, marital status, disability or Acquired ImmuneDe?ciency or HIV status status), or association with members of such protected classes, or in retaliation for opposition to discrimination against such classes. (ii) TJPA will include in all subcontracts relating to the Premises a non- discrimination clause applicable to the subcontractor in substantially the form of subsection above. In addition, TJ PA will incorporate by reference in all subcontracts the provisions of Sections and 12C.3 of the San Francisco Administrative Code and require all subcontractors to comply with such provisions. failure to comply with the obligations in this Subsection will constitute a material breach of this Agreement. TJPA does not as of the date of this Agreement and will not during the term of this Agreement, in any of its operations in San Francisco, on real property owned by City, or where the work is being performed for the City or elsewhere within the United States, discriminate in the provision of bereavement leave, family medical leave, health bene?ts, membership or membership discounts, moving expenses, pension and retirement bene?ts or travel bene?ts, as well as any bene?ts other than the bene?ts speci?ed above, between employees with domestic partners and employees with spouses, and/or between the domestic partners and spouses of such employees, where the domestic partnership has been registered with a governmental entity pursuant to state or local law authorizing such registration, subject to the conditions set forth in Section 12B.2(b) of the San Francisco Administrative Code. As a condition to this Agreement, TJPA will execute the "Chapter 12B Declaration: Nondiscrimination in Contracts and Bene?ts" form (Form CMD- 12B-101) with supporting documentation and secure the approval of the form by the San Francisco San Francisco Contract Monitoring Division (the TJPA hereby represents that prior to execution of this Agreement, TJPA executed and submitted to the CMD Form with supporting documentation, and (ii) the CMD approved such form. The provisions of Chapters 12B and 12C of the San Francisco Administrative Code relating to non-discrimination by parties contracting for the exclusive use of property by City are incorporated in this Section by reference and made a part of this Agreement as though fully set forth herein. TJPA will comply fully with and be bound by all of the provisions that apply to this Agreement under such Chapters of the Administrative Code, including but not limited to the remedies provided in those Chapters. Without limiting the foregoing, TJ PA understands that pursuant to Section 128.2(h) of the San Francisco Administrative Code, a penalty of Fifty Dollars for each person for each calendar day during which that person was discriminated against in violation of the provisions of this Agreement may be assessed against TJPA and/or deducted'from any payments due TJPA. CONTINUED ON FOLLOWING 10 IN WIT $821333 WHEREOR TJPA and City ham duiy executed and delivered miss Agrecmcm an the date-54:! {?rth abate. JOINT POWERS l'Y: ,x . --Z By: Name; ?Zg?Mr?_ 1H: ?eadf/t/c. APPROVED AS TO FORM: By: uu cl CITY: City and By?jnty 7:53) -Name: Ub?_ Min hm Titia: Approved as to Form Dennis L. Harem. City Attomey By: Elem Chan-w Deputy (1'in- Amway IN WITNESS WHEREOF, City have duly executed and delivered this Agreement on the date set forth above. TRANSBAY JOINT POWERS AUTHORITY: By: Name: Its: APPROVED AS TO FORM: By: Legal Counsel CITY: City and County of San Francisco, a municipal corporation By: Name: Title: Approved as to Form Dennis J. Herrera, City Attorney - Eileen Chauvet 'Deputy City Attorney 11 ATTACHMENT A Diagram of Premises 12 Parcel Status 1/1 7/2020 175710? Agusw?bdl andLm Mission St Sag! mafwe?' SmAddress i ?1wa I . TJ AParcels Unavaiabe 1 Salesf 2 3.5% ?m TJPA Parcels Available for Leasing Transit Center I 1 5.3957: 1" 5% '9.?45cft 93' - 5m Saga-M213?? in? if?, ?9 Scale-infect .k 1 o- x? ammo 3 3-5 . .. mu.? Panel: 2 . Pundb 3% -, g- :?W'gm i: .: 3n'mu3 '9 ?2 .2 .3 3:119?: - - - - mum? . 4 Jim] "all, . A - 5 Fanny-4231 g; r. I . "59.66554Howard St Q5 a $531!. 2 ,1 4" mac I Failc?d?y?uf 3m Slatemneluom1mm: 3 - 11" an? Wm? ?Aja? l? .. In? I. n- nfdr:f a: 331320an 3 1 full-Jed?? a m. am- i ?r mama 3759b?: ((1113:. mStalel?meIQOW minimal Mr ?are i Mugginjia?'mgs 1" . 4? - runn3131532?er 3.. armors-m1 E. :5 amino: lJ?amS-G ?5 ?ml-m ?l ?my - EC. a; ?ier - I :r?lm? StaterelG ?and: Wu Fofsorn mm .. nr-r lg 'Qa: .2523 m' r' 6? r. a! 1mm.? . a M. '11 ?11Perry St f- Stillman St fir-E A a . If APPENDIX 1 EMERGENCY EXIGENCY CONTRACTS REQUIREMENTS 13 . . APPENDIX 1 FEMA EMERGENCY EXIGENCY CONTRACTS REQUIREMENTS 1. Contract Requirements. This contract may be eligible for FEMA funding. EMA requires inclusion of the following contract provisions for procurement under exigent or emergency circumstances. The Parties must comply with these provisions as a minimum. In the event of a con?ict-with other provisions in this contract that address the same or a similar requirement, the provisions that are stricter and impose the greater duties upon Contractor shall apply. 2. Remedies for Breach. In addition to all other remedies included in this contract, Contractor shall, at a minimum, be liable to the City for all foreseeable damages it incurs as a result of Contractor violation or breach of the terms of this contract. This includes without limitation any costs incurred to remediate defects in Contractor?s services and/or the additional expenses to complete Contractor?s services beyond the amounts agreed to in this contract, after Contractor has had a reasonable opportunity to remediate and/or complete its services as otherwise set for in this contract. All remedies provided for in this contract may be exercised individually or in combination with any other remedy available hereunder or under applicable laws, rules and regulations. The exercise of any remedy shall not preclude or in any way be deemed to waive any other remedy. 3. Termination for Convenience. City shall have the option, in its sole discretion, to terminate this Contract, at any time during the term hereof, for convenience and Without cause. City shall exercise this option by giving Contractor written notice of termination. The notice shall specify the date on which termination shall become effective. In no event shall City be liable for costs incurred by Contractor or any of its subcontractors after the termination date speci?ed by City, except for those costs reasonably necessary to effectuate demobilization from the work. 4. Termination for Cause. On and after any event of default, City shall have the right to exercise its legal and equitable remedies, including without limitation, the right to terminate this contract for cause or to seek speci?c performance of all or any part of this contract. In addition, City shall have the right (but no obligation) to cure (or cause to be cured) on behalf of Contractor any event of default. Contractor shall pay to City on demand all costs and expenses incurred by City in effecting such cure, with interest thereon from the date of incurren?ce at the maximum rate then permitted by law. City shall have the right to offset from any amounts due to Contractor under this contract or any other contract between City and Contractor all damages, losses, costs or expenses incurred by City as a result of such event of default and any liquidated damages due from Contractor pursuant to the terms of this contract or any other contract. 5. Equal Employment Opportunity. If this contract constitutes a ?federally. assisted construction contract? as de?ned in 41 CPR. ?60-1.3, during the performance of this contract, Contractor agrees as follows: A. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national TJPA Safe Sleeping Site Appendix 1 Page 1 of 9 April 14, 2020 origin. The Contractor will take af?rmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and Selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this . nondiscrimination clause. B. The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all quali?ed applicants will receive considerations for employment without regard to race, color, religion, sex, or national origin. C. The Contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of ?such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Contractor's legal duty to furnish information. D. The Contractor will send to eaCh labor union or'representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Contractor?s commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. E. The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. F. The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. G. In the event of the Contractor?s noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further- Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and TJPA Safe Sleeping Site Appendix 1 Page 2 of 9 April 14, 2020 such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. H. The Contractor will include the provisions of this section 5 in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The. Contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event a Contractor becomes involved in, or is threatened with, litigation with a or vendor as a result of such direction by the administering agency, the Contractor may request the United States to enter into such litigation to protect the interests of the United States. The City further agrees that it will be bound'by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the City is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or .under the contract. The City agrees that it will assist and cooperate actively With the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the-rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency' primary responsibility for Securing compliance. The City further agrees that it will refrain ?'om entering into any contract 0r contract modi?cation subject to Executive'Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Ex?ecutive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part 11, Subpart of the Executive Order. In addition, the City agrees that if it failsor refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any ?irther assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings. 6. Davis-Bacon Act. If this contract is a construction contract in excess of $2,000, Contractor agrees as follows: TJPA Safe Sleeping Site Appendix 1 Page 3 of 9 April 14, 2020 A. All transactions regarding this contract shall be done in compliance with the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146-3148) and the requirements of 29 C.F.R. pt. 5 as may be applicable. The Contractor shall comply with 40 U.S.C. 3141-3144, and 3146-3148 and the requirements of 29 C.F.R. pt. 5 as applicable. B. Contractor is required to pay wages to laborers and mechanics at a rate not less than the prevailing wages speci?ed in a wage determination made by the Secretary of Labor. A copy of the current prevailing wage determination issued by the Department of Labor will be made available upon request. The City will report all suspected or reported violations to FEMA. C. Additionally, Contractor is required to pay wages not less than once a week. 7. Copeland Anti-Kickback Act. If this contract is a construction contract in excess of $2,000, Contractor agrees as follows: A. Contractor. The Contractor shall comply with 18 U.S.C. 874, 40 U.S.C. 3145, and the requirements of 29 C.F.R. pt. 3 as may be applicable, which are incorporated by reference into this contract. B. Subcontraets. The Contractor or subcontractor shall insert in any Subcontracts the clause above and such other clauses as FEMA may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all of these contract clauses. C. Breach. A breach of the contract clauses above may be grounds for termination of the contract, and for debarment as a contractor and subcontractor as provided in 29 C.F.R. 5.12. 8. Work Hours and Safety Standards. If this contract is for a price in excess of $100,000, and involves the employment of-mechanics or laborers, Contractor agrees as follows: A. Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require 'or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. B. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (A) of this section the Contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, Contractor and subcontractor(s) shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with reSpect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (A) of this section, in the sum of $26 for each calendar day on which such individual was required or TJPA Safe Sleeping Site Appendix 1 Page 4 of 9 April 14, 2020 permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (A) of this section. C. Withholding for unpaid wages and liquidated damages. The City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such contract or any other Federal Contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (B) of this section. D. Subcontracts. The Contractor or shall insert in ariy subcontracts- .the clauses set forth in paragraphs (A) through (D) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (A) through (D) of this section. 9. Rights to InVentions. If funding for this contract meets the de?nition of ?funding agreement,? and if this contract constitutes a contract with a small business ?rm or nonpro?t organization regarding the substitution of parties, assignment, .or performance of experimental, developmental, or research work, the City agrees to comply with the requirements of 37 C.F.R. Part 401, ?Rights to. Inventions Made by Nonpro?t Organizations and'Small - Ensiness Firms Under Government Grants, Contracts and Cooperative Agreements, and any implementing regulations issued by FEMA. 10. Clean Air Act. If this contract is for a price in excess of $150,000, Contractor agrees as follows: A. The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. 7401 et seq. B. The Contractor agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure noti?cation to the Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Of?ce. C. The Contractor agrees to include these requirements in each subcontract exceeding $150,000 ?nanced in whole or in part with Federal assistance provided by FEMA. 11. Federal Water Pollution Act. If this contract is for a price in excess of $150,000, Contractor agrees as follows: TJPA Safe Sleeping Site Appendix 1 Page 5 of 9 April 14, 2020 A. The Contractor agrees to comply with all applicable standards, orders,'or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. B. The Contractor agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure noti?cation to the Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Of?ce. - C. The Contractor agrees to include these requirements in each subcontract exceeding $150,000 ?nanced in whole or in part with Federal assistance provided by FEMA. 12. Debarment and Suspension. If this contract is for a price in excess of $25,000, Contractor agrees as follows: A. This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such, the Contractor is required to verify that none of the Contractor?s principals (de?ned at 2 C.F.R. 180.995) or its af?liates (de?ned at 2 C.F.R. 180.905) are excluded (de?ned at 2 C.F.R. 180.940) or disquali?ed (de?ned at 2 C.F.R. 180.935). B. The Contractor must comply with 2 C.F.R. pt. 180, subpart and 2 C.F.R. pt. 3000, subpart C, and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into. C. This certi?cation is a material representation of fact relied upon by the City. If it is later determined that the Contractor did not comply with 2 C.F.R. pt. 180, subpart and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The Contractor agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart and 2 C.F.R. pt. 3000, subpart while this offer is valid and throughout the period of any contract that may arise from this offer. The Contractor ?irther agrees to include a provision requiring such compliance in its lower tier covered transactions. 13. Procurement of Recovered Materials A. In the performance of this contract, the Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired: i; Competitively within a'timeframe providing for compliance with the contract performance schedule; ii. Meeting contract performance requirements; or At a reasonable price. TJPA Safe Sleeping Site Appendix 1 Page 6 of 9 April 14,2020 B. Information about this requirement, along with the list of EPA-designated items, is available at Comprehensive Procurement Guidelines web site, C. The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.? 14. Time and Material Contracts. To the extent this contract includes work that is paid on a time and material basis, such work must have a guaranteed maximum price (GMP). The GMP is set forth in the body of this contract. The GMP constitutes a ceiling price that Contractor exceeds at its own risk. 15. Bonding Requirements. To the extent this is a contract for construction or facility improvement, Contractor agrees as follows: A. Contractor provided with its bid for this contract a bid guarantee of no less than 5% of the bid price, or greater if otherwise required in this contract or the San Francisco Administrative Code. B. Contractor has obtained a performance bond in favor of the City, securing ful?llment of all its obligations under the contract, in an amount no less than 100% of the contract price. C. Contractor has obtained a payment bond, assuring payment as required by law to all persons supplying labor and material in the execution of the work provided for in the contract, in an amount no less than 100% of the contract price. 16. Access to Records. The following access to records requirements apply to this contract: A. The Contractor agrees to provide City, the EMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions. B. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. C. The Contractor agrees to provide the FEMA Administrator or his authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. D. In compliance with the Disaster Recovery Act of 2018, the City and the Contractor acknowledge and agree that no language in this contract is intended to prohibit audits or intemal reviews by the EMA Administrator or the Comptroller General of the United States. TJPA Safe Sleeping Site Appendix 1 Page 7 of 9 April 14, 2020 17. Department of Homeland Security Seal, Logo, and Flags. The Contractor shall not use the DHS seal(s), logos, crests, or reproductions of ?ags or likenesses of DHS agency of?cials without speci?c FEMA pre?approval. 18. Compliance with Federal Law, Regulations, and Executive Orders. This is an acknowledgement that FEMA ?nancial assistance will be used to fund all or a portion of the contract. The Contractor will comply with all applicable Federal law, regulations, executive orders, FEMA policies, procedures, and directives. '19. No Obligation by Federal Government. The Federal Government is not a party to this contract and is. not subject to any obligations or liabilities to the non-Federal entity, Contractor, or any other party pertaining to any matter resulting from the contract. 20. Program Fraud and False or Fraudulent Statements or Related Acts. The Contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the Contractor?s'actions pertaining to this contract. 21. Anti-Lobbying Certi?cation. A. Contractors who apply or bid for an award of $100,000 or more shall ?le the required certi?cation pursuant to the Anti-Lobbying Amendment, 31 U.S.C. ?1352, as amended. Each tier-certi?es to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for in?uencing or attempting to in?uence an of?cer or employee of any agency, a-Member of Congress, of?cer or employee of Congress, or an employee of a Member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose any lobbying with non?Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient 'who in turn will forward the certi?cation(s) to the awarding agency. B. If this contract is for a price of $100,000 or more, Contractor, and its lower tiers, must sign and submit to the City the following certi?cation: APPENDIX A, 44 C.F.R. PART 18 CERTIFICATION REGARDING LOBBYING Certi?cation for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certi?es, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for in?uencing or attempting to in?uence an of?cer or employee of an agency, a Member of Congress, an of?cer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any?Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modi?cation of any Federal contract, grant, loan, or cooperative agreement. TJPA Safe Sleeping Site Appendix 1 Page 8 of 9 April 14, 2020 (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for in?uencing or attempting to in?uence an of?cer or employee of any agency, a Member of Congress, an of?cer or employee of Congress, or an employee of a Member of Congress In connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard ?Disclosure Form to Report Lobbying,? in accordance with its instructions. (3) The undersigned shall require that the language of this certi?cation be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperatiVe agreements) and that allsubrecipients shall certify and disclose accordingly. This certi?cation is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certi?cation 1s a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U. S. Code. Any person who fails to ?le the required certi?cation shall be subject to a civil penalty of not less than $10, 000 and not more than $100,000 for each such failure. The Contractor, TRANSBAY JOINT POWERS AUTHORITY, a joint powers authority created under California Government Code Sections 6500 et seq, certi?es or af?rms the truthfulness and accuracy of each statement of its certi?cation and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. Chap. 38, Administrative Remedies for False Claims and Statements, apply to this certi?cation and disclosure, if any. Signature of Contractor?s Authorized Of?cial Mark Zabaneh. Executive Director Name and Title of Contractor?s Authorized Of?cial 04/ 14/20 Date TJPA Safe Sleeping Site Appendix 1 Page 9 of 9 April 14, 2020