HomeMy Public PortalAbout11 November 22, 2021 Western Riverside County Programs and Projects
MEETING AGENDA
Western Riverside County Programs and Projects Committee
Time: 1:30 p.m.
Date: November 22, 2021
Location: This meeting is being conducted virtually in accordance with AB 361 due to state or local officials
recommending measures to promote social distancing.
COMMITTEE MEMBERS
Clint Lorimore, Chair/Todd Rigby, City of Eastvale
Ben J. Benoit, Vice Chair/Joseph Morabito, City of Wildomar
Wes Speake/Jim Steiner, City of Corona
Linda Krupa/Russ Brown, City of Hemet
Brian Berkson/Guillermo Silva, City of Jurupa Valley
Bill Zimmerman/Dean Deines, City of Menifee
Yxstian Gutierrez/To Be Appointed, City of Moreno Valley
Scott Vinton/Lisa DeForest, City of Murrieta
Ted Hoffman/Katherine Aleman, City of Norco
Michael Vargas/Rita Rogers, City of Perris
Kevin Jeffries, County of Riverside, District I
Jeff Hewitt, County of Riverside, District V
STAFF
Anne Mayer, Executive Director
John Standiford, Deputy Executive Director
AREAS OF RESPONSIBILITY
Air Quality, Capital Projects, Communications and
Outreach Programs, Intermodal Programs, Motorist
Services, New Corridors, Regional Agencies/Regional
Planning, Regional Transportation Improvement Program
(RTIP), Specific Transit Projects, State Transportation
Improvement Program (STIP)
Transportation Uniform Mitigation Fee (TUMF)
Program, and Provide Policy Direction on
Transportation Programs and Projects related to
Western Riverside County and other areas as
may be prescribed by the Commission.
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE
www.rctc.org
AGENDA*
*Actions may be taken on any item listed on the agenda
1:30 p.m.
Monday, November 22, 2021
This meeting is being conducted virtually in accordance with AB 361 due to state or local officials
recommending measures to promote social distancing.
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For members of the public wishing to submit comment in connection with the Western Riverside
County Programs and Projects Committee Meeting please email written comments to the Clerk of
the Board at lmobley@rctc.org and your comments will be made part of the official record of the
proceedings as long as the comment is received before the end of the meeting’s public comment
period. Members of the public may also make public comments through their telephone or Zoom
connection when recognized by the Chair.
In compliance with the Brown Act and Government Code Section 54957.5, agenda materials
distributed 72 hours prior to the meeting, which are public records relating to open session agenda
items, will be available for inspection by members of the public prior to the meeting on the
Commission’s website, www.rctc.org.
In compliance with the Americans with Disabilities Act, Government Code Section 54954.2, Executive
Order N-29-20, and the Federal Transit Administration Title VI, please contact the Clerk of the Board
at (951) 787-7141 if special assistance is needed to participate in a Committee meeting, including
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provide assistance at the meeting.
1. CALL TO ORDER
2. ROLL CALL
Western Riverside County Programs and Projects Committee
November 22, 2021
Page 2
3. PLEDGE OF ALLEGIANCE
4. PUBLIC COMMENTS – Under the Brown Act, the Board should not take action on or discuss
matters raised during public comment portion of the agenda which are not listed on the
agenda. Board members may refer such matters to staff for factual information or to be
placed on the subsequent agenda for consideration. Each individual speaker is limited to speak
three (3) continuous minutes or less.
5. ADDITIONS/REVISIONS (The Committee may add an item to the Agenda after making a
finding that there is a need to take immediate action on the item and that the item came to
the attention of the Committee subsequent to the posting of the agenda. An action adding an
item to the agenda requires 2/3 vote of the Committee. If there are less than 2/3 of the
Committee members present, adding an item to the agenda requires a unanimous vote.
Added items will be placed for discussion at the end of the agenda.)
6. CONSENT CALENDAR - All matters on the Consent Calendar will be approved in a single motion
unless a Commissioner(s) requests separate action on specific item(s). Items pulled from the
Consent Calendar will be placed for discussion at the end of the agenda.
6A. APPROVAL OF MINUTES – OCTOBER 25, 2021
Page 1
7. CITY OF TEMECULA FUNDING REQUEST FOR CONSTRUCTION OF THE INTERSTATE 15
AUXILIARY LANE PROJECT
Page 6
Overview
This item is for the Committee to:
1) Approve programming $3.5 million of Transportation Uniform Mitigation Fee (TUMF)
Community Environmental Transportation Acceptability Process (CETAP) funds for the
city of Temecula’s (Temecula) Interstate 15 (I-15) Auxiliary Lane Project (ALP);
2) Approve Agreement No. 22-73-032-00 between the Commission and Temecula for the
programming of $3.5 million of TUMF CETAP for the construction phase of the
I-15 ALP;
3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreement; and
4) Forward to the Commission for final action.
8. AGREEMENTS FOR ON-CALL RIGHT OF WAY APPRAISAL SERVICES
Page 32
Overview
This item is for the Committee to:
1) Award the following agreements to provide on-call right of way appraisal services for
a three-year term, in an amount not to exceed an aggregate value of $1 million;
Western Riverside County Programs and Projects Committee
November 22, 2021
Page 3
a) Agreement No. 22-31-009-00 with Hawran & Malm, LLC;
b) Agreement No. 22-31-026-00 with Hennessey & Hennessey, LLC;
c) Agreement No. 22-31-027-00 with Integra Realty Resources – Los Angeles;
d) Agreement No. 22-31-028-00 with R.P. Laurain & Associates, Inc.; and
e) Agreement No. 22-31-029-00 with Santolucito Dorè Group, Inc.
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize
and execute the agreements, on behalf of the Commission;
3) Authorize the Executive Director, or designee, to execute task orders awarded to the
consultants under the terms of the agreements; and
4) Forward to the Commission for final action.
9. AGREEMENT FOR RAILROAD RIGHT OF WAY PROPERTY MAINTENANCE SERVICES
Page 324
Overview
This item is for the Committee to:
1) Approve Agreement No. 22-33-014-00 with Joshua Grading & Excavating, Inc. for
property maintenance services of Commission-owned railroad right of way (ROW)
property for a five-year term in an amount not to exceed of $4.3 million;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize
and execute the agreement on behalf of the Commission;
3) Authorize the Executive Director, or designee, to execute task orders awarded to the
contractor under the terms of the agreement; and
4) Forward to the Commission for final action.
10. AMENDMENT TO AGREEMENT WITH STEVE’S TOWING FOR EXPRESS LANES FREEWAY
SERVICE PATROL SERVICE
Page 370
Overview
This item is for the Committee to:
1) Approve Agreement No. 16-45-103-03, Amendment No. 3 to Agreement
No. 16-45-103-00 with Steve’s Towing (Steve’s) for continued Freeway Service Patrol
(FSP) services on the Commission’s Express Lanes (Beats 91T and 15T) for an additional
13 months through January 30, 2023 and to increase the hourly rate for the one
91T service truck from $56.25 to $70.00 for an additional amount of $105,000, and a
total amount not to exceed $2,168,197;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize
and execute the agreement on behalf of the Commission; and
3) Forward to the Commission for final action.
Western Riverside County Programs and Projects Committee
November 22, 2021
Page 4
11. EXECUTIVE DIRECTOR REPORT
12. COMMISSIONER COMMENTS
Overview
This item provides the opportunity for brief announcements or comments on items or matters
of general interest.
13. ADJOURNMENT
The next Western Riverside County Programs and Projects Committee meeting is scheduled
to be held at 1:30 p.m., Monday, January 24, 2022.
AGENDA ITEM 6A
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE
Monday, October 25, 2021
MINUTES
1. CALL TO ORDER
The meeting of the Western Riverside County Programs and Projects Committee was
called to order by Chair Clint Lorimore at 1:30 p.m. via Zoom Meeting ID: 899 4120 6953.
This meeting was conducted virtually in accordance with AB 361 due to state or local
officials recommending measures to promote social distancing.
2. ROLL CALL
Members/Alternates Present Members Absent
Ben Benoit Brian Berkson
Yxstian Gutierrez
Jeff Hewitt*
Ted Hoffman
Kevin Jeffries
Linda Krupa
Clint Lorimore
Wes Speake
Michael Vargas
Scott Vinton
Bill Zimmerman
*Arrived after the meeting was called to order.
3. PLEDGE OF ALLEGIANCE
Commissioner Ben J. Benoit led the Western Riverside County Programs and Projects
Committee in a flag salute.
At this time, Commissioner Jeff Hewitt joined the meeting.
Commissioner Tedd Hoffman stated to Chair Lorimore that he noted AB 361 and with the
changes in the other Boards, he asked it is not necessary to all have to meet in person to
agree that this has to be done.
Chair Lorimore referred to legal counsel.
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RCTC WRC Programs and Projects Committee Minutes
October 25, 2021
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Haviva Shane, Legal Counsel, replied no and they have not interpreted AB 361 in that
manner, and they have local and state officials that have continued to recommend social
distancing at this point.
4. PUBLIC COMMENTS
There were no requests to speak from the public.
5. ADDITIONS/REVISIONS
There were no additions or revisions to the agenda.
6. APPROVAL OF MINUTES – SEPTEMBER 27, 2021
M/S/C (Zimmerman/Speake) to approve the minutes as submitted.
7. CHANGE ORDER TO AMEND THE INTERSTATE 15 EXPRESS LANES PROJECT TOLL
SERVICES AGREEMENT WITH KAPSCH TRAFFICCOM USA TO PROVIDE MAINTENANCE
SERVICES AND IMAGE REVIEW SERVICES FOR THE 91 EXPRESS LANES ROADSIDE SYSTEM
Reinland Jones, Toll Technology Manager, presented the I-15 Express Lanes Contract
Change Order with Kapsch TrafficCom USA (Kapsch) for Maintenance and Image Review
Services for the 91 Express Lanes Roadside System, highlighting the following:
• Background Information; Equipment – Roadside Tolling System; Roadside
Equipment; and Change Order 23 for Maintenance and Image Review Services
Commissioner Scott Vinton asked if the maintenance for the roadside equipment is
currently being maintained by Cofiroute USA, LLC (Cofiroute) and if they will be a sub to
Kapsch or is Kapsch taking that over.
Reinland Jones replied Kapsch will be taking that over and they are currently maintaining
it. They have staff on board now but once this amendment is approved then Kapsch has
personnel that is in house that can take over.
M/S/C (Vargas/Benoit) to:
1) Approve Change Order No. 23 to Agreement No. 16-31-043-00 for the
Interstate 15 Express Lanes Project (I-15 ELP) with Kapsch TrafficCom USA
Inc. (Kapsch) to provide five years of maintenance services for the 91
Express Lanes Roadside System and Image Review Services in an amount
not to exceed $3,021,143;
2) Authorize the Chair or Executive Director, pursuant to legal counsel
review, to execute the change order on behalf of the Commission; and
3) Forward to the Commission for final action.
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8. AMENDMENT TO THE 91 EXPRESS LANES OPERATOR AGREEMENT
Silva Mardrussian, Toll Customer Service Manager, provided a detailed overview for the
amendment to the 91 Express Lanes operator agreement.
Commissioner Zimmerman suggested to include in the future contracts “anticipated
completion date” instead of “guaranteed completion date”, because the contractors are
not making this guaranteed completion date.
M/S/C (Benoit/Krupa) to:
1) Approve Agreement No. 13-31-105-06, Amendment No. 6 to the 91
Express Lanes Operator Agreement No. 13-31-105-00 (commonly
referred to as the ORCOA), among the Orange County Transportation
Authority (OCTA), the Commission, and Cofiroute USA, LLC (Cofiroute),
for up to three one-month optional extension periods for an additional
amount of $500,000, and a total amount not to exceed $36,507,044;
2) Authorize the Chair or Executive Director, pursuant to legal counsel
review, to execute the amendment on behalf of the Commission; and
3) Forward to the Commission for final action.
9. AGREEMENT FOR LANDSCAPE MAINTENANCE SERVICES FOR THE COMMISSION-
OWNED COMMUTER RAIL STATIONS AND TOLL FACILITIES
Gary Ratliff, Facilities Administrator, presented the landscape maintenance services
agreement for the Commission-Owned Commuter Rail Stations and Toll Facilities,
highlighting the following:
• Commission Rail Stations and Facilities; Landscape Maintenance Services;
Riverside Downtown Landscape Renovation Project – Fall 2021; and the
Procurement Process
Commissioner Speake expressed appreciation to Gary Ratliff and the team for a great job,
and stated it is amazing to see those two bids were that close and it shows a great job
was done putting together the request for proposals (RFP).
Commissioner Ted Hoffman congratulated the team on the bid process, but expressed
concern there were 22 bids and asked how many were from Riverside County. Gary Ratliff
replied two. Commissioner Hoffman reiterated only two from Riverside County. He
expressed concern in looking at these bids and try to go out of county that maybe RCTC
needs to put together an educational program so more of these companies in Riverside
County get a chance to step up or at least understand the bid process. Commissioner
Hoffman congratulated Tropical Plaza Nursery, Inc. (Tropical) and their people but would
like to keep it within Riverside County.
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Lucas Fields, Tropical Plaza Nursery, stated he is a third-generation landscape owner of
the company, and he plans on expanding to Riverside, so next time around he plans on
bidding on this there will be an additional bid from Riverside.
Commissioner Speake replied to Mr. Fields that they welcome him to any city in Riverside
County, but there is a few that might be special to him and his colleague in Norco and
Corona. Mr. Fields replied anyone that will take him, he will move in there.
Chair Lorimore stated Western Riverside County is the way to go when looking for space.
M/S/C (Vargas/Speake) to:
1) Award Agreement No. 22-24-007-00 with Tropical Plaza Nursery Inc.
(Tropical) for monthly routine and on-call landscape maintenance
services for the Commission-owned commuter rail stations and toll
facilities for a five-year term in an amount not to exceed of $3,759,000;
2) Authorize the Chair or Executive Director, pursuant to legal counsel
review, to finalize and execute the agreement on behalf of the
Commission;
3) Authorize the Executive Director, or designee, to execute task orders
awarded to the contractor under the terms of the agreement; and
4) Forward to the Commission for final action.
10. EXECUTIVE DIRECTOR REPORT
10A. Anne Mayer announced there will be a presentation on the details and its
requirements on AB 361, as well as provide the availability for discussion for the
Commission at the November 10 Commission meeting.
11. COMMISSIONER COMMENTS
11A. Chair Lorimore acknowledged and expressed concern for the passing of city of
Moreno Valley City Council Member Victoria Baca.
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12. ADJOURNMENT
There being no further business for consideration by the Western Riverside County
Programs and Projects Committee, the meeting was adjourned in memory of Council
Member Victoria Baca at 1:54 p.m.
Respectfully submitted,
Lisa Mobley
Administrative Services Manager/
Clerk of the Board
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AGENDA ITEM 7
Agenda Item 7
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: November 22, 2021
TO: Western Riverside County Programs and Projects Committee
FROM: Jillian Guizado, Planning and Programming Director
THROUGH: John Standiford, Deputy Executive Director
SUBJECT: City of Temecula Funding Request for Construction of the Interstate 15
Auxiliary Lane Project
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Approve programming $3.5 million of Transportation Uniform Mitigation Fee (TUMF)
Community Environmental Transportation Acceptability Process (CETAP) funds for the
city of Temecula’s (Temecula) Interstate 15 (I-15) Auxiliary Lane Project (ALP);
2) Approve Agreement No. 22-73-032-00 between the Commission and Temecula for the
programming of $3.5 million of TUMF CETAP for the construction phase of the I-15 ALP;
3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreement; and
4) Forward to the Commission for final action.
BACKGROUND INFORMATION:
The I-15, through Temecula, carries 164,000 vehicles and trucks daily. Vehicles getting on and
off the I-15 in Temecula require weaving and merging, degrading the operational efficiency of
the local arterials, on-ramps, off-ramps, and freeway mainline.
Temecula has been working with Caltrans on a package of auxiliary lanes through Temecula on
I-15 to improve circulation within the city, reduce delays, and improve safety. While Caltrans is
the lead agency and sponsor of a suite of auxiliary lane improvements on I-15 between
Temecula Parkway and Winchester Road, Temecula is the project lead on one northbound
auxiliary lane project on two ramps connecting to the I-15 at Temecula Parkway and
Rancho California Road, called the I-15 ALP. Due to this project being a high priority for Temecula,
the city opted to be the project lead which is anticipated to result in the I-15 ALP being delivered
up to two years earlier. The environmental document is underway for the I-15 ALP, and design
is scheduled for completion in June 2022.
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Agenda Item 7
DISCUSSION:
On September 20, 2021, Temecula submitted a request to the Commission for assistance closing
the funding gap on the I-15 ALP in the amount of $3.5 million (Attachment 1). Funding is needed
to construct improvements in FY 2022/23. Once the project is fully funded, construction is
planned to be advertised in summer 2022 and awarded in fall 2022. As shown on the location
map (Attachment 2), the project is in Temecula at the northbound I-15 on-ramp for Temecula
Parkway and the I-15 off-ramp for Rancho California Road. Temecula, the city of Murrieta, the
Pechanga Band of Luiseño Indians, and Caltrans are all funding partners collectively bringing
$5.47 million to the project. In 2020, Temecula sought additional state funding through Cycle 2
of the Senate Bill 1 Local Partnership Program Competitive (SB 1 LPP-C) call for projects.
Ultimately, the I-15 ALP was not selected for SB 1 LPP-C funding. If Temecula waits to submit
another competitive grant application in Cycle 3 of SB 1 LPP-C, it would delay construction by at
least one year without an actual guarantee of funding.
The I-15 ALP compliments the Commission-led I-15 Smart Freeway pilot project on the I-15 in
Temecula. Each project will enhance the other because they both improve operations along the
corridor. By the Commission joining Temecula as a funding partner on this project, it would
ensure the timely delivery of the I-15 ALP improvements.
Extending the I-15 on-ramp at Temecula Parkway and the I-15 off-ramp at Rancho California Road
will improve air quality, enhance safety, reduce congestion, facilitate goods movement, and
compliment the Commission-led I-15 Smart Freeway project. Since the project is not federalized,
staff recommends programming $3.5 million in TUMF CETAP funds to complete construction
funding and approving an agreement with Temecula for the programming of the funds.
FISCAL IMPACT:
The Fiscal Year 2022/23 budget has not been prepared yet. If this item is approved by the
Commission, the FY 2022/23 budget will include $3.5 million for construction cost
reimbursements to Temecula.
Financial Information
In Fiscal Year Budget: N/A Year: FY 2022/23 Amount: $3,500,000
Source of Funds: TUMF CETAP Budget Adjustment: N/A
GL/Project Accounting No.: 005136 81301 00000 0000 210 73 81301
Fiscal Procedures Approved: Date: 11/08/2021
Attachments:
1) Temecula Request Letter dated September 20, 2021
2) Project Location Map
3) Draft Agreement No. 22-73-032-00
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ATTACHMENT 1
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ATTACHMENT 2
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Agreement No. 22-73-032-00
AGREEMENT FOR THE FUNDING OF
TRANSPORTATION UNIFORM MITIGATION FEE IMPROVEMENTS
WITH THE CITY OF TEMECULA
1.Parties and Date.
1.1 This Agreement is executed and entered into this day of , 2021, by and
between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (“RCTC”) and the
CITY OF TEMECULA (“City”). RCTC and City are sometimes collectively referred to herein as
the “Parties”.
2.Recitals.
2.1 RCTC is a county transportation commission created and existing pursuant to
California Public Utilities Code Sections 130053 and 130053.5.
2.2 On November 5, 2002 the voters of Riverside County approved Measure A
authorizing the collection of a one-half percent (1/2%) retail transactions and use tax to fund
transportation programs and improvements within the County of Riverside, and adopting the
Riverside County Transportation Improvement Plan (the “Plan”).
2.3 The Plan establishes funding for any improved Regional Arterial System to be funded
by a mix of Measure A and Transportation Uniform Mitigation Fees (“TUMF”) revenues.
2.4 Pursuant to Public Utility Code Sections 240000 et seq., RCTC is authorized to
allocate the proceeds of the Measure A tax in furtherance of the Plan.
2.5 RCTC intends, by this Agreement, to distribute TUMF Community Environmental
Transportation Acceptability Process (“CETAP”) Funds, subject to the conditions provided herein,
and to participate in the joint development of the Project, as defined herein.
3.Terms.
3.1 Description of Work. This Agreement is intended to distribute TUMF CETAP Funds
to the City for the Interstate 15 Auxiliary Lane Project (“the Work”). The Work, including a
timetable and a detailed scope of work, is more fully described in Exhibit “A” attached hereto and,
pursuant to Section 3.15 below, is subject to modification as requested by the City and approved by
RCTC. The Work shall be consistent with the following defined phase as follows:
1)CONS – Construction
The Work phase funded pursuant to this Agreement shall be consistent with the City’s Request
Letter submitted to the RCTC (“the Project”). The Project is more fully described in Exhibit “A”
and depicted in Exhibit “B” attached hereto. It is understood and agreed that the City shall expend
ATTACHMENT 3
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TUMF CETAP Funds only as set forth in this Agreement and only for the Work. To this end, any
use of funds provided pursuant to this Agreement shall be subject to the review and approval of
RCTC.
3.2 RCTC Funding Amount. RCTC hereby agrees to distribute to the City, on the terms
and conditions set forth herein, a sum not to exceed Three Million, Five Hundred Thousand Dollars
($3,500,000), to be used exclusively for reimbursing the City for eligible Work expenses as
described herein (“Funding Amount”). The City acknowledges and agrees that the Funding Amount
may be less than the actual cost of the Work, and that RCTC shall not contribute TUMF CETAP
Funds in excess of the maximum authorized in this section.
3.2.1 Eligible Work Costs. The total Work costs (“Total Work Cost”) may include
the following items: (1) City and/or consultant costs associated with direct Work coordination and
support; (2) construction costs, including change orders to construction contract approved by the
City; and (3) construction management, field inspection and material testing costs.
3.2.2 Ineligible Work Costs. The Total Work Cost shall not include the following
items which shall be borne solely by the City without reimbursement: (1) City administrative costs;
(2) City costs attributed to the preparation of invoices, billings and payments; (3) any City fees
attributed to the processing of the Work; and (4) expenses for items of work not included within the
scope of work in Exhibit “A”.
3.2.3 Increases in Work Funding. The Funding Amount may, in RCTC’s sole
discretion, be augmented with additional TUMF CETAP Funds. Any such increase in the Funding
Amount must be approved in writing by RCTC’s Executive Director. No such increased funding
shall be expended to pay for any Work already completed. For purposes of this Agreement, the
Work or any portion thereof shall be deemed complete upon its acceptance by RCTC’s Executive
Director.
3.2.4 Cost Savings. In the event that bids for the Work are lower than anticipated,
or there are cost savings for any other reason, the Funding Amount shall be reduced as follows: cost
savings shall be applied proportionately to each funding source listed in Exhibit “A” for the Work.
The City shall inform RCTC of any cost savings and the Parties shall amend this Agreement to
reflect the revised Funding Amount. RCTC’s Executive Director and the City Manager shall be
authorized to execute any such amendment.
3.2.5 No Funding for Temporary Improvements. Only segments or components of
the Work that are intended to form part of or be integrated into the Work may be funded by TUMF
CETAP Funds. No improvement which is temporary in nature, including but not limited to
temporary roads, curbs, or drainage facilities, shall be funded with TUMF CETAP Funds except as
needed for staged construction of the Work.
3.3 City’s Funding Obligation to Complete the Work. In the event that the TUMF
CETAP Funds allocated to the Work represent less than the total cost of the Work, the City shall
provide such additional funds as may be required to complete the Work as described in Exhibit “A”.
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3.3.1 City’s Obligation to Repay TUMF CETAP Funds to RCTC. In the event
that: (i) the City, for any reason, determines not to proceed with or complete the Work; or (ii) the
Work is not timely completed, subject to any extension of time granted by RCTC pursuant to Section
3.15; the City agrees that any TUMF CETAP Funds that were distributed to the City for the Work
shall be repaid in full to RCTC. The Parties shall enter into good faith negotiations to establish a
reasonable repayment schedule and repayment mechanism which may include, but is not limited to,
withholding of Measure A Local Streets and Roads revenues. The City acknowledges and agrees
that RCTC shall have the right to withhold any Measure A Local Streets and Roads revenues due the
City, in an amount not to exceed the total of the funds distributed to the City, and/or initiate legal
action to compel repayment, if the City fails to repay RCTC within a reasonable time period not to
exceed 180 days from receipt of written notification from RCTC that repayment is required.
3.3.2 City’s Local Match Contribution. The City shall provide at least Four
Hundred Seventy-Six Thousand Dollars ($476,000) of funding toward the Work, as shown in
Exhibit “A”.
3.4 Work Responsibilities of the City. The City shall be responsible for the following
aspects of the Work, in compliance with state and federal law provided that such items are included
in the Project scope of work attached as Exhibit “A”: (i) all aspects of bidding, awarding, and
administration of the contracts for the Work; (ii) all construction management of any construction
activities undertaken in connection with the Work, including survey and material testing; and (iii)
development of a budget for the Work prior to award of any contract for the Work, taking into
consideration available funding, including TUMF CETAP Funds.
3.5 Term/Notice of Completion. The term of this Agreement shall be from the date first
herein above written until: (i) the date RCTC formally accepts the Work as complete, pursuant to
Section 3.2.3; (ii) termination of this Agreement pursuant to Section 3.9; or (iii) the City has fully
satisfied its obligations under this Agreement, including full repayment of TUMF CETAP Funds to
RCTC as provided herein. All applicable indemnification provisions of this Agreement shall remain
in effect following the termination of this Agreement.
3.6 Representatives of the Parties. RCTC’s Executive Director, or his or her designee,
shall serve as RCTC’s representative and shall have the authority to act on behalf of RCTC for all
purposes under this Agreement. The City hereby designates Aaron Adams, City Manager, or his
designee, as the City’s representative to RCTC. The City’s representative shall have the authority to
act on behalf of the City for all purposes under this Agreement and shall coordinate all activities of
the Work under the City’s responsibility. The City shall work closely and cooperate fully with
RCTC’s representative and any other agencies which may have jurisdiction over or an interest in the
Work.
3.7 Expenditure of Funds by City Prior to Execution of Agreement. Nothing in this
Agreement shall be construed to prevent or preclude the City from expending funds on the Work
prior to the execution of the Agreement, or from being reimbursed by RCTC for such expenditures.
However, the City understands and acknowledges that any expenditure of funds on the Work prior to
the execution of the Agreement is made at the City’s sole risk, and that some expenditures by the
City may not be eligible for reimbursement under this Agreement.
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3.8 Review of Services. The City shall allow RCTC’s Representative to inspect or
review the progress of the Work at any reasonable time in order to determine whether the terms of
this Agreement are being met.
3.9 Termination. This Agreement may be terminated for cause or convenience as further
specified below.
3.9.1 Termination for Convenience.
3.9.1.1 Notice. Either RCTC or the City may, by written notice to the other
party, terminate this Agreement, in whole or in part, for convenience by giving thirty (30) days'
written notice to the other party of such termination and specifying the effective date thereof.
3.9.1.2 Effect of Termination for Convenience. In the event that the City
terminates this Agreement for convenience, the City shall, within 180 days, repay to RCTC in full all
TUMF CETAP Funds provided to the City under this Agreement. In the event that RCTC
terminates this Agreement for convenience, RCTC shall, within 90 days, distribute to the City
TUMF CETAP Funds in an amount equal to the aggregate total of all unpaid invoices which have
been received from the City regarding the Work at the time of the notice of termination; provided,
however, that RCTC shall be entitled to exercise its rights under Section 3.14.2, including but not
limited to conducting a review of the invoices and requesting additional information. This
Agreement shall terminate upon receipt by the non-terminating party of the amounts due it under this
Section 3.9.1.2.
3.9.2 Termination for Cause.
3.9.2.1 Notice. Either RCTC or the City may, by written notice to the other
party, terminate this Agreement, in whole or in part, in response to a material breach hereof by the
other party, by giving written notice to the other party of such termination and specifying the
effective date thereof. The written notice shall provide a 30 day period to cure any alleged breach.
During the 30 day cure period, the Parties shall discuss, in good faith, the manner in which the
breach can be cured.
3.9.2.2 Effect of Termination for Cause. In the event that the City terminates
this Agreement in response to RCTC's uncured material breach hereof, RCTC shall, within 90 days,
distribute to the City TUMF CETAP Funds in an amount equal to the aggregate total of all unpaid
invoices which have been received from the City regarding the Work at the time of the notice of
termination. In the event that RCTC terminates this Agreement in response to the City's uncured
material breach hereof, the City shall, within 180 days, repay to RCTC in full all TUMF CETAP
Funds provided to the City under this Agreement. Notwithstanding termination of this Agreement
by RCTC pursuant to this Section 3.9.2.2, RCTC shall be entitled to exercise its rights under
Section 3.14.2, including but not limited to conducting a review of the invoices and requesting
additional information. This Agreement shall terminate upon receipt by the terminating party of the
amounts due it under this Section 3.9.2.2.
3.9.3 Cumulative Remedies. The rights and remedies of the Parties provided in this
Section are in addition to any other rights and remedies provided by law or under this Agreement.
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3.10 Prevailing Wages. The City and any other person or entity hired to perform services
on the Work are alerted to the requirements of California Labor Code Sections 1770 et seq., which
would require the payment of prevailing wages were the services or any portion thereof determined
to be a public work, as defined therein. The City shall ensure compliance with these prevailing wage
requirements by any person or entity hired to perform the Work. The City shall defend, indemnify,
and hold harmless RCTC, its officers, employees, consultants, and agents from any claim or liability,
including without limitation attorneys, fees, arising from its failure or alleged failure to comply with
California Labor Code Sections 1770 et seq.
3.11 Progress Reports. RCTC may request the City to provide RCTC with progress
reports concerning the status of the Work.
3.12 Indemnification.
3.12.1 City Responsibilities. In addition to the indemnification required under
Section 3.10, the City agrees to indemnify and hold harmless RCTC, its officers, agents, consultants,
and employees from any and all claims, demands, costs or liability arising from or connected with all
activities governed by this Agreement including all design and construction activities, due to any act
of the City or its subcontractors whatsoever, regardless of fault, including negligent acts, errors or
omissions or willful misconduct, except that caused by the sole negligence of RCTC. The City will
reimburse RCTC for any expenditures, including reasonable attorneys’ fees, incurred by RCTC, in
defending against claims ultimately determined to be due to any act of the City or its subcontractors
whatsoever, regardless of fault, including negligent acts, errors or omissions or willful misconduct,
except that caused by the sole negligence of RCTC.
3.12.2 Effect of Acceptance. The City shall be responsible for the professional
quality, technical accuracy and the coordination of any services provided to complete the Work.
RCTC’s review, acceptance or funding of any services performed by the City or any other person or
entity under this agreement shall not be construed to operate as a waiver of any rights RCTC may
hold under this Agreement or of any cause of action arising out of this Agreement. Further, the City
shall be and remain liable to RCTC, in accordance with applicable law, for all damages to RCTC
caused by the City’s performance of this Agreement or supervision of any services provided to
complete the Work.
3.13 Insurance. The City shall require, at a minimum, all persons or entities hired to
perform the Work to obtain, and require their subcontractors to obtain, insurance of the types and in
the amounts described below and satisfactory to the City and RCTC. Such insurance shall be
maintained throughout the term of this Agreement, or until completion of the Work, whichever
occurs last.
3.13.1 Commercial General Liability Insurance. Occurrence version commercial
general liability insurance or equivalent form with a combined single limit of not less than
$2,000,000.00 per occurrence. If such insurance contains a general aggregate limit, it shall apply
separately to the Work or be no less than two times the occurrence limit. Such insurance shall:
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3.13.1.1 Name RCTC and City, and their respective officials, officers,
employees, agents, and consultants as insured with respect to performance of the services on the
Work and shall contain no special limitations on the scope of coverage or the protection afforded to
these insured;
3.13.1.2 Be primary with respect to any insurance or self insurance
programs covering RCTC and City, and/or their respective officials, officers, employees, agents, and
consultants; and
3.13.1.3 Contain standard separation of insured provisions.
3.13.2 Business Automobile Liability Insurance. Business automobile liability
insurance or equivalent form with a combined single limit of not less than $1,000,000.00 per
occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles.
3.13.3 Professional Liability Insurance. Errors and omissions liability insurance with
a limit of not less than $1,000,000.00 Professional liability insurance shall only be required of design
or engineering professionals.
3.13.4 Workers’ Compensation Insurance. Workers’ compensation insurance with
statutory limits and employers’ liability insurance with limits of not less than $1,000,000.00 each
accident.
3.14 Procedures for Distribution of TUMF CETAP Funds to City.
3.14.1 Initial Payment by the City. The City shall be responsible for initial payment
of all the Work costs as they are incurred. Following payment of such Work costs, the City shall
submit invoices to RCTC requesting reimbursement of eligible Work costs. Each invoice shall be
accompanied by detailed contractor invoices, or other demands for payment addressed to the City,
and documents evidencing the City’s payment of the invoices or demands for payment. The City
shall submit invoices not more often than monthly and not less often than quarterly.
3.14.2 Review and Reimbursement by RCTC. Upon receipt of an invoice from the
City, RCTC may request additional documentation or explanation of the Work costs for which
reimbursement is sought. Undisputed amounts shall be paid by RCTC to the City within thirty (30)
days. In the event that RCTC disputes the eligibility of the City for reimbursement of all or a portion
of an invoiced amount, the Parties shall meet and confer in an attempt to resolve the dispute. If the
meet and confer process is unsuccessful in resolving the dispute, the City may appeal RCTC’s
decision as to the eligibility of one or more invoices to RCTC’s Executive Director. The City may
appeal the decision of the Executive Director to the full RCTC Board, the decision of which shall be
final. Additional details concerning the procedure for the City’s submittal of invoices to RCTC and
RCTC’s consideration and payment of submitted invoices are set forth in Exhibit “C”, attached
hereto.
3.14.3 Funding Amount/Adjustment. If a post Work audit or review indicates that
RCTC has provided reimbursement to the City in an amount in excess of the maximum TUMF
CETAP Funds provided for in section 3.2 of this Agreement, or has provided reimbursement of
16
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ineligible Work costs, the City shall reimburse RCTC for the excess or ineligible payments within 30
days of notification by RCTC.
3.15 Work Amendments. Changes to the characteristics of the Work, including the
deadline for Work completion, and any responsibilities of the City or RCTC may be requested in
writing by the City and are subject to the approval of RCTC’s Representative, which approval will
not be unreasonably withheld, provided that extensions of time for completion of the Work shall be
approved in the sole discretion of RCTC’s Representative. Nothing in this Agreement shall be
construed to require or allow completion of the Work without full compliance with the California
Environmental Quality Act (Public Resources Code Section 21000 et seq.; “CEQA”) but the
necessity of compliance with CEQA shall not justify, excuse, or permit a delay in completion of the
Work.
3.16 Conflict of Interest. For the term of this Agreement, no member, officer or employee
of the City or RCTC, during the term of his or her service with the City or RCTC, as the case may
be, shall have any direct interest in this Agreement, or obtain any present or anticipated material
benefit arising therefrom.
3.17 Limited Scope of Duties. RCTC’s and the City’s duties and obligations under this
Agreement are limited to those described herein. RCTC has no obligation with respect to the safety
of any Work performed at a job site. In addition, RCTC shall not be liable for any action of City or
its contractors relating to the condemnation of property undertaken by City or construction related to
the Work.
3.18 Books and Records. Each party shall maintain complete, accurate, and clearly
identifiable records with respect to costs incurred for the Work under this Agreement. They shall
make available for examination by the other party, its authorized agents, officers or employees any
and all ledgers and books of account, invoices, vouchers, canceled checks, and other records or
documents evidencing or related to the expenditures and disbursements charged to the other party
pursuant to this Agreement. Further, each party shall furnish to the other party, its agents or
employees such other evidence or information as they may require with respect to any such expense
or disbursement charged by them. All such information shall be retained by the Parties for at least
three (3) years following termination of this Agreement, and they shall have access to such
information during the three-year period for the purposes of examination or audit.
3.19 Equal Opportunity Employment. The Parties represent that they are equal
opportunity employers and they shall not discriminate against any employee or applicant of
reemployment because of race, religion, color, national origin, ancestry, sex or age. Such non-
discrimination shall include, but not be limited to, all activities related to initial employment,
upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
3.20 Governing Law. This Agreement shall be governed by and construed with the laws
of the State of California. Venue shall be in Riverside County.
3.21 Attorneys’ Fees. If either party commences an action against the other party arising
out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to
have and recover from the losing party reasonable attorneys’ fees and costs of suit.
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3.22 Time of Essence. Time is of the essence for each and every provision of this
Agreement.
3.23 Headings. Article and Section Headings, paragraph captions or marginal headings
contained in this Agreement are for convenience only and shall have no effect in the construction or
interpretation of any provision herein.
3.24 Notification. All notices hereunder and communications regarding interpretation of
the terms of the Agreement or changes thereto shall be provided by the mailing thereof by registered
or certified mail, return receipt requested, postage prepaid and addressed as follows:
CITY OF TEMECULA RCTC
41000 Main Street Riverside County Transportation Commission
Temecula, CA 92590 4080 Lemon, 3rd Floor
Mailing address: P.O. Box 12008
Riverside, CA 92501
ATTN: City Manager ATTN: Executive Director
Any notice so given shall be considered served on the other party three (3) days after deposit
in the U.S. mail, first class postage prepaid, return receipt requested, and addressed to the party at its
applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred
regardless of the method of service.
3.25 Conflicting Provisions. In the event that provisions of any attached appendices or
exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and
conditions contained in this Agreement shall control the actions and obligations of the Parties and
the interpretation of the Parties’ understanding concerning the performance of the Services.
3.26 Contract Amendment. In the event that the Parties determine that the provisions of
this Agreement should be altered, the Parties may execute a contract amendment to add any
provision to this Agreement, or delete or amend any provision of this Agreement. All such contract
amendments must be in the form of a written instrument signed by the original signatories to this
Agreement, or their successors or designees.
3.27 Entire Agreement. This Agreement constitutes the entire agreement between the
Parties relating to the subject matter hereof and supersedes any previous agreements or
understandings.
3.28 No Waiver. Failure of RCTC to insist on any one occasion upon strict compliance
with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at
any one time or more times be deemed a waiver or relinquishment of such other right or power at
any other time or times.
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3.29 Validity of Agreement. The invalidity in whole or in part of any provision of this
Agreement shall not void or affect the validity of any other provision of this Agreement.
3.30 Independent Contractors. Any person or entities retained by the City or any
contractor shall be retained on an independent contractor basis and shall not be employees of RCTC.
Any personnel performing services on the Work shall at all times be under the exclusive direction
and control of the City or contractor, whichever is applicable. The City or contractor shall pay all
wages, salaries and other amounts due such personnel in connection with their performance of
services on the Work and as required by law. The City or consultant shall be responsible for all
reports and obligations respecting such personnel, including, but not limited to: social security taxes,
income tax withholding, unemployment insurance and workers’ compensation insurance.
3.31 Survival. All rights and obligations hereunder that by their nature are to be performed
after any expiration or termination of this Agreement shall survive any such expiration or
termination.
3.32 No Third Party Beneficiaries. There are no intended third party beneficiaries of any
right or obligation assumed by the Parties.
3.33 Counterparts. This Agreement may be signed in counterparts, each of which shall
constitute an original.
3.34 Electronically Transmitted Signatures. A manually signed copy of this Agreement
which is transmitted by facsimile, email or other means of electronic transmission shall be deemed to
have the same legal effect as delivery of an original executed copy of this Agreement for all
purposes.
[Signatures on following page]
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SIGNATURE PAGE
TO
AGREEMENT FOR THE FUNDING OF
TRANSPORTATION UNIFORM MITIGATION FEE IMPROVEMENTS
RIVERSIDE COUNTY CITY OF LAKE ELSINORE
TRANSPORTATION COMMISSION
By: By: ________________________
Anne Mayer, Executive Director Aaron Adams, City Manager
ATTEST:
By: ________________________
City Clerk
APPROVED AS TO FORM: APPROVED AS TO FORM:
By: _________________________________ By: _________________________
Best, Best & Krieger City Attorney
Counsel to the Riverside County
Transportation Commission
20
Exhibit A
EXHIBIT “A”
SCOPE OF WORK,
FUNDING AND TIMETABLE
SCOPE OF WORK:
FUNDING: Identify TUMF CETAP, local, state and/or federal funding for each Phase of Work.
FUND SOURCE CONSTRUCTION PHASE COST
TUMF CETAP $3,500,000
TEMECULA 1,620,000
MURRIETA 100,000
SHOPP Minor (Caltrans) 1,250,000
Pechanga Intergovernmental Agreement 2,500,000
TOTAL $8,970,000
TIMETABLE: Provide at a minimum the beginning and ending dates for each phase of work
including major milestones within a phase.
Phase Start Date End Date Comments
Construction 10/2022 04/2024 ___ Working Days
21
Exhibit B
EXHIBIT “B”
PROJECT LOCATION MAP
I 15 Auxiliary Lane Project – Location Map
22
Exhibit C
EXHIBIT “C”
PROCEDURES FOR SUBMITTAL, CONSIDERATION AND PAYMENT OF INVOICES
1. RCTC recommends that the City incorporate Exhibit “C-1” into its contracts with any
subcontractors to establish a standard method for preparation of invoices by contractors to
the City and ultimately to RCTC for reimbursement of City contractor costs.
2. Each month the City shall submit an invoice for eligible Work costs incurred during the
preceding month. The original invoice shall be submitted to RCTC’s Executive Director
with a copy to RCTC’s Project Coordinator. Each invoice shall be accompanied by a cover
letter in a format substantially similar to that of Exhibit “C-2”.
3. Each invoice shall include documentation from each contractor used by the City for the
Work, listing labor costs, subcontractor costs, and other expenses. Each invoice shall also
include a monthly progress report and spreadsheets showing the hours or amounts expended
by each contractor or consultant for the month and for the entire Work to date. A sample
progress report is attached as Exhibits “C-4”. All documentation from the City’s contractors
should be accompanied by a cover letter in a format substantially similar to that of Exhibit
“C-3”.
4. If the City is seeking reimbursement for direct expenses incurred by City staff for eligible
Work costs, the City shall detail the same level of information for its labor and any expenses
in the same level of detail as required of contractors pursuant to Exhibit “C” and its
attachments.
5. Charges for each task and milestone listed in Exhibit “A” shall be listed separately in the
invoice.
6. Each invoice shall include a certification signed by the City Representative or his or her
designee which reads as follows:
“I hereby certify that the hours and salary rates submitted for reimbursement in this invoice
are the actual hours and rates worked and paid to the consultants or contractors listed.
Signed ________________________________
Title __________________________________
Date __________________________________
Invoice No. ____________________________
23
Exhibit C
7. RCTC will pay the City within 30 days after receipt by the Commission of an invoice. If
RCTC disputes any portion of an invoice, payment for that portion will be withheld, without
interest, pending resolution of the dispute, but the uncontested balance will be paid.
8. The final payment under this Agreement will be made only after: (i) the City has obtained a
Release and Certificate of Final Payment from each contractor or consultant used on the
Work; (ii) the City has executed a Release and Certificate of Final Payment; and (iii) the City
has provided copies of each such Release to RCTC.
24
Exhibit “C-1”
EXHIBIT “C-1”
ELEMENTS OF COMPENSATION
For the satisfactory performance and completion of the Work under this Agreement, City
will pay the Consultant compensation as set forth herein. The total compensation for this service
shall not exceed (_____INSERT WRITTEN DOLLAR AMOUNT___) ($___INSERT
NUMERICAL DOLLAR AMOUNT___) without written approval of City’s City Engineer (“Total
Compensation”).
1. ELEMENTS OF COMPENSATION.
Compensation for the Work will be comprised of the following elements: 1.1 Direct Labor
Costs; 1.2 Fixed Fee; and 1.3 Additional Direct Costs.
1.1 DIRECT LABOR COSTS.
Direct Labor costs shall be paid in an amount equal to the product of the Direct
Salary Costs and the Multiplier which are defined as follows:
1.1.1 DIRECT SALARY COSTS
Direct Salary Costs are the base salaries and wages actually paid to the
Consultant's personnel directly engaged in performance of the Work under
the Agreement. (The range of hourly rates paid to the Consultant's personnel
appears in Section 2 below.)
1.1.2 MULTIPLIER
The Multiplier to be applied to the Direct Salary Costs to determine the
Direct Labor Costs is _________________, and is the sum of the following
components:
1.1.2.1 Direct Salary Costs ____________________
1.1.2.2 Payroll Additives ____________________
The Decimal Ratio of Payroll Additives to Direct Salary Costs. Payroll Additives
include all employee benefits, allowances for vacation, sick leave, and
holidays, and company portion of employee insurance and social and
retirement benefits, all federal and state payroll taxes, premiums for
insurance which are measured by payroll costs, and other contributions and
benefits imposed by applicable laws and regulations.
25
Exhibit “C-1”
1.1.2.3 Overhead Costs ____________________
The Decimal ratio of Allowable Overhead Costs to the Consultant Firm's
Total Direct Salary Costs. Allowable Overhead Costs include general,
administrative and overhead costs of maintaining and operating established
offices, and consistent with established firm policies, and as defined in the
Federal Acquisitions Regulations, Part 31.2.
Total Multiplier ____________________
(sum of 1.1.2.1, 1.1.2.2, and 1.1.2.3)
1.2 FIXED FEE.
1.2.1 A Fixed Fee of _______________ shall be paid to Consultant for Consultant’s
complete and satisfactory performance of this Agreement and all Services required.
The Fixed Fee shall be paid in monthly installments based upon the percentage of the
Services completed at the end of each billing period, as determined in the sole
discretion of the City. Consultant shall not be entitled to and shall forfeit any portion
of the Fixed Fee not earned as provided herein.
1.2.2 A pro-rata share of the Fixed Fee shall be applied to the total Direct Labor Costs
expended for services each month, and shall be included on each monthly invoice.
1.3 ADDITIONAL DIRECT COSTS.
Additional Direct Costs directly identifiable to the performance of the services of this
Agreement shall be reimbursed at the rates below, or at actual invoiced cost.
Rates for identified Additional Direct Costs are as follows:
ITEM REIMBURSEMENT RATE
[___insert charges___]
Per Diem $ /day
Car mileage $ /mile
Travel $ /trip
Computer Charges $ /hour
Photocopies $ /copy
Blueline $ /sheet
LD Telephone $ /call
Fax $ /sheet
Photographs $ /sheet
Travel by air and travel in excess of 100 miles from the Consultant's office nearest to City’s
office must have City’s prior written approval to be reimbursed under this Agreement.
26
Exhibit “C-1”
2. DIRECT SALARY RATES
Direct Salary Rates, which are the range of hourly rates to be used in determining Direct
Salary Costs in Section 1.1.1 above, are given below and are subject to the following:
2.1 Direct Salary Rates shall be applicable to both straight time and overtime work,
unless payment of a premium for overtime work is required by law, regulation or
craft agreement, or is otherwise specified in this Agreement. In such event, the
premium portion of Direct Salary Costs will not be subject to the Multiplier defined
in Paragraph 1.1.2 above.
2.2 Direct Salary Rates shown herein are in effect for one year following the effective
date of the Agreement. Thereafter, they may be adjusted annually to reflect the
Consultant's adjustments to individual compensation. The Consultant shall notify
City in writing prior to a change in the range of rates included herein, and prior to
each subsequent change.
POSITION OR CLASSIFICATION RANGE OF HOURLY RATES
[___sample___]
Principal $ .00 - $ .00/hour
Project Manager $ .00 - $ .00/hour
Sr. Engineer/Planner $ .00 - $ .00/hour
Project Engineer/Planner $ .00 - $ .00/hour
Assoc. Engineer/Planner $ .00 - $ .00/hour
Technician $ .00 - $ .00/hour
Drafter/CADD Operator $ .00 - $ .00/hour
Word Processor $ .00 - $ .00/hour
2.3 The above rates are for the Consultant only. All rates for subconsultants to the
Consultant will be in accordance with the Consultant's cost proposal.
3. INVOICING.
3.1 Each month the Consultant shall submit an invoice for Work performed during the
preceding month. The original invoice shall be submitted to City’s City Engineer
with two (2) copies to City’s Project Coordinator.
3.2 Charges shall be billed in accordance with the terms and rates included herein, unless
otherwise agreed in writing by City’s Representative.
3.3 Base Work and Extra Work shall be charged separately, and the charges for each task
and Milestone listed in the Scope of Work, shall be listed separately. The charges for
27
Exhibit “C-1”
each individual assigned by the Consultant under this Agreement shall be listed
separately on an attachment to the invoice.
3.4 A charge of $500 or more for any one item of Additional Direct Costs shall be
accompanied by substantiating documentation satisfactory to City such as invoices,
telephone logs, etc.
3.5 Each copy of each invoice shall be accompanied by a Monthly Progress Report and
spreadsheets showing hours expended by task for each month and total project to
date.
3.6 Each invoice shall indicate payments to DBE subconsultants or supplies by dollar
amount and as a percentage of the total invoice.
3.7 Each invoice shall include a certification signed by the Consultant's Representative
or an officer of the firm which reads as follows:
I hereby certify that the hours and salary rates charged in this invoice
are the actual hours and rates worked and paid to the employees
listed.
Signed _____________________________
Title _____________________________
Date _____________________________
Invoice No. _____________________________
4. PAYMENT
4.1 City shall pay the Consultant within four to six weeks after receipt by City of an
original invoice. Should City contest any portion of an invoice, that portion shall be
held for resolution, without interest, but the uncontested balance shall be paid.
The final payment for Work under this Agreement will be made only after the Consultant has
executed a Release and Certificate of Final Payment.
28
Exhibit “C-2”
EXHIBIT “C-2”
Sample Cover Letter to RCTC
Date
Ms. Anne Mayer
Executive Director
Riverside County Transportation Commission
4080 Lemon Street, 3rd Floor
Riverside, CA 92501
ATTN: Accounts Payable
Re: Project Title - Invoice #__
Enclosed for your review and payment approval is the City of _____________’s invoice for
professional and technical services that was rendered by our contractors in connection with the
_______________ Agreement No. ________ effective (Month/Day/Year). The required support
documentation received from each contractor is included as backup to the invoice.
Invoice period covered is from Month/Date/Year to Month/Date/Year.
Total Authorized Agreement Amount: $0,000,000.00
Total Invoiced to Date: $0,000,000.00
Total Previously Invoiced: $0,000,000.00
Balance Remaining: $0,000,000.00
Amount due this Invoice: $0,000,000.00
===========
I certify that the hours and salary rates charged in this invoice are the actual hours and rates worked
and paid to the contractors listed.
By: _____________________________
Name
Title
cc:
29
Exhibit “C-3”
EXHIBIT “C-3”
Sample Letter from Contractor to City/County
Month/Date/Year
______________
______________
______________
Attn: Accounts Payable Invoice #____________
For [type of services] rendered by [contractor name] in connection with [name of project] This is
per agreement No. XX-XX-XXX effective Month/Date/Year.
Invoice period covered is from Month/Date/Year to Month/Date/Year.
Total Base Contract Amount: $000,000.00
Authorized Extra Work (if Applicable) $000,000.00
------------------
TOTAL AUTHORIZED CONTRACT AMOUNT: $000,000.00
Total Invoice to Date: $000,000.00
Total Previously Billed: $000,000.00
Balance Remaining: $000,000.00
Amount Due this Invoice: $000,000.00
==========
I certify that the hours and salary rates charged in this invoice are the actual hours and rates worked
and paid to the employees listed,
By: ____________________
Name
Title
30
Exhibit C-4
EXHIBIT C-4
Sample Progress Report
REPORTING PERIOD: Month/Date/Year to Month/Date/Year
PROGRESS REPORT: #1
A. Activities and Work Completed during Current Work Periods
TASK 01 – 100% PS&E SUBMITTAL
1. Responded to Segment 1 comments from Department of Transportation
2. Completed and submitted Segment 1 final PS&E
B. Current/Potential Problems Encountered & Corrective Action
Problems Corrective Action
None None
C. Work Planned Next Period
TASK 01 – 100% PS&E SUBMITTAL
1. Completing and to submit Traffic Signal and Electrical Design plans
2. Responding to review comments
31
AGENDA ITEM 8
Agenda Item 8
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: November 22, 2021
TO: Western Riverside County Programs and Projects Committee
FROM: Hector Casillas, Right of Way Manager
Ruben Duran, Senior Management Analyst
THROUGH: Marlin Feenstra, Project Delivery Director
SUBJECT: Agreements for On-Call Right of Way Appraisal Services
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Award the following agreements to provide on-call right of way appraisal services for a
three-year term, in an amount not to exceed an aggregate value of $1 million;
a) Agreement No. 22-31-009-00 with Hawran & Malm, LLC;
b) Agreement No. 22-31-026-00 with Hennessey & Hennessey, LLC;
c) Agreement No. 22-31-027-00 with Integra Realty Resources – Los Angeles;
d) Agreement No. 22-31-028-00 with R.P. Laurain & Associates, Inc.; and
e) Agreement No. 22-31-029-00 with Santolucito Dorè Group, Inc.
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize and
execute the agreements, on behalf of the Commission;
3) Authorize the Executive Director, or designee, to execute task orders awarded to the
consultants under the terms of the agreements; and
4) Forward to the Commission for final action
BACKGROUND INFORMATION:
Appraisal services are necessary to support the Right of Way department’s Commission projects,
future Measure A highway and rail projects, as well as projects for the Western Riverside County
Regional Conservation Authority (RCA), for which the Commission is the managing agency as of
January 1, 2021.
Federal and state regulations require that before the initiation of negotiations with property
owners, the public agency shall establish an amount that it believes is just compensation and/or
the fair market value for the property. To comply with regulations, the Commission can either
hire staff appraisers or establish a list of on-call appraisers. Staff recommends the latter.
Awarding contracts for on-call appraisal services with the work to be issued on an as-needed task
order basis has worked well for the Commission in the past, and staff recommends continuing
32
Agenda Item 8
that practice. Due to the amount of potential appraisal services required, staff determined an
award to several firms was in the Commission’s best interest.
Procurement Process
Staff determined the weighted factor method of source selection to be the most appropriate for
this procurement, as it allows the Commission to identify the most advantageous proposal with
price and other factors considered. Non-price factors include elements such as qualifications of
firm and personnel and understanding and approach for on-call right of way appraisal services as
set forth under the terms of Request for Proposals (RFP) No. 22-31-009-00.
RFP No. 22-31-009-00 for on-call right of way appraisal services was released by staff on
September 21, 2021. The RFP was posted on the Commission’s Planet Bids website, which is
accessible through the Commission’s website. Through Planet Bids, 21 firms downloaded the
RFP; 7 of these firms are located in Riverside County. Staff responded to all questions submitted
by potential proposers prior to the October 5, 2021, clarification deadline. Nine firms – Curtis
Rosenthal, Inc. (Los Angeles); Epic Land Solutions, Inc. (Riverside); Hawran & Malm, LLC (Newport
Beach); Hennessey & Hennessey, LLC (Tustin); Integra Realty Resources – Los Angeles (Encino);
Michael J. Francis (Newport Beach); R.P. Laurain & Associates, Inc. (Long Beach); Santolucito Dorè
Group, Inc. (Canyon Lake); and Thomas M. Pike, Jr., MAI (Coto De Caza) – submitted responsive
and responsible proposals prior to the 2:00 p.m. submittal deadline on October 21, 2021. Based
on the evaluation criteria set forth in the RFP, the firms were evaluated and scored by an
evaluation committee comprised of Commission staff.
As a result of the evaluation committee’s assessment of the written proposals, the evaluation
committee determined five firms – Hawran & Malm, LLC; Hennessey & Hennessey, LLC; Integra
Realty Resources – Los Angeles; R.P. Laurain & Associates, Inc.; and Santolucito Dorè Group, Inc.
– to be the most qualified firms to provide on-call right of way appraisal services. The evaluation
committee recommends contract awards to these five firms for a three-year term, in the
aggregate amount of $1 million, as these firms earned the highest total evaluation scores.
The multiple award, on-call, indefinite delivery/indefinite quantity task order type contracts do
not guarantee work to any of the awardees; therefore, no funds are guaranteed to any
consultant. Pre-qualified consultants will be selected for specific tasks based on qualification
information contained in their proposals and/or competitive fee proposals for the specific tasks.
Services will be provided through the Commission’s issuance of contract task orders to the
consultants on an as-needed basis.
The Commission’s model on-call professional services agreement will be entered into with each
consultant firm. Staff recommends the Commission authorize the Chair or Executive Director,
pursuant to legal counsel review, to finalize and execute the agreements on behalf of the
Commission and the Executive Director, or designee, to execute task orders awarded to the
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Agenda Item 8
consultants under the terms of the agreements. Staff oversight of the contracts and task orders
will maximize the effectiveness of the consultants and minimize costs to the Commission.
Financial Information
In Fiscal Year Budget: Yes
N/A Year: FY 2021/22
FY 2022/23+ Amount: $150,000
$850,000
Source of Funds:
2009 Measure A, State Transportation
Improvement Program, various Federal,
and Transportation Uniform Mitigation
Fees, RCA reimbursements
Budget Adjustment: No
N/A
GL/Project Accounting No.:
623999 81403 00014 0000 262 31 81403
654199 81403 00014 0000 265 33 81403
r22001 81403 00014 0000 750 68 81403
Fiscal Procedures Approved: Date: 11/15/2021
Attachments:
1) Draft On-Call Professional Services Agreement 22-31-009-00 with Hawran & Malm, LLC
2) Draft On-Call Professional Services Agreement 22-31-026-00 with Hennessey & Hennessey,
LLC
3) Draft On-Call Professional Services Agreement 22-31-027-00 with Integra Realty Resources –
Los Angeles
4) Draft On-Call Professional Services Agreement 22-31-028-00 with R.P. Laurain & Associates,
Inc.
5) Draft On-Call Professional Services Agreement 22-31-029-00 with Santolucito Dorè Group,
Inc.
34
Agreement No. 22-31-009-00
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA AND FTA FUNDING ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
HAWRAN & MALM, LLC
FOR ON-CALL
RIGHT OF WAY APPRAISAL SERVICES
Parties and Date.
This Agreement is made and entered into this ___ day of _______, 2021,
by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the
Commission") and HAWRAN & MALM, LLC ("Consultant"), a Limited Liability
Company. The Commission and Consultant are sometimes referred to herein
individually as “Party”, and collectively as the “Parties”.
Recitals.
A.On November 8, 1988, the Voters of Riverside County approved Measure
A authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax
(the "tax") to fund transportation programs and improvements within the County of
Riverside, and adopting the Riverside County Transportation Improvement Plan (the
"Plan").
B.Pursuant to Public Utility Code Sections 240000 et seq., the Commission is
authorized to allocate the proceeds of the Tax in furtherance of the Plan.
C.On November 5, 2002, the voters of Riverside County approved an
extension of the Measure A tax for an additional thirty (30) years for the continued funding
of transportation and improvements within the County of Riverside.
D.A source of funding for payment for on-call professional appraisal services
provided under this Agreement may be Federal Highway Administration (“FHWA”) funds
administered by the California Department of Transportation (“Caltrans”), and/or funds
from the Federal Transit Administration (“FTA”). This Commission may withhold payment
of any federal funds hereunder until the certification shown in Exhibit “F” attached hereto
and incorporated herein by reference, is executed.
E.Consultant desires to perform and assume responsibility for the provision
of certain on-call right of way appraisal services for projects in the County of Riverside,
California. Services shall be provided on the terms and conditions set forth in this
Agreement and in the task order(s) to be solicited, awarded and authorized by
Commission as further described in this Agreement (“Task Order”). Consultant
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represents that it is experienced in providing such services to public clients, is licensed in
the State of California (if necessary) and is familiar with the plans of the Commission.
G. Commission desires to engage Consultant to render such services on an
on-call basis. Services shall be ordered by Task Order(s) to be issued pursuant to this
Agreement for future projects as set forth herein and in each Task Order (each such
project shall be designated a “Project” under this Agreement).
Terms.
1. General Scope of Services. Consultant shall furnish all technical and
professional services, including labor, material, equipment, transportation, supervision
and expertise, and incidental and customary work necessary to fully and adequately
supply the on-call right of way appraisal services for the Projects ("Services"). The
Services are generally described in Exhibit "A" attached hereto and incorporated herein
by reference. The Services shall be more particularly described in the individual Task
Orders issued by the Commission’s Executive Director or designee. No Services shall
be performed unless authorized by a fully executed Task Order. All Services shall be
subject to, and performed in accordance with, this Agreement, the relevant Task Order,
the exhibits attached hereto and incorporated herein by reference, and all applicable
local, state and federal laws, rules and regulations.
2. Task Orders; Commencement of Services; Schedule of Services. Services
under this Agreement shall be requested by the Commission pursuant to Task Order
requests. If Commission accepts Consultant’s Task Order proposal, Commission shall
issue a purchase order or executed task order for the Services (“Commission’s Task
Order Authorization”). Consultant’s agreement to the final terms of a proposed Task
Order, Commission’s Task Order Authorization and Consultant’s commencement of the
Services shall indicate the Parties’ agreement to the terms of the relevant Task Order.
Consultant shall commence Services under a Task Order within five (5)
days of receiving Commission’s Task Order Authorization.
Consultant shall perform the Services expeditiously, in accordance with the
Schedule of Services set forth in a Task Order. Consultant represents that it has the
professional and technical personnel required to perform the Services in conformance
with such conditions. In order to facilitate Consultant's conformance with the Schedule,
Commission shall respond to Consultant's submittals in a timely manner. Upon request
of the Commission, Consultant shall provide a more detailed schedule of anticipated
performance to meet the Schedule of Services.
3. Pre-Award Audit. As a result of the funding for this Project, and to the extent
Caltrans procedures apply in connection therewith, issuance of a “Notice to Proceed” or
other authorization to proceed under a Task Order may be contingent upon completion
and approval of a pre-award audit. Any questions raised during the pre-award audit shall
be resolved before Services are commenced under a Task Order. The funding provided
under this Agreement is contingent on meeting all funding requirements and could be
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withdrawn, thereby entitling the Commission to terminate this Agreement, if the
procedures are not completed. The Consultant’s files shall be maintained in a manner to
facilitate State process reviews. In addition, Caltrans may require that prior to
performance of any work for which funding reimbursement through Caltrans is requested
and provided, that Caltrans must give to Commission an “Authorization to Proceed”.
4. Audit Procedures.
4.1 Consultant and certain subconsultant contracts, including cost
proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract
audit, an incurred cost audit, an Independent Cost Review (ICR) Audit, or a CPA ICR
audit work paper review. If selected for audit or review, this Agreement, Consultant’s cost
proposal and ICR and related work papers, if applicable, will be reviewed to verify
compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances
of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal,
state, or local government officials are allowed full access to the CPA’s work papers
including making copies as necessary. This Agreement, Consultant’s cost proposal, and
ICR shall be adjusted by Consultant and approved by the Commission’s contract
manager to conform to the audit or review recommendations. Consultant agrees that
individual terms of costs identified in the audit report shall be incorporated into this
Agreement by this reference if directed by Commission at its sole discretion. Refusal by
Consultant to incorporate audit or review recommendations, or to ensure that the federal,
state or local governments have access to CPA work papers, will be considered a breach
of the Agreement terms and cause for termination of this Agreement and disallowance
of prior reimbursed costs. Additional audit provisions applicable to this Agreement are
set forth in Sections 22 and 23 of this Agreement.
Section 4.2 and 4.3 shall apply to the extent applicable to the Task Order and funding
source.
4.2 During any Caltrans’ review of the ICR audit work papers created
by the Consultant’s independent CPA, Caltrans will work with the CPA and/or Consultant
toward a resolution of issues that arise during the review. Each party agrees to use its
best efforts to resolve any audit disputes in a timely manner. If Caltrans identifies
significant issues during the review and is unable to issue a cognizant approval letter,
Commission will reimburse the Consultant at an accepted ICR until a FAR (Federal
Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally
Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in
accordance with procedures and guidelines of the American Association of State
Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable
procedures and guidelines is received and approved by Caltrans.
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted
rate reimbursed will be ninety percent (90%) of the proposed rate.
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b. If the proposed rate is between one hundred fifty percent (150%) and two hundred
percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted
rate will be seventy-five percent (75%) of the proposed rate.
4.3 If Caltrans is unable to issue a cognizant letter per Section 4.2
above, Caltrans may require Consultant to submit a revised independent CPA-audited
ICR and audit report within three (3) months of the effective date of the Caltrans’
management letter. Caltrans will then have up to six (6) months to review the
Consultant’s and/or the independent CPA’s revisions.
If the Consultant fails to comply with the provisions of this Section 4, or if
Caltrans is still unable to issue a cognizant approval letter after the revised independent
CPA audited ICR is submitted, overhead cost reimbursement will be limited to the
accepted ICR that was established upon initial rejection of the ICR and set forth in
Section 4.2 above for all rendered services. In this event, this accepted ICR will become
the actual and final ICR for reimbursement purposes under this Agreement.
Consultant may submit to Commission final invoice only when all of the
following items have occurred: (1) Caltrans accepts or adjusts the original or revised
independent CPA audited ICR; (2) all work under this Agreement has been completed
to the satisfaction of Commission; and (3) Caltrans has issued its final ICR review letter.
The Consultant must submit its final invoice to Commission no later than sixty (60)
calendar days after occurrence of the last of these items. The accepted ICR will apply
to this Agreement and all Task Orders issued under this Agreement, and all other
agreements executed between the Commission and the Consultant, either as a prime or
subconsultant, with the same fiscal period ICR.
5. Term.
5.1 This Agreement shall go into effect on the date first set forth above,
contingent upon approval by Commission, and Consultant shall commence work after
notification to proceed by Commission’s Contract Administrator. This Agreement shall
end on December 31, 2025, unless extended by contract amendment.
Notwithstanding the foregoing, Caltrans and/or FHWA funded Task Orders
shall be completed within thirty-six (36) months of the Effective Date, unless approval of
Caltrans is obtained from the Commission.
5.2 Consultant is advised that any recommendation for contract award
is not binding on Commission until this Agreement is fully executed and approved by the
Commission.
5.3 This Agreement shall remain in effect until the date set forth above,
unless earlier terminated as provided herein. Consultant shall complete the Services
within the term of this Agreement, and shall meet any other established schedules and
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deadlines. All applicable indemnification provisions of this Agreement shall remain in
effect following the termination of this Agreement.
6. Commission's Contract Administrator. The Commission hereby designates
the Commission's Executive Director, or his or her designee, to act as its Contract
Administrator for the performance of this Agreement ("Commission’s Contract
Administrator"). Commission’s Contract Administrator shall have the authority to act on
behalf of the Commission for all purposes under this Agreement. Commission’s Contract
Administrator shall also review and give approval, as needed, to the details of
Consultant's work as it progresses. Consultant shall not accept direction or orders from
any person other than the Commission’s Contract Administrator or his or her designee.
7. Consultant's Representative. Consultant hereby Sydney H. Hawran to act
as its Representative for the performance of this Agreement ("Consultant’s
Representative"). Consultant's Representative shall have full authority to act on behalf
of Consultant for all purposes under this Agreement. The Consultant’s Representative
shall supervise and direct the Services, using his or her professional skill and attention,
and shall be responsible for all means, methods, techniques, sequences and procedures
and for the satisfactory coordination of all portions of the Services under this Agreement.
Consultant shall work closely and cooperate fully with Commission’s Contract
Administrator and any other agencies which may have jurisdiction over, or an interest in,
the Services. Consultant's Representative shall be available to the Commission staff at
all reasonable times. Any substitution in Consultant's Representative shall be approved
in writing by Commission’s Contract Administrator.
8. Substitution of Key Personnel. Consultant has represented to the
Commission that certain key personnel will perform and coordinate the Services under
this Agreement. Should one or more of such personnel become unavailable, Consultant
may substitute other personnel of at least equal competence upon written approval by the
Commission. In the event that the Commission and Consultant cannot agree as to the
substitution of the key personnel, the Commission shall be entitled to terminate this
Agreement for cause, pursuant to the provisions herein. The key personnel for
performance of this Agreement are: Sydney H. Hawran, James C. Malm, or as
otherwise identified in the Task Order.
9. Standard of Care; Licenses. Consultant represents and maintains that it is
skilled in the professional calling necessary to perform all Services, duties and obligations
required by this Agreement to fully and adequately complete the Project. Consultant shall
perform the Services and duties in conformance to and consistent with the standards
generally recognized as being employed by professionals in the same discipline in the
State of California. Consultant warrants that all employees and subcontractors shall have
sufficient skill and experience to perform the Services assigned to them. Consultant
further represents and warrants to the Commission that its employees and subcontractors
have all licenses, permits, qualifications and approvals of whatever nature that are legally
required to perform the Services, and that such licenses and approvals shall be
maintained throughout the term of this Agreement. Consultant shall perform, at its own
cost and expense and without reimbursement from the Commission, any services
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necessary to correct errors or omissions which are caused by the Consultant’s failure to
comply with the standard of care provided for herein, and shall be fully responsible to the
Commission for all damages and other liabilities provided for in the indemnification
provisions of this Agreement arising from the Consultant’s errors and omissions. Any
employee of Consultant or its sub-consultants who is determined by the Commission to
be uncooperative, incompetent, a threat to the adequate or timely completion of the
Project, a threat to the safety of persons or property, or any employee who fails or refuses
to perform the Services in a manner acceptable to the Commission, shall be promptly
removed from the Project by the Consultant and shall not be re-employed to perform any
of the Services or to work on the Project.
10. Independent Contractor. The Services shall be performed by Consultant or
under its supervision. Consultant will determine the means, methods and details of
performing the Services subject to the requirements of this Agreement. Commission
retains Consultant on an independent contractor basis and not as an employee, agent or
representative of the Commission. Consultant retains the right to perform similar or
different services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Consultant shall at all times
be under Consultant's exclusive direction and control. Consultant shall pay all wages,
salaries and other amounts due such personnel in connection with their performance of
Services and as required by law. Consultant shall be responsible for all reports and
obligations respecting such personnel, including but not limited to, social security taxes,
income tax withholdings, unemployment insurance, disability insurance, and workers'
compensation insurance.
11. Project Progress.
11.1 Modification of the Schedule. Consultant shall regularly report to
the Commission, through correspondence or progress reports, its progress in providing
required Services within the scheduled time periods. Commission shall be promptly
informed of all anticipated delays. In the event that Consultant determines that a
schedule modification is necessary, Consultant shall promptly submit a revised Schedule
of Services for approval by Commission’s Contract Administrator.
11.2 Trend Meetings. Consultant shall conduct trend meetings with the
Commission’s Contract Administrator and other interested parties, as requested by the
Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a
standard day and time. These trend meetings will encompass focused and informal
discussions concerning scope, schedule, and current progress of Services, relevant cost
issues, and future Project objectives. Consultant shall be responsible for the preparation
and distribution of meeting agendas to be received by the Commission and other
attendees no later than three (3) working days prior to the meeting.
11.3 Progress Reports. As part of its monthly invoice, Consultant shall
submit a progress report, in a form determined by the Commission, which will indicate
the progress achieved during the previous month in relation to the Schedule of Services.
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Submission of such progress report by Consultant shall be a condition precedent to
receipt of payment from the Commission for each monthly invoice submitted.
12. Delay in Performance.
12.1 Excusable Delays. Should Consultant be delayed or prevented
from the timely performance of any act or Services required by the terms of the
Agreement by reason of acts of God or of the public enemy, acts or omissions of the
Commission or other governmental agencies in either their sovereign or contractual
capacities, fires, floods, pandemics, epidemics, quarantine restrictions, strikes, freight
embargoes or unusually severe weather, performance of such act shall be excused for
the period of such delay.
12.2 Written Notice. If Consultant believes it is entitled to an extension
of time due to conditions set forth in subsection 12.1, Consultant shall provide written
notice to the Commission within seven (7) working days from the time Consultant knows,
or reasonably should have known, that performance of the Services will be delayed due
to such conditions. Failure of Consultant to provide such timely notice shall constitute a
waiver by Consultant of any right to an excusable delay in time of performance.
12.3 Mutual Agreement. Performance of any Services under this
Agreement may be delayed upon mutual agreement of the Parties. Upon such
agreement, Consultant's Schedule of Services shall be extended as necessary by the
Commission. Consultant shall take all reasonable steps to minimize delay in completion,
and additional costs, resulting from any such extension.
13. Preliminary Review of Work. All reports, working papers, and similar work
products prepared for submission in the course of providing Services under this
Agreement shall be submitted to the Commission’s Contract Administrator in draft form,
and the Commission may require revisions of such drafts prior to formal submission and
approval. In the event plans and designs are to be developed as part of the Project, final
detailed plans and designs shall be contingent upon obtaining environmental clearance
as may be required in connection with Federal funding. In the event that Commission’s
Contract Administrator, in his or her sole discretion, determines the formally submitted
work product to be not in accordance with the standard of care established under this
Agreement, Commission’s Contract Administrator may require Consultant to revise and
resubmit the work at no cost to the Commission.
14. Appearance at Hearings. If and when required by the Commission,
Consultant shall render assistance at public hearings or other meetings related to the
Project or necessary to the performance of the Services. However, Consultant shall not
be required to, and will not, render any decision, interpretation or recommendation
regarding questions of a legal nature or which may be construed as constituting a legal
opinion.
15. Opportunity to Cure; Inspection of Work. Commission may provide
Consultant an opportunity to cure, at Consultant's expense, all errors and omissions
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which may be disclosed during Project implementation. Should Consultant fail to make
such correction in a timely manner, such correction may be made by the Commission,
and the cost thereof charged to Consultant. Consultant shall allow the Commission’s
Contract Administrator and Caltrans to inspect or review Consultant's work in progress at
any reasonable time.
16. Final Acceptance. Upon determination by the Commission that Consultant
has satisfactorily completed the Services required under this Agreement and within the
term set forth herein the Commission shall give Consultant a written Notice of Final
Acceptance. Upon receipt of such notice, Consultant shall incur no further costs
hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may
request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily
completed all Services required under the terms of this Agreement. In the event
copyrights are permitted under this Agreement, then in connection with Federal funding,
it is hereby acknowledged and agreed that the United States Department of
Transportation shall have the royalty-free non-exclusive and irrevocable right to
reproduce, publish, or otherwise use, and to authorize others to use, the work for
governmental purposes.
17. Laws and Regulations. Consultant shall keep itself fully informed of and in
compliance with all local, state and federal laws, rules and regulations in any manner
affecting the performance of the Project or the Services, including all Cal/OSHA
requirements, and shall give all notices required by law. For example, and not by way of
limitation, Consultant shall keep itself fully informed of and in compliance with all
implementing regulations, design standards, specifications, previous commitments that
must be incorporated in the design of the Project, and administrative controls including
those of the United States Department of Transportation. Compliance with Federal
procedures may include completion of the applicable environmental documents and
approved by the United States Department of Transportation. For example, and not by
way of limitation, a signed Categorical Exclusion, Finding of No Significant Impact, or
published Record of Decision may be required to be approved and/or completed by the
United States Department of Transportation. For Consultant shall be liable for all
violations of such laws and regulations in connection with Services. If the Consultant
performs any work knowing it to be contrary to such laws, rules and regulations and
without giving written notice to the Commission, Consultant shall be solely responsible
for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission,
its officials, directors, officers, employees and agents free and harmless, pursuant to the
indemnification provisions of this Agreement, from any claim or liability arising out of any
failure or alleged failure to comply with such laws, rules or regulations.
18. Fees and Payment.
18.1 The method of payment for this Agreement will be based on actual
cost. Commission shall reimburse Consultant for actual costs (including labor costs,
employee benefits, travel, equipment rental costs, overhead and other direct costs)
incurred by Consultant in performance of the Services. Consultant shall not be
reimbursed for actual costs that exceed the estimated wage rates, employee benefits,
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travel, equipment rental, overhead, and other estimated costs set forth in the approved
Consultant cost proposal attached hereto as Exhibit “B” and incorporated herein by
reference, or any cost proposal included as part of a Task Order (“Cost Proposal”) unless
additional reimbursement is provided for by written amendment. In no event, shall
Consultant be reimbursed for overhead costs at a rate that exceeds Commission’s
approved overhead rate set forth in the Cost Proposal. To the extent legally permissible,
Consultant’s approved overhead rate shall be fixed for the term of this Agreement. In the
event that Commission determines that a change to the Services from that specified in
the Cost Proposal, this Agreement or any Task Order is required, the Agreement time or
actual costs reimbursable by Commission shall be adjusted by written amendment to
accommodate the changed work. The maximum total cost as specified in Section 18.8
shall not be exceeded, unless authorized by a written amendment.
18.2 Reimbursement for transportation and subsistence costs shall not
exceed the rates specified in the approved Cost Proposal. In addition, payments to
Consultant for travel and subsistence expenses claimed for reimbursement or applied
as local match credit shall not exceed rates authorized to be paid exempt non-
represented State employees under current State Department of Personnel
Administration (DPA) rules, unless otherwise authorized by Commission. If the rates
invoiced are in excess of those authorized DPA rates, and Commission has not
otherwise approved said rates, then Consultant is responsible for the cost difference and
any overpayments shall be reimbursed to the Commission on demand.
18.3 When milestone cost estimates are included in the approved Cost
Proposal for a Task Order, Consultant shall obtain prior written approval for a revised
milestone cost estimate from the Contract Administrator before exceeding such cost
estimate.
18.4 Progress payments shall be made monthly in arrears based on
Services provided and allowable incurred costs. If Consultant fails to submit the required
deliverable items according to the schedule set forth in the Scope of Services,
Commission shall have the right to delay payment or terminate this Agreement in
accordance with the provisions of Section 20, Termination.
18.5 No payment shall be made prior to approval of any Services, nor for
any Services performed prior to approval of this Agreement.
18.6 Consultant shall be reimbursed, as promptly as fiscal procedures
will permit upon receipt by Commission’s Contract Administrator of itemized invoices in
triplicate. Invoices shall be submitted no later than 45 calendar days after the
performance of work for which Consultant is billing. Invoices shall detail the work
performed on each milestone and each project as applicable. Invoices shall follow the
format stipulated for the approved Cost Proposal and shall reference this Agreement
number and project title. Final invoice must contain the final cost and all credits due
Commission including any equipment purchased under the Equipment Purchase
provisions of this Agreement. The final invoice should be submitted within 60 calendar
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days after completion of Consultant’s work. Invoices shall be mailed to Commission’s
Contract Administrator at the following address:
Riverside County Transportation Commission
Attention: Accounts Payable
P.O. 12008
Riverside, CA 92502
18.7 The total amount payable by Commission, shall not exceed the
amount set forth in each Task Order.
18.8 Commission has or will enter into five (5) task order contracts for
performance of the Scope of Services identified in Exhibit “A”, including this Agreement
(“On-Call ROW Appraisal Task Order Contracts”). The other On-Call ROW Appraisal
Task Order Contracts are Hennessey & Hennessey, LLC, 22-31-026-00; Integra Realty
Resources – Los Angeles, 22-31-027-00; R.P. Laurain & Associates, Inc., 22-31-028-
00; and Santolucito Dorè Group, Inc., 22-31-029-00. The total amount payable by
Commission for the On-Call ROW Appraisal Task Order Contracts shall not exceed a
cumulative maximum total value of One Million Dollars ($1,000,000) (“NTE Sum”). It is
understood and agreed that there is no guarantee, either expressed or implied that this
dollar amount will be authorized under the On-Call ROW Appraisal Task Order Contracts
through Task Orders. Each time a Task Order is awarded under any of the On-Call ROW
Appraisal Task Order Contracts, Commission must send written notification to
Consultant and each of the other consultants entering into the On-Call ROW Appraisal
Task Order Contracts. The notice must identify the total funds allocated under issued
Task Orders, and the remaining unencumbered amount of the NTE Sum. Consultant
acknowledges and agrees that Commission must not pay any amount under this
Agreement that would exceed the NTE Sum, and Consultant must not enter into a Task
Order that exceeds the NTE Sum.
18.9 Salary increases shall be reimbursable if the new salary is within the
salary range identified in the approved Cost Proposal and is approved by Commission’s
Contract Administrator. For personnel subject to prevailing wage rates as described in
the California Labor Code, all salary increases, which are the direct result of changes in
the prevailing wage rates are reimbursable.
18.10 Consultant shall not be reimbursed for any expenses unless
authorized in writing by the Commission’s Contract Administrator.
18.11 All subcontracts in excess of $25,000 shall contain the above
provisions.
19. Disputes.
19.1 Any dispute, other than audit, concerning a question of fact arising
under this Agreement that is not disposed of by mutual agreement of the Parties shall
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be decided by a committee consisting of RCTC’s Contract Administrator and the Director
of Capital Projects, who may consider written or verbal information submitted by
Consultant.
19.2 Not later than 30 days after completion of all Services under this
Agreement, Consultant may request review by the Commission’s Executive Director of
unresolved claims or disputes, other than audit. The request for review will be submitted
in writing.
19.3 Neither the pendency of a dispute, nor its consideration by the
committee will excuse Consultant from full and timely performance in accordance with
the terms of this Agreement.
20. Termination.
20.1 Commission reserves the right to terminate this Agreement upon
thirty (30) calendar days written notice to Consultant, for any or no reason, with the
reasons for termination stated in the notice. Commission may terminate Services under
a Task Order, at any time, for any or no reason, with the effective date of termination to
be specified in the notice of termination of Task Order.
20.2 Commission may terminate this Agreement with Consultant should
Consultant fail to perform the covenants herein contained at the time and in the manner
herein provided. In the event of such termination, Commission may proceed with the
Services in any manner deemed proper by Commission. If Commission terminates this
Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant
under this Agreement for Services completed and accepted prior to termination, unless
the cost of completion to Commission exceeds the funds remaining in the Agreement. In
such case, the overage shall be deducted from any sum due Consultant under this
Agreement and the balance, if any, shall be paid to Consultant upon demand.
20.3 In addition to the above, payment upon termination shall include a
prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit
on unperformed Services. Consultant shall provide documentation deemed adequate by
Commission’s Contract Administrator to show the Services actually completed by
Consultant prior to the effective date of termination. This Agreement shall terminate on
the effective date of the Notice of Termination
20.4 Upon receipt of the written Notice of Termination, Consultant shall
discontinue all affected Services as directed in the Notice or as otherwise provided
herein, and deliver to the Commission all Documents and Data, as defined in this
Agreement, as may have been prepared or accumulated by Consultant in performance
of the Services, whether completed or in progress.
20.5 In addition to the above, Consultant shall be liable to the
Commission for any reasonable additional costs incurred by the Commission to revise
work for which the Commission has compensated Consultant under this Agreement, but
which the Commission has determined in its sole discretion needs to be revised, in part
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or whole, to complete the Project because it did not meet the standard of care
established in this Agreement. Termination of this Agreement for cause may be
considered by the Commission in determining whether to enter into future agreements
with Consultant.
20.6 The rights and remedies of the Parties provided in this Section are
in addition to any other rights and remedies provided by law or under this Agreement.
20.7 Consultant, in executing this Agreement, shall be deemed to have
waived any and all claims for damages which may otherwise arise from the
Commission's termination of this Agreement, for convenience or cause, as provided in
this Section.
20.8 Consultant may not terminate this Agreement except for cause
20.9 In addition to the termination rights above, Commission may
temporarily suspend the Services under any Task Order(s), at no additional cost to
Commission, provided that Consultant is given written notice of temporary suspension.
If Commission gives such notice of temporary suspension, Consultant shall immediately
suspend its activities under the relevant Task Order(s). A temporary suspension may
be issued concurrent with a notice of termination.
21. Cost Principles and Administrative Requirements.
21.1 Consultant agrees that the Contract Cost Principles and
Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000
et seq., shall be used to determine the cost allowability of individual items.
21.2 Consultant also agrees to comply with federal procedures in
accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards.
21.3 Any costs for which payment has been made to CONSULTANT that
are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48
CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are
subject to repayment by Consultant to Commission.
21.4 All subcontracts in excess of $25,000 shall contain the above
provisions.
22. Retention of Records/Audit. For the purpose of determining compliance
with, as applicable, 2 CFR Part 200, Public Contract Code 10115, et seq. and Title 21,
California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and
other matters connected with the performance of this Agreement pursuant to Government
Code 8546.7; Consultant, subconsultants, and Commission shall maintain and make
available for inspection all books, documents, papers, accounting records, and other
evidence pertaining to the performance of this Agreement, including but not limited to, the
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costs of administering this Agreement. All parties shall make such materials available at
their respective offices at all reasonable times during the Agreement period and for three
years from the date of final payment under this Agreement. The State, State Auditor,
Commission, or any duly authorized representative of the State or Federal Government
shall have access to any books, records, and documents of Consultant and it’s certified
public accountants (CPA) work papers that are pertinent to this Agreement and, if
applicable, indirect cost rates (ICR) for audit, examinations, excerpts, and transactions,
and copies thereof shall be furnished if requested. Subcontracts in excess of $25,000
shall contain this provision.
23.1 Accounting System. Consultant and its subcontractors shall
establish and maintain an accounting system and records that properly accumulate and
segregate expenditures by line item for the Services. The accounting system of
Consultant and its subcontractors shall conform to Generally Accepted Accounting
Principles (GAAP), enable the determination of incurred costs at interim points of
completion, and provide support for reimbursement payment vouchers or invoices.
23. Audit Review Procedures.
23.1 Any dispute concerning a question of fact arising under an interim
or post audit of this Agreement that is not disposed of by agreement, shall be reviewed
by Commission’s Chief Financial Officer.
23.2 Not later than 30 days after issuance of the final audit report,
Consultant may request a review by Commission’s Chief Financial Officer of unresolved
audit issues. The request for review will be submitted in writing.
23.3 Neither the pendency of a dispute nor its consideration by
Commission shall excuse Consultant from full and timely performance, in accordance
with the terms of this Agreement.
24. Subcontracting.
24.1 Nothing contained in this Agreement or otherwise, shall create any
contractual relation between Commission and any subconsultant(s), and no subcontract
shall relieve Consultant of its responsibilities and obligations hereunder. Consultant
agrees to be as fully responsible to Commission for the acts and omissions of its
subconsultant(s) and of persons either directly or indirectly employed by any of them as
it is for the acts and omissions of persons directly employed by Consultant. Consultant’s
obligation to pay its subconsultant(s) is an independent obligation from Commission’s
obligation to make payments to the Consultant.
24.2 Consultant shall perform the Services contemplated with resources
available within its own organization and no portion of the Services pertinent to this
Agreement shall be subcontracted without written authorization by Commission’s
Contract Administrator, except that, which is expressly identified in the approved Cost
Proposal.
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24.3 Consultant shall pay its subconsultants within ten (10) calendar
days from receipt of each payment made to Consultant by Commission.
24.4 Any subcontract in excess of $25,000 entered into as a result of this
Agreement shall contain all the provisions stipulated in this Agreement to be applicable
to subconsultants.
24.5 Any substitution of subconsultant(s) must be approved in writing by
Commission’s Contract Administrator prior to the start of work by the subconsultant(s).
24.6 Exhibit “B” may set forth the rates at which each subconsultant shall
bill the Consultant for Services and that are subject to reimbursement by the Commission
to Consultant. Additional Direct Costs, as defined in Exhibit “B” shall be the same for
both the Consultant and all subconsultants, unless otherwise identified in Exhibit “B” or
in a Task Order. The subconsultant rate schedules and cost proposals contained herein
are for accounting purposes only.
25. Equipment Purchase
25.1 Prior authorization, in writing, by Commission’s Contract
Administrator shall be required before Consultant enters into any unbudgeted purchase
order, or subcontract for supplies, equipment, or services. Consultant shall provide an
evaluation of the necessity or desirability of incurring such costs.
25.2 For purchase of any item, service or consulting work not covered in
the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s
Contract Administrator is required. Three competitive quotations must be submitted with
the request for such purchase, or the absence of bidding must be adequately justified.
25.3 Any equipment purchased as a result of this Agreement is subject
to the following: Consultant shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an
acquisition cost of $5,000 or more. If the purchased equipment needs replacement and
is sold or traded in, Commission shall receive a proper refund or credit at the conclusion
of this Agreement, or if this Agreement is terminated, Consultant may either keep the
equipment and credit Commission in an amount equal to its fair market value, or sell
such equipment at the best price obtainable at a public or private sale, in accordance
with established Commission procedures; and credit Commission in an amount equal to
the sales price. If Consultant elects to keep the equipment, fair market value shall be
determined at Consultant’s expense, on the basis of a competent independent appraisal
of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable
to by Commission and Consultant. If Consultant determines to sell the equipment, the
terms and conditions of such sale must be approved in advance by Commission. 2 CFR,
Part 200 requires a credit to Federal funds when participating equipment with a fair
market value greater than $5,000 is credited to the Project.
25.4 All subcontracts in excess $25,000 shall contain the above
provisions.
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26. Labor Code Requirements.
26.1 By its execution of this Agreement, Consultant certifies that it is
aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et
seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing
Wage Laws”), which require the payment of prevailing wage rates and the performance
of other requirements on certain “public works” and “maintenance” projects. If the
Services are being performed as part of an applicable “public works” or “maintenance”
project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000
or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Copies of
the prevailing rate of per diem wages are on file at the Commission’s offices. Consultant
shall make copies of the prevailing rates of per diem wages for each craft, classification
or type of worker needed to execute the Services available to interested parties upon
request, and shall post copies at the Consultant’s principal place of business and at the
project site. Consultant shall defend, indemnify and hold the Commission, its elected
officials, officers, employees and agents free and harmless from any claims, liabilities,
costs, penalties or interest arising out of any failure or alleged failure to comply with the
Prevailing Wage Laws.
26.2 DIR Registration. If the Services are being performed as part of an
applicable “public works” or “maintenance” project, then pursuant to Labor Code
Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered
with the Department of Industrial Relations. Consultant shall maintain registration for the
duration of the Project and require the same of any subconsultants. This Project may
also be subject to compliance monitoring and enforcement by the Department of
Industrial Relations. It shall be Consultant’s sole responsibility to comply with all
applicable registration and labor compliance requirements.
26.3 Eight-Hour Law. Pursuant to the provisions of the California Labor
Code, eight hours of labor shall constitute a legal day’s work, and the time of service of
any worker employed on the work shall be limited and restricted to eight hours during
any one calendar day, and forty hours in any one calendar week, except when payment
for overtime is made at not less than one and one-half the basic rate for all hours worked
in excess of eight hours per day (“Eight-Hour Law”), unless Consultant or the Services
are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a
penalty, $50.00 for each worker employed in the execution of this Agreement by him, or
by any sub-consultant under him, for each calendar day during which such workman is
required or permitted to work more than eight hours in any calendar day and forty hours
in any one calendar week without such compensation for overtime violation of the
provisions of the California Labor Code, unless Consultant or the Services are not
subject to the Eight-Hour Law.
26.4 Employment of Apprentices. This Agreement shall not prevent the
employment of properly indentured apprentices in accordance with the California Labor
Code, and no employer or labor union shall refuse to accept otherwise qualified
employees as indentured apprentices on the work performed hereunder solely on the
ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice
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shall be paid the standard wage paid to apprentices under the regulations of the craft or
trade in which he or she is employed and shall be employed only in the craft or trade to
which he or she is registered.
If California Labor Code Section 1777.5 applies to the Services, Consultant and
any subcontractor hereunder who employs workers in any apprenticeable craft or trade
shall apply to the joint apprenticeship council administering applicable standards for a
certificate approving Consultant or any sub-consultant for the employment and training of
apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall
employ the number of apprentices provided for therein, as well as contribute to the fund
to administer the apprenticeship program in each craft or trade in the area of the work
hereunder.
The parties expressly understand that the responsibility for compliance with
provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California
Labor Code in regard to all apprenticeable occupations lies with Consultant.
27. Ownership of Materials/Confidentiality.
27.1 Documents & Data. This Agreement creates an exclusive and
perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all
copyrights and designs embodied in plans, specifications, studies, drawings, estimates,
materials, data and other documents or works of authorship fixed in any tangible medium
of expression, including but not limited to, physical drawings or data magnetically or
otherwise recorded on computer diskettes, which are prepared or caused to be prepared
by Consultant under this Agreement (“Documents & Data”).
Consultant shall require all subcontractors to agree in writing that
Commission is granted an exclusive and perpetual license for any Documents & Data the
subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal
right to grant the exclusive and perpetual license for all such Documents & Data.
Consultant makes no such representation and warranty in regard to Documents & Data
which were prepared by design professionals other than Consultant or provided to
Consultant by the Commission.
Commission shall not be limited in any way in its use of the
Documents & Data at any time, provided that any such use not within the purposes
intended by this Agreement shall be at Commission’s sole risk.
27.2 Intellectual Property. In addition, Commission shall have and retain
all right, title and interest (including copyright, patent, trade secret and other proprietary
rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer
programs or software and source code, enhancements, documents, and any and all
works of authorship fixed in any tangible medium or expression, including but not limited
to, physical drawings or other data magnetically or otherwise recorded on computer
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media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under
this Agreement as well as any other such Intellectual Property prepared or developed by
or on behalf of Consultant under this Agreement.
The Commission shall have and retain all right, title and interest in
Intellectual Property developed or modified under this Agreement whether or not paid for
wholly or in part by Commission, whether or not developed in conjunction with Consultant,
and whether or not developed by Consultant. Consultant will execute separate written
assignments of any and all rights to the above referenced Intellectual Property upon
request of Commission.
Consultant shall also be responsible to obtain in writing separate
written assignments from any subcontractors or agents of Consultant of any and all right
to the above referenced Intellectual Property. Should Consultant, either during or
following termination of this Agreement, desire to use any of the above-referenced
Intellectual Property, it shall first obtain the written approval of the Commission.
All materials and documents which were developed or prepared by
the Consultant for general use prior to the execution of this Agreement and which are not
the copyright of any other party or publicly available and any other computer applications,
shall continue to be the property of the Consultant. However, unless otherwise identified
and stated prior to execution of this Agreement, Consultant represents and warrants that
it has the right to grant the exclusive and perpetual license for all such Intellectual Property
as provided herein.
Commission further is granted by Consultant a non-exclusive and
perpetual license to copy, use, modify or sub-license any and all Intellectual Property
otherwise owned by Consultant which is the basis or foundation for any derivative,
collective, insurrectional, or supplemental work created under this Agreement.
27.3 Confidentiality. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents and Data either created by or provided to Consultant
in connection with the performance of this Agreement shall be held confidential by
Consultant. Such materials shall not, without the prior written consent of Commission,
be used by Consultant for any purposes other than the performance of the Services. Nor
shall such materials be disclosed to any person or entity not connected with the
performance of the Services or the Project. Nothing furnished to Consultant which is
otherwise known to Consultant or is generally known, or has become known, to the
related industry shall be deemed confidential. Consultant shall not use Commission's
name or insignia, photographs of the Project, or any publicity pertaining to the Services
or the Project in any magazine, trade paper, newspaper, television or radio production
or other similar medium without the prior written consent of Commission.
27.4 Infringement Indemnification. Consultant shall defend, indemnify
and hold the Commission, its directors, officials, officers, employees, volunteers and
agents free and harmless, pursuant to the indemnification provisions of this Agreement,
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for any alleged infringement of any patent, copyright, trade secret, trade name,
trademark, or any other proprietary right of any person or entity in consequence of the
use on the Project by Commission of the Documents & Data, including any method,
process, product, or concept specified or depicted.
28. Indemnification. To the fullest extent permitted by law, Consultant shall
defend, indemnify and hold Commission, Caltrans and their directors, officials, officers,
employees, consultants, volunteers, and agents free and harmless from any and all
claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in
law or equity, to property or persons, including wrongful death, inverse condemnation,
and any claims related to property acquisition and relocation rules or failure to detect or
abate hazardous materials, which are brought by a third party, and which , in any manner
arise out of or are incident to alleged negligent acts, omissions, or willful misconduct of
Consultant, its officials, officers, employees, agents, consultants, and contractors arising
out of or in connection with the performance of the Services, the Project or this
Agreement, including without limitation the payment of consequential damages, expert
witness fees, and attorney’s fees and other related costs and expenses. Consultant shall
defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits,
actions or other legal proceedings of every kind that may be brought or instituted against
Commission, Caltrans, and their directors, officials, officers, employees, consultants,
agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree
that may be rendered against Commission, Caltrans or their directors, officials, officers,
employees, consultants, agents, or volunteers, in any such suit, action or other legal
proceeding. Consultant shall reimburse Commission, Caltrans and their directors,
officials, officers, employees, consultants, agents, and/or volunteers, for any and all legal
expenses and costs, including reasonable attorney’s fees, incurred by each of them in
connection therewith or in enforcing the indemnity herein provided. Consultant's
obligation to indemnify shall not be restricted to insurance proceeds, if any, received by
Commission, Caltrans or their directors, officials officers, employees, consultants, agents,
or volunteers. Notwithstanding the foregoing, to the extent Consultant’s Services are
subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent
required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to
the negligence, recklessness, or willful misconduct of the Consultant. Consultant’s
obligations as set forth in this Section 28 shall survive expiration or termination of this
Agreement.
29. Insurance.
29.1 Time for Compliance. Consultant shall not commence work under
this Agreement until it has provided evidence satisfactory to the Commission that it has
secured all insurance required under this Section, in a form and with insurance
companies acceptable to the Commission. In addition, Consultant shall not allow any
subcontractor to commence work on any subcontract until it has secured all insurance
required under this Section.
29.2 Minimum Requirements. Consultant shall, at its expense, procure
and maintain for the duration of the Agreement insurance against claims for injuries to
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persons or damages to property which may arise from or in connection with the
performance of the Agreement by the Consultant, its agents, representatives, employees
or subcontractors. Consultant shall also require all of its subcontractors to procure and
maintain the same insurance for the duration of the Agreement. Such insurance shall
meet at least the following minimum levels of coverage:
(a) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent);
(2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA
0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and
Employer’s Liability: Workers’ Compensation insurance as required by the State of
California and Employer’s Liability Insurance.
(b) Minimum Limits of Insurance. Consultant shall maintain limits
no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form with
general aggregate limit is used, either the general aggregate limit shall apply separately
to this Agreement/location or the general aggregate limit shall be twice the required
occurrence limit. Limits may be achieved by any combination of primary and excess or
umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily
injury and property damage. Limits may be achieved by any combination of primary and
excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation limits as required by the Labor Code of the State of
California. Employer’s Practices Liability limits of $1,000,000 per accident.
29.3 Professional Liability. Consultant shall procure and maintain, and
require its sub-consultants to procure and maintain, for a period of five (5) years following
completion of the Project, errors and omissions liability insurance appropriate to their
profession. For Consultant, such insurance shall be in an amount not less than
$1,000,000 per claim. This insurance shall be endorsed to include contractual liability
applicable to this Agreement and shall be written on a policy form coverage specifically
designed to protect against acts, errors or omissions of the Consultant. “Covered
Professional Services” as designated in the policy must specifically include work
performed under this Agreement. The policy must “pay on behalf of” the insured and
must include a provision establishing the insurer's duty to defend. Subconsultants of
Consultant shall obtain such insurance in an amount not less than $1,000,000 per claim.
Notwithstanding the foregoing, the Commission may consider written requests to lower
or dispense with the errors and omissions liability insurance requirement contained in
this Section for certain subconsultants of Consultant, on a case-by-case basis,
depending on the nature and scope of the Services to be provided by the subconsultant.
Approval of such request shall be in writing, signed by the Commission’s Contract
Administrator.
29.4 Aircraft Liability Insurance. Prior to conducting any Services
requiring use of aircraft, Consultant shall procure and maintain, or cause to be procured
and maintained, aircraft liability insurance or equivalent form, with a single limit as shall
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be required by the Commission. Such insurance shall include coverage for owned, hired
and non-owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, Caltrans and their directors, officials, officers, employees and agents as
additional insureds with respect to the Services or operations performed by or on behalf
of the Consultant.
29.5 Insurance Endorsements. The insurance policies shall contain the
following provisions, or Consultant shall provide endorsements on forms approved by
the Commission to add the following provisions to the insurance policies:
(a) General Liability.
(i) Commercial General Liability Insurance must include
coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury;
(3) premises/operations liability; (4) products/completed operations liability; (5) aggregate
limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion
deleted; (7) contractual liability with respect to this Agreement; (8) broad form property
damage; and (9) independent consultants coverage.
(ii) The policy shall contain no endorsements or provisions
limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits
by one insured against another; or (3) contain any other exclusion contrary to this
Agreement.
(iii) The policy shall give the Commission, its directors,
officials, officers, employees, and agents insured status using ISO endorsement forms 20
10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the policy shall
be “primary and non-contributory” and will not seek contribution from the Commission’s
or Caltrans’ insurance or self-insurance and shall be at least as broad as CG 20 01 04
13, or endorsements providing the exact same coverage.
(b) Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) the Commission, Caltrans and their directors, officials, officers,
employees and agents shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned, leased,
hired or borrowed by the Consultant or for which the Consultant is responsible; and (2)
the insurance coverage shall be primary insurance as respects the Commission, Caltrans
and their directors, officials, officers, employees and agents, or if excess, shall stand in
an unbroken chain of coverage excess of the Consultant’s scheduled underlying
coverage. Any insurance or self-insurance maintained by the Commission, Caltrans and
their directors, officials, officers, employees and agents shall be excess of the
Consultant’s insurance and shall not be called upon to contribute with it in any way.
(c) Workers’ Compensation and Employers Liability Coverage.
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(i) Consultant certifies that he/she is aware of the
provisions of Section 3700 of the California Labor Code which requires every employer
to be insured against liability for workers’ compensation or to undertake self-insurance in
accordance with the provisions of that code, and he/she will comply with such provisions
before commencing work under this Agreement.
(ii) The insurer shall agree to waive all rights of
subrogation against the Commission, its directors, officials, officers, employees and
agents for losses paid under the terms of the insurance policy which arise from work
performed by the Consultant.
(d) All Coverages.
(i) Defense costs shall be payable in addition to the limits
set forth hereunder.
(ii) Requirements of specific coverage or limits contained
in this Section are not intended as a limitation on coverage, limits, or other requirement,
or a waiver of any coverage normally provided by any insurance. It shall be a requirement
under this Agreement that any available insurance proceeds broader than or in excess of
the specified minimum insurance coverage requirements and/or limits set forth herein
shall be available to the Commission, Caltrans and their directors, officials, officers,
employees and agents as additional insureds under said policies. Furthermore, the
requirements for coverage and limits shall be (1) the minimum coverage and limits
specified in this Agreement; or (2) the broader coverage and maximum limits of coverage
of any insurance policy or proceeds available to the named insured; whichever is greater.
(iii) The limits of insurance required in this Agreement may
be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella
or excess insurance shall contain or be endorsed to contain a provision that such
coverage shall also apply on a primary and non-contributory basis for the benefit of the
Commission (if agreed to in a written contract or agreement) before the Commission’s
own insurance or self-insurance shall be called upon to protect it as a named insured.
The umbrella/excess policy shall be provided on a “following form” basis with coverage
at least as broad as provided on the underlying policy(ies).
(iv) Consultant shall provide the Commission at least thirty
(30) days prior written notice of cancellation of any policy required by this Agreement,
except that the Consultant shall provide at least ten (10) days prior written notice of
cancellation of any such policy due to non-payment of premium. If any of the required
coverage is cancelled or expires during the term of this Agreement, the Consultant shall
deliver renewal certificate(s) including the General Liability Additional Insured
Endorsement to the Commission at least ten (10) days prior to the effective date of
cancellation or expiration.
(v) The retroactive date (if any) of each policy is to be no
later than the effective date of this Agreement. Consultant shall maintain such coverage
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continuously for a period of at least three years after the completion of the work under
this Agreement. Consultant shall purchase a one (1) year extended reporting period A)
if the retroactive date is advanced past the effective date of this Agreement; B) if the policy
is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy
with a retroactive date subsequent to the effective date of this Agreement.
(vi) The foregoing requirements as to the types and limits
of insurance coverage to be maintained by Consultant, and any approval of said
insurance by the Commission, is not intended to and shall not in any manner limit or
qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to
this Agreement, including but not limited to, the provisions concerning indemnification.
(vii) If at any time during the life of the Agreement, any
policy of insurance required under this Agreement does not comply with these
specifications or is canceled and not replaced, Commission has the right but not the duty
to obtain the insurance it deems necessary, and any premium paid by Commission will
be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to
pay premium from Consultant payments. In the alternative, Commission may cancel this
Agreement. The Commission may require the Consultant to provide complete copies of
all insurance policies in effect for the duration of the Project.
(viii) Neither the Commission nor any of its directors,
officials, officers, employees or agents shall be personally responsible for any liability
arising under or by virtue of this Agreement.
29.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the Commission. If the
Commission does not approve the deductibles or self-insured retentions as presented,
Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer
shall reduce or eliminate such deductibles or self-insured retentions as respects the
Commission, its directors, officials, officers, employees and agents; or (2) the Consultant
shall procure a bond guaranteeing payment of losses and related investigation costs,
claims and administrative and defense expense.
29.7 Acceptability of Insurers. Insurance is to be placed with insurers
with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California,
and satisfactory to the Commission.
29.8 Verification of Coverage. Consultant shall furnish Commission with
original certificates of insurance and endorsements effecting coverage required by this
Agreement on forms satisfactory to the Commission. The certificates and endorsements
for each insurance policy shall be signed by a person authorized by that insurer to bind
coverage on its behalf. All certificates and endorsements must be received and
approved by the Commission before work commences. The Commission reserves the
right to require complete, certified copies of all required insurance policies, at any time.
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29.9 Subconsultant Insurance Requirements. Consultant shall not allow
any subcontractors or subconsultants to commence work on any subcontract until they
have provided evidence satisfactory to the Commission that they have secured all
insurance required under this Section. Policies of commercial general liability insurance
provided by such subcontractors or subconsultants shall be endorsed to name the
Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement
providing the exact same coverage. If requested by Consultant, the Commission may
approve different scopes or minimum limits of insurance for particular subcontractors or
subconsultants.
29.10 Other Insurance. At its option, the Commission may require such
additional coverage(s), limits and/or the reduction of deductibles or retentions it
considers reasonable and prudent based upon risk factors that may directly or indirectly
impact the Project. In retaining this option Commission does not warrant Consultant’s
insurance program to be adequate. Consultant shall have the right to purchase
insurance in addition to the insurance required in this Section.
30. Safety. Consultant shall execute and maintain its work so as to avoid injury
or damage to any person or property. In carrying out its Services, the Consultant shall at
all times be in compliance with all applicable local, state and federal laws, rules and
regulations, and shall exercise all necessary precautions for the safety of employees
appropriate to the nature of the work and the conditions under which the work is to be
performed. Safety precautions as applicable shall include, but shall not be limited to: (A)
adequate life protection and life saving equipment and procedures; (B) instructions in
accident prevention for all employees and subcontractors, such as safe walkways,
scaffolds, fall protection ladders, bridges, gang planks, confined space procedures,
trenching and shoring, equipment and other safety devices, equipment and wearing
apparel as are necessary or lawfully required to prevent accidents or injuries; and (C)
adequate facilities for the proper inspection and maintenance of all safety measures.
31. Additional Work. Any work or activities that are in addition to, or otherwise
outside of, the Services to be performed pursuant to this Agreement shall only be
performed pursuant to a separate agreement between the parties. Notwithstanding the
foregoing, the Commission’s Executive Director may make a change to the Agreement,
other than a Cardinal Change. For purposes of this Agreement, a Cardinal Change is a
change which is “outside the scope” of the Agreement; in other words, work which should
not be regarded as having been fairly and reasonably within the contemplation of the
parties when the Agreement was entered into. An example of a change which is not a
Cardinal Change would be where, in a contract to construct a building there are many
changes in the materials used, but the size and layout of the building remains the same.
Cardinal Changes are not within the authority of this provision to order, and shall be
processed by the Commission as “sole source” procurements according to applicable
law, including the requirements of FTA Circular 4220.1D, paragraph 9(f).
(a) In addition to the changes authorized above, a
modification which is signed by Consultant and the Commission’s Executive Director,
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other than a Cardinal Change, may be made in order to: (1) make a negotiated equitable
adjustment to the Agreement price, delivery schedule and other terms resulting from the
issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other
agreements of the parties modifying the terms of this Agreement (“Bilateral Contract
Modification”).
(b) Consultant shall not perform, nor be compensated for
any change, without written authorization from the Commission’s Executive Director as
set forth herein. In the event such a change authorization is not issued and signed by the
Commission’s Executive Director, Consultant shall not provide such change.
32. Prohibited Interests.
32.1 Solicitation. Consultant maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working
solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants
that it has not paid nor has it agreed to pay any company or person, other than a bona
fide employee working solely for Consultant, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty, the Commission shall
have the right to rescind this Agreement without liability.
32.2 Consultant Conflict of Interest.
(a) Consultant shall disclose any financial, business, or other
relationship with Commission that may have an impact upon the outcome of this
Agreement. Consultant hereby certifies that it does not now have, nor shall it acquire any
financial or business interest that would conflict with the performance of services under
this Agreement.
(b) Any subcontract in excess of $25,000 entered into as a result
of this Agreement, shall contain all of the provisions of this Article.
32.3 Commission Conflict of Interest. For the term of this Agreement, no
member, officer or employee of the Commission, during the term of his or her service
with the Commission, shall have any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising therefrom.
32.4 Conflict of Employment. Employment by the Consultant of
personnel currently on the payroll of the Commission shall not be permitted in the
performance of this Agreement, even though such employment may occur outside of the
employee's regular working hours or on weekends, holidays or vacation time. Further,
the employment by the Consultant of personnel who have been on the Commission
payroll within one year prior to the date of execution of this Agreement, where this
employment is caused by and or dependent upon the Consultant securing this or related
Agreements with the Commission, is prohibited.
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32.5 Covenant Against Contingent Fees. As required in connection with
federal funding, the Consultant warrants that he/she has not employed or retained any
company or person, other than a bona fide employee working for the Consultant, to solicit
or secure this Agreement, and that he/she has not paid or agreed to pay any company
or person, other than a bona fide employee, any fee, commission, percentage, brokerage
fee, gift, or any other consideration, contingent upon or resulting from the award or
formation of this Agreement. For breach or violation of this warranty, the Commission
shall have the right to terminate this Agreement without liability pursuant to the terms
herein, or at its discretion to deduct from the Agreement price or consideration, or
otherwise recover, the full amount of such fee, commission, percentage, brokerage fee,
gift, or contingent fee.
32.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant
warrants that this Agreement was not obtained or secured through rebates kickbacks or
other unlawful consideration, either promised or paid to any Commission employee. For
breach or violation of this warranty, Commission shall have the right in its discretion; to
terminate this Agreement without liability; to pay only for the value of the work actually
performed; or to deduct from the Agreement price; or otherwise recover the full amount
of such rebate, kickback or other unlawful consideration.
32.7 Covenant Against Expenditure of Commission, State or Federal
Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and
belief no state, federal or local agency appropriated funds have been paid, or will be paid
by or on behalf of the Consultant to any person for the purpose of influencing or
attempting to influence an officer or employee of any state or federal agency; a Member
of the State Legislature or United States Congress; an officer or employee of the
Legislature or Congress; or any employee of a Member of the Legislature or Congress,
in connection with the award of any state or federal contract, grant, loan, or cooperative
agreement, or the extension, continuation, renewal, amendment, or modification of any
state or federal contract, grant, loan, or cooperative agreement.
(a) If any funds other than federal appropriated funds have been
paid, or will be paid to any person for the purpose of influencing or attempting to influence
an officer or employee of any federal agency; a Member of Congress; an officer or
employee of Congress, or an employee of a Member of Congress; in connection with this
Agreement, the Consultant shall complete and submit the attached Exhibit "F", Standard
Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with the attached
instructions.
(b) The Consultant's certification provided in this Section is a
material representation of fact upon which reliance was placed when this Agreement was
entered into, and is a prerequisite for entering into this Agreement pursuant to Section
1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the
disclosure and certification requirements set forth in Section 1352, Title 31, US. Code
may result in a civil penalty of not less than $10,000 and not more than $100,000 for each
such failure.
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(c) The Consultant also agrees by signing this Agreement that
he/she shall require that the language set forth in this Section 3.23.7 be included in all
Consultant subcontracts which exceed $100,000, and that all such subcontractors shall
certify and disclose accordingly.
32.8 Employment Adverse to the Commission. Consultant shall notify the
Commission, and shall obtain the Commission’s written consent, prior to accepting work
to assist with or participate in a third-party lawsuit or other legal or administrative
proceeding against the Commission during the term of this Agreement.
33. Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, ancestry, sex
or age. Such non-discrimination shall include, but not be limited to, all activities related
to initial employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff or termination.
34. Right to Employ Other Consultants. Commission reserves the right to
employ other consultants in connection with the Project.
35. Governing Law. This Agreement shall be governed by and construed with
the laws of the State of California. Venue shall be in Riverside County.
36. Disputes; Attorneys' Fees.
36.1 Prior to commencing any action hereunder, the Parties shall attempt
in good faith to resolve any dispute arising between them. The pendency of a dispute
shall not excuse Consultant from full and timely performance of the Services.
36.2. If the Parties are unable to resolve a dispute after attempting in good
faith to do so, the Parties may seek any other available remedy to resolve the dispute. If
either Party commences an action against the other Party, either legal, administrative or
otherwise, arising out of or in connection with this Agreement, the prevailing Party in such
litigation shall be entitled to have and recover from the losing Party reasonable attorneys'
fees and, all other costs of such actions.
37. Time of Essence. Time is of the essence for each and every provision of
this Agreement.
38. Headings. Article and Section Headings, paragraph captions or marginal
headings contained in this Agreement are for convenience only and shall have no effect
in the construction or interpretation of any provision herein.
39. Notices. All notices permitted or required under this Agreement shall be
given to the respective parties at the following address, or at such other address as the
respective parties may provide in writing for this purpose:
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CONSULTANT: COMMISSION:
Riverside County
Hawran & Malm, LLC Transportation Commission
2618 San Miguel Drive, Ste. 1601 4080 Lemon Street, 3rd Floor
Newport Beach, CA 92660 Riverside, CA 92501
Attn: Sydney H. Hawran Attn: Executive Director
Such notice shall be deemed made when personally delivered or when mailed, forty-eight
(48) hours after deposit in the U.S. mail, first class postage prepaid, and addressed to the
Party at its applicable address. Actual notice shall be deemed adequate notice on the
date actual notice occurred, regardless of the method of service.
40. Conflicting Provisions. In the event that provisions of any attached exhibits
conflict in any way with the provisions set forth in this Agreement, the language, terms
and conditions contained in this Agreement shall control the actions and obligations of
the Parties and the interpretation of the Parties' understanding concerning the
performance of the Services.
41. Amendment or Modification. No supplement, modification, or amendment
of this Agreement shall be binding unless executed in writing and signed by both Parties.
42. Entire Agreement. This Agreement contains the entire agreement of the
Parties relating to the subject matter hereof and supersedes all prior negotiations,
agreements or understandings.
43. Invalidity; Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
44. Provisions Applicable When State Funds or Federal Funds Are Involved.
When funding for the Services under a Task Order is provided, in whole or in part, from
FHWA, Consultant shall also fully and adequately comply with the provisions included in
Exhibit “C” (FHWA/Caltrans requirements) attached hereto and incorporated herein by
reference. When funding for the Services under a Task Order is provided, in whole or in
part, from the FTA, Consultant shall also fully and adequately comply with the provisions
included in Exhibit “D” (FTA Requirements) attached hereto and incorporated herein by
reference.
45. Survival. All rights and obligations hereunder that by their nature are to
continue after any expiration or termination of this Agreement, including, but not limited
to, the indemnification and confidentiality obligations, shall survive any such expiration or
termination.
46. No Third Party Beneficiaries. There are no intended third party beneficiaries
of any right or obligation assumed by the Parties.
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47. Labor Certification. By its signature hereunder, Consultant certifies that it
is aware of the provisions of Section 3700 of the California Labor Code which require
every employer to be insured against liability for Workers’ Compensation or to undertake
self-insurance in accordance with the provisions of that Code, and agrees to comply with
such provisions before commencing the performance of the Services.
48. Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
49. Subpoenas or Court Orders. Should Consultant receive a subpoena or
court order related to this Agreement, the Services or the Project, Consultant shall
immediately provide written notice of the subpoena or court order to the Commission.
Consultant shall not respond to any such subpoena or court order until notice to the
Commission is provided as required herein, and shall cooperate with the Commission in
responding to the subpoena or court order.
50. Assignment or Transfer. Consultant shall not assign, hypothecate, or
transfer, either directly or by operation of law, this Agreement or any interest herein,
without the prior written consent of the Commission. Any attempt to do so shall be null
and void, and any assignees, hypothecates or transferees shall acquire no right or interest
by reason of such attempted assignment, hypothecation or transfer.
51. Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties, and shall not be assigned by Consultant without
the prior written consent of Commission.
52. Incorporation of Recitals. The recitals set forth above are true and correct
and are incorporated into this Agreement as though fully set forth herein.
53. No Waiver. Failure of Commission to insist on any one occasion upon strict
compliance with any of the terms, covenants or conditions hereof shall not be deemed a
waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any
rights or powers hereunder at any one time or more times be deemed a waiver or
relinquishment of such other right or power at any other time or times.
54. Electronically Transmitted Signatures; Electronic Signatures. A manually
signed copy of this Agreement which is transmitted by facsimile, email or other means of
electronic transmission shall be deemed to have the same legal effect as delivery of an
original executed copy of this Agreement for all purposes. This Agreement may be signed
using an electronic signature.
[Signatures on following page]
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SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA AND FTA FUNDING/ASSISTANCE
IN WITNESS WHEREOF, this Agreement was executed on the date first written above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
Anne Mayer
Executive Director
Approved as to Form:
By:
Best, Best & Krieger LLP
General Counsel
CONSULTANT
HAWRAN & MALM, LLC
By:
Signature
Name
Title
ATTEST:
By:
Its: __________________________
* A corporation requires the signatures of two corporate officers.
One signature shall be that of the chairman of board, the president or any vice president and the
second signature (on the attest line) shall be that of the secretary, any assistant secretary, the
chief financial officer or any assistant treasurer of such corporation.
If the above persons are not the intended signators, evidence of signature authority shall be
provided to RCTC.
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Exhibit A
EXHIBIT A SCOPE OF SERVICES
The Riverside County Transportation Commission (Commission) is seeking one or
more Consultants (Consultant or Appraiser) to provide right of way appraisal services
for developed or undeveloped residential, commercial, industrial, agricultural and
railroad properties. Consultant shall produce appraisal reports for full or partial
acquisitions, easements, temporary construction easements, leased or licensed
properties, and sale or disposition of excess/surplus properties, as required by the
Commission. Services shall be provided on an on-call/as needed basis in support of
current and future Commission Projects, Measure A Projects and projects done in
partnership with other agencies, pursuant to Task Orders issued in the sole discretion
of the Commission.
Task Orders shall be awarded through an additional qualification-based selection
process.
Such appraisal services may include, but are not limited to, the following work
program and/or comply with applicable requirements below:
1. Consultant shall prepare appraisals in accordance with the Uniform
Relocation and Real Property Acquisition Policies Act of 1970, as amended,
and implemented by 49 CFR Part 24; the State of California Government
Code, the State of California Relocation Assistance and Real Property
Acquisition Guidelines (Title 25, California Code of Regulations Ch 6, Art 1,
Section 6000 et seq.), the California Code of Civil Procedure, the Uniform
Standards of Professional Appraisal Practice (USPAP), and in some cases,
the Uniform Appraisal Standards for Federal Land Acquisition Act. Consultant
must be licensed by the State of California.
2. Consultant shall prepare appraisals in accordance with the Uniform Appraisal
Standards for Federal Land Acquisition (“Yellow Book”). Consultant must be
licensed by the State of California.
3. Consultant must be qualified to provide expert witness testimony and defend
the opinions or conclusions reached in the appraisal at any Administrative
or Judicial proceeding.
4. Deliverables shall typically consist of three (3) originals of the completed
appraisal report and one (1) electronic copy, specialty reports and component
valuations which may be performed by someone other than Consultant and
incorporated into the overall fair market valuation.
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Exhibit A
5. Consultant may be required to meet with and coordinate their efforts with
Commission staff, Commission legal counsel, and other consultants or
Caltrans staff; participate in office or project site meetings.
6. Appraisal reports may be reviewed for acceptance and approval by
Commission's review appraisers and Caltrans. Revisions may be required
by reason of this review process. Consultants may be requested to complete
and deliver revised and/or updated appraisals. In the event of non-acceptance
due to errors or omissions, Consultant shall have fifteen (15) calendar days
to make corrections and return the revised appraisals to the review appraiser.
7. For proposed acquisitions, the owner of the real property or a designated
representative will be invited by the Appraiser to accompany the Appraiser
during the inspection of the property. This invitation must be in the form of
a letter entitled "Notice to Appraise" written by the Appraiser to the owner.
A copy of the invitation will be included in the appraisal report.
8. It is the Appraiser's responsibility to contact the Commission's project
engineers for discussion and/or clarification of the Construction in the
Manner Proposed. This is critical in the appraisal of partial acquisitions and
easements where the Appraiser may need cross sections or other project
engineering information to complete the report.
9. The highest and best use for the property in the before condition must be
determined and supported. If a partial acquisition is involved, the highest
and best use of the property in the after condition must be determined and
supported. If the existing use is not the premise on which the valuation is
based, the appraisal will contain an explanation justifying the determination
that the property is available and adaptable for a different highest and best
use and there is demand for that use in the market.
10. Where the acquisition involves only a part (or portion) of the property, the
Appraiser win estimate any severance d amages and special benefits to the
remainder, including reasoning. and market data to support the opinion or
conclusion. The Appraiser will indicate if the remainder constitutes an
economic or uneconomic unit in the market and/or to the present owner.
11. The California Eminent Domain Law will be followed in partial acquisitions.
Special benefits are to be offset only against damages to the remainder in
accordance with the law.
12. Appraisal for easement acquisitions will reflect the restrictive elements of the
easement to be acquired and the potential effect of such elements on the
utility of the property considering its highest and best use. Full details with
respect to any interference with the highest and best use of the property
affected must be explained and supported.
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Exhibit A
13. The Appraiser must estimate and support the economic rent, state the
contract rent and the remaining term of the lease as of the date of value.
Lessor and lessee responsibilities for paying major expenses, e.g., taxes,
insurance and maintenance shall be included.
14. Appraiser shall itemize in detail the "improvements pertaining to realty"
(Eminent Domain Law-CCP Section 1263.205) showing their replacement cost
new, depreciated value in place, salvage value if any, and relocation estimate.
To the extent possible, determine the ownership claims of the Improvements
Pertaining to the Realty.
15. In cases where the Appraisal Assignment requires a Specialty Appraisal
(Furniture, Fixtures, Machinery and Equipment) and/or Specialists Reports
(title, survey, soils, engineering), Appraiser shall utilize the services of
Commission's On-Call Consultants for such services or obtain Commission's
prior approval for any others. Fees charged by Commission's On-Call
Consultants for Specialty Appraisal and/or Specialists Reports shall be paid
directly by the Commission.
16. It is the Appraiser's responsibility to thoroughly review the Specialty Appraisal
for adoption (with adjustments or not, as appropriate) and inclusion in the
overall appraisal. The estimated values that the specialty items contribute to
the overall value of the real estate will be separately stated but included in the
total value of the property.
17. If any legal issues exist during the appraisal assignment, Appraiser shall
request legal opinion. All legal opinions shall be rendered by Commission's
legal counsel.
18. It is the Appraiser's responsibility to contact the Commission's legal counsel,
if necessary, for discussion and/or clarification in identifying personal or real
property.
19. If hazardous waste is discovered on the property, Appraiser shall seek further
direction from the Commission.
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FIRM PROJECT TASKS/ROLE COST
Hawran & Malm, LLC Right of Way Appraisal Services 1,000,000.00$
1,000,000.00$ TOTAL COSTS
1 Commission authorization pertains to total contract award amount. Compensation adjustments between consultants may occur; however,
the maximum total compensation authorized may not be exceeded.
EXHIBIT "B"
Prime Consultant:
Sub Consultants:
COMPENSATION SUMMARY1
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Exhibit C-1
EXHIBIT "C"
FEDERAL DEPARTMENT OF TRANSPORTATION
FHWA AND CALTRANS REQUIREMENTS
1. NONDISCRIMINATION & STATEMENT OF COMPLIANCE.
A. Consultant’s signature affixed herein shall constitute a certification under penalty of
perjury under the laws of the State of California that CONSULTANT has, unless exempt,
complied with, the nondiscrimination program requirements of Government Code Section
12990 and Title 2, California Administrative Code, Section 8103.
B. During the performance of this Agreement, Consultant and its subconsultants shall
not deny the Agreement’s benefits to any person on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression, age,
sexual orientation, or military and veteran status, nor shall they unlawfully discriminate,
harass, or allow harassment against any employee or applicant for employment because
of race, religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or military and veteran status.
Consultant and its subconsultants shall insure that the evaluation and treatment of their
employees and applicants for employment are free from such discrimination and
harassment.
C. Consultant and its subconsultants shall comply with the provisions of the Fair
Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations
promulgated thereunder (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-
11139.5, and any regulations or standards adopted by Commission to implement such
article. The applicable regulations of the Fair Employment and Housing Commission
implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated
into this Agreement by reference and made a part hereof as if set forth in full.
D. Consultant shall permit access by representatives of the Department of Fair
Employment and Housing and the Commission upon reasonable notice at any time during
the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such
of its books, records, accounts, and all other sources of information and its facilities as
said Department or Commission shall require to ascertain compliance with this clause.
E. Consultant and its subconsultants shall give written notice of their obligations
under this clause to labor organizations with which they have a collective bargaining or
other Agreement.
F. If this Agreement is federally funded, the Consultant shall comply with regulations
relative to Title VI (nondiscrimination in federally-assisted programs of the Department of
Transportation – Title 49 Code of Federal Regulations, Part 21 - Effectuation of Title VI
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Exhibit C-2
of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will
implement and maintain a policy of nondiscrimination in which no person in the state of
California shall, on the basis of race, color, national origin, religion, sex, age, disability,
be excluded from participation in, denied the benefits of or subject to discrimination under
any program or activity by the recipients of federal assistance or their assignees and
successors in interest.
G. If this Agreement is federally funded, Consultant shall comply with regulations relative
to non-discrimination in federally-assisted programs of the U.S. Department of
Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964).
Specifically, the Consultant shall not participate either directly or indirectly in the
discrimination prohibited by 49 CFR §21.5, including employment practices and the
selection and retention of subconsultants.
H. Consultant and its subconsultants will never exclude any person from participation in,
deny any person the benefits of, or otherwise discriminate against anyone in connection
with the award and performance of any contract covered by 49 CFR 26 on the basis of
race, color, sex, or national origin. In administering the Commission components of the
DBE Program plan, Consultant and its subconsultants will not, directly, or through
contractual or other arrangements, use criteria or methods of administration that have the
effect of defeating or substantially impairing accomplishment of the objectives of the DBE
Program plan with respect to individuals of a particular race, color, sex, or national origin.
I. Consultant shall include the nondiscrimination and compliance provisions of this
section in all subcontracts to perform work under this Agreement.
2. DEBARMENT AND SUSPENSION CERTIFICATION
CONSULTANT’s signature affixed herein, shall constitute a certification under penalty of
perjury under the laws of the State of California, that CONSULTANT has complied with
Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment
and Suspension (nonprocurement)”, which certifies that he/she or any person associated
therewith in the capacity of owner, partner, director, officer, or manager, is not currently
under suspension, debarment, voluntary exclusion, or determination of ineligibility by any
federal agency; has not been suspended, debarred, voluntarily excluded, or determined
ineligible by any federal agency within the past three (3) years; does not have a proposed
debarment pending; and has not been indicted, convicted, or had a civil judgment
rendered against it by a court of competent jurisdiction in any matter involving fraud or
official misconduct within the past three (3) years. Any exceptions to this certification must
be disclosed to COMMISSION.
B. Exceptions will not necessarily result in denial of recommendation for award, but will
be considered in determining CONSULTANT responsibility. Disclosures must indicate to
whom exceptions apply, initiating agency, and dates of action.
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Exhibit C-3
C. Exceptions to the Federal Government Excluded Parties List System maintained by
the General Services Administration are to be determined by the Federal highway
Administration.
3. DISCRIMINATION; CONTRACT ASSURANCE
The Commission shall not discriminate on the basis of race, color, national origin, or sex
in the award and performance of any DOT-assisted contract or in the implementation of
the Caltrans DBE program or the requirements of 49 CFR Part 26. The Commission shall
take all necessary and reasonable steps under 49 CFR Part 26 to ensure
nondiscrimination in the award and administration of DOT-assisted contracts.
Consultant or subcontractor shall not discriminate on the basis of race, color, national
origin, of sex in the performance of this Agreement. Consultant or subcontractor shall
carry out applicable requirements of 49 CFR Part 26 and the Caltrans DBE program in
the award and administration of DOT-assisted contracts, as further set forth below.
Failure by the Consultant or subcontractor to carry out these requirements is a material
breach of this Agreement, which may result in the termination of this Agreement or such
other remedy, as the Commission deems appropriate.
Failure by the Consultant to carry out these requirements is a material breach of this
contract, which may result in the termination of this contract or such other remedy as the
recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying Consultant from future proposing as non-responsible
4. PROMPT PAYMENT
Consultant or subconsultant shall pay to any subconsultant, not later than fifteen (15)
days after receipt of each progress payment, unless otherwise agreed to in writing, the
respective amounts allowed Consultant on account of the work performed by the
subconsultants, to the extent of each subconsultant’s interest therein. In the event that
there is a good faith dispute over all or any portion of the amount due on a progress
payment from Consultant or subconsultant to a subconsultant, Consultant or
subconsultant may withhold no more than 150 percent of the disputed amount. Any
violation of this requirement shall constitute a cause for disciplinary action and shall
subject the Consultant or subconsultant to a penalty, payable to the applicable
subconsultant, of 2 percent of the amount due per month for every month that payment
is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be
entitled to his or her attorney’s fees and costs. The sanctions authorized under this
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Exhibit C-4
requirement shall be separate from, and in addition to, all other remedies, either civil,
administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
5. RELEASE OF RETAINAGE
No retainage will be held by the Commission from progress payments due to Consultant.
Consultant and subconsultants are prohibited from holding retainage from
subconsultants. Any delay or postponement of payment may take place only for good
cause and with the Commission’s prior written approval. Any violation of these provisions
shall subject Consultant or the violating subconsultant to the penalties, sanctions, and
other remedies specified in Section 3321 of the California Civil Code. This requirement
shall not be construed to limit or impair any contractual, administrative or judicial
remedies, otherwise available to Consultant or subconsultant in the event of a dispute
involving late payment or nonpayment by Consultant, deficient subconsultant
performance and/or noncompliance by a subconsultant. This clause applies to both DBE
and non-DBE subconsultants.
6. LEGAL REMEDIES
In addition to those contract remedies set forth under relevant provisions of California law,
either Party to this Agreement may, where applicable, seek legal redress for violations of
this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the
relevant federal or state statutory provisions governing civil rights violations, and to the
relevant federal and state provisions governing false claims or “whistleblower” actions, as
well as any and all other applicable federal and state provisions of law.
The Consultant shall include a provision to this effect in each of its agreements with its
subcontractors.
7. DBE PARTICIPATION
Caltrans has developed a statewide DBE program pursuant to 49 C.F.R. Part 26. The
requirements and procedures, as applicable, of the Caltrans DBE program are hereby
incorporated by reference into this Agreement. Even if no DBE participation will be
reported, Consultant shall complete any Caltrans required DBE reporting forms, as
provided by the Commission, in compliance with the Caltrans DBE program, and a final
utilization report in the form provided by the Commission.
A. This Agreement is subject to Title 49, Part 26 of the Code of Federal Regulations
entitled “Participation by Disadvantaged Business Enterprises in Department of
Transportation Financial Assistance Programs.” Consultants who enter into a federally-
funded agreement will assist the Commission in a good faith effort to achieve California’s
statewide overall DBE goal.
B. This Agreement does not have a DBE goal, but DBE goals may be included as
part of each Task Order request for proposals. Participation by DBE Consultant or
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Exhibit C-5
subconsultants for an FHWA funded Task Order shall be in accordance with the
information contained in the Consultant Contract DBE Commitment form (Caltrans LAPM
Forms Exhibit 10-O1) to be submitted with the relevant Task Order proposal. If a DBE
subconsultant is unable to perform, the Consultant must make a good faith effort to
replace him/her with another DBE subconsultant, if the goal is not otherwise met. A DBE
is a firm meeting the definition of a DBE as specified in 49 CFR.
C. All DBE participation will count toward the Caltrans federally mandated statewide
overall DBE goal. Credit for materials or supplies Consultant purchases from DBEs
counts towards the goal in the following manner:
• 100 percent counts if the materials or supplies are obtained from a DBE
manufacturer.
• 60 percent counts if the materials or supplies are purchased from a DBE regular
dealer.
• Only fees, commissions, and charges for assistance in the procurement and
delivery of materials or supplies count if obtained from a DBE that is neither a
manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular
dealer."
D. DBE and other small businesses (SB), as defined in Title 49 CFR, Part 26 are
encouraged to participate in the performance of agreements financed in whole or in part
with federal funds. The Consultant, subrecipient or subconsultant shall not discriminate
on the basis of race, color, national origin, or sex in the performance of this Agreement.
The Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award
and administration of US DOT- assisted agreements. Failure by the contractor to carry
out these requirements is a material breach of this Agreement, which may result in the
termination of this Agreement or such other remedy as the Commission, Caltrans or the
Department of Transportation deems appropriate.
E. Any subcontract entered into as a result of this Agreement shall contain all of the
provisions of this section.
F. A DBE may be terminated only as further set forth in Section 13 below.
8. DBE PARTICIPATION GENERAL INFORMATION
It is Consultant's responsibility to be fully informed regarding the requirements of 49 CFR,
Part 26, and the Caltrans DBE program. Particular attention is directed to the following:
A. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be
certified through the California Unified Certification Program (CUCP).
B. A certified DBE may participate as a prime contractor, subcontractor, joint venture
partner, as a vendor of material or supplies, or as a trucking company.
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Exhibit C-6
C. A DBE joint-venture partner must be responsible for specific contract items of work
or clearly defined portions thereof. Responsibility means actually performing, managing
and supervising the work with its own forces. The DBE joint venture partner must share
in the capital contribution, control, management, risks and profits of the joint-venture
commensurate with its ownership interest.
D. A DBE must perform a commercially useful function, pursuant to 49 CFR 26.55
that is, must be responsible for the execution of a distinct element of the work and must
carry out its responsibility by actually performing, managing and supervising the work, as
more fully described in section 9 below.
E. The Consultant shall list only one subcontractor for each portion of work as defined
in the Consultant's bid/proposal and all DBE subcontractors should be listed in the
Consultant's bid/cost proposal list of subcontractors.
F. A Consultant who is a certified DBE is eligible to claim all of the work in the
Agreement toward the DBE participation except that portion of the work to be performed
by non-DBE subcontractors.
G. Consultant shall notify the Commission’s contract administrator or designated
representative of any changes to its anticipated DBE participation prior to starting the
affected work.
9 . COMMERCIALLY USEFUL FUNCTION
A. A DBE performs a commercially useful function when it is responsible for execution
of the work of the Agreement and is carrying out its responsibilities by actually performing,
managing, and supervising the work involved. To perform a commercially useful function,
the DBE must also be responsible with respect to materials and supplies used on the
Agreement, for negotiating price, determining quality and quantity, ordering the material,
and installing (where applicable) and paying for the material itself. To determine whether
a DBE is performing a commercially useful function, evaluate the amount of work
subcontracted, industry practices; whether the amount the firm is to be paid under the
Agreement is commensurate with the work it is actually performing, and other relevant
factors.
B. A DBE does not perform a commercially useful function if its role is limited to that
of an extra participant in a transaction, Agreement, or project through which funds are
passed in order to obtain the appearance of DBE participation. In determining whether a
DBE is such an extra participant, examine similar transactions, particularly those in which
DBEs do not participate.
C. If a DBE does not perform or exercise responsibility for at least thirty percent of the
total cost of its Agreement with its own work force, or the DBE subcontracts a greater
portion of the work of the Agreement than would be expected on the basis of normal
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Exhibit C-7
industry practice for the type of work involved, it will be presumed that it is not performing
a commercially useful function.
10. DBE CERTIFICATION AND DE-CERTIFICATION STATUS
If a DBE subcontractor is decertified before completing its work, the decertified
subcontractor shall notify the Contractor in writing with the date of de-certification. If a
subcontractor becomes a certified DBE during the life of the Agreement, the
subcontractor shall notify the Contractor in writing with the date of certification. Any
changes should be reported to the Commission’s Contract Administrator within 30 days.
11. DBE RECORDS
A. The Contractor shall maintain records of materials purchased and/or supplied from
all subcontracts entered into with certified DBEs. The records shall show the name and
business address of each DBE subconsultant, DBE vendor, and DBE trucking company
and the total dollar amount actually paid each business regardless of tier. The records
shall show the date of payment and the total dollar figure paid to all firms. DBE prime
Contractors shall also show the date of work performed by their own forces along with the
corresponding dollar value of the work.
In addition to all other requirements, Consultant shall complete and submit, on a monthly
basis, the Monthly DBE Payment form (Caltrans Exhibit 9-F of Chapter 9 of the LAPM).
B. Upon completion of the Agreement, a summary of these records shall be prepared
and submitted on the most current version of the form entitled, “Final Report-Utilization of
Disadvantaged Business Enterprises (DBE),” CEM- 2402F (Exhibit 17-F in Chapter 17 of
the LAPM), certified correct by the Contractor or the Contractor’s authorized
representative and shall be furnished to the Commission’s Contract Administrator with
the final invoice. Failure to provide the summary of DBE payments with the final invoice
will result in the Commission withholding $10,000 until the form is submitted. This amount
will be returned to the Contractor when a satisfactory “Final Report Utilization of
Disadvantaged Business Enterprises (DBE)” is submitted to the Commission’s Contract
Administrator.
a. Prior to the fifteenth of each month, the Contractor shall submit documentation to
the Commission’s Contract Administrator showing the amount paid to DBE trucking
companies. The Contractor shall also obtain and submit documentation to the
Commission’s Contract Administrator showing the amount paid by DBE trucking
companies to all firms, including owner-operators, for the leasing of trucks. If the DBE
leases trucks from a non-DBE, the Contractor may count only the fee or commission the
DBE receives as a result of the lease arrangement.
b. The Contractor shall also submit to the Commission’s Contract Administrator
documentation showing the truck number, name of owner, California Highway Patrol CA
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Exhibit C-8
number, and if applicable, the DBE certification number of the truck owner for all trucks
used during that month. This documentation shall be submitted on the Caltrans ”Monthly
DBE Trucking Verification,” CEM-2404(F) form provided to the Contractor by the
Commission’s Contract Administrator.
12. REPORTING MATERIAL OR SUPPLIES PURCHASED FROM DBEs
When Reporting DBE Participation, Material or Supplies purchased from DBEs may
count as follows:
A. If the materials or supplies are obtained from a DBE manufacturer, 100 % of the
cost of the materials or supplies will count toward the DBE participation. A DBE
manufacturer is a firm that operates or maintains a factory or establishment that produces
on the premises, the materials, supplies, articles, or equipment required under the
Agreement and of the general character described by the specifications.
B. If the materials or supplies purchased from a DBE regular dealer, count 60 % of
the cost of the materials or supplies toward DBE goals. A DBE regular dealer is a firm
that owns, operates or maintains a store, warehouse, or other establishment in which the
materials, supplies, articles or equipment of the general character described by the
specifications and required under the Agreement, are bought, kept in stock, and regularly
sold or leased to the public in the usual course of business. To be a DBE regular dealer,
the firm must be an established, regular business that engages, as its principal business
and under its own name, in the purchase and sale or lease of the products in question. A
person may be a DBE regular dealer in such bulk items as petroleum products, steel,
cement, gravel, stone or asphalt without owning, operating or maintaining a place of
business provided in this section.
C. If the person both owns and operates distribution equipment for the products, any
supplementing of regular dealers’ own distribution equipment, shall be by a long-term
lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers,
brokers, manufacturers’ representatives, or other persons who arrange or expedite
transactions are not DBE regular dealers within the meaning of this section.
D. Materials or supplies purchased from a DBE, which is neither a manufacturer nor
a regular dealer, will be limited to the entire amount of fees or commissions charged for
assistance in the procurement of the materials and supplies, or fees or transportation
charges for the delivery of materials or supplies required on the job site, provided the fees
are reasonable and not excessive as compared with fees charged for similar services.
13. TERMINATION AND SUBSTITUTION OF DBE SUBCONSULTANTS
Consultant shall utilize the specific DBEs listed to perform the work and supply the
materials for which each is listed unless Consultant or DBE subconsultant obtains the
Commission’s written consent. Consultant shall not terminate or substitute a listed DBE
for convenience and perform the work with their own forces or obtain materials from other
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Exhibit C-9
sources without authorization from the Commission. Unless the Commission’s consent is
provided, the Consultant shall not be entitled to any payment for work or material unless
it is performed or supplied by the listed DBE on the attached Consultant Contract DBE
Commitment form.
The Commission authorizes a request to use other forces or sources of materials if
Consultant shows any of the following justifications:
1. Listed DBE fails or refuses to execute a written contract based on plans and
specifications for the project.
2. The Commission stipulated that a bond is a condition of executing the
subcontract and the listed DBE fails to meet the Commission’s bond
requirements.
3. Work requires a consultant's license and listed DBE does not have a valid
license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials
(failing or refusing to perform is not an allowable reason to remove a DBE if
the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the project because of suspension or
debarment.
7. Listed DBE becomes bankrupt or insolvent.
8. Listed DBE voluntarily withdraws with written notice from the Agreement.
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE owner dies or becomes disabled resulting in the inability to
perform the work on the Contract.
11. The Commission determines other documented good cause.
Consultant shall notify the original DBE of the intent to use other forces or material
sources and provide the reasons and provide the DBE with 5 days to respond to the notice
and advise Consultant and the Commission of the reasons why the use of other forces or
sources of materials should not occur.
Consultant’s request to use other forces or material sources must include:
1. One or more of the reasons listed in the preceding paragraph.
2. Notices from Consultant to the DBE regarding the request.
3. Notices from the DBEs to Consultant regarding the request.
If a listed DBE is terminated or substituted, Consultant must make good faith efforts to
find another DBE to substitute for the original DBE. The substitute DBE must perform at
least the same amount of work as the original DBE under the contract to the extent
needed to meet or exceed the DBE goal.
14. DEBARMENT, SUSPENSION AND OTHER INELIGIBILITY AND VOLUNTARY
EXCLUSION
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Exhibit C-10
In accordance with 49 CFR Part 29, which by this reference is incorporated herein,
Consultant’s subconsultants completed and submitted the Certificate of subconsultant
Regarding Debarment, Suspension and Other Ineligibility and Voluntary Exclusion as part
of the Consultant’s proposal. If it is later determined that Consultant’s subconsultants
knowingly rendered an erroneous Certificate, the Commission may, among other
remedies, terminate this Agreement.
15. ENVIRONMENTAL COMPLIANCE
A. Compliance with all applicable standards, orders, or requirements issued under
section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act
(33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency
regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in
excess of $100,000).
B. Mandatory standards and policies relating to energy efficiency which are contained in
the state energy conservation plan issued in compliance with the Energy Policy and
Conservation Act (Pub. L. 94-163, 89 Stat. 871).
16. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code Section 10296, and by signing this Agreement,
Consultant certifies under penalty of perjury that no more than one final unappealable
finding of contempt of court by a federal court has been issued against Consultant within
the immediately preceding two-year period, because of Consultant’s failure to comply with
an order of a federal court that orders Consultant to comply with an order of the National
Labor Relations Board.
17. FUNDING REQUIREMENTS
It is mutually understood between the Parties that this Agreement may have been written
before ascertaining the availability of funds or appropriation of funds, for the mutual
benefit of both Parties, in order to avoid program and fiscal delays that would occur if the
Agreement were executed after that determination was made.
This Agreement is valid and enforceable only if sufficient funds are made available to
Commission for the purpose of this Agreement. In addition, this Agreement is subject to
any additional restrictions, limitations, conditions, or any statute enacted by the Congress,
State Legislature, or Commission governing board that may affect the provisions, terms,
or funding of this Agreement in any manner.
It is mutually agreed that if sufficient funds are not appropriated, this Agreement may be
amended to reflect any reduction in funds.
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Exhibit D-1
EXHIBIT D
FTA FUNDING REQUIREMENTS (Non-construction/maintenance work)
As used herein, “RCTC” shall have the same meaning as the “Commission.” The term
“contract” or “Contract” shall have the same meaning as the “Agreement.”
1. No Obligation by the Federal Government
a. RCTC and Consultant acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the
underlying contract, absent the express written consent by the Federal Government, the
Federal Government is not a party to this contract and shall not be subject to any obligations
or liabilities to the Purchaser, Consultant, or any other party (whether or not a party to that
contract) pertaining to any matter resulting from the underlying contract.
b. The Consultant agrees to include the above clause in each subcontract financed in
whole or in part with Federal assistance provided by FTA. It is further agreed that the clause
shall not be modified, except to identify the subconsultant who will be subject to its
provisions.
2. Program Fraud and False or Fraudulent Statements or Related Acts
a. The Consultant acknowledges that the provisions of the Program Fraud Civil
Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations,
"Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this
Project. Upon execution of the underlying contract, the Consultant certifies or affirms the
truthfulness and accuracy of any statement it has made, it makes, it may make, or causes
to be made, pertaining to the underlying contract or the FTA assisted project for which this
contract work is being performed. In addition to other penalties that may be applicable,
the Consultant further acknowledges that if it makes, or causes to be made, a false,
fictitious, or fraudulent claim, statement, submission, or certification, the Federal
Government reserves the right to impose the penalties of the Program Fraud Civil
Remedies Act of 1986 on the Consultant to the extent the Federal Government deems
appropriate.
b. The Consultant also acknowledges that if it makes, or causes to be made, a false,
fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in part
with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307,
the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49
U.S.C. § 5307(n)(1) on the Consultant, to the extent the Federal Government deems
appropriate.
c. The Consultant agrees to include the above two clauses in each subcontract
financed in whole or in part with Federal assistance provided by FTA. It is further agreed
that the clauses shall not be modified, except to identify the subconsultant who will be
subject to the provisions.
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Exhibit D-2
3. Access to Records
The Consultant agrees to the following access to records requirements:
a. To provide RCTC, the FTA Administrator, the Comptroller General of the United
States or any of their authorized representatives access to any books, documents, papers
and records of the Consultant which are directly pertinent to this contract for the purposes
of making audits, examinations, excerpts and transcriptions. Consultant also agrees,
pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his authorized
representatives including any PMO Consultant access to Consultant's records and
construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which
is receiving federal financial assistance through the programs described at 49 U.S.C. 5307,
5309 or 5311.
b. To make available in the case of a contract for a capital project or improvement, as
defined above and awarded by other than competitive bidding in accordance with 49 U.S.C.
5325(a), records related to the contract to RCTC, the Secretary of Transportation and the
Comptroller General or any authorized officer or employee of any of them for the purposes
of conducting an audit and inspection.
c. To maintain all books, records, accounts and reports required under this contract for
a period of not less than three years after the date of termination or expiration of this
contract, except in the event of litigation or settlement of claims arising from the performance
of this contract, in which case Consultant agrees to maintain same until RCTC, the FTA
Administrator, the Comptroller General, or any of their duly authorized representatives, have
disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49
CFR 18.39(i)(11).
d. To permit any of the foregoing parties to reproduce by any means whatsoever or to
copy excerpts and transcriptions as reasonably needed.
4. Federal Changes
The Consultant shall at all times comply with all applicable FTA regulations, policies,
procedures and directives, including without limitation those listed directly or by reference
in the Master Agreement between RCTC and FTA, as they may be amended or
promulgated from time to time during the term of this contract. Consultant's failure to so
comply shall constitute a material breach of this contract.
5. Civil Rights
The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42
U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C.
§ 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and
Federal transit law at 49 U.S.C. § 5332 and 49 CFR part 21, the Consultant agrees that it
will not discriminate against any employee or applicant for employment because of race,
color, creed,
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Exhibit D-3
national origin, sex, age, or disability. In addition, the Consultant agrees to comply with
applicable Federal implementing regulations and other implementing requirements FTA
may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil
Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332,
the Consultant agrees to comply with all applicable equal employment opportunity
requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal
Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41
C.F.R. Parts 60 et seq ., (which implement Executive Order No. 11246, "Equal Employment
Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order
11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any
applicable Federal statutes, executive orders, regulations, and Federal policies that may
in the future affect construction activities undertaken in the course of the Project. The
Consultant agrees to take affirmative action to ensure that applicants are employed, and
that employees are treated during employment, without regard to their race, color, creed,
national origin, sex, or age. 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. In addition, the Consultant agrees to comply with any
implementing requirements FTA may issue.
(b) Age - In accordance with section 4 of the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. § § 623, Federal transit law at 49 U.S.C. § 5332, the Equal
Employment Opportunity Commission (U.S. EEOC) regulations, “Age Discrimination in
Employment Act,” 29 C.F.R. part 1625, the Age Discrimination Act of 1975, as amended,
42 U.S.C. § 6101 et seq., U.S. Health and Human Services regulations, “Nondiscrimination
on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45
C.F.R. part 90, the Consultant agrees to refrain from discrimination against present and
prospective employees for reason of age. In addition, the Consultant agrees to comply with
any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 504 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42
U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. §
4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Consultant agrees that it will
not discriminate against individuals on the basis of disability, and that it will comply with the
requirements of U.S. Equal Employment Opportunity Commission, "Regulations to
Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29
C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the
Consultant agrees to comply with any implementing requirements FTA may issue.
(3) The Consultant also agrees to include these requirements in each subcontract
financed in whole or in part with Federal assistance provided by FTA, modified only if
necessary to identify the affected parties.
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Exhibit D-4
6. FTA Disadvantaged Business Enterprise (DBE) Requirements
A. General DBE Requirements: In accordance with Federal financial assistance
agreements with the U.S. Department of Transportation (U.S. DOT), Commission has
adopted a Disadvantaged Business Enterprise (DBE) Policy and Program, in conformance
with Title 49 CFR Part 26, “Participation by Disadvantaged Business Enterprises in
Department of Transportation Programs” (the “Regulations”). This RFP is subject to these
stipulated regulations. In order to ensure that Commission achieves its overall DBE
Program goals and objectives, Commission encourages the participation of DBEs as
defined in 49 CFR 26 in the performance of contracts financed in whole or in part with U.S.
DOT funds.
It is the policy of the Commission to:
1. Ensure nondiscrimination in the award and administration of DOT-assisted contracts;
2. Create a level playing field on which DBE’s can compete fairly for DOT-assisted
contracts;
3. Ensure that the DBE program is narrowly tailored in accordance with applicable law;
4. Ensure that only firms that fully meet 49 C.F.R. part 26 eligibility standards are permitted
to participate as DBE’s;
5. Help remove barriers to the participation of DBEs in DOT assisted contracts;
6. To promote the use of DBEs in all types of federally assisted contracts and procurement
activities; and
7. Assist in the development of firms that can compete successfully in the marketplace
outside the DBE program.
B. Discrimination: Consultant shall not discriminate on the basis of race, color, national
origin, or sex in the award and performance of subcontracts. Any terms used herein that
are defined in 49 CFR Part 26, or elsewhere in the Regulations, shall have the meaning
set forth in the Regulations.
C. Commission’s Race-Neutral DBE Program: A Race-Neutral DBE Program is one
that, while benefiting DBEs, is not solely focused on DBE firms. Therefore, under a Race-
Neutral DBE Program, Commission does not establish numeric race-conscious DBE
participation goals on its DOT-assisted contracts. There is no FTA DBE goal on this Project.
Consultant shall not be required to achieve a specific level of DBE participation as a
condition of contract compliance in the performance of this DOT-assisted contract.
However, Consultant
shall adhere to race-neutral DBE participation commitment(s) made at the time of award.
D. Race-Neutral DBE Submissions and Ongoing Reporting Requirements (Post-
Award): At termination of the Contract, the successful Consultant shall complete and submit
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Exhibit D-5
to Commission a “DBE Race-Neutral Participation Listing” in the form provided by
Commission. In the event DBE(s) are utilized in the performance of the Agreement,
Consultant shall comply with applicable reporting requirements.
E. Performance of DBE Subconsultants: DBE subconsultants listed by Consultant in its
“DBE Race-Neutral Participation Listing” submitted at the time of proposal shall perform the
work and supply the materials for which they are listed, unless Consultant has received prior
written authorization from Commission to perform the work with other forces or to obtain the
materials from other sources. Consultant shall provide written notification to Commission in
a timely manner of any changes to its anticipated DBE participation. This notice should be
provided prior to the commencement of that portion of the work.
F. DBE Certification Status: If a listed DBE subconsultant is decertified during the life
of this Agreement, the decertified subconsultant shall notify Consultant in writing with the
date of decertification. If a non-DBE subconsultant becomes a certified DBE during the life
of this Agreement, the DBE subconsultant shall notify Consultant in writing with the date of
certification. Consultant shall furnish the written documentation to Commission in a timely
manner. Consultant shall include this requirement in all subcontracts.
G. Consultant’s Assurance Clause Regarding Non-Discrimination: In compliance with State
and Federal anti-discrimination laws, Consultant shall affirm that it will not exclude or
discriminate on the basis of race, color, national origin, or sex in consideration of contract
award opportunities. Further, Consultant shall affirm that they will consider, and utilize
subconsultants and vendors, in a manner consistent with non-discrimination objectives.
H. Violations: Failure by the selected Consultant(s) to carry out these requirements shall be
a material breach of the contract to be awarded pursuant to this RFP, which may result in
the termination of the contract or such other remedy as the recipient deems appropriate,
which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the Consultant from future bidding as non-responsible. 49 C.F.R. §
26.13(b).
I. Prompt Payment: Consultant shall pay its subconsultants for satisfactory performance of
their contracts no later than 30 days from receipt of each payment Commission makes to
the Consultant. 49 C.F.R. § 26.29(a), unless a shorter period is provided in the contract.
J. Compliance with DBE Requirements Contained in FTA Provisions: Consultant shall
comply with all DBE reporting and other requirements contained in this Agreement.
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Exhibit D-6
7. Incorporation of Federal Transit Administration (FTA) Terms
The preceding provisions include, in part, certain Standard Terms and Conditions required
by DOT, whether or not expressly set forth in the preceding contract provisions. All
contractual provisions required by DOT, as set forth in FTA Circular 4220.1F are hereby
incorporated by reference. Anything to the contrary herein notwithstanding, all FTA
mandated terms shall be deemed to control in the event of a conflict with other provisions
contained in this Agreement. The Consultant shall not perform any act, fail to perform any
act, or refuse to comply with any RCTC requests which would cause RCTC to be in violation
of the FTA terms and conditions.
8. Debarment and Suspension.
The Consultant agrees to the following:
(1) It will comply with the following requirements of 2 CFR Part 180, subpart C, as adopted
and supplemented by U.S. DOT regulations at 2 CFR Part 1200.
(2) It will not enter into any “covered transaction” (as that phrase is defined at 2 CFR §§
180.220 and 1200.220) with any subconsultant whose principal is, suspended, debarred, or
otherwise excluded from participating in covered transactions, except as authorized by— (i)
U.S. DOT regulations, “Nonprocurement Suspension and Debarment,” 2 CFR Part 1200;
(ii) U.S. OMB regulatory guidance, “Guidelines to Agencies on Governmentwide Debarment
and Suspension (Nonprocurement),” 2 CFR Part 180; and (iii) Other applicable federal laws,
regulations, or requirements regarding participation with debarred or suspended recipients
or third party participants.
(3) It will review the U.S. GSA “System for Award Management – Lists of Parties Excluded
from Federal Procurement and Nonprocurement Programs,” if required by U.S. DOT
regulations, 2 CFR Part 1200.
9. ADA Access Requirements
The Consultant shall comply with all applicable requirements of the Americans with
Disabilities Act of 1990 (ADA), 42 USC Section 12101 et seq; Section 504 of the
Rehabilitation Act of 1973, as amended, 29 USC Section 794; 49 USC Section 5301(d).
10. Fly America
.
To the extent applicable to the Services, the Consultant agrees to comply with 49 U.S.C.
40118 (the "Fly America" Act) in accordance with the General Services Administration's
regulations at 41 CFR Part 301-10, which provide that recipients and sub recipients of
Federal funds and their consultants are required to use U.S. Flag air carriers for U.S.
Government-financed international air travel and transportation of their personal effects or
property, to the extent such service is available, unless travel by foreign air carrier is a
matter of necessity, as defined by the Fly America Act. The Consultant shall submit, if a
foreign air carrier was used, an appropriate certification or memorandum adequately
explaining why service by a U.S. flag air carrier was not available or why it was necessary
to use a foreign air carrier and shall, in any event, provide a certificate of compliance with
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Exhibit D-7
the Fly America requirements. The Consultant agrees to include the requirements of this
section in all subcontracts that may involve international air transportation.
11. Cargo Preference - Use of United States-Flag Vessels
To the extent applicable to the Services, the Consultant agrees:
1. To use privately owned United States-Flag commercial vessels to ship at least
50 percent of the gross tonnage (computed separately for dry bulk carriers, dry
cargo liners, and tankers) involved, whenever shipping any equipment, material,
or commodities pursuant to the underlying contract to the extent such vessels are
available at fair and reasonable rates for United States-Flag commercial vessels;
2. To furnish within 20 working days following the date of loading for shipments
originating within the United States or within 30 working days following the date
of leading for shipments originating outside the United States, a legible copy of a
rated, "on-board" commercial ocean bill-of -lading in English for each shipment of
cargo described in the preceding paragraph to the Division of National Cargo,
Office of Market Development, Maritime Administration, Washington, DC 20590
and to the FTA recipient (through the Consultant in the case of a subconsultant's
bill-of-lading.)
3. To include these requirements in all subcontracts issued pursuant to this contract
when the subcontract may involve the transport of equipment, material, or
commodities by ocean vessel.
11. Buy America – Not applicable.
12. Employment Provisions
To the extent applicable to the Services, Consultant shall comply with the following:
A. Equal Employment Opportunity — Not applicable.
B. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c) — Not applicable.
C. Contact Work Hours and Safety Standards Act (40 U.S.C. 327–333) —Not applicable.
D. Release of Retainage
No retainage will be withheld by the RCTC from progress payments due Consultant.
Retainage by Consultant or subconsultants is prohibited, and no retainage will be held by
the prime consultant from progress due subconsultants. Any violation of this provision shall
subject the violating Consultant or subconsultants to the penalties, sanctions, and other
remedies specified in Section 7108.5 of the California Business and Professions Code.
This requirement shall not be construed to limit or impair any contractual, administrative,
or judicial remedies, otherwise available to Consultant or subconsultant in the event of a
dispute involving late payment or nonpayment by Consultant or deficient subconsultant
performance, or noncompliance by a subconsultant.
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Exhibit D-8
13. Termination for Convenience
RCTC may terminate the Agreement for convenience in accordance with the terms of the
Agreement.
After such termination, the Consultant shall submit a final termination settlement proposal
to RCTC as directed. If the Consultant fails to submit a proposal within the time allowed,
RCTC may determine, on the basis of information available, the amount, if any due the
Consultant because of the termination and shall pay the amount determined. After the
Consultant’s proposal is received, RCTC and Consultant shall negotiate a fair and equitable
settlement and the contract will be modified to reflect the negotiated agreement. If
agreement cannot be reached, RCTC may issue a final determination and pay the amount
determined. If the Consultant does not agree with this final determination or the
determination resulting from the lack of timely submission of a proposal, the Consultant may
appeal under the Disputes clause.
14. Administrative and Contractual Remedies on Breach; Termination for Cause
a. The Consultant may be declared in breach of this Agreement (“Breach”) if the
Consultant
fails to make delivery of the supplies or to perform the services within the time specified
herein or any extension thereof; or if the Consultant fails to perform any of the other
provisions of the contract, or so fails to make progress as to endanger performance of this
contract in accordance with its terms. In case of any of the foregoing, RCTC shall notify the
Consultant of the Breach, and the Consultant shall have a period of ten (10) days (or such
longer period as RCTC may authorize in writing) after receipt of notice from RCTC to cure
the Breach.
b. RCTC may, by written notice of termination to the Consultant specifying the effective
date thereof, terminate the whole or any part of this contract, in the case of a Breach that is
not cured within the timeframe set forth in (a) above (“Uncured Breach”).
c. If the contract is terminated in whole or in part for an Uncured Breach, RCTC may
procure upon such terms and in such manner as RCTC may deem appropriate, supplies
or services similar to those so terminated, or may complete the services with its own forces.
The Consultant shall be liable to RCTC for any excess costs for such similar supplies or
services, and for any other costs incurred by RCTC as a result of the Uncured Breach. The
Consultant shall continue the performance of this contract to the extent not terminated
under the provisions of this clause.
d. Except with respect to defaults of Subconsultants, the Consultant shall not be liable
for any excess costs if the failure to perform the contract arises out of causes beyond the
control and without the fault or negligence of the Consultant. If the failure to perform is
caused by the default of a Subconsultant, and if such default arises out of causes beyond
the control of both the Consultant and the Subconsultant, and without the fault or negligence
of either of them, the Consultant shall not be liable for any excess costs for failure to perform,
unless the supplies or services to be furnished by the Subconsultant were obtainable from
other sources in sufficient time to permit the Consultant to meet the required project
completion schedule.
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Exhibit D-9
e. Payment for completed services or supplies delivered to and accepted by RCTC
shall be at the contract price. RCTC may withhold from amounts otherwise due the
Consultant for such completed services or supplies such sum as RCTC determines to be
necessary to protect RCTC against loss because of outstanding liens of claims of former
lien holders, or to reimburse RCTC for any other costs related to the Uncured Breach.
f. If, after notice of termination of this contract for cause, it is determined for any reason
that an Uncured Breach did not exist, the rights and obligations of the parties shall be the
same as if the notice of termination had been issued pursuant to the provisions for
termination for convenience of RCTC.
g. The rights and remedies of RCTC provided in this clause shall not be exclusive and
are in addition to any other rights and remedies provided by law, equity or under this contract
including, but not limited to, the right to specific performance.
h. Notwithstanding the above, RCTC may, without providing an opportunity to cure,
terminate the contract in accordance with the timeframe set forth in Section 17 of the
contract, if RCTC determines such action is in its best interest based on the nature of the
Breach. Such actions shall not limit any of RCTC’s remedies set forth above.
16. Disputes
a. Except as otherwise provided in this Agreement, any dispute concerning a question
of fact arising under this Agreement which is not disposed of by supplemental agreement
shall be
decided by RCTC’s Deputy Executive Director, who shall reduce the decision to writing and
mail or otherwise furnish a copy thereof to the Consultant. The decision of the RCTC Deputy
Executive Director shall be final and conclusive unless, within thirty (30) days from the date
of receipt of such copy, Consultant mails or otherwise furnishes to the RCTC Deputy
Executive Director a written appeal addressed to RCTC's Executive Director. The decision
of RCTC Executive Director or duly authorized representative for the determination of such
appeals shall be final and conclusive.
b. The provisions of this Paragraph shall not be pleaded in any suit involving a question
of fact arising under this Agreement as limiting judicial review of any such decision to cases
where fraud by such official or his representative or board is alleged, provided, however,
that any such decision shall be final and conclusive unless the same is fraudulent or
capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith or is not
supported by substantial evidence. In connection with any appeal proceeding under this
Paragraph, the Consultant shall be afforded an opportunity to be heard and to offer evidence
in support of its appeal.
c. Pending final decision of a dispute hereunder, Consultant shall proceed diligently
with the performance of this Agreement and in accordance with the decision of RCTC's
Deputy Executive Director. This "Disputes" clause does not preclude consideration of
questions of law in connection with decisions provided for above. Nothing in this Agreement,
however, shall be construed as making final the decision of any RCTC official or
representative on a question of law, which questions shall be settled in accordance with the
laws of the State of California.
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Exhibit D-10
17. Lobbying
See the Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying
Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Consultants
who apply or bid for an award of $100,000 or more shall file the certification required by 49
CFR part 20, "New Restrictions on Lobbying.” Each tier certifies to the tier above that it will
not and has not used Federal appropriated funds to pay any person or organization for
influencing or attempting to influence an officer or employee of any agency, a member of
Congress, officer or employee of Congress, or an employee of a member of Congress in
connection with obtaining any Federal contract, grant or any other award covered by 31
U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying
Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal
funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352.
Such disclosures are forwarded from tier to tier up to the recipient. The Offeror shall
complete and submit with its bid/proposal the attached Certification Regarding Lobbying,
and if applicable, the Standard Form-LLL, “Disclosure Form to Report Lobbying.”
18. Energy Conservation
The Consultant agrees to comply with mandatory standards and policies relating to energy
efficiency which are contained in the state energy conservation plan issued in compliance
with the Energy Policy and Conservation Act.
19. Clean Water
a. The Consultant 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. The Consultant agrees to report each violation to RCTC and understands and
agrees that RCTC will, in turn, report each violation as required to assure notification to FTA
and the appropriate EPA Regional Office.
d. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List of
Violating Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as
amended, (42 U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as
amended, (33 U.S.C. §§ 1251-1387).
The Consultant also agrees to include these requirements in each subcontract exceeding
$150,000 financed in whole or in part with Federal assistance provided by FTA.
20. Clean Air
a. The Consultant 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.
The Consultant agrees to report each violation to RCTC and understands and agrees that
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Exhibit D-11
RCTC will, in turn, report each violation as required to assure notification to FTA and the
appropriate EPA Regional Office.
b.The Consultant further agrees that:
(1)It will not use any violating facilities;
(2)It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List of
Violating Facilities;”
(3)It will report violations of use of prohibited facilities to FTA; and
(4)It will comply with the inspection and other requirements of the Clean Air Act, as
amended, (42 U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as
amended, (33 U.S.C. §§ 1251-1387).
c.The Consultant also agrees to include these requirements in each subcontract
exceeding $150,000 financed in whole or in part with Federal assistance provided by FTA.
21. Recycled Products
Recovered Materials - The Consultant agrees to comply with all the requirements of
Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42
U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247,
and Executive Order
12873, as they apply to the procurement of the items designated in Subpart B of 40
CFR Part 247.
21.SPECIAL PROVISION FOR PROMOTING COVID-19 SAFETY
Section 49. Centers for Disease Control and Prevention Order on Requirements for
Persons to Wear Masks While on Conveyances and at Transportation Hubs.
(a) Compliance with CDC Mask Order. The Centers for Disease Control and Prevention
(“CDC”) Order of January 29, 2021, titled Requirement for Persons to Wear Masks While
on Conveyances and at Transportation Hubs (“CDC Mask Order”), applies to this
Agreement. One of the objectives of the CDC Mask Order is “[m]aintaining a safe and
operating transportation system.” Consultant agrees that it will comply, and will require all
subconsultants to comply, with the CDC Mask Order.
(b) Enforcement for non-compliance. Consultant agrees that FTA and RCTC may take
enforcement action for non-compliance with the CDC Mask Order, including: (1)
enforcement actions authorized by 49 U.S.C. § 5329(g); (2) referring Consultant to the CDC
or other Federal authority for enforcement action; (3) enforcement actions authorized by 2
CFR §§ 200.339 – .340; and (4) any other enforcement action authorized by Federal law or
regulation.
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Exhibit D-12
22. Safe Operation of Motor Vehicles
Pursuant to Federal Executive Order No. 13043, “Increasing Seat Belt Use in the United
States,” April 16, 1997, 23 U.S.C. Section 402 note, FTA encourages each third party
consultant to adopt and promote on-the-job seat belt use policies and programs for its
employees and other personnel that operate company owned, rented, or personally
operated vehicles, and to include this provision in each third party subcontract involving
the project.
a. The Consultant is encouraged to adopt and promote on-the-job seat belt use policies and
programs for its employees and other personnel that operate company-owned vehicles,
company-rented vehicles, or personally operated vehicles. The terms “company-owned”
and “company-leased” refer to vehicles owned or leased either by the Consultant or RCTC.
. The Consultant agrees to adopt and enforce workplace safety policies to decrease
crashes
caused by distracted drivers, including policies to ban text messaging while using an
electronic device supplied by an employer, and driving a vehicle the driver owns or rents,
a vehicle Contactor owns, leases, or rents, or a privately-owned vehicle when on official
business in connection with the work performed under this contract.
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Exhibit E-1
EXHIBIT "E"
CERTIFICATE OF CONSULTANT
I HEREBY CERTIFY that I am the _______________________ and duly authorized
representative of the firm of _____________________________________ whose address
is ____________________________________________________, and that, except as
hereby expressly stated, neither I nor the above firm that I represent have:
(a) employed or retained for a commission, percentage, brokerage, contingent
fee, or other consideration, any firm or person (other than a bona fide
employee working solely for me or the above consultant) to solicit or secure
this agreement; nor
(b) agreed, as an express or implied condition for obtaining this Agreement, to
employ or retain the services of any firm or person in connection with carrying
out the agreement; nor
(c) paid, or agreed to pay, to any firm, organization or person (other than a bona
fide employee working solely for me or the above consultant) any fee,
contribution, donation, or consideration of any kind for, or in connection with,
procuring or carrying out this agreement.
I acknowledge that this Certificate is to be made available to the California
Department of Transportation (Caltrans) in connection with this agreement involving
participation of Federal-aid Highway funds, and is subject to applicable State and Federal
laws, both criminal and civil.
By: ____________________________
Signature
____________________________
Name
____________________________
Title
____________________________
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Hawran & Malm, LLC – Statement of Qualifications Request for Proposals (RFP) NO. 22-41-009-00 24
H AWRAN & M ALM, LLC
Appendix L – Disclosure of Lobbying Activities
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Agreement No. 22-31-026-00
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA AND FTA FUNDING ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
HENNESSEY & HENNESSEY, LLC
FOR ON-CALL
RIGHT OF WAY APPRAISAL SERVICES
Parties and Date.
This Agreement is made and entered into this ___ day of _______, 2021,
by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the
Commission") and HENNESSEY & HENNESSEY, LLC ("Consultant"), a Limited
Liability Company. The Commission and Consultant are sometimes referred to herein
individually as “Party”, and collectively as the “Parties”.
Recitals.
A.On November 8, 1988, the Voters of Riverside County approved Measure
A authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax
(the "tax") to fund transportation programs and improvements within the County of
Riverside, and adopting the Riverside County Transportation Improvement Plan (the
"Plan").
B.Pursuant to Public Utility Code Sections 240000 et seq., the Commission is
authorized to allocate the proceeds of the Tax in furtherance of the Plan.
C.On November 5, 2002, the voters of Riverside County approved an
extension of the Measure A tax for an additional thirty (30) years for the continued funding
of transportation and improvements within the County of Riverside.
D.A source of funding for payment for on-call professional appraisal services
provided under this Agreement may be Federal Highway Administration (“FHWA”) funds
administered by the California Department of Transportation (“Caltrans”), and/or funds
from the Federal Transit Administration (“FTA”). This Commission may withhold payment
of any federal funds hereunder until the certification shown in Exhibit “F” attached hereto
and incorporated herein by reference, is executed.
E.Consultant desires to perform and assume responsibility for the provision
of certain on-call right of way appraisal services for projects in the County of Riverside,
California. Services shall be provided on the terms and conditions set forth in this
Agreement and in the task order(s) to be solicited, awarded and authorized by
Commission as further described in this Agreement (“Task Order”). Consultant
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represents that it is experienced in providing such services to public clients, is licensed in
the State of California (if necessary) and is familiar with the plans of the Commission.
G. Commission desires to engage Consultant to render such services on an
on-call basis. Services shall be ordered by Task Order(s) to be issued pursuant to this
Agreement for future projects as set forth herein and in each Task Order (each such
project shall be designated a “Project” under this Agreement).
Terms.
1. General Scope of Services. Consultant shall furnish all technical and
professional services, including labor, material, equipment, transportation, supervision
and expertise, and incidental and customary work necessary to fully and adequately
supply the on-call right of way appraisal services for the Projects ("Services"). The
Services are generally described in Exhibit "A" attached hereto and incorporated herein
by reference. The Services shall be more particularly described in the individual Task
Orders issued by the Commission’s Executive Director or designee. No Services shall
be performed unless authorized by a fully executed Task Order. All Services shall be
subject to, and performed in accordance with, this Agreement, the relevant Task Order,
the exhibits attached hereto and incorporated herein by reference, and all applicable
local, state and federal laws, rules and regulations.
2. Task Orders; Commencement of Services; Schedule of Services. Services
under this Agreement shall be requested by the Commission pursuant to Task Order
requests. If Commission accepts Consultant’s Task Order proposal, Commission shall
issue a purchase order or executed task order for the Services (“Commission’s Task
Order Authorization”). Consultant’s agreement to the final terms of a proposed Task
Order, Commission’s Task Order Authorization and Consultant’s commencement of the
Services shall indicate the Parties’ agreement to the terms of the relevant Task Order.
Consultant shall commence Services under a Task Order within five (5)
days of receiving Commission’s Task Order Authorization.
Consultant shall perform the Services expeditiously, in accordance with the
Schedule of Services set forth in a Task Order. Consultant represents that it has the
professional and technical personnel required to perform the Services in conformance
with such conditions. In order to facilitate Consultant's conformance with the Schedule,
Commission shall respond to Consultant's submittals in a timely manner. Upon request
of the Commission, Consultant shall provide a more detailed schedule of anticipated
performance to meet the Schedule of Services.
3. Pre-Award Audit. As a result of the funding for this Project, and to the extent
Caltrans procedures apply in connection therewith, issuance of a “Notice to Proceed” or
other authorization to proceed under a Task Order may be contingent upon completion
and approval of a pre-award audit. Any questions raised during the pre-award audit shall
be resolved before Services are commenced under a Task Order. The funding provided
under this Agreement is contingent on meeting all funding requirements and could be
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withdrawn, thereby entitling the Commission to terminate this Agreement, if the
procedures are not completed. The Consultant’s files shall be maintained in a manner to
facilitate State process reviews. In addition, Caltrans may require that prior to
performance of any work for which funding reimbursement through Caltrans is requested
and provided, that Caltrans must give to Commission an “Authorization to Proceed”.
4. Audit Procedures.
4.1 Consultant and certain subconsultant contracts, including cost
proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract
audit, an incurred cost audit, an Independent Cost Review (ICR) Audit, or a CPA ICR
audit work paper review. If selected for audit or review, this Agreement, Consultant’s cost
proposal and ICR and related work papers, if applicable, will be reviewed to verify
compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances
of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal,
state, or local government officials are allowed full access to the CPA’s work papers
including making copies as necessary. This Agreement, Consultant’s cost proposal, and
ICR shall be adjusted by Consultant and approved by the Commission’s contract
manager to conform to the audit or review recommendations. Consultant agrees that
individual terms of costs identified in the audit report shall be incorporated into this
Agreement by this reference if directed by Commission at its sole discretion. Refusal by
Consultant to incorporate audit or review recommendations, or to ensure that the federal,
state or local governments have access to CPA work papers, will be considered a breach
of the Agreement terms and cause for termination of this Agreement and disallowance
of prior reimbursed costs. Additional audit provisions applicable to this Agreement are
set forth in Sections 22 and 23 of this Agreement.
Section 4.2 and 4.3 shall apply to the extent applicable to the Task Order and funding
source.
4.2 During any Caltrans’ review of the ICR audit work papers created
by the Consultant’s independent CPA, Caltrans will work with the CPA and/or Consultant
toward a resolution of issues that arise during the review. Each party agrees to use its
best efforts to resolve any audit disputes in a timely manner. If Caltrans identifies
significant issues during the review and is unable to issue a cognizant approval letter,
Commission will reimburse the Consultant at an accepted ICR until a FAR (Federal
Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally
Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in
accordance with procedures and guidelines of the American Association of State
Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable
procedures and guidelines is received and approved by Caltrans.
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted
rate reimbursed will be ninety percent (90%) of the proposed rate.
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b. If the proposed rate is between one hundred fifty percent (150%) and two hundred
percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted
rate will be seventy-five percent (75%) of the proposed rate.
4.3 If Caltrans is unable to issue a cognizant letter per Section 4.2
above, Caltrans may require Consultant to submit a revised independent CPA-audited
ICR and audit report within three (3) months of the effective date of the Caltrans’
management letter. Caltrans will then have up to six (6) months to review the
Consultant’s and/or the independent CPA’s revisions.
If the Consultant fails to comply with the provisions of this Section 4, or if
Caltrans is still unable to issue a cognizant approval letter after the revised independent
CPA audited ICR is submitted, overhead cost reimbursement will be limited to the
accepted ICR that was established upon initial rejection of the ICR and set forth in
Section 4.2 above for all rendered services. In this event, this accepted ICR will become
the actual and final ICR for reimbursement purposes under this Agreement.
Consultant may submit to Commission final invoice only when all of the
following items have occurred: (1) Caltrans accepts or adjusts the original or revised
independent CPA audited ICR; (2) all work under this Agreement has been completed
to the satisfaction of Commission; and (3) Caltrans has issued its final ICR review letter.
The Consultant must submit its final invoice to Commission no later than sixty (60)
calendar days after occurrence of the last of these items. The accepted ICR will apply
to this Agreement and all Task Orders issued under this Agreement, and all other
agreements executed between the Commission and the Consultant, either as a prime or
subconsultant, with the same fiscal period ICR.
5. Term.
5.1 This Agreement shall go into effect on the date first set forth above,
contingent upon approval by Commission, and Consultant shall commence work after
notification to proceed by Commission’s Contract Administrator. This Agreement shall
end on December 31, 2025, unless extended by contract amendment.
Notwithstanding the foregoing, Caltrans and/or FHWA funded Task Orders
shall be completed within thirty-six (36) months of the Effective Date, unless approval of
Caltrans is obtained from the Commission.
5.2 Consultant is advised that any recommendation for contract award
is not binding on Commission until this Agreement is fully executed and approved by the
Commission.
5.3 This Agreement shall remain in effect until the date set forth above,
unless earlier terminated as provided herein. Consultant shall complete the Services
within the term of this Agreement, and shall meet any other established schedules and
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deadlines. All applicable indemnification provisions of this Agreement shall remain in
effect following the termination of this Agreement.
6. Commission's Contract Administrator. The Commission hereby designates
the Commission's Executive Director, or his or her designee, to act as its Contract
Administrator for the performance of this Agreement ("Commission’s Contract
Administrator"). Commission’s Contract Administrator shall have the authority to act on
behalf of the Commission for all purposes under this Agreement. Commission’s Contract
Administrator shall also review and give approval, as needed, to the details of
Consultant's work as it progresses. Consultant shall not accept direction or orders from
any person other than the Commission’s Contract Administrator or his or her designee.
7. Consultant's Representative. Consultant hereby Sharon A. Hennessey to
act as its Representative for the performance of this Agreement ("Consultant’s
Representative"). Consultant's Representative shall have full authority to act on behalf
of Consultant for all purposes under this Agreement. The Consultant’s Representative
shall supervise and direct the Services, using his or her professional skill and attention,
and shall be responsible for all means, methods, techniques, sequences and procedures
and for the satisfactory coordination of all portions of the Services under this Agreement.
Consultant shall work closely and cooperate fully with Commission’s Contract
Administrator and any other agencies which may have jurisdiction over, or an interest in,
the Services. Consultant's Representative shall be available to the Commission staff at
all reasonable times. Any substitution in Consultant's Representative shall be approved
in writing by Commission’s Contract Administrator.
8. Substitution of Key Personnel. Consultant has represented to the
Commission that certain key personnel will perform and coordinate the Services under
this Agreement. Should one or more of such personnel become unavailable, Consultant
may substitute other personnel of at least equal competence upon written approval by the
Commission. In the event that the Commission and Consultant cannot agree as to the
substitution of the key personnel, the Commission shall be entitled to terminate this
Agreement for cause, pursuant to the provisions herein. The key personnel for
performance of this Agreement are: Sharon A. Hennessey and Susan D. Taylor, or as
otherwise identified in the Task Order.
9. Standard of Care; Licenses. Consultant represents and maintains that it is
skilled in the professional calling necessary to perform all Services, duties and obligations
required by this Agreement to fully and adequately complete the Project. Consultant shall
perform the Services and duties in conformance to and consistent with the standards
generally recognized as being employed by professionals in the same discipline in the
State of California. Consultant warrants that all employees and subcontractors shall have
sufficient skill and experience to perform the Services assigned to them. Consultant
further represents and warrants to the Commission that its employees and subcontractors
have all licenses, permits, qualifications and approvals of whatever nature that are legally
required to perform the Services, and that such licenses and approvals shall be
maintained throughout the term of this Agreement. Consultant shall perform, at its own
cost and expense and without reimbursement from the Commission, any services
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necessary to correct errors or omissions which are caused by the Consultant’s failure to
comply with the standard of care provided for herein, and shall be fully responsible to the
Commission for all damages and other liabilities provided for in the indemnification
provisions of this Agreement arising from the Consultant’s errors and omissions. Any
employee of Consultant or its sub-consultants who is determined by the Commission to
be uncooperative, incompetent, a threat to the adequate or timely completion of the
Project, a threat to the safety of persons or property, or any employee who fails or refuses
to perform the Services in a manner acceptable to the Commission, shall be promptly
removed from the Project by the Consultant and shall not be re-employed to perform any
of the Services or to work on the Project.
10. Independent Contractor. The Services shall be performed by Consultant or
under its supervision. Consultant will determine the means, methods and details of
performing the Services subject to the requirements of this Agreement. Commission
retains Consultant on an independent contractor basis and not as an employee, agent or
representative of the Commission. Consultant retains the right to perform similar or
different services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Consultant shall at all times
be under Consultant's exclusive direction and control. Consultant shall pay all wages,
salaries and other amounts due such personnel in connection with their performance of
Services and as required by law. Consultant shall be responsible for all reports and
obligations respecting such personnel, including but not limited to, social security taxes,
income tax withholdings, unemployment insurance, disability insurance, and workers'
compensation insurance.
11. Project Progress.
11.1 Modification of the Schedule. Consultant shall regularly report to
the Commission, through correspondence or progress reports, its progress in providing
required Services within the scheduled time periods. Commission shall be promptly
informed of all anticipated delays. In the event that Consultant determines that a
schedule modification is necessary, Consultant shall promptly submit a revised Schedule
of Services for approval by Commission’s Contract Administrator.
11.2 Trend Meetings. Consultant shall conduct trend meetings with the
Commission’s Contract Administrator and other interested parties, as requested by the
Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a
standard day and time. These trend meetings will encompass focused and informal
discussions concerning scope, schedule, and current progress of Services, relevant cost
issues, and future Project objectives. Consultant shall be responsible for the preparation
and distribution of meeting agendas to be received by the Commission and other
attendees no later than three (3) working days prior to the meeting.
11.3 Progress Reports. As part of its monthly invoice, Consultant shall
submit a progress report, in a form determined by the Commission, which will indicate
the progress achieved during the previous month in relation to the Schedule of Services.
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Submission of such progress report by Consultant shall be a condition precedent to
receipt of payment from the Commission for each monthly invoice submitted.
12. Delay in Performance.
12.1 Excusable Delays. Should Consultant be delayed or prevented
from the timely performance of any act or Services required by the terms of the
Agreement by reason of acts of God or of the public enemy, acts or omissions of the
Commission or other governmental agencies in either their sovereign or contractual
capacities, fires, floods, pandemics, epidemics, quarantine restrictions, strikes, freight
embargoes or unusually severe weather, performance of such act shall be excused for
the period of such delay.
12.2 Written Notice. If Consultant believes it is entitled to an extension
of time due to conditions set forth in subsection 12.1, Consultant shall provide written
notice to the Commission within seven (7) working days from the time Consultant knows,
or reasonably should have known, that performance of the Services will be delayed due
to such conditions. Failure of Consultant to provide such timely notice shall constitute a
waiver by Consultant of any right to an excusable delay in time of performance.
12.3 Mutual Agreement. Performance of any Services under this
Agreement may be delayed upon mutual agreement of the Parties. Upon such
agreement, Consultant's Schedule of Services shall be extended as necessary by the
Commission. Consultant shall take all reasonable steps to minimize delay in completion,
and additional costs, resulting from any such extension.
13. Preliminary Review of Work. All reports, working papers, and similar work
products prepared for submission in the course of providing Services under this
Agreement shall be submitted to the Commission’s Contract Administrator in draft form,
and the Commission may require revisions of such drafts prior to formal submission and
approval. In the event plans and designs are to be developed as part of the Project, final
detailed plans and designs shall be contingent upon obtaining environmental clearance
as may be required in connection with Federal funding. In the event that Commission’s
Contract Administrator, in his or her sole discretion, determines the formally submitted
work product to be not in accordance with the standard of care established under this
Agreement, Commission’s Contract Administrator may require Consultant to revise and
resubmit the work at no cost to the Commission.
14. Appearance at Hearings. If and when required by the Commission,
Consultant shall render assistance at public hearings or other meetings related to the
Project or necessary to the performance of the Services. However, Consultant shall not
be required to, and will not, render any decision, interpretation or recommendation
regarding questions of a legal nature or which may be construed as constituting a legal
opinion.
15. Opportunity to Cure; Inspection of Work. Commission may provide
Consultant an opportunity to cure, at Consultant's expense, all errors and omissions
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which may be disclosed during Project implementation. Should Consultant fail to make
such correction in a timely manner, such correction may be made by the Commission,
and the cost thereof charged to Consultant. Consultant shall allow the Commission’s
Contract Administrator and Caltrans to inspect or review Consultant's work in progress at
any reasonable time.
16. Final Acceptance. Upon determination by the Commission that Consultant
has satisfactorily completed the Services required under this Agreement and within the
term set forth herein the Commission shall give Consultant a written Notice of Final
Acceptance. Upon receipt of such notice, Consultant shall incur no further costs
hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may
request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily
completed all Services required under the terms of this Agreement. In the event
copyrights are permitted under this Agreement, then in connection with Federal funding,
it is hereby acknowledged and agreed that the United States Department of
Transportation shall have the royalty-free non-exclusive and irrevocable right to
reproduce, publish, or otherwise use, and to authorize others to use, the work for
governmental purposes.
17. Laws and Regulations. Consultant shall keep itself fully informed of and in
compliance with all local, state and federal laws, rules and regulations in any manner
affecting the performance of the Project or the Services, including all Cal/OSHA
requirements, and shall give all notices required by law. For example, and not by way of
limitation, Consultant shall keep itself fully informed of and in compliance with all
implementing regulations, design standards, specifications, previous commitments that
must be incorporated in the design of the Project, and administrative controls including
those of the United States Department of Transportation. Compliance with Federal
procedures may include completion of the applicable environmental documents and
approved by the United States Department of Transportation. For example, and not by
way of limitation, a signed Categorical Exclusion, Finding of No Significant Impact, or
published Record of Decision may be required to be approved and/or completed by the
United States Department of Transportation. For Consultant shall be liable for all
violations of such laws and regulations in connection with Services. If the Consultant
performs any work knowing it to be contrary to such laws, rules and regulations and
without giving written notice to the Commission, Consultant shall be solely responsible
for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission,
its officials, directors, officers, employees and agents free and harmless, pursuant to the
indemnification provisions of this Agreement, from any claim or liability arising out of any
failure or alleged failure to comply with such laws, rules or regulations.
18. Fees and Payment.
18.1 The method of payment for this Agreement will be based on actual
cost. Commission shall reimburse Consultant for actual costs (including labor costs,
employee benefits, travel, equipment rental costs, overhead and other direct costs)
incurred by Consultant in performance of the Services. Consultant shall not be
reimbursed for actual costs that exceed the estimated wage rates, employee benefits,
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travel, equipment rental, overhead, and other estimated costs set forth in the approved
Consultant cost proposal attached hereto as Exhibit “B” and incorporated herein by
reference, or any cost proposal included as part of a Task Order (“Cost Proposal”) unless
additional reimbursement is provided for by written amendment. In no event, shall
Consultant be reimbursed for overhead costs at a rate that exceeds Commission’s
approved overhead rate set forth in the Cost Proposal. To the extent legally permissible,
Consultant’s approved overhead rate shall be fixed for the term of this Agreement. In the
event that Commission determines that a change to the Services from that specified in
the Cost Proposal, this Agreement or any Task Order is required, the Agreement time or
actual costs reimbursable by Commission shall be adjusted by written amendment to
accommodate the changed work. The maximum total cost as specified in Section 18.8
shall not be exceeded, unless authorized by a written amendment.
18.2 Reimbursement for transportation and subsistence costs shall not
exceed the rates specified in the approved Cost Proposal. In addition, payments to
Consultant for travel and subsistence expenses claimed for reimbursement or applied
as local match credit shall not exceed rates authorized to be paid exempt non-
represented State employees under current State Department of Personnel
Administration (DPA) rules, unless otherwise authorized by Commission. If the rates
invoiced are in excess of those authorized DPA rates, and Commission has not
otherwise approved said rates, then Consultant is responsible for the cost difference and
any overpayments shall be reimbursed to the Commission on demand.
18.3 When milestone cost estimates are included in the approved Cost
Proposal for a Task Order, Consultant shall obtain prior written approval for a revised
milestone cost estimate from the Contract Administrator before exceeding such cost
estimate.
18.4 Progress payments shall be made monthly in arrears based on
Services provided and allowable incurred costs. If Consultant fails to submit the required
deliverable items according to the schedule set forth in the Scope of Services,
Commission shall have the right to delay payment or terminate this Agreement in
accordance with the provisions of Section 20, Termination.
18.5 No payment shall be made prior to approval of any Services, nor for
any Services performed prior to approval of this Agreement.
18.6 Consultant shall be reimbursed, as promptly as fiscal procedures
will permit upon receipt by Commission’s Contract Administrator of itemized invoices in
triplicate. Invoices shall be submitted no later than 45 calendar days after the
performance of work for which Consultant is billing. Invoices shall detail the work
performed on each milestone and each project as applicable. Invoices shall follow the
format stipulated for the approved Cost Proposal and shall reference this Agreement
number and project title. Final invoice must contain the final cost and all credits due
Commission including any equipment purchased under the Equipment Purchase
provisions of this Agreement. The final invoice should be submitted within 60 calendar
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days after completion of Consultant’s work. Invoices shall be mailed to Commission’s
Contract Administrator at the following address:
Riverside County Transportation Commission
Attention: Accounts Payable
P.O. 12008
Riverside, CA 92502
18.7 The total amount payable by Commission, shall not exceed the
amount set forth in each Task Order.
18.8 Commission has or will enter into five (5) task order contracts for
performance of the Scope of Services identified in Exhibit “A”, including this Agreement
(“On-Call ROW Appraisal Task Order Contracts”). The other On-Call ROW Appraisal
Task Order Contracts are Hawran & Malm, LLC, 22-31-009-00; Integra Realty
Resources – Los Angeles, 22-31-027-00; R.P. Laurain & Associates, Inc., 22-31-028-
00; and Santolucito Dorè Group, Inc., 22-31-029-00. The total amount payable by
Commission for the On-Call ROW Appraisal Task Order Contracts shall not exceed a
cumulative maximum total value of One Million Dollars ($1,000,000) (“NTE Sum”). It is
understood and agreed that there is no guarantee, either expressed or implied that this
dollar amount will be authorized under the On-Call ROW Appraisal Task Order Contracts
through Task Orders. Each time a Task Order is awarded under any of the On-Call ROW
Appraisal Task Order Contracts, Commission must send written notification to
Consultant and each of the other consultants entering into the On-Call ROW Appraisal
Task Order Contracts. The notice must identify the total funds allocated under issued
Task Orders, and the remaining unencumbered amount of the NTE Sum. Consultant
acknowledges and agrees that Commission must not pay any amount under this
Agreement that would exceed the NTE Sum, and Consultant must not enter into a Task
Order that exceeds the NTE Sum.
18.9 Salary increases shall be reimbursable if the new salary is within the
salary range identified in the approved Cost Proposal and is approved by Commission’s
Contract Administrator. For personnel subject to prevailing wage rates as described in
the California Labor Code, all salary increases, which are the direct result of changes in
the prevailing wage rates are reimbursable.
18.10 Consultant shall not be reimbursed for any expenses unless
authorized in writing by the Commission’s Contract Administrator.
18.11 All subcontracts in excess of $25,000 shall contain the above
provisions.
19. Disputes.
19.1 Any dispute, other than audit, concerning a question of fact arising
under this Agreement that is not disposed of by mutual agreement of the Parties shall
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be decided by a committee consisting of RCTC’s Contract Administrator and the Director
of Capital Projects, who may consider written or verbal information submitted by
Consultant.
19.2 Not later than 30 days after completion of all Services under this
Agreement, Consultant may request review by the Commission’s Executive Director of
unresolved claims or disputes, other than audit. The request for review will be submitted
in writing.
19.3 Neither the pendency of a dispute, nor its consideration by the
committee will excuse Consultant from full and timely performance in accordance with
the terms of this Agreement.
20. Termination.
20.1 Commission reserves the right to terminate this Agreement upon
thirty (30) calendar days written notice to Consultant, for any or no reason, with the
reasons for termination stated in the notice. Commission may terminate Services under
a Task Order, at any time, for any or no reason, with the effective date of termination to
be specified in the notice of termination of Task Order.
20.2 Commission may terminate this Agreement with Consultant should
Consultant fail to perform the covenants herein contained at the time and in the manner
herein provided. In the event of such termination, Commission may proceed with the
Services in any manner deemed proper by Commission. If Commission terminates this
Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant
under this Agreement for Services completed and accepted prior to termination, unless
the cost of completion to Commission exceeds the funds remaining in the Agreement. In
such case, the overage shall be deducted from any sum due Consultant under this
Agreement and the balance, if any, shall be paid to Consultant upon demand.
20.3 In addition to the above, payment upon termination shall include a
prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit
on unperformed Services. Consultant shall provide documentation deemed adequate by
Commission’s Contract Administrator to show the Services actually completed by
Consultant prior to the effective date of termination. This Agreement shall terminate on
the effective date of the Notice of Termination
20.4 Upon receipt of the written Notice of Termination, Consultant shall
discontinue all affected Services as directed in the Notice or as otherwise provided
herein, and deliver to the Commission all Documents and Data, as defined in this
Agreement, as may have been prepared or accumulated by Consultant in performance
of the Services, whether completed or in progress.
20.5 In addition to the above, Consultant shall be liable to the
Commission for any reasonable additional costs incurred by the Commission to revise
work for which the Commission has compensated Consultant under this Agreement, but
which the Commission has determined in its sole discretion needs to be revised, in part
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or whole, to complete the Project because it did not meet the standard of care
established in this Agreement. Termination of this Agreement for cause may be
considered by the Commission in determining whether to enter into future agreements
with Consultant.
20.6 The rights and remedies of the Parties provided in this Section are
in addition to any other rights and remedies provided by law or under this Agreement.
20.7 Consultant, in executing this Agreement, shall be deemed to have
waived any and all claims for damages which may otherwise arise from the
Commission's termination of this Agreement, for convenience or cause, as provided in
this Section.
20.8 Consultant may not terminate this Agreement except for cause
20.9 In addition to the termination rights above, Commission may
temporarily suspend the Services under any Task Order(s), at no additional cost to
Commission, provided that Consultant is given written notice of temporary suspension.
If Commission gives such notice of temporary suspension, Consultant shall immediately
suspend its activities under the relevant Task Order(s). A temporary suspension may
be issued concurrent with a notice of termination.
21. Cost Principles and Administrative Requirements.
21.1 Consultant agrees that the Contract Cost Principles and
Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000
et seq., shall be used to determine the cost allowability of individual items.
21.2 Consultant also agrees to comply with federal procedures in
accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards.
21.3 Any costs for which payment has been made to CONSULTANT that
are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48
CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are
subject to repayment by Consultant to Commission.
21.4 All subcontracts in excess of $25,000 shall contain the above
provisions.
22. Retention of Records/Audit. For the purpose of determining compliance
with, as applicable, 2 CFR Part 200, Public Contract Code 10115, et seq. and Title 21,
California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and
other matters connected with the performance of this Agreement pursuant to Government
Code 8546.7; Consultant, subconsultants, and Commission shall maintain and make
available for inspection all books, documents, papers, accounting records, and other
evidence pertaining to the performance of this Agreement, including but not limited to, the
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costs of administering this Agreement. All parties shall make such materials available at
their respective offices at all reasonable times during the Agreement period and for three
years from the date of final payment under this Agreement. The State, State Auditor,
Commission, or any duly authorized representative of the State or Federal Government
shall have access to any books, records, and documents of Consultant and it’s certified
public accountants (CPA) work papers that are pertinent to this Agreement and, if
applicable, indirect cost rates (ICR) for audit, examinations, excerpts, and transactions,
and copies thereof shall be furnished if requested. Subcontracts in excess of $25,000
shall contain this provision.
23.1 Accounting System. Consultant and its subcontractors shall
establish and maintain an accounting system and records that properly accumulate and
segregate expenditures by line item for the Services. The accounting system of
Consultant and its subcontractors shall conform to Generally Accepted Accounting
Principles (GAAP), enable the determination of incurred costs at interim points of
completion, and provide support for reimbursement payment vouchers or invoices.
23. Audit Review Procedures.
23.1 Any dispute concerning a question of fact arising under an interim
or post audit of this Agreement that is not disposed of by agreement, shall be reviewed
by Commission’s Chief Financial Officer.
23.2 Not later than 30 days after issuance of the final audit report,
Consultant may request a review by Commission’s Chief Financial Officer of unresolved
audit issues. The request for review will be submitted in writing.
23.3 Neither the pendency of a dispute nor its consideration by
Commission shall excuse Consultant from full and timely performance, in accordance
with the terms of this Agreement.
24. Subcontracting.
24.1 Nothing contained in this Agreement or otherwise, shall create any
contractual relation between Commission and any subconsultant(s), and no subcontract
shall relieve Consultant of its responsibilities and obligations hereunder. Consultant
agrees to be as fully responsible to Commission for the acts and omissions of its
subconsultant(s) and of persons either directly or indirectly employed by any of them as
it is for the acts and omissions of persons directly employed by Consultant. Consultant’s
obligation to pay its subconsultant(s) is an independent obligation from Commission’s
obligation to make payments to the Consultant.
24.2 Consultant shall perform the Services contemplated with resources
available within its own organization and no portion of the Services pertinent to this
Agreement shall be subcontracted without written authorization by Commission’s
Contract Administrator, except that, which is expressly identified in the approved Cost
Proposal.
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24.3 Consultant shall pay its subconsultants within ten (10) calendar
days from receipt of each payment made to Consultant by Commission.
24.4 Any subcontract in excess of $25,000 entered into as a result of this
Agreement shall contain all the provisions stipulated in this Agreement to be applicable
to subconsultants.
24.5 Any substitution of subconsultant(s) must be approved in writing by
Commission’s Contract Administrator prior to the start of work by the subconsultant(s).
24.6 Exhibit “B” may set forth the rates at which each subconsultant shall
bill the Consultant for Services and that are subject to reimbursement by the Commission
to Consultant. Additional Direct Costs, as defined in Exhibit “B” shall be the same for
both the Consultant and all subconsultants, unless otherwise identified in Exhibit “B” or
in a Task Order. The subconsultant rate schedules and cost proposals contained herein
are for accounting purposes only.
25. Equipment Purchase
25.1 Prior authorization, in writing, by Commission’s Contract
Administrator shall be required before Consultant enters into any unbudgeted purchase
order, or subcontract for supplies, equipment, or services. Consultant shall provide an
evaluation of the necessity or desirability of incurring such costs.
25.2 For purchase of any item, service or consulting work not covered in
the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s
Contract Administrator is required. Three competitive quotations must be submitted with
the request for such purchase, or the absence of bidding must be adequately justified.
25.3 Any equipment purchased as a result of this Agreement is subject
to the following: Consultant shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an
acquisition cost of $5,000 or more. If the purchased equipment needs replacement and
is sold or traded in, Commission shall receive a proper refund or credit at the conclusion
of this Agreement, or if this Agreement is terminated, Consultant may either keep the
equipment and credit Commission in an amount equal to its fair market value, or sell
such equipment at the best price obtainable at a public or private sale, in accordance
with established Commission procedures; and credit Commission in an amount equal to
the sales price. If Consultant elects to keep the equipment, fair market value shall be
determined at Consultant’s expense, on the basis of a competent independent appraisal
of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable
to by Commission and Consultant. If Consultant determines to sell the equipment, the
terms and conditions of such sale must be approved in advance by Commission. 2 CFR,
Part 200 requires a credit to Federal funds when participating equipment with a fair
market value greater than $5,000 is credited to the Project.
25.4 All subcontracts in excess $25,000 shall contain the above
provisions.
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26. Labor Code Requirements.
26.1 By its execution of this Agreement, Consultant certifies that it is
aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et
seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing
Wage Laws”), which require the payment of prevailing wage rates and the performance
of other requirements on certain “public works” and “maintenance” projects. If the
Services are being performed as part of an applicable “public works” or “maintenance”
project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000
or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Copies of
the prevailing rate of per diem wages are on file at the Commission’s offices. Consultant
shall make copies of the prevailing rates of per diem wages for each craft, classification
or type of worker needed to execute the Services available to interested parties upon
request, and shall post copies at the Consultant’s principal place of business and at the
project site. Consultant shall defend, indemnify and hold the Commission, its elected
officials, officers, employees and agents free and harmless from any claims, liabilities,
costs, penalties or interest arising out of any failure or alleged failure to comply with the
Prevailing Wage Laws.
26.2 DIR Registration. If the Services are being performed as part of an
applicable “public works” or “maintenance” project, then pursuant to Labor Code
Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered
with the Department of Industrial Relations. Consultant shall maintain registration for the
duration of the Project and require the same of any subconsultants. This Project may
also be subject to compliance monitoring and enforcement by the Department of
Industrial Relations. It shall be Consultant’s sole responsibility to comply with all
applicable registration and labor compliance requirements.
26.3 Eight-Hour Law. Pursuant to the provisions of the California Labor
Code, eight hours of labor shall constitute a legal day’s work, and the time of service of
any worker employed on the work shall be limited and restricted to eight hours during
any one calendar day, and forty hours in any one calendar week, except when payment
for overtime is made at not less than one and one-half the basic rate for all hours worked
in excess of eight hours per day (“Eight-Hour Law”), unless Consultant or the Services
are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a
penalty, $50.00 for each worker employed in the execution of this Agreement by him, or
by any sub-consultant under him, for each calendar day during which such workman is
required or permitted to work more than eight hours in any calendar day and forty hours
in any one calendar week without such compensation for overtime violation of the
provisions of the California Labor Code, unless Consultant or the Services are not
subject to the Eight-Hour Law.
26.4 Employment of Apprentices. This Agreement shall not prevent the
employment of properly indentured apprentices in accordance with the California Labor
Code, and no employer or labor union shall refuse to accept otherwise qualified
employees as indentured apprentices on the work performed hereunder solely on the
ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice
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shall be paid the standard wage paid to apprentices under the regulations of the craft or
trade in which he or she is employed and shall be employed only in the craft or trade to
which he or she is registered.
If California Labor Code Section 1777.5 applies to the Services, Consultant and
any subcontractor hereunder who employs workers in any apprenticeable craft or trade
shall apply to the joint apprenticeship council administering applicable standards for a
certificate approving Consultant or any sub-consultant for the employment and training of
apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall
employ the number of apprentices provided for therein, as well as contribute to the fund
to administer the apprenticeship program in each craft or trade in the area of the work
hereunder.
The parties expressly understand that the responsibility for compliance with
provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California
Labor Code in regard to all apprenticeable occupations lies with Consultant.
27. Ownership of Materials/Confidentiality.
27.1 Documents & Data. This Agreement creates an exclusive and
perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all
copyrights and designs embodied in plans, specifications, studies, drawings, estimates,
materials, data and other documents or works of authorship fixed in any tangible medium
of expression, including but not limited to, physical drawings or data magnetically or
otherwise recorded on computer diskettes, which are prepared or caused to be prepared
by Consultant under this Agreement (“Documents & Data”).
Consultant shall require all subcontractors to agree in writing that
Commission is granted an exclusive and perpetual license for any Documents & Data the
subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal
right to grant the exclusive and perpetual license for all such Documents & Data.
Consultant makes no such representation and warranty in regard to Documents & Data
which were prepared by design professionals other than Consultant or provided to
Consultant by the Commission.
Commission shall not be limited in any way in its use of the
Documents & Data at any time, provided that any such use not within the purposes
intended by this Agreement shall be at Commission’s sole risk.
27.2 Intellectual Property. In addition, Commission shall have and retain
all right, title and interest (including copyright, patent, trade secret and other proprietary
rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer
programs or software and source code, enhancements, documents, and any and all
works of authorship fixed in any tangible medium or expression, including but not limited
to, physical drawings or other data magnetically or otherwise recorded on computer
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media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under
this Agreement as well as any other such Intellectual Property prepared or developed by
or on behalf of Consultant under this Agreement.
The Commission shall have and retain all right, title and interest in
Intellectual Property developed or modified under this Agreement whether or not paid for
wholly or in part by Commission, whether or not developed in conjunction with Consultant,
and whether or not developed by Consultant. Consultant will execute separate written
assignments of any and all rights to the above referenced Intellectual Property upon
request of Commission.
Consultant shall also be responsible to obtain in writing separate
written assignments from any subcontractors or agents of Consultant of any and all right
to the above referenced Intellectual Property. Should Consultant, either during or
following termination of this Agreement, desire to use any of the above-referenced
Intellectual Property, it shall first obtain the written approval of the Commission.
All materials and documents which were developed or prepared by
the Consultant for general use prior to the execution of this Agreement and which are not
the copyright of any other party or publicly available and any other computer applications,
shall continue to be the property of the Consultant. However, unless otherwise identified
and stated prior to execution of this Agreement, Consultant represents and warrants that
it has the right to grant the exclusive and perpetual license for all such Intellectual Property
as provided herein.
Commission further is granted by Consultant a non-exclusive and
perpetual license to copy, use, modify or sub-license any and all Intellectual Property
otherwise owned by Consultant which is the basis or foundation for any derivative,
collective, insurrectional, or supplemental work created under this Agreement.
27.3 Confidentiality. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents and Data either created by or provided to Consultant
in connection with the performance of this Agreement shall be held confidential by
Consultant. Such materials shall not, without the prior written consent of Commission,
be used by Consultant for any purposes other than the performance of the Services. Nor
shall such materials be disclosed to any person or entity not connected with the
performance of the Services or the Project. Nothing furnished to Consultant which is
otherwise known to Consultant or is generally known, or has become known, to the
related industry shall be deemed confidential. Consultant shall not use Commission's
name or insignia, photographs of the Project, or any publicity pertaining to the Services
or the Project in any magazine, trade paper, newspaper, television or radio production
or other similar medium without the prior written consent of Commission.
27.4 Infringement Indemnification. Consultant shall defend, indemnify
and hold the Commission, its directors, officials, officers, employees, volunteers and
agents free and harmless, pursuant to the indemnification provisions of this Agreement,
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for any alleged infringement of any patent, copyright, trade secret, trade name,
trademark, or any other proprietary right of any person or entity in consequence of the
use on the Project by Commission of the Documents & Data, including any method,
process, product, or concept specified or depicted.
28. Indemnification. To the fullest extent permitted by law, Consultant shall
defend, indemnify and hold Commission, Caltrans and their directors, officials, officers,
employees, consultants, volunteers, and agents free and harmless from any and all
claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in
law or equity, to property or persons, including wrongful death, inverse condemnation,
and any claims related to property acquisition and relocation rules or failure to detect or
abate hazardous materials, which are brought by a third party, and which , in any manner
arise out of or are incident to alleged negligent acts, omissions, or willful misconduct of
Consultant, its officials, officers, employees, agents, consultants, and contractors arising
out of or in connection with the performance of the Services, the Project or this
Agreement, including without limitation the payment of consequential damages, expert
witness fees, and attorney’s fees and other related costs and expenses. Consultant shall
defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits,
actions or other legal proceedings of every kind that may be brought or instituted against
Commission, Caltrans, and their directors, officials, officers, employees, consultants,
agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree
that may be rendered against Commission, Caltrans or their directors, officials, officers,
employees, consultants, agents, or volunteers, in any such suit, action or other legal
proceeding. Consultant shall reimburse Commission, Caltrans and their directors,
officials, officers, employees, consultants, agents, and/or volunteers, for any and all legal
expenses and costs, including reasonable attorney’s fees, incurred by each of them in
connection therewith or in enforcing the indemnity herein provided. Consultant's
obligation to indemnify shall not be restricted to insurance proceeds, if any, received by
Commission, Caltrans or their directors, officials officers, employees, consultants, agents,
or volunteers. Notwithstanding the foregoing, to the extent Consultant’s Services are
subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent
required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to
the negligence, recklessness, or willful misconduct of the Consultant. Consultant’s
obligations as set forth in this Section 28 shall survive expiration or termination of this
Agreement.
29. Insurance.
29.1 Time for Compliance. Consultant shall not commence work under
this Agreement until it has provided evidence satisfactory to the Commission that it has
secured all insurance required under this Section, in a form and with insurance
companies acceptable to the Commission. In addition, Consultant shall not allow any
subcontractor to commence work on any subcontract until it has secured all insurance
required under this Section.
29.2 Minimum Requirements. Consultant shall, at its expense, procure
and maintain for the duration of the Agreement insurance against claims for injuries to
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persons or damages to property which may arise from or in connection with the
performance of the Agreement by the Consultant, its agents, representatives, employees
or subcontractors. Consultant shall also require all of its subcontractors to procure and
maintain the same insurance for the duration of the Agreement. Such insurance shall
meet at least the following minimum levels of coverage:
(a) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent);
(2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA
0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and
Employer’s Liability: Workers’ Compensation insurance as required by the State of
California and Employer’s Liability Insurance.
(b) Minimum Limits of Insurance. Consultant shall maintain limits
no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form with
general aggregate limit is used, either the general aggregate limit shall apply separately
to this Agreement/location or the general aggregate limit shall be twice the required
occurrence limit. Limits may be achieved by any combination of primary and excess or
umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily
injury and property damage. Limits may be achieved by any combination of primary and
excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation limits as required by the Labor Code of the State of
California. Employer’s Practices Liability limits of $1,000,000 per accident.
29.3 Professional Liability. Consultant shall procure and maintain, and
require its sub-consultants to procure and maintain, for a period of five (5) years following
completion of the Project, errors and omissions liability insurance appropriate to their
profession. For Consultant, such insurance shall be in an amount not less than
$1,000,000 per claim. This insurance shall be endorsed to include contractual liability
applicable to this Agreement and shall be written on a policy form coverage specifically
designed to protect against acts, errors or omissions of the Consultant. “Covered
Professional Services” as designated in the policy must specifically include work
performed under this Agreement. The policy must “pay on behalf of” the insured and
must include a provision establishing the insurer's duty to defend. Subconsultants of
Consultant shall obtain such insurance in an amount not less than $1,000,000 per claim.
Notwithstanding the foregoing, the Commission may consider written requests to lower
or dispense with the errors and omissions liability insurance requirement contained in
this Section for certain subconsultants of Consultant, on a case-by-case basis,
depending on the nature and scope of the Services to be provided by the subconsultant.
Approval of such request shall be in writing, signed by the Commission’s Contract
Administrator.
29.4 Aircraft Liability Insurance. Prior to conducting any Services
requiring use of aircraft, Consultant shall procure and maintain, or cause to be procured
and maintained, aircraft liability insurance or equivalent form, with a single limit as shall
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be required by the Commission. Such insurance shall include coverage for owned, hired
and non-owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, Caltrans and their directors, officials, officers, employees and agents as
additional insureds with respect to the Services or operations performed by or on behalf
of the Consultant.
29.5 Insurance Endorsements. The insurance policies shall contain the
following provisions, or Consultant shall provide endorsements on forms approved by
the Commission to add the following provisions to the insurance policies:
(a) General Liability.
(i) Commercial General Liability Insurance must include
coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury;
(3) premises/operations liability; (4) products/completed operations liability; (5) aggregate
limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion
deleted; (7) contractual liability with respect to this Agreement; (8) broad form property
damage; and (9) independent consultants coverage.
(ii) The policy shall contain no endorsements or provisions
limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits
by one insured against another; or (3) contain any other exclusion contrary to this
Agreement.
(iii) The policy shall give the Commission, its directors,
officials, officers, employees, and agents insured status using ISO endorsement forms 20
10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the policy shall
be “primary and non-contributory” and will not seek contribution from the Commission’s
or Caltrans’ insurance or self-insurance and shall be at least as broad as CG 20 01 04
13, or endorsements providing the exact same coverage.
(b) Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) the Commission, Caltrans and their directors, officials, officers,
employees and agents shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned, leased,
hired or borrowed by the Consultant or for which the Consultant is responsible; and (2)
the insurance coverage shall be primary insurance as respects the Commission, Caltrans
and their directors, officials, officers, employees and agents, or if excess, shall stand in
an unbroken chain of coverage excess of the Consultant’s scheduled underlying
coverage. Any insurance or self-insurance maintained by the Commission, Caltrans and
their directors, officials, officers, employees and agents shall be excess of the
Consultant’s insurance and shall not be called upon to contribute with it in any way.
(c) Workers’ Compensation and Employers Liability Coverage.
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(i) Consultant certifies that he/she is aware of the
provisions of Section 3700 of the California Labor Code which requires every employer
to be insured against liability for workers’ compensation or to undertake self-insurance in
accordance with the provisions of that code, and he/she will comply with such provisions
before commencing work under this Agreement.
(ii) The insurer shall agree to waive all rights of
subrogation against the Commission, its directors, officials, officers, employees and
agents for losses paid under the terms of the insurance policy which arise from work
performed by the Consultant.
(d) All Coverages.
(i) Defense costs shall be payable in addition to the limits
set forth hereunder.
(ii) Requirements of specific coverage or limits contained
in this Section are not intended as a limitation on coverage, limits, or other requirement,
or a waiver of any coverage normally provided by any insurance. It shall be a requirement
under this Agreement that any available insurance proceeds broader than or in excess of
the specified minimum insurance coverage requirements and/or limits set forth herein
shall be available to the Commission, Caltrans and their directors, officials, officers,
employees and agents as additional insureds under said policies. Furthermore, the
requirements for coverage and limits shall be (1) the minimum coverage and limits
specified in this Agreement; or (2) the broader coverage and maximum limits of coverage
of any insurance policy or proceeds available to the named insured; whichever is greater.
(iii) The limits of insurance required in this Agreement may
be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella
or excess insurance shall contain or be endorsed to contain a provision that such
coverage shall also apply on a primary and non-contributory basis for the benefit of the
Commission (if agreed to in a written contract or agreement) before the Commission’s
own insurance or self-insurance shall be called upon to protect it as a named insured.
The umbrella/excess policy shall be provided on a “following form” basis with coverage
at least as broad as provided on the underlying policy(ies).
(iv) Consultant shall provide the Commission at least thirty
(30) days prior written notice of cancellation of any policy required by this Agreement,
except that the Consultant shall provide at least ten (10) days prior written notice of
cancellation of any such policy due to non-payment of premium. If any of the required
coverage is cancelled or expires during the term of this Agreement, the Consultant shall
deliver renewal certificate(s) including the General Liability Additional Insured
Endorsement to the Commission at least ten (10) days prior to the effective date of
cancellation or expiration.
(v) The retroactive date (if any) of each policy is to be no
later than the effective date of this Agreement. Consultant shall maintain such coverage
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continuously for a period of at least three years after the completion of the work under
this Agreement. Consultant shall purchase a one (1) year extended reporting period A)
if the retroactive date is advanced past the effective date of this Agreement; B) if the policy
is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy
with a retroactive date subsequent to the effective date of this Agreement.
(vi) The foregoing requirements as to the types and limits
of insurance coverage to be maintained by Consultant, and any approval of said
insurance by the Commission, is not intended to and shall not in any manner limit or
qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to
this Agreement, including but not limited to, the provisions concerning indemnification.
(vii) If at any time during the life of the Agreement, any
policy of insurance required under this Agreement does not comply with these
specifications or is canceled and not replaced, Commission has the right but not the duty
to obtain the insurance it deems necessary, and any premium paid by Commission will
be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to
pay premium from Consultant payments. In the alternative, Commission may cancel this
Agreement. The Commission may require the Consultant to provide complete copies of
all insurance policies in effect for the duration of the Project.
(viii) Neither the Commission nor any of its directors,
officials, officers, employees or agents shall be personally responsible for any liability
arising under or by virtue of this Agreement.
29.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the Commission. If the
Commission does not approve the deductibles or self-insured retentions as presented,
Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer
shall reduce or eliminate such deductibles or self-insured retentions as respects the
Commission, its directors, officials, officers, employees and agents; or (2) the Consultant
shall procure a bond guaranteeing payment of losses and related investigation costs,
claims and administrative and defense expense.
29.7 Acceptability of Insurers. Insurance is to be placed with insurers
with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California,
and satisfactory to the Commission.
29.8 Verification of Coverage. Consultant shall furnish Commission with
original certificates of insurance and endorsements effecting coverage required by this
Agreement on forms satisfactory to the Commission. The certificates and endorsements
for each insurance policy shall be signed by a person authorized by that insurer to bind
coverage on its behalf. All certificates and endorsements must be received and
approved by the Commission before work commences. The Commission reserves the
right to require complete, certified copies of all required insurance policies, at any time.
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29.9 Subconsultant Insurance Requirements. Consultant shall not allow
any subcontractors or subconsultants to commence work on any subcontract until they
have provided evidence satisfactory to the Commission that they have secured all
insurance required under this Section. Policies of commercial general liability insurance
provided by such subcontractors or subconsultants shall be endorsed to name the
Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement
providing the exact same coverage. If requested by Consultant, the Commission may
approve different scopes or minimum limits of insurance for particular subcontractors or
subconsultants.
29.10 Other Insurance. At its option, the Commission may require such
additional coverage(s), limits and/or the reduction of deductibles or retentions it
considers reasonable and prudent based upon risk factors that may directly or indirectly
impact the Project. In retaining this option Commission does not warrant Consultant’s
insurance program to be adequate. Consultant shall have the right to purchase
insurance in addition to the insurance required in this Section.
30. Safety. Consultant shall execute and maintain its work so as to avoid injury
or damage to any person or property. In carrying out its Services, the Consultant shall at
all times be in compliance with all applicable local, state and federal laws, rules and
regulations, and shall exercise all necessary precautions for the safety of employees
appropriate to the nature of the work and the conditions under which the work is to be
performed. Safety precautions as applicable shall include, but shall not be limited to: (A)
adequate life protection and life saving equipment and procedures; (B) instructions in
accident prevention for all employees and subcontractors, such as safe walkways,
scaffolds, fall protection ladders, bridges, gang planks, confined space procedures,
trenching and shoring, equipment and other safety devices, equipment and wearing
apparel as are necessary or lawfully required to prevent accidents or injuries; and (C)
adequate facilities for the proper inspection and maintenance of all safety measures.
31. Additional Work. Any work or activities that are in addition to, or otherwise
outside of, the Services to be performed pursuant to this Agreement shall only be
performed pursuant to a separate agreement between the parties. Notwithstanding the
foregoing, the Commission’s Executive Director may make a change to the Agreement,
other than a Cardinal Change. For purposes of this Agreement, a Cardinal Change is a
change which is “outside the scope” of the Agreement; in other words, work which should
not be regarded as having been fairly and reasonably within the contemplation of the
parties when the Agreement was entered into. An example of a change which is not a
Cardinal Change would be where, in a contract to construct a building there are many
changes in the materials used, but the size and layout of the building remains the same.
Cardinal Changes are not within the authority of this provision to order, and shall be
processed by the Commission as “sole source” procurements according to applicable
law, including the requirements of FTA Circular 4220.1D, paragraph 9(f).
(a) In addition to the changes authorized above, a
modification which is signed by Consultant and the Commission’s Executive Director,
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other than a Cardinal Change, may be made in order to: (1) make a negotiated equitable
adjustment to the Agreement price, delivery schedule and other terms resulting from the
issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other
agreements of the parties modifying the terms of this Agreement (“Bilateral Contract
Modification”).
(b) Consultant shall not perform, nor be compensated for
any change, without written authorization from the Commission’s Executive Director as
set forth herein. In the event such a change authorization is not issued and signed by the
Commission’s Executive Director, Consultant shall not provide such change.
32. Prohibited Interests.
32.1 Solicitation. Consultant maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working
solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants
that it has not paid nor has it agreed to pay any company or person, other than a bona
fide employee working solely for Consultant, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty, the Commission shall
have the right to rescind this Agreement without liability.
32.2 Consultant Conflict of Interest.
(a) Consultant shall disclose any financial, business, or other
relationship with Commission that may have an impact upon the outcome of this
Agreement. Consultant hereby certifies that it does not now have, nor shall it acquire any
financial or business interest that would conflict with the performance of services under
this Agreement.
(b) Any subcontract in excess of $25,000 entered into as a result
of this Agreement, shall contain all of the provisions of this Article.
32.3 Commission Conflict of Interest. For the term of this Agreement, no
member, officer or employee of the Commission, during the term of his or her service
with the Commission, shall have any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising therefrom.
32.4 Conflict of Employment. Employment by the Consultant of
personnel currently on the payroll of the Commission shall not be permitted in the
performance of this Agreement, even though such employment may occur outside of the
employee's regular working hours or on weekends, holidays or vacation time. Further,
the employment by the Consultant of personnel who have been on the Commission
payroll within one year prior to the date of execution of this Agreement, where this
employment is caused by and or dependent upon the Consultant securing this or related
Agreements with the Commission, is prohibited.
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32.5 Covenant Against Contingent Fees. As required in connection with
federal funding, the Consultant warrants that he/she has not employed or retained any
company or person, other than a bona fide employee working for the Consultant, to solicit
or secure this Agreement, and that he/she has not paid or agreed to pay any company
or person, other than a bona fide employee, any fee, commission, percentage, brokerage
fee, gift, or any other consideration, contingent upon or resulting from the award or
formation of this Agreement. For breach or violation of this warranty, the Commission
shall have the right to terminate this Agreement without liability pursuant to the terms
herein, or at its discretion to deduct from the Agreement price or consideration, or
otherwise recover, the full amount of such fee, commission, percentage, brokerage fee,
gift, or contingent fee.
32.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant
warrants that this Agreement was not obtained or secured through rebates kickbacks or
other unlawful consideration, either promised or paid to any Commission employee. For
breach or violation of this warranty, Commission shall have the right in its discretion; to
terminate this Agreement without liability; to pay only for the value of the work actually
performed; or to deduct from the Agreement price; or otherwise recover the full amount
of such rebate, kickback or other unlawful consideration.
32.7 Covenant Against Expenditure of Commission, State or Federal
Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and
belief no state, federal or local agency appropriated funds have been paid, or will be paid
by or on behalf of the Consultant to any person for the purpose of influencing or
attempting to influence an officer or employee of any state or federal agency; a Member
of the State Legislature or United States Congress; an officer or employee of the
Legislature or Congress; or any employee of a Member of the Legislature or Congress,
in connection with the award of any state or federal contract, grant, loan, or cooperative
agreement, or the extension, continuation, renewal, amendment, or modification of any
state or federal contract, grant, loan, or cooperative agreement.
(a) If any funds other than federal appropriated funds have been
paid, or will be paid to any person for the purpose of influencing or attempting to influence
an officer or employee of any federal agency; a Member of Congress; an officer or
employee of Congress, or an employee of a Member of Congress; in connection with this
Agreement, the Consultant shall complete and submit the attached Exhibit "F", Standard
Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with the attached
instructions.
(b) The Consultant's certification provided in this Section is a
material representation of fact upon which reliance was placed when this Agreement was
entered into, and is a prerequisite for entering into this Agreement pursuant to Section
1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the
disclosure and certification requirements set forth in Section 1352, Title 31, US. Code
may result in a civil penalty of not less than $10,000 and not more than $100,000 for each
such failure.
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(c) The Consultant also agrees by signing this Agreement that
he/she shall require that the language set forth in this Section 3.23.7 be included in all
Consultant subcontracts which exceed $100,000, and that all such subcontractors shall
certify and disclose accordingly.
32.8 Employment Adverse to the Commission. Consultant shall notify the
Commission, and shall obtain the Commission’s written consent, prior to accepting work
to assist with or participate in a third-party lawsuit or other legal or administrative
proceeding against the Commission during the term of this Agreement.
33. Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, ancestry, sex
or age. Such non-discrimination shall include, but not be limited to, all activities related
to initial employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff or termination.
34. Right to Employ Other Consultants. Commission reserves the right to
employ other consultants in connection with the Project.
35. Governing Law. This Agreement shall be governed by and construed with
the laws of the State of California. Venue shall be in Riverside County.
36. Disputes; Attorneys' Fees.
36.1 Prior to commencing any action hereunder, the Parties shall attempt
in good faith to resolve any dispute arising between them. The pendency of a dispute
shall not excuse Consultant from full and timely performance of the Services.
36.2. If the Parties are unable to resolve a dispute after attempting in good
faith to do so, the Parties may seek any other available remedy to resolve the dispute. If
either Party commences an action against the other Party, either legal, administrative or
otherwise, arising out of or in connection with this Agreement, the prevailing Party in such
litigation shall be entitled to have and recover from the losing Party reasonable attorneys'
fees and, all other costs of such actions.
37. Time of Essence. Time is of the essence for each and every provision of
this Agreement.
38. Headings. Article and Section Headings, paragraph captions or marginal
headings contained in this Agreement are for convenience only and shall have no effect
in the construction or interpretation of any provision herein.
39. Notices. All notices permitted or required under this Agreement shall be
given to the respective parties at the following address, or at such other address as the
respective parties may provide in writing for this purpose:
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CONSULTANT: COMMISSION:
Riverside County
Hennessey & Hennessey, LLC Transportation Commission
17602 17th Street, Suite 102-246 4080 Lemon Street, 3rd Floor
Tustin, CA 92780 Riverside, CA 92501
Attn: Sharon A. Hennessey Attn: Executive Director
Such notice shall be deemed made when personally delivered or when mailed, forty-eight
(48) hours after deposit in the U.S. mail, first class postage prepaid, and addressed to the
Party at its applicable address. Actual notice shall be deemed adequate notice on the
date actual notice occurred, regardless of the method of service.
40. Conflicting Provisions. In the event that provisions of any attached exhibits
conflict in any way with the provisions set forth in this Agreement, the language, terms
and conditions contained in this Agreement shall control the actions and obligations of
the Parties and the interpretation of the Parties' understanding concerning the
performance of the Services.
41. Amendment or Modification. No supplement, modification, or amendment
of this Agreement shall be binding unless executed in writing and signed by both Parties.
42. Entire Agreement. This Agreement contains the entire agreement of the
Parties relating to the subject matter hereof and supersedes all prior negotiations,
agreements or understandings.
43. Invalidity; Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
44. Provisions Applicable When State Funds or Federal Funds Are Involved.
When funding for the Services under a Task Order is provided, in whole or in part, from
FHWA, Consultant shall also fully and adequately comply with the provisions included in
Exhibit “C” (FHWA/Caltrans requirements) attached hereto and incorporated herein by
reference. When funding for the Services under a Task Order is provided, in whole or in
part, from the FTA, Consultant shall also fully and adequately comply with the provisions
included in Exhibit “D” (FTA Requirements) attached hereto and incorporated herein by
reference.
45. Survival. All rights and obligations hereunder that by their nature are to
continue after any expiration or termination of this Agreement, including, but not limited
to, the indemnification and confidentiality obligations, shall survive any such expiration or
termination.
46. No Third Party Beneficiaries. There are no intended third party beneficiaries
of any right or obligation assumed by the Parties.
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47. Labor Certification. By its signature hereunder, Consultant certifies that it
is aware of the provisions of Section 3700 of the California Labor Code which require
every employer to be insured against liability for Workers’ Compensation or to undertake
self-insurance in accordance with the provisions of that Code, and agrees to comply with
such provisions before commencing the performance of the Services.
48. Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
49. Subpoenas or Court Orders. Should Consultant receive a subpoena or
court order related to this Agreement, the Services or the Project, Consultant shall
immediately provide written notice of the subpoena or court order to the Commission.
Consultant shall not respond to any such subpoena or court order until notice to the
Commission is provided as required herein, and shall cooperate with the Commission in
responding to the subpoena or court order.
50. Assignment or Transfer. Consultant shall not assign, hypothecate, or
transfer, either directly or by operation of law, this Agreement or any interest herein,
without the prior written consent of the Commission. Any attempt to do so shall be null
and void, and any assignees, hypothecates or transferees shall acquire no right or interest
by reason of such attempted assignment, hypothecation or transfer.
51. Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties, and shall not be assigned by Consultant without
the prior written consent of Commission.
52. Incorporation of Recitals. The recitals set forth above are true and correct
and are incorporated into this Agreement as though fully set forth herein.
53. No Waiver. Failure of Commission to insist on any one occasion upon strict
compliance with any of the terms, covenants or conditions hereof shall not be deemed a
waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any
rights or powers hereunder at any one time or more times be deemed a waiver or
relinquishment of such other right or power at any other time or times.
54. Electronically Transmitted Signatures; Electronic Signatures. A manually
signed copy of this Agreement which is transmitted by facsimile, email or other means of
electronic transmission shall be deemed to have the same legal effect as delivery of an
original executed copy of this Agreement for all purposes. This Agreement may be signed
using an electronic signature.
[Signatures on following page]
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SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA AND FTA FUNDING/ASSISTANCE
IN WITNESS WHEREOF, this Agreement was executed on the date first written above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
Anne Mayer
Executive Director
Approved as to Form:
By:
Best, Best & Krieger LLP
General Counsel
CONSULTANT
HENNESSEY & HENNESSEY, LLC
By:
Signature
Name
Title
ATTEST:
By:
Its: __________________________
* A corporation requires the signatures of two corporate officers.
One signature shall be that of the chairman of board, the president or any vice president and the
second signature (on the attest line) shall be that of the secretary, any assistant secretary, the
chief financial officer or any assistant treasurer of such corporation.
If the above persons are not the intended signators, evidence of signature authority shall be
provided to RCTC.
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Exhibit A
EXHIBIT A SCOPE OF SERVICES
The Riverside County Transportation Commission (Commission) is seeking one or
more Consultants (Consultant or Appraiser) to provide right of way appraisal services
for developed or undeveloped residential, commercial, industrial, agricultural and
railroad properties. Consultant shall produce appraisal reports for full or partial
acquisitions, easements, temporary construction easements, leased or licensed
properties, and sale or disposition of excess/surplus properties, as required by the
Commission. Services shall be provided on an on-call/as needed basis in support of
current and future Commission Projects, Measure A Projects and projects done in
partnership with other agencies, pursuant to Task Orders issued in the sole discretion
of the Commission.
Task Orders shall be awarded through an additional qualification-based selection
process.
Such appraisal services may include, but are not limited to, the following work
program and/or comply with applicable requirements below:
1. Consultant shall prepare appraisals in accordance with the Uniform
Relocation and Real Property Acquisition Policies Act of 1970, as amended,
and implemented by 49 CFR Part 24; the State of California Government
Code, the State of California Relocation Assistance and Real Property
Acquisition Guidelines (Title 25, California Code of Regulations Ch 6, Art 1,
Section 6000 et seq.), the California Code of Civil Procedure, the Uniform
Standards of Professional Appraisal Practice (USPAP), and in some cases,
the Uniform Appraisal Standards for Federal Land Acquisition Act. Consultant
must be licensed by the State of California.
2. Consultant shall prepare appraisals in accordance with the Uniform Appraisal
Standards for Federal Land Acquisition (“Yellow Book”). Consultant must be
licensed by the State of California.
3. Consultant must be qualified to provide expert witness testimony and defend
the opinions or conclusions reached in the appraisal at any Administrative
or Judicial proceeding.
4. Deliverables shall typically consist of three (3) originals of the completed
appraisal report and one (1) electronic copy, specialty reports and component
valuations which may be performed by someone other than Consultant and
incorporated into the overall fair market valuation.
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Exhibit A
5.Consultant may be required to meet with and coordinate their efforts with
Commission staff, Commission legal counsel, and other consultants or
Caltrans staff; participate in office or project site meetings.
6.Appraisal reports may be reviewed for acceptance and approval by
Commission's review appraisers and Caltrans. Revisions may be required
by reason of this review process. Consultants may be requested to complete
and deliver revised and/or updated appraisals. In the event of non-acceptance
due to errors or omissions, Consultant shall have fifteen (15) calendar days
to make corrections and return the revised appraisals to the review appraiser.
7.For proposed acquisitions, the owner of the real property or a designated
representative will be invited by the Appraiser to accompany the Appraiser
during the inspection of the property. This invitation must be in the form of
a letter entitled "Notice to Appraise" written by the Appraiser to the owner.
A copy of the invitation will be included in the appraisal report.
8.It is the Appraiser's responsibility to contact the Commission's project
engineers for discussion and/or clarification of the Construction in the
Manner Proposed. This is critical in the appraisal of partial acquisitions and
easements where the Appraiser may need cross sections or other project
engineering information to complete the report.
9.The highest and best use for the property in the before condition must be
determined and supported. If a partial acquisition is involved, the highest
and best use of the property in the after condition must be determined and
supported. If the existing use is not the premise on which the valuation is
based, the appraisal will contain an explanation justifying the determination
that the property is available and adaptable for a different highest and best
use and there is demand for that use in the market.
10.Where the acquisition involves only a part (or portion) of the property, the
Appraiser win estimate any severance d amages and special benefits to the
remainder, including reasoning. and market data to support the opinion or
conclusion. The Appraiser will indicate if the remainder constitutes an
economic or uneconomic unit in the market and/or to the present owner.
11.The California Eminent Domain Law will be followed in partial acquisitions.
Special benefits are to be offset only against damages to the remainder in
accordance with the law.
12.Appraisal for easement acquisitions will reflect the restrictive elements of the
easement to be acquired and the potential effect of such elements on the
utility of the property considering its highest and best use. Full details with
respect to any interference with the highest and best use of the property
affected must be explained and supported.
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Exhibit A
13. The Appraiser must estimate and support the economic rent, state the
contract rent and the remaining term of the lease as of the date of value.
Lessor and lessee responsibilities for paying major expenses, e.g., taxes,
insurance and maintenance shall be included.
14. Appraiser shall itemize in detail the "improvements pertaining to realty"
(Eminent Domain Law-CCP Section 1263.205) showing their replacement cost
new, depreciated value in place, salvage value if any, and relocation estimate.
To the extent possible, determine the ownership claims of the Improvements
Pertaining to the Realty.
15. In cases where the Appraisal Assignment requires a Specialty Appraisal
(Furniture, Fixtures, Machinery and Equipment) and/or Specialists Reports
(title, survey, soils, engineering), Appraiser shall utilize the services of
Commission's On-Call Consultants for such services or obtain Commission's
prior approval for any others. Fees charged by Commission's On-Call
Consultants for Specialty Appraisal and/or Specialists Reports shall be paid
directly by the Commission.
16. It is the Appraiser's responsibility to thoroughly review the Specialty Appraisal
for adoption (with adjustments or not, as appropriate) and inclusion in the
overall appraisal. The estimated values that the specialty items contribute to
the overall value of the real estate will be separately stated but included in the
total value of the property.
17. If any legal issues exist during the appraisal assignment, Appraiser shall
request legal opinion. All legal opinions shall be rendered by Commission's
legal counsel.
18. It is the Appraiser's responsibility to contact the Commission's legal counsel,
if necessary, for discussion and/or clarification in identifying personal or real
property.
19. If hazardous waste is discovered on the property, Appraiser shall seek further
direction from the Commission.
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FIRM PROJECT TASKS/ROLE COST
Hennessey & Hennessey, LLC Right of Way Appraisal Services 1,000,000.00$
1,000,000.00$ TOTAL COSTS
1 Commission authorization pertains to total contract award amount. Compensation adjustments between consultants may occur; however,
the maximum total compensation authorized may not be exceeded.
EXHIBIT "B"
Prime Consultant:
Sub Consultants:
COMPENSATION SUMMARY1
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Exhibit C-1
EXHIBIT "C"
FEDERAL DEPARTMENT OF TRANSPORTATION
FHWA AND CALTRANS REQUIREMENTS
1. NONDISCRIMINATION & STATEMENT OF COMPLIANCE.
A. Consultant’s signature affixed herein shall constitute a certification under penalty of
perjury under the laws of the State of California that CONSULTANT has, unless exempt,
complied with, the nondiscrimination program requirements of Government Code Section
12990 and Title 2, California Administrative Code, Section 8103.
B. During the performance of this Agreement, Consultant and its subconsultants shall
not deny the Agreement’s benefits to any person on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression, age,
sexual orientation, or military and veteran status, nor shall they unlawfully discriminate,
harass, or allow harassment against any employee or applicant for employment because
of race, religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or military and veteran status.
Consultant and its subconsultants shall insure that the evaluation and treatment of their
employees and applicants for employment are free from such discrimination and
harassment.
C. Consultant and its subconsultants shall comply with the provisions of the Fair
Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations
promulgated thereunder (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-
11139.5, and any regulations or standards adopted by Commission to implement such
article. The applicable regulations of the Fair Employment and Housing Commission
implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated
into this Agreement by reference and made a part hereof as if set forth in full.
D. Consultant shall permit access by representatives of the Department of Fair
Employment and Housing and the Commission upon reasonable notice at any time during
the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such
of its books, records, accounts, and all other sources of information and its facilities as
said Department or Commission shall require to ascertain compliance with this clause.
E. Consultant and its subconsultants shall give written notice of their obligations
under this clause to labor organizations with which they have a collective bargaining or
other Agreement.
F. If this Agreement is federally funded, the Consultant shall comply with regulations
relative to Title VI (nondiscrimination in federally-assisted programs of the Department of
Transportation – Title 49 Code of Federal Regulations, Part 21 - Effectuation of Title VI
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Exhibit C-2
of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will
implement and maintain a policy of nondiscrimination in which no person in the state of
California shall, on the basis of race, color, national origin, religion, sex, age, disability,
be excluded from participation in, denied the benefits of or subject to discrimination under
any program or activity by the recipients of federal assistance or their assignees and
successors in interest.
G. If this Agreement is federally funded, Consultant shall comply with regulations relative
to non-discrimination in federally-assisted programs of the U.S. Department of
Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964).
Specifically, the Consultant shall not participate either directly or indirectly in the
discrimination prohibited by 49 CFR §21.5, including employment practices and the
selection and retention of subconsultants.
H. Consultant and its subconsultants will never exclude any person from participation in,
deny any person the benefits of, or otherwise discriminate against anyone in connection
with the award and performance of any contract covered by 49 CFR 26 on the basis of
race, color, sex, or national origin. In administering the Commission components of the
DBE Program plan, Consultant and its subconsultants will not, directly, or through
contractual or other arrangements, use criteria or methods of administration that have the
effect of defeating or substantially impairing accomplishment of the objectives of the DBE
Program plan with respect to individuals of a particular race, color, sex, or national origin.
I. Consultant shall include the nondiscrimination and compliance provisions of this
section in all subcontracts to perform work under this Agreement.
2. DEBARMENT AND SUSPENSION CERTIFICATION
CONSULTANT’s signature affixed herein, shall constitute a certification under penalty of
perjury under the laws of the State of California, that CONSULTANT has complied with
Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment
and Suspension (nonprocurement)”, which certifies that he/she or any person associated
therewith in the capacity of owner, partner, director, officer, or manager, is not currently
under suspension, debarment, voluntary exclusion, or determination of ineligibility by any
federal agency; has not been suspended, debarred, voluntarily excluded, or determined
ineligible by any federal agency within the past three (3) years; does not have a proposed
debarment pending; and has not been indicted, convicted, or had a civil judgment
rendered against it by a court of competent jurisdiction in any matter involving fraud or
official misconduct within the past three (3) years. Any exceptions to this certification must
be disclosed to COMMISSION.
B. Exceptions will not necessarily result in denial of recommendation for award, but will
be considered in determining CONSULTANT responsibility. Disclosures must indicate to
whom exceptions apply, initiating agency, and dates of action.
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Exhibit C-3
C. Exceptions to the Federal Government Excluded Parties List System maintained by
the General Services Administration are to be determined by the Federal highway
Administration.
3. DISCRIMINATION; CONTRACT ASSURANCE
The Commission shall not discriminate on the basis of race, color, national origin, or sex
in the award and performance of any DOT-assisted contract or in the implementation of
the Caltrans DBE program or the requirements of 49 CFR Part 26. The Commission shall
take all necessary and reasonable steps under 49 CFR Part 26 to ensure
nondiscrimination in the award and administration of DOT-assisted contracts.
Consultant or subcontractor shall not discriminate on the basis of race, color, national
origin, of sex in the performance of this Agreement. Consultant or subcontractor shall
carry out applicable requirements of 49 CFR Part 26 and the Caltrans DBE program in
the award and administration of DOT-assisted contracts, as further set forth below.
Failure by the Consultant or subcontractor to carry out these requirements is a material
breach of this Agreement, which may result in the termination of this Agreement or such
other remedy, as the Commission deems appropriate.
Failure by the Consultant to carry out these requirements is a material breach of this
contract, which may result in the termination of this contract or such other remedy as the
recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying Consultant from future proposing as non-responsible
4. PROMPT PAYMENT
Consultant or subconsultant shall pay to any subconsultant, not later than fifteen (15)
days after receipt of each progress payment, unless otherwise agreed to in writing, the
respective amounts allowed Consultant on account of the work performed by the
subconsultants, to the extent of each subconsultant’s interest therein. In the event that
there is a good faith dispute over all or any portion of the amount due on a progress
payment from Consultant or subconsultant to a subconsultant, Consultant or
subconsultant may withhold no more than 150 percent of the disputed amount. Any
violation of this requirement shall constitute a cause for disciplinary action and shall
subject the Consultant or subconsultant to a penalty, payable to the applicable
subconsultant, of 2 percent of the amount due per month for every month that payment
is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be
entitled to his or her attorney’s fees and costs. The sanctions authorized under this
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requirement shall be separate from, and in addition to, all other remedies, either civil,
administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
5. RELEASE OF RETAINAGE
No retainage will be held by the Commission from progress payments due to Consultant.
Consultant and subconsultants are prohibited from holding retainage from
subconsultants. Any delay or postponement of payment may take place only for good
cause and with the Commission’s prior written approval. Any violation of these provisions
shall subject Consultant or the violating subconsultant to the penalties, sanctions, and
other remedies specified in Section 3321 of the California Civil Code. This requirement
shall not be construed to limit or impair any contractual, administrative or judicial
remedies, otherwise available to Consultant or subconsultant in the event of a dispute
involving late payment or nonpayment by Consultant, deficient subconsultant
performance and/or noncompliance by a subconsultant. This clause applies to both DBE
and non-DBE subconsultants.
6. LEGAL REMEDIES
In addition to those contract remedies set forth under relevant provisions of California law,
either Party to this Agreement may, where applicable, seek legal redress for violations of
this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the
relevant federal or state statutory provisions governing civil rights violations, and to the
relevant federal and state provisions governing false claims or “whistleblower” actions, as
well as any and all other applicable federal and state provisions of law.
The Consultant shall include a provision to this effect in each of its agreements with its
subcontractors.
7. DBE PARTICIPATION
Caltrans has developed a statewide DBE program pursuant to 49 C.F.R. Part 26. The
requirements and procedures, as applicable, of the Caltrans DBE program are hereby
incorporated by reference into this Agreement. Even if no DBE participation will be
reported, Consultant shall complete any Caltrans required DBE reporting forms, as
provided by the Commission, in compliance with the Caltrans DBE program, and a final
utilization report in the form provided by the Commission.
A. This Agreement is subject to Title 49, Part 26 of the Code of Federal Regulations
entitled “Participation by Disadvantaged Business Enterprises in Department of
Transportation Financial Assistance Programs.” Consultants who enter into a federally-
funded agreement will assist the Commission in a good faith effort to achieve California’s
statewide overall DBE goal.
B. This Agreement does not have a DBE goal, but DBE goals may be included as
part of each Task Order request for proposals. Participation by DBE Consultant or
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subconsultants for an FHWA funded Task Order shall be in accordance with the
information contained in the Consultant Contract DBE Commitment form (Caltrans LAPM
Forms Exhibit 10-O1) to be submitted with the relevant Task Order proposal. If a DBE
subconsultant is unable to perform, the Consultant must make a good faith effort to
replace him/her with another DBE subconsultant, if the goal is not otherwise met. A DBE
is a firm meeting the definition of a DBE as specified in 49 CFR.
C. All DBE participation will count toward the Caltrans federally mandated statewide
overall DBE goal. Credit for materials or supplies Consultant purchases from DBEs
counts towards the goal in the following manner:
• 100 percent counts if the materials or supplies are obtained from a DBE
manufacturer.
• 60 percent counts if the materials or supplies are purchased from a DBE regular
dealer.
• Only fees, commissions, and charges for assistance in the procurement and
delivery of materials or supplies count if obtained from a DBE that is neither a
manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular
dealer."
D. DBE and other small businesses (SB), as defined in Title 49 CFR, Part 26 are
encouraged to participate in the performance of agreements financed in whole or in part
with federal funds. The Consultant, subrecipient or subconsultant shall not discriminate
on the basis of race, color, national origin, or sex in the performance of this Agreement.
The Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award
and administration of US DOT- assisted agreements. Failure by the contractor to carry
out these requirements is a material breach of this Agreement, which may result in the
termination of this Agreement or such other remedy as the Commission, Caltrans or the
Department of Transportation deems appropriate.
E. Any subcontract entered into as a result of this Agreement shall contain all of the
provisions of this section.
F. A DBE may be terminated only as further set forth in Section 13 below.
8. DBE PARTICIPATION GENERAL INFORMATION
It is Consultant's responsibility to be fully informed regarding the requirements of 49 CFR,
Part 26, and the Caltrans DBE program. Particular attention is directed to the following:
A. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be
certified through the California Unified Certification Program (CUCP).
B. A certified DBE may participate as a prime contractor, subcontractor, joint venture
partner, as a vendor of material or supplies, or as a trucking company.
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C. A DBE joint-venture partner must be responsible for specific contract items of work
or clearly defined portions thereof. Responsibility means actually performing, managing
and supervising the work with its own forces. The DBE joint venture partner must share
in the capital contribution, control, management, risks and profits of the joint-venture
commensurate with its ownership interest.
D. A DBE must perform a commercially useful function, pursuant to 49 CFR 26.55
that is, must be responsible for the execution of a distinct element of the work and must
carry out its responsibility by actually performing, managing and supervising the work, as
more fully described in section 9 below.
E. The Consultant shall list only one subcontractor for each portion of work as defined
in the Consultant's bid/proposal and all DBE subcontractors should be listed in the
Consultant's bid/cost proposal list of subcontractors.
F. A Consultant who is a certified DBE is eligible to claim all of the work in the
Agreement toward the DBE participation except that portion of the work to be performed
by non-DBE subcontractors.
G. Consultant shall notify the Commission’s contract administrator or designated
representative of any changes to its anticipated DBE participation prior to starting the
affected work.
9 . COMMERCIALLY USEFUL FUNCTION
A. A DBE performs a commercially useful function when it is responsible for execution
of the work of the Agreement and is carrying out its responsibilities by actually performing,
managing, and supervising the work involved. To perform a commercially useful function,
the DBE must also be responsible with respect to materials and supplies used on the
Agreement, for negotiating price, determining quality and quantity, ordering the material,
and installing (where applicable) and paying for the material itself. To determine whether
a DBE is performing a commercially useful function, evaluate the amount of work
subcontracted, industry practices; whether the amount the firm is to be paid under the
Agreement is commensurate with the work it is actually performing, and other relevant
factors.
B. A DBE does not perform a commercially useful function if its role is limited to that
of an extra participant in a transaction, Agreement, or project through which funds are
passed in order to obtain the appearance of DBE participation. In determining whether a
DBE is such an extra participant, examine similar transactions, particularly those in which
DBEs do not participate.
C. If a DBE does not perform or exercise responsibility for at least thirty percent of the
total cost of its Agreement with its own work force, or the DBE subcontracts a greater
portion of the work of the Agreement than would be expected on the basis of normal
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industry practice for the type of work involved, it will be presumed that it is not performing
a commercially useful function.
10. DBE CERTIFICATION AND DE-CERTIFICATION STATUS
If a DBE subcontractor is decertified before completing its work, the decertified
subcontractor shall notify the Contractor in writing with the date of de-certification. If a
subcontractor becomes a certified DBE during the life of the Agreement, the
subcontractor shall notify the Contractor in writing with the date of certification. Any
changes should be reported to the Commission’s Contract Administrator within 30 days.
11. DBE RECORDS
A. The Contractor shall maintain records of materials purchased and/or supplied from
all subcontracts entered into with certified DBEs. The records shall show the name and
business address of each DBE subconsultant, DBE vendor, and DBE trucking company
and the total dollar amount actually paid each business regardless of tier. The records
shall show the date of payment and the total dollar figure paid to all firms. DBE prime
Contractors shall also show the date of work performed by their own forces along with the
corresponding dollar value of the work.
In addition to all other requirements, Consultant shall complete and submit, on a monthly
basis, the Monthly DBE Payment form (Caltrans Exhibit 9-F of Chapter 9 of the LAPM).
B. Upon completion of the Agreement, a summary of these records shall be prepared
and submitted on the most current version of the form entitled, “Final Report-Utilization of
Disadvantaged Business Enterprises (DBE),” CEM- 2402F (Exhibit 17-F in Chapter 17 of
the LAPM), certified correct by the Contractor or the Contractor’s authorized
representative and shall be furnished to the Commission’s Contract Administrator with
the final invoice. Failure to provide the summary of DBE payments with the final invoice
will result in the Commission withholding $10,000 until the form is submitted. This amount
will be returned to the Contractor when a satisfactory “Final Report Utilization of
Disadvantaged Business Enterprises (DBE)” is submitted to the Commission’s Contract
Administrator.
a. Prior to the fifteenth of each month, the Contractor shall submit documentation to
the Commission’s Contract Administrator showing the amount paid to DBE trucking
companies. The Contractor shall also obtain and submit documentation to the
Commission’s Contract Administrator showing the amount paid by DBE trucking
companies to all firms, including owner-operators, for the leasing of trucks. If the DBE
leases trucks from a non-DBE, the Contractor may count only the fee or commission the
DBE receives as a result of the lease arrangement.
b. The Contractor shall also submit to the Commission’s Contract Administrator
documentation showing the truck number, name of owner, California Highway Patrol CA
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number, and if applicable, the DBE certification number of the truck owner for all trucks
used during that month. This documentation shall be submitted on the Caltrans ”Monthly
DBE Trucking Verification,” CEM-2404(F) form provided to the Contractor by the
Commission’s Contract Administrator.
12. REPORTING MATERIAL OR SUPPLIES PURCHASED FROM DBEs
When Reporting DBE Participation, Material or Supplies purchased from DBEs may
count as follows:
A. If the materials or supplies are obtained from a DBE manufacturer, 100 % of the
cost of the materials or supplies will count toward the DBE participation. A DBE
manufacturer is a firm that operates or maintains a factory or establishment that produces
on the premises, the materials, supplies, articles, or equipment required under the
Agreement and of the general character described by the specifications.
B. If the materials or supplies purchased from a DBE regular dealer, count 60 % of
the cost of the materials or supplies toward DBE goals. A DBE regular dealer is a firm
that owns, operates or maintains a store, warehouse, or other establishment in which the
materials, supplies, articles or equipment of the general character described by the
specifications and required under the Agreement, are bought, kept in stock, and regularly
sold or leased to the public in the usual course of business. To be a DBE regular dealer,
the firm must be an established, regular business that engages, as its principal business
and under its own name, in the purchase and sale or lease of the products in question. A
person may be a DBE regular dealer in such bulk items as petroleum products, steel,
cement, gravel, stone or asphalt without owning, operating or maintaining a place of
business provided in this section.
C. If the person both owns and operates distribution equipment for the products, any
supplementing of regular dealers’ own distribution equipment, shall be by a long-term
lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers,
brokers, manufacturers’ representatives, or other persons who arrange or expedite
transactions are not DBE regular dealers within the meaning of this section.
D. Materials or supplies purchased from a DBE, which is neither a manufacturer nor
a regular dealer, will be limited to the entire amount of fees or commissions charged for
assistance in the procurement of the materials and supplies, or fees or transportation
charges for the delivery of materials or supplies required on the job site, provided the fees
are reasonable and not excessive as compared with fees charged for similar services.
13. TERMINATION AND SUBSTITUTION OF DBE SUBCONSULTANTS
Consultant shall utilize the specific DBEs listed to perform the work and supply the
materials for which each is listed unless Consultant or DBE subconsultant obtains the
Commission’s written consent. Consultant shall not terminate or substitute a listed DBE
for convenience and perform the work with their own forces or obtain materials from other
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sources without authorization from the Commission. Unless the Commission’s consent is
provided, the Consultant shall not be entitled to any payment for work or material unless
it is performed or supplied by the listed DBE on the attached Consultant Contract DBE
Commitment form.
The Commission authorizes a request to use other forces or sources of materials if
Consultant shows any of the following justifications:
1. Listed DBE fails or refuses to execute a written contract based on plans and
specifications for the project.
2. The Commission stipulated that a bond is a condition of executing the
subcontract and the listed DBE fails to meet the Commission’s bond
requirements.
3. Work requires a consultant's license and listed DBE does not have a valid
license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials
(failing or refusing to perform is not an allowable reason to remove a DBE if
the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the project because of suspension or
debarment.
7. Listed DBE becomes bankrupt or insolvent.
8. Listed DBE voluntarily withdraws with written notice from the Agreement.
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE owner dies or becomes disabled resulting in the inability to
perform the work on the Contract.
11. The Commission determines other documented good cause.
Consultant shall notify the original DBE of the intent to use other forces or material
sources and provide the reasons and provide the DBE with 5 days to respond to the notice
and advise Consultant and the Commission of the reasons why the use of other forces or
sources of materials should not occur.
Consultant’s request to use other forces or material sources must include:
1. One or more of the reasons listed in the preceding paragraph.
2. Notices from Consultant to the DBE regarding the request.
3. Notices from the DBEs to Consultant regarding the request.
If a listed DBE is terminated or substituted, Consultant must make good faith efforts to
find another DBE to substitute for the original DBE. The substitute DBE must perform at
least the same amount of work as the original DBE under the contract to the extent
needed to meet or exceed the DBE goal.
14. DEBARMENT, SUSPENSION AND OTHER INELIGIBILITY AND VOLUNTARY
EXCLUSION
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17336.00023\34328429.1
Exhibit C-10
In accordance with 49 CFR Part 29, which by this reference is incorporated herein,
Consultant’s subconsultants completed and submitted the Certificate of subconsultant
Regarding Debarment, Suspension and Other Ineligibility and Voluntary Exclusion as part
of the Consultant’s proposal. If it is later determined that Consultant’s subconsultants
knowingly rendered an erroneous Certificate, the Commission may, among other
remedies, terminate this Agreement.
15. ENVIRONMENTAL COMPLIANCE
A. Compliance with all applicable standards, orders, or requirements issued under
section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act
(33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency
regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in
excess of $100,000).
B. Mandatory standards and policies relating to energy efficiency which are contained in
the state energy conservation plan issued in compliance with the Energy Policy and
Conservation Act (Pub. L. 94-163, 89 Stat. 871).
16. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code Section 10296, and by signing this Agreement,
Consultant certifies under penalty of perjury that no more than one final unappealable
finding of contempt of court by a federal court has been issued against Consultant within
the immediately preceding two-year period, because of Consultant’s failure to comply with
an order of a federal court that orders Consultant to comply with an order of the National
Labor Relations Board.
17. FUNDING REQUIREMENTS
It is mutually understood between the Parties that this Agreement may have been written
before ascertaining the availability of funds or appropriation of funds, for the mutual
benefit of both Parties, in order to avoid program and fiscal delays that would occur if the
Agreement were executed after that determination was made.
This Agreement is valid and enforceable only if sufficient funds are made available to
Commission for the purpose of this Agreement. In addition, this Agreement is subject to
any additional restrictions, limitations, conditions, or any statute enacted by the Congress,
State Legislature, or Commission governing board that may affect the provisions, terms,
or funding of this Agreement in any manner.
It is mutually agreed that if sufficient funds are not appropriated, this Agreement may be
amended to reflect any reduction in funds.
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EXHIBIT D
FTA FUNDING REQUIREMENTS (Non-construction/maintenance work)
As used herein, “RCTC” shall have the same meaning as the “Commission.” The term
“contract” or “Contract” shall have the same meaning as the “Agreement.”
1. No Obligation by the Federal Government
a. RCTC and Consultant acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the
underlying contract, absent the express written consent by the Federal Government, the
Federal Government is not a party to this contract and shall not be subject to any
obligations or liabilities to the Purchaser, Consultant, or any other party (whether or not
a party to that contract) pertaining to any matter resulting from the underlying contract.
b. The Consultant agrees to include the above clause in each subcontract financed
in whole or in part with Federal assistance provided by FTA. It is further agreed that the
clause shall not be modified, except to identify the subconsultant who will be subject to
its provisions.
2. Program Fraud and False or Fraudulent Statements or Related Acts
a. The Consultant acknowledges that the provisions of the Program Fraud Civil
Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT
regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions
pertaining to this Project. Upon execution of the underlying contract, the Consultant
certifies or affirms the truthfulness and accuracy of any statement it has made, it
makes, it may make, or causes to be made, pertaining to the underlying contract or
the FTA assisted project for which this contract work is being performed. In addition to
other penalties that may be applicable, the Consultant further acknowledges that if it
makes, or causes to be made, a false, fictitious, or fraudulent claim, statement,
submission, or certification, the Federal Government reserves the right to impose the
penalties of the Program Fraud Civil Remedies Act of 1986 on the Consultant to the
extent the Federal Government deems appropriate.
b. The Consultant also acknowledges that if it makes, or causes to be made, a
false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in
part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C.
§ 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001
and 49 U.S.C. § 5307(n)(1) on the Consultant, to the extent the Federal Government
deems appropriate.
c. The Consultant agrees to include the above two clauses in each subcontract
financed in whole or in part with Federal assistance provided by FTA. It is further agreed
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that the clauses shall not be modified, except to identify the subconsultant who will be
subject to the provisions.
3. Access to Records
The Consultant agrees to the following access to records requirements:
a. To provide RCTC, the FTA Administrator, the Comptroller General of the United
States or any of their authorized representatives access to any books, documents,
papers and records of the Consultant which are directly pertinent to this contract for the
purposes of making audits, examinations, excerpts and transcriptions. Consultant also
agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his
authorized representatives including any PMO Consultant access to Consultant's
records and construction sites pertaining to a major capital project, defined at 49 U.S.C.
5302(a)1, which is receiving federal financial assistance through the programs
described at 49 U.S.C. 5307, 5309 or 5311.
b. To make available in the case of a contract for a capital project or improvement,
as defined above and awarded by other than competitive bidding in accordance with 49
U.S.C. 5325(a), records related to the contract to RCTC, the Secretary of
Transportation and the Comptroller General or any authorized officer or employee of
any of them for the purposes of conducting an audit and inspection.
c. To maintain all books, records, accounts and reports required under this contract
for a period of not less than three years after the date of termination or expiration of this
contract, except in the event of litigation or settlement of claims arising from the
performance of this contract, in which case Consultant agrees to maintain same until
RCTC, the FTA Administrator, the Comptroller General, or any of their duly authorized
representatives, have disposed of all such litigation, appeals, claims or exceptions
related thereto. Reference 49 CFR 18.39(i)(11).
d. To permit any of the foregoing parties to reproduce by any means whatsoever or
to copy excerpts and transcriptions as reasonably needed.
4. Federal Changes
The Consultant shall at all times comply with all applicable FTA regulations, policies,
procedures and directives, including without limitation those listed directly or by
reference in the Master Agreement between RCTC and FTA, as they may be amended
or promulgated from time to time during the term of this contract. Consultant's failure to
so comply shall constitute a material breach of this contract.
5. Civil Rights
The following requirements apply to the underlying contract:
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(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended,
42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42
U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. §
12132, and Federal transit law at 49 U.S.C. § 5332 and 49 CFR part 21, the Consultant
agrees that it will not discriminate against any employee or applicant for employment
because of race, color, creed,
national origin, sex, age, or disability. In addition, the Consultant agrees to comply with
applicable Federal implementing regulations and other implementing requirements FTA
may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the
Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C.
§ 5332, the Consultant agrees to comply with all applicable equal employment
opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office
of Federal Contract Compliance Programs, Equal Employment Opportunity,
Department of Labor," 41 C.F.R. Parts 60 et seq ., (which implement Executive Order
No. 11246, "Equal Employment Opportunity," as amended by Executive Order No.
11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity,"
42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders,
regulations, and Federal policies that may in the future affect construction activities
undertaken in the course of the Project. The Consultant agrees to take affirmative
action to ensure that applicants are employed, and that employees are treated during
employment, without regard to their race, color, creed, national origin, sex, or age.
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. In addition, the Consultant agrees to comply with any implementing
requirements FTA may issue.
(b) Age - In accordance with section 4 of the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. § § 623, Federal transit law at 49 U.S.C. § 5332,
the Equal Employment Opportunity Commission (U.S. EEOC) regulations, “Age
Discrimination in Employment Act,” 29 C.F.R. part 1625, the Age Discrimination Act of
1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health and Human Services
regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving
Federal Financial Assistance,” 45 C.F.R. part 90, the Consultant agrees to refrain from
discrimination against present and prospective employees for reason of age. In addition,
the Consultant agrees to comply with any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 504 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended,
42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42
U.S.C. § 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Consultant
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agrees that it will not discriminate against individuals on the basis of disability, and that
it will comply with the requirements of U.S. Equal Employment Opportunity Commission,
"Regulations to Implement the Equal Employment Provisions of the Americans with
Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with
disabilities. In addition, the Consultant agrees to comply with any implementing
requirements FTA may issue.
(3) The Consultant also agrees to include these requirements in each subcontract
financed in whole or in part with Federal assistance provided by FTA, modified only if
necessary to identify the affected parties.
6. FTA Disadvantaged Business Enterprise (DBE) Requirements
A. General DBE Requirements: In accordance with Federal financial assistance
agreements with the U.S. Department of Transportation (U.S. DOT), Commission has
adopted a Disadvantaged Business Enterprise (DBE) Policy and Program, in
conformance with Title 49 CFR Part 26, “Participation by Disadvantaged Business
Enterprises in Department of Transportation Programs” (the “Regulations”). This RFP is
subject to these stipulated regulations. In order to ensure that Commission achieves its
overall DBE Program goals and objectives, Commission encourages the participation
of DBEs as defined in 49 CFR 26 in the performance of contracts financed in whole or
in part with U.S. DOT funds.
It is the policy of the Commission to:
1. Ensure nondiscrimination in the award and administration of DOT-assisted contracts;
2. Create a level playing field on which DBE’s can compete fairly for DOT-assisted
contracts;
3. Ensure that the DBE program is narrowly tailored in accordance with applicable law;
4. Ensure that only firms that fully meet 49 C.F.R. part 26 eligibility standards are
permitted to participate as DBE’s;
5. Help remove barriers to the participation of DBEs in DOT assisted contracts;
6. To promote the use of DBEs in all types of federally assisted contracts and
procurement activities; and
7. Assist in the development of firms that can compete successfully in the marketplace
outside the DBE program.
B. Discrimination: Consultant shall not discriminate on the basis of race, color,
national origin, or sex in the award and performance of subcontracts. Any terms used
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herein that are defined in 49 CFR Part 26, or elsewhere in the Regulations, shall have
the meaning set forth in the Regulations.
C. Commission’s Race-Neutral DBE Program: A Race-Neutral DBE Program is one
that, while benefiting DBEs, is not solely focused on DBE firms. Therefore, under a
Race-Neutral DBE Program, Commission does not establish numeric race-conscious
DBE participation goals on its DOT-assisted contracts. There is no FTA DBE goal on
this Project.
Consultant shall not be required to achieve a specific level of DBE participation as a
condition of contract compliance in the performance of this DOT-assisted contract.
However, Consultant
shall adhere to race-neutral DBE participation commitment(s) made at the time of
award.
D. Race-Neutral DBE Submissions and Ongoing Reporting Requirements (Post-
Award): At termination of the Contract, the successful Consultant shall complete and
submit to Commission a “DBE Race-Neutral Participation Listing” in the form provided
by Commission. In the event DBE(s) are utilized in the performance of the Agreement,
Consultant shall comply with applicable reporting requirements.
E. Performance of DBE Subconsultants: DBE subconsultants listed by Consultant in
its “DBE Race-Neutral Participation Listing” submitted at the time of proposal shall
perform the work and supply the materials for which they are listed, unless Consultant
has received prior written authorization from Commission to perform the work with other
forces or to obtain the materials from other sources. Consultant shall provide written
notification to Commission in a timely manner of any changes to its anticipated DBE
participation. This notice should be provided prior to the commencement of that portion
of the work.
F. DBE Certification Status: If a listed DBE subconsultant is decertified during the
life of this Agreement, the decertified subconsultant shall notify Consultant in writing
with the date of decertification. If a non-DBE subconsultant becomes a certified DBE
during the life of this Agreement, the DBE subconsultant shall notify Consultant in
writing with the date of certification. Consultant shall furnish the written documentation
to Commission in a timely manner. Consultant shall include this requirement in all
subcontracts.
G. Consultant’s Assurance Clause Regarding Non-Discrimination: In compliance with
State and Federal anti-discrimination laws, Consultant shall affirm that it will not exclude
or discriminate on the basis of race, color, national origin, or sex in consideration of
contract award opportunities. Further, Consultant shall affirm that they will consider, and
utilize subconsultants and vendors, in a manner consistent with non-discrimination
objectives.
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H. Violations: Failure by the selected Consultant(s) to carry out these requirements shall
be a material breach of the contract to be awarded pursuant to this RFP, which may
result in the termination of the contract or such other remedy as the recipient deems
appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the Consultant from future bidding as non-responsible. 49 C.F.R. §
26.13(b).
I. Prompt Payment: Consultant shall pay its subconsultants for satisfactory performance
of their contracts no later than 30 days from receipt of each payment Commission
makes to the Consultant. 49 C.F.R. § 26.29(a), unless a shorter period is provided in
the contract.
J. Compliance with DBE Requirements Contained in FTA Provisions: Consultant shall
comply with all DBE reporting and other requirements contained in this Agreement.
7. Incorporation of Federal Transit Administration (FTA) Terms
The preceding provisions include, in part, certain Standard Terms and Conditions
required by DOT, whether or not expressly set forth in the preceding contract
provisions. All contractual provisions required by DOT, as set forth in FTA Circular
4220.1F are hereby incorporated by reference. Anything to the contrary herein
notwithstanding, all FTA mandated terms shall be deemed to control in the event of a
conflict with other provisions contained in this Agreement. The Consultant shall not
perform any act, fail to perform any act, or refuse to comply with any RCTC requests
which would cause RCTC to be in violation of the FTA terms and conditions.
8. Debarment and Suspension.
The Consultant agrees to the following:
(1) It will comply with the following requirements of 2 CFR Part 180, subpart C, as
adopted and supplemented by U.S. DOT regulations at 2 CFR Part 1200.
(2) It will not enter into any “covered transaction” (as that phrase is defined at 2 CFR §§
180.220 and 1200.220) with any subconsultant whose principal is, suspended,
debarred, or otherwise excluded from participating in covered transactions, except as
authorized by— (i) U.S. DOT regulations, “Nonprocurement Suspension and
Debarment,” 2 CFR Part 1200; (ii) U.S. OMB regulatory guidance, “Guidelines to
Agencies on Governmentwide Debarment and Suspension (Nonprocurement),” 2 CFR
Part 180; and (iii) Other applicable federal laws, regulations, or requirements regarding
participation with debarred or suspended recipients or third party participants.
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(3) It will review the U.S. GSA “System for Award Management – Lists of Parties
Excluded from Federal Procurement and Nonprocurement Programs,” if required by
U.S. DOT regulations, 2 CFR Part 1200.
9. ADA Access Requirements
The Consultant shall comply with all applicable requirements of the Americans with
Disabilities Act of 1990 (ADA), 42 USC Section 12101 et seq; Section 504 of the
Rehabilitation Act of 1973, as amended, 29 USC Section 794; 49 USC Section 5301(d).
10. Fly America
.
To the extent applicable to the Services, the Consultant agrees to comply with 49
U.S.C. 40118 (the "Fly America" Act) in accordance with the General Services
Administration's regulations at 41 CFR Part 301-10, which provide that recipients and
sub recipients of Federal funds and their consultants are required to use U.S. Flag air
carriers for U.S. Government-financed international air travel and transportation of their
personal effects or property, to the extent such service is available, unless travel by
foreign air carrier is a matter of necessity, as defined by the Fly America Act. The
Consultant shall submit, if a foreign air carrier was used, an appropriate certification or
memorandum adequately explaining why service by a U.S. flag air carrier was not
available or why it was necessary to use a foreign air carrier and shall, in any event,
provide a certificate of compliance with the Fly America requirements. The Consultant
agrees to include the requirements of this section in all subcontracts that may involve
international air transportation.
11. Cargo Preference - Use of United States-Flag Vessels
To the extent applicable to the Services, the Consultant agrees:
1. To use privately owned United States-Flag commercial vessels to ship at
least 50 percent of the gross tonnage (computed separately for dry bulk
carriers, dry cargo liners, and tankers) involved, whenever shipping any
equipment, material, or commodities pursuant to the underlying contract to
the extent such vessels are available at fair and reasonable rates for United
States-Flag commercial vessels;
2. To furnish within 20 working days following the date of loading for shipments
originating within the United States or within 30 working days following the
date of leading for shipments originating outside the United States, a legible
copy of a rated, "on-board" commercial ocean bill-of -lading in English for
each shipment of cargo described in the preceding paragraph to the Division
of National Cargo, Office of Market Development, Maritime Administration,
Washington, DC 20590 and to the FTA recipient (through the Consultant in
the case of a subconsultant's bill-of-lading.)
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3. To include these requirements in all subcontracts issued pursuant to this
contract when the subcontract may involve the transport of equipment,
material, or commodities by ocean vessel.
11. Buy America – Not applicable.
12. Employment Provisions
To the extent applicable to the Services, Consultant shall comply with the following:
A. Equal Employment Opportunity — Not applicable.
B. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c) — Not applicable.
C. Contact Work Hours and Safety Standards Act (40 U.S.C. 327–333) —Not
applicable.
D. Release of Retainage
No retainage will be withheld by the RCTC from progress payments due Consultant.
Retainage by Consultant or subconsultants is prohibited, and no retainage will be held
by the prime consultant from progress due subconsultants. Any violation of this
provision shall subject the violating Consultant or subconsultants to the penalties,
sanctions, and other remedies specified in Section 7108.5 of the California Business
and Professions Code. This requirement shall not be construed to limit or impair any
contractual, administrative, or judicial remedies, otherwise available to Consultant or
subconsultant in the event of a dispute involving late payment or nonpayment by
Consultant or deficient subconsultant performance, or noncompliance by a
subconsultant.
13. Termination for Convenience
RCTC may terminate the Agreement for convenience in accordance with the terms of
the Agreement.
After such termination, the Consultant shall submit a final termination settlement
proposal to RCTC as directed. If the Consultant fails to submit a proposal within the
time allowed, RCTC may determine, on the basis of information available, the amount, if
any due the Consultant because of the termination and shall pay the amount
determined. After the Consultant’s proposal is received, RCTC and Consultant shall
negotiate a fair and equitable settlement and the contract will be modified to reflect the
negotiated agreement. If agreement cannot be reached, RCTC may issue a final
determination and pay the amount determined. If the Consultant does not agree with
this final determination or the determination resulting from the lack of timely submission
of a proposal, the Consultant may appeal under the Disputes clause.
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14. Administrative and Contractual Remedies on Breach; Termination for
Cause
a.The Consultant may be declared in breach of this Agreement (“Breach”) if the Consultant
fails to make delivery of the supplies or to perform the services within the time specified
herein or any extension thereof; or if the Consultant fails to perform any of the other
provisions of the contract, or so fails to make progress as to endanger performance of
this contract in accordance with its terms. In case of any of the foregoing, RCTC shall
notify the Consultant of the Breach, and the Consultant shall have a period of ten (10)
days (or such longer period as RCTC may authorize in writing) after receipt of notice
from RCTC to cure the Breach.
b. RCTC may, by written notice of termination to the Consultant specifying the
effective date thereof, terminate the whole or any part of this contract, in the case of a
Breach that is not cured within the timeframe set forth in (a) above (“Uncured Breach”).
c. If the contract is terminated in whole or in part for an Uncured Breach, RCTC
may procure upon such terms and in such manner as RCTC may deem appropriate,
supplies or services similar to those so terminated, or may complete the services with
its own forces. The Consultant shall be liable to RCTC for any excess costs for such
similar supplies or services, and for any other costs incurred by RCTC as a result of the
Uncured Breach. The Consultant shall continue the performance of this contract to the
extent not terminated under the provisions of this clause.
d. Except with respect to defaults of Subconsultants, the Consultant shall not be
liable for any excess costs if the failure to perform the contract arises out of causes
beyond the control and without the fault or negligence of the Consultant. If the failure to
perform is caused by the default of a Subconsultant, and if such default arises out of
causes beyond the control of both the Consultant and the Subconsultant, and without
the fault or negligence of either of them, the Consultant shall not be liable for any
excess costs for failure to perform, unless the supplies or services to be furnished by
the Subconsultant were obtainable from other sources in sufficient time to permit the
Consultant to meet the required project completion schedule.
e. Payment for completed services or supplies delivered to and accepted by RCTC
shall be at the contract price. RCTC may withhold from amounts otherwise due the
Consultant for such completed services or supplies such sum as RCTC determines to
be necessary to protect RCTC against loss because of outstanding liens of claims of
former lien holders, or to reimburse RCTC for any other costs related to the Uncured
Breach.
f. If, after notice of termination of this contract for cause, it is determined for any
reason that an Uncured Breach did not exist, the rights and obligations of the parties
shall be the same as if the notice of termination had been issued pursuant to the
provisions for termination for convenience of RCTC.
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g. The rights and remedies of RCTC provided in this clause shall not be exclusive
and are in addition to any other rights and remedies provided by law, equity or under
this contract including, but not limited to, the right to specific performance.
h. Notwithstanding the above, RCTC may, without providing an opportunity to cure,
terminate the contract in accordance with the timeframe set forth in Section 17 of the
contract, if RCTC determines such action is in its best interest based on the nature of
the Breach. Such actions shall not limit any of RCTC’s remedies set forth above.
16. Disputes
a. Except as otherwise provided in this Agreement, any dispute concerning a
question of fact arising under this Agreement which is not disposed of by supplemental
agreement shall be
decided by RCTC’s Deputy Executive Director, who shall reduce the decision to writing
and mail or otherwise furnish a copy thereof to the Consultant. The decision of the
RCTC Deputy Executive Director shall be final and conclusive unless, within thirty (30)
days from the date of receipt of such copy, Consultant mails or otherwise furnishes to
the RCTC Deputy Executive Director a written appeal addressed to RCTC's Executive
Director. The decision of RCTC Executive Director or duly authorized representative for
the determination of such appeals shall be final and conclusive.
b. The provisions of this Paragraph shall not be pleaded in any suit involving a
question of fact arising under this Agreement as limiting judicial review of any such
decision to cases where fraud by such official or his representative or board is alleged,
provided, however, that any such decision shall be final and conclusive unless the same
is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply
bad faith or is not supported by substantial evidence. In connection with any appeal
proceeding under this Paragraph, the Consultant shall be afforded an opportunity to be
heard and to offer evidence in support of its appeal.
c. Pending final decision of a dispute hereunder, Consultant shall proceed diligently
with the performance of this Agreement and in accordance with the decision of RCTC's
Deputy Executive Director. This "Disputes" clause does not preclude consideration of
questions of law in connection with decisions provided for above. Nothing in this
Agreement, however, shall be construed as making final the decision of any RCTC
official or representative on a question of law, which questions shall be settled in
accordance with the laws of the State of California.
17. Lobbying
See the Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying
Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] -
Consultants who apply or bid for an award of $100,000 or more shall file the
certification required by 49 CFR part 20, "New Restrictions on Lobbying.” Each tier
certifies to the tier above that it will not and has not used Federal appropriated funds to
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pay any person or organization for influencing or attempting to influence an officer or
employee of any agency, a member of Congress, officer or employee of Congress, or
an employee of a member of Congress in connection with obtaining any Federal
contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also
disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has
made lobbying contacts on its behalf with non-Federal funds with respect to that
Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are
forwarded from tier to tier up to the recipient. The Offeror shall complete and submit
with its bid/proposal the attached Certification Regarding Lobbying, and if applicable,
the Standard Form-LLL, “Disclosure Form to Report Lobbying.”
18. Energy Conservation
The Consultant agrees to comply with mandatory standards and policies relating to
energy efficiency which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act.
19. Clean Water
a. The Consultant 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. The Consultant agrees to report each violation to RCTC and understands
and agrees that RCTC will, in turn, report each violation as required to assure
notification to FTA and the appropriate EPA Regional Office.
d. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List
of Violating Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as
amended, (42 U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as
amended, (33 U.S.C. §§ 1251-1387).
The Consultant also agrees to include these requirements in each subcontract
exceeding $150,000 financed in whole or in part with Federal assistance provided by
FTA.
20. Clean Air
a. The Consultant 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. The Consultant agrees to report each violation to RCTC and understands and
agrees that RCTC will, in turn, report each violation as required to assure notification to
FTA and the appropriate EPA Regional Office.
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b. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List
of Violating Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as
amended, (42 U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as
amended, (33 U.S.C. §§ 1251-1387).
c. The Consultant also agrees to include these requirements in each subcontract
exceeding $150,000 financed in whole or in part with Federal assistance provided by
FTA.
21. Recycled Products
Recovered Materials - The Consultant agrees to comply with all the requirements of
Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended
(42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part
247, and Executive Order
12873, as they apply to the procurement of the items designated in Subpart B of 40
CFR Part 247.
21. SPECIAL PROVISION FOR PROMOTING COVID-19 SAFETY
Section 49. Centers for Disease Control and Prevention Order on Requirements
for Persons to Wear Masks While on Conveyances and at Transportation Hubs.
(a) Compliance with CDC Mask Order. The Centers for Disease Control and Prevention
(“CDC”) Order of January 29, 2021, titled Requirement for Persons to Wear Masks
While on Conveyances and at Transportation Hubs (“CDC Mask Order”), applies to this
Agreement. One of the objectives of the CDC Mask Order is “[m]aintaining a safe and
operating transportation system.” Consultant agrees that it will comply, and will require
all subconsultants to comply, with the CDC Mask Order.
(b) Enforcement for non-compliance. Consultant agrees that FTA and RCTC may take
enforcement action for non-compliance with the CDC Mask Order, including: (1)
enforcement actions authorized by 49 U.S.C. § 5329(g); (2) referring Consultant to the
CDC or other Federal authority for enforcement action; (3) enforcement actions
authorized by 2 CFR §§ 200.339 – .340; and (4) any other enforcement action
authorized by Federal law or regulation.
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22. Safe Operation of Motor Vehicles
Pursuant to Federal Executive Order No. 13043, “Increasing Seat Belt Use in the
United States,” April 16, 1997, 23 U.S.C. Section 402 note, FTA encourages each third
party consultant to adopt and promote on-the-job seat belt use policies and programs
for its employees and other personnel that operate company owned, rented, or
personally operated vehicles, and to include this provision in each third party
subcontract involving the project.
a. The Consultant is encouraged to adopt and promote on-the-job seat belt use policies
and programs for its employees and other personnel that operate company-owned
vehicles, company-rented vehicles, or personally operated vehicles. The terms
“company-owned” and “company-leased” refer to vehicles owned or leased either by
the Consultant or RCTC.
. The Consultant agrees to adopt and enforce workplace safety policies to
decrease crashes
caused by distracted drivers, including policies to ban text messaging while using an
electronic device supplied by an employer, and driving a vehicle the driver owns or
rents, a vehicle Contactor owns, leases, or rents, or a privately-owned vehicle when on
official business in connection with the work performed under this contract.
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17336.00023\34328429.1
Exhibit E-1
EXHIBIT "E"
CERTIFICATE OF CONSULTANT
I HEREBY CERTIFY that I am the _______________________ and duly authorized
representative of the firm of _____________________________________ whose address
is ____________________________________________________, and that, except as
hereby expressly stated, neither I nor the above firm that I represent have:
(a) employed or retained for a commission, percentage, brokerage, contingent
fee, or other consideration, any firm or person (other than a bona fide
employee working solely for me or the above consultant) to solicit or secure
this agreement; nor
(b) agreed, as an express or implied condition for obtaining this Agreement, to
employ or retain the services of any firm or person in connection with carrying
out the agreement; nor
(c) paid, or agreed to pay, to any firm, organization or person (other than a bona
fide employee working solely for me or the above consultant) any fee,
contribution, donation, or consideration of any kind for, or in connection with,
procuring or carrying out this agreement.
I acknowledge that this Certificate is to be made available to the California
Department of Transportation (Caltrans) in connection with this agreement involving
participation of Federal-aid Highway funds, and is subject to applicable State and Federal
laws, both criminal and civil.
By: ____________________________
Signature
____________________________
Name
____________________________
Title
____________________________
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Appendix L - Disclosure of Lobbying Activities
Response to RFP 22-41-009-00 (On-Call Right of Way Appraisal Services)31
Riverside County Transportation Commission
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Agreement No. 22-31-027-00
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA AND FTA FUNDING ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
INTEGRA REALTY RESOURCES – LOS ANGELES
FOR ON-CALL
RIGHT OF WAY APPRAISAL SERVICES
Parties and Date.
This Agreement is made and entered into this ___ day of _______, 2021,
by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the
Commission") and INTEGRA REALTY RESOURCES – LOS ANGELES ("Consultant"),
a Corporation. The Commission and Consultant are sometimes referred to herein
individually as “Party”, and collectively as the “Parties”.
Recitals.
A.On November 8, 1988, the Voters of Riverside County approved Measure
A authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax
(the "tax") to fund transportation programs and improvements within the County of
Riverside, and adopting the Riverside County Transportation Improvement Plan (the
"Plan").
B.Pursuant to Public Utility Code Sections 240000 et seq., the Commission is
authorized to allocate the proceeds of the Tax in furtherance of the Plan.
C.On November 5, 2002, the voters of Riverside County approved an
extension of the Measure A tax for an additional thirty (30) years for the continued funding
of transportation and improvements within the County of Riverside.
D.A source of funding for payment for on-call professional appraisal services
provided under this Agreement may be Federal Highway Administration (“FHWA”) funds
administered by the California Department of Transportation (“Caltrans”), and/or funds
from the Federal Transit Administration (“FTA”). This Commission may withhold payment
of any federal funds hereunder until the certification shown in Exhibit “F” attached hereto
and incorporated herein by reference, is executed.
E.Consultant desires to perform and assume responsibility for the provision
of certain on-call right of way appraisal services for projects in the County of Riverside,
California. Services shall be provided on the terms and conditions set forth in this
Agreement and in the task order(s) to be solicited, awarded and authorized by
Commission as further described in this Agreement (“Task Order”). Consultant
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represents that it is experienced in providing such services to public clients, is licensed in
the State of California (if necessary) and is familiar with the plans of the Commission.
G. Commission desires to engage Consultant to render such services on an
on-call basis. Services shall be ordered by Task Order(s) to be issued pursuant to this
Agreement for future projects as set forth herein and in each Task Order (each such
project shall be designated a “Project” under this Agreement).
Terms.
1. General Scope of Services. Consultant shall furnish all technical and
professional services, including labor, material, equipment, transportation, supervision
and expertise, and incidental and customary work necessary to fully and adequately
supply the on-call right of way appraisal services for the Projects ("Services"). The
Services are generally described in Exhibit "A" attached hereto and incorporated herein
by reference. The Services shall be more particularly described in the individual Task
Orders issued by the Commission’s Executive Director or designee. No Services shall
be performed unless authorized by a fully executed Task Order. All Services shall be
subject to, and performed in accordance with, this Agreement, the relevant Task Order,
the exhibits attached hereto and incorporated herein by reference, and all applicable
local, state and federal laws, rules and regulations.
2. Task Orders; Commencement of Services; Schedule of Services. Services
under this Agreement shall be requested by the Commission pursuant to Task Order
requests. If Commission accepts Consultant’s Task Order proposal, Commission shall
issue a purchase order or executed task order for the Services (“Commission’s Task
Order Authorization”). Consultant’s agreement to the final terms of a proposed Task
Order, Commission’s Task Order Authorization and Consultant’s commencement of the
Services shall indicate the Parties’ agreement to the terms of the relevant Task Order.
Consultant shall commence Services under a Task Order within five (5)
days of receiving Commission’s Task Order Authorization.
Consultant shall perform the Services expeditiously, in accordance with the
Schedule of Services set forth in a Task Order. Consultant represents that it has the
professional and technical personnel required to perform the Services in conformance
with such conditions. In order to facilitate Consultant's conformance with the Schedule,
Commission shall respond to Consultant's submittals in a timely manner. Upon request
of the Commission, Consultant shall provide a more detailed schedule of anticipated
performance to meet the Schedule of Services.
3. Pre-Award Audit. As a result of the funding for this Project, and to the extent
Caltrans procedures apply in connection therewith, issuance of a “Notice to Proceed” or
other authorization to proceed under a Task Order may be contingent upon completion
and approval of a pre-award audit. Any questions raised during the pre-award audit shall
be resolved before Services are commenced under a Task Order. The funding provided
under this Agreement is contingent on meeting all funding requirements and could be
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withdrawn, thereby entitling the Commission to terminate this Agreement, if the
procedures are not completed. The Consultant’s files shall be maintained in a manner to
facilitate State process reviews. In addition, Caltrans may require that prior to
performance of any work for which funding reimbursement through Caltrans is requested
and provided, that Caltrans must give to Commission an “Authorization to Proceed”.
4. Audit Procedures.
4.1 Consultant and certain subconsultant contracts, including cost
proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract
audit, an incurred cost audit, an Independent Cost Review (ICR) Audit, or a CPA ICR
audit work paper review. If selected for audit or review, this Agreement, Consultant’s cost
proposal and ICR and related work papers, if applicable, will be reviewed to verify
compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances
of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal,
state, or local government officials are allowed full access to the CPA’s work papers
including making copies as necessary. This Agreement, Consultant’s cost proposal, and
ICR shall be adjusted by Consultant and approved by the Commission’s contract
manager to conform to the audit or review recommendations. Consultant agrees that
individual terms of costs identified in the audit report shall be incorporated into this
Agreement by this reference if directed by Commission at its sole discretion. Refusal by
Consultant to incorporate audit or review recommendations, or to ensure that the federal,
state or local governments have access to CPA work papers, will be considered a breach
of the Agreement terms and cause for termination of this Agreement and disallowance
of prior reimbursed costs. Additional audit provisions applicable to this Agreement are
set forth in Sections 22 and 23 of this Agreement.
Section 4.2 and 4.3 shall apply to the extent applicable to the Task Order and funding
source.
4.2 During any Caltrans’ review of the ICR audit work papers created
by the Consultant’s independent CPA, Caltrans will work with the CPA and/or Consultant
toward a resolution of issues that arise during the review. Each party agrees to use its
best efforts to resolve any audit disputes in a timely manner. If Caltrans identifies
significant issues during the review and is unable to issue a cognizant approval letter,
Commission will reimburse the Consultant at an accepted ICR until a FAR (Federal
Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally
Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in
accordance with procedures and guidelines of the American Association of State
Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable
procedures and guidelines is received and approved by Caltrans.
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted
rate reimbursed will be ninety percent (90%) of the proposed rate.
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b. If the proposed rate is between one hundred fifty percent (150%) and two hundred
percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted
rate will be seventy-five percent (75%) of the proposed rate.
4.3 If Caltrans is unable to issue a cognizant letter per Section 4.2
above, Caltrans may require Consultant to submit a revised independent CPA-audited
ICR and audit report within three (3) months of the effective date of the Caltrans’
management letter. Caltrans will then have up to six (6) months to review the
Consultant’s and/or the independent CPA’s revisions.
If the Consultant fails to comply with the provisions of this Section 4, or if
Caltrans is still unable to issue a cognizant approval letter after the revised independent
CPA audited ICR is submitted, overhead cost reimbursement will be limited to the
accepted ICR that was established upon initial rejection of the ICR and set forth in
Section 4.2 above for all rendered services. In this event, this accepted ICR will become
the actual and final ICR for reimbursement purposes under this Agreement.
Consultant may submit to Commission final invoice only when all of the
following items have occurred: (1) Caltrans accepts or adjusts the original or revised
independent CPA audited ICR; (2) all work under this Agreement has been completed
to the satisfaction of Commission; and (3) Caltrans has issued its final ICR review letter.
The Consultant must submit its final invoice to Commission no later than sixty (60)
calendar days after occurrence of the last of these items. The accepted ICR will apply
to this Agreement and all Task Orders issued under this Agreement, and all other
agreements executed between the Commission and the Consultant, either as a prime or
subconsultant, with the same fiscal period ICR.
5. Term.
5.1 This Agreement shall go into effect on the date first set forth above,
contingent upon approval by Commission, and Consultant shall commence work after
notification to proceed by Commission’s Contract Administrator. This Agreement shall
end on December 31, 2025, unless extended by contract amendment.
Notwithstanding the foregoing, Caltrans and/or FHWA funded Task Orders
shall be completed within thirty-six (36) months of the Effective Date, unless approval of
Caltrans is obtained from the Commission.
5.2 Consultant is advised that any recommendation for contract award
is not binding on Commission until this Agreement is fully executed and approved by the
Commission.
5.3 This Agreement shall remain in effect until the date set forth above,
unless earlier terminated as provided herein. Consultant shall complete the Services
within the term of this Agreement, and shall meet any other established schedules and
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deadlines. All applicable indemnification provisions of this Agreement shall remain in
effect following the termination of this Agreement.
6. Commission's Contract Administrator. The Commission hereby designates
the Commission's Executive Director, or his or her designee, to act as its Contract
Administrator for the performance of this Agreement ("Commission’s Contract
Administrator"). Commission’s Contract Administrator shall have the authority to act on
behalf of the Commission for all purposes under this Agreement. Commission’s Contract
Administrator shall also review and give approval, as needed, to the details of
Consultant's work as it progresses. Consultant shall not accept direction or orders from
any person other than the Commission’s Contract Administrator or his or her designee.
7. Consultant's Representative. Consultant hereby Beth B. Finestone to act
as its Representative for the performance of this Agreement ("Consultant’s
Representative"). Consultant's Representative shall have full authority to act on behalf
of Consultant for all purposes under this Agreement. The Consultant’s Representative
shall supervise and direct the Services, using his or her professional skill and attention,
and shall be responsible for all means, methods, techniques, sequences and procedures
and for the satisfactory coordination of all portions of the Services under this Agreement.
Consultant shall work closely and cooperate fully with Commission’s Contract
Administrator and any other agencies which may have jurisdiction over, or an interest in,
the Services. Consultant's Representative shall be available to the Commission staff at
all reasonable times. Any substitution in Consultant's Representative shall be approved
in writing by Commission’s Contract Administrator.
8. Substitution of Key Personnel. Consultant has represented to the
Commission that certain key personnel will perform and coordinate the Services under
this Agreement. Should one or more of such personnel become unavailable, Consultant
may substitute other personnel of at least equal competence upon written approval by the
Commission. In the event that the Commission and Consultant cannot agree as to the
substitution of the key personnel, the Commission shall be entitled to terminate this
Agreement for cause, pursuant to the provisions herein. The key personnel for
performance of this Agreement are: Beth B. Finestone, John G. Ellis, Adam M.
Bogorad, Robert M. Lea, William Larsen, Ryan J. Dobbins, Jerardo Arciniega,
Nicole B. Galvez, Susan O. Gordon, Thomas G. Richardson, J. Richard Donahue,
and Stephanie Kavanaugh, or as otherwise identified in the Task Order.
9. Standard of Care; Licenses. Consultant represents and maintains that it is
skilled in the professional calling necessary to perform all Services, duties and obligations
required by this Agreement to fully and adequately complete the Project. Consultant shall
perform the Services and duties in conformance to and consistent with the standards
generally recognized as being employed by professionals in the same discipline in the
State of California. Consultant warrants that all employees and subcontractors shall have
sufficient skill and experience to perform the Services assigned to them. Consultant
further represents and warrants to the Commission that its employees and subcontractors
have all licenses, permits, qualifications and approvals of whatever nature that are legally
required to perform the Services, and that such licenses and approvals shall be
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maintained throughout the term of this Agreement. Consultant shall perform, at its own
cost and expense and without reimbursement from the Commission, any services
necessary to correct errors or omissions which are caused by the Consultant’s failure to
comply with the standard of care provided for herein, and shall be fully responsible to the
Commission for all damages and other liabilities provided for in the indemnification
provisions of this Agreement arising from the Consultant’s errors and omissions. Any
employee of Consultant or its sub-consultants who is determined by the Commission to
be uncooperative, incompetent, a threat to the adequate or timely completion of the
Project, a threat to the safety of persons or property, or any employee who fails or refuses
to perform the Services in a manner acceptable to the Commission, shall be promptly
removed from the Project by the Consultant and shall not be re-employed to perform any
of the Services or to work on the Project.
10. Independent Contractor. The Services shall be performed by Consultant or
under its supervision. Consultant will determine the means, methods and details of
performing the Services subject to the requirements of this Agreement. Commission
retains Consultant on an independent contractor basis and not as an employee, agent or
representative of the Commission. Consultant retains the right to perform similar or
different services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Consultant shall at all times
be under Consultant's exclusive direction and control. Consultant shall pay all wages,
salaries and other amounts due such personnel in connection with their performance of
Services and as required by law. Consultant shall be responsible for all reports and
obligations respecting such personnel, including but not limited to, social security taxes,
income tax withholdings, unemployment insurance, disability insurance, and workers'
compensation insurance.
11. Project Progress.
11.1 Modification of the Schedule. Consultant shall regularly report to
the Commission, through correspondence or progress reports, its progress in providing
required Services within the scheduled time periods. Commission shall be promptly
informed of all anticipated delays. In the event that Consultant determines that a
schedule modification is necessary, Consultant shall promptly submit a revised Schedule
of Services for approval by Commission’s Contract Administrator.
11.2 Trend Meetings. Consultant shall conduct trend meetings with the
Commission’s Contract Administrator and other interested parties, as requested by the
Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a
standard day and time. These trend meetings will encompass focused and informal
discussions concerning scope, schedule, and current progress of Services, relevant cost
issues, and future Project objectives. Consultant shall be responsible for the preparation
and distribution of meeting agendas to be received by the Commission and other
attendees no later than three (3) working days prior to the meeting.
11.3 Progress Reports. As part of its monthly invoice, Consultant shall
submit a progress report, in a form determined by the Commission, which will indicate
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the progress achieved during the previous month in relation to the Schedule of Services.
Submission of such progress report by Consultant shall be a condition precedent to
receipt of payment from the Commission for each monthly invoice submitted.
12. Delay in Performance.
12.1 Excusable Delays. Should Consultant be delayed or prevented
from the timely performance of any act or Services required by the terms of the
Agreement by reason of acts of God or of the public enemy, acts or omissions of the
Commission or other governmental agencies in either their sovereign or contractual
capacities, fires, floods, pandemics, epidemics, quarantine restrictions, strikes, freight
embargoes or unusually severe weather, performance of such act shall be excused for
the period of such delay.
12.2 Written Notice. If Consultant believes it is entitled to an extension
of time due to conditions set forth in subsection 12.1, Consultant shall provide written
notice to the Commission within seven (7) working days from the time Consultant knows,
or reasonably should have known, that performance of the Services will be delayed due
to such conditions. Failure of Consultant to provide such timely notice shall constitute a
waiver by Consultant of any right to an excusable delay in time of performance.
12.3 Mutual Agreement. Performance of any Services under this
Agreement may be delayed upon mutual agreement of the Parties. Upon such
agreement, Consultant's Schedule of Services shall be extended as necessary by the
Commission. Consultant shall take all reasonable steps to minimize delay in completion,
and additional costs, resulting from any such extension.
13. Preliminary Review of Work. All reports, working papers, and similar work
products prepared for submission in the course of providing Services under this
Agreement shall be submitted to the Commission’s Contract Administrator in draft form,
and the Commission may require revisions of such drafts prior to formal submission and
approval. In the event plans and designs are to be developed as part of the Project, final
detailed plans and designs shall be contingent upon obtaining environmental clearance
as may be required in connection with Federal funding. In the event that Commission’s
Contract Administrator, in his or her sole discretion, determines the formally submitted
work product to be not in accordance with the standard of care established under this
Agreement, Commission’s Contract Administrator may require Consultant to revise and
resubmit the work at no cost to the Commission.
14. Appearance at Hearings. If and when required by the Commission,
Consultant shall render assistance at public hearings or other meetings related to the
Project or necessary to the performance of the Services. However, Consultant shall not
be required to, and will not, render any decision, interpretation or recommendation
regarding questions of a legal nature or which may be construed as constituting a legal
opinion.
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15. Opportunity to Cure; Inspection of Work. Commission may provide
Consultant an opportunity to cure, at Consultant's expense, all errors and omissions
which may be disclosed during Project implementation. Should Consultant fail to make
such correction in a timely manner, such correction may be made by the Commission,
and the cost thereof charged to Consultant. Consultant shall allow the Commission’s
Contract Administrator and Caltrans to inspect or review Consultant's work in progress at
any reasonable time.
16. Final Acceptance. Upon determination by the Commission that Consultant
has satisfactorily completed the Services required under this Agreement and within the
term set forth herein the Commission shall give Consultant a written Notice of Final
Acceptance. Upon receipt of such notice, Consultant shall incur no further costs
hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may
request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily
completed all Services required under the terms of this Agreement. In the event
copyrights are permitted under this Agreement, then in connection with Federal funding,
it is hereby acknowledged and agreed that the United States Department of
Transportation shall have the royalty-free non-exclusive and irrevocable right to
reproduce, publish, or otherwise use, and to authorize others to use, the work for
governmental purposes.
17. Laws and Regulations. Consultant shall keep itself fully informed of and in
compliance with all local, state and federal laws, rules and regulations in any manner
affecting the performance of the Project or the Services, including all Cal/OSHA
requirements, and shall give all notices required by law. For example, and not by way of
limitation, Consultant shall keep itself fully informed of and in compliance with all
implementing regulations, design standards, specifications, previous commitments that
must be incorporated in the design of the Project, and administrative controls including
those of the United States Department of Transportation. Compliance with Federal
procedures may include completion of the applicable environmental documents and
approved by the United States Department of Transportation. For example, and not by
way of limitation, a signed Categorical Exclusion, Finding of No Significant Impact, or
published Record of Decision may be required to be approved and/or completed by the
United States Department of Transportation. For Consultant shall be liable for all
violations of such laws and regulations in connection with Services. If the Consultant
performs any work knowing it to be contrary to such laws, rules and regulations and
without giving written notice to the Commission, Consultant shall be solely responsible
for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission,
its officials, directors, officers, employees and agents free and harmless, pursuant to the
indemnification provisions of this Agreement, from any claim or liability arising out of any
failure or alleged failure to comply with such laws, rules or regulations.
18. Fees and Payment.
18.1 The method of payment for this Agreement will be based on actual
cost. Commission shall reimburse Consultant for actual costs (including labor costs,
employee benefits, travel, equipment rental costs, overhead and other direct costs)
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incurred by Consultant in performance of the Services. Consultant shall not be
reimbursed for actual costs that exceed the estimated wage rates, employee benefits,
travel, equipment rental, overhead, and other estimated costs set forth in the approved
Consultant cost proposal attached hereto as Exhibit “B” and incorporated herein by
reference, or any cost proposal included as part of a Task Order (“Cost Proposal”) unless
additional reimbursement is provided for by written amendment. In no event, shall
Consultant be reimbursed for overhead costs at a rate that exceeds Commission’s
approved overhead rate set forth in the Cost Proposal. To the extent legally permissible,
Consultant’s approved overhead rate shall be fixed for the term of this Agreement. In the
event that Commission determines that a change to the Services from that specified in
the Cost Proposal, this Agreement or any Task Order is required, the Agreement time or
actual costs reimbursable by Commission shall be adjusted by written amendment to
accommodate the changed work. The maximum total cost as specified in Section 18.8
shall not be exceeded, unless authorized by a written amendment.
18.2 Reimbursement for transportation and subsistence costs shall not
exceed the rates specified in the approved Cost Proposal. In addition, payments to
Consultant for travel and subsistence expenses claimed for reimbursement or applied
as local match credit shall not exceed rates authorized to be paid exempt non-
represented State employees under current State Department of Personnel
Administration (DPA) rules, unless otherwise authorized by Commission. If the rates
invoiced are in excess of those authorized DPA rates, and Commission has not
otherwise approved said rates, then Consultant is responsible for the cost difference and
any overpayments shall be reimbursed to the Commission on demand.
18.3 When milestone cost estimates are included in the approved Cost
Proposal for a Task Order, Consultant shall obtain prior written approval for a revised
milestone cost estimate from the Contract Administrator before exceeding such cost
estimate.
18.4 Progress payments shall be made monthly in arrears based on
Services provided and allowable incurred costs. If Consultant fails to submit the required
deliverable items according to the schedule set forth in the Scope of Services,
Commission shall have the right to delay payment or terminate this Agreement in
accordance with the provisions of Section 20, Termination.
18.5 No payment shall be made prior to approval of any Services, nor for
any Services performed prior to approval of this Agreement.
18.6 Consultant shall be reimbursed, as promptly as fiscal procedures
will permit upon receipt by Commission’s Contract Administrator of itemized invoices in
triplicate. Invoices shall be submitted no later than 45 calendar days after the
performance of work for which Consultant is billing. Invoices shall detail the work
performed on each milestone and each project as applicable. Invoices shall follow the
format stipulated for the approved Cost Proposal and shall reference this Agreement
number and project title. Final invoice must contain the final cost and all credits due
Commission including any equipment purchased under the Equipment Purchase
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provisions of this Agreement. The final invoice should be submitted within 60 calendar
days after completion of Consultant’s work. Invoices shall be mailed to Commission’s
Contract Administrator at the following address:
Riverside County Transportation Commission
Attention: Accounts Payable
P.O. 12008
Riverside, CA 92502
18.7 The total amount payable by Commission, shall not exceed the
amount set forth in each Task Order.
18.8 Commission has or will enter into five (5) task order contracts for
performance of the Scope of Services identified in Exhibit “A”, including this Agreement
(“On-Call ROW Appraisal Task Order Contracts”). The other On-Call ROW Appraisal
Task Order Contracts are Hawran & Malm, LLC, 22-31-009-00; Hennessey &
Hennessey, LLC 22-31-026-00; R.P. Laurain & Associates, Inc., 22-31-028-00; and
Santolucito Dorè Group, Inc., 22-31-029-00. The total amount payable by Commission
for the On-Call ROW Appraisal Task Order Contracts shall not exceed a cumulative
maximum total value of One Million Dollars ($1,000,000) (“NTE Sum”). It is understood
and agreed that there is no guarantee, either expressed or implied that this dollar amount
will be authorized under the On-Call ROW Appraisal Task Order Contracts through Task
Orders. Each time a Task Order is awarded under any of the On-Call ROW Appraisal
Task Order Contracts, Commission must send written notification to Consultant and each
of the other consultants entering into the On-Call ROW Appraisal Task Order Contracts.
The notice must identify the total funds allocated under issued Task Orders, and the
remaining unencumbered amount of the NTE Sum. Consultant acknowledges and
agrees that Commission must not pay any amount under this Agreement that would
exceed the NTE Sum, and Consultant must not enter into a Task Order that exceeds the
NTE Sum.
18.9 Salary increases shall be reimbursable if the new salary is within the
salary range identified in the approved Cost Proposal and is approved by Commission’s
Contract Administrator. For personnel subject to prevailing wage rates as described in
the California Labor Code, all salary increases, which are the direct result of changes in
the prevailing wage rates are reimbursable.
18.10 Consultant shall not be reimbursed for any expenses unless
authorized in writing by the Commission’s Contract Administrator.
18.11 All subcontracts in excess of $25,000 shall contain the above
provisions.
19. Disputes.
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19.1 Any dispute, other than audit, concerning a question of fact arising
under this Agreement that is not disposed of by mutual agreement of the Parties shall
be decided by a committee consisting of RCTC’s Contract Administrator and the Director
of Capital Projects, who may consider written or verbal information submitted by
Consultant.
19.2 Not later than 30 days after completion of all Services under this
Agreement, Consultant may request review by the Commission’s Executive Director of
unresolved claims or disputes, other than audit. The request for review will be submitted
in writing.
19.3 Neither the pendency of a dispute, nor its consideration by the
committee will excuse Consultant from full and timely performance in accordance with
the terms of this Agreement.
20. Termination.
20.1 Commission reserves the right to terminate this Agreement upon
thirty (30) calendar days written notice to Consultant, for any or no reason, with the
reasons for termination stated in the notice. Commission may terminate Services under
a Task Order, at any time, for any or no reason, with the effective date of termination to
be specified in the notice of termination of Task Order.
20.2 Commission may terminate this Agreement with Consultant should
Consultant fail to perform the covenants herein contained at the time and in the manner
herein provided. In the event of such termination, Commission may proceed with the
Services in any manner deemed proper by Commission. If Commission terminates this
Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant
under this Agreement for Services completed and accepted prior to termination, unless
the cost of completion to Commission exceeds the funds remaining in the Agreement. In
such case, the overage shall be deducted from any sum due Consultant under this
Agreement and the balance, if any, shall be paid to Consultant upon demand.
20.3 In addition to the above, payment upon termination shall include a
prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit
on unperformed Services. Consultant shall provide documentation deemed adequate by
Commission’s Contract Administrator to show the Services actually completed by
Consultant prior to the effective date of termination. This Agreement shall terminate on
the effective date of the Notice of Termination
20.4 Upon receipt of the written Notice of Termination, Consultant shall
discontinue all affected Services as directed in the Notice or as otherwise provided
herein, and deliver to the Commission all Documents and Data, as defined in this
Agreement, as may have been prepared or accumulated by Consultant in performance
of the Services, whether completed or in progress.
20.5 In addition to the above, Consultant shall be liable to the
Commission for any reasonable additional costs incurred by the Commission to revise
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work for which the Commission has compensated Consultant under this Agreement, but
which the Commission has determined in its sole discretion needs to be revised, in part
or whole, to complete the Project because it did not meet the standard of care
established in this Agreement. Termination of this Agreement for cause may be
considered by the Commission in determining whether to enter into future agreements
with Consultant.
20.6 The rights and remedies of the Parties provided in this Section are
in addition to any other rights and remedies provided by law or under this Agreement.
20.7 Consultant, in executing this Agreement, shall be deemed to have
waived any and all claims for damages which may otherwise arise from the
Commission's termination of this Agreement, for convenience or cause, as provided in
this Section.
20.8 Consultant may not terminate this Agreement except for cause
20.9 In addition to the termination rights above, Commission may
temporarily suspend the Services under any Task Order(s), at no additional cost to
Commission, provided that Consultant is given written notice of temporary suspension.
If Commission gives such notice of temporary suspension, Consultant shall immediately
suspend its activities under the relevant Task Order(s). A temporary suspension may
be issued concurrent with a notice of termination.
21. Cost Principles and Administrative Requirements.
21.1 Consultant agrees that the Contract Cost Principles and
Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000
et seq., shall be used to determine the cost allowability of individual items.
21.2 Consultant also agrees to comply with federal procedures in
accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards.
21.3 Any costs for which payment has been made to CONSULTANT that
are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48
CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are
subject to repayment by Consultant to Commission.
21.4 All subcontracts in excess of $25,000 shall contain the above
provisions.
22. Retention of Records/Audit. For the purpose of determining compliance
with, as applicable, 2 CFR Part 200, Public Contract Code 10115, et seq. and Title 21,
California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and
other matters connected with the performance of this Agreement pursuant to Government
Code 8546.7; Consultant, subconsultants, and Commission shall maintain and make
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available for inspection all books, documents, papers, accounting records, and other
evidence pertaining to the performance of this Agreement, including but not limited to, the
costs of administering this Agreement. All parties shall make such materials available at
their respective offices at all reasonable times during the Agreement period and for three
years from the date of final payment under this Agreement. The State, State Auditor,
Commission, or any duly authorized representative of the State or Federal Government
shall have access to any books, records, and documents of Consultant and it’s certified
public accountants (CPA) work papers that are pertinent to this Agreement and, if
applicable, indirect cost rates (ICR) for audit, examinations, excerpts, and transactions,
and copies thereof shall be furnished if requested. Subcontracts in excess of $25,000
shall contain this provision.
23.1 Accounting System. Consultant and its subcontractors shall
establish and maintain an accounting system and records that properly accumulate and
segregate expenditures by line item for the Services. The accounting system of
Consultant and its subcontractors shall conform to Generally Accepted Accounting
Principles (GAAP), enable the determination of incurred costs at interim points of
completion, and provide support for reimbursement payment vouchers or invoices.
23. Audit Review Procedures.
23.1 Any dispute concerning a question of fact arising under an interim
or post audit of this Agreement that is not disposed of by agreement, shall be reviewed
by Commission’s Chief Financial Officer.
23.2 Not later than 30 days after issuance of the final audit report,
Consultant may request a review by Commission’s Chief Financial Officer of unresolved
audit issues. The request for review will be submitted in writing.
23.3 Neither the pendency of a dispute nor its consideration by
Commission shall excuse Consultant from full and timely performance, in accordance
with the terms of this Agreement.
24. Subcontracting.
24.1 Nothing contained in this Agreement or otherwise, shall create any
contractual relation between Commission and any subconsultant(s), and no subcontract
shall relieve Consultant of its responsibilities and obligations hereunder. Consultant
agrees to be as fully responsible to Commission for the acts and omissions of its
subconsultant(s) and of persons either directly or indirectly employed by any of them as
it is for the acts and omissions of persons directly employed by Consultant. Consultant’s
obligation to pay its subconsultant(s) is an independent obligation from Commission’s
obligation to make payments to the Consultant.
24.2 Consultant shall perform the Services contemplated with resources
available within its own organization and no portion of the Services pertinent to this
Agreement shall be subcontracted without written authorization by Commission’s
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Contract Administrator, except that, which is expressly identified in the approved Cost
Proposal.
24.3 Consultant shall pay its subconsultants within ten (10) calendar
days from receipt of each payment made to Consultant by Commission.
24.4 Any subcontract in excess of $25,000 entered into as a result of this
Agreement shall contain all the provisions stipulated in this Agreement to be applicable
to subconsultants.
24.5 Any substitution of subconsultant(s) must be approved in writing by
Commission’s Contract Administrator prior to the start of work by the subconsultant(s).
24.6 Exhibit “B” may set forth the rates at which each subconsultant shall
bill the Consultant for Services and that are subject to reimbursement by the Commission
to Consultant. Additional Direct Costs, as defined in Exhibit “B” shall be the same for
both the Consultant and all subconsultants, unless otherwise identified in Exhibit “B” or
in a Task Order. The subconsultant rate schedules and cost proposals contained herein
are for accounting purposes only.
25. Equipment Purchase
25.1 Prior authorization, in writing, by Commission’s Contract
Administrator shall be required before Consultant enters into any unbudgeted purchase
order, or subcontract for supplies, equipment, or services. Consultant shall provide an
evaluation of the necessity or desirability of incurring such costs.
25.2 For purchase of any item, service or consulting work not covered in
the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s
Contract Administrator is required. Three competitive quotations must be submitted with
the request for such purchase, or the absence of bidding must be adequately justified.
25.3 Any equipment purchased as a result of this Agreement is subject
to the following: Consultant shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an
acquisition cost of $5,000 or more. If the purchased equipment needs replacement and
is sold or traded in, Commission shall receive a proper refund or credit at the conclusion
of this Agreement, or if this Agreement is terminated, Consultant may either keep the
equipment and credit Commission in an amount equal to its fair market value, or sell
such equipment at the best price obtainable at a public or private sale, in accordance
with established Commission procedures; and credit Commission in an amount equal to
the sales price. If Consultant elects to keep the equipment, fair market value shall be
determined at Consultant’s expense, on the basis of a competent independent appraisal
of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable
to by Commission and Consultant. If Consultant determines to sell the equipment, the
terms and conditions of such sale must be approved in advance by Commission. 2 CFR,
Part 200 requires a credit to Federal funds when participating equipment with a fair
market value greater than $5,000 is credited to the Project.
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25.4 All subcontracts in excess $25,000 shall contain the above
provisions.
26. Labor Code Requirements.
26.1 By its execution of this Agreement, Consultant certifies that it is
aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et
seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing
Wage Laws”), which require the payment of prevailing wage rates and the performance
of other requirements on certain “public works” and “maintenance” projects. If the
Services are being performed as part of an applicable “public works” or “maintenance”
project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000
or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Copies of
the prevailing rate of per diem wages are on file at the Commission’s offices. Consultant
shall make copies of the prevailing rates of per diem wages for each craft, classification
or type of worker needed to execute the Services available to interested parties upon
request, and shall post copies at the Consultant’s principal place of business and at the
project site. Consultant shall defend, indemnify and hold the Commission, its elected
officials, officers, employees and agents free and harmless from any claims, liabilities,
costs, penalties or interest arising out of any failure or alleged failure to comply with the
Prevailing Wage Laws.
26.2 DIR Registration. If the Services are being performed as part of an
applicable “public works” or “maintenance” project, then pursuant to Labor Code
Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered
with the Department of Industrial Relations. Consultant shall maintain registration for the
duration of the Project and require the same of any subconsultants. This Project may
also be subject to compliance monitoring and enforcement by the Department of
Industrial Relations. It shall be Consultant’s sole responsibility to comply with all
applicable registration and labor compliance requirements.
26.3 Eight-Hour Law. Pursuant to the provisions of the California Labor
Code, eight hours of labor shall constitute a legal day’s work, and the time of service of
any worker employed on the work shall be limited and restricted to eight hours during
any one calendar day, and forty hours in any one calendar week, except when payment
for overtime is made at not less than one and one-half the basic rate for all hours worked
in excess of eight hours per day (“Eight-Hour Law”), unless Consultant or the Services
are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a
penalty, $50.00 for each worker employed in the execution of this Agreement by him, or
by any sub-consultant under him, for each calendar day during which such workman is
required or permitted to work more than eight hours in any calendar day and forty hours
in any one calendar week without such compensation for overtime violation of the
provisions of the California Labor Code, unless Consultant or the Services are not
subject to the Eight-Hour Law.
26.4 Employment of Apprentices. This Agreement shall not prevent the
employment of properly indentured apprentices in accordance with the California Labor
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Code, and no employer or labor union shall refuse to accept otherwise qualified
employees as indentured apprentices on the work performed hereunder solely on the
ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice
shall be paid the standard wage paid to apprentices under the regulations of the craft or
trade in which he or she is employed and shall be employed only in the craft or trade to
which he or she is registered.
If California Labor Code Section 1777.5 applies to the Services, Consultant and
any subcontractor hereunder who employs workers in any apprenticeable craft or trade
shall apply to the joint apprenticeship council administering applicable standards for a
certificate approving Consultant or any sub-consultant for the employment and training of
apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall
employ the number of apprentices provided for therein, as well as contribute to the fund
to administer the apprenticeship program in each craft or trade in the area of the work
hereunder.
The parties expressly understand that the responsibility for compliance with
provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California
Labor Code in regard to all apprenticeable occupations lies with Consultant.
27. Ownership of Materials/Confidentiality.
27.1 Documents & Data. This Agreement creates an exclusive and
perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all
copyrights and designs embodied in plans, specifications, studies, drawings, estimates,
materials, data and other documents or works of authorship fixed in any tangible medium
of expression, including but not limited to, physical drawings or data magnetically or
otherwise recorded on computer diskettes, which are prepared or caused to be prepared
by Consultant under this Agreement (“Documents & Data”).
Consultant shall require all subcontractors to agree in writing that
Commission is granted an exclusive and perpetual license for any Documents & Data the
subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal
right to grant the exclusive and perpetual license for all such Documents & Data.
Consultant makes no such representation and warranty in regard to Documents & Data
which were prepared by design professionals other than Consultant or provided to
Consultant by the Commission.
Commission shall not be limited in any way in its use of the
Documents & Data at any time, provided that any such use not within the purposes
intended by this Agreement shall be at Commission’s sole risk.
27.2 Intellectual Property. In addition, Commission shall have and retain
all right, title and interest (including copyright, patent, trade secret and other proprietary
rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer
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programs or software and source code, enhancements, documents, and any and all
works of authorship fixed in any tangible medium or expression, including but not limited
to, physical drawings or other data magnetically or otherwise recorded on computer
media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under
this Agreement as well as any other such Intellectual Property prepared or developed by
or on behalf of Consultant under this Agreement.
The Commission shall have and retain all right, title and interest in
Intellectual Property developed or modified under this Agreement whether or not paid for
wholly or in part by Commission, whether or not developed in conjunction with Consultant,
and whether or not developed by Consultant. Consultant will execute separate written
assignments of any and all rights to the above referenced Intellectual Property upon
request of Commission.
Consultant shall also be responsible to obtain in writing separate
written assignments from any subcontractors or agents of Consultant of any and all right
to the above referenced Intellectual Property. Should Consultant, either during or
following termination of this Agreement, desire to use any of the above-referenced
Intellectual Property, it shall first obtain the written approval of the Commission.
All materials and documents which were developed or prepared by
the Consultant for general use prior to the execution of this Agreement and which are not
the copyright of any other party or publicly available and any other computer applications,
shall continue to be the property of the Consultant. However, unless otherwise identified
and stated prior to execution of this Agreement, Consultant represents and warrants that
it has the right to grant the exclusive and perpetual license for all such Intellectual Property
as provided herein.
Commission further is granted by Consultant a non-exclusive and
perpetual license to copy, use, modify or sub-license any and all Intellectual Property
otherwise owned by Consultant which is the basis or foundation for any derivative,
collective, insurrectional, or supplemental work created under this Agreement.
27.3 Confidentiality. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents and Data either created by or provided to Consultant
in connection with the performance of this Agreement shall be held confidential by
Consultant. Such materials shall not, without the prior written consent of Commission,
be used by Consultant for any purposes other than the performance of the Services. Nor
shall such materials be disclosed to any person or entity not connected with the
performance of the Services or the Project. Nothing furnished to Consultant which is
otherwise known to Consultant or is generally known, or has become known, to the
related industry shall be deemed confidential. Consultant shall not use Commission's
name or insignia, photographs of the Project, or any publicity pertaining to the Services
or the Project in any magazine, trade paper, newspaper, television or radio production
or other similar medium without the prior written consent of Commission.
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27.4 Infringement Indemnification. Consultant shall defend, indemnify
and hold the Commission, its directors, officials, officers, employees, volunteers and
agents free and harmless, pursuant to the indemnification provisions of this Agreement,
for any alleged infringement of any patent, copyright, trade secret, trade name,
trademark, or any other proprietary right of any person or entity in consequence of the
use on the Project by Commission of the Documents & Data, including any method,
process, product, or concept specified or depicted.
28. Indemnification. To the fullest extent permitted by law, Consultant shall
defend, indemnify and hold Commission, Caltrans and their directors, officials, officers,
employees, consultants, volunteers, and agents free and harmless from any and all
claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in
law or equity, to property or persons, including wrongful death, inverse condemnation,
and any claims related to property acquisition and relocation rules or failure to detect or
abate hazardous materials, which are brought by a third party, and which , in any manner
arise out of or are incident to alleged negligent acts, omissions, or willful misconduct of
Consultant, its officials, officers, employees, agents, consultants, and contractors arising
out of or in connection with the performance of the Services, the Project or this
Agreement, including without limitation the payment of consequential damages, expert
witness fees, and attorney’s fees and other related costs and expenses. Consultant shall
defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits,
actions or other legal proceedings of every kind that may be brought or instituted against
Commission, Caltrans, and their directors, officials, officers, employees, consultants,
agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree
that may be rendered against Commission, Caltrans or their directors, officials, officers,
employees, consultants, agents, or volunteers, in any such suit, action or other legal
proceeding. Consultant shall reimburse Commission, Caltrans and their directors,
officials, officers, employees, consultants, agents, and/or volunteers, for any and all legal
expenses and costs, including reasonable attorney’s fees, incurred by each of them in
connection therewith or in enforcing the indemnity herein provided. Consultant's
obligation to indemnify shall not be restricted to insurance proceeds, if any, received by
Commission, Caltrans or their directors, officials officers, employees, consultants, agents,
or volunteers. Notwithstanding the foregoing, to the extent Consultant’s Services are
subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent
required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to
the negligence, recklessness, or willful misconduct of the Consultant. Consultant’s
obligations as set forth in this Section 28 shall survive expiration or termination of this
Agreement.
29. Insurance.
29.1 Time for Compliance. Consultant shall not commence work under
this Agreement until it has provided evidence satisfactory to the Commission that it has
secured all insurance required under this Section, in a form and with insurance
companies acceptable to the Commission. In addition, Consultant shall not allow any
subcontractor to commence work on any subcontract until it has secured all insurance
required under this Section.
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29.2 Minimum Requirements. Consultant shall, at its expense, procure
and maintain for the duration of the Agreement insurance against claims for injuries to
persons or damages to property which may arise from or in connection with the
performance of the Agreement by the Consultant, its agents, representatives, employees
or subcontractors. Consultant shall also require all of its subcontractors to procure and
maintain the same insurance for the duration of the Agreement. Such insurance shall
meet at least the following minimum levels of coverage:
(a) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent);
(2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA
0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and
Employer’s Liability: Workers’ Compensation insurance as required by the State of
California and Employer’s Liability Insurance.
(b) Minimum Limits of Insurance. Consultant shall maintain limits
no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form with
general aggregate limit is used, either the general aggregate limit shall apply separately
to this Agreement/location or the general aggregate limit shall be twice the required
occurrence limit. Limits may be achieved by any combination of primary and excess or
umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily
injury and property damage. Limits may be achieved by any combination of primary and
excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation limits as required by the Labor Code of the State of
California. Employer’s Practices Liability limits of $1,000,000 per accident.
29.3 Professional Liability. Consultant shall procure and maintain, and
require its sub-consultants to procure and maintain, for a period of five (5) years following
completion of the Project, errors and omissions liability insurance appropriate to their
profession. For Consultant, such insurance shall be in an amount not less than
$1,000,000 per claim. This insurance shall be endorsed to include contractual liability
applicable to this Agreement and shall be written on a policy form coverage specifically
designed to protect against acts, errors or omissions of the Consultant. “Covered
Professional Services” as designated in the policy must specifically include work
performed under this Agreement. The policy must “pay on behalf of” the insured and
must include a provision establishing the insurer's duty to defend. Subconsultants of
Consultant shall obtain such insurance in an amount not less than $1,000,000 per claim.
Notwithstanding the foregoing, the Commission may consider written requests to lower
or dispense with the errors and omissions liability insurance requirement contained in
this Section for certain subconsultants of Consultant, on a case-by-case basis,
depending on the nature and scope of the Services to be provided by the subconsultant.
Approval of such request shall be in writing, signed by the Commission’s Contract
Administrator.
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29.4 Aircraft Liability Insurance. Prior to conducting any Services
requiring use of aircraft, Consultant shall procure and maintain, or cause to be procured
and maintained, aircraft liability insurance or equivalent form, with a single limit as shall
be required by the Commission. Such insurance shall include coverage for owned, hired
and non-owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, Caltrans and their directors, officials, officers, employees and agents as
additional insureds with respect to the Services or operations performed by or on behalf
of the Consultant.
29.5 Insurance Endorsements. The insurance policies shall contain the
following provisions, or Consultant shall provide endorsements on forms approved by
the Commission to add the following provisions to the insurance policies:
(a) General Liability.
(i) Commercial General Liability Insurance must include
coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury;
(3) premises/operations liability; (4) products/completed operations liability; (5) aggregate
limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion
deleted; (7) contractual liability with respect to this Agreement; (8) broad form property
damage; and (9) independent consultants coverage.
(ii) The policy shall contain no endorsements or provisions
limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits
by one insured against another; or (3) contain any other exclusion contrary to this
Agreement.
(iii) The policy shall give the Commission, its directors,
officials, officers, employees, and agents insured status using ISO endorsement forms 20
10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the policy shall
be “primary and non-contributory” and will not seek contribution from the Commission’s
or Caltrans’ insurance or self-insurance and shall be at least as broad as CG 20 01 04
13, or endorsements providing the exact same coverage.
(b) Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) the Commission, Caltrans and their directors, officials, officers,
employees and agents shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned, leased,
hired or borrowed by the Consultant or for which the Consultant is responsible; and (2)
the insurance coverage shall be primary insurance as respects the Commission, Caltrans
and their directors, officials, officers, employees and agents, or if excess, shall stand in
an unbroken chain of coverage excess of the Consultant’s scheduled underlying
coverage. Any insurance or self-insurance maintained by the Commission, Caltrans and
their directors, officials, officers, employees and agents shall be excess of the
Consultant’s insurance and shall not be called upon to contribute with it in any way.
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(c) Workers’ Compensation and Employers Liability Coverage.
(i) Consultant certifies that he/she is aware of the
provisions of Section 3700 of the California Labor Code which requires every employer
to be insured against liability for workers’ compensation or to undertake self-insurance in
accordance with the provisions of that code, and he/she will comply with such provisions
before commencing work under this Agreement.
(ii) The insurer shall agree to waive all rights of
subrogation against the Commission, its directors, officials, officers, employees and
agents for losses paid under the terms of the insurance policy which arise from work
performed by the Consultant.
(d) All Coverages.
(i) Defense costs shall be payable in addition to the limits
set forth hereunder.
(ii) Requirements of specific coverage or limits contained
in this Section are not intended as a limitation on coverage, limits, or other requirement,
or a waiver of any coverage normally provided by any insurance. It shall be a requirement
under this Agreement that any available insurance proceeds broader than or in excess of
the specified minimum insurance coverage requirements and/or limits set forth herein
shall be available to the Commission, Caltrans and their directors, officials, officers,
employees and agents as additional insureds under said policies. Furthermore, the
requirements for coverage and limits shall be (1) the minimum coverage and limits
specified in this Agreement; or (2) the broader coverage and maximum limits of coverage
of any insurance policy or proceeds available to the named insured; whichever is greater.
(iii) The limits of insurance required in this Agreement may
be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella
or excess insurance shall contain or be endorsed to contain a provision that such
coverage shall also apply on a primary and non-contributory basis for the benefit of the
Commission (if agreed to in a written contract or agreement) before the Commission’s
own insurance or self-insurance shall be called upon to protect it as a named insured.
The umbrella/excess policy shall be provided on a “following form” basis with coverage
at least as broad as provided on the underlying policy(ies).
(iv) Consultant shall provide the Commission at least thirty
(30) days prior written notice of cancellation of any policy required by this Agreement,
except that the Consultant shall provide at least ten (10) days prior written notice of
cancellation of any such policy due to non-payment of premium. If any of the required
coverage is cancelled or expires during the term of this Agreement, the Consultant shall
deliver renewal certificate(s) including the General Liability Additional Insured
Endorsement to the Commission at least ten (10) days prior to the effective date of
cancellation or expiration.
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(v) The retroactive date (if any) of each policy is to be no
later than the effective date of this Agreement. Consultant shall maintain such coverage
continuously for a period of at least three years after the completion of the work under
this Agreement. Consultant shall purchase a one (1) year extended reporting period A)
if the retroactive date is advanced past the effective date of this Agreement; B) if the policy
is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy
with a retroactive date subsequent to the effective date of this Agreement.
(vi) The foregoing requirements as to the types and limits
of insurance coverage to be maintained by Consultant, and any approval of said
insurance by the Commission, is not intended to and shall not in any manner limit or
qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to
this Agreement, including but not limited to, the provisions concerning indemnification.
(vii) If at any time during the life of the Agreement, any
policy of insurance required under this Agreement does not comply with these
specifications or is canceled and not replaced, Commission has the right but not the duty
to obtain the insurance it deems necessary, and any premium paid by Commission will
be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to
pay premium from Consultant payments. In the alternative, Commission may cancel this
Agreement. The Commission may require the Consultant to provide complete copies of
all insurance policies in effect for the duration of the Project.
(viii) Neither the Commission nor any of its directors,
officials, officers, employees or agents shall be personally responsible for any liability
arising under or by virtue of this Agreement.
29.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the Commission. If the
Commission does not approve the deductibles or self-insured retentions as presented,
Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer
shall reduce or eliminate such deductibles or self-insured retentions as respects the
Commission, its directors, officials, officers, employees and agents; or (2) the Consultant
shall procure a bond guaranteeing payment of losses and related investigation costs,
claims and administrative and defense expense.
29.7 Acceptability of Insurers. Insurance is to be placed with insurers
with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California,
and satisfactory to the Commission.
29.8 Verification of Coverage. Consultant shall furnish Commission with
original certificates of insurance and endorsements effecting coverage required by this
Agreement on forms satisfactory to the Commission. The certificates and endorsements
for each insurance policy shall be signed by a person authorized by that insurer to bind
coverage on its behalf. All certificates and endorsements must be received and
approved by the Commission before work commences. The Commission reserves the
right to require complete, certified copies of all required insurance policies, at any time.
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29.9 Subconsultant Insurance Requirements. Consultant shall not allow
any subcontractors or subconsultants to commence work on any subcontract until they
have provided evidence satisfactory to the Commission that they have secured all
insurance required under this Section. Policies of commercial general liability insurance
provided by such subcontractors or subconsultants shall be endorsed to name the
Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement
providing the exact same coverage. If requested by Consultant, the Commission may
approve different scopes or minimum limits of insurance for particular subcontractors or
subconsultants.
29.10 Other Insurance. At its option, the Commission may require such
additional coverage(s), limits and/or the reduction of deductibles or retentions it
considers reasonable and prudent based upon risk factors that may directly or indirectly
impact the Project. In retaining this option Commission does not warrant Consultant’s
insurance program to be adequate. Consultant shall have the right to purchase
insurance in addition to the insurance required in this Section.
30. Safety. Consultant shall execute and maintain its work so as to avoid injury
or damage to any person or property. In carrying out its Services, the Consultant shall at
all times be in compliance with all applicable local, state and federal laws, rules and
regulations, and shall exercise all necessary precautions for the safety of employees
appropriate to the nature of the work and the conditions under which the work is to be
performed. Safety precautions as applicable shall include, but shall not be limited to: (A)
adequate life protection and life saving equipment and procedures; (B) instructions in
accident prevention for all employees and subcontractors, such as safe walkways,
scaffolds, fall protection ladders, bridges, gang planks, confined space procedures,
trenching and shoring, equipment and other safety devices, equipment and wearing
apparel as are necessary or lawfully required to prevent accidents or injuries; and (C)
adequate facilities for the proper inspection and maintenance of all safety measures.
31. Additional Work. Any work or activities that are in addition to, or otherwise
outside of, the Services to be performed pursuant to this Agreement shall only be
performed pursuant to a separate agreement between the parties. Notwithstanding the
foregoing, the Commission’s Executive Director may make a change to the Agreement,
other than a Cardinal Change. For purposes of this Agreement, a Cardinal Change is a
change which is “outside the scope” of the Agreement; in other words, work which should
not be regarded as having been fairly and reasonably within the contemplation of the
parties when the Agreement was entered into. An example of a change which is not a
Cardinal Change would be where, in a contract to construct a building there are many
changes in the materials used, but the size and layout of the building remains the same.
Cardinal Changes are not within the authority of this provision to order, and shall be
processed by the Commission as “sole source” procurements according to applicable
law, including the requirements of FTA Circular 4220.1D, paragraph 9(f).
(a) In addition to the changes authorized above, a
modification which is signed by Consultant and the Commission’s Executive Director,
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other than a Cardinal Change, may be made in order to: (1) make a negotiated equitable
adjustment to the Agreement price, delivery schedule and other terms resulting from the
issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other
agreements of the parties modifying the terms of this Agreement (“Bilateral Contract
Modification”).
(b) Consultant shall not perform, nor be compensated for
any change, without written authorization from the Commission’s Executive Director as
set forth herein. In the event such a change authorization is not issued and signed by the
Commission’s Executive Director, Consultant shall not provide such change.
32. Prohibited Interests.
32.1 Solicitation. Consultant maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working
solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants
that it has not paid nor has it agreed to pay any company or person, other than a bona
fide employee working solely for Consultant, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty, the Commission shall
have the right to rescind this Agreement without liability.
32.2 Consultant Conflict of Interest.
(a) Consultant shall disclose any financial, business, or other
relationship with Commission that may have an impact upon the outcome of this
Agreement. Consultant hereby certifies that it does not now have, nor shall it acquire any
financial or business interest that would conflict with the performance of services under
this Agreement.
(b) Any subcontract in excess of $25,000 entered into as a result
of this Agreement, shall contain all of the provisions of this Article.
32.3 Commission Conflict of Interest. For the term of this Agreement, no
member, officer or employee of the Commission, during the term of his or her service
with the Commission, shall have any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising therefrom.
32.4 Conflict of Employment. Employment by the Consultant of
personnel currently on the payroll of the Commission shall not be permitted in the
performance of this Agreement, even though such employment may occur outside of the
employee's regular working hours or on weekends, holidays or vacation time. Further,
the employment by the Consultant of personnel who have been on the Commission
payroll within one year prior to the date of execution of this Agreement, where this
employment is caused by and or dependent upon the Consultant securing this or related
Agreements with the Commission, is prohibited.
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32.5 Covenant Against Contingent Fees. As required in connection with
federal funding, the Consultant warrants that he/she has not employed or retained any
company or person, other than a bona fide employee working for the Consultant, to solicit
or secure this Agreement, and that he/she has not paid or agreed to pay any company
or person, other than a bona fide employee, any fee, commission, percentage, brokerage
fee, gift, or any other consideration, contingent upon or resulting from the award or
formation of this Agreement. For breach or violation of this warranty, the Commission
shall have the right to terminate this Agreement without liability pursuant to the terms
herein, or at its discretion to deduct from the Agreement price or consideration, or
otherwise recover, the full amount of such fee, commission, percentage, brokerage fee,
gift, or contingent fee.
32.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant
warrants that this Agreement was not obtained or secured through rebates kickbacks or
other unlawful consideration, either promised or paid to any Commission employee. For
breach or violation of this warranty, Commission shall have the right in its discretion; to
terminate this Agreement without liability; to pay only for the value of the work actually
performed; or to deduct from the Agreement price; or otherwise recover the full amount
of such rebate, kickback or other unlawful consideration.
32.7 Covenant Against Expenditure of Commission, State or Federal
Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and
belief no state, federal or local agency appropriated funds have been paid, or will be paid
by or on behalf of the Consultant to any person for the purpose of influencing or
attempting to influence an officer or employee of any state or federal agency; a Member
of the State Legislature or United States Congress; an officer or employee of the
Legislature or Congress; or any employee of a Member of the Legislature or Congress,
in connection with the award of any state or federal contract, grant, loan, or cooperative
agreement, or the extension, continuation, renewal, amendment, or modification of any
state or federal contract, grant, loan, or cooperative agreement.
(a) If any funds other than federal appropriated funds have been
paid, or will be paid to any person for the purpose of influencing or attempting to influence
an officer or employee of any federal agency; a Member of Congress; an officer or
employee of Congress, or an employee of a Member of Congress; in connection with this
Agreement, the Consultant shall complete and submit the attached Exhibit "F", Standard
Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with the attached
instructions.
(b) The Consultant's certification provided in this Section is a
material representation of fact upon which reliance was placed when this Agreement was
entered into, and is a prerequisite for entering into this Agreement pursuant to Section
1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the
disclosure and certification requirements set forth in Section 1352, Title 31, US. Code
may result in a civil penalty of not less than $10,000 and not more than $100,000 for each
such failure.
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(c) The Consultant also agrees by signing this Agreement that
he/she shall require that the language set forth in this Section 3.23.7 be included in all
Consultant subcontracts which exceed $100,000, and that all such subcontractors shall
certify and disclose accordingly.
32.8 Employment Adverse to the Commission. Consultant shall notify the
Commission, and shall obtain the Commission’s written consent, prior to accepting work
to assist with or participate in a third-party lawsuit or other legal or administrative
proceeding against the Commission during the term of this Agreement.
33. Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, ancestry, sex
or age. Such non-discrimination shall include, but not be limited to, all activities related
to initial employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff or termination.
34. Right to Employ Other Consultants. Commission reserves the right to
employ other consultants in connection with the Project.
35. Governing Law. This Agreement shall be governed by and construed with
the laws of the State of California. Venue shall be in Riverside County.
36. Disputes; Attorneys' Fees.
36.1 Prior to commencing any action hereunder, the Parties shall attempt
in good faith to resolve any dispute arising between them. The pendency of a dispute
shall not excuse Consultant from full and timely performance of the Services.
36.2. If the Parties are unable to resolve a dispute after attempting in good
faith to do so, the Parties may seek any other available remedy to resolve the dispute. If
either Party commences an action against the other Party, either legal, administrative or
otherwise, arising out of or in connection with this Agreement, the prevailing Party in such
litigation shall be entitled to have and recover from the losing Party reasonable attorneys'
fees and, all other costs of such actions.
37. Time of Essence. Time is of the essence for each and every provision of
this Agreement.
38. Headings. Article and Section Headings, paragraph captions or marginal
headings contained in this Agreement are for convenience only and shall have no effect
in the construction or interpretation of any provision herein.
39. Notices. All notices permitted or required under this Agreement shall be
given to the respective parties at the following address, or at such other address as the
respective parties may provide in writing for this purpose:
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CONSULTANT: COMMISSION:
Integra Realty Resources – Riverside County
Los Angeles Transportation Commission
16030 Ventura Boulevard, Suite 620 4080 Lemon Street, 3rd Floor
Encino, CA 91436-4473 Riverside, CA 92501
Attn: Beth B. Finestone Attn: Executive Director
Such notice shall be deemed made when personally delivered or when mailed, forty-eight
(48) hours after deposit in the U.S. mail, first class postage prepaid, and addressed to the
Party at its applicable address. Actual notice shall be deemed adequate notice on the
date actual notice occurred, regardless of the method of service.
40. Conflicting Provisions. In the event that provisions of any attached exhibits
conflict in any way with the provisions set forth in this Agreement, the language, terms
and conditions contained in this Agreement shall control the actions and obligations of
the Parties and the interpretation of the Parties' understanding concerning the
performance of the Services.
41. Amendment or Modification. No supplement, modification, or amendment
of this Agreement shall be binding unless executed in writing and signed by both Parties.
42. Entire Agreement. This Agreement contains the entire agreement of the
Parties relating to the subject matter hereof and supersedes all prior negotiations,
agreements or understandings.
43. Invalidity; Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
44. Provisions Applicable When State Funds or Federal Funds Are Involved.
When funding for the Services under a Task Order is provided, in whole or in part, from
FHWA, Consultant shall also fully and adequately comply with the provisions included in
Exhibit “C” (FHWA/Caltrans requirements) attached hereto and incorporated herein by
reference. When funding for the Services under a Task Order is provided, in whole or in
part, from the FTA, Consultant shall also fully and adequately comply with the provisions
included in Exhibit “D” (FTA Requirements) attached hereto and incorporated herein by
reference.
45. Survival. All rights and obligations hereunder that by their nature are to
continue after any expiration or termination of this Agreement, including, but not limited
to, the indemnification and confidentiality obligations, shall survive any such expiration or
termination.
46. No Third Party Beneficiaries. There are no intended third party beneficiaries
of any right or obligation assumed by the Parties.
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47. Labor Certification. By its signature hereunder, Consultant certifies that it
is aware of the provisions of Section 3700 of the California Labor Code which require
every employer to be insured against liability for Workers’ Compensation or to undertake
self-insurance in accordance with the provisions of that Code, and agrees to comply with
such provisions before commencing the performance of the Services.
48. Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
49. Subpoenas or Court Orders. Should Consultant receive a subpoena or
court order related to this Agreement, the Services or the Project, Consultant shall
immediately provide written notice of the subpoena or court order to the Commission.
Consultant shall not respond to any such subpoena or court order until notice to the
Commission is provided as required herein, and shall cooperate with the Commission in
responding to the subpoena or court order.
50. Assignment or Transfer. Consultant shall not assign, hypothecate, or
transfer, either directly or by operation of law, this Agreement or any interest herein,
without the prior written consent of the Commission. Any attempt to do so shall be null
and void, and any assignees, hypothecates or transferees shall acquire no right or interest
by reason of such attempted assignment, hypothecation or transfer.
51. Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties, and shall not be assigned by Consultant without
the prior written consent of Commission.
52. Incorporation of Recitals. The recitals set forth above are true and correct
and are incorporated into this Agreement as though fully set forth herein.
53. No Waiver. Failure of Commission to insist on any one occasion upon strict
compliance with any of the terms, covenants or conditions hereof shall not be deemed a
waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any
rights or powers hereunder at any one time or more times be deemed a waiver or
relinquishment of such other right or power at any other time or times.
54. Electronically Transmitted Signatures; Electronic Signatures. A manually
signed copy of this Agreement which is transmitted by facsimile, email or other means of
electronic transmission shall be deemed to have the same legal effect as delivery of an
original executed copy of this Agreement for all purposes. This Agreement may be signed
using an electronic signature.
[Signatures on following page]
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SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA AND FTA FUNDING/ASSISTANCE
IN WITNESS WHEREOF, this Agreement was executed on the date first written above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
Anne Mayer
Executive Director
Approved as to Form:
By:
Best, Best & Krieger LLP
General Counsel
CONSULTANT
INTEGRA REALTY RESOURCES – LOS
ANGELES
By:
Signature
Name
Title
ATTEST:
By:
Its: __________________________
* A corporation requires the signatures of two corporate officers.
One signature shall be that of the chairman of board, the president or any vice president and the
second signature (on the attest line) shall be that of the secretary, any assistant secretary, the
chief financial officer or any assistant treasurer of such corporation.
If the above persons are not the intended signators, evidence of signature authority shall be
provided to RCTC.
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Exhibit A
EXHIBIT A SCOPE OF SERVICES
The Riverside County Transportation Commission (Commission) is seeking one or
more Consultants (Consultant or Appraiser) to provide right of way appraisal services
for developed or undeveloped residential, commercial, industrial, agricultural and
railroad properties. Consultant shall produce appraisal reports for full or partial
acquisitions, easements, temporary construction easements, leased or licensed
properties, and sale or disposition of excess/surplus properties, as required by the
Commission. Services shall be provided on an on-call/as needed basis in support of
current and future Commission Projects, Measure A Projects and projects done in
partnership with other agencies, pursuant to Task Orders issued in the sole discretion
of the Commission.
Task Orders shall be awarded through an additional qualification-based selection
process.
Such appraisal services may include, but are not limited to, the following work
program and/or comply with applicable requirements below:
1. Consultant shall prepare appraisals in accordance with the Uniform
Relocation and Real Property Acquisition Policies Act of 1970, as amended,
and implemented by 49 CFR Part 24; the State of California Government
Code, the State of California Relocation Assistance and Real Property
Acquisition Guidelines (Title 25, California Code of Regulations Ch 6, Art 1,
Section 6000 et seq.), the California Code of Civil Procedure, the Uniform
Standards of Professional Appraisal Practice (USPAP), and in some cases,
the Uniform Appraisal Standards for Federal Land Acquisition Act. Consultant
must be licensed by the State of California.
2. Consultant shall prepare appraisals in accordance with the Uniform Appraisal
Standards for Federal Land Acquisition (“Yellow Book”). Consultant must be
licensed by the State of California.
3. Consultant must be qualified to provide expert witness testimony and defend
the opinions or conclusions reached in the appraisal at any Administrative
or Judicial proceeding.
4. Deliverables shall typically consist of three (3) originals of the completed
appraisal report and one (1) electronic copy, specialty reports and component
valuations which may be performed by someone other than Consultant and
incorporated into the overall fair market valuation.
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Exhibit A
5. Consultant may be required to meet with and coordinate their efforts with
Commission staff, Commission legal counsel, and other consultants or
Caltrans staff; participate in office or project site meetings.
6. Appraisal reports may be reviewed for acceptance and approval by
Commission's review appraisers and Caltrans. Revisions may be required
by reason of this review process. Consultants may be requested to complete
and deliver revised and/or updated appraisals. In the event of non-acceptance
due to errors or omissions, Consultant shall have fifteen (15) calendar days
to make corrections and return the revised appraisals to the review appraiser.
7. For proposed acquisitions, the owner of the real property or a designated
representative will be invited by the Appraiser to accompany the Appraiser
during the inspection of the property. This invitation must be in the form of
a letter entitled "Notice to Appraise" written by the Appraiser to the owner.
A copy of the invitation will be included in the appraisal report.
8. It is the Appraiser's responsibility to contact the Commission's project
engineers for discussion and/or clarification of the Construction in the
Manner Proposed. This is critical in the appraisal of partial acquisitions and
easements where the Appraiser may need cross sections or other project
engineering information to complete the report.
9. The highest and best use for the property in the before condition must be
determined and supported. If a partial acquisition is involved, the highest
and best use of the property in the after condition must be determined and
supported. If the existing use is not the premise on which the valuation is
based, the appraisal will contain an explanation justifying the determination
that the property is available and adaptable for a different highest and best
use and there is demand for that use in the market.
10. Where the acquisition involves only a part (or portion) of the property, the
Appraiser win estimate any severance d amages and special benefits to the
remainder, including reasoning. and market data to support the opinion or
conclusion. The Appraiser will indicate if the remainder constitutes an
economic or uneconomic unit in the market and/or to the present owner.
11. The California Eminent Domain Law will be followed in partial acquisitions.
Special benefits are to be offset only against damages to the remainder in
accordance with the law.
12. Appraisal for easement acquisitions will reflect the restrictive elements of the
easement to be acquired and the potential effect of such elements on the
utility of the property considering its highest and best use. Full details with
respect to any interference with the highest and best use of the property
affected must be explained and supported.
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Exhibit A
13. The Appraiser must estimate and support the economic rent, state the
contract rent and the remaining term of the lease as of the date of value.
Lessor and lessee responsibilities for paying major expenses, e.g., taxes,
insurance and maintenance shall be included.
14. Appraiser shall itemize in detail the "improvements pertaining to realty"
(Eminent Domain Law-CCP Section 1263.205) showing their replacement cost
new, depreciated value in place, salvage value if any, and relocation estimate.
To the extent possible, determine the ownership claims of the Improvements
Pertaining to the Realty.
15. In cases where the Appraisal Assignment requires a Specialty Appraisal
(Furniture, Fixtures, Machinery and Equipment) and/or Specialists Reports
(title, survey, soils, engineering), Appraiser shall utilize the services of
Commission's On-Call Consultants for such services or obtain Commission's
prior approval for any others. Fees charged by Commission's On-Call
Consultants for Specialty Appraisal and/or Specialists Reports shall be paid
directly by the Commission.
16. It is the Appraiser's responsibility to thoroughly review the Specialty Appraisal
for adoption (with adjustments or not, as appropriate) and inclusion in the
overall appraisal. The estimated values that the specialty items contribute to
the overall value of the real estate will be separately stated but included in the
total value of the property.
17. If any legal issues exist during the appraisal assignment, Appraiser shall
request legal opinion. All legal opinions shall be rendered by Commission's
legal counsel.
18. It is the Appraiser's responsibility to contact the Commission's legal counsel,
if necessary, for discussion and/or clarification in identifying personal or real
property.
19. If hazardous waste is discovered on the property, Appraiser shall seek further
direction from the Commission.
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FIRM PROJECT TASKS/ROLE COST
Integra Realty Resources - Los Angeles Right of Way Appraisal Services 1,000,000.00$
1,000,000.00$ TOTAL COSTS
1 Commission authorization pertains to total contract award amount. Compensation adjustments between consultants may occur; however,
the maximum total compensation authorized may not be exceeded.
EXHIBIT "B"
Prime Consultant:
Sub Consultants:
COMPENSATION SUMMARY1
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17336.00023\34328429.1
Exhibit C-1
EXHIBIT "C"
FEDERAL DEPARTMENT OF TRANSPORTATION
FHWA AND CALTRANS REQUIREMENTS
1. NONDISCRIMINATION & STATEMENT OF COMPLIANCE.
A. Consultant’s signature affixed herein shall constitute a certification under penalty of
perjury under the laws of the State of California that CONSULTANT has, unless exempt,
complied with, the nondiscrimination program requirements of Government Code Section
12990 and Title 2, California Administrative Code, Section 8103.
B. During the performance of this Agreement, Consultant and its subconsultants shall
not deny the Agreement’s benefits to any person on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression, age,
sexual orientation, or military and veteran status, nor shall they unlawfully discriminate,
harass, or allow harassment against any employee or applicant for employment because
of race, religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or military and veteran status.
Consultant and its subconsultants shall insure that the evaluation and treatment of their
employees and applicants for employment are free from such discrimination and
harassment.
C. Consultant and its subconsultants shall comply with the provisions of the Fair
Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations
promulgated thereunder (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-
11139.5, and any regulations or standards adopted by Commission to implement such
article. The applicable regulations of the Fair Employment and Housing Commission
implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated
into this Agreement by reference and made a part hereof as if set forth in full.
D. Consultant shall permit access by representatives of the Department of Fair
Employment and Housing and the Commission upon reasonable notice at any time during
the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such
of its books, records, accounts, and all other sources of information and its facilities as
said Department or Commission shall require to ascertain compliance with this clause.
E. Consultant and its subconsultants shall give written notice of their obligations
under this clause to labor organizations with which they have a collective bargaining or
other Agreement.
F. If this Agreement is federally funded, the Consultant shall comply with regulations
relative to Title VI (nondiscrimination in federally-assisted programs of the Department of
Transportation – Title 49 Code of Federal Regulations, Part 21 - Effectuation of Title VI
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17336.00023\34328429.1
Exhibit C-2
of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will
implement and maintain a policy of nondiscrimination in which no person in the state of
California shall, on the basis of race, color, national origin, religion, sex, age, disability,
be excluded from participation in, denied the benefits of or subject to discrimination under
any program or activity by the recipients of federal assistance or their assignees and
successors in interest.
G. If this Agreement is federally funded, Consultant shall comply with regulations relative
to non-discrimination in federally-assisted programs of the U.S. Department of
Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964).
Specifically, the Consultant shall not participate either directly or indirectly in the
discrimination prohibited by 49 CFR §21.5, including employment practices and the
selection and retention of subconsultants.
H. Consultant and its subconsultants will never exclude any person from participation in,
deny any person the benefits of, or otherwise discriminate against anyone in connection
with the award and performance of any contract covered by 49 CFR 26 on the basis of
race, color, sex, or national origin. In administering the Commission components of the
DBE Program plan, Consultant and its subconsultants will not, directly, or through
contractual or other arrangements, use criteria or methods of administration that have the
effect of defeating or substantially impairing accomplishment of the objectives of the DBE
Program plan with respect to individuals of a particular race, color, sex, or national origin.
I. Consultant shall include the nondiscrimination and compliance provisions of this
section in all subcontracts to perform work under this Agreement.
2. DEBARMENT AND SUSPENSION CERTIFICATION
CONSULTANT’s signature affixed herein, shall constitute a certification under penalty of
perjury under the laws of the State of California, that CONSULTANT has complied with
Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment
and Suspension (nonprocurement)”, which certifies that he/she or any person associated
therewith in the capacity of owner, partner, director, officer, or manager, is not currently
under suspension, debarment, voluntary exclusion, or determination of ineligibility by any
federal agency; has not been suspended, debarred, voluntarily excluded, or determined
ineligible by any federal agency within the past three (3) years; does not have a proposed
debarment pending; and has not been indicted, convicted, or had a civil judgment
rendered against it by a court of competent jurisdiction in any matter involving fraud or
official misconduct within the past three (3) years. Any exceptions to this certification must
be disclosed to COMMISSION.
B. Exceptions will not necessarily result in denial of recommendation for award, but will
be considered in determining CONSULTANT responsibility. Disclosures must indicate to
whom exceptions apply, initiating agency, and dates of action.
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C. Exceptions to the Federal Government Excluded Parties List System maintained by
the General Services Administration are to be determined by the Federal highway
Administration.
3. DISCRIMINATION; CONTRACT ASSURANCE
The Commission shall not discriminate on the basis of race, color, national origin, or sex
in the award and performance of any DOT-assisted contract or in the implementation of
the Caltrans DBE program or the requirements of 49 CFR Part 26. The Commission shall
take all necessary and reasonable steps under 49 CFR Part 26 to ensure
nondiscrimination in the award and administration of DOT-assisted contracts.
Consultant or subcontractor shall not discriminate on the basis of race, color, national
origin, of sex in the performance of this Agreement. Consultant or subcontractor shall
carry out applicable requirements of 49 CFR Part 26 and the Caltrans DBE program in
the award and administration of DOT-assisted contracts, as further set forth below.
Failure by the Consultant or subcontractor to carry out these requirements is a material
breach of this Agreement, which may result in the termination of this Agreement or such
other remedy, as the Commission deems appropriate.
Failure by the Consultant to carry out these requirements is a material breach of this
contract, which may result in the termination of this contract or such other remedy as the
recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying Consultant from future proposing as non-responsible
4. PROMPT PAYMENT
Consultant or subconsultant shall pay to any subconsultant, not later than fifteen (15)
days after receipt of each progress payment, unless otherwise agreed to in writing, the
respective amounts allowed Consultant on account of the work performed by the
subconsultants, to the extent of each subconsultant’s interest therein. In the event that
there is a good faith dispute over all or any portion of the amount due on a progress
payment from Consultant or subconsultant to a subconsultant, Consultant or
subconsultant may withhold no more than 150 percent of the disputed amount. Any
violation of this requirement shall constitute a cause for disciplinary action and shall
subject the Consultant or subconsultant to a penalty, payable to the applicable
subconsultant, of 2 percent of the amount due per month for every month that payment
is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be
entitled to his or her attorney’s fees and costs. The sanctions authorized under this
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requirement shall be separate from, and in addition to, all other remedies, either civil,
administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
5. RELEASE OF RETAINAGE
No retainage will be held by the Commission from progress payments due to Consultant.
Consultant and subconsultants are prohibited from holding retainage from
subconsultants. Any delay or postponement of payment may take place only for good
cause and with the Commission’s prior written approval. Any violation of these provisions
shall subject Consultant or the violating subconsultant to the penalties, sanctions, and
other remedies specified in Section 3321 of the California Civil Code. This requirement
shall not be construed to limit or impair any contractual, administrative or judicial
remedies, otherwise available to Consultant or subconsultant in the event of a dispute
involving late payment or nonpayment by Consultant, deficient subconsultant
performance and/or noncompliance by a subconsultant. This clause applies to both DBE
and non-DBE subconsultants.
6. LEGAL REMEDIES
In addition to those contract remedies set forth under relevant provisions of California law,
either Party to this Agreement may, where applicable, seek legal redress for violations of
this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the
relevant federal or state statutory provisions governing civil rights violations, and to the
relevant federal and state provisions governing false claims or “whistleblower” actions, as
well as any and all other applicable federal and state provisions of law.
The Consultant shall include a provision to this effect in each of its agreements with its
subcontractors.
7. DBE PARTICIPATION
Caltrans has developed a statewide DBE program pursuant to 49 C.F.R. Part 26. The
requirements and procedures, as applicable, of the Caltrans DBE program are hereby
incorporated by reference into this Agreement. Even if no DBE participation will be
reported, Consultant shall complete any Caltrans required DBE reporting forms, as
provided by the Commission, in compliance with the Caltrans DBE program, and a final
utilization report in the form provided by the Commission.
A. This Agreement is subject to Title 49, Part 26 of the Code of Federal Regulations
entitled “Participation by Disadvantaged Business Enterprises in Department of
Transportation Financial Assistance Programs.” Consultants who enter into a federally-
funded agreement will assist the Commission in a good faith effort to achieve California’s
statewide overall DBE goal.
B. This Agreement does not have a DBE goal, but DBE goals may be included as
part of each Task Order request for proposals. Participation by DBE Consultant or
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subconsultants for an FHWA funded Task Order shall be in accordance with the
information contained in the Consultant Contract DBE Commitment form (Caltrans LAPM
Forms Exhibit 10-O1) to be submitted with the relevant Task Order proposal. If a DBE
subconsultant is unable to perform, the Consultant must make a good faith effort to
replace him/her with another DBE subconsultant, if the goal is not otherwise met. A DBE
is a firm meeting the definition of a DBE as specified in 49 CFR.
C. All DBE participation will count toward the Caltrans federally mandated statewide
overall DBE goal. Credit for materials or supplies Consultant purchases from DBEs
counts towards the goal in the following manner:
• 100 percent counts if the materials or supplies are obtained from a DBE
manufacturer.
• 60 percent counts if the materials or supplies are purchased from a DBE regular
dealer.
• Only fees, commissions, and charges for assistance in the procurement and
delivery of materials or supplies count if obtained from a DBE that is neither a
manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular
dealer."
D. DBE and other small businesses (SB), as defined in Title 49 CFR, Part 26 are
encouraged to participate in the performance of agreements financed in whole or in part
with federal funds. The Consultant, subrecipient or subconsultant shall not discriminate
on the basis of race, color, national origin, or sex in the performance of this Agreement.
The Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award
and administration of US DOT- assisted agreements. Failure by the contractor to carry
out these requirements is a material breach of this Agreement, which may result in the
termination of this Agreement or such other remedy as the Commission, Caltrans or the
Department of Transportation deems appropriate.
E. Any subcontract entered into as a result of this Agreement shall contain all of the
provisions of this section.
F. A DBE may be terminated only as further set forth in Section 13 below.
8. DBE PARTICIPATION GENERAL INFORMATION
It is Consultant's responsibility to be fully informed regarding the requirements of 49 CFR,
Part 26, and the Caltrans DBE program. Particular attention is directed to the following:
A. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be
certified through the California Unified Certification Program (CUCP).
B. A certified DBE may participate as a prime contractor, subcontractor, joint venture
partner, as a vendor of material or supplies, or as a trucking company.
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C. A DBE joint-venture partner must be responsible for specific contract items of work
or clearly defined portions thereof. Responsibility means actually performing, managing
and supervising the work with its own forces. The DBE joint venture partner must share
in the capital contribution, control, management, risks and profits of the joint-venture
commensurate with its ownership interest.
D. A DBE must perform a commercially useful function, pursuant to 49 CFR 26.55
that is, must be responsible for the execution of a distinct element of the work and must
carry out its responsibility by actually performing, managing and supervising the work, as
more fully described in section 9 below.
E. The Consultant shall list only one subcontractor for each portion of work as defined
in the Consultant's bid/proposal and all DBE subcontractors should be listed in the
Consultant's bid/cost proposal list of subcontractors.
F. A Consultant who is a certified DBE is eligible to claim all of the work in the
Agreement toward the DBE participation except that portion of the work to be performed
by non-DBE subcontractors.
G. Consultant shall notify the Commission’s contract administrator or designated
representative of any changes to its anticipated DBE participation prior to starting the
affected work.
9 . COMMERCIALLY USEFUL FUNCTION
A. A DBE performs a commercially useful function when it is responsible for execution
of the work of the Agreement and is carrying out its responsibilities by actually performing,
managing, and supervising the work involved. To perform a commercially useful function,
the DBE must also be responsible with respect to materials and supplies used on the
Agreement, for negotiating price, determining quality and quantity, ordering the material,
and installing (where applicable) and paying for the material itself. To determine whether
a DBE is performing a commercially useful function, evaluate the amount of work
subcontracted, industry practices; whether the amount the firm is to be paid under the
Agreement is commensurate with the work it is actually performing, and other relevant
factors.
B. A DBE does not perform a commercially useful function if its role is limited to that
of an extra participant in a transaction, Agreement, or project through which funds are
passed in order to obtain the appearance of DBE participation. In determining whether a
DBE is such an extra participant, examine similar transactions, particularly those in which
DBEs do not participate.
C. If a DBE does not perform or exercise responsibility for at least thirty percent of the
total cost of its Agreement with its own work force, or the DBE subcontracts a greater
portion of the work of the Agreement than would be expected on the basis of normal
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industry practice for the type of work involved, it will be presumed that it is not performing
a commercially useful function.
10. DBE CERTIFICATION AND DE-CERTIFICATION STATUS
If a DBE subcontractor is decertified before completing its work, the decertified
subcontractor shall notify the Contractor in writing with the date of de-certification. If a
subcontractor becomes a certified DBE during the life of the Agreement, the
subcontractor shall notify the Contractor in writing with the date of certification. Any
changes should be reported to the Commission’s Contract Administrator within 30 days.
11. DBE RECORDS
A. The Contractor shall maintain records of materials purchased and/or supplied from
all subcontracts entered into with certified DBEs. The records shall show the name and
business address of each DBE subconsultant, DBE vendor, and DBE trucking company
and the total dollar amount actually paid each business regardless of tier. The records
shall show the date of payment and the total dollar figure paid to all firms. DBE prime
Contractors shall also show the date of work performed by their own forces along with the
corresponding dollar value of the work.
In addition to all other requirements, Consultant shall complete and submit, on a monthly
basis, the Monthly DBE Payment form (Caltrans Exhibit 9-F of Chapter 9 of the LAPM).
B. Upon completion of the Agreement, a summary of these records shall be prepared
and submitted on the most current version of the form entitled, “Final Report-Utilization of
Disadvantaged Business Enterprises (DBE),” CEM- 2402F (Exhibit 17-F in Chapter 17 of
the LAPM), certified correct by the Contractor or the Contractor’s authorized
representative and shall be furnished to the Commission’s Contract Administrator with
the final invoice. Failure to provide the summary of DBE payments with the final invoice
will result in the Commission withholding $10,000 until the form is submitted. This amount
will be returned to the Contractor when a satisfactory “Final Report Utilization of
Disadvantaged Business Enterprises (DBE)” is submitted to the Commission’s Contract
Administrator.
a. Prior to the fifteenth of each month, the Contractor shall submit documentation to
the Commission’s Contract Administrator showing the amount paid to DBE trucking
companies. The Contractor shall also obtain and submit documentation to the
Commission’s Contract Administrator showing the amount paid by DBE trucking
companies to all firms, including owner-operators, for the leasing of trucks. If the DBE
leases trucks from a non-DBE, the Contractor may count only the fee or commission the
DBE receives as a result of the lease arrangement.
b. The Contractor shall also submit to the Commission’s Contract Administrator
documentation showing the truck number, name of owner, California Highway Patrol CA
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number, and if applicable, the DBE certification number of the truck owner for all trucks
used during that month. This documentation shall be submitted on the Caltrans ”Monthly
DBE Trucking Verification,” CEM-2404(F) form provided to the Contractor by the
Commission’s Contract Administrator.
12. REPORTING MATERIAL OR SUPPLIES PURCHASED FROM DBEs
When Reporting DBE Participation, Material or Supplies purchased from DBEs may
count as follows:
A. If the materials or supplies are obtained from a DBE manufacturer, 100 % of the
cost of the materials or supplies will count toward the DBE participation. A DBE
manufacturer is a firm that operates or maintains a factory or establishment that produces
on the premises, the materials, supplies, articles, or equipment required under the
Agreement and of the general character described by the specifications.
B. If the materials or supplies purchased from a DBE regular dealer, count 60 % of
the cost of the materials or supplies toward DBE goals. A DBE regular dealer is a firm
that owns, operates or maintains a store, warehouse, or other establishment in which the
materials, supplies, articles or equipment of the general character described by the
specifications and required under the Agreement, are bought, kept in stock, and regularly
sold or leased to the public in the usual course of business. To be a DBE regular dealer,
the firm must be an established, regular business that engages, as its principal business
and under its own name, in the purchase and sale or lease of the products in question. A
person may be a DBE regular dealer in such bulk items as petroleum products, steel,
cement, gravel, stone or asphalt without owning, operating or maintaining a place of
business provided in this section.
C. If the person both owns and operates distribution equipment for the products, any
supplementing of regular dealers’ own distribution equipment, shall be by a long-term
lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers,
brokers, manufacturers’ representatives, or other persons who arrange or expedite
transactions are not DBE regular dealers within the meaning of this section.
D. Materials or supplies purchased from a DBE, which is neither a manufacturer nor
a regular dealer, will be limited to the entire amount of fees or commissions charged for
assistance in the procurement of the materials and supplies, or fees or transportation
charges for the delivery of materials or supplies required on the job site, provided the fees
are reasonable and not excessive as compared with fees charged for similar services.
13. TERMINATION AND SUBSTITUTION OF DBE SUBCONSULTANTS
Consultant shall utilize the specific DBEs listed to perform the work and supply the
materials for which each is listed unless Consultant or DBE subconsultant obtains the
Commission’s written consent. Consultant shall not terminate or substitute a listed DBE
for convenience and perform the work with their own forces or obtain materials from other
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sources without authorization from the Commission. Unless the Commission’s consent is
provided, the Consultant shall not be entitled to any payment for work or material unless
it is performed or supplied by the listed DBE on the attached Consultant Contract DBE
Commitment form.
The Commission authorizes a request to use other forces or sources of materials if
Consultant shows any of the following justifications:
1. Listed DBE fails or refuses to execute a written contract based on plans and
specifications for the project.
2. The Commission stipulated that a bond is a condition of executing the
subcontract and the listed DBE fails to meet the Commission’s bond
requirements.
3. Work requires a consultant's license and listed DBE does not have a valid
license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials
(failing or refusing to perform is not an allowable reason to remove a DBE if
the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the project because of suspension or
debarment.
7. Listed DBE becomes bankrupt or insolvent.
8. Listed DBE voluntarily withdraws with written notice from the Agreement.
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE owner dies or becomes disabled resulting in the inability to
perform the work on the Contract.
11. The Commission determines other documented good cause.
Consultant shall notify the original DBE of the intent to use other forces or material
sources and provide the reasons and provide the DBE with 5 days to respond to the notice
and advise Consultant and the Commission of the reasons why the use of other forces or
sources of materials should not occur.
Consultant’s request to use other forces or material sources must include:
1. One or more of the reasons listed in the preceding paragraph.
2. Notices from Consultant to the DBE regarding the request.
3. Notices from the DBEs to Consultant regarding the request.
If a listed DBE is terminated or substituted, Consultant must make good faith efforts to
find another DBE to substitute for the original DBE. The substitute DBE must perform at
least the same amount of work as the original DBE under the contract to the extent
needed to meet or exceed the DBE goal.
14. DEBARMENT, SUSPENSION AND OTHER INELIGIBILITY AND VOLUNTARY
EXCLUSION
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In accordance with 49 CFR Part 29, which by this reference is incorporated herein,
Consultant’s subconsultants completed and submitted the Certificate of subconsultant
Regarding Debarment, Suspension and Other Ineligibility and Voluntary Exclusion as part
of the Consultant’s proposal. If it is later determined that Consultant’s subconsultants
knowingly rendered an erroneous Certificate, the Commission may, among other
remedies, terminate this Agreement.
15. ENVIRONMENTAL COMPLIANCE
A. Compliance with all applicable standards, orders, or requirements issued under
section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act
(33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency
regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in
excess of $100,000).
B. Mandatory standards and policies relating to energy efficiency which are contained in
the state energy conservation plan issued in compliance with the Energy Policy and
Conservation Act (Pub. L. 94-163, 89 Stat. 871).
16. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code Section 10296, and by signing this Agreement,
Consultant certifies under penalty of perjury that no more than one final unappealable
finding of contempt of court by a federal court has been issued against Consultant within
the immediately preceding two-year period, because of Consultant’s failure to comply with
an order of a federal court that orders Consultant to comply with an order of the National
Labor Relations Board.
17. FUNDING REQUIREMENTS
It is mutually understood between the Parties that this Agreement may have been written
before ascertaining the availability of funds or appropriation of funds, for the mutual
benefit of both Parties, in order to avoid program and fiscal delays that would occur if the
Agreement were executed after that determination was made.
This Agreement is valid and enforceable only if sufficient funds are made available to
Commission for the purpose of this Agreement. In addition, this Agreement is subject to
any additional restrictions, limitations, conditions, or any statute enacted by the Congress,
State Legislature, or Commission governing board that may affect the provisions, terms,
or funding of this Agreement in any manner.
It is mutually agreed that if sufficient funds are not appropriated, this Agreement may be
amended to reflect any reduction in funds.
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EXHIBIT D
FTA FUNDING REQUIREMENTS (Non-construction/maintenance work)
As used herein, “RCTC” shall have the same meaning as the “Commission.” The term
“contract” or “Contract” shall have the same meaning as the “Agreement.”
1. No Obligation by the Federal Government
a. RCTC and Consultant acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the
underlying contract, absent the express written consent by the Federal Government, the
Federal Government is not a party to this contract and shall not be subject to any
obligations or liabilities to the Purchaser, Consultant, or any other party (whether or not
a party to that contract) pertaining to any matter resulting from the underlying contract.
b. The Consultant agrees to include the above clause in each subcontract financed
in whole or in part with Federal assistance provided by FTA. It is further agreed that the
clause shall not be modified, except to identify the subconsultant who will be subject to
its provisions.
2. Program Fraud and False or Fraudulent Statements or Related Acts
a. The Consultant acknowledges that the provisions of the Program Fraud Civil
Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT
regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions
pertaining to this Project. Upon execution of the underlying contract, the Consultant
certifies or affirms the truthfulness and accuracy of any statement it has made, it
makes, it may make, or causes to be made, pertaining to the underlying contract or
the FTA assisted project for which this contract work is being performed. In addition to
other penalties that may be applicable, the Consultant further acknowledges that if it
makes, or causes to be made, a false, fictitious, or fraudulent claim, statement,
submission, or certification, the Federal Government reserves the right to impose the
penalties of the Program Fraud Civil Remedies Act of 1986 on the Consultant to the
extent the Federal Government deems appropriate.
b. The Consultant also acknowledges that if it makes, or causes to be made, a
false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in
part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C.
§ 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001
and 49 U.S.C. § 5307(n)(1) on the Consultant, to the extent the Federal Government
deems appropriate.
c. The Consultant agrees to include the above two clauses in each subcontract
financed in whole or in part with Federal assistance provided by FTA. It is further agreed
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that the clauses shall not be modified, except to identify the subconsultant who will be
subject to the provisions.
3. Access to Records
The Consultant agrees to the following access to records requirements:
a. To provide RCTC, the FTA Administrator, the Comptroller General of the United
States or any of their authorized representatives access to any books, documents,
papers and records of the Consultant which are directly pertinent to this contract for the
purposes of making audits, examinations, excerpts and transcriptions. Consultant also
agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his
authorized representatives including any PMO Consultant access to Consultant's
records and construction sites pertaining to a major capital project, defined at 49 U.S.C.
5302(a)1, which is receiving federal financial assistance through the programs
described at 49 U.S.C. 5307, 5309 or 5311.
b. To make available in the case of a contract for a capital project or improvement,
as defined above and awarded by other than competitive bidding in accordance with 49
U.S.C. 5325(a), records related to the contract to RCTC, the Secretary of
Transportation and the Comptroller General or any authorized officer or employee of
any of them for the purposes of conducting an audit and inspection.
c. To maintain all books, records, accounts and reports required under this contract
for a period of not less than three years after the date of termination or expiration of this
contract, except in the event of litigation or settlement of claims arising from the
performance of this contract, in which case Consultant agrees to maintain same until
RCTC, the FTA Administrator, the Comptroller General, or any of their duly authorized
representatives, have disposed of all such litigation, appeals, claims or exceptions
related thereto. Reference 49 CFR 18.39(i)(11).
d. To permit any of the foregoing parties to reproduce by any means whatsoever or
to copy excerpts and transcriptions as reasonably needed.
4. Federal Changes
The Consultant shall at all times comply with all applicable FTA regulations, policies,
procedures and directives, including without limitation those listed directly or by
reference in the Master Agreement between RCTC and FTA, as they may be amended
or promulgated from time to time during the term of this contract. Consultant's failure to
so comply shall constitute a material breach of this contract.
5. Civil Rights
The following requirements apply to the underlying contract:
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(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended,
42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42
U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. §
12132, and Federal transit law at 49 U.S.C. § 5332 and 49 CFR part 21, the Consultant
agrees that it will not discriminate against any employee or applicant for employment
because of race, color, creed,
national origin, sex, age, or disability. In addition, the Consultant agrees to comply with
applicable Federal implementing regulations and other implementing requirements FTA
may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the
Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C.
§ 5332, the Consultant agrees to comply with all applicable equal employment
opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office
of Federal Contract Compliance Programs, Equal Employment Opportunity,
Department of Labor," 41 C.F.R. Parts 60 et seq ., (which implement Executive Order
No. 11246, "Equal Employment Opportunity," as amended by Executive Order No.
11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity,"
42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders,
regulations, and Federal policies that may in the future affect construction activities
undertaken in the course of the Project. The Consultant agrees to take affirmative
action to ensure that applicants are employed, and that employees are treated during
employment, without regard to their race, color, creed, national origin, sex, or age.
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. In addition, the Consultant agrees to comply with any implementing
requirements FTA may issue.
(b) Age - In accordance with section 4 of the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. § § 623, Federal transit law at 49 U.S.C. § 5332,
the Equal Employment Opportunity Commission (U.S. EEOC) regulations, “Age
Discrimination in Employment Act,” 29 C.F.R. part 1625, the Age Discrimination Act of
1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health and Human Services
regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving
Federal Financial Assistance,” 45 C.F.R. part 90, the Consultant agrees to refrain from
discrimination against present and prospective employees for reason of age. In addition,
the Consultant agrees to comply with any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 504 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended,
42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42
U.S.C. § 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Consultant
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agrees that it will not discriminate against individuals on the basis of disability, and that
it will comply with the requirements of U.S. Equal Employment Opportunity Commission,
"Regulations to Implement the Equal Employment Provisions of the Americans with
Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with
disabilities. In addition, the Consultant agrees to comply with any implementing
requirements FTA may issue.
(3) The Consultant also agrees to include these requirements in each subcontract
financed in whole or in part with Federal assistance provided by FTA, modified only if
necessary to identify the affected parties.
6. FTA Disadvantaged Business Enterprise (DBE) Requirements
A. General DBE Requirements: In accordance with Federal financial assistance
agreements with the U.S. Department of Transportation (U.S. DOT), Commission has
adopted a Disadvantaged Business Enterprise (DBE) Policy and Program, in
conformance with Title 49 CFR Part 26, “Participation by Disadvantaged Business
Enterprises in Department of Transportation Programs” (the “Regulations”). This RFP is
subject to these stipulated regulations. In order to ensure that Commission achieves its
overall DBE Program goals and objectives, Commission encourages the participation
of DBEs as defined in 49 CFR 26 in the performance of contracts financed in whole or
in part with U.S. DOT funds.
It is the policy of the Commission to:
1. Ensure nondiscrimination in the award and administration of DOT-assisted contracts;
2. Create a level playing field on which DBE’s can compete fairly for DOT-assisted
contracts;
3. Ensure that the DBE program is narrowly tailored in accordance with applicable law;
4. Ensure that only firms that fully meet 49 C.F.R. part 26 eligibility standards are
permitted to participate as DBE’s;
5. Help remove barriers to the participation of DBEs in DOT assisted contracts;
6. To promote the use of DBEs in all types of federally assisted contracts and
procurement activities; and
7. Assist in the development of firms that can compete successfully in the marketplace
outside the DBE program.
B. Discrimination: Consultant shall not discriminate on the basis of race, color,
national origin, or sex in the award and performance of subcontracts. Any terms used
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herein that are defined in 49 CFR Part 26, or elsewhere in the Regulations, shall have
the meaning set forth in the Regulations.
C. Commission’s Race-Neutral DBE Program: A Race-Neutral DBE Program is one
that, while benefiting DBEs, is not solely focused on DBE firms. Therefore, under a
Race-Neutral DBE Program, Commission does not establish numeric race-conscious
DBE participation goals on its DOT-assisted contracts. There is no FTA DBE goal on
this Project.
Consultant shall not be required to achieve a specific level of DBE participation as a
condition of contract compliance in the performance of this DOT-assisted contract.
However, Consultant
shall adhere to race-neutral DBE participation commitment(s) made at the time of
award.
D. Race-Neutral DBE Submissions and Ongoing Reporting Requirements (Post-
Award): At termination of the Contract, the successful Consultant shall complete and
submit to Commission a “DBE Race-Neutral Participation Listing” in the form provided
by Commission. In the event DBE(s) are utilized in the performance of the Agreement,
Consultant shall comply with applicable reporting requirements.
E. Performance of DBE Subconsultants: DBE subconsultants listed by Consultant in
its “DBE Race-Neutral Participation Listing” submitted at the time of proposal shall
perform the work and supply the materials for which they are listed, unless Consultant
has received prior written authorization from Commission to perform the work with other
forces or to obtain the materials from other sources. Consultant shall provide written
notification to Commission in a timely manner of any changes to its anticipated DBE
participation. This notice should be provided prior to the commencement of that portion
of the work.
F. DBE Certification Status: If a listed DBE subconsultant is decertified during the
life of this Agreement, the decertified subconsultant shall notify Consultant in writing
with the date of decertification. If a non-DBE subconsultant becomes a certified DBE
during the life of this Agreement, the DBE subconsultant shall notify Consultant in
writing with the date of certification. Consultant shall furnish the written documentation
to Commission in a timely manner. Consultant shall include this requirement in all
subcontracts.
G. Consultant’s Assurance Clause Regarding Non-Discrimination: In compliance with
State and Federal anti-discrimination laws, Consultant shall affirm that it will not exclude
or discriminate on the basis of race, color, national origin, or sex in consideration of
contract award opportunities. Further, Consultant shall affirm that they will consider, and
utilize subconsultants and vendors, in a manner consistent with non-discrimination
objectives.
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H. Violations: Failure by the selected Consultant(s) to carry out these requirements shall
be a material breach of the contract to be awarded pursuant to this RFP, which may
result in the termination of the contract or such other remedy as the recipient deems
appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the Consultant from future bidding as non-responsible. 49 C.F.R. §
26.13(b).
I. Prompt Payment: Consultant shall pay its subconsultants for satisfactory performance
of their contracts no later than 30 days from receipt of each payment Commission
makes to the Consultant. 49 C.F.R. § 26.29(a), unless a shorter period is provided in
the contract.
J. Compliance with DBE Requirements Contained in FTA Provisions: Consultant shall
comply with all DBE reporting and other requirements contained in this Agreement.
7. Incorporation of Federal Transit Administration (FTA) Terms
The preceding provisions include, in part, certain Standard Terms and Conditions
required by DOT, whether or not expressly set forth in the preceding contract
provisions. All contractual provisions required by DOT, as set forth in FTA Circular
4220.1F are hereby incorporated by reference. Anything to the contrary herein
notwithstanding, all FTA mandated terms shall be deemed to control in the event of a
conflict with other provisions contained in this Agreement. The Consultant shall not
perform any act, fail to perform any act, or refuse to comply with any RCTC requests
which would cause RCTC to be in violation of the FTA terms and conditions.
8. Debarment and Suspension.
The Consultant agrees to the following:
(1) It will comply with the following requirements of 2 CFR Part 180, subpart C, as
adopted and supplemented by U.S. DOT regulations at 2 CFR Part 1200.
(2) It will not enter into any “covered transaction” (as that phrase is defined at 2 CFR §§
180.220 and 1200.220) with any subconsultant whose principal is, suspended,
debarred, or otherwise excluded from participating in covered transactions, except as
authorized by— (i) U.S. DOT regulations, “Nonprocurement Suspension and
Debarment,” 2 CFR Part 1200; (ii) U.S. OMB regulatory guidance, “Guidelines to
Agencies on Governmentwide Debarment and Suspension (Nonprocurement),” 2 CFR
Part 180; and (iii) Other applicable federal laws, regulations, or requirements regarding
participation with debarred or suspended recipients or third party participants.
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(3) It will review the U.S. GSA “System for Award Management – Lists of Parties
Excluded from Federal Procurement and Nonprocurement Programs,” if required by
U.S. DOT regulations, 2 CFR Part 1200.
9. ADA Access Requirements
The Consultant shall comply with all applicable requirements of the Americans with
Disabilities Act of 1990 (ADA), 42 USC Section 12101 et seq; Section 504 of the
Rehabilitation Act of 1973, as amended, 29 USC Section 794; 49 USC Section 5301(d).
10. Fly America
.
To the extent applicable to the Services, the Consultant agrees to comply with 49
U.S.C. 40118 (the "Fly America" Act) in accordance with the General Services
Administration's regulations at 41 CFR Part 301-10, which provide that recipients and
sub recipients of Federal funds and their consultants are required to use U.S. Flag air
carriers for U.S. Government-financed international air travel and transportation of their
personal effects or property, to the extent such service is available, unless travel by
foreign air carrier is a matter of necessity, as defined by the Fly America Act. The
Consultant shall submit, if a foreign air carrier was used, an appropriate certification or
memorandum adequately explaining why service by a U.S. flag air carrier was not
available or why it was necessary to use a foreign air carrier and shall, in any event,
provide a certificate of compliance with the Fly America requirements. The Consultant
agrees to include the requirements of this section in all subcontracts that may involve
international air transportation.
11. Cargo Preference - Use of United States-Flag Vessels
To the extent applicable to the Services, the Consultant agrees:
1. To use privately owned United States-Flag commercial vessels to ship at
least 50 percent of the gross tonnage (computed separately for dry bulk
carriers, dry cargo liners, and tankers) involved, whenever shipping any
equipment, material, or commodities pursuant to the underlying contract to
the extent such vessels are available at fair and reasonable rates for United
States-Flag commercial vessels;
2. To furnish within 20 working days following the date of loading for shipments
originating within the United States or within 30 working days following the
date of leading for shipments originating outside the United States, a legible
copy of a rated, "on-board" commercial ocean bill-of -lading in English for
each shipment of cargo described in the preceding paragraph to the Division
of National Cargo, Office of Market Development, Maritime Administration,
Washington, DC 20590 and to the FTA recipient (through the Consultant in
the case of a subconsultant's bill-of-lading.)
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3. To include these requirements in all subcontracts issued pursuant to this
contract when the subcontract may involve the transport of equipment,
material, or commodities by ocean vessel.
11. Buy America – Not applicable.
12. Employment Provisions
To the extent applicable to the Services, Consultant shall comply with the following:
A. Equal Employment Opportunity — Not applicable.
B. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c) — Not applicable.
C. Contact Work Hours and Safety Standards Act (40 U.S.C. 327–333) —Not
applicable.
D. Release of Retainage
No retainage will be withheld by the RCTC from progress payments due Consultant.
Retainage by Consultant or subconsultants is prohibited, and no retainage will be held
by the prime consultant from progress due subconsultants. Any violation of this
provision shall subject the violating Consultant or subconsultants to the penalties,
sanctions, and other remedies specified in Section 7108.5 of the California Business
and Professions Code. This requirement shall not be construed to limit or impair any
contractual, administrative, or judicial remedies, otherwise available to Consultant or
subconsultant in the event of a dispute involving late payment or nonpayment by
Consultant or deficient subconsultant performance, or noncompliance by a
subconsultant.
13. Termination for Convenience
RCTC may terminate the Agreement for convenience in accordance with the terms of
the Agreement.
After such termination, the Consultant shall submit a final termination settlement
proposal to RCTC as directed. If the Consultant fails to submit a proposal within the
time allowed, RCTC may determine, on the basis of information available, the amount, if
any due the Consultant because of the termination and shall pay the amount
determined. After the Consultant’s proposal is received, RCTC and Consultant shall
negotiate a fair and equitable settlement and the contract will be modified to reflect the
negotiated agreement. If agreement cannot be reached, RCTC may issue a final
determination and pay the amount determined. If the Consultant does not agree with
this final determination or the determination resulting from the lack of timely submission
of a proposal, the Consultant may appeal under the Disputes clause.
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14. Administrative and Contractual Remedies on Breach; Termination for
Cause
a.The Consultant may be declared in breach of this Agreement (“Breach”) if the Consultant
fails to make delivery of the supplies or to perform the services within the time specified
herein or any extension thereof; or if the Consultant fails to perform any of the other
provisions of the contract, or so fails to make progress as to endanger performance of
this contract in accordance with its terms. In case of any of the foregoing, RCTC shall
notify the Consultant of the Breach, and the Consultant shall have a period of ten (10)
days (or such longer period as RCTC may authorize in writing) after receipt of notice
from RCTC to cure the Breach.
b. RCTC may, by written notice of termination to the Consultant specifying the
effective date thereof, terminate the whole or any part of this contract, in the case of a
Breach that is not cured within the timeframe set forth in (a) above (“Uncured Breach”).
c. If the contract is terminated in whole or in part for an Uncured Breach, RCTC
may procure upon such terms and in such manner as RCTC may deem appropriate,
supplies or services similar to those so terminated, or may complete the services with
its own forces. The Consultant shall be liable to RCTC for any excess costs for such
similar supplies or services, and for any other costs incurred by RCTC as a result of the
Uncured Breach. The Consultant shall continue the performance of this contract to the
extent not terminated under the provisions of this clause.
d. Except with respect to defaults of Subconsultants, the Consultant shall not be
liable for any excess costs if the failure to perform the contract arises out of causes
beyond the control and without the fault or negligence of the Consultant. If the failure to
perform is caused by the default of a Subconsultant, and if such default arises out of
causes beyond the control of both the Consultant and the Subconsultant, and without
the fault or negligence of either of them, the Consultant shall not be liable for any
excess costs for failure to perform, unless the supplies or services to be furnished by
the Subconsultant were obtainable from other sources in sufficient time to permit the
Consultant to meet the required project completion schedule.
e. Payment for completed services or supplies delivered to and accepted by RCTC
shall be at the contract price. RCTC may withhold from amounts otherwise due the
Consultant for such completed services or supplies such sum as RCTC determines to
be necessary to protect RCTC against loss because of outstanding liens of claims of
former lien holders, or to reimburse RCTC for any other costs related to the Uncured
Breach.
f. If, after notice of termination of this contract for cause, it is determined for any
reason that an Uncured Breach did not exist, the rights and obligations of the parties
shall be the same as if the notice of termination had been issued pursuant to the
provisions for termination for convenience of RCTC.
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g. The rights and remedies of RCTC provided in this clause shall not be exclusive
and are in addition to any other rights and remedies provided by law, equity or under
this contract including, but not limited to, the right to specific performance.
h. Notwithstanding the above, RCTC may, without providing an opportunity to cure,
terminate the contract in accordance with the timeframe set forth in Section 17 of the
contract, if RCTC determines such action is in its best interest based on the nature of
the Breach. Such actions shall not limit any of RCTC’s remedies set forth above.
16. Disputes
a. Except as otherwise provided in this Agreement, any dispute concerning a
question of fact arising under this Agreement which is not disposed of by supplemental
agreement shall be
decided by RCTC’s Deputy Executive Director, who shall reduce the decision to writing
and mail or otherwise furnish a copy thereof to the Consultant. The decision of the
RCTC Deputy Executive Director shall be final and conclusive unless, within thirty (30)
days from the date of receipt of such copy, Consultant mails or otherwise furnishes to
the RCTC Deputy Executive Director a written appeal addressed to RCTC's Executive
Director. The decision of RCTC Executive Director or duly authorized representative for
the determination of such appeals shall be final and conclusive.
b. The provisions of this Paragraph shall not be pleaded in any suit involving a
question of fact arising under this Agreement as limiting judicial review of any such
decision to cases where fraud by such official or his representative or board is alleged,
provided, however, that any such decision shall be final and conclusive unless the same
is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply
bad faith or is not supported by substantial evidence. In connection with any appeal
proceeding under this Paragraph, the Consultant shall be afforded an opportunity to be
heard and to offer evidence in support of its appeal.
c. Pending final decision of a dispute hereunder, Consultant shall proceed diligently
with the performance of this Agreement and in accordance with the decision of RCTC's
Deputy Executive Director. This "Disputes" clause does not preclude consideration of
questions of law in connection with decisions provided for above. Nothing in this
Agreement, however, shall be construed as making final the decision of any RCTC
official or representative on a question of law, which questions shall be settled in
accordance with the laws of the State of California.
17. Lobbying
See the Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying
Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] -
Consultants who apply or bid for an award of $100,000 or more shall file the
certification required by 49 CFR part 20, "New Restrictions on Lobbying.” Each tier
certifies to the tier above that it will not and has not used Federal appropriated funds to
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pay any person or organization for influencing or attempting to influence an officer or
employee of any agency, a member of Congress, officer or employee of Congress, or
an employee of a member of Congress in connection with obtaining any Federal
contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also
disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has
made lobbying contacts on its behalf with non-Federal funds with respect to that
Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are
forwarded from tier to tier up to the recipient. The Offeror shall complete and submit
with its bid/proposal the attached Certification Regarding Lobbying, and if applicable,
the Standard Form-LLL, “Disclosure Form to Report Lobbying.”
18. Energy Conservation
The Consultant agrees to comply with mandatory standards and policies relating to
energy efficiency which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act.
19. Clean Water
a. The Consultant 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. The Consultant agrees to report each violation to RCTC and understands
and agrees that RCTC will, in turn, report each violation as required to assure
notification to FTA and the appropriate EPA Regional Office.
d. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List
of Violating Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as
amended, (42 U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as
amended, (33 U.S.C. §§ 1251-1387).
The Consultant also agrees to include these requirements in each subcontract
exceeding $150,000 financed in whole or in part with Federal assistance provided by
FTA.
20. Clean Air
a. The Consultant 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. The Consultant agrees to report each violation to RCTC and understands and
agrees that RCTC will, in turn, report each violation as required to assure notification to
FTA and the appropriate EPA Regional Office.
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b. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List
of Violating Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as
amended, (42 U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as
amended, (33 U.S.C. §§ 1251-1387).
c. The Consultant also agrees to include these requirements in each subcontract
exceeding $150,000 financed in whole or in part with Federal assistance provided by
FTA.
21. Recycled Products
Recovered Materials - The Consultant agrees to comply with all the requirements of
Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended
(42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part
247, and Executive Order
12873, as they apply to the procurement of the items designated in Subpart B of 40
CFR Part 247.
21. SPECIAL PROVISION FOR PROMOTING COVID-19 SAFETY
Section 49. Centers for Disease Control and Prevention Order on Requirements
for Persons to Wear Masks While on Conveyances and at Transportation Hubs.
(a) Compliance with CDC Mask Order. The Centers for Disease Control and Prevention
(“CDC”) Order of January 29, 2021, titled Requirement for Persons to Wear Masks
While on Conveyances and at Transportation Hubs (“CDC Mask Order”), applies to this
Agreement. One of the objectives of the CDC Mask Order is “[m]aintaining a safe and
operating transportation system.” Consultant agrees that it will comply, and will require
all subconsultants to comply, with the CDC Mask Order.
(b) Enforcement for non-compliance. Consultant agrees that FTA and RCTC may take
enforcement action for non-compliance with the CDC Mask Order, including: (1)
enforcement actions authorized by 49 U.S.C. § 5329(g); (2) referring Consultant to the
CDC or other Federal authority for enforcement action; (3) enforcement actions
authorized by 2 CFR §§ 200.339 – .340; and (4) any other enforcement action
authorized by Federal law or regulation.
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22. Safe Operation of Motor Vehicles
Pursuant to Federal Executive Order No. 13043, “Increasing Seat Belt Use in the
United States,” April 16, 1997, 23 U.S.C. Section 402 note, FTA encourages each third
party consultant to adopt and promote on-the-job seat belt use policies and programs
for its employees and other personnel that operate company owned, rented, or
personally operated vehicles, and to include this provision in each third party
subcontract involving the project.
a. The Consultant is encouraged to adopt and promote on-the-job seat belt use policies
and programs for its employees and other personnel that operate company-owned
vehicles, company-rented vehicles, or personally operated vehicles. The terms
“company-owned” and “company-leased” refer to vehicles owned or leased either by
the Consultant or RCTC.
. The Consultant agrees to adopt and enforce workplace safety policies to
decrease crashes
caused by distracted drivers, including policies to ban text messaging while using an
electronic device supplied by an employer, and driving a vehicle the driver owns or
rents, a vehicle Contactor owns, leases, or rents, or a privately-owned vehicle when on
official business in connection with the work performed under this contract.
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17336.00023\34328429.1
Exhibit E-1
EXHIBIT "E"
CERTIFICATE OF CONSULTANT
I HEREBY CERTIFY that I am the _______________________ and duly authorized
representative of the firm of _____________________________________ whose address
is ____________________________________________________, and that, except as
hereby expressly stated, neither I nor the above firm that I represent have:
(a) employed or retained for a commission, percentage, brokerage, contingent
fee, or other consideration, any firm or person (other than a bona fide
employee working solely for me or the above consultant) to solicit or secure
this agreement; nor
(b) agreed, as an express or implied condition for obtaining this Agreement, to
employ or retain the services of any firm or person in connection with carrying
out the agreement; nor
(c) paid, or agreed to pay, to any firm, organization or person (other than a bona
fide employee working solely for me or the above consultant) any fee,
contribution, donation, or consideration of any kind for, or in connection with,
procuring or carrying out this agreement.
I acknowledge that this Certificate is to be made available to the California
Department of Transportation (Caltrans) in connection with this agreement involving
participation of Federal-aid Highway funds, and is subject to applicable State and Federal
laws, both criminal and civil.
By: ____________________________
Signature
____________________________
Name
____________________________
Title
____________________________
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Local Assistance Procedures Manual EXHBIT 10-Q
Disclosure of Lobbying Activities
Page 1
LPP 13-01 May 8, 2013
EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES
COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVITIES PURSUANT TO 31 U.S.C. 1352
1. Type of Federal Action: 2. Status of Federal Action: 3. Report Type:
a. contract
a. bid/offer/application
a. initial
b. grant b. initial award b. material change
c. cooperative agreement c. post-award
d. loan For Material Change Only:
e. loan guarantee year ____ quarter _________
f. loan insurance date of last report __________
4. Name and Address of Reporting Entity 5. If Reporting Entity in No. 4 is Subawardee,
Enter Name and Address of Prime:
Prime Subawardee
Tier _______ , if known
Congressional District, if known Congressional District, if known
6. Federal Department/Agency: 7. Federal Program Name/Description:
CFDA Number, if applicable ____________________
8. Federal Action Number, if known: 9. Award Amount, if known:
10. Name and Address of Lobby Entity 11. Individuals Performing Services
(If individual, last name, first name, MI) (including address if different from No. 10)
(last name, first name, MI)
(attach Continuation Sheet(s) if necessary)
12. Amount of Payment (check all that apply) 14. Type of Payment (check all that apply)
$ _____________ actual planned a. retainer
b. one-time fee
13. Form of Payment (check all that apply): c. commission
a. cash d. contingent fee
b. in-kind; specify: nature _______________ e deferred
Value _____________ f. other, specify _________________________
15. Brief Description of Services Performed or to be performed and Date(s) of Service, including
officer(s), employee(s), or member(s) contacted, for Payment Indicated in Item 12:
(attach Continuation Sheet(s) if necessary)
16. Continuation Sheet(s) attached: Yes No
17. Information requested through this form is authorized by Title
31 U.S.C. Section 1352. This disclosure of lobbying reliance
was placed by the tier above when his transaction was made or
entered into. This disclosure is required pursuant to 31 U.S.C.
1352. This information will be reported to Congress
semiannually and will be available for public inspection. Any
person who fails to file the required disclosure shall be subject
to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Signature: ________________________________________
Print Name: _______________________________________
Title: ____________________________________________
Telephone No.: ____________________ Date: ___________
Authorized for Local Reproduction
Federal Use Only: Standard Form - LLL
Standard Form LLL Rev. 04-28-06
Distribution: Orig- Local Agency Project Files
APPENDIX L - 1
Beth B. Finestone
Managing Director
Managing Director 10/21/21
NO APPLICABLE - IRR-Los Angeles and it's Subconsultant,
IRR-Orange County have never participated in any lobbying activities.
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Agreement No. 22-31-028-00
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA AND FTA FUNDING ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
R.P. LAURAIN & ASSOCIATES, INC.
FOR ON-CALL
RIGHT OF WAY APPRAISAL SERVICES
Parties and Date.
This Agreement is made and entered into this ___ day of _______, 2021,
by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the
Commission") and R.P. LAURAIN & ASSOCIATES, INC. ("Consultant"), a Corporation.
The Commission and Consultant are sometimes referred to herein individually as “Party”,
and collectively as the “Parties”.
Recitals.
A.On November 8, 1988, the Voters of Riverside County approved Measure
A authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax
(the "tax") to fund transportation programs and improvements within the County of
Riverside, and adopting the Riverside County Transportation Improvement Plan (the
"Plan").
B.Pursuant to Public Utility Code Sections 240000 et seq., the Commission is
authorized to allocate the proceeds of the Tax in furtherance of the Plan.
C.On November 5, 2002, the voters of Riverside County approved an
extension of the Measure A tax for an additional thirty (30) years for the continued funding
of transportation and improvements within the County of Riverside.
D.A source of funding for payment for on-call professional appraisal services
provided under this Agreement may be Federal Highway Administration (“FHWA”) funds
administered by the California Department of Transportation (“Caltrans”), and/or funds
from the Federal Transit Administration (“FTA”). This Commission may withhold payment
of any federal funds hereunder until the certification shown in Exhibit “F” attached hereto
and incorporated herein by reference, is executed.
E.Consultant desires to perform and assume responsibility for the provision
of certain on-call right of way appraisal services for projects in the County of Riverside,
California. Services shall be provided on the terms and conditions set forth in this
Agreement and in the task order(s) to be solicited, awarded and authorized by
Commission as further described in this Agreement (“Task Order”). Consultant
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3
represents that it is experienced in providing such services to public clients, is licensed in
the State of California (if necessary) and is familiar with the plans of the Commission.
G. Commission desires to engage Consultant to render such services on an
on-call basis. Services shall be ordered by Task Order(s) to be issued pursuant to this
Agreement for future projects as set forth herein and in each Task Order (each such
project shall be designated a “Project” under this Agreement).
Terms.
1. General Scope of Services. Consultant shall furnish all technical and
professional services, including labor, material, equipment, transportation, supervision
and expertise, and incidental and customary work necessary to fully and adequately
supply the on-call right of way appraisal services for the Projects ("Services"). The
Services are generally described in Exhibit "A" attached hereto and incorporated herein
by reference. The Services shall be more particularly described in the individual Task
Orders issued by the Commission’s Executive Director or designee. No Services shall
be performed unless authorized by a fully executed Task Order. All Services shall be
subject to, and performed in accordance with, this Agreement, the relevant Task Order,
the exhibits attached hereto and incorporated herein by reference, and all applicable
local, state and federal laws, rules and regulations.
2. Task Orders; Commencement of Services; Schedule of Services. Services
under this Agreement shall be requested by the Commission pursuant to Task Order
requests. If Commission accepts Consultant’s Task Order proposal, Commission shall
issue a purchase order or executed task order for the Services (“Commission’s Task
Order Authorization”). Consultant’s agreement to the final terms of a proposed Task
Order, Commission’s Task Order Authorization and Consultant’s commencement of the
Services shall indicate the Parties’ agreement to the terms of the relevant Task Order.
Consultant shall commence Services under a Task Order within five (5)
days of receiving Commission’s Task Order Authorization.
Consultant shall perform the Services expeditiously, in accordance with the
Schedule of Services set forth in a Task Order. Consultant represents that it has the
professional and technical personnel required to perform the Services in conformance
with such conditions. In order to facilitate Consultant's conformance with the Schedule,
Commission shall respond to Consultant's submittals in a timely manner. Upon request
of the Commission, Consultant shall provide a more detailed schedule of anticipated
performance to meet the Schedule of Services.
3. Pre-Award Audit. As a result of the funding for this Project, and to the extent
Caltrans procedures apply in connection therewith, issuance of a “Notice to Proceed” or
other authorization to proceed under a Task Order may be contingent upon completion
and approval of a pre-award audit. Any questions raised during the pre-award audit shall
be resolved before Services are commenced under a Task Order. The funding provided
under this Agreement is contingent on meeting all funding requirements and could be
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withdrawn, thereby entitling the Commission to terminate this Agreement, if the
procedures are not completed. The Consultant’s files shall be maintained in a manner to
facilitate State process reviews. In addition, Caltrans may require that prior to
performance of any work for which funding reimbursement through Caltrans is requested
and provided, that Caltrans must give to Commission an “Authorization to Proceed”.
4. Audit Procedures.
4.1 Consultant and certain subconsultant contracts, including cost
proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract
audit, an incurred cost audit, an Independent Cost Review (ICR) Audit, or a CPA ICR
audit work paper review. If selected for audit or review, this Agreement, Consultant’s cost
proposal and ICR and related work papers, if applicable, will be reviewed to verify
compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances
of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal,
state, or local government officials are allowed full access to the CPA’s work papers
including making copies as necessary. This Agreement, Consultant’s cost proposal, and
ICR shall be adjusted by Consultant and approved by the Commission’s contract
manager to conform to the audit or review recommendations. Consultant agrees that
individual terms of costs identified in the audit report shall be incorporated into this
Agreement by this reference if directed by Commission at its sole discretion. Refusal by
Consultant to incorporate audit or review recommendations, or to ensure that the federal,
state or local governments have access to CPA work papers, will be considered a breach
of the Agreement terms and cause for termination of this Agreement and disallowance
of prior reimbursed costs. Additional audit provisions applicable to this Agreement are
set forth in Sections 22 and 23 of this Agreement.
Section 4.2 and 4.3 shall apply to the extent applicable to the Task Order and funding
source.
4.2 During any Caltrans’ review of the ICR audit work papers created
by the Consultant’s independent CPA, Caltrans will work with the CPA and/or Consultant
toward a resolution of issues that arise during the review. Each party agrees to use its
best efforts to resolve any audit disputes in a timely manner. If Caltrans identifies
significant issues during the review and is unable to issue a cognizant approval letter,
Commission will reimburse the Consultant at an accepted ICR until a FAR (Federal
Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally
Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in
accordance with procedures and guidelines of the American Association of State
Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable
procedures and guidelines is received and approved by Caltrans.
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted
rate reimbursed will be ninety percent (90%) of the proposed rate.
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b. If the proposed rate is between one hundred fifty percent (150%) and two hundred
percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted
rate will be seventy-five percent (75%) of the proposed rate.
4.3 If Caltrans is unable to issue a cognizant letter per Section 4.2
above, Caltrans may require Consultant to submit a revised independent CPA-audited
ICR and audit report within three (3) months of the effective date of the Caltrans’
management letter. Caltrans will then have up to six (6) months to review the
Consultant’s and/or the independent CPA’s revisions.
If the Consultant fails to comply with the provisions of this Section 4, or if
Caltrans is still unable to issue a cognizant approval letter after the revised independent
CPA audited ICR is submitted, overhead cost reimbursement will be limited to the
accepted ICR that was established upon initial rejection of the ICR and set forth in
Section 4.2 above for all rendered services. In this event, this accepted ICR will become
the actual and final ICR for reimbursement purposes under this Agreement.
Consultant may submit to Commission final invoice only when all of the
following items have occurred: (1) Caltrans accepts or adjusts the original or revised
independent CPA audited ICR; (2) all work under this Agreement has been completed
to the satisfaction of Commission; and (3) Caltrans has issued its final ICR review letter.
The Consultant must submit its final invoice to Commission no later than sixty (60)
calendar days after occurrence of the last of these items. The accepted ICR will apply
to this Agreement and all Task Orders issued under this Agreement, and all other
agreements executed between the Commission and the Consultant, either as a prime or
subconsultant, with the same fiscal period ICR.
5. Term.
5.1 This Agreement shall go into effect on the date first set forth above,
contingent upon approval by Commission, and Consultant shall commence work after
notification to proceed by Commission’s Contract Administrator. This Agreement shall
end on December 31, 2025, unless extended by contract amendment.
Notwithstanding the foregoing, Caltrans and/or FHWA funded Task Orders
shall be completed within thirty-six (36) months of the Effective Date, unless approval of
Caltrans is obtained from the Commission.
5.2 Consultant is advised that any recommendation for contract award
is not binding on Commission until this Agreement is fully executed and approved by the
Commission.
5.3 This Agreement shall remain in effect until the date set forth above,
unless earlier terminated as provided herein. Consultant shall complete the Services
within the term of this Agreement, and shall meet any other established schedules and
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deadlines. All applicable indemnification provisions of this Agreement shall remain in
effect following the termination of this Agreement.
6. Commission's Contract Administrator. The Commission hereby designates
the Commission's Executive Director, or his or her designee, to act as its Contract
Administrator for the performance of this Agreement ("Commission’s Contract
Administrator"). Commission’s Contract Administrator shall have the authority to act on
behalf of the Commission for all purposes under this Agreement. Commission’s Contract
Administrator shall also review and give approval, as needed, to the details of
Consultant's work as it progresses. Consultant shall not accept direction or orders from
any person other than the Commission’s Contract Administrator or his or her designee.
7. Consultant's Representative. Consultant hereby John P. Laurain to act as
its Representative for the performance of this Agreement ("Consultant’s Representative").
Consultant's Representative shall have full authority to act on behalf of Consultant for all
purposes under this Agreement. The Consultant’s Representative shall supervise and
direct the Services, using his or her professional skill and attention, and shall be
responsible for all means, methods, techniques, sequences and procedures and for the
satisfactory coordination of all portions of the Services under this Agreement. Consultant
shall work closely and cooperate fully with Commission’s Contract Administrator and any
other agencies which may have jurisdiction over, or an interest in, the Services.
Consultant's Representative shall be available to the Commission staff at all reasonable
times. Any substitution in Consultant's Representative shall be approved in writing by
Commission’s Contract Administrator.
8. Substitution of Key Personnel. Consultant has represented to the
Commission that certain key personnel will perform and coordinate the Services under
this Agreement. Should one or more of such personnel become unavailable, Consultant
may substitute other personnel of at least equal competence upon written approval by the
Commission. In the event that the Commission and Consultant cannot agree as to the
substitution of the key personnel, the Commission shall be entitled to terminate this
Agreement for cause, pursuant to the provisions herein. The key personnel for
performance of this Agreement are: John P. Laurain and Benjamin V. Balos, or as
otherwise identified in the Task Order.
9. Standard of Care; Licenses. Consultant represents and maintains that it is
skilled in the professional calling necessary to perform all Services, duties and obligations
required by this Agreement to fully and adequately complete the Project. Consultant shall
perform the Services and duties in conformance to and consistent with the standards
generally recognized as being employed by professionals in the same discipline in the
State of California. Consultant warrants that all employees and subcontractors shall have
sufficient skill and experience to perform the Services assigned to them. Consultant
further represents and warrants to the Commission that its employees and subcontractors
have all licenses, permits, qualifications and approvals of whatever nature that are legally
required to perform the Services, and that such licenses and approvals shall be
maintained throughout the term of this Agreement. Consultant shall perform, at its own
cost and expense and without reimbursement from the Commission, any services
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necessary to correct errors or omissions which are caused by the Consultant’s failure to
comply with the standard of care provided for herein, and shall be fully responsible to the
Commission for all damages and other liabilities provided for in the indemnification
provisions of this Agreement arising from the Consultant’s errors and omissions. Any
employee of Consultant or its sub-consultants who is determined by the Commission to
be uncooperative, incompetent, a threat to the adequate or timely completion of the
Project, a threat to the safety of persons or property, or any employee who fails or refuses
to perform the Services in a manner acceptable to the Commission, shall be promptly
removed from the Project by the Consultant and shall not be re-employed to perform any
of the Services or to work on the Project.
10. Independent Contractor. The Services shall be performed by Consultant or
under its supervision. Consultant will determine the means, methods and details of
performing the Services subject to the requirements of this Agreement. Commission
retains Consultant on an independent contractor basis and not as an employee, agent or
representative of the Commission. Consultant retains the right to perform similar or
different services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Consultant shall at all times
be under Consultant's exclusive direction and control. Consultant shall pay all wages,
salaries and other amounts due such personnel in connection with their performance of
Services and as required by law. Consultant shall be responsible for all reports and
obligations respecting such personnel, including but not limited to, social security taxes,
income tax withholdings, unemployment insurance, disability insurance, and workers'
compensation insurance.
11. Project Progress.
11.1 Modification of the Schedule. Consultant shall regularly report to
the Commission, through correspondence or progress reports, its progress in providing
required Services within the scheduled time periods. Commission shall be promptly
informed of all anticipated delays. In the event that Consultant determines that a
schedule modification is necessary, Consultant shall promptly submit a revised Schedule
of Services for approval by Commission’s Contract Administrator.
11.2 Trend Meetings. Consultant shall conduct trend meetings with the
Commission’s Contract Administrator and other interested parties, as requested by the
Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a
standard day and time. These trend meetings will encompass focused and informal
discussions concerning scope, schedule, and current progress of Services, relevant cost
issues, and future Project objectives. Consultant shall be responsible for the preparation
and distribution of meeting agendas to be received by the Commission and other
attendees no later than three (3) working days prior to the meeting.
11.3 Progress Reports. As part of its monthly invoice, Consultant shall
submit a progress report, in a form determined by the Commission, which will indicate
the progress achieved during the previous month in relation to the Schedule of Services.
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Submission of such progress report by Consultant shall be a condition precedent to
receipt of payment from the Commission for each monthly invoice submitted.
12. Delay in Performance.
12.1 Excusable Delays. Should Consultant be delayed or prevented
from the timely performance of any act or Services required by the terms of the
Agreement by reason of acts of God or of the public enemy, acts or omissions of the
Commission or other governmental agencies in either their sovereign or contractual
capacities, fires, floods, pandemics, epidemics, quarantine restrictions, strikes, freight
embargoes or unusually severe weather, performance of such act shall be excused for
the period of such delay.
12.2 Written Notice. If Consultant believes it is entitled to an extension
of time due to conditions set forth in subsection 12.1, Consultant shall provide written
notice to the Commission within seven (7) working days from the time Consultant knows,
or reasonably should have known, that performance of the Services will be delayed due
to such conditions. Failure of Consultant to provide such timely notice shall constitute a
waiver by Consultant of any right to an excusable delay in time of performance.
12.3 Mutual Agreement. Performance of any Services under this
Agreement may be delayed upon mutual agreement of the Parties. Upon such
agreement, Consultant's Schedule of Services shall be extended as necessary by the
Commission. Consultant shall take all reasonable steps to minimize delay in completion,
and additional costs, resulting from any such extension.
13. Preliminary Review of Work. All reports, working papers, and similar work
products prepared for submission in the course of providing Services under this
Agreement shall be submitted to the Commission’s Contract Administrator in draft form,
and the Commission may require revisions of such drafts prior to formal submission and
approval. In the event plans and designs are to be developed as part of the Project, final
detailed plans and designs shall be contingent upon obtaining environmental clearance
as may be required in connection with Federal funding. In the event that Commission’s
Contract Administrator, in his or her sole discretion, determines the formally submitted
work product to be not in accordance with the standard of care established under this
Agreement, Commission’s Contract Administrator may require Consultant to revise and
resubmit the work at no cost to the Commission.
14. Appearance at Hearings. If and when required by the Commission,
Consultant shall render assistance at public hearings or other meetings related to the
Project or necessary to the performance of the Services. However, Consultant shall not
be required to, and will not, render any decision, interpretation or recommendation
regarding questions of a legal nature or which may be construed as constituting a legal
opinion.
15. Opportunity to Cure; Inspection of Work. Commission may provide
Consultant an opportunity to cure, at Consultant's expense, all errors and omissions
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which may be disclosed during Project implementation. Should Consultant fail to make
such correction in a timely manner, such correction may be made by the Commission,
and the cost thereof charged to Consultant. Consultant shall allow the Commission’s
Contract Administrator and Caltrans to inspect or review Consultant's work in progress at
any reasonable time.
16. Final Acceptance. Upon determination by the Commission that Consultant
has satisfactorily completed the Services required under this Agreement and within the
term set forth herein the Commission shall give Consultant a written Notice of Final
Acceptance. Upon receipt of such notice, Consultant shall incur no further costs
hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may
request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily
completed all Services required under the terms of this Agreement. In the event
copyrights are permitted under this Agreement, then in connection with Federal funding,
it is hereby acknowledged and agreed that the United States Department of
Transportation shall have the royalty-free non-exclusive and irrevocable right to
reproduce, publish, or otherwise use, and to authorize others to use, the work for
governmental purposes.
17. Laws and Regulations. Consultant shall keep itself fully informed of and in
compliance with all local, state and federal laws, rules and regulations in any manner
affecting the performance of the Project or the Services, including all Cal/OSHA
requirements, and shall give all notices required by law. For example, and not by way of
limitation, Consultant shall keep itself fully informed of and in compliance with all
implementing regulations, design standards, specifications, previous commitments that
must be incorporated in the design of the Project, and administrative controls including
those of the United States Department of Transportation. Compliance with Federal
procedures may include completion of the applicable environmental documents and
approved by the United States Department of Transportation. For example, and not by
way of limitation, a signed Categorical Exclusion, Finding of No Significant Impact, or
published Record of Decision may be required to be approved and/or completed by the
United States Department of Transportation. For Consultant shall be liable for all
violations of such laws and regulations in connection with Services. If the Consultant
performs any work knowing it to be contrary to such laws, rules and regulations and
without giving written notice to the Commission, Consultant shall be solely responsible
for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission,
its officials, directors, officers, employees and agents free and harmless, pursuant to the
indemnification provisions of this Agreement, from any claim or liability arising out of any
failure or alleged failure to comply with such laws, rules or regulations.
18. Fees and Payment.
18.1 The method of payment for this Agreement will be based on actual
cost. Commission shall reimburse Consultant for actual costs (including labor costs,
employee benefits, travel, equipment rental costs, overhead and other direct costs)
incurred by Consultant in performance of the Services. Consultant shall not be
reimbursed for actual costs that exceed the estimated wage rates, employee benefits,
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travel, equipment rental, overhead, and other estimated costs set forth in the approved
Consultant cost proposal attached hereto as Exhibit “B” and incorporated herein by
reference, or any cost proposal included as part of a Task Order (“Cost Proposal”) unless
additional reimbursement is provided for by written amendment. In no event, shall
Consultant be reimbursed for overhead costs at a rate that exceeds Commission’s
approved overhead rate set forth in the Cost Proposal. To the extent legally permissible,
Consultant’s approved overhead rate shall be fixed for the term of this Agreement. In the
event that Commission determines that a change to the Services from that specified in
the Cost Proposal, this Agreement or any Task Order is required, the Agreement time or
actual costs reimbursable by Commission shall be adjusted by written amendment to
accommodate the changed work. The maximum total cost as specified in Section 18.8
shall not be exceeded, unless authorized by a written amendment.
18.2 Reimbursement for transportation and subsistence costs shall not
exceed the rates specified in the approved Cost Proposal. In addition, payments to
Consultant for travel and subsistence expenses claimed for reimbursement or applied
as local match credit shall not exceed rates authorized to be paid exempt non-
represented State employees under current State Department of Personnel
Administration (DPA) rules, unless otherwise authorized by Commission. If the rates
invoiced are in excess of those authorized DPA rates, and Commission has not
otherwise approved said rates, then Consultant is responsible for the cost difference and
any overpayments shall be reimbursed to the Commission on demand.
18.3 When milestone cost estimates are included in the approved Cost
Proposal for a Task Order, Consultant shall obtain prior written approval for a revised
milestone cost estimate from the Contract Administrator before exceeding such cost
estimate.
18.4 Progress payments shall be made monthly in arrears based on
Services provided and allowable incurred costs. If Consultant fails to submit the required
deliverable items according to the schedule set forth in the Scope of Services,
Commission shall have the right to delay payment or terminate this Agreement in
accordance with the provisions of Section 20, Termination.
18.5 No payment shall be made prior to approval of any Services, nor for
any Services performed prior to approval of this Agreement.
18.6 Consultant shall be reimbursed, as promptly as fiscal procedures
will permit upon receipt by Commission’s Contract Administrator of itemized invoices in
triplicate. Invoices shall be submitted no later than 45 calendar days after the
performance of work for which Consultant is billing. Invoices shall detail the work
performed on each milestone and each project as applicable. Invoices shall follow the
format stipulated for the approved Cost Proposal and shall reference this Agreement
number and project title. Final invoice must contain the final cost and all credits due
Commission including any equipment purchased under the Equipment Purchase
provisions of this Agreement. The final invoice should be submitted within 60 calendar
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days after completion of Consultant’s work. Invoices shall be mailed to Commission’s
Contract Administrator at the following address:
Riverside County Transportation Commission
Attention: Accounts Payable
P.O. 12008
Riverside, CA 92502
18.7 The total amount payable by Commission, shall not exceed the
amount set forth in each Task Order.
18.8 Commission has or will enter into five (5) task order contracts for
performance of the Scope of Services identified in Exhibit “A”, including this Agreement
(“On-Call ROW Appraisal Task Order Contracts”). The other On-Call ROW Appraisal
Task Order Contracts are Hawran & Malm, LLC, 22-31-009-00; Hennessey &
Hennessey, LLC 22-31-026-00; Integra Realty Resources – Los Angeles, 22-31-027-00;
and Santolucito Dorè Group, Inc., 22-31-029-00. The total amount payable by
Commission for the On-Call ROW Appraisal Task Order Contracts shall not exceed a
cumulative maximum total value of One Million Dollars ($1,000,000) (“NTE Sum”). It is
understood and agreed that there is no guarantee, either expressed or implied that this
dollar amount will be authorized under the On-Call ROW Appraisal Task Order Contracts
through Task Orders. Each time a Task Order is awarded under any of the On-Call ROW
Appraisal Task Order Contracts, Commission must send written notification to
Consultant and each of the other consultants entering into the On-Call ROW Appraisal
Task Order Contracts. The notice must identify the total funds allocated under issued
Task Orders, and the remaining unencumbered amount of the NTE Sum. Consultant
acknowledges and agrees that Commission must not pay any amount under this
Agreement that would exceed the NTE Sum, and Consultant must not enter into a Task
Order that exceeds the NTE Sum.
18.9 Salary increases shall be reimbursable if the new salary is within the
salary range identified in the approved Cost Proposal and is approved by Commission’s
Contract Administrator. For personnel subject to prevailing wage rates as described in
the California Labor Code, all salary increases, which are the direct result of changes in
the prevailing wage rates are reimbursable.
18.10 Consultant shall not be reimbursed for any expenses unless
authorized in writing by the Commission’s Contract Administrator.
18.11 All subcontracts in excess of $25,000 shall contain the above
provisions.
19. Disputes.
19.1 Any dispute, other than audit, concerning a question of fact arising
under this Agreement that is not disposed of by mutual agreement of the Parties shall
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be decided by a committee consisting of RCTC’s Contract Administrator and the Director
of Capital Projects, who may consider written or verbal information submitted by
Consultant.
19.2 Not later than 30 days after completion of all Services under this
Agreement, Consultant may request review by the Commission’s Executive Director of
unresolved claims or disputes, other than audit. The request for review will be submitted
in writing.
19.3 Neither the pendency of a dispute, nor its consideration by the
committee will excuse Consultant from full and timely performance in accordance with
the terms of this Agreement.
20. Termination.
20.1 Commission reserves the right to terminate this Agreement upon
thirty (30) calendar days written notice to Consultant, for any or no reason, with the
reasons for termination stated in the notice. Commission may terminate Services under
a Task Order, at any time, for any or no reason, with the effective date of termination to
be specified in the notice of termination of Task Order.
20.2 Commission may terminate this Agreement with Consultant should
Consultant fail to perform the covenants herein contained at the time and in the manner
herein provided. In the event of such termination, Commission may proceed with the
Services in any manner deemed proper by Commission. If Commission terminates this
Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant
under this Agreement for Services completed and accepted prior to termination, unless
the cost of completion to Commission exceeds the funds remaining in the Agreement. In
such case, the overage shall be deducted from any sum due Consultant under this
Agreement and the balance, if any, shall be paid to Consultant upon demand.
20.3 In addition to the above, payment upon termination shall include a
prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit
on unperformed Services. Consultant shall provide documentation deemed adequate by
Commission’s Contract Administrator to show the Services actually completed by
Consultant prior to the effective date of termination. This Agreement shall terminate on
the effective date of the Notice of Termination
20.4 Upon receipt of the written Notice of Termination, Consultant shall
discontinue all affected Services as directed in the Notice or as otherwise provided
herein, and deliver to the Commission all Documents and Data, as defined in this
Agreement, as may have been prepared or accumulated by Consultant in performance
of the Services, whether completed or in progress.
20.5 In addition to the above, Consultant shall be liable to the
Commission for any reasonable additional costs incurred by the Commission to revise
work for which the Commission has compensated Consultant under this Agreement, but
which the Commission has determined in its sole discretion needs to be revised, in part
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or whole, to complete the Project because it did not meet the standard of care
established in this Agreement. Termination of this Agreement for cause may be
considered by the Commission in determining whether to enter into future agreements
with Consultant.
20.6 The rights and remedies of the Parties provided in this Section are
in addition to any other rights and remedies provided by law or under this Agreement.
20.7 Consultant, in executing this Agreement, shall be deemed to have
waived any and all claims for damages which may otherwise arise from the
Commission's termination of this Agreement, for convenience or cause, as provided in
this Section.
20.8 Consultant may not terminate this Agreement except for cause
20.9 In addition to the termination rights above, Commission may
temporarily suspend the Services under any Task Order(s), at no additional cost to
Commission, provided that Consultant is given written notice of temporary suspension.
If Commission gives such notice of temporary suspension, Consultant shall immediately
suspend its activities under the relevant Task Order(s). A temporary suspension may
be issued concurrent with a notice of termination.
21. Cost Principles and Administrative Requirements.
21.1 Consultant agrees that the Contract Cost Principles and
Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000
et seq., shall be used to determine the cost allowability of individual items.
21.2 Consultant also agrees to comply with federal procedures in
accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards.
21.3 Any costs for which payment has been made to CONSULTANT that
are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48
CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are
subject to repayment by Consultant to Commission.
21.4 All subcontracts in excess of $25,000 shall contain the above
provisions.
22. Retention of Records/Audit. For the purpose of determining compliance
with, as applicable, 2 CFR Part 200, Public Contract Code 10115, et seq. and Title 21,
California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and
other matters connected with the performance of this Agreement pursuant to Government
Code 8546.7; Consultant, subconsultants, and Commission shall maintain and make
available for inspection all books, documents, papers, accounting records, and other
evidence pertaining to the performance of this Agreement, including but not limited to, the
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costs of administering this Agreement. All parties shall make such materials available at
their respective offices at all reasonable times during the Agreement period and for three
years from the date of final payment under this Agreement. The State, State Auditor,
Commission, or any duly authorized representative of the State or Federal Government
shall have access to any books, records, and documents of Consultant and it’s certified
public accountants (CPA) work papers that are pertinent to this Agreement and, if
applicable, indirect cost rates (ICR) for audit, examinations, excerpts, and transactions,
and copies thereof shall be furnished if requested. Subcontracts in excess of $25,000
shall contain this provision.
23.1 Accounting System. Consultant and its subcontractors shall
establish and maintain an accounting system and records that properly accumulate and
segregate expenditures by line item for the Services. The accounting system of
Consultant and its subcontractors shall conform to Generally Accepted Accounting
Principles (GAAP), enable the determination of incurred costs at interim points of
completion, and provide support for reimbursement payment vouchers or invoices.
23. Audit Review Procedures.
23.1 Any dispute concerning a question of fact arising under an interim
or post audit of this Agreement that is not disposed of by agreement, shall be reviewed
by Commission’s Chief Financial Officer.
23.2 Not later than 30 days after issuance of the final audit report,
Consultant may request a review by Commission’s Chief Financial Officer of unresolved
audit issues. The request for review will be submitted in writing.
23.3 Neither the pendency of a dispute nor its consideration by
Commission shall excuse Consultant from full and timely performance, in accordance
with the terms of this Agreement.
24. Subcontracting.
24.1 Nothing contained in this Agreement or otherwise, shall create any
contractual relation between Commission and any subconsultant(s), and no subcontract
shall relieve Consultant of its responsibilities and obligations hereunder. Consultant
agrees to be as fully responsible to Commission for the acts and omissions of its
subconsultant(s) and of persons either directly or indirectly employed by any of them as
it is for the acts and omissions of persons directly employed by Consultant. Consultant’s
obligation to pay its subconsultant(s) is an independent obligation from Commission’s
obligation to make payments to the Consultant.
24.2 Consultant shall perform the Services contemplated with resources
available within its own organization and no portion of the Services pertinent to this
Agreement shall be subcontracted without written authorization by Commission’s
Contract Administrator, except that, which is expressly identified in the approved Cost
Proposal.
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24.3 Consultant shall pay its subconsultants within ten (10) calendar
days from receipt of each payment made to Consultant by Commission.
24.4 Any subcontract in excess of $25,000 entered into as a result of this
Agreement shall contain all the provisions stipulated in this Agreement to be applicable
to subconsultants.
24.5 Any substitution of subconsultant(s) must be approved in writing by
Commission’s Contract Administrator prior to the start of work by the subconsultant(s).
24.6 Exhibit “B” may set forth the rates at which each subconsultant shall
bill the Consultant for Services and that are subject to reimbursement by the Commission
to Consultant. Additional Direct Costs, as defined in Exhibit “B” shall be the same for
both the Consultant and all subconsultants, unless otherwise identified in Exhibit “B” or
in a Task Order. The subconsultant rate schedules and cost proposals contained herein
are for accounting purposes only.
25. Equipment Purchase
25.1 Prior authorization, in writing, by Commission’s Contract
Administrator shall be required before Consultant enters into any unbudgeted purchase
order, or subcontract for supplies, equipment, or services. Consultant shall provide an
evaluation of the necessity or desirability of incurring such costs.
25.2 For purchase of any item, service or consulting work not covered in
the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s
Contract Administrator is required. Three competitive quotations must be submitted with
the request for such purchase, or the absence of bidding must be adequately justified.
25.3 Any equipment purchased as a result of this Agreement is subject
to the following: Consultant shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an
acquisition cost of $5,000 or more. If the purchased equipment needs replacement and
is sold or traded in, Commission shall receive a proper refund or credit at the conclusion
of this Agreement, or if this Agreement is terminated, Consultant may either keep the
equipment and credit Commission in an amount equal to its fair market value, or sell
such equipment at the best price obtainable at a public or private sale, in accordance
with established Commission procedures; and credit Commission in an amount equal to
the sales price. If Consultant elects to keep the equipment, fair market value shall be
determined at Consultant’s expense, on the basis of a competent independent appraisal
of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable
to by Commission and Consultant. If Consultant determines to sell the equipment, the
terms and conditions of such sale must be approved in advance by Commission. 2 CFR,
Part 200 requires a credit to Federal funds when participating equipment with a fair
market value greater than $5,000 is credited to the Project.
25.4 All subcontracts in excess $25,000 shall contain the above
provisions.
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26. Labor Code Requirements.
26.1 By its execution of this Agreement, Consultant certifies that it is
aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et
seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing
Wage Laws”), which require the payment of prevailing wage rates and the performance
of other requirements on certain “public works” and “maintenance” projects. If the
Services are being performed as part of an applicable “public works” or “maintenance”
project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000
or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Copies of
the prevailing rate of per diem wages are on file at the Commission’s offices. Consultant
shall make copies of the prevailing rates of per diem wages for each craft, classification
or type of worker needed to execute the Services available to interested parties upon
request, and shall post copies at the Consultant’s principal place of business and at the
project site. Consultant shall defend, indemnify and hold the Commission, its elected
officials, officers, employees and agents free and harmless from any claims, liabilities,
costs, penalties or interest arising out of any failure or alleged failure to comply with the
Prevailing Wage Laws.
26.2 DIR Registration. If the Services are being performed as part of an
applicable “public works” or “maintenance” project, then pursuant to Labor Code
Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered
with the Department of Industrial Relations. Consultant shall maintain registration for the
duration of the Project and require the same of any subconsultants. This Project may
also be subject to compliance monitoring and enforcement by the Department of
Industrial Relations. It shall be Consultant’s sole responsibility to comply with all
applicable registration and labor compliance requirements.
26.3 Eight-Hour Law. Pursuant to the provisions of the California Labor
Code, eight hours of labor shall constitute a legal day’s work, and the time of service of
any worker employed on the work shall be limited and restricted to eight hours during
any one calendar day, and forty hours in any one calendar week, except when payment
for overtime is made at not less than one and one-half the basic rate for all hours worked
in excess of eight hours per day (“Eight-Hour Law”), unless Consultant or the Services
are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a
penalty, $50.00 for each worker employed in the execution of this Agreement by him, or
by any sub-consultant under him, for each calendar day during which such workman is
required or permitted to work more than eight hours in any calendar day and forty hours
in any one calendar week without such compensation for overtime violation of the
provisions of the California Labor Code, unless Consultant or the Services are not
subject to the Eight-Hour Law.
26.4 Employment of Apprentices. This Agreement shall not prevent the
employment of properly indentured apprentices in accordance with the California Labor
Code, and no employer or labor union shall refuse to accept otherwise qualified
employees as indentured apprentices on the work performed hereunder solely on the
ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice
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shall be paid the standard wage paid to apprentices under the regulations of the craft or
trade in which he or she is employed and shall be employed only in the craft or trade to
which he or she is registered.
If California Labor Code Section 1777.5 applies to the Services, Consultant and
any subcontractor hereunder who employs workers in any apprenticeable craft or trade
shall apply to the joint apprenticeship council administering applicable standards for a
certificate approving Consultant or any sub-consultant for the employment and training of
apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall
employ the number of apprentices provided for therein, as well as contribute to the fund
to administer the apprenticeship program in each craft or trade in the area of the work
hereunder.
The parties expressly understand that the responsibility for compliance with
provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California
Labor Code in regard to all apprenticeable occupations lies with Consultant.
27. Ownership of Materials/Confidentiality.
27.1 Documents & Data. This Agreement creates an exclusive and
perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all
copyrights and designs embodied in plans, specifications, studies, drawings, estimates,
materials, data and other documents or works of authorship fixed in any tangible medium
of expression, including but not limited to, physical drawings or data magnetically or
otherwise recorded on computer diskettes, which are prepared or caused to be prepared
by Consultant under this Agreement (“Documents & Data”).
Consultant shall require all subcontractors to agree in writing that
Commission is granted an exclusive and perpetual license for any Documents & Data the
subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal
right to grant the exclusive and perpetual license for all such Documents & Data.
Consultant makes no such representation and warranty in regard to Documents & Data
which were prepared by design professionals other than Consultant or provided to
Consultant by the Commission.
Commission shall not be limited in any way in its use of the
Documents & Data at any time, provided that any such use not within the purposes
intended by this Agreement shall be at Commission’s sole risk.
27.2 Intellectual Property. In addition, Commission shall have and retain
all right, title and interest (including copyright, patent, trade secret and other proprietary
rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer
programs or software and source code, enhancements, documents, and any and all
works of authorship fixed in any tangible medium or expression, including but not limited
to, physical drawings or other data magnetically or otherwise recorded on computer
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media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under
this Agreement as well as any other such Intellectual Property prepared or developed by
or on behalf of Consultant under this Agreement.
The Commission shall have and retain all right, title and interest in
Intellectual Property developed or modified under this Agreement whether or not paid for
wholly or in part by Commission, whether or not developed in conjunction with Consultant,
and whether or not developed by Consultant. Consultant will execute separate written
assignments of any and all rights to the above referenced Intellectual Property upon
request of Commission.
Consultant shall also be responsible to obtain in writing separate
written assignments from any subcontractors or agents of Consultant of any and all right
to the above referenced Intellectual Property. Should Consultant, either during or
following termination of this Agreement, desire to use any of the above-referenced
Intellectual Property, it shall first obtain the written approval of the Commission.
All materials and documents which were developed or prepared by
the Consultant for general use prior to the execution of this Agreement and which are not
the copyright of any other party or publicly available and any other computer applications,
shall continue to be the property of the Consultant. However, unless otherwise identified
and stated prior to execution of this Agreement, Consultant represents and warrants that
it has the right to grant the exclusive and perpetual license for all such Intellectual Property
as provided herein.
Commission further is granted by Consultant a non-exclusive and
perpetual license to copy, use, modify or sub-license any and all Intellectual Property
otherwise owned by Consultant which is the basis or foundation for any derivative,
collective, insurrectional, or supplemental work created under this Agreement.
27.3 Confidentiality. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents and Data either created by or provided to Consultant
in connection with the performance of this Agreement shall be held confidential by
Consultant. Such materials shall not, without the prior written consent of Commission,
be used by Consultant for any purposes other than the performance of the Services. Nor
shall such materials be disclosed to any person or entity not connected with the
performance of the Services or the Project. Nothing furnished to Consultant which is
otherwise known to Consultant or is generally known, or has become known, to the
related industry shall be deemed confidential. Consultant shall not use Commission's
name or insignia, photographs of the Project, or any publicity pertaining to the Services
or the Project in any magazine, trade paper, newspaper, television or radio production
or other similar medium without the prior written consent of Commission.
27.4 Infringement Indemnification. Consultant shall defend, indemnify
and hold the Commission, its directors, officials, officers, employees, volunteers and
agents free and harmless, pursuant to the indemnification provisions of this Agreement,
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for any alleged infringement of any patent, copyright, trade secret, trade name,
trademark, or any other proprietary right of any person or entity in consequence of the
use on the Project by Commission of the Documents & Data, including any method,
process, product, or concept specified or depicted.
28. Indemnification. To the fullest extent permitted by law, Consultant shall
defend, indemnify and hold Commission, Caltrans and their directors, officials, officers,
employees, consultants, volunteers, and agents free and harmless from any and all
claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in
law or equity, to property or persons, including wrongful death, inverse condemnation,
and any claims related to property acquisition and relocation rules or failure to detect or
abate hazardous materials, which are brought by a third party, and which , in any manner
arise out of or are incident to alleged negligent acts, omissions, or willful misconduct of
Consultant, its officials, officers, employees, agents, consultants, and contractors arising
out of or in connection with the performance of the Services, the Project or this
Agreement, including without limitation the payment of consequential damages, expert
witness fees, and attorney’s fees and other related costs and expenses. Consultant shall
defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits,
actions or other legal proceedings of every kind that may be brought or instituted against
Commission, Caltrans, and their directors, officials, officers, employees, consultants,
agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree
that may be rendered against Commission, Caltrans or their directors, officials, officers,
employees, consultants, agents, or volunteers, in any such suit, action or other legal
proceeding. Consultant shall reimburse Commission, Caltrans and their directors,
officials, officers, employees, consultants, agents, and/or volunteers, for any and all legal
expenses and costs, including reasonable attorney’s fees, incurred by each of them in
connection therewith or in enforcing the indemnity herein provided. Consultant's
obligation to indemnify shall not be restricted to insurance proceeds, if any, received by
Commission, Caltrans or their directors, officials officers, employees, consultants, agents,
or volunteers. Notwithstanding the foregoing, to the extent Consultant’s Services are
subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent
required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to
the negligence, recklessness, or willful misconduct of the Consultant. Consultant’s
obligations as set forth in this Section 28 shall survive expiration or termination of this
Agreement.
29. Insurance.
29.1 Time for Compliance. Consultant shall not commence work under
this Agreement until it has provided evidence satisfactory to the Commission that it has
secured all insurance required under this Section, in a form and with insurance
companies acceptable to the Commission. In addition, Consultant shall not allow any
subcontractor to commence work on any subcontract until it has secured all insurance
required under this Section.
29.2 Minimum Requirements. Consultant shall, at its expense, procure
and maintain for the duration of the Agreement insurance against claims for injuries to
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persons or damages to property which may arise from or in connection with the
performance of the Agreement by the Consultant, its agents, representatives, employees
or subcontractors. Consultant shall also require all of its subcontractors to procure and
maintain the same insurance for the duration of the Agreement. Such insurance shall
meet at least the following minimum levels of coverage:
(a) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent);
(2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA
0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and
Employer’s Liability: Workers’ Compensation insurance as required by the State of
California and Employer’s Liability Insurance.
(b) Minimum Limits of Insurance. Consultant shall maintain limits
no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form with
general aggregate limit is used, either the general aggregate limit shall apply separately
to this Agreement/location or the general aggregate limit shall be twice the required
occurrence limit. Limits may be achieved by any combination of primary and excess or
umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily
injury and property damage. Limits may be achieved by any combination of primary and
excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation limits as required by the Labor Code of the State of
California. Employer’s Practices Liability limits of $1,000,000 per accident.
29.3 Professional Liability. Consultant shall procure and maintain, and
require its sub-consultants to procure and maintain, for a period of five (5) years following
completion of the Project, errors and omissions liability insurance appropriate to their
profession. For Consultant, such insurance shall be in an amount not less than
$1,000,000 per claim. This insurance shall be endorsed to include contractual liability
applicable to this Agreement and shall be written on a policy form coverage specifically
designed to protect against acts, errors or omissions of the Consultant. “Covered
Professional Services” as designated in the policy must specifically include work
performed under this Agreement. The policy must “pay on behalf of” the insured and
must include a provision establishing the insurer's duty to defend. Subconsultants of
Consultant shall obtain such insurance in an amount not less than $1,000,000 per claim.
Notwithstanding the foregoing, the Commission may consider written requests to lower
or dispense with the errors and omissions liability insurance requirement contained in
this Section for certain subconsultants of Consultant, on a case-by-case basis,
depending on the nature and scope of the Services to be provided by the subconsultant.
Approval of such request shall be in writing, signed by the Commission’s Contract
Administrator.
29.4 Aircraft Liability Insurance. Prior to conducting any Services
requiring use of aircraft, Consultant shall procure and maintain, or cause to be procured
and maintained, aircraft liability insurance or equivalent form, with a single limit as shall
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be required by the Commission. Such insurance shall include coverage for owned, hired
and non-owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, Caltrans and their directors, officials, officers, employees and agents as
additional insureds with respect to the Services or operations performed by or on behalf
of the Consultant.
29.5 Insurance Endorsements. The insurance policies shall contain the
following provisions, or Consultant shall provide endorsements on forms approved by
the Commission to add the following provisions to the insurance policies:
(a) General Liability.
(i) Commercial General Liability Insurance must include
coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury;
(3) premises/operations liability; (4) products/completed operations liability; (5) aggregate
limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion
deleted; (7) contractual liability with respect to this Agreement; (8) broad form property
damage; and (9) independent consultants coverage.
(ii) The policy shall contain no endorsements or provisions
limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits
by one insured against another; or (3) contain any other exclusion contrary to this
Agreement.
(iii) The policy shall give the Commission, its directors,
officials, officers, employees, and agents insured status using ISO endorsement forms 20
10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the policy shall
be “primary and non-contributory” and will not seek contribution from the Commission’s
or Caltrans’ insurance or self-insurance and shall be at least as broad as CG 20 01 04
13, or endorsements providing the exact same coverage.
(b) Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) the Commission, Caltrans and their directors, officials, officers,
employees and agents shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned, leased,
hired or borrowed by the Consultant or for which the Consultant is responsible; and (2)
the insurance coverage shall be primary insurance as respects the Commission, Caltrans
and their directors, officials, officers, employees and agents, or if excess, shall stand in
an unbroken chain of coverage excess of the Consultant’s scheduled underlying
coverage. Any insurance or self-insurance maintained by the Commission, Caltrans and
their directors, officials, officers, employees and agents shall be excess of the
Consultant’s insurance and shall not be called upon to contribute with it in any way.
(c) Workers’ Compensation and Employers Liability Coverage.
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(i) Consultant certifies that he/she is aware of the
provisions of Section 3700 of the California Labor Code which requires every employer
to be insured against liability for workers’ compensation or to undertake self-insurance in
accordance with the provisions of that code, and he/she will comply with such provisions
before commencing work under this Agreement.
(ii) The insurer shall agree to waive all rights of
subrogation against the Commission, its directors, officials, officers, employees and
agents for losses paid under the terms of the insurance policy which arise from work
performed by the Consultant.
(d) All Coverages.
(i) Defense costs shall be payable in addition to the limits
set forth hereunder.
(ii) Requirements of specific coverage or limits contained
in this Section are not intended as a limitation on coverage, limits, or other requirement,
or a waiver of any coverage normally provided by any insurance. It shall be a requirement
under this Agreement that any available insurance proceeds broader than or in excess of
the specified minimum insurance coverage requirements and/or limits set forth herein
shall be available to the Commission, Caltrans and their directors, officials, officers,
employees and agents as additional insureds under said policies. Furthermore, the
requirements for coverage and limits shall be (1) the minimum coverage and limits
specified in this Agreement; or (2) the broader coverage and maximum limits of coverage
of any insurance policy or proceeds available to the named insured; whichever is greater.
(iii) The limits of insurance required in this Agreement may
be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella
or excess insurance shall contain or be endorsed to contain a provision that such
coverage shall also apply on a primary and non-contributory basis for the benefit of the
Commission (if agreed to in a written contract or agreement) before the Commission’s
own insurance or self-insurance shall be called upon to protect it as a named insured.
The umbrella/excess policy shall be provided on a “following form” basis with coverage
at least as broad as provided on the underlying policy(ies).
(iv) Consultant shall provide the Commission at least thirty
(30) days prior written notice of cancellation of any policy required by this Agreement,
except that the Consultant shall provide at least ten (10) days prior written notice of
cancellation of any such policy due to non-payment of premium. If any of the required
coverage is cancelled or expires during the term of this Agreement, the Consultant shall
deliver renewal certificate(s) including the General Liability Additional Insured
Endorsement to the Commission at least ten (10) days prior to the effective date of
cancellation or expiration.
(v) The retroactive date (if any) of each policy is to be no
later than the effective date of this Agreement. Consultant shall maintain such coverage
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continuously for a period of at least three years after the completion of the work under
this Agreement. Consultant shall purchase a one (1) year extended reporting period A)
if the retroactive date is advanced past the effective date of this Agreement; B) if the policy
is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy
with a retroactive date subsequent to the effective date of this Agreement.
(vi) The foregoing requirements as to the types and limits
of insurance coverage to be maintained by Consultant, and any approval of said
insurance by the Commission, is not intended to and shall not in any manner limit or
qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to
this Agreement, including but not limited to, the provisions concerning indemnification.
(vii) If at any time during the life of the Agreement, any
policy of insurance required under this Agreement does not comply with these
specifications or is canceled and not replaced, Commission has the right but not the duty
to obtain the insurance it deems necessary, and any premium paid by Commission will
be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to
pay premium from Consultant payments. In the alternative, Commission may cancel this
Agreement. The Commission may require the Consultant to provide complete copies of
all insurance policies in effect for the duration of the Project.
(viii) Neither the Commission nor any of its directors,
officials, officers, employees or agents shall be personally responsible for any liability
arising under or by virtue of this Agreement.
29.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the Commission. If the
Commission does not approve the deductibles or self-insured retentions as presented,
Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer
shall reduce or eliminate such deductibles or self-insured retentions as respects the
Commission, its directors, officials, officers, employees and agents; or (2) the Consultant
shall procure a bond guaranteeing payment of losses and related investigation costs,
claims and administrative and defense expense.
29.7 Acceptability of Insurers. Insurance is to be placed with insurers
with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California,
and satisfactory to the Commission.
29.8 Verification of Coverage. Consultant shall furnish Commission with
original certificates of insurance and endorsements effecting coverage required by this
Agreement on forms satisfactory to the Commission. The certificates and endorsements
for each insurance policy shall be signed by a person authorized by that insurer to bind
coverage on its behalf. All certificates and endorsements must be received and
approved by the Commission before work commences. The Commission reserves the
right to require complete, certified copies of all required insurance policies, at any time.
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29.9 Subconsultant Insurance Requirements. Consultant shall not allow
any subcontractors or subconsultants to commence work on any subcontract until they
have provided evidence satisfactory to the Commission that they have secured all
insurance required under this Section. Policies of commercial general liability insurance
provided by such subcontractors or subconsultants shall be endorsed to name the
Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement
providing the exact same coverage. If requested by Consultant, the Commission may
approve different scopes or minimum limits of insurance for particular subcontractors or
subconsultants.
29.10 Other Insurance. At its option, the Commission may require such
additional coverage(s), limits and/or the reduction of deductibles or retentions it
considers reasonable and prudent based upon risk factors that may directly or indirectly
impact the Project. In retaining this option Commission does not warrant Consultant’s
insurance program to be adequate. Consultant shall have the right to purchase
insurance in addition to the insurance required in this Section.
30. Safety. Consultant shall execute and maintain its work so as to avoid injury
or damage to any person or property. In carrying out its Services, the Consultant shall at
all times be in compliance with all applicable local, state and federal laws, rules and
regulations, and shall exercise all necessary precautions for the safety of employees
appropriate to the nature of the work and the conditions under which the work is to be
performed. Safety precautions as applicable shall include, but shall not be limited to: (A)
adequate life protection and life saving equipment and procedures; (B) instructions in
accident prevention for all employees and subcontractors, such as safe walkways,
scaffolds, fall protection ladders, bridges, gang planks, confined space procedures,
trenching and shoring, equipment and other safety devices, equipment and wearing
apparel as are necessary or lawfully required to prevent accidents or injuries; and (C)
adequate facilities for the proper inspection and maintenance of all safety measures.
31. Additional Work. Any work or activities that are in addition to, or otherwise
outside of, the Services to be performed pursuant to this Agreement shall only be
performed pursuant to a separate agreement between the parties. Notwithstanding the
foregoing, the Commission’s Executive Director may make a change to the Agreement,
other than a Cardinal Change. For purposes of this Agreement, a Cardinal Change is a
change which is “outside the scope” of the Agreement; in other words, work which should
not be regarded as having been fairly and reasonably within the contemplation of the
parties when the Agreement was entered into. An example of a change which is not a
Cardinal Change would be where, in a contract to construct a building there are many
changes in the materials used, but the size and layout of the building remains the same.
Cardinal Changes are not within the authority of this provision to order, and shall be
processed by the Commission as “sole source” procurements according to applicable
law, including the requirements of FTA Circular 4220.1D, paragraph 9(f).
(a) In addition to the changes authorized above, a
modification which is signed by Consultant and the Commission’s Executive Director,
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other than a Cardinal Change, may be made in order to: (1) make a negotiated equitable
adjustment to the Agreement price, delivery schedule and other terms resulting from the
issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other
agreements of the parties modifying the terms of this Agreement (“Bilateral Contract
Modification”).
(b) Consultant shall not perform, nor be compensated for
any change, without written authorization from the Commission’s Executive Director as
set forth herein. In the event such a change authorization is not issued and signed by the
Commission’s Executive Director, Consultant shall not provide such change.
32. Prohibited Interests.
32.1 Solicitation. Consultant maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working
solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants
that it has not paid nor has it agreed to pay any company or person, other than a bona
fide employee working solely for Consultant, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty, the Commission shall
have the right to rescind this Agreement without liability.
32.2 Consultant Conflict of Interest.
(a) Consultant shall disclose any financial, business, or other
relationship with Commission that may have an impact upon the outcome of this
Agreement. Consultant hereby certifies that it does not now have, nor shall it acquire any
financial or business interest that would conflict with the performance of services under
this Agreement.
(b) Any subcontract in excess of $25,000 entered into as a result
of this Agreement, shall contain all of the provisions of this Article.
32.3 Commission Conflict of Interest. For the term of this Agreement, no
member, officer or employee of the Commission, during the term of his or her service
with the Commission, shall have any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising therefrom.
32.4 Conflict of Employment. Employment by the Consultant of
personnel currently on the payroll of the Commission shall not be permitted in the
performance of this Agreement, even though such employment may occur outside of the
employee's regular working hours or on weekends, holidays or vacation time. Further,
the employment by the Consultant of personnel who have been on the Commission
payroll within one year prior to the date of execution of this Agreement, where this
employment is caused by and or dependent upon the Consultant securing this or related
Agreements with the Commission, is prohibited.
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32.5 Covenant Against Contingent Fees. As required in connection with
federal funding, the Consultant warrants that he/she has not employed or retained any
company or person, other than a bona fide employee working for the Consultant, to solicit
or secure this Agreement, and that he/she has not paid or agreed to pay any company
or person, other than a bona fide employee, any fee, commission, percentage, brokerage
fee, gift, or any other consideration, contingent upon or resulting from the award or
formation of this Agreement. For breach or violation of this warranty, the Commission
shall have the right to terminate this Agreement without liability pursuant to the terms
herein, or at its discretion to deduct from the Agreement price or consideration, or
otherwise recover, the full amount of such fee, commission, percentage, brokerage fee,
gift, or contingent fee.
32.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant
warrants that this Agreement was not obtained or secured through rebates kickbacks or
other unlawful consideration, either promised or paid to any Commission employee. For
breach or violation of this warranty, Commission shall have the right in its discretion; to
terminate this Agreement without liability; to pay only for the value of the work actually
performed; or to deduct from the Agreement price; or otherwise recover the full amount
of such rebate, kickback or other unlawful consideration.
32.7 Covenant Against Expenditure of Commission, State or Federal
Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and
belief no state, federal or local agency appropriated funds have been paid, or will be paid
by or on behalf of the Consultant to any person for the purpose of influencing or
attempting to influence an officer or employee of any state or federal agency; a Member
of the State Legislature or United States Congress; an officer or employee of the
Legislature or Congress; or any employee of a Member of the Legislature or Congress,
in connection with the award of any state or federal contract, grant, loan, or cooperative
agreement, or the extension, continuation, renewal, amendment, or modification of any
state or federal contract, grant, loan, or cooperative agreement.
(a) If any funds other than federal appropriated funds have been
paid, or will be paid to any person for the purpose of influencing or attempting to influence
an officer or employee of any federal agency; a Member of Congress; an officer or
employee of Congress, or an employee of a Member of Congress; in connection with this
Agreement, the Consultant shall complete and submit the attached Exhibit "F", Standard
Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with the attached
instructions.
(b) The Consultant's certification provided in this Section is a
material representation of fact upon which reliance was placed when this Agreement was
entered into, and is a prerequisite for entering into this Agreement pursuant to Section
1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the
disclosure and certification requirements set forth in Section 1352, Title 31, US. Code
may result in a civil penalty of not less than $10,000 and not more than $100,000 for each
such failure.
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(c) The Consultant also agrees by signing this Agreement that
he/she shall require that the language set forth in this Section 3.23.7 be included in all
Consultant subcontracts which exceed $100,000, and that all such subcontractors shall
certify and disclose accordingly.
32.8 Employment Adverse to the Commission. Consultant shall notify the
Commission, and shall obtain the Commission’s written consent, prior to accepting work
to assist with or participate in a third-party lawsuit or other legal or administrative
proceeding against the Commission during the term of this Agreement.
33. Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, ancestry, sex
or age. Such non-discrimination shall include, but not be limited to, all activities related
to initial employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff or termination.
34. Right to Employ Other Consultants. Commission reserves the right to
employ other consultants in connection with the Project.
35. Governing Law. This Agreement shall be governed by and construed with
the laws of the State of California. Venue shall be in Riverside County.
36. Disputes; Attorneys' Fees.
36.1 Prior to commencing any action hereunder, the Parties shall attempt
in good faith to resolve any dispute arising between them. The pendency of a dispute
shall not excuse Consultant from full and timely performance of the Services.
36.2. If the Parties are unable to resolve a dispute after attempting in good
faith to do so, the Parties may seek any other available remedy to resolve the dispute. If
either Party commences an action against the other Party, either legal, administrative or
otherwise, arising out of or in connection with this Agreement, the prevailing Party in such
litigation shall be entitled to have and recover from the losing Party reasonable attorneys'
fees and, all other costs of such actions.
37. Time of Essence. Time is of the essence for each and every provision of
this Agreement.
38. Headings. Article and Section Headings, paragraph captions or marginal
headings contained in this Agreement are for convenience only and shall have no effect
in the construction or interpretation of any provision herein.
39. Notices. All notices permitted or required under this Agreement shall be
given to the respective parties at the following address, or at such other address as the
respective parties may provide in writing for this purpose:
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CONSULTANT: COMMISSION:
Riverside County
R.P. Laurain & Associates, Inc. Transportation Commission
3353 Linden Avenue, Suite 200 4080 Lemon Street, 3rd Floor
Long Beach, CA 90807 Riverside, CA 92501
Attn: John P. Laurain Attn: Executive Director
Such notice shall be deemed made when personally delivered or when mailed, forty-eight
(48) hours after deposit in the U.S. mail, first class postage prepaid, and addressed to the
Party at its applicable address. Actual notice shall be deemed adequate notice on the
date actual notice occurred, regardless of the method of service.
40. Conflicting Provisions. In the event that provisions of any attached exhibits
conflict in any way with the provisions set forth in this Agreement, the language, terms
and conditions contained in this Agreement shall control the actions and obligations of
the Parties and the interpretation of the Parties' understanding concerning the
performance of the Services.
41. Amendment or Modification. No supplement, modification, or amendment
of this Agreement shall be binding unless executed in writing and signed by both Parties.
42. Entire Agreement. This Agreement contains the entire agreement of the
Parties relating to the subject matter hereof and supersedes all prior negotiations,
agreements or understandings.
43. Invalidity; Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
44. Provisions Applicable When State Funds or Federal Funds Are Involved.
When funding for the Services under a Task Order is provided, in whole or in part, from
FHWA, Consultant shall also fully and adequately comply with the provisions included in
Exhibit “C” (FHWA/Caltrans requirements) attached hereto and incorporated herein by
reference. When funding for the Services under a Task Order is provided, in whole or in
part, from the FTA, Consultant shall also fully and adequately comply with the provisions
included in Exhibit “D” (FTA Requirements) attached hereto and incorporated herein by
reference.
45. Survival. All rights and obligations hereunder that by their nature are to
continue after any expiration or termination of this Agreement, including, but not limited
to, the indemnification and confidentiality obligations, shall survive any such expiration or
termination.
46. No Third Party Beneficiaries. There are no intended third party beneficiaries
of any right or obligation assumed by the Parties.
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47. Labor Certification. By its signature hereunder, Consultant certifies that it
is aware of the provisions of Section 3700 of the California Labor Code which require
every employer to be insured against liability for Workers’ Compensation or to undertake
self-insurance in accordance with the provisions of that Code, and agrees to comply with
such provisions before commencing the performance of the Services.
48. Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
49. Subpoenas or Court Orders. Should Consultant receive a subpoena or
court order related to this Agreement, the Services or the Project, Consultant shall
immediately provide written notice of the subpoena or court order to the Commission.
Consultant shall not respond to any such subpoena or court order until notice to the
Commission is provided as required herein, and shall cooperate with the Commission in
responding to the subpoena or court order.
50. Assignment or Transfer. Consultant shall not assign, hypothecate, or
transfer, either directly or by operation of law, this Agreement or any interest herein,
without the prior written consent of the Commission. Any attempt to do so shall be null
and void, and any assignees, hypothecates or transferees shall acquire no right or interest
by reason of such attempted assignment, hypothecation or transfer.
51. Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties, and shall not be assigned by Consultant without
the prior written consent of Commission.
52. Incorporation of Recitals. The recitals set forth above are true and correct
and are incorporated into this Agreement as though fully set forth herein.
53. No Waiver. Failure of Commission to insist on any one occasion upon strict
compliance with any of the terms, covenants or conditions hereof shall not be deemed a
waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any
rights or powers hereunder at any one time or more times be deemed a waiver or
relinquishment of such other right or power at any other time or times.
54. Electronically Transmitted Signatures; Electronic Signatures. A manually
signed copy of this Agreement which is transmitted by facsimile, email or other means of
electronic transmission shall be deemed to have the same legal effect as delivery of an
original executed copy of this Agreement for all purposes. This Agreement may be signed
using an electronic signature.
[Signatures on following page]
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SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA AND FTA FUNDING/ASSISTANCE
IN WITNESS WHEREOF, this Agreement was executed on the date first written above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
Anne Mayer
Executive Director
Approved as to Form:
By:
Best, Best & Krieger LLP
General Counsel
CONSULTANT
R.P. LAURAIN & ASSOCIATES, INC.
By:
Signature
Name
Title
ATTEST:
By:
Its: __________________________
* A corporation requires the signatures of two corporate officers.
One signature shall be that of the chairman of board, the president or any vice president and the
second signature (on the attest line) shall be that of the secretary, any assistant secretary, the
chief financial officer or any assistant treasurer of such corporation.
If the above persons are not the intended signators, evidence of signature authority shall be
provided to RCTC.
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Exhibit A
EXHIBIT A SCOPE OF SERVICES
The Riverside County Transportation Commission (Commission) is seeking one or
more Consultants (Consultant or Appraiser) to provide right of way appraisal services
for developed or undeveloped residential, commercial, industrial, agricultural and
railroad properties. Consultant shall produce appraisal reports for full or partial
acquisitions, easements, temporary construction easements, leased or licensed
properties, and sale or disposition of excess/surplus properties, as required by the
Commission. Services shall be provided on an on-call/as needed basis in support of
current and future Commission Projects, Measure A Projects and projects done in
partnership with other agencies, pursuant to Task Orders issued in the sole discretion
of the Commission.
Task Orders shall be awarded through an additional qualification-based selection
process.
Such appraisal services may include, but are not limited to, the following work
program and/or comply with applicable requirements below:
1. Consultant shall prepare appraisals in accordance with the Uniform
Relocation and Real Property Acquisition Policies Act of 1970, as amended,
and implemented by 49 CFR Part 24; the State of California Government
Code, the State of California Relocation Assistance and Real Property
Acquisition Guidelines (Title 25, California Code of Regulations Ch 6, Art 1,
Section 6000 et seq.), the California Code of Civil Procedure, the Uniform
Standards of Professional Appraisal Practice (USPAP), and in some cases,
the Uniform Appraisal Standards for Federal Land Acquisition Act. Consultant
must be licensed by the State of California.
2. Consultant shall prepare appraisals in accordance with the Uniform Appraisal
Standards for Federal Land Acquisition (“Yellow Book”). Consultant must be
licensed by the State of California.
3. Consultant must be qualified to provide expert witness testimony and defend
the opinions or conclusions reached in the appraisal at any Administrative
or Judicial proceeding.
4. Deliverables shall typically consist of three (3) originals of the completed
appraisal report and one (1) electronic copy, specialty reports and component
valuations which may be performed by someone other than Consultant and
incorporated into the overall fair market valuation.
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Exhibit A
5. Consultant may be required to meet with and coordinate their efforts with
Commission staff, Commission legal counsel, and other consultants or
Caltrans staff; participate in office or project site meetings.
6. Appraisal reports may be reviewed for acceptance and approval by
Commission's review appraisers and Caltrans. Revisions may be required
by reason of this review process. Consultants may be requested to complete
and deliver revised and/or updated appraisals. In the event of non-acceptance
due to errors or omissions, Consultant shall have fifteen (15) calendar days
to make corrections and return the revised appraisals to the review appraiser.
7. For proposed acquisitions, the owner of the real property or a designated
representative will be invited by the Appraiser to accompany the Appraiser
during the inspection of the property. This invitation must be in the form of
a letter entitled "Notice to Appraise" written by the Appraiser to the owner.
A copy of the invitation will be included in the appraisal report.
8. It is the Appraiser's responsibility to contact the Commission's project
engineers for discussion and/or clarification of the Construction in the
Manner Proposed. This is critical in the appraisal of partial acquisitions and
easements where the Appraiser may need cross sections or other project
engineering information to complete the report.
9. The highest and best use for the property in the before condition must be
determined and supported. If a partial acquisition is involved, the highest
and best use of the property in the after condition must be determined and
supported. If the existing use is not the premise on which the valuation is
based, the appraisal will contain an explanation justifying the determination
that the property is available and adaptable for a different highest and best
use and there is demand for that use in the market.
10. Where the acquisition involves only a part (or portion) of the property, the
Appraiser win estimate any severance d amages and special benefits to the
remainder, including reasoning. and market data to support the opinion or
conclusion. The Appraiser will indicate if the remainder constitutes an
economic or uneconomic unit in the market and/or to the present owner.
11. The California Eminent Domain Law will be followed in partial acquisitions.
Special benefits are to be offset only against damages to the remainder in
accordance with the law.
12. Appraisal for easement acquisitions will reflect the restrictive elements of the
easement to be acquired and the potential effect of such elements on the
utility of the property considering its highest and best use. Full details with
respect to any interference with the highest and best use of the property
affected must be explained and supported.
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Exhibit A
13. The Appraiser must estimate and support the economic rent, state the
contract rent and the remaining term of the lease as of the date of value.
Lessor and lessee responsibilities for paying major expenses, e.g., taxes,
insurance and maintenance shall be included.
14. Appraiser shall itemize in detail the "improvements pertaining to realty"
(Eminent Domain Law-CCP Section 1263.205) showing their replacement cost
new, depreciated value in place, salvage value if any, and relocation estimate.
To the extent possible, determine the ownership claims of the Improvements
Pertaining to the Realty.
15. In cases where the Appraisal Assignment requires a Specialty Appraisal
(Furniture, Fixtures, Machinery and Equipment) and/or Specialists Reports
(title, survey, soils, engineering), Appraiser shall utilize the services of
Commission's On-Call Consultants for such services or obtain Commission's
prior approval for any others. Fees charged by Commission's On-Call
Consultants for Specialty Appraisal and/or Specialists Reports shall be paid
directly by the Commission.
16. It is the Appraiser's responsibility to thoroughly review the Specialty Appraisal
for adoption (with adjustments or not, as appropriate) and inclusion in the
overall appraisal. The estimated values that the specialty items contribute to
the overall value of the real estate will be separately stated but included in the
total value of the property.
17. If any legal issues exist during the appraisal assignment, Appraiser shall
request legal opinion. All legal opinions shall be rendered by Commission's
legal counsel.
18. It is the Appraiser's responsibility to contact the Commission's legal counsel,
if necessary, for discussion and/or clarification in identifying personal or real
property.
19. If hazardous waste is discovered on the property, Appraiser shall seek further
direction from the Commission.
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FIRM PROJECT TASKS/ROLE COST
R.P. Laurain & Associates, Inc.Right of Way Appraisal Services 1,000,000.00$
1,000,000.00$ TOTAL COSTS
1 Commission authorization pertains to total contract award amount. Compensation adjustments between consultants may occur; however,
the maximum total compensation authorized may not be exceeded.
EXHIBIT "B"
Prime Consultant:
Sub Consultants:
COMPENSATION SUMMARY1
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Exhibit C-1
EXHIBIT "C"
FEDERAL DEPARTMENT OF TRANSPORTATION
FHWA AND CALTRANS REQUIREMENTS
1. NONDISCRIMINATION & STATEMENT OF COMPLIANCE.
A. Consultant’s signature affixed herein shall constitute a certification under penalty of
perjury under the laws of the State of California that CONSULTANT has, unless exempt,
complied with, the nondiscrimination program requirements of Government Code Section
12990 and Title 2, California Administrative Code, Section 8103.
B. During the performance of this Agreement, Consultant and its subconsultants shall
not deny the Agreement’s benefits to any person on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression, age,
sexual orientation, or military and veteran status, nor shall they unlawfully discriminate,
harass, or allow harassment against any employee or applicant for employment because
of race, religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or military and veteran status.
Consultant and its subconsultants shall insure that the evaluation and treatment of their
employees and applicants for employment are free from such discrimination and
harassment.
C. Consultant and its subconsultants shall comply with the provisions of the Fair
Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations
promulgated thereunder (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-
11139.5, and any regulations or standards adopted by Commission to implement such
article. The applicable regulations of the Fair Employment and Housing Commission
implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated
into this Agreement by reference and made a part hereof as if set forth in full.
D. Consultant shall permit access by representatives of the Department of Fair
Employment and Housing and the Commission upon reasonable notice at any time during
the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such
of its books, records, accounts, and all other sources of information and its facilities as
said Department or Commission shall require to ascertain compliance with this clause.
E. Consultant and its subconsultants shall give written notice of their obligations
under this clause to labor organizations with which they have a collective bargaining or
other Agreement.
F. If this Agreement is federally funded, the Consultant shall comply with regulations
relative to Title VI (nondiscrimination in federally-assisted programs of the Department of
Transportation – Title 49 Code of Federal Regulations, Part 21 - Effectuation of Title VI
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Exhibit C-2
of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will
implement and maintain a policy of nondiscrimination in which no person in the state of
California shall, on the basis of race, color, national origin, religion, sex, age, disability,
be excluded from participation in, denied the benefits of or subject to discrimination under
any program or activity by the recipients of federal assistance or their assignees and
successors in interest.
G. If this Agreement is federally funded, Consultant shall comply with regulations relative
to non-discrimination in federally-assisted programs of the U.S. Department of
Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964).
Specifically, the Consultant shall not participate either directly or indirectly in the
discrimination prohibited by 49 CFR §21.5, including employment practices and the
selection and retention of subconsultants.
H. Consultant and its subconsultants will never exclude any person from participation in,
deny any person the benefits of, or otherwise discriminate against anyone in connection
with the award and performance of any contract covered by 49 CFR 26 on the basis of
race, color, sex, or national origin. In administering the Commission components of the
DBE Program plan, Consultant and its subconsultants will not, directly, or through
contractual or other arrangements, use criteria or methods of administration that have the
effect of defeating or substantially impairing accomplishment of the objectives of the DBE
Program plan with respect to individuals of a particular race, color, sex, or national origin.
I. Consultant shall include the nondiscrimination and compliance provisions of this
section in all subcontracts to perform work under this Agreement.
2. DEBARMENT AND SUSPENSION CERTIFICATION
CONSULTANT’s signature affixed herein, shall constitute a certification under penalty of
perjury under the laws of the State of California, that CONSULTANT has complied with
Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment
and Suspension (nonprocurement)”, which certifies that he/she or any person associated
therewith in the capacity of owner, partner, director, officer, or manager, is not currently
under suspension, debarment, voluntary exclusion, or determination of ineligibility by any
federal agency; has not been suspended, debarred, voluntarily excluded, or determined
ineligible by any federal agency within the past three (3) years; does not have a proposed
debarment pending; and has not been indicted, convicted, or had a civil judgment
rendered against it by a court of competent jurisdiction in any matter involving fraud or
official misconduct within the past three (3) years. Any exceptions to this certification must
be disclosed to COMMISSION.
B. Exceptions will not necessarily result in denial of recommendation for award, but will
be considered in determining CONSULTANT responsibility. Disclosures must indicate to
whom exceptions apply, initiating agency, and dates of action.
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Exhibit C-3
C. Exceptions to the Federal Government Excluded Parties List System maintained by
the General Services Administration are to be determined by the Federal highway
Administration.
3. DISCRIMINATION; CONTRACT ASSURANCE
The Commission shall not discriminate on the basis of race, color, national origin, or sex
in the award and performance of any DOT-assisted contract or in the implementation of
the Caltrans DBE program or the requirements of 49 CFR Part 26. The Commission shall
take all necessary and reasonable steps under 49 CFR Part 26 to ensure
nondiscrimination in the award and administration of DOT-assisted contracts.
Consultant or subcontractor shall not discriminate on the basis of race, color, national
origin, of sex in the performance of this Agreement. Consultant or subcontractor shall
carry out applicable requirements of 49 CFR Part 26 and the Caltrans DBE program in
the award and administration of DOT-assisted contracts, as further set forth below.
Failure by the Consultant or subcontractor to carry out these requirements is a material
breach of this Agreement, which may result in the termination of this Agreement or such
other remedy, as the Commission deems appropriate.
Failure by the Consultant to carry out these requirements is a material breach of this
contract, which may result in the termination of this contract or such other remedy as the
recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying Consultant from future proposing as non-responsible
4. PROMPT PAYMENT
Consultant or subconsultant shall pay to any subconsultant, not later than fifteen (15)
days after receipt of each progress payment, unless otherwise agreed to in writing, the
respective amounts allowed Consultant on account of the work performed by the
subconsultants, to the extent of each subconsultant’s interest therein. In the event that
there is a good faith dispute over all or any portion of the amount due on a progress
payment from Consultant or subconsultant to a subconsultant, Consultant or
subconsultant may withhold no more than 150 percent of the disputed amount. Any
violation of this requirement shall constitute a cause for disciplinary action and shall
subject the Consultant or subconsultant to a penalty, payable to the applicable
subconsultant, of 2 percent of the amount due per month for every month that payment
is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be
entitled to his or her attorney’s fees and costs. The sanctions authorized under this
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Exhibit C-4
requirement shall be separate from, and in addition to, all other remedies, either civil,
administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
5. RELEASE OF RETAINAGE
No retainage will be held by the Commission from progress payments due to Consultant.
Consultant and subconsultants are prohibited from holding retainage from
subconsultants. Any delay or postponement of payment may take place only for good
cause and with the Commission’s prior written approval. Any violation of these provisions
shall subject Consultant or the violating subconsultant to the penalties, sanctions, and
other remedies specified in Section 3321 of the California Civil Code. This requirement
shall not be construed to limit or impair any contractual, administrative or judicial
remedies, otherwise available to Consultant or subconsultant in the event of a dispute
involving late payment or nonpayment by Consultant, deficient subconsultant
performance and/or noncompliance by a subconsultant. This clause applies to both DBE
and non-DBE subconsultants.
6. LEGAL REMEDIES
In addition to those contract remedies set forth under relevant provisions of California law,
either Party to this Agreement may, where applicable, seek legal redress for violations of
this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the
relevant federal or state statutory provisions governing civil rights violations, and to the
relevant federal and state provisions governing false claims or “whistleblower” actions, as
well as any and all other applicable federal and state provisions of law.
The Consultant shall include a provision to this effect in each of its agreements with its
subcontractors.
7. DBE PARTICIPATION
Caltrans has developed a statewide DBE program pursuant to 49 C.F.R. Part 26. The
requirements and procedures, as applicable, of the Caltrans DBE program are hereby
incorporated by reference into this Agreement. Even if no DBE participation will be
reported, Consultant shall complete any Caltrans required DBE reporting forms, as
provided by the Commission, in compliance with the Caltrans DBE program, and a final
utilization report in the form provided by the Commission.
A. This Agreement is subject to Title 49, Part 26 of the Code of Federal Regulations
entitled “Participation by Disadvantaged Business Enterprises in Department of
Transportation Financial Assistance Programs.” Consultants who enter into a federally-
funded agreement will assist the Commission in a good faith effort to achieve California’s
statewide overall DBE goal.
B. This Agreement does not have a DBE goal, but DBE goals may be included as
part of each Task Order request for proposals. Participation by DBE Consultant or
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Exhibit C-5
subconsultants for an FHWA funded Task Order shall be in accordance with the
information contained in the Consultant Contract DBE Commitment form (Caltrans LAPM
Forms Exhibit 10-O1) to be submitted with the relevant Task Order proposal. If a DBE
subconsultant is unable to perform, the Consultant must make a good faith effort to
replace him/her with another DBE subconsultant, if the goal is not otherwise met. A DBE
is a firm meeting the definition of a DBE as specified in 49 CFR.
C. All DBE participation will count toward the Caltrans federally mandated statewide
overall DBE goal. Credit for materials or supplies Consultant purchases from DBEs
counts towards the goal in the following manner:
• 100 percent counts if the materials or supplies are obtained from a DBE
manufacturer.
• 60 percent counts if the materials or supplies are purchased from a DBE regular
dealer.
• Only fees, commissions, and charges for assistance in the procurement and
delivery of materials or supplies count if obtained from a DBE that is neither a
manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular
dealer."
D. DBE and other small businesses (SB), as defined in Title 49 CFR, Part 26 are
encouraged to participate in the performance of agreements financed in whole or in part
with federal funds. The Consultant, subrecipient or subconsultant shall not discriminate
on the basis of race, color, national origin, or sex in the performance of this Agreement.
The Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award
and administration of US DOT- assisted agreements. Failure by the contractor to carry
out these requirements is a material breach of this Agreement, which may result in the
termination of this Agreement or such other remedy as the Commission, Caltrans or the
Department of Transportation deems appropriate.
E. Any subcontract entered into as a result of this Agreement shall contain all of the
provisions of this section.
F. A DBE may be terminated only as further set forth in Section 13 below.
8. DBE PARTICIPATION GENERAL INFORMATION
It is Consultant's responsibility to be fully informed regarding the requirements of 49 CFR,
Part 26, and the Caltrans DBE program. Particular attention is directed to the following:
A. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be
certified through the California Unified Certification Program (CUCP).
B. A certified DBE may participate as a prime contractor, subcontractor, joint venture
partner, as a vendor of material or supplies, or as a trucking company.
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Exhibit C-6
C. A DBE joint-venture partner must be responsible for specific contract items of work
or clearly defined portions thereof. Responsibility means actually performing, managing
and supervising the work with its own forces. The DBE joint venture partner must share
in the capital contribution, control, management, risks and profits of the joint-venture
commensurate with its ownership interest.
D. A DBE must perform a commercially useful function, pursuant to 49 CFR 26.55
that is, must be responsible for the execution of a distinct element of the work and must
carry out its responsibility by actually performing, managing and supervising the work, as
more fully described in section 9 below.
E. The Consultant shall list only one subcontractor for each portion of work as defined
in the Consultant's bid/proposal and all DBE subcontractors should be listed in the
Consultant's bid/cost proposal list of subcontractors.
F. A Consultant who is a certified DBE is eligible to claim all of the work in the
Agreement toward the DBE participation except that portion of the work to be performed
by non-DBE subcontractors.
G. Consultant shall notify the Commission’s contract administrator or designated
representative of any changes to its anticipated DBE participation prior to starting the
affected work.
9 . COMMERCIALLY USEFUL FUNCTION
A. A DBE performs a commercially useful function when it is responsible for execution
of the work of the Agreement and is carrying out its responsibilities by actually performing,
managing, and supervising the work involved. To perform a commercially useful function,
the DBE must also be responsible with respect to materials and supplies used on the
Agreement, for negotiating price, determining quality and quantity, ordering the material,
and installing (where applicable) and paying for the material itself. To determine whether
a DBE is performing a commercially useful function, evaluate the amount of work
subcontracted, industry practices; whether the amount the firm is to be paid under the
Agreement is commensurate with the work it is actually performing, and other relevant
factors.
B. A DBE does not perform a commercially useful function if its role is limited to that
of an extra participant in a transaction, Agreement, or project through which funds are
passed in order to obtain the appearance of DBE participation. In determining whether a
DBE is such an extra participant, examine similar transactions, particularly those in which
DBEs do not participate.
C. If a DBE does not perform or exercise responsibility for at least thirty percent of the
total cost of its Agreement with its own work force, or the DBE subcontracts a greater
portion of the work of the Agreement than would be expected on the basis of normal
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industry practice for the type of work involved, it will be presumed that it is not performing
a commercially useful function.
10. DBE CERTIFICATION AND DE-CERTIFICATION STATUS
If a DBE subcontractor is decertified before completing its work, the decertified
subcontractor shall notify the Contractor in writing with the date of de-certification. If a
subcontractor becomes a certified DBE during the life of the Agreement, the
subcontractor shall notify the Contractor in writing with the date of certification. Any
changes should be reported to the Commission’s Contract Administrator within 30 days.
11. DBE RECORDS
A. The Contractor shall maintain records of materials purchased and/or supplied from
all subcontracts entered into with certified DBEs. The records shall show the name and
business address of each DBE subconsultant, DBE vendor, and DBE trucking company
and the total dollar amount actually paid each business regardless of tier. The records
shall show the date of payment and the total dollar figure paid to all firms. DBE prime
Contractors shall also show the date of work performed by their own forces along with the
corresponding dollar value of the work.
In addition to all other requirements, Consultant shall complete and submit, on a monthly
basis, the Monthly DBE Payment form (Caltrans Exhibit 9-F of Chapter 9 of the LAPM).
B. Upon completion of the Agreement, a summary of these records shall be prepared
and submitted on the most current version of the form entitled, “Final Report-Utilization of
Disadvantaged Business Enterprises (DBE),” CEM- 2402F (Exhibit 17-F in Chapter 17 of
the LAPM), certified correct by the Contractor or the Contractor’s authorized
representative and shall be furnished to the Commission’s Contract Administrator with
the final invoice. Failure to provide the summary of DBE payments with the final invoice
will result in the Commission withholding $10,000 until the form is submitted. This amount
will be returned to the Contractor when a satisfactory “Final Report Utilization of
Disadvantaged Business Enterprises (DBE)” is submitted to the Commission’s Contract
Administrator.
a. Prior to the fifteenth of each month, the Contractor shall submit documentation to
the Commission’s Contract Administrator showing the amount paid to DBE trucking
companies. The Contractor shall also obtain and submit documentation to the
Commission’s Contract Administrator showing the amount paid by DBE trucking
companies to all firms, including owner-operators, for the leasing of trucks. If the DBE
leases trucks from a non-DBE, the Contractor may count only the fee or commission the
DBE receives as a result of the lease arrangement.
b. The Contractor shall also submit to the Commission’s Contract Administrator
documentation showing the truck number, name of owner, California Highway Patrol CA
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number, and if applicable, the DBE certification number of the truck owner for all trucks
used during that month. This documentation shall be submitted on the Caltrans ”Monthly
DBE Trucking Verification,” CEM-2404(F) form provided to the Contractor by the
Commission’s Contract Administrator.
12. REPORTING MATERIAL OR SUPPLIES PURCHASED FROM DBEs
When Reporting DBE Participation, Material or Supplies purchased from DBEs may
count as follows:
A. If the materials or supplies are obtained from a DBE manufacturer, 100 % of the
cost of the materials or supplies will count toward the DBE participation. A DBE
manufacturer is a firm that operates or maintains a factory or establishment that produces
on the premises, the materials, supplies, articles, or equipment required under the
Agreement and of the general character described by the specifications.
B. If the materials or supplies purchased from a DBE regular dealer, count 60 % of
the cost of the materials or supplies toward DBE goals. A DBE regular dealer is a firm
that owns, operates or maintains a store, warehouse, or other establishment in which the
materials, supplies, articles or equipment of the general character described by the
specifications and required under the Agreement, are bought, kept in stock, and regularly
sold or leased to the public in the usual course of business. To be a DBE regular dealer,
the firm must be an established, regular business that engages, as its principal business
and under its own name, in the purchase and sale or lease of the products in question. A
person may be a DBE regular dealer in such bulk items as petroleum products, steel,
cement, gravel, stone or asphalt without owning, operating or maintaining a place of
business provided in this section.
C. If the person both owns and operates distribution equipment for the products, any
supplementing of regular dealers’ own distribution equipment, shall be by a long-term
lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers,
brokers, manufacturers’ representatives, or other persons who arrange or expedite
transactions are not DBE regular dealers within the meaning of this section.
D. Materials or supplies purchased from a DBE, which is neither a manufacturer nor
a regular dealer, will be limited to the entire amount of fees or commissions charged for
assistance in the procurement of the materials and supplies, or fees or transportation
charges for the delivery of materials or supplies required on the job site, provided the fees
are reasonable and not excessive as compared with fees charged for similar services.
13. TERMINATION AND SUBSTITUTION OF DBE SUBCONSULTANTS
Consultant shall utilize the specific DBEs listed to perform the work and supply the
materials for which each is listed unless Consultant or DBE subconsultant obtains the
Commission’s written consent. Consultant shall not terminate or substitute a listed DBE
for convenience and perform the work with their own forces or obtain materials from other
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sources without authorization from the Commission. Unless the Commission’s consent is
provided, the Consultant shall not be entitled to any payment for work or material unless
it is performed or supplied by the listed DBE on the attached Consultant Contract DBE
Commitment form.
The Commission authorizes a request to use other forces or sources of materials if
Consultant shows any of the following justifications:
1. Listed DBE fails or refuses to execute a written contract based on plans and
specifications for the project.
2. The Commission stipulated that a bond is a condition of executing the
subcontract and the listed DBE fails to meet the Commission’s bond
requirements.
3. Work requires a consultant's license and listed DBE does not have a valid
license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials
(failing or refusing to perform is not an allowable reason to remove a DBE if
the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the project because of suspension or
debarment.
7. Listed DBE becomes bankrupt or insolvent.
8. Listed DBE voluntarily withdraws with written notice from the Agreement.
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE owner dies or becomes disabled resulting in the inability to
perform the work on the Contract.
11. The Commission determines other documented good cause.
Consultant shall notify the original DBE of the intent to use other forces or material
sources and provide the reasons and provide the DBE with 5 days to respond to the notice
and advise Consultant and the Commission of the reasons why the use of other forces or
sources of materials should not occur.
Consultant’s request to use other forces or material sources must include:
1. One or more of the reasons listed in the preceding paragraph.
2. Notices from Consultant to the DBE regarding the request.
3. Notices from the DBEs to Consultant regarding the request.
If a listed DBE is terminated or substituted, Consultant must make good faith efforts to
find another DBE to substitute for the original DBE. The substitute DBE must perform at
least the same amount of work as the original DBE under the contract to the extent
needed to meet or exceed the DBE goal.
14. DEBARMENT, SUSPENSION AND OTHER INELIGIBILITY AND VOLUNTARY
EXCLUSION
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In accordance with 49 CFR Part 29, which by this reference is incorporated herein,
Consultant’s subconsultants completed and submitted the Certificate of subconsultant
Regarding Debarment, Suspension and Other Ineligibility and Voluntary Exclusion as part
of the Consultant’s proposal. If it is later determined that Consultant’s subconsultants
knowingly rendered an erroneous Certificate, the Commission may, among other
remedies, terminate this Agreement.
15. ENVIRONMENTAL COMPLIANCE
A. Compliance with all applicable standards, orders, or requirements issued under
section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act
(33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency
regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in
excess of $100,000).
B. Mandatory standards and policies relating to energy efficiency which are contained in
the state energy conservation plan issued in compliance with the Energy Policy and
Conservation Act (Pub. L. 94-163, 89 Stat. 871).
16. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code Section 10296, and by signing this Agreement,
Consultant certifies under penalty of perjury that no more than one final unappealable
finding of contempt of court by a federal court has been issued against Consultant within
the immediately preceding two-year period, because of Consultant’s failure to comply with
an order of a federal court that orders Consultant to comply with an order of the National
Labor Relations Board.
17. FUNDING REQUIREMENTS
It is mutually understood between the Parties that this Agreement may have been written
before ascertaining the availability of funds or appropriation of funds, for the mutual
benefit of both Parties, in order to avoid program and fiscal delays that would occur if the
Agreement were executed after that determination was made.
This Agreement is valid and enforceable only if sufficient funds are made available to
Commission for the purpose of this Agreement. In addition, this Agreement is subject to
any additional restrictions, limitations, conditions, or any statute enacted by the Congress,
State Legislature, or Commission governing board that may affect the provisions, terms,
or funding of this Agreement in any manner.
It is mutually agreed that if sufficient funds are not appropriated, this Agreement may be
amended to reflect any reduction in funds.
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EXHIBIT D
FTA FUNDING REQUIREMENTS (Non-construction/maintenance work)
As used herein, “RCTC” shall have the same meaning as the “Commission.” The term
“contract” or “Contract” shall have the same meaning as the “Agreement.”
1. No Obligation by the Federal Government
a.RCTC and Consultant acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the
underlying contract, absent the express written consent by the Federal Government, the
Federal Government is not a party to this contract and shall not be subject to any
obligations or liabilities to the Purchaser, Consultant, or any other party (whether or not
a party to that contract) pertaining to any matter resulting from the underlying contract.
b.The Consultant agrees to include the above clause in each subcontract financed
in whole or in part with Federal assistance provided by FTA. It is further agreed that the
clause shall not be modified, except to identify the subconsultant who will be subject to
its provisions.
2. Program Fraud and False or Fraudulent Statements or Related Acts
a.The Consultant acknowledges that the provisions of the Program Fraud Civil
Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT
regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions
pertaining to this Project. Upon execution of the underlying contract, the Consultant
certifies or affirms the truthfulness and accuracy of any statement it has made, it
makes, it may make, or causes to be made, pertaining to the underlying contract or
the FTA assisted project for which this contract work is being performed. In addition to
other penalties that may be applicable, the Consultant further acknowledges that if it
makes, or causes to be made, a false, fictitious, or fraudulent claim, statement,
submission, or certification, the Federal Government reserves the right to impose the
penalties of the Program Fraud Civil Remedies Act of 1986 on the Consultant to the
extent the Federal Government deems appropriate.
b.The Consultant also acknowledges that if it makes, or causes to be made, a
false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in
part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C.
§ 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001
and 49 U.S.C. § 5307(n)(1) on the Consultant, to the extent the Federal Government
deems appropriate.
c.The Consultant agrees to include the above two clauses in each subcontract
financed in whole or in part with Federal assistance provided by FTA. It is further agreed
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that the clauses shall not be modified, except to identify the subconsultant who will be
subject to the provisions.
3. Access to Records
The Consultant agrees to the following access to records requirements:
a. To provide RCTC, the FTA Administrator, the Comptroller General of the United
States or any of their authorized representatives access to any books, documents,
papers and records of the Consultant which are directly pertinent to this contract for the
purposes of making audits, examinations, excerpts and transcriptions. Consultant also
agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his
authorized representatives including any PMO Consultant access to Consultant's
records and construction sites pertaining to a major capital project, defined at 49 U.S.C.
5302(a)1, which is receiving federal financial assistance through the programs
described at 49 U.S.C. 5307, 5309 or 5311.
b. To make available in the case of a contract for a capital project or improvement,
as defined above and awarded by other than competitive bidding in accordance with 49
U.S.C. 5325(a), records related to the contract to RCTC, the Secretary of
Transportation and the Comptroller General or any authorized officer or employee of
any of them for the purposes of conducting an audit and inspection.
c. To maintain all books, records, accounts and reports required under this contract
for a period of not less than three years after the date of termination or expiration of this
contract, except in the event of litigation or settlement of claims arising from the
performance of this contract, in which case Consultant agrees to maintain same until
RCTC, the FTA Administrator, the Comptroller General, or any of their duly authorized
representatives, have disposed of all such litigation, appeals, claims or exceptions
related thereto. Reference 49 CFR 18.39(i)(11).
d. To permit any of the foregoing parties to reproduce by any means whatsoever or
to copy excerpts and transcriptions as reasonably needed.
4. Federal Changes
The Consultant shall at all times comply with all applicable FTA regulations, policies,
procedures and directives, including without limitation those listed directly or by
reference in the Master Agreement between RCTC and FTA, as they may be amended
or promulgated from time to time during the term of this contract. Consultant's failure to
so comply shall constitute a material breach of this contract.
5. Civil Rights
The following requirements apply to the underlying contract:
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(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended,
42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42
U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. §
12132, and Federal transit law at 49 U.S.C. § 5332 and 49 CFR part 21, the Consultant
agrees that it will not discriminate against any employee or applicant for employment
because of race, color, creed,
national origin, sex, age, or disability. In addition, the Consultant agrees to comply with
applicable Federal implementing regulations and other implementing requirements FTA
may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the
Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C.
§ 5332, the Consultant agrees to comply with all applicable equal employment
opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office
of Federal Contract Compliance Programs, Equal Employment Opportunity,
Department of Labor," 41 C.F.R. Parts 60 et seq ., (which implement Executive Order
No. 11246, "Equal Employment Opportunity," as amended by Executive Order No.
11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity,"
42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders,
regulations, and Federal policies that may in the future affect construction activities
undertaken in the course of the Project. The Consultant agrees to take affirmative
action to ensure that applicants are employed, and that employees are treated during
employment, without regard to their race, color, creed, national origin, sex, or age.
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. In addition, the Consultant agrees to comply with any implementing
requirements FTA may issue.
(b) Age - In accordance with section 4 of the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. § § 623, Federal transit law at 49 U.S.C. § 5332,
the Equal Employment Opportunity Commission (U.S. EEOC) regulations, “Age
Discrimination in Employment Act,” 29 C.F.R. part 1625, the Age Discrimination Act of
1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health and Human Services
regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving
Federal Financial Assistance,” 45 C.F.R. part 90, the Consultant agrees to refrain from
discrimination against present and prospective employees for reason of age. In addition,
the Consultant agrees to comply with any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 504 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended,
42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42
U.S.C. § 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Consultant
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agrees that it will not discriminate against individuals on the basis of disability, and that
it will comply with the requirements of U.S. Equal Employment Opportunity Commission,
"Regulations to Implement the Equal Employment Provisions of the Americans with
Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with
disabilities. In addition, the Consultant agrees to comply with any implementing
requirements FTA may issue.
(3) The Consultant also agrees to include these requirements in each subcontract
financed in whole or in part with Federal assistance provided by FTA, modified only if
necessary to identify the affected parties.
6. FTA Disadvantaged Business Enterprise (DBE) Requirements
A. General DBE Requirements: In accordance with Federal financial assistance
agreements with the U.S. Department of Transportation (U.S. DOT), Commission has
adopted a Disadvantaged Business Enterprise (DBE) Policy and Program, in
conformance with Title 49 CFR Part 26, “Participation by Disadvantaged Business
Enterprises in Department of Transportation Programs” (the “Regulations”). This RFP is
subject to these stipulated regulations. In order to ensure that Commission achieves its
overall DBE Program goals and objectives, Commission encourages the participation
of DBEs as defined in 49 CFR 26 in the performance of contracts financed in whole or
in part with U.S. DOT funds.
It is the policy of the Commission to:
1. Ensure nondiscrimination in the award and administration of DOT-assisted contracts;
2. Create a level playing field on which DBE’s can compete fairly for DOT-assisted
contracts;
3. Ensure that the DBE program is narrowly tailored in accordance with applicable law;
4. Ensure that only firms that fully meet 49 C.F.R. part 26 eligibility standards are
permitted to participate as DBE’s;
5. Help remove barriers to the participation of DBEs in DOT assisted contracts;
6. To promote the use of DBEs in all types of federally assisted contracts and
procurement activities; and
7. Assist in the development of firms that can compete successfully in the marketplace
outside the DBE program.
B. Discrimination: Consultant shall not discriminate on the basis of race, color,
national origin, or sex in the award and performance of subcontracts. Any terms used
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herein that are defined in 49 CFR Part 26, or elsewhere in the Regulations, shall have
the meaning set forth in the Regulations.
C. Commission’s Race-Neutral DBE Program: A Race-Neutral DBE Program is one
that, while benefiting DBEs, is not solely focused on DBE firms. Therefore, under a
Race-Neutral DBE Program, Commission does not establish numeric race-conscious
DBE participation goals on its DOT-assisted contracts. There is no FTA DBE goal on
this Project.
Consultant shall not be required to achieve a specific level of DBE participation as a
condition of contract compliance in the performance of this DOT-assisted contract.
However, Consultant
shall adhere to race-neutral DBE participation commitment(s) made at the time of
award.
D. Race-Neutral DBE Submissions and Ongoing Reporting Requirements (Post-
Award): At termination of the Contract, the successful Consultant shall complete and
submit to Commission a “DBE Race-Neutral Participation Listing” in the form provided
by Commission. In the event DBE(s) are utilized in the performance of the Agreement,
Consultant shall comply with applicable reporting requirements.
E. Performance of DBE Subconsultants: DBE subconsultants listed by Consultant in
its “DBE Race-Neutral Participation Listing” submitted at the time of proposal shall
perform the work and supply the materials for which they are listed, unless Consultant
has received prior written authorization from Commission to perform the work with other
forces or to obtain the materials from other sources. Consultant shall provide written
notification to Commission in a timely manner of any changes to its anticipated DBE
participation. This notice should be provided prior to the commencement of that portion
of the work.
F. DBE Certification Status: If a listed DBE subconsultant is decertified during the
life of this Agreement, the decertified subconsultant shall notify Consultant in writing
with the date of decertification. If a non-DBE subconsultant becomes a certified DBE
during the life of this Agreement, the DBE subconsultant shall notify Consultant in
writing with the date of certification. Consultant shall furnish the written documentation
to Commission in a timely manner. Consultant shall include this requirement in all
subcontracts.
G. Consultant’s Assurance Clause Regarding Non-Discrimination: In compliance with
State and Federal anti-discrimination laws, Consultant shall affirm that it will not exclude
or discriminate on the basis of race, color, national origin, or sex in consideration of
contract award opportunities. Further, Consultant shall affirm that they will consider, and
utilize subconsultants and vendors, in a manner consistent with non-discrimination
objectives.
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H. Violations: Failure by the selected Consultant(s) to carry out these requirements shall
be a material breach of the contract to be awarded pursuant to this RFP, which may
result in the termination of the contract or such other remedy as the recipient deems
appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the Consultant from future bidding as non-responsible. 49 C.F.R. §
26.13(b).
I. Prompt Payment: Consultant shall pay its subconsultants for satisfactory performance
of their contracts no later than 30 days from receipt of each payment Commission
makes to the Consultant. 49 C.F.R. § 26.29(a), unless a shorter period is provided in
the contract.
J. Compliance with DBE Requirements Contained in FTA Provisions: Consultant shall
comply with all DBE reporting and other requirements contained in this Agreement.
7. Incorporation of Federal Transit Administration (FTA) Terms
The preceding provisions include, in part, certain Standard Terms and Conditions
required by DOT, whether or not expressly set forth in the preceding contract
provisions. All contractual provisions required by DOT, as set forth in FTA Circular
4220.1F are hereby incorporated by reference. Anything to the contrary herein
notwithstanding, all FTA mandated terms shall be deemed to control in the event of a
conflict with other provisions contained in this Agreement. The Consultant shall not
perform any act, fail to perform any act, or refuse to comply with any RCTC requests
which would cause RCTC to be in violation of the FTA terms and conditions.
8. Debarment and Suspension.
The Consultant agrees to the following:
(1) It will comply with the following requirements of 2 CFR Part 180, subpart C, as
adopted and supplemented by U.S. DOT regulations at 2 CFR Part 1200.
(2) It will not enter into any “covered transaction” (as that phrase is defined at 2 CFR §§
180.220 and 1200.220) with any subconsultant whose principal is, suspended,
debarred, or otherwise excluded from participating in covered transactions, except as
authorized by— (i) U.S. DOT regulations, “Nonprocurement Suspension and
Debarment,” 2 CFR Part 1200; (ii) U.S. OMB regulatory guidance, “Guidelines to
Agencies on Governmentwide Debarment and Suspension (Nonprocurement),” 2 CFR
Part 180; and (iii) Other applicable federal laws, regulations, or requirements regarding
participation with debarred or suspended recipients or third party participants.
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(3) It will review the U.S. GSA “System for Award Management – Lists of Parties
Excluded from Federal Procurement and Nonprocurement Programs,” if required by
U.S. DOT regulations, 2 CFR Part 1200.
9. ADA Access Requirements
The Consultant shall comply with all applicable requirements of the Americans with
Disabilities Act of 1990 (ADA), 42 USC Section 12101 et seq; Section 504 of the
Rehabilitation Act of 1973, as amended, 29 USC Section 794; 49 USC Section 5301(d).
10. Fly America
.
To the extent applicable to the Services, the Consultant agrees to comply with 49
U.S.C. 40118 (the "Fly America" Act) in accordance with the General Services
Administration's regulations at 41 CFR Part 301-10, which provide that recipients and
sub recipients of Federal funds and their consultants are required to use U.S. Flag air
carriers for U.S. Government-financed international air travel and transportation of their
personal effects or property, to the extent such service is available, unless travel by
foreign air carrier is a matter of necessity, as defined by the Fly America Act. The
Consultant shall submit, if a foreign air carrier was used, an appropriate certification or
memorandum adequately explaining why service by a U.S. flag air carrier was not
available or why it was necessary to use a foreign air carrier and shall, in any event,
provide a certificate of compliance with the Fly America requirements. The Consultant
agrees to include the requirements of this section in all subcontracts that may involve
international air transportation.
11. Cargo Preference - Use of United States-Flag Vessels
To the extent applicable to the Services, the Consultant agrees:
1. To use privately owned United States-Flag commercial vessels to ship at
least 50 percent of the gross tonnage (computed separately for dry bulk
carriers, dry cargo liners, and tankers) involved, whenever shipping any
equipment, material, or commodities pursuant to the underlying contract to
the extent such vessels are available at fair and reasonable rates for United
States-Flag commercial vessels;
2. To furnish within 20 working days following the date of loading for shipments
originating within the United States or within 30 working days following the
date of leading for shipments originating outside the United States, a legible
copy of a rated, "on-board" commercial ocean bill-of -lading in English for
each shipment of cargo described in the preceding paragraph to the Division
of National Cargo, Office of Market Development, Maritime Administration,
Washington, DC 20590 and to the FTA recipient (through the Consultant in
the case of a subconsultant's bill-of-lading.)
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3. To include these requirements in all subcontracts issued pursuant to this
contract when the subcontract may involve the transport of equipment,
material, or commodities by ocean vessel.
11. Buy America – Not applicable.
12. Employment Provisions
To the extent applicable to the Services, Consultant shall comply with the following:
A. Equal Employment Opportunity — Not applicable.
B. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c) — Not applicable.
C. Contact Work Hours and Safety Standards Act (40 U.S.C. 327–333) —Not
applicable.
D. Release of Retainage
No retainage will be withheld by the RCTC from progress payments due Consultant.
Retainage by Consultant or subconsultants is prohibited, and no retainage will be held
by the prime consultant from progress due subconsultants. Any violation of this
provision shall subject the violating Consultant or subconsultants to the penalties,
sanctions, and other remedies specified in Section 7108.5 of the California Business
and Professions Code. This requirement shall not be construed to limit or impair any
contractual, administrative, or judicial remedies, otherwise available to Consultant or
subconsultant in the event of a dispute involving late payment or nonpayment by
Consultant or deficient subconsultant performance, or noncompliance by a
subconsultant.
13. Termination for Convenience
RCTC may terminate the Agreement for convenience in accordance with the terms of
the Agreement.
After such termination, the Consultant shall submit a final termination settlement
proposal to RCTC as directed. If the Consultant fails to submit a proposal within the
time allowed, RCTC may determine, on the basis of information available, the amount, if
any due the Consultant because of the termination and shall pay the amount
determined. After the Consultant’s proposal is received, RCTC and Consultant shall
negotiate a fair and equitable settlement and the contract will be modified to reflect the
negotiated agreement. If agreement cannot be reached, RCTC may issue a final
determination and pay the amount determined. If the Consultant does not agree with
this final determination or the determination resulting from the lack of timely submission
of a proposal, the Consultant may appeal under the Disputes clause.
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14. Administrative and Contractual Remedies on Breach; Termination for
Cause
a.The Consultant may be declared in breach of this Agreement (“Breach”) if the Consultant
fails to make delivery of the supplies or to perform the services within the time specified
herein or any extension thereof; or if the Consultant fails to perform any of the other
provisions of the contract, or so fails to make progress as to endanger performance of
this contract in accordance with its terms. In case of any of the foregoing, RCTC shall
notify the Consultant of the Breach, and the Consultant shall have a period of ten (10)
days (or such longer period as RCTC may authorize in writing) after receipt of notice
from RCTC to cure the Breach.
b. RCTC may, by written notice of termination to the Consultant specifying the
effective date thereof, terminate the whole or any part of this contract, in the case of a
Breach that is not cured within the timeframe set forth in (a) above (“Uncured Breach”).
c. If the contract is terminated in whole or in part for an Uncured Breach, RCTC
may procure upon such terms and in such manner as RCTC may deem appropriate,
supplies or services similar to those so terminated, or may complete the services with
its own forces. The Consultant shall be liable to RCTC for any excess costs for such
similar supplies or services, and for any other costs incurred by RCTC as a result of the
Uncured Breach. The Consultant shall continue the performance of this contract to the
extent not terminated under the provisions of this clause.
d. Except with respect to defaults of Subconsultants, the Consultant shall not be
liable for any excess costs if the failure to perform the contract arises out of causes
beyond the control and without the fault or negligence of the Consultant. If the failure to
perform is caused by the default of a Subconsultant, and if such default arises out of
causes beyond the control of both the Consultant and the Subconsultant, and without
the fault or negligence of either of them, the Consultant shall not be liable for any
excess costs for failure to perform, unless the supplies or services to be furnished by
the Subconsultant were obtainable from other sources in sufficient time to permit the
Consultant to meet the required project completion schedule.
e. Payment for completed services or supplies delivered to and accepted by RCTC
shall be at the contract price. RCTC may withhold from amounts otherwise due the
Consultant for such completed services or supplies such sum as RCTC determines to
be necessary to protect RCTC against loss because of outstanding liens of claims of
former lien holders, or to reimburse RCTC for any other costs related to the Uncured
Breach.
f. If, after notice of termination of this contract for cause, it is determined for any
reason that an Uncured Breach did not exist, the rights and obligations of the parties
shall be the same as if the notice of termination had been issued pursuant to the
provisions for termination for convenience of RCTC.
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g. The rights and remedies of RCTC provided in this clause shall not be exclusive
and are in addition to any other rights and remedies provided by law, equity or under
this contract including, but not limited to, the right to specific performance.
h. Notwithstanding the above, RCTC may, without providing an opportunity to cure,
terminate the contract in accordance with the timeframe set forth in Section 17 of the
contract, if RCTC determines such action is in its best interest based on the nature of
the Breach. Such actions shall not limit any of RCTC’s remedies set forth above.
16. Disputes
a. Except as otherwise provided in this Agreement, any dispute concerning a
question of fact arising under this Agreement which is not disposed of by supplemental
agreement shall be
decided by RCTC’s Deputy Executive Director, who shall reduce the decision to writing
and mail or otherwise furnish a copy thereof to the Consultant. The decision of the
RCTC Deputy Executive Director shall be final and conclusive unless, within thirty (30)
days from the date of receipt of such copy, Consultant mails or otherwise furnishes to
the RCTC Deputy Executive Director a written appeal addressed to RCTC's Executive
Director. The decision of RCTC Executive Director or duly authorized representative for
the determination of such appeals shall be final and conclusive.
b. The provisions of this Paragraph shall not be pleaded in any suit involving a
question of fact arising under this Agreement as limiting judicial review of any such
decision to cases where fraud by such official or his representative or board is alleged,
provided, however, that any such decision shall be final and conclusive unless the same
is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply
bad faith or is not supported by substantial evidence. In connection with any appeal
proceeding under this Paragraph, the Consultant shall be afforded an opportunity to be
heard and to offer evidence in support of its appeal.
c. Pending final decision of a dispute hereunder, Consultant shall proceed diligently
with the performance of this Agreement and in accordance with the decision of RCTC's
Deputy Executive Director. This "Disputes" clause does not preclude consideration of
questions of law in connection with decisions provided for above. Nothing in this
Agreement, however, shall be construed as making final the decision of any RCTC
official or representative on a question of law, which questions shall be settled in
accordance with the laws of the State of California.
17. Lobbying
See the Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying
Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] -
Consultants who apply or bid for an award of $100,000 or more shall file the
certification required by 49 CFR part 20, "New Restrictions on Lobbying.” Each tier
certifies to the tier above that it will not and has not used Federal appropriated funds to
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pay any person or organization for influencing or attempting to influence an officer or
employee of any agency, a member of Congress, officer or employee of Congress, or
an employee of a member of Congress in connection with obtaining any Federal
contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also
disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has
made lobbying contacts on its behalf with non-Federal funds with respect to that
Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are
forwarded from tier to tier up to the recipient. The Offeror shall complete and submit
with its bid/proposal the attached Certification Regarding Lobbying, and if applicable,
the Standard Form-LLL, “Disclosure Form to Report Lobbying.”
18. Energy Conservation
The Consultant agrees to comply with mandatory standards and policies relating to
energy efficiency which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act.
19. Clean Water
a. The Consultant 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. The Consultant agrees to report each violation to RCTC and understands
and agrees that RCTC will, in turn, report each violation as required to assure
notification to FTA and the appropriate EPA Regional Office.
d. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List
of Violating Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as
amended, (42 U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as
amended, (33 U.S.C. §§ 1251-1387).
The Consultant also agrees to include these requirements in each subcontract
exceeding $150,000 financed in whole or in part with Federal assistance provided by
FTA.
20. Clean Air
a. The Consultant 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. The Consultant agrees to report each violation to RCTC and understands and
agrees that RCTC will, in turn, report each violation as required to assure notification to
FTA and the appropriate EPA Regional Office.
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b. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List
of Violating Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as
amended, (42 U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as
amended, (33 U.S.C. §§ 1251-1387).
c. The Consultant also agrees to include these requirements in each subcontract
exceeding $150,000 financed in whole or in part with Federal assistance provided by
FTA.
21. Recycled Products
Recovered Materials - The Consultant agrees to comply with all the requirements of
Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended
(42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part
247, and Executive Order
12873, as they apply to the procurement of the items designated in Subpart B of 40
CFR Part 247.
21. SPECIAL PROVISION FOR PROMOTING COVID-19 SAFETY
Section 49. Centers for Disease Control and Prevention Order on Requirements
for Persons to Wear Masks While on Conveyances and at Transportation Hubs.
(a) Compliance with CDC Mask Order. The Centers for Disease Control and Prevention
(“CDC”) Order of January 29, 2021, titled Requirement for Persons to Wear Masks
While on Conveyances and at Transportation Hubs (“CDC Mask Order”), applies to this
Agreement. One of the objectives of the CDC Mask Order is “[m]aintaining a safe and
operating transportation system.” Consultant agrees that it will comply, and will require
all subconsultants to comply, with the CDC Mask Order.
(b) Enforcement for non-compliance. Consultant agrees that FTA and RCTC may take
enforcement action for non-compliance with the CDC Mask Order, including: (1)
enforcement actions authorized by 49 U.S.C. § 5329(g); (2) referring Consultant to the
CDC or other Federal authority for enforcement action; (3) enforcement actions
authorized by 2 CFR §§ 200.339 – .340; and (4) any other enforcement action
authorized by Federal law or regulation.
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22. Safe Operation of Motor Vehicles
Pursuant to Federal Executive Order No. 13043, “Increasing Seat Belt Use in the
United States,” April 16, 1997, 23 U.S.C. Section 402 note, FTA encourages each third
party consultant to adopt and promote on-the-job seat belt use policies and programs
for its employees and other personnel that operate company owned, rented, or
personally operated vehicles, and to include this provision in each third party
subcontract involving the project.
a. The Consultant is encouraged to adopt and promote on-the-job seat belt use policies
and programs for its employees and other personnel that operate company-owned
vehicles, company-rented vehicles, or personally operated vehicles. The terms
“company-owned” and “company-leased” refer to vehicles owned or leased either by
the Consultant or RCTC.
. The Consultant agrees to adopt and enforce workplace safety policies to
decrease crashes
caused by distracted drivers, including policies to ban text messaging while using an
electronic device supplied by an employer, and driving a vehicle the driver owns or
rents, a vehicle Contactor owns, leases, or rents, or a privately-owned vehicle when on
official business in connection with the work performed under this contract.
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17336.00023\34328429.1
Exhibit E-1
EXHIBIT "E"
CERTIFICATE OF CONSULTANT
I HEREBY CERTIFY that I am the _______________________ and duly authorized
representative of the firm of _____________________________________ whose address
is ____________________________________________________, and that, except as
hereby expressly stated, neither I nor the above firm that I represent have:
(a) employed or retained for a commission, percentage, brokerage, contingent
fee, or other consideration, any firm or person (other than a bona fide
employee working solely for me or the above consultant) to solicit or secure
this agreement; nor
(b) agreed, as an express or implied condition for obtaining this Agreement, to
employ or retain the services of any firm or person in connection with carrying
out the agreement; nor
(c) paid, or agreed to pay, to any firm, organization or person (other than a bona
fide employee working solely for me or the above consultant) any fee,
contribution, donation, or consideration of any kind for, or in connection with,
procuring or carrying out this agreement.
I acknowledge that this Certificate is to be made available to the California
Department of Transportation (Caltrans) in connection with this agreement involving
participation of Federal-aid Highway funds, and is subject to applicable State and Federal
laws, both criminal and civil.
By: ____________________________
Signature
____________________________
Name
____________________________
Title
____________________________
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Local Assistance Procedures Manual EXHBIT 10-Q
Disclosure of Lobbying Activities
Page 1
LPP 13-01 May 8, 2013
EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES
COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVITIES PURSUANT TO 31 U.S.C. 1352
1.Type of Federal Action:2.Status of Federal Action:3.Report Type:
a. contract a. bid/offer/application a. initial
b. grant b. initial award b. material change
c. cooperative agreement c. post-award
d. loan For Material Change Only:
e. loan guarantee year ____ quarter _________
f. loan insurance date of last report __________
4.Name and Address of Reporting Entity 5.If Reporting Entity in No. 4 is Subawardee,
Enter Name and Address of Prime:
Prime Subawardee
Tier _______ , if known
Congressional District, if known Congressional District, if known
6.Federal Department/Agency:7.Federal Program Name/Description:
CFDA Number, if applicable ____________________
8.Federal Action Number, if known:9.Award Amount, if known:
10.Name and Address of Lobby Entity 11.Individuals Performing Services
(If individual, last name, first name, MI) (including address if different from No. 10)
(last name, first name, MI)
(attach Continuation Sheet(s) if necessary)
12.Amount of Payment (check all that apply)14.Type of Payment (check all that apply)
$ _____________ actual planned a. retainer
b. one-time fee
13.Form of Payment (check all that apply):c. commission
a. cash d. contingent fee
b. in-kind; specify: nature _______________ e deferred
Value _____________ f. other, specify _________________________
15.Brief Description of Services Performed or to be performed and Date(s) of Service, including
officer(s), employee(s), or member(s) contacted, for Payment Indicated in Item 12:
(attach Continuation Sheet(s) if necessary)
16.Continuation Sheet(s) attached: Yes No
17.Information requested through this form is authorized by Title
31 U.S.C. Section 1352. This disclosure of lobbying reliance
was placed by the tier above when his transaction was made or
entered into. This disclosure is required pursuant to 31 U.S.C.
1352. This information will be reported to Congress
semiannually and will be available for public inspection. Any
person who fails to file the required disclosure shall be subject
to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Signature: ________________________________________
Print Name: _______________________________________
Title: ____________________________________________
________________
Authorized for Local Reproduction
Federal Use Only: Standard Form - LLL
Standard Form LLL Rev. 04-28-06
Distribution: Orig- Local Agency Project Files
APPENDIX L - 1
X
John P. Laurain, MAI, ASA
President
(562) 426-0477Telephone No.: Date: 10-19-2021
THIS FIRM HAS NEVER BEEN INVOLVED IN LOBBYING ACTIVITIES
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Agreement No. 22-31-029-00
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA AND FTA FUNDING ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
SANTOLUCITO DORÈ GROUP, INC.
FOR ON-CALL
RIGHT OF WAY APPRAISAL SERVICES
Parties and Date.
This Agreement is made and entered into this ___ day of _______, 2021,
by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the
Commission") and SANTOLUCITO DORÈ GROUP, INC. ("Consultant"), a Corporation.
The Commission and Consultant are sometimes referred to herein individually as “Party”,
and collectively as the “Parties”.
Recitals.
A.On November 8, 1988, the Voters of Riverside County approved Measure
A authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax
(the "tax") to fund transportation programs and improvements within the County of
Riverside, and adopting the Riverside County Transportation Improvement Plan (the
"Plan").
B.Pursuant to Public Utility Code Sections 240000 et seq., the Commission is
authorized to allocate the proceeds of the Tax in furtherance of the Plan.
C.On November 5, 2002, the voters of Riverside County approved an
extension of the Measure A tax for an additional thirty (30) years for the continued funding
of transportation and improvements within the County of Riverside.
D.A source of funding for payment for on-call professional appraisal services
provided under this Agreement may be Federal Highway Administration (“FHWA”) funds
administered by the California Department of Transportation (“Caltrans”), and/or funds
from the Federal Transit Administration (“FTA”). This Commission may withhold payment
of any federal funds hereunder until the certification shown in Exhibit “F” attached hereto
and incorporated herein by reference, is executed.
E.Consultant desires to perform and assume responsibility for the provision
of certain on-call right of way appraisal services for projects in the County of Riverside,
California. Services shall be provided on the terms and conditions set forth in this
Agreement and in the task order(s) to be solicited, awarded and authorized by
Commission as further described in this Agreement (“Task Order”). Consultant
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represents that it is experienced in providing such services to public clients, is licensed in
the State of California (if necessary) and is familiar with the plans of the Commission.
G. Commission desires to engage Consultant to render such services on an
on-call basis. Services shall be ordered by Task Order(s) to be issued pursuant to this
Agreement for future projects as set forth herein and in each Task Order (each such
project shall be designated a “Project” under this Agreement).
Terms.
1. General Scope of Services. Consultant shall furnish all technical and
professional services, including labor, material, equipment, transportation, supervision
and expertise, and incidental and customary work necessary to fully and adequately
supply the on-call right of way appraisal services for the Projects ("Services"). The
Services are generally described in Exhibit "A" attached hereto and incorporated herein
by reference. The Services shall be more particularly described in the individual Task
Orders issued by the Commission’s Executive Director or designee. No Services shall
be performed unless authorized by a fully executed Task Order. All Services shall be
subject to, and performed in accordance with, this Agreement, the relevant Task Order,
the exhibits attached hereto and incorporated herein by reference, and all applicable
local, state and federal laws, rules and regulations.
2. Task Orders; Commencement of Services; Schedule of Services. Services
under this Agreement shall be requested by the Commission pursuant to Task Order
requests. If Commission accepts Consultant’s Task Order proposal, Commission shall
issue a purchase order or executed task order for the Services (“Commission’s Task
Order Authorization”). Consultant’s agreement to the final terms of a proposed Task
Order, Commission’s Task Order Authorization and Consultant’s commencement of the
Services shall indicate the Parties’ agreement to the terms of the relevant Task Order.
Consultant shall commence Services under a Task Order within five (5)
days of receiving Commission’s Task Order Authorization.
Consultant shall perform the Services expeditiously, in accordance with the
Schedule of Services set forth in a Task Order. Consultant represents that it has the
professional and technical personnel required to perform the Services in conformance
with such conditions. In order to facilitate Consultant's conformance with the Schedule,
Commission shall respond to Consultant's submittals in a timely manner. Upon request
of the Commission, Consultant shall provide a more detailed schedule of anticipated
performance to meet the Schedule of Services.
3. Pre-Award Audit. As a result of the funding for this Project, and to the extent
Caltrans procedures apply in connection therewith, issuance of a “Notice to Proceed” or
other authorization to proceed under a Task Order may be contingent upon completion
and approval of a pre-award audit. Any questions raised during the pre-award audit shall
be resolved before Services are commenced under a Task Order. The funding provided
under this Agreement is contingent on meeting all funding requirements and could be
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withdrawn, thereby entitling the Commission to terminate this Agreement, if the
procedures are not completed. The Consultant’s files shall be maintained in a manner to
facilitate State process reviews. In addition, Caltrans may require that prior to
performance of any work for which funding reimbursement through Caltrans is requested
and provided, that Caltrans must give to Commission an “Authorization to Proceed”.
4. Audit Procedures.
4.1 Consultant and certain subconsultant contracts, including cost
proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract
audit, an incurred cost audit, an Independent Cost Review (ICR) Audit, or a CPA ICR
audit work paper review. If selected for audit or review, this Agreement, Consultant’s cost
proposal and ICR and related work papers, if applicable, will be reviewed to verify
compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances
of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal,
state, or local government officials are allowed full access to the CPA’s work papers
including making copies as necessary. This Agreement, Consultant’s cost proposal, and
ICR shall be adjusted by Consultant and approved by the Commission’s contract
manager to conform to the audit or review recommendations. Consultant agrees that
individual terms of costs identified in the audit report shall be incorporated into this
Agreement by this reference if directed by Commission at its sole discretion. Refusal by
Consultant to incorporate audit or review recommendations, or to ensure that the federal,
state or local governments have access to CPA work papers, will be considered a breach
of the Agreement terms and cause for termination of this Agreement and disallowance
of prior reimbursed costs. Additional audit provisions applicable to this Agreement are
set forth in Sections 22 and 23 of this Agreement.
Section 4.2 and 4.3 shall apply to the extent applicable to the Task Order and funding
source.
4.2 During any Caltrans’ review of the ICR audit work papers created
by the Consultant’s independent CPA, Caltrans will work with the CPA and/or Consultant
toward a resolution of issues that arise during the review. Each party agrees to use its
best efforts to resolve any audit disputes in a timely manner. If Caltrans identifies
significant issues during the review and is unable to issue a cognizant approval letter,
Commission will reimburse the Consultant at an accepted ICR until a FAR (Federal
Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally
Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in
accordance with procedures and guidelines of the American Association of State
Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable
procedures and guidelines is received and approved by Caltrans.
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted
rate reimbursed will be ninety percent (90%) of the proposed rate.
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b. If the proposed rate is between one hundred fifty percent (150%) and two hundred
percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted
rate will be seventy-five percent (75%) of the proposed rate.
4.3 If Caltrans is unable to issue a cognizant letter per Section 4.2
above, Caltrans may require Consultant to submit a revised independent CPA-audited
ICR and audit report within three (3) months of the effective date of the Caltrans’
management letter. Caltrans will then have up to six (6) months to review the
Consultant’s and/or the independent CPA’s revisions.
If the Consultant fails to comply with the provisions of this Section 4, or if
Caltrans is still unable to issue a cognizant approval letter after the revised independent
CPA audited ICR is submitted, overhead cost reimbursement will be limited to the
accepted ICR that was established upon initial rejection of the ICR and set forth in
Section 4.2 above for all rendered services. In this event, this accepted ICR will become
the actual and final ICR for reimbursement purposes under this Agreement.
Consultant may submit to Commission final invoice only when all of the
following items have occurred: (1) Caltrans accepts or adjusts the original or revised
independent CPA audited ICR; (2) all work under this Agreement has been completed
to the satisfaction of Commission; and (3) Caltrans has issued its final ICR review letter.
The Consultant must submit its final invoice to Commission no later than sixty (60)
calendar days after occurrence of the last of these items. The accepted ICR will apply
to this Agreement and all Task Orders issued under this Agreement, and all other
agreements executed between the Commission and the Consultant, either as a prime or
subconsultant, with the same fiscal period ICR.
5. Term.
5.1 This Agreement shall go into effect on the date first set forth above,
contingent upon approval by Commission, and Consultant shall commence work after
notification to proceed by Commission’s Contract Administrator. This Agreement shall
end on December 31, 2025, unless extended by contract amendment.
Notwithstanding the foregoing, Caltrans and/or FHWA funded Task Orders
shall be completed within thirty-six (36) months of the Effective Date, unless approval of
Caltrans is obtained from the Commission.
5.2 Consultant is advised that any recommendation for contract award
is not binding on Commission until this Agreement is fully executed and approved by the
Commission.
5.3 This Agreement shall remain in effect until the date set forth above,
unless earlier terminated as provided herein. Consultant shall complete the Services
within the term of this Agreement, and shall meet any other established schedules and
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deadlines. All applicable indemnification provisions of this Agreement shall remain in
effect following the termination of this Agreement.
6. Commission's Contract Administrator. The Commission hereby designates
the Commission's Executive Director, or his or her designee, to act as its Contract
Administrator for the performance of this Agreement ("Commission’s Contract
Administrator"). Commission’s Contract Administrator shall have the authority to act on
behalf of the Commission for all purposes under this Agreement. Commission’s Contract
Administrator shall also review and give approval, as needed, to the details of
Consultant's work as it progresses. Consultant shall not accept direction or orders from
any person other than the Commission’s Contract Administrator or his or her designee.
7. Consultant's Representative. Consultant hereby Christine S. Santolucito
to act as its Representative for the performance of this Agreement ("Consultant’s
Representative"). Consultant's Representative shall have full authority to act on behalf
of Consultant for all purposes under this Agreement. The Consultant’s Representative
shall supervise and direct the Services, using his or her professional skill and attention,
and shall be responsible for all means, methods, techniques, sequences and procedures
and for the satisfactory coordination of all portions of the Services under this Agreement.
Consultant shall work closely and cooperate fully with Commission’s Contract
Administrator and any other agencies which may have jurisdiction over, or an interest in,
the Services. Consultant's Representative shall be available to the Commission staff at
all reasonable times. Any substitution in Consultant's Representative shall be approved
in writing by Commission’s Contract Administrator.
8. Substitution of Key Personnel. Consultant has represented to the
Commission that certain key personnel will perform and coordinate the Services under
this Agreement. Should one or more of such personnel become unavailable, Consultant
may substitute other personnel of at least equal competence upon written approval by the
Commission. In the event that the Commission and Consultant cannot agree as to the
substitution of the key personnel, the Commission shall be entitled to terminate this
Agreement for cause, pursuant to the provisions herein. The key personnel for
performance of this Agreement are: Christine S. Santolucito and Lance W. Dorè, or
as otherwise identified in the Task Order.
9. Standard of Care; Licenses. Consultant represents and maintains that it is
skilled in the professional calling necessary to perform all Services, duties and obligations
required by this Agreement to fully and adequately complete the Project. Consultant shall
perform the Services and duties in conformance to and consistent with the standards
generally recognized as being employed by professionals in the same discipline in the
State of California. Consultant warrants that all employees and subcontractors shall have
sufficient skill and experience to perform the Services assigned to them. Consultant
further represents and warrants to the Commission that its employees and subcontractors
have all licenses, permits, qualifications and approvals of whatever nature that are legally
required to perform the Services, and that such licenses and approvals shall be
maintained throughout the term of this Agreement. Consultant shall perform, at its own
cost and expense and without reimbursement from the Commission, any services
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necessary to correct errors or omissions which are caused by the Consultant’s failure to
comply with the standard of care provided for herein, and shall be fully responsible to the
Commission for all damages and other liabilities provided for in the indemnification
provisions of this Agreement arising from the Consultant’s errors and omissions. Any
employee of Consultant or its sub-consultants who is determined by the Commission to
be uncooperative, incompetent, a threat to the adequate or timely completion of the
Project, a threat to the safety of persons or property, or any employee who fails or refuses
to perform the Services in a manner acceptable to the Commission, shall be promptly
removed from the Project by the Consultant and shall not be re-employed to perform any
of the Services or to work on the Project.
10. Independent Contractor. The Services shall be performed by Consultant or
under its supervision. Consultant will determine the means, methods and details of
performing the Services subject to the requirements of this Agreement. Commission
retains Consultant on an independent contractor basis and not as an employee, agent or
representative of the Commission. Consultant retains the right to perform similar or
different services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Consultant shall at all times
be under Consultant's exclusive direction and control. Consultant shall pay all wages,
salaries and other amounts due such personnel in connection with their performance of
Services and as required by law. Consultant shall be responsible for all reports and
obligations respecting such personnel, including but not limited to, social security taxes,
income tax withholdings, unemployment insurance, disability insurance, and workers'
compensation insurance.
11. Project Progress.
11.1 Modification of the Schedule. Consultant shall regularly report to
the Commission, through correspondence or progress reports, its progress in providing
required Services within the scheduled time periods. Commission shall be promptly
informed of all anticipated delays. In the event that Consultant determines that a
schedule modification is necessary, Consultant shall promptly submit a revised Schedule
of Services for approval by Commission’s Contract Administrator.
11.2 Trend Meetings. Consultant shall conduct trend meetings with the
Commission’s Contract Administrator and other interested parties, as requested by the
Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a
standard day and time. These trend meetings will encompass focused and informal
discussions concerning scope, schedule, and current progress of Services, relevant cost
issues, and future Project objectives. Consultant shall be responsible for the preparation
and distribution of meeting agendas to be received by the Commission and other
attendees no later than three (3) working days prior to the meeting.
11.3 Progress Reports. As part of its monthly invoice, Consultant shall
submit a progress report, in a form determined by the Commission, which will indicate
the progress achieved during the previous month in relation to the Schedule of Services.
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Submission of such progress report by Consultant shall be a condition precedent to
receipt of payment from the Commission for each monthly invoice submitted.
12. Delay in Performance.
12.1 Excusable Delays. Should Consultant be delayed or prevented
from the timely performance of any act or Services required by the terms of the
Agreement by reason of acts of God or of the public enemy, acts or omissions of the
Commission or other governmental agencies in either their sovereign or contractual
capacities, fires, floods, pandemics, epidemics, quarantine restrictions, strikes, freight
embargoes or unusually severe weather, performance of such act shall be excused for
the period of such delay.
12.2 Written Notice. If Consultant believes it is entitled to an extension
of time due to conditions set forth in subsection 12.1, Consultant shall provide written
notice to the Commission within seven (7) working days from the time Consultant knows,
or reasonably should have known, that performance of the Services will be delayed due
to such conditions. Failure of Consultant to provide such timely notice shall constitute a
waiver by Consultant of any right to an excusable delay in time of performance.
12.3 Mutual Agreement. Performance of any Services under this
Agreement may be delayed upon mutual agreement of the Parties. Upon such
agreement, Consultant's Schedule of Services shall be extended as necessary by the
Commission. Consultant shall take all reasonable steps to minimize delay in completion,
and additional costs, resulting from any such extension.
13. Preliminary Review of Work. All reports, working papers, and similar work
products prepared for submission in the course of providing Services under this
Agreement shall be submitted to the Commission’s Contract Administrator in draft form,
and the Commission may require revisions of such drafts prior to formal submission and
approval. In the event plans and designs are to be developed as part of the Project, final
detailed plans and designs shall be contingent upon obtaining environmental clearance
as may be required in connection with Federal funding. In the event that Commission’s
Contract Administrator, in his or her sole discretion, determines the formally submitted
work product to be not in accordance with the standard of care established under this
Agreement, Commission’s Contract Administrator may require Consultant to revise and
resubmit the work at no cost to the Commission.
14. Appearance at Hearings. If and when required by the Commission,
Consultant shall render assistance at public hearings or other meetings related to the
Project or necessary to the performance of the Services. However, Consultant shall not
be required to, and will not, render any decision, interpretation or recommendation
regarding questions of a legal nature or which may be construed as constituting a legal
opinion.
15. Opportunity to Cure; Inspection of Work. Commission may provide
Consultant an opportunity to cure, at Consultant's expense, all errors and omissions
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which may be disclosed during Project implementation. Should Consultant fail to make
such correction in a timely manner, such correction may be made by the Commission,
and the cost thereof charged to Consultant. Consultant shall allow the Commission’s
Contract Administrator and Caltrans to inspect or review Consultant's work in progress at
any reasonable time.
16. Final Acceptance. Upon determination by the Commission that Consultant
has satisfactorily completed the Services required under this Agreement and within the
term set forth herein the Commission shall give Consultant a written Notice of Final
Acceptance. Upon receipt of such notice, Consultant shall incur no further costs
hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may
request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily
completed all Services required under the terms of this Agreement. In the event
copyrights are permitted under this Agreement, then in connection with Federal funding,
it is hereby acknowledged and agreed that the United States Department of
Transportation shall have the royalty-free non-exclusive and irrevocable right to
reproduce, publish, or otherwise use, and to authorize others to use, the work for
governmental purposes.
17. Laws and Regulations. Consultant shall keep itself fully informed of and in
compliance with all local, state and federal laws, rules and regulations in any manner
affecting the performance of the Project or the Services, including all Cal/OSHA
requirements, and shall give all notices required by law. For example, and not by way of
limitation, Consultant shall keep itself fully informed of and in compliance with all
implementing regulations, design standards, specifications, previous commitments that
must be incorporated in the design of the Project, and administrative controls including
those of the United States Department of Transportation. Compliance with Federal
procedures may include completion of the applicable environmental documents and
approved by the United States Department of Transportation. For example, and not by
way of limitation, a signed Categorical Exclusion, Finding of No Significant Impact, or
published Record of Decision may be required to be approved and/or completed by the
United States Department of Transportation. For Consultant shall be liable for all
violations of such laws and regulations in connection with Services. If the Consultant
performs any work knowing it to be contrary to such laws, rules and regulations and
without giving written notice to the Commission, Consultant shall be solely responsible
for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission,
its officials, directors, officers, employees and agents free and harmless, pursuant to the
indemnification provisions of this Agreement, from any claim or liability arising out of any
failure or alleged failure to comply with such laws, rules or regulations.
18. Fees and Payment.
18.1 The method of payment for this Agreement will be based on actual
cost. Commission shall reimburse Consultant for actual costs (including labor costs,
employee benefits, travel, equipment rental costs, overhead and other direct costs)
incurred by Consultant in performance of the Services. Consultant shall not be
reimbursed for actual costs that exceed the estimated wage rates, employee benefits,
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travel, equipment rental, overhead, and other estimated costs set forth in the approved
Consultant cost proposal attached hereto as Exhibit “B” and incorporated herein by
reference, or any cost proposal included as part of a Task Order (“Cost Proposal”) unless
additional reimbursement is provided for by written amendment. In no event, shall
Consultant be reimbursed for overhead costs at a rate that exceeds Commission’s
approved overhead rate set forth in the Cost Proposal. To the extent legally permissible,
Consultant’s approved overhead rate shall be fixed for the term of this Agreement. In the
event that Commission determines that a change to the Services from that specified in
the Cost Proposal, this Agreement or any Task Order is required, the Agreement time or
actual costs reimbursable by Commission shall be adjusted by written amendment to
accommodate the changed work. The maximum total cost as specified in Section 18.8
shall not be exceeded, unless authorized by a written amendment.
18.2 Reimbursement for transportation and subsistence costs shall not
exceed the rates specified in the approved Cost Proposal. In addition, payments to
Consultant for travel and subsistence expenses claimed for reimbursement or applied
as local match credit shall not exceed rates authorized to be paid exempt non-
represented State employees under current State Department of Personnel
Administration (DPA) rules, unless otherwise authorized by Commission. If the rates
invoiced are in excess of those authorized DPA rates, and Commission has not
otherwise approved said rates, then Consultant is responsible for the cost difference and
any overpayments shall be reimbursed to the Commission on demand.
18.3 When milestone cost estimates are included in the approved Cost
Proposal for a Task Order, Consultant shall obtain prior written approval for a revised
milestone cost estimate from the Contract Administrator before exceeding such cost
estimate.
18.4 Progress payments shall be made monthly in arrears based on
Services provided and allowable incurred costs. If Consultant fails to submit the required
deliverable items according to the schedule set forth in the Scope of Services,
Commission shall have the right to delay payment or terminate this Agreement in
accordance with the provisions of Section 20, Termination.
18.5 No payment shall be made prior to approval of any Services, nor for
any Services performed prior to approval of this Agreement.
18.6 Consultant shall be reimbursed, as promptly as fiscal procedures
will permit upon receipt by Commission’s Contract Administrator of itemized invoices in
triplicate. Invoices shall be submitted no later than 45 calendar days after the
performance of work for which Consultant is billing. Invoices shall detail the work
performed on each milestone and each project as applicable. Invoices shall follow the
format stipulated for the approved Cost Proposal and shall reference this Agreement
number and project title. Final invoice must contain the final cost and all credits due
Commission including any equipment purchased under the Equipment Purchase
provisions of this Agreement. The final invoice should be submitted within 60 calendar
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days after completion of Consultant’s work. Invoices shall be mailed to Commission’s
Contract Administrator at the following address:
Riverside County Transportation Commission
Attention: Accounts Payable
P.O. 12008
Riverside, CA 92502
18.7 The total amount payable by Commission, shall not exceed the
amount set forth in each Task Order.
18.8 Commission has or will enter into five (5) task order contracts for
performance of the Scope of Services identified in Exhibit “A”, including this Agreement
(“On-Call ROW Appraisal Task Order Contracts”). The other On-Call ROW Appraisal
Task Order Contracts are Hawran & Malm, LLC, 22-31-009-00; Hennessey &
Hennessey, LLC 22-31-026-00; Integra Realty Resources – Los Angeles, 22-31-027-00;
and R.P. Laurain & Associates, Inc., 22-31-028-00. The total amount payable by
Commission for the On-Call ROW Appraisal Task Order Contracts shall not exceed a
cumulative maximum total value of One Million Dollars ($1,000,000) (“NTE Sum”). It is
understood and agreed that there is no guarantee, either expressed or implied that this
dollar amount will be authorized under the On-Call ROW Appraisal Task Order Contracts
through Task Orders. Each time a Task Order is awarded under any of the On-Call ROW
Appraisal Task Order Contracts, Commission must send written notification to
Consultant and each of the other consultants entering into the On-Call ROW Appraisal
Task Order Contracts. The notice must identify the total funds allocated under issued
Task Orders, and the remaining unencumbered amount of the NTE Sum. Consultant
acknowledges and agrees that Commission must not pay any amount under this
Agreement that would exceed the NTE Sum, and Consultant must not enter into a Task
Order that exceeds the NTE Sum.
18.9 Salary increases shall be reimbursable if the new salary is within the
salary range identified in the approved Cost Proposal and is approved by Commission’s
Contract Administrator. For personnel subject to prevailing wage rates as described in
the California Labor Code, all salary increases, which are the direct result of changes in
the prevailing wage rates are reimbursable.
18.10 Consultant shall not be reimbursed for any expenses unless
authorized in writing by the Commission’s Contract Administrator.
18.11 All subcontracts in excess of $25,000 shall contain the above
provisions.
19. Disputes.
19.1 Any dispute, other than audit, concerning a question of fact arising
under this Agreement that is not disposed of by mutual agreement of the Parties shall
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be decided by a committee consisting of RCTC’s Contract Administrator and the Director
of Capital Projects, who may consider written or verbal information submitted by
Consultant.
19.2 Not later than 30 days after completion of all Services under this
Agreement, Consultant may request review by the Commission’s Executive Director of
unresolved claims or disputes, other than audit. The request for review will be submitted
in writing.
19.3 Neither the pendency of a dispute, nor its consideration by the
committee will excuse Consultant from full and timely performance in accordance with
the terms of this Agreement.
20. Termination.
20.1 Commission reserves the right to terminate this Agreement upon
thirty (30) calendar days written notice to Consultant, for any or no reason, with the
reasons for termination stated in the notice. Commission may terminate Services under
a Task Order, at any time, for any or no reason, with the effective date of termination to
be specified in the notice of termination of Task Order.
20.2 Commission may terminate this Agreement with Consultant should
Consultant fail to perform the covenants herein contained at the time and in the manner
herein provided. In the event of such termination, Commission may proceed with the
Services in any manner deemed proper by Commission. If Commission terminates this
Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant
under this Agreement for Services completed and accepted prior to termination, unless
the cost of completion to Commission exceeds the funds remaining in the Agreement. In
such case, the overage shall be deducted from any sum due Consultant under this
Agreement and the balance, if any, shall be paid to Consultant upon demand.
20.3 In addition to the above, payment upon termination shall include a
prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit
on unperformed Services. Consultant shall provide documentation deemed adequate by
Commission’s Contract Administrator to show the Services actually completed by
Consultant prior to the effective date of termination. This Agreement shall terminate on
the effective date of the Notice of Termination
20.4 Upon receipt of the written Notice of Termination, Consultant shall
discontinue all affected Services as directed in the Notice or as otherwise provided
herein, and deliver to the Commission all Documents and Data, as defined in this
Agreement, as may have been prepared or accumulated by Consultant in performance
of the Services, whether completed or in progress.
20.5 In addition to the above, Consultant shall be liable to the
Commission for any reasonable additional costs incurred by the Commission to revise
work for which the Commission has compensated Consultant under this Agreement, but
which the Commission has determined in its sole discretion needs to be revised, in part
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or whole, to complete the Project because it did not meet the standard of care
established in this Agreement. Termination of this Agreement for cause may be
considered by the Commission in determining whether to enter into future agreements
with Consultant.
20.6 The rights and remedies of the Parties provided in this Section are
in addition to any other rights and remedies provided by law or under this Agreement.
20.7 Consultant, in executing this Agreement, shall be deemed to have
waived any and all claims for damages which may otherwise arise from the
Commission's termination of this Agreement, for convenience or cause, as provided in
this Section.
20.8 Consultant may not terminate this Agreement except for cause
20.9 In addition to the termination rights above, Commission may
temporarily suspend the Services under any Task Order(s), at no additional cost to
Commission, provided that Consultant is given written notice of temporary suspension.
If Commission gives such notice of temporary suspension, Consultant shall immediately
suspend its activities under the relevant Task Order(s). A temporary suspension may
be issued concurrent with a notice of termination.
21. Cost Principles and Administrative Requirements.
21.1 Consultant agrees that the Contract Cost Principles and
Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000
et seq., shall be used to determine the cost allowability of individual items.
21.2 Consultant also agrees to comply with federal procedures in
accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards.
21.3 Any costs for which payment has been made to CONSULTANT that
are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48
CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are
subject to repayment by Consultant to Commission.
21.4 All subcontracts in excess of $25,000 shall contain the above
provisions.
22. Retention of Records/Audit. For the purpose of determining compliance
with, as applicable, 2 CFR Part 200, Public Contract Code 10115, et seq. and Title 21,
California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and
other matters connected with the performance of this Agreement pursuant to Government
Code 8546.7; Consultant, subconsultants, and Commission shall maintain and make
available for inspection all books, documents, papers, accounting records, and other
evidence pertaining to the performance of this Agreement, including but not limited to, the
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costs of administering this Agreement. All parties shall make such materials available at
their respective offices at all reasonable times during the Agreement period and for three
years from the date of final payment under this Agreement. The State, State Auditor,
Commission, or any duly authorized representative of the State or Federal Government
shall have access to any books, records, and documents of Consultant and it’s certified
public accountants (CPA) work papers that are pertinent to this Agreement and, if
applicable, indirect cost rates (ICR) for audit, examinations, excerpts, and transactions,
and copies thereof shall be furnished if requested. Subcontracts in excess of $25,000
shall contain this provision.
23.1 Accounting System. Consultant and its subcontractors shall
establish and maintain an accounting system and records that properly accumulate and
segregate expenditures by line item for the Services. The accounting system of
Consultant and its subcontractors shall conform to Generally Accepted Accounting
Principles (GAAP), enable the determination of incurred costs at interim points of
completion, and provide support for reimbursement payment vouchers or invoices.
23. Audit Review Procedures.
23.1 Any dispute concerning a question of fact arising under an interim
or post audit of this Agreement that is not disposed of by agreement, shall be reviewed
by Commission’s Chief Financial Officer.
23.2 Not later than 30 days after issuance of the final audit report,
Consultant may request a review by Commission’s Chief Financial Officer of unresolved
audit issues. The request for review will be submitted in writing.
23.3 Neither the pendency of a dispute nor its consideration by
Commission shall excuse Consultant from full and timely performance, in accordance
with the terms of this Agreement.
24. Subcontracting.
24.1 Nothing contained in this Agreement or otherwise, shall create any
contractual relation between Commission and any subconsultant(s), and no subcontract
shall relieve Consultant of its responsibilities and obligations hereunder. Consultant
agrees to be as fully responsible to Commission for the acts and omissions of its
subconsultant(s) and of persons either directly or indirectly employed by any of them as
it is for the acts and omissions of persons directly employed by Consultant. Consultant’s
obligation to pay its subconsultant(s) is an independent obligation from Commission’s
obligation to make payments to the Consultant.
24.2 Consultant shall perform the Services contemplated with resources
available within its own organization and no portion of the Services pertinent to this
Agreement shall be subcontracted without written authorization by Commission’s
Contract Administrator, except that, which is expressly identified in the approved Cost
Proposal.
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24.3 Consultant shall pay its subconsultants within ten (10) calendar
days from receipt of each payment made to Consultant by Commission.
24.4 Any subcontract in excess of $25,000 entered into as a result of this
Agreement shall contain all the provisions stipulated in this Agreement to be applicable
to subconsultants.
24.5 Any substitution of subconsultant(s) must be approved in writing by
Commission’s Contract Administrator prior to the start of work by the subconsultant(s).
24.6 Exhibit “B” may set forth the rates at which each subconsultant shall
bill the Consultant for Services and that are subject to reimbursement by the Commission
to Consultant. Additional Direct Costs, as defined in Exhibit “B” shall be the same for
both the Consultant and all subconsultants, unless otherwise identified in Exhibit “B” or
in a Task Order. The subconsultant rate schedules and cost proposals contained herein
are for accounting purposes only.
25. Equipment Purchase
25.1 Prior authorization, in writing, by Commission’s Contract
Administrator shall be required before Consultant enters into any unbudgeted purchase
order, or subcontract for supplies, equipment, or services. Consultant shall provide an
evaluation of the necessity or desirability of incurring such costs.
25.2 For purchase of any item, service or consulting work not covered in
the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s
Contract Administrator is required. Three competitive quotations must be submitted with
the request for such purchase, or the absence of bidding must be adequately justified.
25.3 Any equipment purchased as a result of this Agreement is subject
to the following: Consultant shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an
acquisition cost of $5,000 or more. If the purchased equipment needs replacement and
is sold or traded in, Commission shall receive a proper refund or credit at the conclusion
of this Agreement, or if this Agreement is terminated, Consultant may either keep the
equipment and credit Commission in an amount equal to its fair market value, or sell
such equipment at the best price obtainable at a public or private sale, in accordance
with established Commission procedures; and credit Commission in an amount equal to
the sales price. If Consultant elects to keep the equipment, fair market value shall be
determined at Consultant’s expense, on the basis of a competent independent appraisal
of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable
to by Commission and Consultant. If Consultant determines to sell the equipment, the
terms and conditions of such sale must be approved in advance by Commission. 2 CFR,
Part 200 requires a credit to Federal funds when participating equipment with a fair
market value greater than $5,000 is credited to the Project.
25.4 All subcontracts in excess $25,000 shall contain the above
provisions.
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26. Labor Code Requirements.
26.1 By its execution of this Agreement, Consultant certifies that it is
aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et
seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing
Wage Laws”), which require the payment of prevailing wage rates and the performance
of other requirements on certain “public works” and “maintenance” projects. If the
Services are being performed as part of an applicable “public works” or “maintenance”
project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000
or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Copies of
the prevailing rate of per diem wages are on file at the Commission’s offices. Consultant
shall make copies of the prevailing rates of per diem wages for each craft, classification
or type of worker needed to execute the Services available to interested parties upon
request, and shall post copies at the Consultant’s principal place of business and at the
project site. Consultant shall defend, indemnify and hold the Commission, its elected
officials, officers, employees and agents free and harmless from any claims, liabilities,
costs, penalties or interest arising out of any failure or alleged failure to comply with the
Prevailing Wage Laws.
26.2 DIR Registration. If the Services are being performed as part of an
applicable “public works” or “maintenance” project, then pursuant to Labor Code
Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered
with the Department of Industrial Relations. Consultant shall maintain registration for the
duration of the Project and require the same of any subconsultants. This Project may
also be subject to compliance monitoring and enforcement by the Department of
Industrial Relations. It shall be Consultant’s sole responsibility to comply with all
applicable registration and labor compliance requirements.
26.3 Eight-Hour Law. Pursuant to the provisions of the California Labor
Code, eight hours of labor shall constitute a legal day’s work, and the time of service of
any worker employed on the work shall be limited and restricted to eight hours during
any one calendar day, and forty hours in any one calendar week, except when payment
for overtime is made at not less than one and one-half the basic rate for all hours worked
in excess of eight hours per day (“Eight-Hour Law”), unless Consultant or the Services
are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a
penalty, $50.00 for each worker employed in the execution of this Agreement by him, or
by any sub-consultant under him, for each calendar day during which such workman is
required or permitted to work more than eight hours in any calendar day and forty hours
in any one calendar week without such compensation for overtime violation of the
provisions of the California Labor Code, unless Consultant or the Services are not
subject to the Eight-Hour Law.
26.4 Employment of Apprentices. This Agreement shall not prevent the
employment of properly indentured apprentices in accordance with the California Labor
Code, and no employer or labor union shall refuse to accept otherwise qualified
employees as indentured apprentices on the work performed hereunder solely on the
ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice
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shall be paid the standard wage paid to apprentices under the regulations of the craft or
trade in which he or she is employed and shall be employed only in the craft or trade to
which he or she is registered.
If California Labor Code Section 1777.5 applies to the Services, Consultant and
any subcontractor hereunder who employs workers in any apprenticeable craft or trade
shall apply to the joint apprenticeship council administering applicable standards for a
certificate approving Consultant or any sub-consultant for the employment and training of
apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall
employ the number of apprentices provided for therein, as well as contribute to the fund
to administer the apprenticeship program in each craft or trade in the area of the work
hereunder.
The parties expressly understand that the responsibility for compliance with
provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California
Labor Code in regard to all apprenticeable occupations lies with Consultant.
27. Ownership of Materials/Confidentiality.
27.1 Documents & Data. This Agreement creates an exclusive and
perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all
copyrights and designs embodied in plans, specifications, studies, drawings, estimates,
materials, data and other documents or works of authorship fixed in any tangible medium
of expression, including but not limited to, physical drawings or data magnetically or
otherwise recorded on computer diskettes, which are prepared or caused to be prepared
by Consultant under this Agreement (“Documents & Data”).
Consultant shall require all subcontractors to agree in writing that
Commission is granted an exclusive and perpetual license for any Documents & Data the
subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal
right to grant the exclusive and perpetual license for all such Documents & Data.
Consultant makes no such representation and warranty in regard to Documents & Data
which were prepared by design professionals other than Consultant or provided to
Consultant by the Commission.
Commission shall not be limited in any way in its use of the
Documents & Data at any time, provided that any such use not within the purposes
intended by this Agreement shall be at Commission’s sole risk.
27.2 Intellectual Property. In addition, Commission shall have and retain
all right, title and interest (including copyright, patent, trade secret and other proprietary
rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer
programs or software and source code, enhancements, documents, and any and all
works of authorship fixed in any tangible medium or expression, including but not limited
to, physical drawings or other data magnetically or otherwise recorded on computer
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media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under
this Agreement as well as any other such Intellectual Property prepared or developed by
or on behalf of Consultant under this Agreement.
The Commission shall have and retain all right, title and interest in
Intellectual Property developed or modified under this Agreement whether or not paid for
wholly or in part by Commission, whether or not developed in conjunction with Consultant,
and whether or not developed by Consultant. Consultant will execute separate written
assignments of any and all rights to the above referenced Intellectual Property upon
request of Commission.
Consultant shall also be responsible to obtain in writing separate
written assignments from any subcontractors or agents of Consultant of any and all right
to the above referenced Intellectual Property. Should Consultant, either during or
following termination of this Agreement, desire to use any of the above-referenced
Intellectual Property, it shall first obtain the written approval of the Commission.
All materials and documents which were developed or prepared by
the Consultant for general use prior to the execution of this Agreement and which are not
the copyright of any other party or publicly available and any other computer applications,
shall continue to be the property of the Consultant. However, unless otherwise identified
and stated prior to execution of this Agreement, Consultant represents and warrants that
it has the right to grant the exclusive and perpetual license for all such Intellectual Property
as provided herein.
Commission further is granted by Consultant a non-exclusive and
perpetual license to copy, use, modify or sub-license any and all Intellectual Property
otherwise owned by Consultant which is the basis or foundation for any derivative,
collective, insurrectional, or supplemental work created under this Agreement.
27.3 Confidentiality. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents and Data either created by or provided to Consultant
in connection with the performance of this Agreement shall be held confidential by
Consultant. Such materials shall not, without the prior written consent of Commission,
be used by Consultant for any purposes other than the performance of the Services. Nor
shall such materials be disclosed to any person or entity not connected with the
performance of the Services or the Project. Nothing furnished to Consultant which is
otherwise known to Consultant or is generally known, or has become known, to the
related industry shall be deemed confidential. Consultant shall not use Commission's
name or insignia, photographs of the Project, or any publicity pertaining to the Services
or the Project in any magazine, trade paper, newspaper, television or radio production
or other similar medium without the prior written consent of Commission.
27.4 Infringement Indemnification. Consultant shall defend, indemnify
and hold the Commission, its directors, officials, officers, employees, volunteers and
agents free and harmless, pursuant to the indemnification provisions of this Agreement,
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for any alleged infringement of any patent, copyright, trade secret, trade name,
trademark, or any other proprietary right of any person or entity in consequence of the
use on the Project by Commission of the Documents & Data, including any method,
process, product, or concept specified or depicted.
28. Indemnification. To the fullest extent permitted by law, Consultant shall
defend, indemnify and hold Commission, Caltrans and their directors, officials, officers,
employees, consultants, volunteers, and agents free and harmless from any and all
claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in
law or equity, to property or persons, including wrongful death, inverse condemnation,
and any claims related to property acquisition and relocation rules or failure to detect or
abate hazardous materials, which are brought by a third party, and which , in any manner
arise out of or are incident to alleged negligent acts, omissions, or willful misconduct of
Consultant, its officials, officers, employees, agents, consultants, and contractors arising
out of or in connection with the performance of the Services, the Project or this
Agreement, including without limitation the payment of consequential damages, expert
witness fees, and attorney’s fees and other related costs and expenses. Consultant shall
defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits,
actions or other legal proceedings of every kind that may be brought or instituted against
Commission, Caltrans, and their directors, officials, officers, employees, consultants,
agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree
that may be rendered against Commission, Caltrans or their directors, officials, officers,
employees, consultants, agents, or volunteers, in any such suit, action or other legal
proceeding. Consultant shall reimburse Commission, Caltrans and their directors,
officials, officers, employees, consultants, agents, and/or volunteers, for any and all legal
expenses and costs, including reasonable attorney’s fees, incurred by each of them in
connection therewith or in enforcing the indemnity herein provided. Consultant's
obligation to indemnify shall not be restricted to insurance proceeds, if any, received by
Commission, Caltrans or their directors, officials officers, employees, consultants, agents,
or volunteers. Notwithstanding the foregoing, to the extent Consultant’s Services are
subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent
required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to
the negligence, recklessness, or willful misconduct of the Consultant. Consultant’s
obligations as set forth in this Section 28 shall survive expiration or termination of this
Agreement.
29. Insurance.
29.1 Time for Compliance. Consultant shall not commence work under
this Agreement until it has provided evidence satisfactory to the Commission that it has
secured all insurance required under this Section, in a form and with insurance
companies acceptable to the Commission. In addition, Consultant shall not allow any
subcontractor to commence work on any subcontract until it has secured all insurance
required under this Section.
29.2 Minimum Requirements. Consultant shall, at its expense, procure
and maintain for the duration of the Agreement insurance against claims for injuries to
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persons or damages to property which may arise from or in connection with the
performance of the Agreement by the Consultant, its agents, representatives, employees
or subcontractors. Consultant shall also require all of its subcontractors to procure and
maintain the same insurance for the duration of the Agreement. Such insurance shall
meet at least the following minimum levels of coverage:
(a) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent);
(2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA
0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and
Employer’s Liability: Workers’ Compensation insurance as required by the State of
California and Employer’s Liability Insurance.
(b) Minimum Limits of Insurance. Consultant shall maintain limits
no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form with
general aggregate limit is used, either the general aggregate limit shall apply separately
to this Agreement/location or the general aggregate limit shall be twice the required
occurrence limit. Limits may be achieved by any combination of primary and excess or
umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily
injury and property damage. Limits may be achieved by any combination of primary and
excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation limits as required by the Labor Code of the State of
California. Employer’s Practices Liability limits of $1,000,000 per accident.
29.3 Professional Liability. Consultant shall procure and maintain, and
require its sub-consultants to procure and maintain, for a period of five (5) years following
completion of the Project, errors and omissions liability insurance appropriate to their
profession. For Consultant, such insurance shall be in an amount not less than
$1,000,000 per claim. This insurance shall be endorsed to include contractual liability
applicable to this Agreement and shall be written on a policy form coverage specifically
designed to protect against acts, errors or omissions of the Consultant. “Covered
Professional Services” as designated in the policy must specifically include work
performed under this Agreement. The policy must “pay on behalf of” the insured and
must include a provision establishing the insurer's duty to defend. Subconsultants of
Consultant shall obtain such insurance in an amount not less than $1,000,000 per claim.
Notwithstanding the foregoing, the Commission may consider written requests to lower
or dispense with the errors and omissions liability insurance requirement contained in
this Section for certain subconsultants of Consultant, on a case-by-case basis,
depending on the nature and scope of the Services to be provided by the subconsultant.
Approval of such request shall be in writing, signed by the Commission’s Contract
Administrator.
29.4 Aircraft Liability Insurance. Prior to conducting any Services
requiring use of aircraft, Consultant shall procure and maintain, or cause to be procured
and maintained, aircraft liability insurance or equivalent form, with a single limit as shall
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be required by the Commission. Such insurance shall include coverage for owned, hired
and non-owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, Caltrans and their directors, officials, officers, employees and agents as
additional insureds with respect to the Services or operations performed by or on behalf
of the Consultant.
29.5 Insurance Endorsements. The insurance policies shall contain the
following provisions, or Consultant shall provide endorsements on forms approved by
the Commission to add the following provisions to the insurance policies:
(a) General Liability.
(i) Commercial General Liability Insurance must include
coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury;
(3) premises/operations liability; (4) products/completed operations liability; (5) aggregate
limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion
deleted; (7) contractual liability with respect to this Agreement; (8) broad form property
damage; and (9) independent consultants coverage.
(ii) The policy shall contain no endorsements or provisions
limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits
by one insured against another; or (3) contain any other exclusion contrary to this
Agreement.
(iii) The policy shall give the Commission, its directors,
officials, officers, employees, and agents insured status using ISO endorsement forms 20
10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the policy shall
be “primary and non-contributory” and will not seek contribution from the Commission’s
or Caltrans’ insurance or self-insurance and shall be at least as broad as CG 20 01 04
13, or endorsements providing the exact same coverage.
(b) Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) the Commission, Caltrans and their directors, officials, officers,
employees and agents shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned, leased,
hired or borrowed by the Consultant or for which the Consultant is responsible; and (2)
the insurance coverage shall be primary insurance as respects the Commission, Caltrans
and their directors, officials, officers, employees and agents, or if excess, shall stand in
an unbroken chain of coverage excess of the Consultant’s scheduled underlying
coverage. Any insurance or self-insurance maintained by the Commission, Caltrans and
their directors, officials, officers, employees and agents shall be excess of the
Consultant’s insurance and shall not be called upon to contribute with it in any way.
(c) Workers’ Compensation and Employers Liability Coverage.
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(i) Consultant certifies that he/she is aware of the
provisions of Section 3700 of the California Labor Code which requires every employer
to be insured against liability for workers’ compensation or to undertake self-insurance in
accordance with the provisions of that code, and he/she will comply with such provisions
before commencing work under this Agreement.
(ii) The insurer shall agree to waive all rights of
subrogation against the Commission, its directors, officials, officers, employees and
agents for losses paid under the terms of the insurance policy which arise from work
performed by the Consultant.
(d) All Coverages.
(i) Defense costs shall be payable in addition to the limits
set forth hereunder.
(ii) Requirements of specific coverage or limits contained
in this Section are not intended as a limitation on coverage, limits, or other requirement,
or a waiver of any coverage normally provided by any insurance. It shall be a requirement
under this Agreement that any available insurance proceeds broader than or in excess of
the specified minimum insurance coverage requirements and/or limits set forth herein
shall be available to the Commission, Caltrans and their directors, officials, officers,
employees and agents as additional insureds under said policies. Furthermore, the
requirements for coverage and limits shall be (1) the minimum coverage and limits
specified in this Agreement; or (2) the broader coverage and maximum limits of coverage
of any insurance policy or proceeds available to the named insured; whichever is greater.
(iii) The limits of insurance required in this Agreement may
be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella
or excess insurance shall contain or be endorsed to contain a provision that such
coverage shall also apply on a primary and non-contributory basis for the benefit of the
Commission (if agreed to in a written contract or agreement) before the Commission’s
own insurance or self-insurance shall be called upon to protect it as a named insured.
The umbrella/excess policy shall be provided on a “following form” basis with coverage
at least as broad as provided on the underlying policy(ies).
(iv) Consultant shall provide the Commission at least thirty
(30) days prior written notice of cancellation of any policy required by this Agreement,
except that the Consultant shall provide at least ten (10) days prior written notice of
cancellation of any such policy due to non-payment of premium. If any of the required
coverage is cancelled or expires during the term of this Agreement, the Consultant shall
deliver renewal certificate(s) including the General Liability Additional Insured
Endorsement to the Commission at least ten (10) days prior to the effective date of
cancellation or expiration.
(v) The retroactive date (if any) of each policy is to be no
later than the effective date of this Agreement. Consultant shall maintain such coverage
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continuously for a period of at least three years after the completion of the work under
this Agreement. Consultant shall purchase a one (1) year extended reporting period A)
if the retroactive date is advanced past the effective date of this Agreement; B) if the policy
is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy
with a retroactive date subsequent to the effective date of this Agreement.
(vi) The foregoing requirements as to the types and limits
of insurance coverage to be maintained by Consultant, and any approval of said
insurance by the Commission, is not intended to and shall not in any manner limit or
qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to
this Agreement, including but not limited to, the provisions concerning indemnification.
(vii) If at any time during the life of the Agreement, any
policy of insurance required under this Agreement does not comply with these
specifications or is canceled and not replaced, Commission has the right but not the duty
to obtain the insurance it deems necessary, and any premium paid by Commission will
be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to
pay premium from Consultant payments. In the alternative, Commission may cancel this
Agreement. The Commission may require the Consultant to provide complete copies of
all insurance policies in effect for the duration of the Project.
(viii) Neither the Commission nor any of its directors,
officials, officers, employees or agents shall be personally responsible for any liability
arising under or by virtue of this Agreement.
29.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the Commission. If the
Commission does not approve the deductibles or self-insured retentions as presented,
Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer
shall reduce or eliminate such deductibles or self-insured retentions as respects the
Commission, its directors, officials, officers, employees and agents; or (2) the Consultant
shall procure a bond guaranteeing payment of losses and related investigation costs,
claims and administrative and defense expense.
29.7 Acceptability of Insurers. Insurance is to be placed with insurers
with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California,
and satisfactory to the Commission.
29.8 Verification of Coverage. Consultant shall furnish Commission with
original certificates of insurance and endorsements effecting coverage required by this
Agreement on forms satisfactory to the Commission. The certificates and endorsements
for each insurance policy shall be signed by a person authorized by that insurer to bind
coverage on its behalf. All certificates and endorsements must be received and
approved by the Commission before work commences. The Commission reserves the
right to require complete, certified copies of all required insurance policies, at any time.
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29.9 Subconsultant Insurance Requirements. Consultant shall not allow
any subcontractors or subconsultants to commence work on any subcontract until they
have provided evidence satisfactory to the Commission that they have secured all
insurance required under this Section. Policies of commercial general liability insurance
provided by such subcontractors or subconsultants shall be endorsed to name the
Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement
providing the exact same coverage. If requested by Consultant, the Commission may
approve different scopes or minimum limits of insurance for particular subcontractors or
subconsultants.
29.10 Other Insurance. At its option, the Commission may require such
additional coverage(s), limits and/or the reduction of deductibles or retentions it
considers reasonable and prudent based upon risk factors that may directly or indirectly
impact the Project. In retaining this option Commission does not warrant Consultant’s
insurance program to be adequate. Consultant shall have the right to purchase
insurance in addition to the insurance required in this Section.
30. Safety. Consultant shall execute and maintain its work so as to avoid injury
or damage to any person or property. In carrying out its Services, the Consultant shall at
all times be in compliance with all applicable local, state and federal laws, rules and
regulations, and shall exercise all necessary precautions for the safety of employees
appropriate to the nature of the work and the conditions under which the work is to be
performed. Safety precautions as applicable shall include, but shall not be limited to: (A)
adequate life protection and life saving equipment and procedures; (B) instructions in
accident prevention for all employees and subcontractors, such as safe walkways,
scaffolds, fall protection ladders, bridges, gang planks, confined space procedures,
trenching and shoring, equipment and other safety devices, equipment and wearing
apparel as are necessary or lawfully required to prevent accidents or injuries; and (C)
adequate facilities for the proper inspection and maintenance of all safety measures.
31. Additional Work. Any work or activities that are in addition to, or otherwise
outside of, the Services to be performed pursuant to this Agreement shall only be
performed pursuant to a separate agreement between the parties. Notwithstanding the
foregoing, the Commission’s Executive Director may make a change to the Agreement,
other than a Cardinal Change. For purposes of this Agreement, a Cardinal Change is a
change which is “outside the scope” of the Agreement; in other words, work which should
not be regarded as having been fairly and reasonably within the contemplation of the
parties when the Agreement was entered into. An example of a change which is not a
Cardinal Change would be where, in a contract to construct a building there are many
changes in the materials used, but the size and layout of the building remains the same.
Cardinal Changes are not within the authority of this provision to order, and shall be
processed by the Commission as “sole source” procurements according to applicable
law, including the requirements of FTA Circular 4220.1D, paragraph 9(f).
(a) In addition to the changes authorized above, a
modification which is signed by Consultant and the Commission’s Executive Director,
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other than a Cardinal Change, may be made in order to: (1) make a negotiated equitable
adjustment to the Agreement price, delivery schedule and other terms resulting from the
issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other
agreements of the parties modifying the terms of this Agreement (“Bilateral Contract
Modification”).
(b) Consultant shall not perform, nor be compensated for
any change, without written authorization from the Commission’s Executive Director as
set forth herein. In the event such a change authorization is not issued and signed by the
Commission’s Executive Director, Consultant shall not provide such change.
32. Prohibited Interests.
32.1 Solicitation. Consultant maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working
solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants
that it has not paid nor has it agreed to pay any company or person, other than a bona
fide employee working solely for Consultant, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty, the Commission shall
have the right to rescind this Agreement without liability.
32.2 Consultant Conflict of Interest.
(a) Consultant shall disclose any financial, business, or other
relationship with Commission that may have an impact upon the outcome of this
Agreement. Consultant hereby certifies that it does not now have, nor shall it acquire any
financial or business interest that would conflict with the performance of services under
this Agreement.
(b) Any subcontract in excess of $25,000 entered into as a result
of this Agreement, shall contain all of the provisions of this Article.
32.3 Commission Conflict of Interest. For the term of this Agreement, no
member, officer or employee of the Commission, during the term of his or her service
with the Commission, shall have any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising therefrom.
32.4 Conflict of Employment. Employment by the Consultant of
personnel currently on the payroll of the Commission shall not be permitted in the
performance of this Agreement, even though such employment may occur outside of the
employee's regular working hours or on weekends, holidays or vacation time. Further,
the employment by the Consultant of personnel who have been on the Commission
payroll within one year prior to the date of execution of this Agreement, where this
employment is caused by and or dependent upon the Consultant securing this or related
Agreements with the Commission, is prohibited.
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32.5 Covenant Against Contingent Fees. As required in connection with
federal funding, the Consultant warrants that he/she has not employed or retained any
company or person, other than a bona fide employee working for the Consultant, to solicit
or secure this Agreement, and that he/she has not paid or agreed to pay any company
or person, other than a bona fide employee, any fee, commission, percentage, brokerage
fee, gift, or any other consideration, contingent upon or resulting from the award or
formation of this Agreement. For breach or violation of this warranty, the Commission
shall have the right to terminate this Agreement without liability pursuant to the terms
herein, or at its discretion to deduct from the Agreement price or consideration, or
otherwise recover, the full amount of such fee, commission, percentage, brokerage fee,
gift, or contingent fee.
32.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant
warrants that this Agreement was not obtained or secured through rebates kickbacks or
other unlawful consideration, either promised or paid to any Commission employee. For
breach or violation of this warranty, Commission shall have the right in its discretion; to
terminate this Agreement without liability; to pay only for the value of the work actually
performed; or to deduct from the Agreement price; or otherwise recover the full amount
of such rebate, kickback or other unlawful consideration.
32.7 Covenant Against Expenditure of Commission, State or Federal
Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and
belief no state, federal or local agency appropriated funds have been paid, or will be paid
by or on behalf of the Consultant to any person for the purpose of influencing or
attempting to influence an officer or employee of any state or federal agency; a Member
of the State Legislature or United States Congress; an officer or employee of the
Legislature or Congress; or any employee of a Member of the Legislature or Congress,
in connection with the award of any state or federal contract, grant, loan, or cooperative
agreement, or the extension, continuation, renewal, amendment, or modification of any
state or federal contract, grant, loan, or cooperative agreement.
(a) If any funds other than federal appropriated funds have been
paid, or will be paid to any person for the purpose of influencing or attempting to influence
an officer or employee of any federal agency; a Member of Congress; an officer or
employee of Congress, or an employee of a Member of Congress; in connection with this
Agreement, the Consultant shall complete and submit the attached Exhibit "F", Standard
Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with the attached
instructions.
(b) The Consultant's certification provided in this Section is a
material representation of fact upon which reliance was placed when this Agreement was
entered into, and is a prerequisite for entering into this Agreement pursuant to Section
1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the
disclosure and certification requirements set forth in Section 1352, Title 31, US. Code
may result in a civil penalty of not less than $10,000 and not more than $100,000 for each
such failure.
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(c) The Consultant also agrees by signing this Agreement that
he/she shall require that the language set forth in this Section 3.23.7 be included in all
Consultant subcontracts which exceed $100,000, and that all such subcontractors shall
certify and disclose accordingly.
32.8 Employment Adverse to the Commission. Consultant shall notify the
Commission, and shall obtain the Commission’s written consent, prior to accepting work
to assist with or participate in a third-party lawsuit or other legal or administrative
proceeding against the Commission during the term of this Agreement.
33. Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, ancestry, sex
or age. Such non-discrimination shall include, but not be limited to, all activities related
to initial employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff or termination.
34. Right to Employ Other Consultants. Commission reserves the right to
employ other consultants in connection with the Project.
35. Governing Law. This Agreement shall be governed by and construed with
the laws of the State of California. Venue shall be in Riverside County.
36. Disputes; Attorneys' Fees.
36.1 Prior to commencing any action hereunder, the Parties shall attempt
in good faith to resolve any dispute arising between them. The pendency of a dispute
shall not excuse Consultant from full and timely performance of the Services.
36.2. If the Parties are unable to resolve a dispute after attempting in good
faith to do so, the Parties may seek any other available remedy to resolve the dispute. If
either Party commences an action against the other Party, either legal, administrative or
otherwise, arising out of or in connection with this Agreement, the prevailing Party in such
litigation shall be entitled to have and recover from the losing Party reasonable attorneys'
fees and, all other costs of such actions.
37. Time of Essence. Time is of the essence for each and every provision of
this Agreement.
38. Headings. Article and Section Headings, paragraph captions or marginal
headings contained in this Agreement are for convenience only and shall have no effect
in the construction or interpretation of any provision herein.
39. Notices. All notices permitted or required under this Agreement shall be
given to the respective parties at the following address, or at such other address as the
respective parties may provide in writing for this purpose:
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CONSULTANT: COMMISSION:
Santolucito Dorè Group, Inc Riverside County
31600 Railroad Canyon Road Transportation Commission
Suite 100-L 4080 Lemon Street, 3rd Floor
Canyon Lake, CA 92587 Riverside, CA 92501
Attn: Christine S. Santolucito Attn: Executive Director
Such notice shall be deemed made when personally delivered or when mailed, forty-eight
(48) hours after deposit in the U.S. mail, first class postage prepaid, and addressed to the
Party at its applicable address. Actual notice shall be deemed adequate notice on the
date actual notice occurred, regardless of the method of service.
40. Conflicting Provisions. In the event that provisions of any attached exhibits
conflict in any way with the provisions set forth in this Agreement, the language, terms
and conditions contained in this Agreement shall control the actions and obligations of
the Parties and the interpretation of the Parties' understanding concerning the
performance of the Services.
41. Amendment or Modification. No supplement, modification, or amendment
of this Agreement shall be binding unless executed in writing and signed by both Parties.
42. Entire Agreement. This Agreement contains the entire agreement of the
Parties relating to the subject matter hereof and supersedes all prior negotiations,
agreements or understandings.
43. Invalidity; Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
44. Provisions Applicable When State Funds or Federal Funds Are Involved.
When funding for the Services under a Task Order is provided, in whole or in part, from
FHWA, Consultant shall also fully and adequately comply with the provisions included in
Exhibit “C” (FHWA/Caltrans requirements) attached hereto and incorporated herein by
reference. When funding for the Services under a Task Order is provided, in whole or in
part, from the FTA, Consultant shall also fully and adequately comply with the provisions
included in Exhibit “D” (FTA Requirements) attached hereto and incorporated herein by
reference.
45. Survival. All rights and obligations hereunder that by their nature are to
continue after any expiration or termination of this Agreement, including, but not limited
to, the indemnification and confidentiality obligations, shall survive any such expiration or
termination.
46. No Third Party Beneficiaries. There are no intended third party beneficiaries
of any right or obligation assumed by the Parties.
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47. Labor Certification. By its signature hereunder, Consultant certifies that it
is aware of the provisions of Section 3700 of the California Labor Code which require
every employer to be insured against liability for Workers’ Compensation or to undertake
self-insurance in accordance with the provisions of that Code, and agrees to comply with
such provisions before commencing the performance of the Services.
48. Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
49. Subpoenas or Court Orders. Should Consultant receive a subpoena or
court order related to this Agreement, the Services or the Project, Consultant shall
immediately provide written notice of the subpoena or court order to the Commission.
Consultant shall not respond to any such subpoena or court order until notice to the
Commission is provided as required herein, and shall cooperate with the Commission in
responding to the subpoena or court order.
50. Assignment or Transfer. Consultant shall not assign, hypothecate, or
transfer, either directly or by operation of law, this Agreement or any interest herein,
without the prior written consent of the Commission. Any attempt to do so shall be null
and void, and any assignees, hypothecates or transferees shall acquire no right or interest
by reason of such attempted assignment, hypothecation or transfer.
51. Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties, and shall not be assigned by Consultant without
the prior written consent of Commission.
52. Incorporation of Recitals. The recitals set forth above are true and correct
and are incorporated into this Agreement as though fully set forth herein.
53. No Waiver. Failure of Commission to insist on any one occasion upon strict
compliance with any of the terms, covenants or conditions hereof shall not be deemed a
waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any
rights or powers hereunder at any one time or more times be deemed a waiver or
relinquishment of such other right or power at any other time or times.
54. Electronically Transmitted Signatures; Electronic Signatures. A manually
signed copy of this Agreement which is transmitted by facsimile, email or other means of
electronic transmission shall be deemed to have the same legal effect as delivery of an
original executed copy of this Agreement for all purposes. This Agreement may be signed
using an electronic signature.
[Signatures on following page]
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SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA AND FTA FUNDING/ASSISTANCE
IN WITNESS WHEREOF, this Agreement was executed on the date first written above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
Anne Mayer
Executive Director
Approved as to Form:
By:
Best, Best & Krieger LLP
General Counsel
CONSULTANT
SANTOLUCITO DORÈ GROUP, INC.
By:
Signature
Name
Title
ATTEST:
By:
Its: __________________________
* A corporation requires the signatures of two corporate officers.
One signature shall be that of the chairman of board, the president or any vice president and the
second signature (on the attest line) shall be that of the secretary, any assistant secretary, the
chief financial officer or any assistant treasurer of such corporation.
If the above persons are not the intended signators, evidence of signature authority shall be
provided to RCTC.
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Exhibit A
EXHIBIT A SCOPE OF SERVICES
The Riverside County Transportation Commission (Commission) is seeking one or
more Consultants (Consultant or Appraiser) to provide right of way appraisal services
for developed or undeveloped residential, commercial, industrial, agricultural and
railroad properties. Consultant shall produce appraisal reports for full or partial
acquisitions, easements, temporary construction easements, leased or licensed
properties, and sale or disposition of excess/surplus properties, as required by the
Commission. Services shall be provided on an on-call/as needed basis in support of
current and future Commission Projects, Measure A Projects and projects done in
partnership with other agencies, pursuant to Task Orders issued in the sole discretion
of the Commission.
Task Orders shall be awarded through an additional qualification-based selection
process.
Such appraisal services may include, but are not limited to, the following work
program and/or comply with applicable requirements below:
1. Consultant shall prepare appraisals in accordance with the Uniform
Relocation and Real Property Acquisition Policies Act of 1970, as amended,
and implemented by 49 CFR Part 24; the State of California Government
Code, the State of California Relocation Assistance and Real Property
Acquisition Guidelines (Title 25, California Code of Regulations Ch 6, Art 1,
Section 6000 et seq.), the California Code of Civil Procedure, the Uniform
Standards of Professional Appraisal Practice (USPAP), and in some cases,
the Uniform Appraisal Standards for Federal Land Acquisition Act. Consultant
must be licensed by the State of California.
2. Consultant shall prepare appraisals in accordance with the Uniform Appraisal
Standards for Federal Land Acquisition (“Yellow Book”). Consultant must be
licensed by the State of California.
3. Consultant must be qualified to provide expert witness testimony and defend
the opinions or conclusions reached in the appraisal at any Administrative
or Judicial proceeding.
4. Deliverables shall typically consist of three (3) originals of the completed
appraisal report and one (1) electronic copy, specialty reports and component
valuations which may be performed by someone other than Consultant and
incorporated into the overall fair market valuation.
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5. Consultant may be required to meet with and coordinate their efforts with
Commission staff, Commission legal counsel, and other consultants or
Caltrans staff; participate in office or project site meetings.
6. Appraisal reports may be reviewed for acceptance and approval by
Commission's review appraisers and Caltrans. Revisions may be required
by reason of this review process. Consultants may be requested to complete
and deliver revised and/or updated appraisals. In the event of non-acceptance
due to errors or omissions, Consultant shall have fifteen (15) calendar days
to make corrections and return the revised appraisals to the review appraiser.
7. For proposed acquisitions, the owner of the real property or a designated
representative will be invited by the Appraiser to accompany the Appraiser
during the inspection of the property. This invitation must be in the form of
a letter entitled "Notice to Appraise" written by the Appraiser to the owner.
A copy of the invitation will be included in the appraisal report.
8. It is the Appraiser's responsibility to contact the Commission's project
engineers for discussion and/or clarification of the Construction in the
Manner Proposed. This is critical in the appraisal of partial acquisitions and
easements where the Appraiser may need cross sections or other project
engineering information to complete the report.
9. The highest and best use for the property in the before condition must be
determined and supported. If a partial acquisition is involved, the highest
and best use of the property in the after condition must be determined and
supported. If the existing use is not the premise on which the valuation is
based, the appraisal will contain an explanation justifying the determination
that the property is available and adaptable for a different highest and best
use and there is demand for that use in the market.
10. Where the acquisition involves only a part (or portion) of the property, the
Appraiser win estimate any severance d amages and special benefits to the
remainder, including reasoning. and market data to support the opinion or
conclusion. The Appraiser will indicate if the remainder constitutes an
economic or uneconomic unit in the market and/or to the present owner.
11. The California Eminent Domain Law will be followed in partial acquisitions.
Special benefits are to be offset only against damages to the remainder in
accordance with the law.
12. Appraisal for easement acquisitions will reflect the restrictive elements of the
easement to be acquired and the potential effect of such elements on the
utility of the property considering its highest and best use. Full details with
respect to any interference with the highest and best use of the property
affected must be explained and supported.
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Exhibit A
13. The Appraiser must estimate and support the economic rent, state the
contract rent and the remaining term of the lease as of the date of value.
Lessor and lessee responsibilities for paying major expenses, e.g., taxes,
insurance and maintenance shall be included.
14. Appraiser shall itemize in detail the "improvements pertaining to realty"
(Eminent Domain Law-CCP Section 1263.205) showing their replacement cost
new, depreciated value in place, salvage value if any, and relocation estimate.
To the extent possible, determine the ownership claims of the Improvements
Pertaining to the Realty.
15. In cases where the Appraisal Assignment requires a Specialty Appraisal
(Furniture, Fixtures, Machinery and Equipment) and/or Specialists Reports
(title, survey, soils, engineering), Appraiser shall utilize the services of
Commission's On-Call Consultants for such services or obtain Commission's
prior approval for any others. Fees charged by Commission's On-Call
Consultants for Specialty Appraisal and/or Specialists Reports shall be paid
directly by the Commission.
16. It is the Appraiser's responsibility to thoroughly review the Specialty Appraisal
for adoption (with adjustments or not, as appropriate) and inclusion in the
overall appraisal. The estimated values that the specialty items contribute to
the overall value of the real estate will be separately stated but included in the
total value of the property.
17. If any legal issues exist during the appraisal assignment, Appraiser shall
request legal opinion. All legal opinions shall be rendered by Commission's
legal counsel.
18. It is the Appraiser's responsibility to contact the Commission's legal counsel,
if necessary, for discussion and/or clarification in identifying personal or real
property.
19. If hazardous waste is discovered on the property, Appraiser shall seek further
direction from the Commission.
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FIRM PROJECT TASKS/ROLE COST
Santolucito Dore Group, Inc.Right of Way Appraisal Services 1,000,000.00$
1,000,000.00$ TOTAL COSTS
1 Commission authorization pertains to total contract award amount. Compensation adjustments between consultants may occur; however,
the maximum total compensation authorized may not be exceeded.
EXHIBIT "B"
Prime Consultant:
Sub Consultants:
COMPENSATION SUMMARY1
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Exhibit C-1
EXHIBIT "C"
FEDERAL DEPARTMENT OF TRANSPORTATION
FHWA AND CALTRANS REQUIREMENTS
1. NONDISCRIMINATION & STATEMENT OF COMPLIANCE.
A. Consultant’s signature affixed herein shall constitute a certification under penalty of
perjury under the laws of the State of California that CONSULTANT has, unless exempt,
complied with, the nondiscrimination program requirements of Government Code Section
12990 and Title 2, California Administrative Code, Section 8103.
B. During the performance of this Agreement, Consultant and its subconsultants shall
not deny the Agreement’s benefits to any person on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression, age,
sexual orientation, or military and veteran status, nor shall they unlawfully discriminate,
harass, or allow harassment against any employee or applicant for employment because
of race, religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or military and veteran status.
Consultant and its subconsultants shall insure that the evaluation and treatment of their
employees and applicants for employment are free from such discrimination and
harassment.
C. Consultant and its subconsultants shall comply with the provisions of the Fair
Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations
promulgated thereunder (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-
11139.5, and any regulations or standards adopted by Commission to implement such
article. The applicable regulations of the Fair Employment and Housing Commission
implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated
into this Agreement by reference and made a part hereof as if set forth in full.
D. Consultant shall permit access by representatives of the Department of Fair
Employment and Housing and the Commission upon reasonable notice at any time during
the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such
of its books, records, accounts, and all other sources of information and its facilities as
said Department or Commission shall require to ascertain compliance with this clause.
E. Consultant and its subconsultants shall give written notice of their obligations
under this clause to labor organizations with which they have a collective bargaining or
other Agreement.
F. If this Agreement is federally funded, the Consultant shall comply with regulations
relative to Title VI (nondiscrimination in federally-assisted programs of the Department of
Transportation – Title 49 Code of Federal Regulations, Part 21 - Effectuation of Title VI
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Exhibit C-2
of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will
implement and maintain a policy of nondiscrimination in which no person in the state of
California shall, on the basis of race, color, national origin, religion, sex, age, disability,
be excluded from participation in, denied the benefits of or subject to discrimination under
any program or activity by the recipients of federal assistance or their assignees and
successors in interest.
G. If this Agreement is federally funded, Consultant shall comply with regulations relative
to non-discrimination in federally-assisted programs of the U.S. Department of
Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964).
Specifically, the Consultant shall not participate either directly or indirectly in the
discrimination prohibited by 49 CFR §21.5, including employment practices and the
selection and retention of subconsultants.
H. Consultant and its subconsultants will never exclude any person from participation in,
deny any person the benefits of, or otherwise discriminate against anyone in connection
with the award and performance of any contract covered by 49 CFR 26 on the basis of
race, color, sex, or national origin. In administering the Commission components of the
DBE Program plan, Consultant and its subconsultants will not, directly, or through
contractual or other arrangements, use criteria or methods of administration that have the
effect of defeating or substantially impairing accomplishment of the objectives of the DBE
Program plan with respect to individuals of a particular race, color, sex, or national origin.
I. Consultant shall include the nondiscrimination and compliance provisions of this
section in all subcontracts to perform work under this Agreement.
2. DEBARMENT AND SUSPENSION CERTIFICATION
CONSULTANT’s signature affixed herein, shall constitute a certification under penalty of
perjury under the laws of the State of California, that CONSULTANT has complied with
Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment
and Suspension (nonprocurement)”, which certifies that he/she or any person associated
therewith in the capacity of owner, partner, director, officer, or manager, is not currently
under suspension, debarment, voluntary exclusion, or determination of ineligibility by any
federal agency; has not been suspended, debarred, voluntarily excluded, or determined
ineligible by any federal agency within the past three (3) years; does not have a proposed
debarment pending; and has not been indicted, convicted, or had a civil judgment
rendered against it by a court of competent jurisdiction in any matter involving fraud or
official misconduct within the past three (3) years. Any exceptions to this certification must
be disclosed to COMMISSION.
B. Exceptions will not necessarily result in denial of recommendation for award, but will
be considered in determining CONSULTANT responsibility. Disclosures must indicate to
whom exceptions apply, initiating agency, and dates of action.
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C. Exceptions to the Federal Government Excluded Parties List System maintained by
the General Services Administration are to be determined by the Federal highway
Administration.
3. DISCRIMINATION; CONTRACT ASSURANCE
The Commission shall not discriminate on the basis of race, color, national origin, or sex
in the award and performance of any DOT-assisted contract or in the implementation of
the Caltrans DBE program or the requirements of 49 CFR Part 26. The Commission shall
take all necessary and reasonable steps under 49 CFR Part 26 to ensure
nondiscrimination in the award and administration of DOT-assisted contracts.
Consultant or subcontractor shall not discriminate on the basis of race, color, national
origin, of sex in the performance of this Agreement. Consultant or subcontractor shall
carry out applicable requirements of 49 CFR Part 26 and the Caltrans DBE program in
the award and administration of DOT-assisted contracts, as further set forth below.
Failure by the Consultant or subcontractor to carry out these requirements is a material
breach of this Agreement, which may result in the termination of this Agreement or such
other remedy, as the Commission deems appropriate.
Failure by the Consultant to carry out these requirements is a material breach of this
contract, which may result in the termination of this contract or such other remedy as the
recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying Consultant from future proposing as non-responsible
4. PROMPT PAYMENT
Consultant or subconsultant shall pay to any subconsultant, not later than fifteen (15)
days after receipt of each progress payment, unless otherwise agreed to in writing, the
respective amounts allowed Consultant on account of the work performed by the
subconsultants, to the extent of each subconsultant’s interest therein. In the event that
there is a good faith dispute over all or any portion of the amount due on a progress
payment from Consultant or subconsultant to a subconsultant, Consultant or
subconsultant may withhold no more than 150 percent of the disputed amount. Any
violation of this requirement shall constitute a cause for disciplinary action and shall
subject the Consultant or subconsultant to a penalty, payable to the applicable
subconsultant, of 2 percent of the amount due per month for every month that payment
is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be
entitled to his or her attorney’s fees and costs. The sanctions authorized under this
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requirement shall be separate from, and in addition to, all other remedies, either civil,
administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
5. RELEASE OF RETAINAGE
No retainage will be held by the Commission from progress payments due to Consultant.
Consultant and subconsultants are prohibited from holding retainage from
subconsultants. Any delay or postponement of payment may take place only for good
cause and with the Commission’s prior written approval. Any violation of these provisions
shall subject Consultant or the violating subconsultant to the penalties, sanctions, and
other remedies specified in Section 3321 of the California Civil Code. This requirement
shall not be construed to limit or impair any contractual, administrative or judicial
remedies, otherwise available to Consultant or subconsultant in the event of a dispute
involving late payment or nonpayment by Consultant, deficient subconsultant
performance and/or noncompliance by a subconsultant. This clause applies to both DBE
and non-DBE subconsultants.
6. LEGAL REMEDIES
In addition to those contract remedies set forth under relevant provisions of California law,
either Party to this Agreement may, where applicable, seek legal redress for violations of
this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the
relevant federal or state statutory provisions governing civil rights violations, and to the
relevant federal and state provisions governing false claims or “whistleblower” actions, as
well as any and all other applicable federal and state provisions of law.
The Consultant shall include a provision to this effect in each of its agreements with its
subcontractors.
7. DBE PARTICIPATION
Caltrans has developed a statewide DBE program pursuant to 49 C.F.R. Part 26. The
requirements and procedures, as applicable, of the Caltrans DBE program are hereby
incorporated by reference into this Agreement. Even if no DBE participation will be
reported, Consultant shall complete any Caltrans required DBE reporting forms, as
provided by the Commission, in compliance with the Caltrans DBE program, and a final
utilization report in the form provided by the Commission.
A. This Agreement is subject to Title 49, Part 26 of the Code of Federal Regulations
entitled “Participation by Disadvantaged Business Enterprises in Department of
Transportation Financial Assistance Programs.” Consultants who enter into a federally-
funded agreement will assist the Commission in a good faith effort to achieve California’s
statewide overall DBE goal.
B. This Agreement does not have a DBE goal, but DBE goals may be included as
part of each Task Order request for proposals. Participation by DBE Consultant or
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subconsultants for an FHWA funded Task Order shall be in accordance with the
information contained in the Consultant Contract DBE Commitment form (Caltrans LAPM
Forms Exhibit 10-O1) to be submitted with the relevant Task Order proposal. If a DBE
subconsultant is unable to perform, the Consultant must make a good faith effort to
replace him/her with another DBE subconsultant, if the goal is not otherwise met. A DBE
is a firm meeting the definition of a DBE as specified in 49 CFR.
C. All DBE participation will count toward the Caltrans federally mandated statewide
overall DBE goal. Credit for materials or supplies Consultant purchases from DBEs
counts towards the goal in the following manner:
• 100 percent counts if the materials or supplies are obtained from a DBE
manufacturer.
• 60 percent counts if the materials or supplies are purchased from a DBE regular
dealer.
• Only fees, commissions, and charges for assistance in the procurement and
delivery of materials or supplies count if obtained from a DBE that is neither a
manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular
dealer."
D. DBE and other small businesses (SB), as defined in Title 49 CFR, Part 26 are
encouraged to participate in the performance of agreements financed in whole or in part
with federal funds. The Consultant, subrecipient or subconsultant shall not discriminate
on the basis of race, color, national origin, or sex in the performance of this Agreement.
The Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award
and administration of US DOT- assisted agreements. Failure by the contractor to carry
out these requirements is a material breach of this Agreement, which may result in the
termination of this Agreement or such other remedy as the Commission, Caltrans or the
Department of Transportation deems appropriate.
E. Any subcontract entered into as a result of this Agreement shall contain all of the
provisions of this section.
F. A DBE may be terminated only as further set forth in Section 13 below.
8. DBE PARTICIPATION GENERAL INFORMATION
It is Consultant's responsibility to be fully informed regarding the requirements of 49 CFR,
Part 26, and the Caltrans DBE program. Particular attention is directed to the following:
A. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be
certified through the California Unified Certification Program (CUCP).
B. A certified DBE may participate as a prime contractor, subcontractor, joint venture
partner, as a vendor of material or supplies, or as a trucking company.
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C. A DBE joint-venture partner must be responsible for specific contract items of work
or clearly defined portions thereof. Responsibility means actually performing, managing
and supervising the work with its own forces. The DBE joint venture partner must share
in the capital contribution, control, management, risks and profits of the joint-venture
commensurate with its ownership interest.
D. A DBE must perform a commercially useful function, pursuant to 49 CFR 26.55
that is, must be responsible for the execution of a distinct element of the work and must
carry out its responsibility by actually performing, managing and supervising the work, as
more fully described in section 9 below.
E. The Consultant shall list only one subcontractor for each portion of work as defined
in the Consultant's bid/proposal and all DBE subcontractors should be listed in the
Consultant's bid/cost proposal list of subcontractors.
F. A Consultant who is a certified DBE is eligible to claim all of the work in the
Agreement toward the DBE participation except that portion of the work to be performed
by non-DBE subcontractors.
G. Consultant shall notify the Commission’s contract administrator or designated
representative of any changes to its anticipated DBE participation prior to starting the
affected work.
9 . COMMERCIALLY USEFUL FUNCTION
A. A DBE performs a commercially useful function when it is responsible for execution
of the work of the Agreement and is carrying out its responsibilities by actually performing,
managing, and supervising the work involved. To perform a commercially useful function,
the DBE must also be responsible with respect to materials and supplies used on the
Agreement, for negotiating price, determining quality and quantity, ordering the material,
and installing (where applicable) and paying for the material itself. To determine whether
a DBE is performing a commercially useful function, evaluate the amount of work
subcontracted, industry practices; whether the amount the firm is to be paid under the
Agreement is commensurate with the work it is actually performing, and other relevant
factors.
B. A DBE does not perform a commercially useful function if its role is limited to that
of an extra participant in a transaction, Agreement, or project through which funds are
passed in order to obtain the appearance of DBE participation. In determining whether a
DBE is such an extra participant, examine similar transactions, particularly those in which
DBEs do not participate.
C. If a DBE does not perform or exercise responsibility for at least thirty percent of the
total cost of its Agreement with its own work force, or the DBE subcontracts a greater
portion of the work of the Agreement than would be expected on the basis of normal
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industry practice for the type of work involved, it will be presumed that it is not performing
a commercially useful function.
10. DBE CERTIFICATION AND DE-CERTIFICATION STATUS
If a DBE subcontractor is decertified before completing its work, the decertified
subcontractor shall notify the Contractor in writing with the date of de-certification. If a
subcontractor becomes a certified DBE during the life of the Agreement, the
subcontractor shall notify the Contractor in writing with the date of certification. Any
changes should be reported to the Commission’s Contract Administrator within 30 days.
11. DBE RECORDS
A. The Contractor shall maintain records of materials purchased and/or supplied from
all subcontracts entered into with certified DBEs. The records shall show the name and
business address of each DBE subconsultant, DBE vendor, and DBE trucking company
and the total dollar amount actually paid each business regardless of tier. The records
shall show the date of payment and the total dollar figure paid to all firms. DBE prime
Contractors shall also show the date of work performed by their own forces along with the
corresponding dollar value of the work.
In addition to all other requirements, Consultant shall complete and submit, on a monthly
basis, the Monthly DBE Payment form (Caltrans Exhibit 9-F of Chapter 9 of the LAPM).
B. Upon completion of the Agreement, a summary of these records shall be prepared
and submitted on the most current version of the form entitled, “Final Report-Utilization of
Disadvantaged Business Enterprises (DBE),” CEM- 2402F (Exhibit 17-F in Chapter 17 of
the LAPM), certified correct by the Contractor or the Contractor’s authorized
representative and shall be furnished to the Commission’s Contract Administrator with
the final invoice. Failure to provide the summary of DBE payments with the final invoice
will result in the Commission withholding $10,000 until the form is submitted. This amount
will be returned to the Contractor when a satisfactory “Final Report Utilization of
Disadvantaged Business Enterprises (DBE)” is submitted to the Commission’s Contract
Administrator.
a. Prior to the fifteenth of each month, the Contractor shall submit documentation to
the Commission’s Contract Administrator showing the amount paid to DBE trucking
companies. The Contractor shall also obtain and submit documentation to the
Commission’s Contract Administrator showing the amount paid by DBE trucking
companies to all firms, including owner-operators, for the leasing of trucks. If the DBE
leases trucks from a non-DBE, the Contractor may count only the fee or commission the
DBE receives as a result of the lease arrangement.
b. The Contractor shall also submit to the Commission’s Contract Administrator
documentation showing the truck number, name of owner, California Highway Patrol CA
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number, and if applicable, the DBE certification number of the truck owner for all trucks
used during that month. This documentation shall be submitted on the Caltrans ”Monthly
DBE Trucking Verification,” CEM-2404(F) form provided to the Contractor by the
Commission’s Contract Administrator.
12. REPORTING MATERIAL OR SUPPLIES PURCHASED FROM DBEs
When Reporting DBE Participation, Material or Supplies purchased from DBEs may
count as follows:
A. If the materials or supplies are obtained from a DBE manufacturer, 100 % of the
cost of the materials or supplies will count toward the DBE participation. A DBE
manufacturer is a firm that operates or maintains a factory or establishment that produces
on the premises, the materials, supplies, articles, or equipment required under the
Agreement and of the general character described by the specifications.
B. If the materials or supplies purchased from a DBE regular dealer, count 60 % of
the cost of the materials or supplies toward DBE goals. A DBE regular dealer is a firm
that owns, operates or maintains a store, warehouse, or other establishment in which the
materials, supplies, articles or equipment of the general character described by the
specifications and required under the Agreement, are bought, kept in stock, and regularly
sold or leased to the public in the usual course of business. To be a DBE regular dealer,
the firm must be an established, regular business that engages, as its principal business
and under its own name, in the purchase and sale or lease of the products in question. A
person may be a DBE regular dealer in such bulk items as petroleum products, steel,
cement, gravel, stone or asphalt without owning, operating or maintaining a place of
business provided in this section.
C. If the person both owns and operates distribution equipment for the products, any
supplementing of regular dealers’ own distribution equipment, shall be by a long-term
lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers,
brokers, manufacturers’ representatives, or other persons who arrange or expedite
transactions are not DBE regular dealers within the meaning of this section.
D. Materials or supplies purchased from a DBE, which is neither a manufacturer nor
a regular dealer, will be limited to the entire amount of fees or commissions charged for
assistance in the procurement of the materials and supplies, or fees or transportation
charges for the delivery of materials or supplies required on the job site, provided the fees
are reasonable and not excessive as compared with fees charged for similar services.
13. TERMINATION AND SUBSTITUTION OF DBE SUBCONSULTANTS
Consultant shall utilize the specific DBEs listed to perform the work and supply the
materials for which each is listed unless Consultant or DBE subconsultant obtains the
Commission’s written consent. Consultant shall not terminate or substitute a listed DBE
for convenience and perform the work with their own forces or obtain materials from other
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sources without authorization from the Commission. Unless the Commission’s consent is
provided, the Consultant shall not be entitled to any payment for work or material unless
it is performed or supplied by the listed DBE on the attached Consultant Contract DBE
Commitment form.
The Commission authorizes a request to use other forces or sources of materials if
Consultant shows any of the following justifications:
1. Listed DBE fails or refuses to execute a written contract based on plans and
specifications for the project.
2. The Commission stipulated that a bond is a condition of executing the
subcontract and the listed DBE fails to meet the Commission’s bond
requirements.
3. Work requires a consultant's license and listed DBE does not have a valid
license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials
(failing or refusing to perform is not an allowable reason to remove a DBE if
the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the project because of suspension or
debarment.
7. Listed DBE becomes bankrupt or insolvent.
8. Listed DBE voluntarily withdraws with written notice from the Agreement.
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE owner dies or becomes disabled resulting in the inability to
perform the work on the Contract.
11. The Commission determines other documented good cause.
Consultant shall notify the original DBE of the intent to use other forces or material
sources and provide the reasons and provide the DBE with 5 days to respond to the notice
and advise Consultant and the Commission of the reasons why the use of other forces or
sources of materials should not occur.
Consultant’s request to use other forces or material sources must include:
1. One or more of the reasons listed in the preceding paragraph.
2. Notices from Consultant to the DBE regarding the request.
3. Notices from the DBEs to Consultant regarding the request.
If a listed DBE is terminated or substituted, Consultant must make good faith efforts to
find another DBE to substitute for the original DBE. The substitute DBE must perform at
least the same amount of work as the original DBE under the contract to the extent
needed to meet or exceed the DBE goal.
14. DEBARMENT, SUSPENSION AND OTHER INELIGIBILITY AND VOLUNTARY
EXCLUSION
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In accordance with 49 CFR Part 29, which by this reference is incorporated herein,
Consultant’s subconsultants completed and submitted the Certificate of subconsultant
Regarding Debarment, Suspension and Other Ineligibility and Voluntary Exclusion as part
of the Consultant’s proposal. If it is later determined that Consultant’s subconsultants
knowingly rendered an erroneous Certificate, the Commission may, among other
remedies, terminate this Agreement.
15. ENVIRONMENTAL COMPLIANCE
A. Compliance with all applicable standards, orders, or requirements issued under
section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act
(33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency
regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in
excess of $100,000).
B. Mandatory standards and policies relating to energy efficiency which are contained in
the state energy conservation plan issued in compliance with the Energy Policy and
Conservation Act (Pub. L. 94-163, 89 Stat. 871).
16. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code Section 10296, and by signing this Agreement,
Consultant certifies under penalty of perjury that no more than one final unappealable
finding of contempt of court by a federal court has been issued against Consultant within
the immediately preceding two-year period, because of Consultant’s failure to comply with
an order of a federal court that orders Consultant to comply with an order of the National
Labor Relations Board.
17. FUNDING REQUIREMENTS
It is mutually understood between the Parties that this Agreement may have been written
before ascertaining the availability of funds or appropriation of funds, for the mutual
benefit of both Parties, in order to avoid program and fiscal delays that would occur if the
Agreement were executed after that determination was made.
This Agreement is valid and enforceable only if sufficient funds are made available to
Commission for the purpose of this Agreement. In addition, this Agreement is subject to
any additional restrictions, limitations, conditions, or any statute enacted by the Congress,
State Legislature, or Commission governing board that may affect the provisions, terms,
or funding of this Agreement in any manner.
It is mutually agreed that if sufficient funds are not appropriated, this Agreement may be
amended to reflect any reduction in funds.
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EXHIBIT D
FTA FUNDING REQUIREMENTS (Non-construction/maintenance work)
As used herein, “RCTC” shall have the same meaning as the “Commission.” The term
“contract” or “Contract” shall have the same meaning as the “Agreement.”
1. No Obligation by the Federal Government
a. RCTC and Consultant acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the
underlying contract, absent the express written consent by the Federal Government, the
Federal Government is not a party to this contract and shall not be subject to any
obligations or liabilities to the Purchaser, Consultant, or any other party (whether or not
a party to that contract) pertaining to any matter resulting from the underlying contract.
b. The Consultant agrees to include the above clause in each subcontract financed
in whole or in part with Federal assistance provided by FTA. It is further agreed that the
clause shall not be modified, except to identify the subconsultant who will be subject to
its provisions.
2. Program Fraud and False or Fraudulent Statements or Related Acts
a. The Consultant acknowledges that the provisions of the Program Fraud Civil
Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT
regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions
pertaining to this Project. Upon execution of the underlying contract, the Consultant
certifies or affirms the truthfulness and accuracy of any statement it has made, it
makes, it may make, or causes to be made, pertaining to the underlying contract or
the FTA assisted project for which this contract work is being performed. In addition to
other penalties that may be applicable, the Consultant further acknowledges that if it
makes, or causes to be made, a false, fictitious, or fraudulent claim, statement,
submission, or certification, the Federal Government reserves the right to impose the
penalties of the Program Fraud Civil Remedies Act of 1986 on the Consultant to the
extent the Federal Government deems appropriate.
b. The Consultant also acknowledges that if it makes, or causes to be made, a
false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in
part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C.
§ 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001
and 49 U.S.C. § 5307(n)(1) on the Consultant, to the extent the Federal Government
deems appropriate.
c. The Consultant agrees to include the above two clauses in each subcontract
financed in whole or in part with Federal assistance provided by FTA. It is further agreed
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that the clauses shall not be modified, except to identify the subconsultant who will be
subject to the provisions.
3. Access to Records
The Consultant agrees to the following access to records requirements:
a. To provide RCTC, the FTA Administrator, the Comptroller General of the United
States or any of their authorized representatives access to any books, documents,
papers and records of the Consultant which are directly pertinent to this contract for the
purposes of making audits, examinations, excerpts and transcriptions. Consultant also
agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his
authorized representatives including any PMO Consultant access to Consultant's
records and construction sites pertaining to a major capital project, defined at 49 U.S.C.
5302(a)1, which is receiving federal financial assistance through the programs
described at 49 U.S.C. 5307, 5309 or 5311.
b. To make available in the case of a contract for a capital project or improvement,
as defined above and awarded by other than competitive bidding in accordance with 49
U.S.C. 5325(a), records related to the contract to RCTC, the Secretary of
Transportation and the Comptroller General or any authorized officer or employee of
any of them for the purposes of conducting an audit and inspection.
c. To maintain all books, records, accounts and reports required under this contract
for a period of not less than three years after the date of termination or expiration of this
contract, except in the event of litigation or settlement of claims arising from the
performance of this contract, in which case Consultant agrees to maintain same until
RCTC, the FTA Administrator, the Comptroller General, or any of their duly authorized
representatives, have disposed of all such litigation, appeals, claims or exceptions
related thereto. Reference 49 CFR 18.39(i)(11).
d. To permit any of the foregoing parties to reproduce by any means whatsoever or
to copy excerpts and transcriptions as reasonably needed.
4. Federal Changes
The Consultant shall at all times comply with all applicable FTA regulations, policies,
procedures and directives, including without limitation those listed directly or by
reference in the Master Agreement between RCTC and FTA, as they may be amended
or promulgated from time to time during the term of this contract. Consultant's failure to
so comply shall constitute a material breach of this contract.
5. Civil Rights
The following requirements apply to the underlying contract:
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(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended,
42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42
U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. §
12132, and Federal transit law at 49 U.S.C. § 5332 and 49 CFR part 21, the Consultant
agrees that it will not discriminate against any employee or applicant for employment
because of race, color, creed,
national origin, sex, age, or disability. In addition, the Consultant agrees to comply with
applicable Federal implementing regulations and other implementing requirements FTA
may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the
Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C.
§ 5332, the Consultant agrees to comply with all applicable equal employment
opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office
of Federal Contract Compliance Programs, Equal Employment Opportunity,
Department of Labor," 41 C.F.R. Parts 60 et seq ., (which implement Executive Order
No. 11246, "Equal Employment Opportunity," as amended by Executive Order No.
11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity,"
42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders,
regulations, and Federal policies that may in the future affect construction activities
undertaken in the course of the Project. The Consultant agrees to take affirmative
action to ensure that applicants are employed, and that employees are treated during
employment, without regard to their race, color, creed, national origin, sex, or age.
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. In addition, the Consultant agrees to comply with any implementing
requirements FTA may issue.
(b) Age - In accordance with section 4 of the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. § § 623, Federal transit law at 49 U.S.C. § 5332,
the Equal Employment Opportunity Commission (U.S. EEOC) regulations, “Age
Discrimination in Employment Act,” 29 C.F.R. part 1625, the Age Discrimination Act of
1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health and Human Services
regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving
Federal Financial Assistance,” 45 C.F.R. part 90, the Consultant agrees to refrain from
discrimination against present and prospective employees for reason of age. In addition,
the Consultant agrees to comply with any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 504 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended,
42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42
U.S.C. § 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Consultant
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agrees that it will not discriminate against individuals on the basis of disability, and that
it will comply with the requirements of U.S. Equal Employment Opportunity Commission,
"Regulations to Implement the Equal Employment Provisions of the Americans with
Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with
disabilities. In addition, the Consultant agrees to comply with any implementing
requirements FTA may issue.
(3) The Consultant also agrees to include these requirements in each subcontract
financed in whole or in part with Federal assistance provided by FTA, modified only if
necessary to identify the affected parties.
6. FTA Disadvantaged Business Enterprise (DBE) Requirements
A. General DBE Requirements: In accordance with Federal financial assistance
agreements with the U.S. Department of Transportation (U.S. DOT), Commission has
adopted a Disadvantaged Business Enterprise (DBE) Policy and Program, in
conformance with Title 49 CFR Part 26, “Participation by Disadvantaged Business
Enterprises in Department of Transportation Programs” (the “Regulations”). This RFP is
subject to these stipulated regulations. In order to ensure that Commission achieves its
overall DBE Program goals and objectives, Commission encourages the participation
of DBEs as defined in 49 CFR 26 in the performance of contracts financed in whole or
in part with U.S. DOT funds.
It is the policy of the Commission to:
1. Ensure nondiscrimination in the award and administration of DOT-assisted contracts;
2. Create a level playing field on which DBE’s can compete fairly for DOT-assisted
contracts;
3. Ensure that the DBE program is narrowly tailored in accordance with applicable law;
4. Ensure that only firms that fully meet 49 C.F.R. part 26 eligibility standards are
permitted to participate as DBE’s;
5. Help remove barriers to the participation of DBEs in DOT assisted contracts;
6. To promote the use of DBEs in all types of federally assisted contracts and
procurement activities; and
7. Assist in the development of firms that can compete successfully in the marketplace
outside the DBE program.
B. Discrimination: Consultant shall not discriminate on the basis of race, color,
national origin, or sex in the award and performance of subcontracts. Any terms used
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herein that are defined in 49 CFR Part 26, or elsewhere in the Regulations, shall have
the meaning set forth in the Regulations.
C. Commission’s Race-Neutral DBE Program: A Race-Neutral DBE Program is one
that, while benefiting DBEs, is not solely focused on DBE firms. Therefore, under a
Race-Neutral DBE Program, Commission does not establish numeric race-conscious
DBE participation goals on its DOT-assisted contracts. There is no FTA DBE goal on
this Project.
Consultant shall not be required to achieve a specific level of DBE participation as a
condition of contract compliance in the performance of this DOT-assisted contract.
However, Consultant
shall adhere to race-neutral DBE participation commitment(s) made at the time of
award.
D. Race-Neutral DBE Submissions and Ongoing Reporting Requirements (Post-
Award): At termination of the Contract, the successful Consultant shall complete and
submit to Commission a “DBE Race-Neutral Participation Listing” in the form provided
by Commission. In the event DBE(s) are utilized in the performance of the Agreement,
Consultant shall comply with applicable reporting requirements.
E. Performance of DBE Subconsultants: DBE subconsultants listed by Consultant in
its “DBE Race-Neutral Participation Listing” submitted at the time of proposal shall
perform the work and supply the materials for which they are listed, unless Consultant
has received prior written authorization from Commission to perform the work with other
forces or to obtain the materials from other sources. Consultant shall provide written
notification to Commission in a timely manner of any changes to its anticipated DBE
participation. This notice should be provided prior to the commencement of that portion
of the work.
F. DBE Certification Status: If a listed DBE subconsultant is decertified during the
life of this Agreement, the decertified subconsultant shall notify Consultant in writing
with the date of decertification. If a non-DBE subconsultant becomes a certified DBE
during the life of this Agreement, the DBE subconsultant shall notify Consultant in
writing with the date of certification. Consultant shall furnish the written documentation
to Commission in a timely manner. Consultant shall include this requirement in all
subcontracts.
G. Consultant’s Assurance Clause Regarding Non-Discrimination: In compliance with
State and Federal anti-discrimination laws, Consultant shall affirm that it will not exclude
or discriminate on the basis of race, color, national origin, or sex in consideration of
contract award opportunities. Further, Consultant shall affirm that they will consider, and
utilize subconsultants and vendors, in a manner consistent with non-discrimination
objectives.
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H. Violations: Failure by the selected Consultant(s) to carry out these requirements shall
be a material breach of the contract to be awarded pursuant to this RFP, which may
result in the termination of the contract or such other remedy as the recipient deems
appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the Consultant from future bidding as non-responsible. 49 C.F.R. §
26.13(b).
I. Prompt Payment: Consultant shall pay its subconsultants for satisfactory performance
of their contracts no later than 30 days from receipt of each payment Commission
makes to the Consultant. 49 C.F.R. § 26.29(a), unless a shorter period is provided in
the contract.
J. Compliance with DBE Requirements Contained in FTA Provisions: Consultant shall
comply with all DBE reporting and other requirements contained in this Agreement.
7. Incorporation of Federal Transit Administration (FTA) Terms
The preceding provisions include, in part, certain Standard Terms and Conditions
required by DOT, whether or not expressly set forth in the preceding contract
provisions. All contractual provisions required by DOT, as set forth in FTA Circular
4220.1F are hereby incorporated by reference. Anything to the contrary herein
notwithstanding, all FTA mandated terms shall be deemed to control in the event of a
conflict with other provisions contained in this Agreement. The Consultant shall not
perform any act, fail to perform any act, or refuse to comply with any RCTC requests
which would cause RCTC to be in violation of the FTA terms and conditions.
8. Debarment and Suspension.
The Consultant agrees to the following:
(1) It will comply with the following requirements of 2 CFR Part 180, subpart C, as
adopted and supplemented by U.S. DOT regulations at 2 CFR Part 1200.
(2) It will not enter into any “covered transaction” (as that phrase is defined at 2 CFR §§
180.220 and 1200.220) with any subconsultant whose principal is, suspended,
debarred, or otherwise excluded from participating in covered transactions, except as
authorized by— (i) U.S. DOT regulations, “Nonprocurement Suspension and
Debarment,” 2 CFR Part 1200; (ii) U.S. OMB regulatory guidance, “Guidelines to
Agencies on Governmentwide Debarment and Suspension (Nonprocurement),” 2 CFR
Part 180; and (iii) Other applicable federal laws, regulations, or requirements regarding
participation with debarred or suspended recipients or third party participants.
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(3) It will review the U.S. GSA “System for Award Management – Lists of Parties
Excluded from Federal Procurement and Nonprocurement Programs,” if required by
U.S. DOT regulations, 2 CFR Part 1200.
9. ADA Access Requirements
The Consultant shall comply with all applicable requirements of the Americans with
Disabilities Act of 1990 (ADA), 42 USC Section 12101 et seq; Section 504 of the
Rehabilitation Act of 1973, as amended, 29 USC Section 794; 49 USC Section 5301(d).
10. Fly America
.
To the extent applicable to the Services, the Consultant agrees to comply with 49
U.S.C. 40118 (the "Fly America" Act) in accordance with the General Services
Administration's regulations at 41 CFR Part 301-10, which provide that recipients and
sub recipients of Federal funds and their consultants are required to use U.S. Flag air
carriers for U.S. Government-financed international air travel and transportation of their
personal effects or property, to the extent such service is available, unless travel by
foreign air carrier is a matter of necessity, as defined by the Fly America Act. The
Consultant shall submit, if a foreign air carrier was used, an appropriate certification or
memorandum adequately explaining why service by a U.S. flag air carrier was not
available or why it was necessary to use a foreign air carrier and shall, in any event,
provide a certificate of compliance with the Fly America requirements. The Consultant
agrees to include the requirements of this section in all subcontracts that may involve
international air transportation.
11. Cargo Preference - Use of United States-Flag Vessels
To the extent applicable to the Services, the Consultant agrees:
1. To use privately owned United States-Flag commercial vessels to ship at
least 50 percent of the gross tonnage (computed separately for dry bulk
carriers, dry cargo liners, and tankers) involved, whenever shipping any
equipment, material, or commodities pursuant to the underlying contract to
the extent such vessels are available at fair and reasonable rates for United
States-Flag commercial vessels;
2. To furnish within 20 working days following the date of loading for shipments
originating within the United States or within 30 working days following the
date of leading for shipments originating outside the United States, a legible
copy of a rated, "on-board" commercial ocean bill-of -lading in English for
each shipment of cargo described in the preceding paragraph to the Division
of National Cargo, Office of Market Development, Maritime Administration,
Washington, DC 20590 and to the FTA recipient (through the Consultant in
the case of a subconsultant's bill-of-lading.)
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3. To include these requirements in all subcontracts issued pursuant to this
contract when the subcontract may involve the transport of equipment,
material, or commodities by ocean vessel.
11. Buy America – Not applicable.
12. Employment Provisions
To the extent applicable to the Services, Consultant shall comply with the following:
A. Equal Employment Opportunity — Not applicable.
B. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c) — Not applicable.
C. Contact Work Hours and Safety Standards Act (40 U.S.C. 327–333) —Not
applicable.
D. Release of Retainage
No retainage will be withheld by the RCTC from progress payments due Consultant.
Retainage by Consultant or subconsultants is prohibited, and no retainage will be held
by the prime consultant from progress due subconsultants. Any violation of this
provision shall subject the violating Consultant or subconsultants to the penalties,
sanctions, and other remedies specified in Section 7108.5 of the California Business
and Professions Code. This requirement shall not be construed to limit or impair any
contractual, administrative, or judicial remedies, otherwise available to Consultant or
subconsultant in the event of a dispute involving late payment or nonpayment by
Consultant or deficient subconsultant performance, or noncompliance by a
subconsultant.
13. Termination for Convenience
RCTC may terminate the Agreement for convenience in accordance with the terms of
the Agreement.
After such termination, the Consultant shall submit a final termination settlement
proposal to RCTC as directed. If the Consultant fails to submit a proposal within the
time allowed, RCTC may determine, on the basis of information available, the amount, if
any due the Consultant because of the termination and shall pay the amount
determined. After the Consultant’s proposal is received, RCTC and Consultant shall
negotiate a fair and equitable settlement and the contract will be modified to reflect the
negotiated agreement. If agreement cannot be reached, RCTC may issue a final
determination and pay the amount determined. If the Consultant does not agree with
this final determination or the determination resulting from the lack of timely submission
of a proposal, the Consultant may appeal under the Disputes clause.
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14. Administrative and Contractual Remedies on Breach; Termination for
Cause
a.The Consultant may be declared in breach of this Agreement (“Breach”) if the Consultant
fails to make delivery of the supplies or to perform the services within the time specified
herein or any extension thereof; or if the Consultant fails to perform any of the other
provisions of the contract, or so fails to make progress as to endanger performance of
this contract in accordance with its terms. In case of any of the foregoing, RCTC shall
notify the Consultant of the Breach, and the Consultant shall have a period of ten (10)
days (or such longer period as RCTC may authorize in writing) after receipt of notice
from RCTC to cure the Breach.
b. RCTC may, by written notice of termination to the Consultant specifying the
effective date thereof, terminate the whole or any part of this contract, in the case of a
Breach that is not cured within the timeframe set forth in (a) above (“Uncured Breach”).
c. If the contract is terminated in whole or in part for an Uncured Breach, RCTC
may procure upon such terms and in such manner as RCTC may deem appropriate,
supplies or services similar to those so terminated, or may complete the services with
its own forces. The Consultant shall be liable to RCTC for any excess costs for such
similar supplies or services, and for any other costs incurred by RCTC as a result of the
Uncured Breach. The Consultant shall continue the performance of this contract to the
extent not terminated under the provisions of this clause.
d. Except with respect to defaults of Subconsultants, the Consultant shall not be
liable for any excess costs if the failure to perform the contract arises out of causes
beyond the control and without the fault or negligence of the Consultant. If the failure to
perform is caused by the default of a Subconsultant, and if such default arises out of
causes beyond the control of both the Consultant and the Subconsultant, and without
the fault or negligence of either of them, the Consultant shall not be liable for any
excess costs for failure to perform, unless the supplies or services to be furnished by
the Subconsultant were obtainable from other sources in sufficient time to permit the
Consultant to meet the required project completion schedule.
e. Payment for completed services or supplies delivered to and accepted by RCTC
shall be at the contract price. RCTC may withhold from amounts otherwise due the
Consultant for such completed services or supplies such sum as RCTC determines to
be necessary to protect RCTC against loss because of outstanding liens of claims of
former lien holders, or to reimburse RCTC for any other costs related to the Uncured
Breach.
f. If, after notice of termination of this contract for cause, it is determined for any
reason that an Uncured Breach did not exist, the rights and obligations of the parties
shall be the same as if the notice of termination had been issued pursuant to the
provisions for termination for convenience of RCTC.
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g. The rights and remedies of RCTC provided in this clause shall not be exclusive
and are in addition to any other rights and remedies provided by law, equity or under
this contract including, but not limited to, the right to specific performance.
h. Notwithstanding the above, RCTC may, without providing an opportunity to cure,
terminate the contract in accordance with the timeframe set forth in Section 17 of the
contract, if RCTC determines such action is in its best interest based on the nature of
the Breach. Such actions shall not limit any of RCTC’s remedies set forth above.
16. Disputes
a. Except as otherwise provided in this Agreement, any dispute concerning a
question of fact arising under this Agreement which is not disposed of by supplemental
agreement shall be
decided by RCTC’s Deputy Executive Director, who shall reduce the decision to writing
and mail or otherwise furnish a copy thereof to the Consultant. The decision of the
RCTC Deputy Executive Director shall be final and conclusive unless, within thirty (30)
days from the date of receipt of such copy, Consultant mails or otherwise furnishes to
the RCTC Deputy Executive Director a written appeal addressed to RCTC's Executive
Director. The decision of RCTC Executive Director or duly authorized representative for
the determination of such appeals shall be final and conclusive.
b. The provisions of this Paragraph shall not be pleaded in any suit involving a
question of fact arising under this Agreement as limiting judicial review of any such
decision to cases where fraud by such official or his representative or board is alleged,
provided, however, that any such decision shall be final and conclusive unless the same
is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply
bad faith or is not supported by substantial evidence. In connection with any appeal
proceeding under this Paragraph, the Consultant shall be afforded an opportunity to be
heard and to offer evidence in support of its appeal.
c. Pending final decision of a dispute hereunder, Consultant shall proceed diligently
with the performance of this Agreement and in accordance with the decision of RCTC's
Deputy Executive Director. This "Disputes" clause does not preclude consideration of
questions of law in connection with decisions provided for above. Nothing in this
Agreement, however, shall be construed as making final the decision of any RCTC
official or representative on a question of law, which questions shall be settled in
accordance with the laws of the State of California.
17. Lobbying
See the Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying
Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] -
Consultants who apply or bid for an award of $100,000 or more shall file the
certification required by 49 CFR part 20, "New Restrictions on Lobbying.” Each tier
certifies to the tier above that it will not and has not used Federal appropriated funds to
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pay any person or organization for influencing or attempting to influence an officer or
employee of any agency, a member of Congress, officer or employee of Congress, or
an employee of a member of Congress in connection with obtaining any Federal
contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also
disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has
made lobbying contacts on its behalf with non-Federal funds with respect to that
Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are
forwarded from tier to tier up to the recipient. The Offeror shall complete and submit
with its bid/proposal the attached Certification Regarding Lobbying, and if applicable,
the Standard Form-LLL, “Disclosure Form to Report Lobbying.”
18. Energy Conservation
The Consultant agrees to comply with mandatory standards and policies relating to
energy efficiency which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act.
19. Clean Water
a. The Consultant 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. The Consultant agrees to report each violation to RCTC and understands
and agrees that RCTC will, in turn, report each violation as required to assure
notification to FTA and the appropriate EPA Regional Office.
d. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List
of Violating Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as
amended, (42 U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as
amended, (33 U.S.C. §§ 1251-1387).
The Consultant also agrees to include these requirements in each subcontract
exceeding $150,000 financed in whole or in part with Federal assistance provided by
FTA.
20. Clean Air
a. The Consultant 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. The Consultant agrees to report each violation to RCTC and understands and
agrees that RCTC will, in turn, report each violation as required to assure notification to
FTA and the appropriate EPA Regional Office.
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b. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List
of Violating Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as
amended, (42 U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as
amended, (33 U.S.C. §§ 1251-1387).
c. The Consultant also agrees to include these requirements in each subcontract
exceeding $150,000 financed in whole or in part with Federal assistance provided by
FTA.
21. Recycled Products
Recovered Materials - The Consultant agrees to comply with all the requirements of
Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended
(42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part
247, and Executive Order
12873, as they apply to the procurement of the items designated in Subpart B of 40
CFR Part 247.
21. SPECIAL PROVISION FOR PROMOTING COVID-19 SAFETY
Section 49. Centers for Disease Control and Prevention Order on Requirements
for Persons to Wear Masks While on Conveyances and at Transportation Hubs.
(a) Compliance with CDC Mask Order. The Centers for Disease Control and Prevention
(“CDC”) Order of January 29, 2021, titled Requirement for Persons to Wear Masks
While on Conveyances and at Transportation Hubs (“CDC Mask Order”), applies to this
Agreement. One of the objectives of the CDC Mask Order is “[m]aintaining a safe and
operating transportation system.” Consultant agrees that it will comply, and will require
all subconsultants to comply, with the CDC Mask Order.
(b) Enforcement for non-compliance. Consultant agrees that FTA and RCTC may take
enforcement action for non-compliance with the CDC Mask Order, including: (1)
enforcement actions authorized by 49 U.S.C. § 5329(g); (2) referring Consultant to the
CDC or other Federal authority for enforcement action; (3) enforcement actions
authorized by 2 CFR §§ 200.339 – .340; and (4) any other enforcement action
authorized by Federal law or regulation.
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FTA Requirements- Page 13
22. Safe Operation of Motor Vehicles
Pursuant to Federal Executive Order No. 13043, “Increasing Seat Belt Use in the
United States,” April 16, 1997, 23 U.S.C. Section 402 note, FTA encourages each third
party consultant to adopt and promote on-the-job seat belt use policies and programs
for its employees and other personnel that operate company owned, rented, or
personally operated vehicles, and to include this provision in each third party
subcontract involving the project.
a. The Consultant is encouraged to adopt and promote on-the-job seat belt use policies
and programs for its employees and other personnel that operate company-owned
vehicles, company-rented vehicles, or personally operated vehicles. The terms
“company-owned” and “company-leased” refer to vehicles owned or leased either by
the Consultant or RCTC.
. The Consultant agrees to adopt and enforce workplace safety policies to
decrease crashes
caused by distracted drivers, including policies to ban text messaging while using an
electronic device supplied by an employer, and driving a vehicle the driver owns or
rents, a vehicle Contactor owns, leases, or rents, or a privately-owned vehicle when on
official business in connection with the work performed under this contract.
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17336.00023\34328429.1
Exhibit E-1
EXHIBIT "E"
CERTIFICATE OF CONSULTANT
I HEREBY CERTIFY that I am the _______________________ and duly authorized
representative of the firm of _____________________________________ whose address
is ____________________________________________________, and that, except as
hereby expressly stated, neither I nor the above firm that I represent have:
(a) employed or retained for a commission, percentage, brokerage, contingent
fee, or other consideration, any firm or person (other than a bona fide
employee working solely for me or the above consultant) to solicit or secure
this agreement; nor
(b) agreed, as an express or implied condition for obtaining this Agreement, to
employ or retain the services of any firm or person in connection with carrying
out the agreement; nor
(c) paid, or agreed to pay, to any firm, organization or person (other than a bona
fide employee working solely for me or the above consultant) any fee,
contribution, donation, or consideration of any kind for, or in connection with,
procuring or carrying out this agreement.
I acknowledge that this Certificate is to be made available to the California
Department of Transportation (Caltrans) in connection with this agreement involving
participation of Federal-aid Highway funds, and is subject to applicable State and Federal
laws, both criminal and civil.
By: ____________________________
Signature
____________________________
Name
____________________________
Title
____________________________
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Local Assistance Procedures Manual EXHBIT 10-Q
Disclosure of Lobbying Activities
Page 1
LPP 13-01 May 8, 2013
EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES
COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVITIES PURSUANT TO 31 U.S.C. 1352
1.Type of Federal Action:2.Status of Federal Action:3.Report Type:
a. contract a. bid/offer/application a. initial
b. grant b. initial award b. material change
c. cooperative agreement c. post-award
d. loan For Material Change Only:
e. loan guarantee year ____ quarter _________
f. loan insurance date of last report __________
4.Name and Address of Reporting Entity 5.If Reporting Entity in No. 4 is Subawardee,
Enter Name and Address of Prime:
Prime Subawardee
Tier _______ , if known
Congressional District, if known Congressional District, if known
6.Federal Department/Agency:7.Federal Program Name/Description:
CFDA Number, if applicable ____________________
8.Federal Action Number, if known:9.Award Amount, if known:
10.Name and Address of Lobby Entity 11.Individuals Performing Services
(If individual, last name, first name, MI) (including address if different from No. 10)
(last name, first name, MI)
(attach Continuation Sheet(s) if necessary)
12.Amount of Payment (check all that apply)14.Type of Payment (check all that apply)
$ _____________ actual planned a. retainer
b. one-time fee
13.Form of Payment (check all that apply):c. commission
a. cash d. contingent fee
b. in-kind; specify: nature _______________e deferred
Value _____________ f. other, specify _________________________
15.Brief Description of Services Performed or to be performed and Date(s) of Service, including
officer(s), employee(s), or member(s) contacted, for Payment Indicated in Item 12:
(attach Continuation Sheet(s) if necessary)
16.Continuation Sheet(s) attached: Yes No
17.Information requested through this form is authorized by Title
31 U.S.C. Section 1352. This disclosure of lobbying reliance
was placed by the tier above when his transaction was made or
entered into. This disclosure is required pursuant to 31 U.S.C.
1352. This information will be reported to Congress
semiannually and will be available for public inspection. Any
person who fails to file the required disclosure shall be subject
to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Signature: ________________________________________
Print Name: _______________________________________
Title: ____________________________________________
Telephone No.: ____________________ Date: ___________
Authorized for Local Reproduction
Federal Use Only: Standard Form - LLL
Standard Form LLL Rev. 04-28-06
Distribution: Orig- Local Agency Project Files
APPENDIX L - 1
None
None
X
Christine S. Santolucito
President
951-225-3500 x 101 10/21/2021
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AGENDA ITEM 9
Agenda Item 9
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: November 22, 2021
TO: Western Riverside County Program and Projects Committee
FROM: Gary Ratliff, Facilities Administrator
THROUGH: Marlin Feenstra, Project Delivery Director
SUBJECT: Agreement for Railroad Right of Way Property Maintenance Services
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Approve Agreement No. 22-33-014-00 with Joshua Grading & Excavating, Inc. for property
maintenance services of Commission-owned railroad right of way (ROW) property for a
five-year term in an amount not to exceed of $4.3 million;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize and
execute the agreement on behalf of the Commission;
3) Authorize the Executive Director, or designee, to execute task orders awarded to the
contractor under the terms of the agreement; and
4) Forward to the Commission for final action.
BACKGROUND INFORMATION:
The Commission owns and maintains the San Jacinto Branch Line (SJBL) ROW, which includes
twenty-four miles of operating railroad line and seventeen miles of non-operating rail line within
the county of Riverside. The ROW is approximately 480 acres in size. The Perris Valley Line (PVL)
is operated within the SJBL ROW through Riverside, Moreno Valley, and Perris, by the Southern
California Regional Rail Authority (SCRRA). SCRRA operations include Metrolink commuter rail
trains and BNSF Railway freight trains. The active PVL ROW maintenance service begins at the
intersection of Iowa and Citrus in the city of Riverside and ends just south of the Perris South
Metrolink station. The non-operating area starts at the intersection of Sherman Avenue and
Case Road in the city of Perris, and ends north of West 7th Street in the city of San Jacinto.
To comply with the Code of Federal Regulations, Title 49 Rail Safety, and other state and local
laws, the Commission has the responsibility to provide various maintenance related services.
Comprehensive ROW property maintenance services provide weed and vegetation control to
achieve fire hazard prevention, herbicide and pesticide applications, trash and debris removal,
graffiti abatement, minor grading work, drainage maintenance and repair, fencing installation
and repair, tree maintenance, signal and sign maintenance, abatement of illegal structures,
shelters, and related items, removal of encampments, and removal of hazardous materials.
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Agenda Item 9
PROCUREMENT PROCESS:
Staff determined the weighted factor method of source selection to be the most appropriate for
this procurement, as it allows the Commission to identify the most advantageous proposal with
price and other factors considered. Non-price factors include elements such as qualifications of
firm and personnel and understanding and approach for railroad right of way property
maintenance services as set forth under the terms of Request for Proposals (RFP)
No. 22-33-014-00.
RFP No. 22-33-014-00 for railroad ROW property maintenance services was released by staff on
September 10, 2021. The RFP was posted on the Commission’s PlanetBids website, which is
accessible through the Commission’s website. Utilizing PlanetBids, emails were sent to 80 firms,
23 of which are located in Riverside County. Through the PlanetBids site, 28 firms downloaded
the RFP, and 2 of these firms are located in Riverside County. Staff responded to all questions
submitted by potential proposers prior to the September 23, 2021 clarification deadline date.
Two firms – Joshua Grading and Excavating, Inc. (Phelan), and RailWorks Track Systems (Santa Fe
Springs) – submitted responsive proposals prior to the 2:00 p.m. submittal deadline on
October 21, 2021. Utilizing the evaluation criteria set forth in the RFP, all firms were evaluated
and scored by an evaluation committee comprised of Commission and Bechtel staff.
As a result of the evaluation committee’s assessment of the written proposals, the evaluation
committee recommends contract award to Joshua Grading and Excavating Inc. for Railroad ROW
Property Maintenance Services for a five-year term, not to exceed $4.3 million, as this firm
earned the highest total evaluation score.
A summary of the proposed costs submitted with the written proposals and the total evaluation
score rankings following the final evaluation are summarized below:
Firm Price Overall Ranking
Joshua Grading and Excavating, Inc. $1,680,170.00 1
RailWorks Track Systems $2,089,545.95 2
The Commission’s model on-call professional services agreement will be entered into with the
contractor, pursuant to legal counsel review. Staff oversight of the contract and task orders will
maximize the effectiveness of the contractor and minimize costs to the Commission. Staff
recommends authorization for the Chair or Executive Director to finalize and execute the
agreement on behalf of the Commission and for the Executive Director, or designee, to execute
task orders awarded to the contractor under the terms of the agreement.
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Agenda Item 9
Financial Information
In Fiscal Year Budget: Yes
N/A Year: FY 2021/22
FY 2022/23+ Amount: $450,000
$3,850,000
Source of Funds: 2009 Measure A Western County Rail
Funds Budget Adjustment: No
N/A
GL/Project Accounting No.: 653800 86105 00000 0000 265 33 86105
XXXXXX 86105 00000 0000 265 33 86105 (various projects)
Fiscal Procedures Approved: Date: 11/10/2021
Attachment: Draft Agreement No. 22-33-014-00 with Joshua Grading and Excavating, Inc.
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RIVERSIDE COUNTY TRANSPORTATION COMMISSION
ROUTINE AND ON-CALL
RAILROAD RIGHT OF WAY MAINTENANCE SERVICES AGREEMENT
1.PARTIES AND DATE.
This Agreement is made and entered into this [***INSERT DAY***] day of [***INSERT
MONTH***], 2021 by and between the Riverside County Transportation Commission
(“Commission”) and Joshua Grading and Excavating, a Corporation with its principal place of
business at 8450 White Road, Phelan, CA 92371 (“Contractor”). Commission and Contractor are
sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
2.RECITALS.
2.1 Commission is the Transportation Commission for the County of Riverside
and organized under the laws of the State of California with the power to contract for services
necessary to achieve its purpose.
2.2 Commission owns and operates nine (9) commuter rail stations and one
transit center serving Riverside County, the addresses and descriptions of which are set forth in
Exhibit “A”, attached hereto and incorporated herein by reference (“Commuter Rail Stations”).
2.3 On or about September 10, 2021, Commission issued a Request for
Proposals No. 22-33-014-00 (“RFP”), pursuant to which Commission sought proposals from
contractors to provide routine and on-call railroad right of way maintenance services.
2.4 Contractor desires to perform and assume responsibility for the provision of
certain routine and on-call railroad right of way maintenance services required by Commission on
the terms and conditions set forth in this Agreement.
2.5 The work generally includes [INSERT GENERAL DESCRIPTION OF
SERVICES]. Contractor represents that it is a professional Contractor, experienced in providing
routine and on-call railroad right of way maintenance services to public clients, is familiar with
the plans of Commission and is licensed in the State of California. A General Engineering
Contractor License A is required for this Agreement.
2.6 On-call railroad right of way services shall be provided on the terms and
conditions set forth in this Agreement and in the task order(s) to be solicited, awarded and
authorized by Commission as further described in this Agreement (“Task Order”).
2.7 Commission desires to engage Contractor to render such services on a
routine and an on-call basis as further detailed in this Agreement. Routine railroad right of way
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maintenance services shall be as set forth in Exhibit “A”, attached hereto and incorporated herein
by reference. On-call railroad right of way services shall be ordered by Task Order(s) to be issued
pursuant to this Agreement for future projects as set forth herein. The routine services set forth in
Exhibit “A” and each individual project ordered under a Task Order shall be referred to, herein,
collectively, as the “Project”.
3. TERMS.
3.1 Statement of Services and Term.
3.1.1 General Statement of Services. Contractor promises and agrees to furnish
to Commission all labor materials, tools, equipment, services, and incidental and customary work,
as necessary, to fully and adequately provide the routine railroad right of way maintenance services
as set forth in Exhibit “A” and any on-call railroad right of way maintenance services required by
Commission, as shall be set forth in a Task Order, collectively referred to herein as the "Services".
On-call Services shall be more particularly described in the individual Task Orders issued by the
Commission’s Executive Director or designee. No on-call Services shall be performed unless
authorized by a fully executed Task Order. All Services shall be subject to, and performed in
accordance with this Agreement, the relevant Task Order, the exhibits attached hereto and
incorporated herein by reference, and all applicable local, state and federal laws, rules and
regulations.
3.1.2 Term. The term of this Agreement shall be from [***INSERT START
DATE***] to [***INSERT ENDING DATE***], unless earlier terminated as provided herein.
Contractor shall complete the Services within the term of this Agreement, and shall meet any other
established schedules and deadlines. The Parties may, by mutual, written consent, extend the term
of this Agreement if necessary to complete the Services.
3.2 Responsibilities of Contractor.
3.2.1 Control and Payment of Subordinates; Independent Contractor. The
Services shall be performed by Contractor or under its supervision. Contractor will determine the
means, methods and details of performing the Services subject to the requirements of this
Agreement. Commission retains Contractor on an independent contractor basis and not as an
employee. Contractor retains the right to perform similar or different services for others during
the term of this Agreement. Any additional personnel performing the Services under this
Agreement on behalf of Contractor shall also not be employees of Commission and shall at all
times be under Contractor’s exclusive direction and control. Contractor shall pay all wages,
salaries, and other amounts due such personnel in connection with their performance of Services
under this Agreement and as required by law. Contractor shall be responsible for all reports and
obligations respecting such additional personnel, including, but not limited to: social security
taxes, income tax withholding, unemployment insurance, disability insurance, and workers’
compensation insurance.
3.2.2 Schedule of Services.
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(A) Routine Services. Contractor shall perform the routine railroad right of way
maintenance Services expeditiously, within the term of this Agreement, and in accordance with
the schedule provided by the Commission’s representative..
(B) Task Orders; Commencement of Services; Schedule of Services. On-call
Services under this Agreement shall be requested by the Commission pursuant to Task Order
requests. If Commission accepts Consultant’s Task Order proposal, Commission shall issue a
purchase order or executed task order for the Services (“Commission’s Task Order
Authorization”). Consultant’s agreement to the final terms of a proposed Task Order,
Commission’s Task Order Authorization and Consultant’s commencement of the Services shall
indicate the Parties’ agreement to the terms of the relevant Task Order.
Consultant shall commence Services under a Task Order within five (5) days of
receiving Commission’s Task Order Authorization.
Consultant shall perform the on-call Services expeditiously, in accordance with the
Schedule of Services set forth in a Task Order.
(C) Conformance to Schedule. Consultant represents that it has the professional
and technical personnel required to perform the Services in conformance with the conditions
detailed herein. In order to facilitate Consultant's conformance with the Schedule, Commission
shall respond to Consultant's submittals in a timely manner. Upon request of the Commission,
Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule
of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by
Contractor shall be subject to the approval of Commission.
3.2.4 Commission’s Representative. The Commission hereby designates
Executive Director, or his or her designee, to act as its representative for the performance of this
Agreement (“Commission’s Representative”). Commission’s Representative shall have the power
to act on behalf of the Commission for all purposes under this Agreement. Contractor shall not
accept direction or orders from any person other than the Commission’s Representative or his or
her designee.
3.2.5 Contractor’s Representative. Contractor hereby designates Muriel Craft,
President, or his or her designee, to act as its representative for the performance of this Agreement
(“Contractor’s Representative”). Contractor’s Representative shall have full authority to represent
and act on behalf of the Contractor for all purposes under this Agreement. The Contractor’s
Representative shall supervise and direct the Services, using his best skill and attention, and shall
be responsible for all means, methods, techniques, sequences and procedures and for the
satisfactory coordination of all portions of the Services under this Agreement.
3.2.6 Coordination of Services. Contractor agrees to work closely with
Commission staff in the performance of Services and shall be available to Commission’s staff,
consultants and other staff at all reasonable times.
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3.2.7 Standard of Care; Performance of Employees. Contractor shall perform all
Services under this Agreement in a skillful and competent manner, consistent with the standards
generally recognized as being employed by professionals in the same discipline in the State of
California. Contractor represents and maintains that it is skilled in the professional calling
necessary to perform the Services. Contractor warrants that all employees and subcontractors shall
have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor
represents that it, its employees and subcontractors have all licenses, permits, qualifications and
approvals of whatever nature that are legally required to perform the Services, and that such
licenses and approvals shall be maintained throughout the term of this Agreement. As provided
for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost
and expense and without reimbursement from the Commission, any services necessary to correct
errors or omissions which are caused by the Contractor’s failure to comply with the standard of
care provided for herein. Any employee of the Contractor or its sub-contractors who is determined
by the Commission to be uncooperative, incompetent, a threat to the adequate or timely completion
of the Project, a threat to the safety of persons or property, or any employee who fails or refuses
to perform the Services in a manner acceptable to the Commission, shall be promptly removed
from the Project by the Contractor and shall not be re-employed to perform any of the Services or
to work on the Project.
3.2.8 Period of Performance. Contractor shall perform and complete all Services
under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”).
Contractor shall perform the Services in strict accordance with any completion schedule or Project
milestones described in Exhibits “A” or “B” attached hereto, or which may be provided separately
in writing to the Contractor. Contractor agrees that if the Services are not completed within the
aforementioned Performance Time and/or pursuant to any such completion schedule or Project
milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged
and agreed that the Commission will suffer damage.
3.2.9 Disputes. Should any dispute arise respecting the true value of any work
done, of any work omitted, or of any extra work which Contractor may be required to do, or
respecting the size of any payment to Contractor during the performance of this Contract,
Contractor shall continue to perform the Work while said dispute is decided by the Commission.
If Contractor disputes the Commission’s decision, Contractor shall have such remedies as may be
provided by law.
3.2.10 Laws and Regulations; Employee/Labor Certifications. Contractor shall
keep itself fully informed of and in compliance with all local, state and federal laws, rules and
regulations in any manner affecting the performance of the Project or the Services, including all
Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for
all violations of such laws and regulations in connection with Services. If the Contractor performs
any work knowing it to be contrary to such laws, rules and regulations and without giving written
notice to the Commission, Contractor shall be solely responsible for all costs arising therefrom.
Commission is a public entity of the State of California subject to, among other rules and
regulations, the Public Utilities Code, Public Contract Code, and Labor Code of the State. It is
stipulated and agreed that all provisions of the law applicable to the public contracts of a county
transportation commissions are a part of this Agreement to the same extent as though set forth
herein and will be complied with. These include but are not limited to the payment of prevailing
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wages, the stipulation that eight (8) hours' labor shall constitute a legal day's work and that no
worker shall be permitted to work in excess of eight (8) hours during any one calendar day except
as permitted by law. Contractor shall defend, indemnify and hold Commission, its officials,
officers, employees and agents free and harmless, pursuant to the indemnification provisions of
this Agreement, from any claim or liability arising out of any failure or alleged failure to comply
with such laws, rules or regulations.
3.2.10.1 Employment Eligibility; Contractor. By executing this
Agreement, Contractor verifies that it fully complies with all requirements and restrictions of state
and federal law respecting the employment of undocumented aliens, including, but not limited to,
the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such
requirements and restrictions include, but are not limited to, examination and retention of
documentation confirming the identity and immigration status of each employee of the Contractor.
Contractor also verifies that it has not committed a violation of any such law within the five (5)
years immediately preceding the date of execution of this Agreement, and shall not violate any
such law at any time during the term of the Agreement. Contractor shall avoid any violation of
any such law during the term of this Agreement by participating in an electronic verification of
work authorization program operated by the United States Department of Homeland Security, by
participating in an equivalent federal work authorization program operated by the United States
Department of Homeland Security to verify information of newly hired employees, or by some
other legally acceptable method. Contractor shall maintain records of each such verification, and
shall make them available to the Commission or its representatives for inspection and copy at any
time during normal business hours. The Commission shall not be responsible for any costs or
expenses related to Contractor’s compliance with the requirements provided for in Section 3.2.10
or any of its sub-sections.
3.2.10.2 Employment Eligibility; Subcontractors, Sub-
subcontractors and consultants. To the same extent and under the same conditions as Contractor,
Contractor shall require all of its subcontractors, sub-subcontractors and consultants performing
any work relating to the Project or this Agreement to make the same verifications and comply with
all requirements and restrictions provided for in Section 3.2.10.1.
3.2.10.3 Employment Eligibility; Failure to Comply. Each person
executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer
of Contractor, and understands that any of the following shall be grounds for the Commission to
terminate the Agreement for cause: (1) failure of Contractor or its subcontractors, sub-
subcontractors or consultants to meet any of the requirements provided for in Sections 3.2.10.1 or
3.2.10.2; (2) any misrepresentation or material omission concerning compliance with such
requirements (including in those verifications provided to the Contractor under Section 3.2.10.2);
or (3) failure to immediately remove from the Project any person found not to be in compliance
with such requirements.
3.2.10.4 Labor Certification. By its signature hereunder, Contractor
certifies that it is aware of the provisions of Section 3700 of the California Labor Code which
require every employer to be insured against liability for Workers’ Compensation or to undertake
self-insurance in accordance with the provisions of that Code, and agrees to comply with such
provisions before commencing the performance of the Services.
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3.2.10.5 Equal Opportunity Employment. Contractor represents that
it is an equal opportunity employer and it shall not discriminate against any subcontractor,
employee or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities
related to initial employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff or termination. Contractor shall also comply with all relevant provisions of
Commission’s Disadvantaged Business Enterprise program, Affirmative Action Plan or other
related programs or guidelines currently in effect or hereinafter enacted.
3.2.10.6 Air Quality. Contractor must fully comply with
all applicable laws, rules and regulations in furnishing or using equipment and/or providing
services, including, but not limited to, emissions limits and permitting requirements imposed by
the California Air Resources Board (CARB). Contractor shall specifically be aware of the CARB
limits and requirements’ application to "portable equipment", which definition is considered by
CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify
Commission against any fines or penalties imposed by CARB or any other governmental or
regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its
subcontractors, or others for whom Contractor is responsible under its indemnity obligations
provided for in this Agreement.
3.2.10.7 Water Quality.
(A) Management and Compliance. To the extent applicable,
Contractor’s Services must account for, and fully comply with, all local, state and federal laws,
rules and regulations that may impact water quality compliance, including, without limitation, all
applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the
California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws,
rules and regulations of the Environmental Protection Agency and the State Water Resources
Control Board; the Commission’s rules regarding discharges of storm water; and any and all
regulations, policies, or permits issued pursuant to any such authority regulating the discharge of
pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or
surface water in the State.
(B) Liability for Non-Compliance. Failure to comply with the
laws, regulations and policies described in this Section is a violation of law that may subject
Contractor or Commission to penalties, fines, or additional regulatory requirements. Contractor
shall defend, indemnify and hold the Commission, its officials, officers, employees, volunteers
and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from
and against any and all fines, penalties, claims or other regulatory requirements imposed as a result
of Contractor’s non-compliance with the laws, regulations and policies described in this Section,
unless such non-compliance is the result of the sole established negligence, willful misconduct or
active negligence of the Commission, its officials, officers, agents, employees or authorized
volunteers.
(C) Training. In addition to any other standard of care
requirements set forth in this Agreement, Contractor warrants that all employees and
subcontractors shall have sufficient skill and experience to perform the Services assigned to them
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without impacting water quality in violation of the laws, regulations and policies described in this
Section. Contractor further warrants that it, its employees and subcontractors will receive adequate
training, as determined by Commission, regarding the requirements of the laws, regulations and
policies described in this Section as they may relate to the Services provided under this Agreement.
Upon request, Commission will provide Contractor with a list of training programs that meet the
requirements of this paragraph.
3.2.11 Insurance.
3.2.11.1 Time for Compliance. Contractor shall not commence work
under this Agreement until it has provided evidence satisfactory to the Commission that it has
secured all insurance required under this section, in a form and with insurance companies
acceptable to the Commission. In addition, Contractor shall not allow any subcontractor to
commence work on any subcontract until it has secured all insurance required under this section.
3.2.11.2 Minimum Requirements. Contractor shall, at its expense,
procure and maintain for the duration of the Agreement insurance against claims for inj uries to
persons or damages to property which may arise from or in connection with the performance of
the Agreement by the Contractor, its agents, representatives, employees or subcontractors.
Contractor shall also require all of its subcontractors to procure and maintain the same insurance
for the duration of the Agreement. Such insurance shall meet at least the following minimum levels
of coverage:
(A) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2)
Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1
(any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability:
Workers’ Compensation insurance as required by the State of California and Employer’s Liability
Insurance.
(B) Minimum Limits of Insurance. Contractor shall maintain
limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form with general
aggregate limit is used, either the general aggregate limit shall apply separately to this
Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2)
Automobile Liability: $2,000,000 per accident for bodily injury and property damage; and (3) if
Contractor has an employees, Workers’ Compensation and Employer’s Liability: Workers’
Compensation limits as required by the Labor Code of the State of California. Employer’s
Practices Liability limits of $1,000,000 per accident.
3.2.11.3 Insurance Endorsements. The insurance policies shall
contain the following provisions, or Contractor shall provide endorsements on forms approved by
the Commission to add the following provisions to the insurance policies:
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(A) General Liability.
(i) Commercial General Liability Insurance must
include coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury;
(3) premises/operations liability; (4) products/completed operations liability; (5) aggregate limits
that apply per Project; (6) explosion, collapse and underground (UCX) exclusion deleted; (7)
contractual liability with respect to this Agreement; (8) broad form property damage; and (9)
independent contractors coverage.
(ii) The policy shall contain no endorsements or
provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or
suits by one insured against another; or (3) contain any other exclusion contrary to this Agreement.
(iii) The policy shall give the Commission, its directors,
officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01
and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the policy
shall be “primary and non-contributory” and will not seek contribution from the Commission’s
insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements
providing the exact same coverage.
(B) Automobile Liability. The automobile liability policy shall
be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and
agents shall be covered as additional insureds with respect to the ownership, operation,
maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the
Contractor or for which the Contractor is responsible; and (2) the insurance coverage shall be
primary insurance as respects the Commission, its directors, officials, officers, employees and
agents, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor’s
scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission,
its directors, officials, officers, employees and agents shall be excess of the Contractor’s insurance
and shall not be called upon to contribute with it in any way.
(C) Workers’ Compensation and Employers Liability Coverage.
(i) Contractor certifies that he/she is aware of the
provisions of Section 3700 of the California Labor Code which requires every employer to be
insured against liability for workers’ compensation or to undertake self-insurance in accordance
with the provisions of that code, and he/she will comply with such provisions before commencing
work under this Agreement.
(ii) The insurer shall agree to waive all rights of
subrogation against the Commission, its directors, officials, officers, employees and agents for
losses paid under the terms of the insurance policy which arise from work performed by the
Contractor. The Contractor hereby waives any such rights of subrogation that the Contractor may
have, and shall obtain a similar waiver from any subcontractors.
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(D) Railroad Protective Liability.
In addition to the above, Contractor shall, in connection with any
performance of the Services or the Project within twenty-five (25) feet vertically or horizontally
of the railroad tracks, either directly by Contractor or by its subconsultants, acquire and keep in
force during such performance, railroad protective liability insurance with a combined single limit
of two million dollars ($2,000,000) and a general aggregate of six million dollars ($6,000,000).
(E) All Coverages.
(i) Defense costs shall be payable in addition to the
limits set forth hereunder.
(ii) Requirements of specific coverage or limits
contained in this section are not intended as a limitation on coverage, limits, or other requirement,
or a waiver of any coverage normally provided by any insurance. It shall be a requirement under
this Agreement that any available insurance proceeds broader than or in excess of the specified
minimum insurance coverage requirements and/or limits set forth herein shall be available to the
Commission, its directors, officials, officers, employees and agents as additional insureds under
said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum
coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits
of coverage of any insurance policy or proceeds available to the named insured; whichever is
greater.
(iii) The limits of insurance required in this Agreement
may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or
excess insurance shall contain or be endorsed to contain a provision that such coverage shall also
apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a
written contract or agreement) before the Commission’s own insurance or self-insurance shall be
called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a
“following form” basis with coverage at least as broad as provided on the underlying policy(ies).
(iv) Contractor shall provide the Commission at least
thirty (30) days prior written notice of cancellation of any policy required by this Agreement,
except that the Contractor shall provide at least ten (10) days prior written notice of cancellation
of any such policy due to non-payment of premium. If any of the required coverage is cancelled
or expires during the term of this Agreement, the Contractor shall deliver renewal certificate(s)
including the General Liability Additional Insured Endorsement to the Commission at least ten
(10) days prior to the effective date of cancellation or expiration.
(v) The retroactive date (if any) of each policy is to be
no later than the effective date of this Agreement. Contractor shall maintain such coverage
continuously for a period of at least three years after the completion of the work under this
Agreement. Contractor shall purchase a one (1) year extended reporting period A) if the retroactive
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date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not
renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date
subsequent to the effective date of this Agreement.
(vi) The foregoing requirements as to the types and limits
of insurance coverage to be maintained by Contractor, and any approval of said insurance by the
Commission, is not intended to and shall not in any manner limit or qualify the liabilities and
obligations otherwise assumed by the Contractor pursuant to this Agreement, including but not
limited to, the provisions concerning indemnification.
(vii) If at any time during the life of the Agreement, any
policy of insurance required under this Agreement does not comply with these specifications or is
canceled and not replaced, Commission has the right but not the duty to obtain the insurance it
deems necessary and any premium paid by Commission will be promptly reimbursed by
Contractor or Commission will withhold amounts sufficient to pay premium from Contractor
payments. In the alternative, Commission may cancel this Agreement. The Commission may
require the Contractor to provide complete copies of all insurance policies in effect for the duration
of the Project.
(viii) Neither the Commission nor any of its directors,
officials, officers, employees or agents shall be personally responsible for any liability arising
under or by virtue of this Agreement.
Each insurance policy required by this Agreement shall be
endorsed to state that:
3.2.11.4 Deductibles and Self-Insurance Retentions. Any deductibles
or self-insured retentions must be declared to and approved by the Commission. If the Commission
does not approve the deductibles or self-insured retentions as presented, Contractor shall guarantee
that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects the Commission, its directors, officials, officers,
employees and agents; or, (2) the Contractor shall procure a bond guaranteeing payment of losses
and related investigation costs, claims and administrative and defense expenses.
3.2.11.5 Acceptability of Insurers. Insurance is to be placed with
insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California,
and satisfactory to the Commission.
3.2.11.6 Verification of Coverage. Contractor shall furnish
Commission with original certificates of insurance and endorsements effecting coverage required
by this Agreement on forms satisfactory to the Commission. The certificates and endorsements
for each insurance policy shall be signed by a person authorized by that insurer to bind coverage
on its behalf. All certificates and endorsements must be received and approved by the Commission
before work commences. The Commission reserves the right to require complete, certified copies
of all required insurance policies, at any time.
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3.2.11.7 Subcontractor Insurance Requirements. Contractor shall not allow
any subcontractors or subcontractors to commence work on any subcontract until they have
provided evidence satisfactory to the Commission that they have secured all insurance required
under this section. Policies of commercial general liability insurance provided by such
subcontractors or subcontractors shall be endorsed to name the Commission as an additional
insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If
requested by Contractor, the Commission may approve different scopes or minimum limits of
insurance for particular subcontractors or subcontractors.
3.2.12 Safety. Contractor shall execute and maintain its work so as to avoid
injury or damage to any person or property. In carrying out its Services, the Contractor shall at all
times be in compliance with all applicable local, state and federal laws, rules and regulations, and
shall exercise all necessary precautions for the safety of employees appropriate to the nature of the
work and the conditions under which the work is to be performed. Safety precautions as applicable
shall include, but shall not be limited to: (A) adequate life protection and life saving equipment
and procedures; (B) instructions in accident prevention for all employees and subcontractors, such
as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space
procedures, trenching and shoring, equipment and other safety devices, equipment and wearing
apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate
facilities for the proper inspection and maintenance of all safety measures.
3.2.13 Accounting Records. Contractor shall maintain complete and accurate
records with respect to all costs and expenses incurred under this Agreement. All such records
shall be clearly identifiable. Contractor shall allow a representative of Commission during normal
business hours to examine, audit, and make transcripts or copies of such records and any other
documents created pursuant to this Agreement. Contractor shall allow inspection of all work, data,
documents, proceedings, and activities related to the Agreement for a period of three (3) years
from the date of final payment under this Agreement.
3.3 Fees and Payments; Labor Code Requirements.
3.3.1 Compensation. Contractor shall receive compensation, including
authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in
Exhibit "B" attached hereto and incorporated herein by reference. The total compensation to be
provided under this Agreement, including all Task Orders issued pursuant to this Agreement shall
not exceed [__INSERT DOLLAR AMOUNT__]. The total compensation per Task Order shall
be set forth in the relevant Task Order, and shall not exceed said amount without the written
approval of the Commissioner’s Executive Director. Extra Work may be authorized, as described
below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation. Contractor shall submit to Commission a
monthly itemized statement which indicates work completed and hours of Services rendered by
Contractor. The statement shall describe the amount of Services and supplies provided since the
initial commencement date, or since the start of the subsequent billing periods, as appropriate,
through the date of the statement. Commission shall, within 45 days of receiving such statement,
review the statement and pay all approved charges thereon.
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3.3.3 Reimbursement for Expenses. Contractor shall not be reimbursed for any
expenses unless authorized in writing by Commission.
3.3.4 Extra Work. At any time during the term of this Agreement, Commission
may request that Contractor perform Extra Work. As used herein, “Extra Work” means any work
which is determined by Commission to be necessary for the proper completion of the Project, but
which the parties did not reasonably anticipate would be necessary at the execution of this
Agreement. Contractor shall not perform, nor be compensated for, Extra Work without written
authorization from Commission’s Representative.
3.3.5 Prevailing Wages. Contractor is aware of the requirements of California
Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations,
Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing
wage rates and the performance of other requirements on “public works” and “maintenance”
projects. Since the Services are being performed as part of an applicable “public works” or
“maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation
is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws.
Commission shall provide Contractor with a copy of the prevailing rates of per diem wages in
effect at the commencement of this Agreement. Contractor shall make copies of the prevailing
rates of per diem wages for each craft, classification or type of worker needed to execute the
Services available to interested parties upon request, and shall post copies at the Contractor’s
principal place of business and at the project site. Contractor shall defend, indemnify and hold the
Commission, its officials, officers, employees and agents free and harmless from any claim or
liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.3.6 Payroll Records. In accordance with the requirements of California Labor
Code Section 1776, Contractor shall keep accurate payroll records which are either on forms
provided by the Division of Labor Standards Enforcement or which contain the same information
required by such forms. Responsibility for compliance with California Labor Code Section 1776
shall rest solely with Contractor, and Contractor shall make all such records available for
inspection at all reasonable hours.
3.3.7 Registration. Since the Services are being performed as part of an
applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5
and 1771.1, the Contractor and all subcontractors must be registered with the Department of
Industrial Relations. Contractor shall maintain registration for the duration of the Project and
require the same of any subcontractor. This Project may also be subject to compliance monitoring
and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole
responsibility to comply with all applicable registration and labor compliance requirements.
3.3.8 Employment of Apprentices. This Agreement shall not prevent the
employment of properly indentured apprentices in accordance with the California Labor Code, and
no employer or labor union shall refuse to accept otherwise qualified employees as indentured
apprentices on the work performed hereunder solely on the ground of race, creed, national origin,
ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to
apprentices under the regulations of the craft or trade in which he or she is employed and shall be
employed only in the craft or trade to which he or she is registered.
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If California Labor Code Section 1777.5 applies to the Services, Contractor and
any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply
to the joint apprenticeship council administering applicable standards for a certificate approving
Contractor or any sub-contractor for the employment and training of apprentices. Upon issuance
of this certificate, Contractor and any sub-contractor shall employ the number of apprentices
provided for therein, as well as contribute to the fund to administer the apprenticeship program in
each craft or trade in the area of the work hereunder.
The parties expressly understand that the responsibility for compliance with
provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor
Code in regard to all apprenticeable occupations lies with Contractor.
3.3.9 Eight-Hour Law. Pursuant to the provisions of the California Labor Code,
eight hours of labor shall constitute a legal day's work, and the time of service of any worker
employed on the work shall be limited and restricted to eight hours during any one calendar day,
and forty hours in any one calendar week, except when payment for overtime is made at not less
than one and one-half the basic rate for all hours worked in excess of eight hours per day ("Eight-
Hour Law"), unless Contractor or the Services are not subject to the Eight-Hour Law. Contractor
shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this
Agreement by him, or by any sub-contractor under him, for each calendar day during which such
workman is required or permitted to work more than eight hours in any calendar day and fort y
hours in any one calendar week without such compensation for overtime violation of the provisions
of the California Labor Code, unless Contractor or the Services are not subject to the Eight-Hour
Law.
3.4 Termination of Agreement.
3.4.1 Grounds for Termination. Commission may, by written notice to
Contractor, terminate the whole or any part of this Agreement at any time and without cause by
giving written notice to Contractor of such termination, and specifying the effective date thereof,
at least seven (7) days before the effective date of such termination. Upon termination, Contractor
shall be compensated only for those services which have been adequately rendered to Commission,
and Contractor shall be entitled to no further compensation. Contractor may not terminate this
Agreement except for cause.
3.4.2 Effect of Termination. If this Agreement is terminated as provided herein,
Commission may require Contractor to provide all finished or unfinished Documents and Data and
other information of any kind prepared by Contractor in connection with the performance of
Services under this Agreement. Contractor shall be required to provide such document and other
information within fifteen (15) days of the request.
3.4.3 Additional Services. In the event this Agreement is terminated in whole or
in part as provided herein, Commission may procure, upon such terms and in such manner as it
may determine appropriate, services similar to those terminated.
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3.5 General Provisions.
3.5.1 Delivery of Notices. All notices permitted or required under this Agreement
shall be given to the respective parties at the following address, or at such other address as the
respective parties may provide in writing for this purpose:
CONSULTANT: COMMISSION:
______________________ Riverside County
______________________ Transportation Commission
______________________ 4080 Lemon Street, 3rd Floor
_____________________ Riverside, CA 92501
Attn: ________________ Attn: Executive Director
Such notice shall be deemed made when personally delivered or when mailed,
forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to
the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual
notice occurred, regardless of the method of service.
3.5.2 Indemnification.
3.5.2.1 Scope of Indemnity. To the fullest extent permitted by law,
Contractor shall defend, indemnify and hold the Commission, its officials, officers, employees,
volunteers and agents free and harmless from any and all claims, demands, causes of action, costs,
expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons,
including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged
acts, errors or omissions of Contractor, its officials, officers, employees, subcontractors,
contractors or agents in connection with the performance of the Services, the Project, this
Agreement or any Task Order, including without limitation the payment of all consequential
damages, expert witness fees and attorneys’ fees and other related costs and expenses.
Notwithstanding the foregoing, to the extent Contractor's Services are subject to Civil Code
Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section
2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of the Contractor.
3.5.2.2 Additional Indemnity Obligations. Contractor shall defend, with
Counsel of Commission's choosing and at Contractor’s own cost, expense and risk, any and all
claims, suits, actions or other proceedings of every kind covered by Section 3.5.2.1 that may be
brought or instituted against Commission or its officials, officers, employees, volunteers and
agents. Contractor shall pay and satisfy any judgment, award or decree that may be rendered
against Commission or its officials, officers, employees, volunteers and agents as part of any such
claim, suit, action or other proceeding. Contractor shall also reimburse Commission for the cost
of any settlement paid by Commission or its officials, officers, employees, agents or volunteers as
part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment
for Commission’s attorneys’ fees and costs, including expert witness fees. Contractor shall
reimburse Commission and its officials, officers, employees, agents, and/or volunteers, for any
and all legal expenses and costs incurred by each of them in connection therewith or in enforcing
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the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or
termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received
by the Commission, its officials officers, employees, agents, or volunteers.
3.5.3 Governing Law; Government Code Claim Compliance. This Agreement
shall be governed by the laws of the State of California. Venue shall be in Riverside County. In
addition to any and all contract requirements pertaining to notices of and requests for compensation
or payment for extra work, disputed work, claims and/or changed conditions, Contractor must
comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing
any lawsuit against the Commission. Such Government Code claims and any subsequent lawsuit
based upon the Government Code claims shall be limited to those matters that remain unresolv ed
after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions
have been followed by Contractor. If no such Government Code claim is submitted, or if any
prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor
shall be barred from bringing and maintaining a valid lawsuit against the Commission.
3.5.4 Time of Essence. Time is of the essence for each and every provision of
this Agreement.
3.5.5 Commission’s Right to Employ Other Contractors. Commission reserves
right to employ other contractors in connection with this Project.
3.5.6 Successors and Assigns. This Agreement shall be binding on the successors
and assigns of the parties.
3.5.7 Assignment or Transfer. Contractor shall not assign, hypothecate or
transfer, either directly or by operation of law, this Agreement or any interest herein without the
prior written consent of the Commission. Any attempt to do so shall be null and void, and any
assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted
assignment, hypothecation or transfer. Subcontracts, if any, shall contain a provision making them
subject to all provisions stipulated in this Agreement.
3.5.8 Construction; References; Captions. Since the Parties or their agents have
participated fully in the preparation of this Agreement, the language of this Agreement shall be
construed simply, according to its fair meaning, and not strictly for or against any Party. Any term
referencing time, days or period for performance shall be deemed calendar days and not work days.
All references to Contractor include all personnel, employees, agents, and subcontractors of
Contractor, except as otherwise specified in this Agreement. All references to Commission include
its officials, officers, employees, agents, and volunteers except as otherwise specified in this
Agreement. The captions of the various articles and paragraphs are for convenience and ease of
reference only, and do not define, limit, augment, or describe the scope, content or intent of this
Agreement.
3.5.9 Amendment; Modification. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.10 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver, benefit,
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privilege, or service voluntarily given or performed by a Party shall give the other Party any
contractual rights by custom, estoppel or otherwise.
3.5.11 No Third Party Beneficiaries. Except to the extent expressly provided for
in Section 3.5.7, there are no intended third party beneficiaries of any right or obligation assumed
by the Parties.
3.5.12 Invalidity; Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
3.5.13 Prohibited Interests. Contractor maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working solely
for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not
paid nor has it agreed to pay any company or person, other than a bona fide employee working
solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. Contractor further
agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic
Interest with the Commission’s Filing Officer as required under state law in the performance of
the Services. For breach or violation of this warranty, Commission shall have the right to rescind
this Agreement without liability. For the term of this Agreement, no member, officer or employee
of Commission, during the term of his or her service with Commission, shall have any direct
interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.5.14 Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be necessary,
appropriate or convenient to attain the purposes of this Agreement.
3.5.15 Authority to Enter Agreement. Contractor has all requisite power and
authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party
warrants that the individuals who have signed this Agreement have the legal power, right, and
authority to make this Agreement and bind each respective Party.
3.5.16 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
3.5.17 Entire Agreement. This Agreement contains the entire Agreement of the
parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings or agreements. This Agreement may only be modified by a writing signed by both
parties.
3.5.18 Federal Provisions. If funding for the Services is provided, in whole or in
part, by the Federal Transportation Administration (“FTA”) Contractor shall also fully and
adequately comply with the provisions included in Exhibit “D” (Federal Requirements) attached
hereto and incorporated herein by reference (“Federal Requirements”). With respect to any
conflict between such Federal Requirements and the terms of this Agreement and/or the provisions
of state law, the more stringent requirement shall control.
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3.5.19 Electronically Transmitted Signatures; Electronic Signatures. A manually
signed copy of this Agreement which is transmitted by facsimile, email or other means of
electronic transmission shall be deemed to have the same legal effect as delivery of an original
executed copy of this Agreement for all purposes. This Agreement may be signed using an
electronic signature.
SIGNATURE PAGE FOR ROUTINE AND ON-CALL RAILROAD RIGHT OF WAY
MAINTENANCE SERVICES AGREEMENT
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first
set forth above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
Anne Mayer, Executive Director
Approved as to form:
Best Best & Krieger LLP
General Counsel
CONTRACTOR
Signature
Name
Title
Contractor’s License
Number: ____________________
Classification: ________________
ATTEST:
Signature
Name
Title
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A corporation requires the signatures of two corporate officers. One signature shall be that of the
chairman of board, the president or any vice president and the second signature (on the attest line)
shall be that of the secretary, any assistant secretary, the chief financial officer or any assistant
treasurer of such corporation.
If the above referenced persons are not the intended signators, evidence of signature authority shall
be provided to RCTC.
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EXHIBIT “A” - STATEMENT OF WORK
EXHIBIT “B” – COMPENSATION
EXHIBIT “C” - FEDERAL REQUIREMENTS
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EXHIBIT A - 1
STATEMENT OF WORK
RAILROAD RIGHT OF WAY PROPERTY MAINTENANCE SERVICES
1.BACKGROUND
The Riverside County Transportation Commission (Commission) owns and maintains
approximately 24 miles of the operating railroad right of way, within the County of
Riverside. Refer to the attached RCTC ROW Map. This Corridor is operated by the
Southern California Regional Rail Authority (SCRRA), for the Metrolink commuter trains
and freight trains by the Burlington Northern Railway (BNSF).
To allow for the safe and efficient operation of passenger and freight trains, the railroad
ROW needs to comply with Federal, State, and local regulations regarding weed
abatement, fire prevention, and nuisance liability standards.
The awarded firm will need to meet all SCRRA’s training and certification requirements
within 30 days after the execution of the contract.
2.WORK TO BE PERFORMED
The Consultant shall provide right of way maintenance services for the San Jacinto Branchline
Subdivisions. The Consultant shall maintain the appearance of the property, facilities and structures
(bridges, retaining walls and signs); in compliance with Federal Railroad Administration (FRA),
California Public Utilities Commission, and the various municipal code requirements of the local
agencies within the County of Riverside.
Services shall consist of weed abatement & vegetation control (fire hazard prevention), herbicide
& pesticide applications, removal of debris & trash, fencing and barricade installation and/or
repairs, drainage repairs, graffiti abatement & control, tree trimming & removals,
installation/maintenance/repair of railroad signage, and abatement of illegal structures and shelters
and related items, materials and substances associated with transient or homeless persons
trespassing upon the ROW, which shall be carried out in coordination with applicable local law
enforcement and in accordance with direction from the Commission and its legal counsel, which
may require consultation and coordination with recognized service agencies and/or advocacy
organizations serving the homeless population in appropriate cases. The removal of hazardous
materials shall be coordinated with a licensed hazardous material Consultant.
Services and or projects outside the day-to-day routine maintenance activities will be reviewed and
completed under a task order. The Consultant will state reason for said services and or projects or
may be assigned a project. A scope of work will be provided, and the Consultant shall provide a
bid to complete the project. The pricing shall match the Consultant’s labor and equipment pricing
in the contract. Once a task order has be executed, the contractor may began the work.
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2.1 Weed Abatement & Vegetation Control
Weed abatement and vegetation control, shall be performed in accordance with California
Health and Safety Codes and municipal code requirements of the County of Riverside.
The purpose of this service is to prevent fire hazards posed by vegetative growth and
accumulation of combustible materials. Except as noted below, vegetation and weeds
should be regulated and cut so as to not exceed 6 inches in height within the right of ways,
and shall be kept at 3 inches when 0 to 100 feet from structures. Weed abatement shall be
by mowing, gas powered weed trimmers or by use of hand tools, to augment the herbicide
program. Consultant shall dispose of vegetation and/or weeds (including cut brush).
Decorative landscaping, erosion control, vegetation, and natural vegetation in open space
areas, which is more than 20 ft. from centerline of track, will be removed at the direction
of the Commission’s Project Manager.
2.2. Herbicide and Pesticide Application
Herbicide application will be a pre-emergent application in the fall and spot treatments of
contact herbicides on an as necessary basis during the Summer and late Fall. Herbicide
application shall be completed by a Certified Pest Control Applicator, under the
supervision of a Pest Control Advisor. All personnel shall be licensed, by the State of
California and all work will have written Pest Control Recommendations - submitted to the
County Agricultural Commissioner in accordance with applicable regulations. The
Commission’s Project Manager will confer with the Pest Control Advisor to determine the
best chemical and rate of application on an individual parcel basis. This work is
supplemental to herbicide control currently performed by SCRRA’s Track, Structures and
Right of way Maintenance Consultant, under separate contract. The Commission will
identify areas that require Herbicide Control.
The Commission’s Project Manager shall be notified at least one week in advance of the
time set for application of any chemicals so that a Commission representative may witness
the application.
The notification shall include all related MSDS certifications for all herbicides, pest
control, and other chemical materials.
2.3 Clean-Up of Debris and Trash (non-hazardous waste)
Consultant shall pick-up all debris and trash, on the right of ways, and will remove and
dispose of vegetation and refuse at specified dump sites within Riverside County.
Materials to be removed may include, but are not limited to, broken concrete, asphalt,
construction debris, scrap metal, furniture, appliances, automobile parts, shopping carts,
tires, trees, dead vegetation, dead animals, bagged or loose trash. Individual items will be
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handled manually within Occupational Safety and Health Administration (OSHA)
guidelines. Items removed which may be potentially hazardous, must be done so
appropriately, under such guidelines
All dump fees associated with maintenance services on the right of ways will be reimbursed
at cost.
2.4 Fence and Barricade Installation, Repairs and Minor Upgrades
Work shall consist of new fence installation, repair to existing, and incidental upgrades to:
welded wire mesh, chain link, post and cable, and any other fencing or barrier repairs as
may be required. The frequency of fence repair is dependent upon vandalism and/or
accidents which occur along the right of way. New fence material shall be chain link,
welded wire mesh, or a Commission approved equal. New fence installation will be at the
direction of the Commission’s Project Manager.
2.5 Drainage System and Maintenance Repairs
Consultant shall remove silt, drift, and/or obstructions, from drainage channels, and restore
erosion damage, upon direction of the Commission’s Project Manager. The removal of
vegetation and/or debris will be done in a manner which preserves the functional
performance of all drainage facilities and in a manner that does not create depressions in
the ground capable of ponding water. Consultant will also be required to maintain the
Commission’s railroad right of way vehicular access roads, removing any obstructions and
repairing erosion damage.
Consultant shall place erosion prevention materials (i.e. sandbags, silt fence, fiber rolls,
etc.) along areas of ROW where potential flooding of adjacent properties may occur at the
Commission’s Project Manager’s direction. This shall be done prior to any inclement
weather, if possible. The Commission’s Project Manager may request Consultant’s crew
work outside of normal scheduled days during times of excessive inclement weather.
2.6 Graffiti Abatement & Control
Consultant shall control graffiti through painting or cleaning on structures, walls, fences,
signs, bridges and abutments, under the direction of the Commission’s Project Manager.
Paint shall be applied by roller, brush, or spray apparatus, (including extension arms from
10' to 25'), when requested. Consultant shall use water-based paint, except on roadway
signs, where chemical cleaners will be used. (Consultant will consult with the
Commission’s Project Manager for situations where cleaning is ineffective, and may be
directed to utilize other cleaners or to apply aluminum paint.) Application of paint or
cleaning of graffiti will be performed so as to preserve railroad operating information on
signs, and structures (only as directed) (e.g. speed signs, milepost signs, and roadway
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signs). Graffiti removal on aluminum signal houses and apparatus’ will be handled by
SCRRA Signal forces.
2.7 Tree Trimming and Removals
Consultant shall trim and/or remove trees in order to maintain clear visibility of railroad
signals and grade crossings, as well as those on the Commission’s property causing harm
to adjacent property/facilities/etc. Consultant shall provide labor and equipment necessary
to clear areas where required in order to maintain the right of ways and railroad signals,
unobstructed. Work will consist of tree trimming and/or removals, occasional tree
replanting, pole line removal and transport and brush removal. Due to the inaccessibility
of certain properties, some trees may need to be climbed with the aid of ropes and others
may require use of boom truck with a standard bucket lift, in order to be trimmed. Fall
Protection shall be used where required.
Tree Work Safety:
The Consultant shall perform their work method in compliance with federal standards, local
city ordinances and requirements, and CCR Title 8 (Cal/OSHA), Article 12. Tree Work,
Maintenance or Removal Standards, and Subchapter 13, Logging and Sawmill Safety
Orders, Article 5. Falling and Bucking as applicable to scope. The Consultant shall fully
understand and comply with the applicable Cal/OSHA standards and maintain required
documentation available at the scope task site for review by the Authority’s representative.
2.8 Maintenance, Repair and/or New Installation of Property and No-Trespassing Signs
Maintenance of existing property and no-trespassing signs within the Commission’s owned
property shall consist of cleaning (wiping clean, or by chemical cleaner) signs to remove
graffiti or other substance hindering visibility of words. Repair will consist of correcting
bent or broken posts and replace missing hardware (anti-vandalism type). Repair to existing
signage is required prior to replacing with new. Consultant shall provide necessary
chemicals for removal of graffiti from signs, as well as other materials required to perform
this task.
2.9 Pest/Insect Control
Consultant shall perform, on a case by case basis, reasonable pest/insect control to maintain
the railroad right of way free of pests/insects. The Consultant shall possess the proper
licenses (Qualified Applicator Certificate, QAC) for pest and weed abatement. Consultant
shall comply with all laws, regulations and maintain all service records of all chemical
applications.
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2.10 Flagging
Consultant will have available an Employee in Charge (EIC)/Flagman as needed, to provide
protection for other municipalities or Commission staff that may need access to the
operating right of way.
3.LABOR SKILLS AND STANDARDS OF PERFORMANCE
These performance standards shall apply to Consultant in the performance of any
subsequent work or specialized trades herein, including any sub- Consultant(s) that may be
employed by the Consultant.
Failure to begin and diligently prosecute the services as further described herein may be
considered grounds for termination of the contract. It will be the Consultant’s responsibility
to obtain the necessary labor, materials, and/or sub--Consultant resources to complete the
assignment(s)
If any person employed by the Consultant, or employed as a sub- Consultant, should fail or
refuse to carry out the work or shall appear to be incompetent or to act in a disorderly
manner, he/she shall be discharged immediately upon the request of the Commission and
such person shall not again be employed for any of the services required for the
Commission.
The Consultant is responsible for determining the correct number of personnel (estimated
at 4 plus a foreman), labor classifications, and equipment necessary to complete the work.
3.1 Key Personnel
The Consultant shall provide resumes of proposed qualified staff and references, as
indicated.
3.2 Project Manager
Duties:
Plans, directs, and coordinates the activities of the Consultant (including all sub-
Consultants) in performance of the Services to assure compliance with Agreement terms
and conditions, applicable regulations, Commission standards, and budgets. Serves as the
point of contact for the Commission staff for all matters relating to the Agreement.
Reviews, annual budget and work plan, training schedule, invoices. Supervises, promotes,
manages, transfers, and disciplines Consultant staff and arranges with the Commission for
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replacement personnel in the event of vacancies.
Minimum Requirements:
• Desire 10 years’ experience in supervising or directing the work of others engaged
in railroad right of way maintenance and five years’ experience in managing
construction and/or maintenance.
• Knowledge of 49 CFR 214 Subpart C- Roadway Worker Protection and SCRRA'S
MAINTENANCE OF WAY OPERATING RULES and INSTRUCTIONS and all
safety requirements.
• Knowledge of the safe and proper procedures for maintenance within operating
railroad environment.
• Knowledge of the safe and proper procedures hand and power tools maintenance
equipment.
• Must be able to demonstrate ability to communicate in written and verbal English
language with prior record keeping experience.
3.3 Supervisor/Foreman
Duties:
Consultant shall designate an employee (supervisor/foreman) as a primary point of contact
and have the authority to act for the Consultant. Foreman is required to assist and
coordinate the activities of the right of way maintenance crew on the San Jacinto
Branchline Subdivisions, that is in active use by passenger and freight trains by arranging
for the materials, tools, and equipment required for the maintenance services, arranging for
protection of workplace, coordinating with other SCRRA Consultants, Metrolink
Operation Center (MOC), and affected public agencies, training employees in proper work
methods, communicating with trains and MOC regarding train movements through the
work area, inspecting work methods and site conditions for safety conditions and efficiency
of use of labor and material, and preparing documentation of work performed and resources
(labor, material, equipment, and supplies) used.
Minimum Requirements:
• Desire three to five years of railroad right of way maintenance experience and/or
construction including at least two years of experience in supervising or directing
the work of others engaged in railroad right of way maintenance. SCRRA approval
may be required.
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• Must demonstrate previous experience and certification of 49 CRF 214 Subpart C-
Roadway Worker Protection, 214.353 — Training and qualification of roadway
workers who provide on-track safety for roadway work groups.
• Must be able to meet the requirements of 49 CFR 214 Subpart C- Roadway Worker
Protection, as well as SCRRA'S MAINTENANCE OF WAY OPERATING
RULES and INSTRUCTIONS. Must be able to qualify (under all SCRRA
applicable rules and regulations) as an Employee-in –Charge (EIC). (Not required
at time of proposal submission).
• Must be able to demonstrate ability to communicate in written and verbal English
language with prior record keeping experience.
• Ability to work outdoors in all weather conditions, to lift objects weighing a
minimum of 50 Ibs and must have the ability to distinguish colors and to hear
warning signals and radio and telephone devices.
• Knowledge of the safe and proper procedures for operating maintenance hand and
power tools.
3.4 Equipment Operator
Duties:
Operates and performs operator-level duties of smaller equipment and rubber tired off-
equipment such as a backhoe, skip loaders, and skid steers. May work as a member of a
crew or independently.
Minimum Requirements:
• Desire one to three years’ experience in the operation of rubber tired equipment
used in the course of railroad maintenance and/or construction. SCRRA approval
may be required.
• Must be able to meet the requirements of 49 CFR 214 Subpart C- Roadway Worker
Protection, as well as SCRRA'S MAINTENANCE OF WAY OPERATING
RULES and INSTRUCTIONS. Must be able to qualify (under all SCRRA
applicable rules and regulations) as an EIC. (Not required at time of proposal
submission).
• Knowledge of safe and proper procedures for operating this equipment
• Ability to work outdoors in all weather conditions, to lift objects weighing a
minimum of 50 lbs. and must have the ability to distinguish colors and to hear
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warning signals and radio and telephone devices.
•Ability to communicate in the written and verbal English language.
3.5 EIC/Flagman
Duties:
Provides protection for the work activities of other parties engaged in work on the railroad
right of way by performing safety briefings and issuing instructions to these parties,
coordinating this work with the MOC, communicating by radio with train operators to
authorize train movement through work area, observing railroad tracks for approaching
trains, issuing audible warnings to workers concerning the approach of trains, directing the
discontinuance of specific work practices until after train(s) have passed work location,
observing work practices of the other parties, observing the workplace for unsafe
conditions, and installing and removing temporary signs for the control of train
movements. Railroad Worker Protection Safety trained under SCRRA requirements.
Minimum Requirements:
•Preferred one-year experience providing on-track safety for roadway work groups.
•Must demonstrate previous experience and certification of 49 CRF 214 Subpart C-
Roadway Worker Protection, 214.353 — Training and qualification of roadway
workers who provide on-track safety for roadway work groups.
•Must be able to meet the requirements of 49 CFR 214 Subpart C- Roadway Worker
Protection, as well as SCRRA'S MAINTENANCE OF WAY OPERATING
RULES and INSTRUCTIONS. Must be able to qualify (under all SCRRA
applicable rules and regulations) as an EIC. (Not required at time of proposal
submission).
•Ability to work outdoors in all weather conditions, to lift objects weighing a
minimum of 50 lbs. and must have the ability to distinguish colors and to hear
warning signals and radio and telephone devices.
•Ability to communicate in the written and verbal English language.
3.6 Qualifications applicable to all positions
Minimum Requirements:
•Must meet all SCRRA’s safety training requirements and maintain certifications.
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• Able to communicate in written and verbal English language. Required to pass pre-
employment physical examination which includes blood and/or urine testing.
• Ability to work outdoors in all weather conditions, to lift objects weighing a
minimum of 50 lbs. and must have the ability to distinguish colors and to hear
warning signals and radio and telephone devices.
• The appropriate licensing; professional experience, academic training, and
technical skills for the assigned work
Training;
All Consultant and sub-Consultant employees, working on the ROW, are required to
complete railroad safety training, (to be provided by the Commission one time annually)
wear all applicable, personal protection safety equipment, and at all times follow all
railroad safety rules.
The Commission will provide initial SCRRA required safety training for staff identified in
the proposal. Any employee that fails to meet the standards shall not be approved for work
on Commission owned operating right of ways, under this contract.
4. Work Plan
The Consultant shall establish, develop, maintain and implement a work plan that; provides
an organizational chart of the project team and identifies their respective responsibilities;
identifies all resources necessary to complete the work; identifies any resources provided
by sub-Consultants; and any outlines management tools that will be utilized to manage the
work.
4.1 Quality Control Plan (QCP)
The Quality Control Plan should include management’s role and commitment to quality
work, while optimizing cost and schedule performance. It shall describe implementation
of policies, procedures and processes that ensure work is performed to the specifications,
including a corrective action plan should corrections be necessary, and the methods in place
to ensure non-recurrence.
4.2 Workmanship
Consultant agrees to provide adequate supervision, and take necessary measures to assure
that all projects are completed in a workmanlike manner. Consultant agrees to perform the
work assigned under this contract in a workmanlike manner by qualified, careful and
efficient workers and agrees to perform such work in strict accordance with all Task Order
and specifications and any changes, modifications or amplifications thereof. I n the event
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of substandard workmanship or defective materials furnished by the contractor as may be
determined by inspection of the Commission or in the event of poor working performance
as may be determined by the Commission’s designated project manager, the Commission
may at any time, require the contractor to expeditiously remedy such failure or defect, at
no cost to the Commission.
Workmanship may be determined to be substandard if the work is incomplete, inadequately
installed or supported, poorly fitted or sealed, damaged, improperly finished, or installed
in a manner that the operation or the maintainability of the installation is impaired beyond
the limits specified or indicated by the agreement.
Poor working performance will be determined to exist if any of the contractors’ workers
fail to perform work within the time allocated to do so in the time period specified in a
particular Task Order. In certain work, particularly emergency work, the contractor will
be expected to perform the work as expeditiously as possible, with a crew sized to ensure
each worker has tasks to perform and with as little lost time as allowed by conditions.
Claims of defective materials, inadequate workmanship or poor working performance will
be first made to the contractor’s job site foreman. In the event the situation cannot be
remedied at the job site, a written claim will be made to the contractor’s home office.
Contractor shall resolve all claims against workmanship or work performance by issuing a
credit to the Commission for the work performed. The amount of the credit will be
determined in negotiation between the contractor and the Commission. Payments
otherwise due may be withheld, in whole or in part, by the Commission on account of
defective materials and/or unresolved workmanship issues.
Consultant shall employ only competent, careful and orderly employees. If the
Commission determines that an employee is detrimental to the performance of the work,
not qualified to perform the assigned work or guilty of improper conduct, the Commission
may require removal of such employee.
The performance of services by the contractor shall not relieve the contractor from any
obligation to correct any incomplete, inaccurate, or defective work at no further cost to the
Commission, when such inaccuracies are due to the acts or omissions, negligent or
otherwise, of the Consultant.
Consultant will not substitute any employee for another unless both have been trained
equally, and at such time still current within such training. Training costs due to employee
changes, requested by Consultant, will be at the Consultant’s expense.
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4.3 Non-Conforming Work
The Authority may reduce payment for any of the following; non-compliant work,
noncompliant work left in place; corrective work or unauthorized work.
4.4 Emergency Work
Consultant and sub-Consultants must have 24-hour contact number(s) and an acceptable
means of emergency "on-call" communication with the Commission’s Project Manager.
Four (4) hour response time may be required in cases of emergency and within one (1) hour
in cases where train operations are halted.
4.5 Unsafe Conditions
Consultant and or its sub-Consultant are to immediately notify the Commission’s Project
Manager of any unsafe or questionable condition that exists on the right of way. Project
Manager will then notify the necessary parties.
If the condition poses immediate danger to rail operations, the Consultant shall notify the
MOC, then the Commission’s Project Manager.
5.Schedule
The Consultant shall submit a weekly schedule each Friday, for anticipated work to be
performed by following week including location by mile post (MP). Any deviations must
be discussed and approved by the Commission’s Project Manager.
Consultant and/or sub-Consultant shall respond and perform non-emergency as-needed
work request from the Commission’s Project Manager within one (1) working day, except
in cases of emergency, where an immediate response may be requested.
Unless directed otherwise, work schedule shall be during normal business hours (8:00
a.m. through 5:00 p.m., Monday through Friday). Except in cases of emergency, overtime
must be approved by the Commission’s Project Manager.Dr
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5.1 Weekly Report
Consultant will email the Commission’s Project Manager a weekly progress report. This
report will include type of work completed by location, personnel and equipment used, and
other direct cost. In additional a narrative shall be provided that summarizes the weekly
activities and note any pending or urgent issues.
5.2 Monthly Report
In addition to the terms of the Agreement, Consultant shall submit a monthly report to
include;
Provide daily work reports as back-up to invoices submitted for payment;
• Itemization of the materials used and corresponding vendor’s invoice copies;
• Direct cost of labor;
• Equipment rental charges;
• Workers' certified payrolls;
• Equipment used; size, type and identification no.
Attach a summary sheet for the hours expended for each task for each month and total
project to date
6. Equipment
The Consultant’s equipment shall be in good repair and able to operate efficiently and
safely. All equipment used in the performance of this contract shall be in operable condition
and meet the local, state and federal safety requirements. All equipment used shall be
inspected and serviced regularly. The inspection and service records shall be available upon
request. All vehicles shall be registered, licensed, insured and operated by a licensed driver.
All vehicles shall follow laws regarding parking, driving, and licensing.
The Consultant’s equipment shall have the proper safety devices maintained at all times
while in use. If equipment does not contain proper safety devices and/or is being operated
in an unsafe manner, the Commission’s Project Manager shall direct the Consultant to
remove such Equipment and/or operation until the deficiency is corrected to the satisfaction
of the Commission’s Project Manager.
The Commission’s Project Manager may inspect the Consultant’s equipment and tools at
any time. The daily anticipated equipment necessary to perform this work, but not limited
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to;
•One (1) Foreman/supervisor pick-up truck.
•One (1) Crew truck.
•One (1) truck with automatic dumping capability with a minimum hauling capacity
of 6 cubic yards.
•Hand and power tools consisting of weed trimmers, chain and pole saws, hedge
trimmer, but not limited to; with a value of $500.00, shall be considered part of the
Consultant’s overhead cost.
•The anticipated heavy equipment necessary to perform this work including, but not
limited to the following;
▪Backhoe
▪Dozer-D4 or equal
▪Skip loader with a 4 in 1 bucket
▪Street sweeper, and skid steer with attachments
Unless equipment rates are specifically identified in the Agreement, reimbursement for
equipment rental will be either at the CALTRANS published rates within “Labor Surcharge
and Equipment Rental Rates” or the actual rental rate, whichever is less. Equipment rental
payment is full compensation for rental equipment costs, including moving rental
equipment to and from the site using its own power.
For rental equipment that cannot be transported economically using its own power, no
transport cost will be paid.
COMMIMSSION/PROJECT MANAGEMENT APPROVAL: PHOTOGRAPHIC
EVIDENCE
Completion of a specific Task Order is established when Consultant provides before and after
photos of sites cleared/cleaned/abated with each invoice. Before and after any parcel or
combination of adjoining parcels is abated, the Consultant shall take clear and concise pictures of
the area demonstrating need for abatement.
Each “after” picture shall be taken from the SAME location as the “before” picture
REFERENCING SOME OUTSTANDING LANDMARK. These pictures will be taken
immediately “before” and “after” abatement work is done and submitted to the Commission with
the applicable invoice.
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➢IF PICTURES DO NOT SHOW JUSTIFICATION OF CHARGE, payment will not be
made.
➢Each picture shall include time and date picture was taken and the parcel number or
numbers it represents.
➢CONSULTANT WILL BE REQUIRED TO FURNISH THE DIGITAL CAMERA.
PHOTOS WILL BE PR OVIDED BY EMAIL AND INCLUDED IN THE INVOICE.
RECORDS AND AUDIT
Consultant(s) shall maintain records and books of account showing all costs and expenses
incurred by the contractor for the contract. The Commission shall have the right, upon
reasonable notice, to audit the books, records, documents, and other evidence and the
accounting procedures and practices, where needed, to verify the costs and expenses claimed. The
Commission retains this right for at least three years after final payment and until all
disputes, appeals, litigation, or claims have been r esolved. This right to audit shall also include
inspection at reasonable times of the consultant’s office or facilities which are engaged in the
performance of the contract. In addition, the consultant shall, at no cost or expense to the
Commission, furnish reasonable facilities and assistance for such an audit. Audit findings shall,
to the extent allowed by law, be treated by the Commission as confidential.
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EXHIBIT A - 17
END OF STATEMENT OF WORK
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FISCAL YEAR PROJECT COST
FY 2021/22 Railroad ROW Property Maintenance Services 450,000.00$
FY 2022/23 Railroad ROW Property Maintenance Services 800,000.00
FY 2023/24 Railroad ROW Property Maintenance Services 825,000.00
FY 2024/25 Railroad ROW Property Maintenance Services 850,000.00
FY 2025/26 Railroad ROW Property Maintenance Services 875,000.00
FY 2026/27 Railroad ROW Property Maintenance Services 500,000.00
4,300,000.00$
EXHIBIT "B"
COMPENSATION SUMMARY
TOTAL COSTS
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Exhibit C - 1
DISADVANTAGED BUSINESS ENTERPRISE (DBE) REQUIREMENTS
A. General DBE Requirements: In accordance with Federal financial assistance agreements
with the U.S. Department of Transportation (U.S. DOT), Commission has adopted a
Disadvantaged Business Enterprise (DBE) Policy and Program, in conformance with Title 49
CFR Part 26, “Participation by Disadvantaged Business Enterprises in Department of
Transportation Programs” (the “Regulations”). This RFP is subject to these stipulated
regulations. In order to ensure that Commission achieves its overall DBE Program goals and
objectives, Commission encourages the participation of DBEs as defined in 49 CFR 26 in the
performance of contracts financed in whole or in part with U.S. DOT funds.
It is the policy of the Commission to:
1. Ensure nondiscrimination in the award and administration of DOT-assisted contracts;
2. Create a level playing field on which DBE’s can compete fairly for DOT-assisted
contracts;
3. Ensure that the DBE program is narrowly tailored in accordance with applicable law;
4. Ensure that only firms that fully meet 49 C.F.R. part 26 eligibility standards are
permitted to participate as DBE’s;
5. Help remove barriers to the participation of DBEs in DOT assisted contracts;
6. To promote the use of DBEs in all types of federally assisted contracts and
procurement activities; and
7. Assist in the development of firms that can compete successfully in the marketplace
outside the DBE program.
B. Discrimination: Contractor shall not discriminate on the basis of race, color, national
origin, or sex in the award and performance of subcontracts. Any terms used herein that are
defined in 49 CFR Part 26, or elsewhere in the Regulations, shall have the meaning set forth in
the Regulations.
C. Commission’s Race-Neutral DBE Program: A Race-Neutral DBE Program is one that,
while benefiting DBEs, is not solely focused on DBE firms. Therefore, under a Race-Neutral
DBE Program, Commission does not establish numeric race-conscious DBE participation goals
on its DOT-assisted contracts. There is no DBE goal on this Project.
Contractor shall not be required to achieve a specific level of DBE participation as a condition of
contract compliance in the performance of this DOT-assisted contract. However, Contractor
shall adhere to race-neutral DBE participation commitment(s) made at the time of award of any
Task Order (as defined in the Model Contract).
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Exhibit C - 2
D. Race-Neutral DBE Submissions and Ongoing Reporting Requirements (Post-Award):
For each Task Order proposal, the successful Contractor shall complete and submit to
Commission a“DBE Race-Neutral Participation Listing” in the form provided by Commission.
In the event DBE(s) are utilized in the performance of the Task Order, Contractor shall comply
with applicable reporting requirements.
E. Performance of DBE Subcontractors: DBE subcontractors listed by Contractor in its
“DBE Race-Neutral Participation Listing” submitted at the time of Task Order proposal shall
perform the work and supply the materials for which they are listed, unless Contractor has
received prior written authorization from Commission to perform the work with other forces or
to obtain the materials from other sources. Contractor shall provide written notification to
Commission in a timely manner of any changes to its anticipated DBE participation. This notice
should be provided prior to the commencement of that portion of the work.
F. DBE Certification Status: If a listed DBE subcontractor is decertified during the life of
any Task Order, the decertified subcontractor shall notify Contractor in writing with the date of
decertification. If a non-DBE subcontractor becomes a certified DBE during the life of the Task
Order, the DBE subcontractor shall notify Contractor in writing with the date of certification.
Contractor shall furnish the written documentation to Commission in a timely manner.
Contractor shall include this requirement in all subcontracts.
G. Contractor’s Assurance Clause Regarding Non-Discrimination: In compliance with State and
Federal anti-discrimination laws, Contractor shall affirm that it will not exclude or discriminate
on the basis of race, color, national origin, or sex in consideration of contract award
opportunities. Further, Contractor shall affirm that they will consider, and utilize subcontractors
and vendors, in a manner consistent with non-discrimination objectives.
H. Violations: Failure by the selected Contractor(s) to carry out these requirements shall be a
material breach of the contract to be awarded pursuant to this RFP, which may result in the
termination of the contract or such other remedy as the recipient deems appropriate, which may
include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the Contractor from future bidding as non-responsible. 49 C.F.R. § 26.13(b).
I. Prompt Payment: Contractor shall pay its subcontractors for satisfactory performance of their
contracts no later than 30 days from receipt of each payment Commission makes to the
Contractor. 49 C.F.R. § 26.29(a), unless a shorter period is provided in the contract.
J. Compliance with DBE Requirements Contained in FTA Provisions: Contractor shall comply
with all DBE reporting and other requirements contained in the FTA provisions of the RFP, and
the resulting contract.
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Exhibit C - 3
K. The terms of this Appendix K shall be included as part of the FTA provisions to be set forth
in Exhibit “D” of the model Contract to be entered into pursuant to this RFP.
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Exhibit C - 4
SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT (SCAQMD)
AND
STATE (CALTRANS)
FUNDING REQUIREMENTS
The following additional funding requirements apply depending on the funding source
identified as applicable for a Task Order.
I. SCAQMD REQUIREMENTS
Non-Discrimination - In the performance of this Contract, CONTRACTOR shall not
discriminate in recruiting, hiring, promotion, demotion, or termination practices on the basis of
race, religious creed, color, national origin, ancestry, sex, age, or physical handicap and shall
comply with the provisions of the California Fair Employment & Housing Act (Government
Code Section 12900, et seq.), the Federal Civil Rights Act of 1964 (P.L. 88-352) and all
amendments thereto, Executive Order No. 11246 (30 Federal Register 12319), and all
administrative rules and regulations issued pursuant to said Acts and Order. CONTRACTOR
shall likewise require each subcontractor to comply with this clause and shall include in each
such subcontract language similar to this clause.
II. CALTRANS REQUIREMENTS
* Section 2 below is also applicable to FTA Funded Task Orders.
1. Invoices & Payments.
Invoices shall be mailed to Commission’s Contract Administrator at the following address:
Riverside County Transportation Commission
Attention: Accounts Payable
P.O. 12008
Riverside, CA 92502
Payment shall be made for costs incurred by Contractor in performance of the Services. No
advance payment or payment for work not actually performed shall be made under this
Agreement or any Task Order.
2. Cost Principles and Administrative Requirements.
Contractor agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal
Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the
cost allowability of individual items.
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Exhibit C - 5
Contractor also agrees to comply with federal procedures in accordance with 2 CFR, Part 200,
Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal
Awards.
Any costs for which payment has been made to Contractor that are determined by subsequent
audit to be unallowable under 2 CFR, Part 200 and 48 CFR, Federal Acquisition Regulations
System, Chapter 1, Part 31.000 et seq., are subject to repayment by Contractor to Commission.
All subcontracts in excess of $25,000 shall contain the above provisions.
3. Retention of Records/Audit. For the purpose of determining compliance with Public Contract
Code 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et
seq., when applicable and other matters connected with the performance of this Agreement
pursuant to Government Code 8546.7; Contractor, subcontractors, and Commission shall
maintain and make available for inspection all books, documents, papers, accounting records,
and other evidence pertaining to the performance of this Agreement, including but not limited to,
the costs of administering this Agreement. All parties shall make such materials available at their
respective offices at all reasonable times during the Agreement period and for three years from
the date of final payment under this Agreement. The State, State Auditor, Commission, or any
duly authorized representative of the State Government shall have access to any books, records,
and documents of Contractor and it’s certified public accountants (CPA) work papers that are
pertinent to this Agreement for audit, examinations, excerpts, and transactions, and copies
thereof shall be furnished if requested. Subcontracts in excess of $25,000 shall contain this
provision.
4. Accounting System. Contractor and its subcontractors shall establish and maintain an
accounting system and records that properly accumulate and segregate expenditures by line item
for the Services. The accounting system of Contractor and its subcontractors shall conform to
Generally Accepted Accounting Principles (GAAP), enable the determination of incurred costs
at interim points of completion, and provide support for reimbursement payment vouchers or
invoices.
5. Travel & Subsistence. Reimbursement for transportation and subsistence costs shall not
exceed the rates specified in the approved Task Order, as may be applicable. In addition, any
payments to Contractor for travel and subsistence expenses claimed for reimbursement or
applied as local match credit shall not exceed rates authorized to be paid exempt non-represented
State employees under current State Department of Personnel Administration (DPA) rules,
unless otherwise authorized by Commission. If the rates invoiced are in excess of those
authorized DPA rates, and Commission has not otherwise approved said rates, then Contractor is
responsible for the cost difference and any overpayments shall be reimbursed to the Commission
on demand.
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Exhibit C - 6
6. Equipment Purchase
Prior authorization, in writing, by Commission’s Contract Administrator shall be required
before Contractor enters into any unbudgeted purchase order, or subcontract for supplies,
equipment, or services. Contractor shall provide an evaluation of the necessity or desirability of
incurring such costs.
For purchase of any item, service or consulting work not covered in the Cost Proposal and
exceeding $5,000 prior authorization, in writing, by Commission’s Contract Administrator is
required. Three competitive quotations must be submitted with the request for such purchase,
or the absence of bidding must be adequately justified.
Any equipment purchased as a result of this Agreement is subject to the following: Contractor
shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined
as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the
purchased equipment needs replacement and is sold or traded in, Commission shall receive a
proper refund or credit at the conclusion of this Agreement, or if this Agreement is terminated,
Contractor may either keep the equipment and credit Commission in an amount equal to its fair
market value, or sell such equipment at the best price obtainable at a public or private sale, in
accordance with established Commission procedures; and credit Commission in an amount
equal to the sales price. If Contractor elects to keep the equipment, fair market value shall be
determined at Contractor’s expense, on the basis of a competent independent appraisal of such
equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by
Commission and Contractor. If Contractor determines to sell the equipment, the terms and
conditions of such sale must be approved in advance by Commission. 2 CFR, Part 200 requires
a credit to Federal funds when participating equipment with a fair market value greater than
$5,000 is credited to the Project.
All subcontracts in excess $25,000 shall contain the above provisions.
7. National Labor Relations Board Certification.
In accordance with Public Contract Code Section 10296, and by signing this Agreement,
Contractor certifies under penalty of perjury that no more than one final unappealable finding of
contempt of court by a federal court has been issued against Contractor within the immediately
preceding two-year period, because of Contractor’s failure to comply with an order of a federal
court that orders Contractor to comply with an order of the National Labor Relations Board.
8. Nondiscrimination; Statement of Compliance.
Contractor’s signature affixed herein shall constitute a certification under penalty of perjury
under the laws of the State of California that Contractor has, unless exempt, complied with, the
nondiscrimination program requirements of Government Code Section 12990 and Title 2,
California Administrative Code, Section 8103.
During the performance of this Agreement, Contractor and its subcontractors shall not
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Exhibit C - 7
unlawfully discriminate, harass, or allow harassment against any employee or applicant for
employment because of sex, race, color, ancestry, religious creed, national origin, physical
disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age
(over 40), marital status, and denial of family care leave. Contractor and subcontractors shall
insure that the evaluation and treatment of their employees and applicants for employment are
free from such discrimination and harassment. Contractor and subcontractors shall comply with
the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the
applicable regulations promulgated there under (California Code of Regulations, Title 2, Section
7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission
implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title
2 of the California Code of Regulations, are incorporated into this Contract by reference and
made a part hereof as if set forth in full. Contractor and its subcontractors shall give written
notice of their obligations under this clause to labor organizations with which they have a
collective bargaining or other Agreement.
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RCTC RAILROAD PROPERTYMAINTENANCE SERVICES AGREEMENT
JOSHUA GRADING & EXCAVATING, INC
GARY RATLIFF –Facilities Administrator
1
COMMISSION RAILROAD PROPERTY
2
•SAN JACINTO BRANCH
LINE RIGHT OF WAY
•24 MILES OPERATING LINE
–APROXIMATELY 317 ACRES
–OPERATED BY SCRRA
–METROLINK AND BNSF
–BEGINS IOWA/CITRUS
–ENDS PERRIS SOUTH
STATION
COMMISSION RAILROAD PROPERTY
3
•SAN JACINTO BRANCH
LINE ROW
•17 MILES NON-OPERATING
LINE
–APROXIMATELY 169 ACRES
–BEGINS CASE ROAD
–ENDS WEST 7TH ST. IN THE
CITY OF SAN JACINTO
MAINTENANCE SERVICES
4
•FENCING
•SIGNAGE
•WEED ABATEMENT
•GRADING
•DRAINAGE
•TREE TRIMMING
•TRASH AND DEBRIS
REMOVAL
MAINTENANCE SERVICES CONT.
5
•ENCAMPMENT
REMOVAL
•HAZARDOUS MATERIAL
REMOVAL
•BETTERMENT PROJECTS
PROCUREMENT PROCESS
6
•RFP released September 10, 2021
•Press Enterprise & Planetbids
•Emails to 80 Firms
•28 downloads, 2 Riverside Firms
•Received 2 proposals
STAFF RECOMMENDATION
7
-Recommend award of a 5-year contract to Joshua Grading
and Excavating Inc.
-$4.3 million for Railroad Right Of Way Maintenance
Services
Thank you
8
Questions?
AGENDA ITEM 10
Agenda Item 10
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: November 22, 2021
TO: Western Riverside County Programs and Projects Committee
FROM: Brian Cunanan, Commuter & Motorist Assistance Manager
THROUGH: David Knudsen, Interim External Affairs Director
SUBJECT: Amendment to Agreement with Steve’s Towing for Express Lanes Freeway
Service Patrol Service
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Approve Agreement No. 16-45-103-03, Amendment No. 3 to Agreement
No. 16-45-103-00 with Steve’s Towing (Steve’s) for continued Freeway Service Patrol
(FSP) services on the Commission’s Express Lanes (Beats 91T and 15T) for an additional
13 months through January 30, 2023 and to increase the hourly rate for the one
91T service truck from $56.25 to $70.00 for an additional amount of $105,000, and a total
amount not to exceed $2,168,197;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize and
execute the agreement on behalf of the Commission; and
3) Forward to the Commission for final action.
BACKGROUND INFORMATION:
The Commission, acting in its capacity as the Service Authority for Freeway Emergencies, is the
principal agency in Riverside County, in partnership with Caltrans and the California Highway
Patrol (CHP), managing the FSP program. The purpose of the FSP program is to provide a
continuously roving tow services patrol along designated freeway segments (referred to as beats)
to relieve freeway congestion and facilitate the rapid removal of disabled vehicles and those
involved in minor accidents on local freeways.
In March 2017, the FSP program expanded service beyond general purpose and high occupancy
vehicle lanes with the launch of the 91 Express Lanes in Riverside County to optimize incident
response time and safety and to help maintain free flow conditions in the new express lane
facilities (Beat 91T). Express lanes FSP coverage was subsequently expanded with the opening of
the 15 Express Lanes in April 2021 (Beat 15T).
While the concept and purpose of the FSP program remain the same, regardless of lane type, the
Express Lanes FSP (EL FSP) approach differs from general purpose lane service due to the
conditions (limited to no shoulders) and customer expectations (continuous free flow) associated
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Agenda Item 10
with express lane operations. The biggest difference is the type of trucks used. Regular FSP uses
conventional tow trucks while EL FSP requires a two-vehicle car carrier/flatbed truck in order to
handle a majority of the incidents and vehicle types and rapidly remove incidents from express
lane facilities. The other major difference is that the EL FSP trucks do not continuously rove but
are strategically staged at both ends of the 15 Express Lane facilities and at the 91 Express Lanes
toll utility building until they are required to perform a sweep of the facilities or deployed by the
Express Lanes Traffic Operations Center or CHP. EL FSP vehicle operators are responsible for
clearing the toll lanes of automobiles, small trucks, motorcycles, and small debris. When and
where conditions warrant, service may be executed on toll lane shoulders. Where conditions do
not warrant, vehicle operators will remove the vehicles from the toll lanes and, in most cases, off
the highway to provide service. Since the opening of the 91 Express Lanes in March 2017, more
than 5,400 FSP assists have been provided to express lanes customers by the current EL FSP
operator, Steve’s.
Express Lane FSP Assists (inception through October 31, 2021)
Steve’s established a history of quality FSP service, flexibility, and performance with the
Commission’s FSP program. Prior to working EL FSP, Steve’s was awarded competitively bid
contracts to provide service on SR-91 beats within Corona limits for regular peak service and for
enhanced construction FSP services (mid-day, extended PM, and weekend service) while the
91 Express Lanes were being built. Subsequently, at its September 2016 meeting, the
Commission awarded Agreement No. 16-45-103-00 to Steve’s Towing for EL FSP service on the
91 Express Lanes for a three-year term with one two-year option to extend the agreement in an
amount not to exceed $1,205,000 (at $56.25 per truck hour) following a competitive
procurement. The vehicle requirements for this contract include one primary tow truck and one
back-up tow truck from Steve’s, both of which are flatbed trucks.
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Agenda Item 10
In January 2020, the Commission approved an amendment to the agreement with Steve’s to
increase funds and add EL FSP service (two trucks) for the anticipated 15 Express Lanes facilities
at a negotiated rate of $70.00; the rate for the one 91 EL FSP truck remained at $56.25. This
approach allowed for EL FSP services for the two facilities to be under one contract at a fair and
reasonable rate increase for the additional 15 Express Lanes facility.
DISCUSSION
Steve’s has performed well throughout the duration of the contract which is set to expire on
December 31, 2021. A consequence of the staged approach for EL FSP operations is that the tow
trucks in use by Steve’s have modest mileage readings (18K, 140K, 230K) and may continue to be
of service to the program. As such, staff inquired if Steve’s would be willing to continue service
for another 13 months through January 30, 2023, at the existing rates.
In response, Steve’s is amenable to extending service but has respectfully requested
consideration for adjusting the rate for the one 91 EL FSP truck from $56.25 to $70.00 to assist
with increasing staff and vehicle maintenance costs. This rate adjustment would put the rate for
the one 91 EL FSP truck at parity with the two 15 EL FSP trucks’ rates. Steve’s also shared that an
additional new flatbed truck has been purchased that may be used toward EL FSP service. If an
amendment with Steve’s is approved, the extra truck would need to be equipped and comply
with program standards (i.e., color, additional miscellaneous tow equipment, installation of FSP
radios and automated vehicle locator, etc.) prior to starting service. In this scenario, Steve’s
would have a total of four flatbed trucks to service both express lane facilities – one on the
91 Express Lanes and two on the 15 Express Lanes; and one backup truck available as needed or
to help balance mileage across the service vehicles.
Staff compared the rate to existing program rates as well as the latest FSP tow rates from
neighboring county programs and views the rate adjustment request as reasonable. Therefore,
staff recommends approval of an amendment with Steve’s to extend service for an additional
13-month period, at an additional amount of $105,000 that includes a rate adjustment for the
Beat 91T truck to $70.00 per hour. With approval of this amendment, a request for proposals for
consolidated EL FSP services will be released in 2022.
Financial Information
In Fiscal Year Budget: Yes
N/A Year: FY 2021/22
FY 2022/23 Amount: $690,000
$414,000
Source of Funds: Toll Revenues Budget Adjustment: No
N/A
GL/Project Accounting No.: 009199 81014 00000 0000 591 31 81002
001599 81014 00000 0000 515 31 81002
Fiscal Procedures Approved: Date: 11/10/2021
Attachment: Draft Agreement No. 16-45-103-03
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1
Agreement No. 16-45-103-03
AMENDMENT NO. 3 TO
AGREEMENT FOR FREEWAY SERVICE PATROL SERVICES
FOR BEAT NO. 91-T AND BEAT NO. 15-T
WITH E&S TOWING ENTERPRISES, INC. D/B/A STEVE’S TOWING
1. PARTIES AND DATE
This Amendment No. 3 is made and entered into as of ___________, 2021 by
and between the Riverside County Transportation Commission acting in its capacity as
the Riverside Service Authority for Freeway Emergencies ("SAFE"), a public entity, and
E&S Towing Enterprises, Inc., a California corporation d/b/a Steve’s Towing (referred to
herein as "CONTRACTOR").
2. RECITALS.
2.1 SAFE and CONTRACTOR have entered into an agreement, dated
December 29, 2016, for the provision of freeway patrol services on Beat
No. 91-T on behalf of the SAFE (the "Master Agreement").
2.2 SAFE and CONTRACTOR have entered into an Amendment No. 1 to the
Master Agreement, dated September 23, 2019, to extend the term of the
Master Agreement to December 31, 2021 for the continued provision of
freeway service patrol services.
2.3 SAFE and CONTRACTOR have entered into an Amendment No. 2 to the
Master Agreement, dated June 10, 2020, in order to amend the Scope of
Services to include freeway service patrol services for the 15 Express
Lanes beat (Beat No. 15-T); provide a new hourly rate and additional
compensation for such Services; and allocate funds for CONTRACTOR to
outfit two trucks to be used for the Services to meet FSP compliance
requirements.
2.4 SAFE and CONTRACTOR now desire to amend the Master Agreement in
order to extend the term of the Master Agreement, provide a new hourly
rate for Beat No. 91-T, and provide additional compensation for Services.
3. TERMS
3.1 The term of the Master Agreement shall be amended to provide for one
(1) additional term of thirteen (13) months, ending on January 31, 2023,
unless earlier terminated as provided in the Master Agreement.
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17336.0002A\34523337.1
2
3.2 Services for Beat No. 91-T shall be compensated as follows:
SCHEDULE OF HOURLY RATES
Classification Hourly Rate
Contract – tow truck operators $ 70.00
Hourly rates may be adjusted as set forth in Chapter 9,
Violations/Penalties, of the FSP Standard Operating Procedures (SOP).
3.3 The total not-to-exceed amount of the Master Agreement, as amended by
this Amendment No. 3, shall be increased from Two Million, Sixty Three
Thousand, One Hundred Ninety Seven Dollars ($2,063,197) to Two
Million, One Hundred Sixty Eight Thousand, One Hundred Ninety Seven
Dollars ($2,168,197).
3.4 Except as amended by this Amendment No. 3, all provisions of the Master
Agreement, as previously amended, including without limitation the
indemnity and insurance provisions, shall remain in full force and effect
and shall govern the actions of the parties under this Amendment No. 3.
3.5 This Amendment No. 3 shall be governed by the laws of the State of
California. Venue shall be in Riverside County.
3.6 This Amendment No. 3 may be signed in counterparts, each of which shall
constitute an original.
3.7 A manually signed copy of this Amendment No. 3 which is transmitted by
facsimile, email or other means of electronic transmission shall be
deemed to have the same legal effect as delivery of an original executed
copy of this Amendment No. 3 for all purposes. This Amendment No. 3
may be signed using an electronic signature.
[Signatures on following page]
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17336.0002A\34523337.1
1
SIGNATURE PAGE
TO
AGREEMENT NO. 16-45-103-03
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment on
the date first herein above written.
RIVERSIDE COUNTY E&S TOWING ENTERPRISES, INC.
TRANSPORTATION COMMISSION dba STEVE’S TOWING
ACTING IN ITS CAPACITY AS THE
RIVERSIDE COUNTY SERVICE
AUTHORITY FOR FREEWAY
EMERGENCIES
By: ____________________________ By: __________________________
Anne Mayer, Executive Director Signature
__________________________
Name
__________________________
Title
APPROVED AS TO FORM: ATTEST:
By: __________________________ By: __________________________
Best Best & Krieger LLP Signature
Counsel to the Riverside County
Transportation Commission Title: __________________________
* A corporation requires the signatures of two corporate officers.
One signature shall be that of the chairman of board, the president or any vice president and the second
signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial
officer or any assistant treasurer of such corporation.
If the above persons are not the intended signators, evidence of signature authority shall be provided to
RCTC.
375
TO: Riverside County Transportation Commission
FROM: Lisa Mobley, Clerk of the Board
DATE: November 17, 2021
SUBJECT: G.C. 84308 Compliance – Potential Conflict of Interest
California Government Code 84308 states a Commissioner may not participate in any discussion or
action concerning a contract or amendment if a campaign contribution of more than $250 is
received in the past 12 months or 3 months following the conclusion from a bidder or bidder’s agent.
This prohibition does not apply to the awarding of contracts that are competitively bid. The
Commission’s procurement division asks potential vendors to disclose any contributions made to
the campaigns of any Commissioner as part of their submitted bid packets. As an additional
precaution, those entities are included below in an effort to give Commissioners opportunity to
review their campaign statements for potential conflicts. Please note the entities listed in this
memo are not encompassing of all potential conflicts and are in addition to any personal conflicts
of interest such as those disclosed on Statement of Economic Interests – Form 700 or prohibited
by Government Code Section 1090. Please contact me should you have any questions.
Agenda Item No. 8 - Agreements for On-Call Right of Way Appraisal Services
Consultant(s): Hawran & Malm, LLC
Sydney H. Hawran, Managing Member
2618 San Miguel Drive, Suite 1601
Newport Beach, CA 92660
Hennessey & Hennessey, LLC
Sharon A. Hennessey, Member/Manager
17602 17th Street, Suite 102-246
Tustin, CA 92780-7915
Integra Realty Resources – Los Angeles
Beth B. Finestone, Managing Director
16030 Ventura Boulevard, Suite 620
Encino, CA 91436-4473
RCTC Potential Conflicts of Interest
November 17, 2021
Page 2
Joshua Grading & Excavating, Inc.
Muriel Craft, President
P.O. Box 292329
Phelan, CA 92329
R.P. Laurain & Associates, Inc.
John P. Laurain, President
3353 Linden Avenue, Suite 200
Long Beach, CA 90807
Santolucito Dore Group, Inc.
Christine S. Santolucito, President
31600 Railroad Canyon Road, Suite 100-L
Canyon Lake, CA 92587
Agenda Item No. 10 - Amendment to Agreement with Steve’s Towing for Express Lanes Freeway
Service Patrol Service
Consultant(s): E&S Towing Enterprises, Inc. DBA Steve’s Towing
Miguel A. Leyva, Owner/President
9529 8Th Street
Rancho Cucamonga, CA 91730
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS
COMMITTEE
ROLL CALL
NOVEMBER 22, 2021
Present Absent
County of Riverside, District I X
County of Riverside, District V X
City of Corona X
City of Eastvale X
City of Hemet X
City of Jurupa Valley X
City of Menifee X
City of Moreno Valley X
City of Murrieta X
City of Norco X
City of Perris X
City of Wildomar X