HomeMy Public PortalAbout01 January 24, 2022 Western Riverside County Programs & Projects
MEETING AGENDA
Western Riverside County Programs and Projects Committee
Time: 1:30 p.m.
Date: January 24, 2022
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/Edward Delgado, City of Moreno Valley
Ted Hoffman/Katherine Aleman, City of Norco
Michael Vargas/Rita Rogers, City of Perris
Kevin Jeffries, County of Riverside, District I
Karen Spiegel, County of Riverside, District II
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, January 24, 2022
This meeting is being conducted virtually in accordance with AB 361 due to state or local officials
recommending measures to promote social distancing.
INSTRUCTIONS FOR ELECTRONIC PARTICIPATION
Join Zoom Meeting
https://rctc.zoom.us/j/88266521023
Meeting ID: 882 6652 1023
One tap mobile
+16699006833,,88266521023# US (San Jose)
Dial by your location
+1 669 900 6833 US (San Jose)
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
accessibility and translation services. Assistance is provided free of charge. Notification of at least 48
hours prior to the meeting time will assist staff in assuring reasonable arrangements can be made to
provide assistance at the meeting.
1.CALL TO ORDER
2.ROLL CALL
3.PLEDGE OF ALLEGIANCE
Western Riverside County Programs and Projects Committee
January 24, 2021
Page 2
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 – NOVEMBER 22, 2021
Page 1
7. COUNTY OF RIVERSIDE FUNDING REQUEST FOR DESIGN OF THE INTERSTATE 10 BYPASS
PROJECT
Page 7
Overview
This item is for the Committee to:
1) Approve programming $8 million of Transportation Uniform Mitigation Fee (TUMF)
Regional Arterial funds for the County of Riverside’s (County) Interstate 10 (I-10)
Bypass Project;
2) Approve Agreement No. 22-72-048-00 between the Commission and County for the
programming of $6 million of TUMF Regional Arterial funding for the design phase and
$2 million for the right of way phase of the I-10 Bypass Project;
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 REVIEW SERVICES
Page 36
Overview
This item is for the Committee to:
1) Award the following agreements to provide on-call right of way appraisal review
services for a three-year term, in an amount not to exceed an aggregate value of
$500,000;
a) Agreement No. 22-31-030-00 with Hawran & Malm, LLC;
Western Riverside County Programs and Projects Committee
January 24, 2021
Page 3
b) Agreement No. 22-31-052-00 with Integra Realty Resources – Los Angeles;
c) Agreement No. 22-31-053-00 with R.P. Laurain & Associates, Inc.; and
d) Agreement No. 22-31-054-00 with Santolucito Dorè Group, Inc.
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to 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 STATION ELECTRICAL SERVICES
Page 263
Overview
This item is for the Committee to:
1) Award Agreement No. 22-24-006-00 to Elite Electric, Inc. for station electrical
maintenance services and capital improvements, for a five-year term, in an amount of
$825,000 for maintenance and repairs, and $2,500,000 for capital improvements, for
a total not to exceed amount of $3,325,000;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to 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 agreements; and
4) Forward to the Commission for final action.
10. CHANGE ORDER TO AMEND THE INTERSTATE 15 EXPRESS LANES PROJECT TOLL SERVICES
AGREEMENT WITH KAPSCH TRAFFICCOM USA TO PROVIDE FOR THE DESIGN AND
INSTALLATION OF THE TOLLING SYSTEM FOR THE INTERSTATE 15/STATE ROUTE 91 EXPRESS
LANES CONNECTOR
Page 316
Overview
This item is for the Committee to:
1) Approve Change Order No. 8B 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
for the design and installation of the Tolling System for the I-15/SR-91 Express Lanes
Connector (15/91 ELC) in the amount of $6,203,750, plus a contingency amount of
$620,000, for a total amount not to exceed $6,823,750;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the change order on behalf of the Commission;
3) Authorize the Executive Director or designee to approve contingency work up to the
total amount not to exceed as required for the project; and
4) Forward to the Commission for final action.
Western Riverside County Programs and Projects Committee
January 24, 2021
Page 4
11. 15 INTERIM CORRIDOR OPERATIONS PROJECT
Overview
This item is for the Committee to receive a verbal update on status on 15 Interim Corridor
Operations Project.
12. ELECTION OF OFFICERS FOR THE WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS
COMMITTEE
Page 356
Overview
This item is for the Western Riverside County Programs and Projects Committee to conduct
an election of officers for 2022 – Chair and Vice Chair.
13. EXECUTIVE DIRECTOR REPORT
14. COMMISSIONER COMMENTS
Overview
This item provides the opportunity for brief announcements or comments on items or matters
of general interest.
15. ADJOURNMENT
The next Western Riverside County Programs and Projects Committee meeting is scheduled
to be held at 1:30 p.m., Monday, February 28, 2022.
AGENDA ITEM 6A
MINUTES
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE
Monday, November 22, 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: 81125907041.
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 Yxstian Gutierrez
Brian Berkson
Jeff Hewitt
Ted Hoffman
Kevin Jeffries
Linda Krupa
Clint Lorimore
Wes Speake
Michael Vargas
Scott Vinton
Bill Zimmerman
3. PLEDGE OF ALLEGIANCE
Commissioner Bill Zimmerman led the Western Riverside County Programs and Projects
Committee in a flag salute.
4. PUBLIC COMMENTS
There were no requests to speak from the public.
5. ADDITIONS/REVISIONS
There were no additions or revisions to the agenda.
1
RCTC WRC Programs and Projects Committee Minutes
November 22, 2021
Page 2
6. APPROVAL OF MINUTES – OCTOBER 25, 2021
M/S/C (Benoit/Vinton) to approve the minutes as submitted.
7. CITY OF TEMECULA FUNDING REQUEST FOR CONSTRUCTION OF THE INTERSTATE 15
AUXILIARY LANE PROJECT
Jillian Guizado, Planning and Programming Director, provided a detailed overview for the
city of Temecula (City) funding request for construction of the I-15 Auxiliary Lane Project
improvements. She presented the location map that was attached to the staff report.
In response to Commissioner Ted Hoffman’s inquiry that this does not authorize anything
for this budget year as this would be for the Fiscal Year 2022/23, Jillian Guizado replied
that is correct. Commissioner Hoffman clarified the money will not be spent now it will
have to be approved by the full Commission. Jillian Guizado replied yes. She stated with
this item if the committee approves it today, they will forward it to the Commission for
final action at the December Commission meeting. As included in the finance box the
reason that it does not require any other action is because the money will not be spent
until FY 2022/23, as Commissioner Hoffman noted. Staff will include it in the FY 2022/23
Budget when they are preparing that document in spring 2022 and then ultimately that
document will be approved by the Commission as well.
Commissioner Hoffman asked Anne Mayer if this was anticipated for the next budget
cycle.
Anne Mayer replied mostly as this project has been under development for several years.
She stated there have been a series of meeting and several of the Commissioners has
been on the task force in that part of the County. At a staff level what they have always
told the City on this project was get the project underway, get it developed so it can go
to construction as soon as possible, try to get as much money as they can from other
people, and when they are at a point where they cannot get any more money from other
contributors, come to RCTC and ask for the funding so the Commission can decide
whether to contribute or not. She stated the City has done exactly as they asked, they
progressed the project, they tried to apply for SB 1 funding and was not successful. Staff
has been following this project closely and encouraged the City to move it as quickly as
they can.
In response to Commissioner Hoffman’s question why the City did not qualify for the
SB 1 funds, Jillian Guizado replied they did qualify it just was not selected. The only project
from that same pot of funding that did receive an award in the Cycle 2 was for the city of
Eastvale for the Limonite Bridge Crossing.
Commissioner Wes Speake expressed appreciation to his colleagues in the South County
it is fantastic to have this partnership and with the City taking the lead and working with
2
RCTC WRC Programs and Projects Committee Minutes
November 22, 2021
Page 3
Caltrans and RCTC to solve the problem. He stated he is looking forward to picking some
brains out there on how they can do the same thing in the city of Corona.
Commissioner Bill Zimmerman asked about the SB 1 funds and if the City can continue to
apply and should they be awarded next year if they do apply have the money reimbursed
to RCTC. Jillian Guizado replied if the project stays on its current schedule the answer is
no, because the City would not be able to basically award the construction contract like
they hope to do late next summer before the next round of SB 1 funds would become
available. They anticipate the next application period opening next summer and those
funds not being awarded by CTC until June 2023. At that point the project should be to
almost construction and unfortunately the way the guidelines are they would not be able
to be reimbursed basically retroactively, but they always do look at and if by chance the
schedule did slip and since the City already has an application it would be worth it to try
again if the timeline allowed.
M/S/C (Vinton/Benoit) 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
Ruby Arellano, Senior Management Analyst, provided a detailed overview for the
agreements for the on-call right of way appraisal services.
M/S/C (Speake/Vargas) 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.
3
RCTC WRC Programs and Projects Committee Minutes
November 22, 2021
Page 4
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
Gary Ratliff, Facilities Administrator, presented the agreement for the railroad right of
way property maintenance services, highlighting the following:
• The Commission railroad property, maintenance services, and the procurement
process
Commissioner Hoffman asked about the 17 miles that do not have rail in them if that is
for future and if the Commission owns it. Gary Ratliff replied that is for future expansion
and the Commission does own it. Commissioner Hoffman clarified RCTC owns it, it is for
future expansion, for future rails, but he does not like the whole property that the
Commission is not using but that they have to take care of.
Commissioner Brian Berkson stated it is interesting to see the two bidders RailWorks
Track Systems was one and Joshua Grading & Excavating, Inc. was the other. In looking
at the scope of what the repairs need to be he asked if staff feels comfortable and
confident that a grading contractor can accomplish all the items within the scope and if
they vetted that specifically. Gary Ratliff replied yes. He stated staff does feel confident
with their ability to perform the work, noting Joshua Grading & Excavating, Inc. has the
current contract and they have been with RCTC for several years.
Commissioner Zimmerman stated since Joshua Grading & Excavating, Inc. does have the
existing contract, he gets asked a lot how people go about putting in a request when there
is illegal dumping that is taking place. Part of that 17-mile non-operating rail line runs
through Menifee and heads towards the Town of Winchester and there are a lot of
couches and mattresses being dumped there.
Gary Ratliff replied their contractor has a schedule of every Tuesday and Friday and they
review the entire area and layout a schedule for the next week to remove those items, as
well as the public can call into RCTC and ask for him so they can address any concerns
they may have.
Anne Mayer replied in addition to that they can also from a city staff standpoint there are
several jurisdictions where they have established some regular communications between
city staff and their team so that they can call directly and report or send an email. They
can also coordinate with city staff for any complaints that they received.
4
RCTC WRC Programs and Projects Committee Minutes
November 22, 2021
Page 5
M/S/C (Speake/Krupa) 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.
At this time, Commissioner Benoit left the meeting.
10. AMENDMENT TO AGREEMENT WITH STEVE’S TOWING FOR EXPRESS LANES FREEWAY
SERVICE PATROL SERVICE
Brian Cunanan, Commuter & Motorist Assistance Manager, provided a detailed overview
for the amendment to the agreement with Steve’s Towing for express lanes Freeway
Service Patrol service.
M/S/C (Vargas/Zimmerman) 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.
11. EXECUTIVE DIRECTOR REPORT
11A. Anne Mayer announced at the last Commission meeting it was decided that a
hybrid meeting would be used for Commission meetings on a go forward basis so
the December 8 Commission meeting will be a hybrid meeting.
11B. Caltrans Director Toks Omishakin will be attending the December 8 Commission
meeting for a presentation as well as questions and answers. It is a good
opportunity to be able to have those conversations about the future of
5
RCTC WRC Programs and Projects Committee Minutes
November 22, 2021
Page 6
transportation policy in California and how it may impact Riverside County. The
Wall Street Journal today had an article about migration to the Inland Empire and
staff will send a copy of that article to the Commissioners.
11C. At 1:00 p.m. the CTC will be in the Board Room for their December Commission
meeting, which will be a hybrid meeting. Chair Jan Harnik will do a brief welcome
to them and the CTC asked for an item on innovations in transportation, which
Aaron Hake will make a presentation on the Riverside County Integrated Project
and the transportation benefits of the Multi-Species Habitat Conservation Plan.
Chair Lorimore stated he is looking forward to being able to have the opportunity
to be in person at the December 8 Commission meeting. Also, the Wall Street
Journal article that Anne Mayer mention, he encourages everybody to check it out
as it is a well done piece.
12. COMMISSIONER COMMENTS
12A. Commissioner Zimmerman confirmed that the Western Riverside County
Programs and Projects will not be meeting on December 27. Anne Mayer replied
correct.
12B. Commissioner Hoffman noted for those that get the local paper or subscribe to
any of the Southern California Users Group to read the article about the national
survey that was done by Bankrate as California state is worse for the drivers. He
then wished everyone a Happy Thanksgiving.
Chair Lorimore wished everyone a Happy Thanksgiving.
13. ADJOURNMENT
There being no further business for consideration by the Western Riverside County
Programs and Projects Committee, the meeting was adjourned at 2:04 p.m.
Respectfully submitted,
Lisa Mobley
Administrative Services Manager/
Clerk of the Board
6
AGENDA ITEM 7
Agenda Item 7
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: January 24, 2022
TO: Western Riverside County Programs and Projects Committee
FROM: Jillian Guizado, Planning and Programming Director
THROUGH: John Standiford, Deputy Executive Director
SUBJECT: County of Riverside Funding Request for Design of the Interstate 10 Bypass
Project
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Approve programming $8 million of Transportation Uniform Mitigation Fee (TUMF)
Regional Arterial funds for the County of Riverside’s (County) Interstate 10 (I-10) Bypass
Project;
2) Approve Agreement No. 22-72-048-00 between the Commission and County for the
programming of $6 million of TUMF Regional Arterial funding for the design phase and
$2 million for the right of way phase of the I-10 Bypass Project;
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:
I-10, between Banning and Cabazon, carries more than 147,000 vehicles and trucks daily.
Travelers on this stretch of I-10 are at the mercy of the freeway mainline operating as it is
intended to.
The I-10 Bypass Project, a 3.5-mile new two-lane roadway, has been envisioned for at least two
decades as a parallel facility to I-10. The project was first included in the Federal Transportation
Improvement Plan in 2003 and is included in the 2008 Emergency Response I-10 Closure Plan.
Unfortunately, time and again residents and travelers of the area are reminded of the importance
of such a facility when something catastrophic happens on I-10. When it does, the California
Highway Patrol or California Department of Transportation may shut down the freeway leaving
its motorists stuck for hours on end. Many other areas of I-10 have parallel local facilities
motorists can use to bypass a major incident. As seen in the project vicinity map (Attachment 2),
there is no parallel facility to I-10 in the Banning/Cabazon area.
7
Agenda Item 7
DISCUSSION:
The County completed the environmental phase of the project in December 2021. On December
6, 2021, the County submitted a request to the Commission for assistance funding the next phase
of the I-10 Bypass Project in the amount of $8 million (Attachment 1). Funding is needed to
advance the project to the design and right of way phases from Fiscal Year (FY) 2022/23 through
FY 25/26. As the design and right of way phases are being completed, funding for the
construction phase will be sought. Construction is currently scheduled to begin spring 2026 and
will take two-and-a-half years to complete. As shown on the project vicinity map (Attachment
2), the project is located south of I-10 between Hathaway Road in Banning and Apache Trail in
Cabazon.
The I-10 Bypass is a project included in the Western Riverside Council of Governments’ (WRCOG)
TUMF Nexus Study on the backbone network. Before seeking funding from the Commission, the
County proposed having the next phases of the project funded through WRCOG’s TUMF Zone
program. Because many developers in the Pass Zone, where the I-10 Bypass Project is located,
opt for credit agreements instead of paying TUMF fees directly, the Pass Zone did not have
sufficient funding to accommodate the County’s request. WRCOG members of the Pass Zone
prioritized available funding for two other priority projects.
The regional nature of the I-10 Bypass Project makes it an ideal candidate for TUMF Regional
Arterial funding. As such, staff recommends programming $8 million of TUMF Regional Arterial
funds for the County’s I-10 Bypass Project and authorizing Agreement No. 22-72-048-00 between
the Commission and the County, to be executed by the Chair or Executive Director upon legal
review.
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, and subsequent budgets, will include $8 million for design
and right of way cost reimbursements to the County.
Financial Information
In Fiscal Year Budget: N/A Year: FY 2022/23
FY 2023/24+ Amount: $2,500,000
$5,500,000
Source of Funds: TUMF Regional Arterials Budget Adjustment: N/A
GL/Project Accounting No.: 005137 81101 00000 0000 210 72 81101
005137 81402 00000 0000 210 72 81402
Fiscal Procedures Approved: Date: 01/12/2022
Attachments:
1) County Request Letter dated December 6, 2021
8
Agenda Item 7
2) Project Vicinity Map
3) Draft Agreement No. 22-72-048-00
9
10
ATTACHMENT 1
11
12
ATTACHMENT 2
17336.02600\34700205.1 1
Agreement No. 22-72-048-00
AGREEMENT FOR THE FUNDING OF
TUMF REGIONAL ARTERIAL IMPROVEMENTS
WITH THE COUNTY OF RIVERSIDE
For
INTERSTATE 10 BYPASS PROJECT
1.Parties and Date.
1.1 This Agreement is executed and entered into this day of , 2022, by and
between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (“RCTC”) and the
COUNTY OF RIVERSIDE (“County”). RCTC and County 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 requires cities and the County in western Riverside County to participate
in a Transportation Uniform Mitigation Fee (TUMF) Program to be eligible to receive Local
Streets and Roads funds generated by Measure A.
2.4 The Western Riverside Council of Governments (WRCOG) has been selected to
administer the overall TUMF Program pursuant to applicable state laws including Government
Code Sections 66000 et seq. and has entered into a Memorandum of Understanding (MOU) with
RCTC dated July 10, 2003, and revised on September 10, 2008 regarding the allocation of the
TUMF Regional Funds to be made available to RCTC for programming.
2.5 RCTC has adopted a TUMF Regional Arterial Program, which is updated from
time to time, and identifies the projects and the maximum funding commitments awarded for
specific phases of work.
2.6 RCTC intends, by this Agreement, to distribute TUMF Regional Funds, subject to
the conditions provided herein, and to participate in the joint development of the Project, as defined
herein.
13
ATTACHMENT 3
17336.02600\34700205.1
2
3. Terms.
3.1 Description of Work. This Agreement is intended to distribute TUMF Regional
Funds to the County for the Interstate 10 Bypass 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 County and approved
by RCTC. The Work shall be consistent with one or more of the defined phases detailed herein as
follows:
1) PS&E – Plans, Specifications and Estimates
2) R/W – Right of Way Acquisition and Utility Relocation
The Work phases funded pursuant to this Agreement shall be consistent with the County’s Request
Letter submitted to 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 County shall expend
TUMF Regional 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 County, on the
terms and conditions set forth herein, a sum not to exceed EIGHT MILLION DOLLARS
($8,000,000), to be used exclusively for reimbursing the County for eligible Work expenses as
described herein (“Funding Amount”). The County acknowledges and agrees that the Funding
Amount may be less than the actual cost of the Work, and that RCTC shall not contribute TUMF
Regional Funds in excess of the maximum TUMF share for the phase/project identified in the
current TUMF Nexus Study.
3.2.1 Eligible Work Costs. The total Work costs (“Total Work Cost”) may
include the following items, provided that such items are included in the scope of work attached
as Exhibit “A”: (1) County and/or consultant costs associated with direct Work coordination and
support; (2) funds expended in preparation of preliminary engineering studies; (3) funds expended
for preparation of environmental review documentation for the Work; (4) all costs associated with
right-of-way acquisition, including right-of-way engineering, appraisal, acquisition, legal costs for
condemnation procedures if authorized by the County, and costs of reviewing appraisals and offers
for property acquisition; (5) costs reasonably incurred if condemnation proceeds; (6) costs incurred
in the preparation of plans, specifications, and estimates by County or consultants; (7) County
costs associated with bidding, advertising and awarding of the Work contracts; (8) construction
costs, including change orders to construction contract approved by the County; and (9)
construction management, field inspection and material testing costs.
3.2.1.1 Right-of-Way Acquisition. The Parties acknowledge that in order
to protect the County’s ability to deliver the Project in a timely cost effective manner, the County
may purchase parcels of property in advance of the completion of the Project’s final design
(PS&E). The Parties acknowledge that acquired parcels or remnants purchased in advance of final
design may not ultimately be required for the Project. Upon completion of the Project’s final
design, the County shall provide RCTC with a detailed list of all parcels purchased by the County
14
17336.02600\34700205.1
3
for which it received TUMF Regional Funds pursuant to this Agreement. The County shall
identify any parcels or remnants thereof which were acquired using TUMF Regional Funds and
are not required for construction of the Project. A preliminary list shall be submitted to the RCTC
30 days before the issuance of bid documents for construction of the Project and a final list shall
be submitted to the RCTC no later than 30 days following the recording of the Certificated of
Completion for the Project.
3.2.1.2 Valuation and Repayment of Any Property Remnants. Upon
receipt of the County’s final list, RCTC shall meet with the County for the purpose of identifying
any parcel or reasonably usable remnant of a parcel for which TUMF Regional Funds were
expended that may reasonably be developed for other use by the County and/or sold. The Parties
shall confer in good faith to agree upon the disposition of such parcels and remnant parcels and
their fair market value as of a date agreed to by the parties, but in no event later than the date of
completion of the Project. “Fair Market Value” shall have the definition set forth in Code of Civil
Procedure Section 1263.320 and “remnant” shall have the definition set forth in Code of Civil
Procedure Section 1240.410. Nothing herein shall preclude the County and RCTC from beginning
the meetings earlier in the event both parties agree that the parcel or remnant will not be used for
the Project.
3.2.1.3 Reimbursement for Unused Parcels. Following recordation of the
Certificate of Completion for the Project, the County shall be responsible for promptly reimbursing
RCTC for any TUMF Regional Funds which were used to acquire parcels which are completely
unused in the Project. If County funds other than TUMF were used to purchase the Parcel, those
local funds shall be considered in determining the reimbursement amount.
3.2.1.4 Appeal to RCTC. In the event of a disagreement between the
Parties regarding the reimbursement of TUMF Regional Funds under this section 3.2.1, either
party may appeal, in writing, to the RCTC Board. The RCTC Board’s determination regarding
excess right-of-way and value pursuant to this section shall be final.
3.2.2 Ineligible Work Costs. The Total Work Cost shall not include the following
items which shall be borne solely by the County without reimbursement: (1) County administrative
costs; (2) County costs attributed to the preparation of invoices, billings and payments; (3) any
County 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 Regional Funds if the Project is eligible to receive
additional TUMF Regional Funds under the TUMF Nexus Study. Any such increase in the
Funding Amount must be approved in writing by RCTC’s Executive Director. In no case shall the
amount of TUMF Regional Funds allocated to the County exceed the then-current maximum
eligible TUMF share for the Work. 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 dollar for
15
17336.02600\34700205.1
4
dollar in an amount proportional to the savings on the Work. The County shall inform RCTC of
any cost savings.
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 Regional Funds. No improvement which is temporary in nature, including but not limited
to temporary roads, curbs, or drainage facilities, shall be funded with TUMF Regional Funds
except as needed for staged construction of the Work.
3.3 County’s Funding Obligation to Complete the Work. In the event that the TUMF
Regional Funds allocated to the Work represent less than the total cost of the Work, the County
shall be responsible for identifying such additional funds as may be required to complete the Work
as described in Exhibit “A”.
3.3.1 County’s Obligation to Repay TUMF Regional Funds to RCTC. In the
event that: (i) the County, 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 County agrees that any TUMF Regional Funds that were distributed
to the County 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
County acknowledges and agrees that RCTC shall have the right to withhold any Measure A Local
Streets and Roads revenues due the County, in an amount not to exceed the total of the funds
distributed to the County, and/or initiate legal action to compel repayment, if the County 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 County’s Local Match Contribution. The County shall utilize the
[__INSERT DOLLAR AMOUNT__] of identified funding toward the Work, as shown in Exhibit
“A”. These other funds, for the applicable phase, shall be drawn down in full before TUMF
Regional Funds are invoiced.
3.4 Work Responsibilities of the County. The County 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) development and approval
of plans, specifications and engineer’s estimate (PS&E), environmental clearance, right of way
acquisition, and obtaining all permits required by impacted agencies prior to commencement of
the Work ; (ii) all aspects of bidding, awarding, and administration of the contracts for the Work;
(iii) all construction management of any construction activities undertaken in connection with the
Work, including survey and material testing; and (iv) development of a budget for the Work prior
to award of any contract for the Work, taking into consideration available funding, including
TUMF Regional 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 County has
fully satisfied its obligations under this Agreement, (Note: If this Agreement is for Phase I work
16
17336.02600\34700205.1
5
do not include the following text) “including full repayment of TUMF Regional 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 County hereby designates Mark Lancaster, Director of
Transportation, or his or her designee, as the County’s representative to RCTC. The County’s
representative shall have the authority to act on behalf of the County for all purposes under this
Agreement and shall coordinate all activities of the Work under the County’s responsibility. The
County 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 County Prior to Execution of Agreement. Nothing in this
Agreement shall be construed to prevent or preclude the County from expending funds on the
Work prior to the execution of the Agreement, or from being reimbursed by RCTC for such
expenditures. However, the County understands and acknowledges that any expenditure of funds
on the Work prior to the execution of the Agreement is made at the County’s sole risk, and that
some expenditures by the County may not be eligible for reimbursement under this Agreement.
3.8 Review of Services. The County 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 County 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 County
terminates this Agreement for convenience, the County shall, within 180 days, repay to RCTC in
full all TUMF Regional Funds provided to the County under this Agreement. In the event that
RCTC terminates this Agreement for convenience, RCTC shall, within 90 days, distribute to the
County TUMF Regional Funds in an amount equal to the aggregate total of all unpaid invoices
which have been received from the County 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.
17
17336.02600\34700205.1
6
3.9.2 Termination for Cause.
3.9.2.1 Notice. Either RCTC or the County 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 County
terminates this Agreement in response to RCTC's uncured material breach hereof, RCTC shall,
within 90 days, distribute to the County TUMF Regional Funds in an amount equal to the aggregate
total of all unpaid invoices which have been received from the County regarding the Work at the
time of the notice of termination. In the event that RCTC terminates this Agreement in response
to the County's uncured material breach hereof, the County shall, within 180 days, repay to RCTC
in full all TUMF Regional Funds provided to the County 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.
3.10 Prevailing Wages. The County 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 County shall ensure compliance with these
prevailing wage requirements by any person or entity hired to perform the Work. The County
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 County to provide RCTC with progress
reports concerning the status of the Work.
3.12 Indemnification.
3.12.1 County Responsibilities. In addition to the indemnification required under
Section 3.10, the County agrees to indemnify and hold harmless RCTC, its officers, agents,
consultants, and employees from any and all claims, demands, costs or liability (“Claims”) arising
from or connected with all activities governed by this Agreement including all design and
construction activities, due to acts, errors or omissions or willful misconduct of the County or its
contractors. The County will reimburse RCTC for any expenditures, including reasonable
attorneys’ fees, incurred by RCTC, in defending against Claims ultimately determined to be due
to acts, errors or omissions or willful misconduct of the County or its contractors. The indemnity
herein shall not apply to Claims caused by the sole negligence of RCTC.
18
17336.02600\34700205.1
7
3.12.2 Effect of Acceptance. The County 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 County 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 County shall be and remain liable to RCTC, in accordance with applicable law, for all
damages to RCTC caused by the County’s performance of this Agreement or supervision of any
services provided to complete the Work.
3.13 Insurance. The County 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 County 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:
3.13.1.1 Name RCTC and County, and their respective officials,
officers, employees, agents, and consultants as additional insureds 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 additional insured;
3.13.1.2 Be primary with respect to any insurance or self-insurance
programs covering RCTC and County, 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.
19
17336.02600\34700205.1
8
3.14 Procedures for Distribution of TUMF Regional Funds to County.
3.14.1 Initial Payment by the County. The County shall be responsible for initial
payment of all the Work costs as they are incurred. Following payment of such Work costs, and
after all other funding sources identified in Exhibit “A” have been expended, for the applicable
phase, the County 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 County, and documents evidencing the County’s payment of the invoices or
demands for payment. The County 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 County, 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 County within
thirty (30) days. In the event that RCTC disputes the eligibility of the County 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 County
may appeal RCTC’s decision as to the eligibility of one or more invoices to RCTC’s Executive
Director. The County 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 County’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 County in an amount in excess of the maximum eligible
TUMF share of the Work, as determined by the TUMF Nexus Study, or has provided
reimbursement of ineligible Work costs, the County 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 County or RCTC may be requested
in writing by the County 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”),
and the National Environmental Policy Act of 1969 (42 USC 4231 et seq.) as applicable, but the
necessity of compliance with CEQA, and NEPA as applicable, 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 County or RCTC, during the term of his or her service with the County 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 County’s duties and obligations under
this Agreement are limited to those described herein. RCTC has no obligation with respect to the
20
17336.02600\34700205.1
9
safety of any Work performed at a job site. In addition, RCTC shall not be liable for any action
of County or its contractors relating to the condemnation of property undertaken by County 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.
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:
COUNTY OF RIVERSIDE RCTC
Transportation Department Riverside County Transportation Commission
4080 Lemon Street, 9th Floor 4080 Lemon, 3rd Floor
Riverside, CA 92501 Mailing address: P.O. Box 12008
Riverside, CA 92501
ATTN: Director of Transportation ATTN: Executive Director
21
17336.02600\34700205.1
10
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 Work.
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.
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 County 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 County or contractor, whichever is applicable. The County 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 County 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.
22
17336.02600\34700205.1
11
3.33 Counterparts. This Agreement may be signed in counterparts, each of which shall
constitute an original.
3.34 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]
23
17336.02600\34700205.1
12
SIGNATURE PAGE
TO
AGREEMENT FOR THE FUNDING OF
TUMF REGIONAL ARTERIAL IMPROVEMENTS
RIVERSIDE COUNTY COUNTY OF RIVERSIDE
TRANSPORTATION COMMISSION
By: By: ________________________
Anne Mayer,
Executive Director Its: ________________________
ATTEST:
By: _______________________
County Clerk
APPROVED AS TO FORM: APPROVED AS TO FORM:
By: _________________________________ By: _________________________
Best Best & Krieger LLP County Attorney
Counsel to the Riverside County
Transportation Commission
24
17336.02600\34700205.1
EXHIBIT A
EXHIBIT “A”
SCOPE OF WORK,
FUNDING AND TIMETABLE
PROJECT OVERVIEW: The proposed Project would construct two (2) lanes of new roadway
from Hathaway Street in City of Banning to Apache Trail in the unincorporated community of
Cabazon. A portion of this Project will be constructed on the Morongo Indian Reservation. The
proposed Project would provide an alternate roadway to Interstate 10 that would connect these
two communities.
SCOPE OF WORK: The Phases of Work to be performed under this Agreement include:
• PS&E – Design (Plans, Specifications & Estimates for Alternative 12)
• R/W – Right of way for Alternative 12
This project consists of preparing the PS&E package for the construction of the Interstate 10
Bypass Project (Project).
FUNDING:
Phase TUMF Federal Local Total
PS&E $6,000,000 $ $
$6,000,000
RIGHT OF
WAY
$2,000,000 $ $
$2,000,000
TOTAL $8,000,000 $ $
$8,000,000
TIMETABLE:
Phase Start Date End Date Comments
Design (PS&E) 7/2022 7/2025 750 Working Days
Right of Way (R/W) 7/2022 7/2025 750 Working Days
25
17336.02600\34700205.1
EXHIBIT B
EXHIBIT “B”
PROJECT VICINITY MAP
26
17336.02600\34700205.1
EXHIBIT C
EXHIBIT “C”
PROCEDURES FOR SUBMITTAL, CONSIDERATION AND PAYMENT OF INVOICES
1. RCTC recommends that the County incorporate Exhibit “C-1” into its contracts with any
subcontractors to establish a standard method for preparation of invoices by contractors
to the County and ultimately to RCTC for reimbursement of County contractor costs.
2. Each month the County 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 County 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 of an acceptable progress report is attached as Exhibits “C-4”. All documentation
from the County’s contractors should be accompanied by a cover letter in a format
substantially similar to that of Exhibit “C-3”.
4. If the County is seeking reimbursement for direct expenses incurred by County staff for
eligible Work costs, the County 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 County 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. ____________________________
27
17336.02600\34700205.1
EXHIBIT C
7. RCTC will pay the County within 30 days after receipt by RCTC 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 County has
obtained a Release and Certificate of Final Payment from each contractor or consultant
used on the Work; (ii) the County has executed a Release and Certificate of Final Payment;
and (iii) the County has provided copies of each such Release to RCTC.
28
17336.02600\34592611.2
Exhibit “C-1”
EXHIBIT “C-1”
ELEMENTS OF COMPENSATION
For the satisfactory performance and completion of the Work under this Agreement,
County 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 County’s 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.
29
17336.02600\34592611.2
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 County. 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
County’s office must have County’s prior written approval to be reimbursed under this
Agreement.
30
17336.02600\34592611.2
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
County 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 County’s Engineer
with two (2) copies to County’s Project Coordinator.
3.2 Charges shall be billed in accordance with the terms and rates included herein,
unless otherwise agreed in writing by County’s Representative.
31
17336.02600\34592611.2
Exhibit “C-1”
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 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 County 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 County shall pay the Consultant within four to six weeks after receipt by County of
an original invoice. Should County 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.
32
17336.02600\34592611.2
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 County 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:
33
17336.02600\34592611.2
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
34
17336.02600\34592611.2
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
35
AGENDA ITEM 8
Agenda Item 8
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: January 24, 2022
TO: Western Riverside County Programs and Projects Committee
FROM: Ruben Duran, Senior Management Analyst
Hector Casillas, Right of Way Manager
THROUGH: Marlin Feenstra, Project Delivery Director
SUBJECT: Agreements for On-Call Right of Way Appraisal Review Services
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Award the following agreements to provide on-call right of way appraisal review services
for a three-year term, in an amount not to exceed an aggregate value of $500,000;
a) Agreement No. 22-31-030-00 with Hawran & Malm, LLC;
b) Agreement No. 22-31-052-00 with Integra Realty Resources – Los Angeles;
c) Agreement No. 22-31-053-00 with R.P. Laurain & Associates, Inc.; and
d) Agreement No. 22-31-054-00 with Santolucito Dorè Group, Inc.
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to 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 review services are necessary to support the Commission’s 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.
The Code of Federal Regulations, 49 CFR Part 24, Subpart A, requires that review appraisers
examine the presentation and analysis of market information in all appraisals and ensure
compliance with accepted practices and appropriate methodologies, as well as the Uniform
Standards of Appraisal and/or Uniform Appraisal Standards for Federal Land Acquisitions. All
review appraisers shall be licensed by the Bureau of Real Estate Appraisers.
Awarding contracts for on-call appraisal review 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 that practice. Due to the amount of potential appraisal review services required for
36
Agenda Item 8
both Commission and RCA projects, 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 review
services as set forth under the terms of Request for Proposals (RFP) No. 22-31-030-00.
RFP No. 22-31-030-00 for on-call right of way appraisal review services was released by staff on
November 18, 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 December 2, 2021, clarification deadline. Seven firms –
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 Thompson & Thompson
(Arcadia) – submitted responsive and responsible proposals prior to the 2:00 p.m. submittal
deadline on December 16, 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 four firms – Hawran & Malm, 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 review services. The evaluation committee recommends
contract awards to these four firms for a three-year term, in the aggregate amount of $500,000,
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, subject to any changes approved by the Executive Director, pursuant to legal
counsel review. Staff oversight of the contracts and task orders will maximize the effectiveness
of the consultants and minimize costs to the Commission.
37
Agenda Item 8
Financial Information
In Fiscal Year Budget: Yes
N/A Year: FY 2021/22
FY 2022/23+ Amount: $75,000
$425,000
Source of Funds:
2009 Measure A Western County highway
and rail, State Transportation
Improvement Program, various Federal
reimbursements, Transportation Uniform
Mitigation Fees, and RCA reimbursements
Budget Adjustment: No
N/A
GL/Project Accounting No.:
623999 81403 00014 0000 262 31 81402
654199 81403 00014 0000 265 33 81402
r22001 81403 00014 5201 750 68 81402
Fiscal Procedures Approved: Date: 01/12/2022
Attachments:
1) Draft Agreement No. 22-31-030-00 with Hawran & Malm, LLC
2) Draft Agreement No. 22-31-052-00 with Integra Realty Resources – Los Angeles
3) Draft Agreement No. 22-31-053-00 with R.P. Laurain & Associates, Inc.
4) Draft Agreement No. 22-31-054-00 with Santolucito Dorè Group, Inc.
38
Agreement No. 22-31-030-00
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 REVIEW 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 California 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 review
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 review 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
DR
A
F
T
39
ATTACHMENT 1
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.
F. 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).
G. Commission may engage Consultant to provide services for the benefit of
the Western Riverside County Regional Conservation Authority (“RCA”)
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 review 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
DR
A
F
T
40
4
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
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:
DR
A
F
T
41
5
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.
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 February 28, 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.
DR
A
F
T
42
6
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
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 designates 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
DR
A
F
T
43
7
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
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.
DR
A
F
T
44
8
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.
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.
DR
A
F
T
45
9
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 Consultant shall be reimbursed for hours worked at the hourly rates
specified in the Consultant’s approved cost proposal, attached hereto as Exhibit “B”. The
specified hourly rates shall include direct salary costs, employee benefits, prevailing
DR
A
F
T
46
10
wages, employer payments, overhead, and fee. These rates are not adjustable for the
performance period set forth in this Agreement.
18.2 In addition, Consultant shall be reimbursed for incurred (actual)
direct costs other than salary costs that are included in the attached Exhibit “B” and
identified in the approved Task Order.
18.3 Specific projects may be assigned to Consultant through issuance
of Task Orders, as set forth in this Agreement. Task Orders may be negotiated for a lump
sum (firm fixed price) or for specific rates of compensation, both of which must be based
on the labor and other rates set forth in the attached Exhibit “B”. Consultant shall be
responsible for any future adjustments to prevailing wage rates including, but not limited
to, base hourly rates and employer payments as determined by the Department of
Industrial Relations. Consultant is responsible for paying the appropriate rate, including
escalations that take place during the term of the Agreement.
18.4 Reimbursement for transportation and subsistence costs shall not
exceed the rates specified in Exhibit “B”. In addition, payments to Consultant for travel
and subsistence expenses claimed for reimbursement shall not exceed State rates,
unless otherwise authorized by Commission. If the rates invoiced are in excess of State
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.
18.5 When milestone cost estimates are included in the approved cost
proposal for a Task Order, Consultant shall obtain prior written approval in the form of
an amendment to the Task Order for a revised milestone cost estimate from the Contract
Administrator before exceeding such estimate.
18.6 Progress payments for each Task Order shall be made monthly in
arrears based on services provided and actual costs incurred.
18.7 Consultant shall not commence performance of work or services
until this Agreement has been approved by Commission, and a Task Order has been
authorized as detailed in Section 2 of this Agreement. No payment will be made prior to
approval or for any work performed prior to approval of this Agreement, and receipt of
Commission’s Task Order Authorization.
18.8 Consultant shall be reimbursed, within forty five (45) days upon
receipt by Commission’s Contract Administrator of itemized invoices in duplicate.
Separate invoices itemizing all costs are required for all work performed under each Task
Order. Invoices shall be submitted no later than forty five (45) calendar days after the
performance of work for which Consultant is billing. Invoices shall detail the work
performed on each milestone, on each project as applicable. Invoices shall follow the
format stipulated for the authorized Task Order, or as otherwise agreed upon by the
Parties, and shall reference this Agreement number, project title and Task Order number.
Credits due Commission that include any equipment purchased under the provisions of
DR
A
F
T
47
11
Section 25, Equipment Purchase, of this Agreement must be reimbursed by Consultant
prior to the expiration or termination of this Agreement. 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
18.9 The total amount payable by Commission, shall not exceed the
amount set forth in each Task Order.
18.10 Commission has or will enter into four (4) task order contracts for
performance of the Scope of Services identified in Exhibit “A”, including this Agreement
(“On-Call ROW Appraisal Review Task Order Contracts”). The other On-Call ROW
Appraisal Review Task Order Contracts are Integra Realty Resources – Los Angeles,
22-31-052-00; R.P. Laurain & Associates, 22-31-053-00; and Santolucito Dorè Group,
Inc., 22-31-054-00. The total amount payable by Commission for the On-Call ROW
Appraisal Review Task Order Contracts shall not exceed a cumulative maximum total
value of Five Hundred Thousand ($500,000) (“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 Review Task Order Contracts through
Task Orders. Each time a Task Order is awarded under any of the On-Call ROW
Appraisal Review Task Order Contracts, Commission must send written notification to
Consultant and each of the other consultants entering into the On-Call ROW Appraisal
Review 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.
18.11 Consultant shall not be reimbursed for any expenses unless
authorized in writing by the Commission’s Contract Administrator.
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
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.
DR
A
F
T
48
12
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
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.
DR
A
F
T
49
13
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
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,
DR
A
F
T
50
14
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.
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.
DR
A
F
T
51
15
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.
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
DR
A
F
T
52
16
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
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
DR
A
F
T
53
17
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
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
DR
A
F
T
54
18
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, RCA and their 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.
DR
A
F
T
55
19
27.5 Provisions Applicable to RCA. To the extent the services are
performed for the benefit of RCA, the rights granted in this Section 27 to the Commission
shall also be granted to RCA.
28. Indemnification. To the fullest extent permitted by law, Consultant shall
defend, indemnify and hold Commission, RCA, 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, RCA, 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, RCA, 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
persons or damages to property which may arise from or in connection with the
DR
A
F
T
56
20
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
be required by the Commission. Such insurance shall include coverage for owned, hired
DR
A
F
T
57
21
and non-owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, RCA, 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, RCA, Caltrans
and their 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,
RCA’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, RCA, 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,
RCA, 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,
RCA, 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.
DR
A
F
T
58
22
(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, RCA, 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, RCA and Caltrans (if agreed to in a written contract or agreement) before
the Commission’s, RCA’s or Caltrans’ 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.
DR
A
F
T
59
23
(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.
DR
A
F
T
60
24
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, RCA and Caltrans as additional insureds 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,
DR
A
F
T
61
25
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.
DR
A
F
T
62
26
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.
DR
A
F
T
63
27
(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:
DR
A
F
T
64
28
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. Except as to rights expressly granted to RCA
hereunder, there are no intended third party beneficiaries of any right or obligation
assumed by the Parties.
DR
A
F
T
65
29
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]
DR
A
F
T
66
30
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:
[INSERT NAME]
Chair
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.
DR
A
F
T
67
Exhibit A
EXHIBIT A
SCOPE OF SERVICES
RIGHT OF WAY
APPRAISAL REVIEW SERVICES
The Riverside County Transportation Commission (Commission) has procured one or more
Consultants (Consultant/Review Appraiser) to provide Appraisal Review Services on an On-
Call/as needed basis in support of current 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 review appraisal services may include, but are not limited to, the following work
programs, and/or comply with applicable requirements below:
1. When required by the Commission, Review Appraiser shall examine appraisals
prepared by Commission's On-Call Residential, Commercial, Industrial, Railroad,
and/or Agricultural appraisers.
2. When required by the Commission, Review Appraiser shall examine appraisals
submitted by the property owners and comment by memorandum on the findings.
3. Review Appraiser shall provide Appraisal Review Services based on nationally
recognized appraisal standards and techniques, including those established by the
Uniform Standards of Professional Appraisal Practice (USPAP), the Uniform
Appraisal Standards tor Federal Land Acquisition; ensure compliance 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.), and the California
Code of Civil Procedure. Comply with the requirements of the Caltrans Right of Way
Manual, when applicable. Consultants must be licensed by the State of California.
4. Review Appraiser shall provide Appraisal Review Services to ensure compliance for
appraisals prepared in accordance with the Uniform Appraisal Standards for Federal
Land Acquisition (“Yellow Book”), Consultant must be licensed by the State of
California.
5. Review Appraiser must be qualified to provide expert witness testimony and defend
the conclusions at any Administrative or Judicial proceeding.
6. Review Appraiser may be required to meet with and coordinate their efforts with
Commission staff, Commission legal counsel, other consultants, or Caltrans staff;
participate in office or project site meetings.
DR
A
F
T
68
Exhibit A
7. It is the Review Appraiser's responsibility to contact Commission's project engineers
for discussion and/or clarification of any project design matters. This is critical in
reviewing appraisals of partial acquisitions and easements where engineering
information must be verified.
8. Review Appraiser shall examine appraisals to assure that they meet applicable
appraisal requirements and shall, prior to acceptance, seek necessary corrections or
revisions.
9. Appraisal Review reports may be reviewed for acceptance by Caltrans or other
approving agencies.
10. If the Review Appraiser is unable to recommend approval of an appraisal as an
adequate basis for the establishment of the offer of just compensation or market value,
and it is determined that it is not practical to obtain additional appraisal, Review
Appraiser may develop appraisal documentation to recommend value.
11. The Review Appraiser and the Appraiser should discuss the appraisal assignment as
soon work is assigned. The Review Appraiser and, if practical, the Appraiser should
hold at least one field review to identify any legal issues that may exist. If any legal
issues exist; the Review Appraiser shall request legal opinion.
12. All legal opinions shall be rendered by Commission's legal counsel and the appraisal
prepared in accordance therewith.
13. The Review Appraiser's certification of the recommended value of the property shall be
set forth in a signed statement which identifies the appraisal reports reviewed and
explains the basis for such recommendation. Any damages or benefits to any remaining
property shall also be identified in the statement.
14. All reports and deliverables shall typically consist of one (1) original and one (1)
electronic copy, including specialty reports which may be prepared by other
consultants.
15. In cases where the assignment requires other services, Review Appraiser shall utilize
the services of Commission's On-Call Consultants. Fees charged by Commission's
On-Call Consultants shall be paid directly by Commission.
DR
A
F
T
69
FIRM PROJECT TASKS/ROLE COST
Hawran & Malm, LLC Right of Way Appraisal Review Services 500,000.00$
500,000.00$ 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
DR
A
F
T
70
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
DR
A
F
T
71
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.
DR
A
F
T
72
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
DR
A
F
T
73
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
DR
A
F
T
74
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.
DR
A
F
T
75
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
DR
A
F
T
76
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
DR
A
F
T
77
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
DR
A
F
T
78
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
DR
A
F
T
79
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.
DR
A
F
T
80
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.
3. Access to Records
The Consultant agrees to the following access to records requirements:
DR
A
F
T
81
Exhibit D-2
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,
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
DR
A
F
T
82
Exhibit D-3
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.
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:
DR
A
F
T
83
Exhibit D-4
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 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.
DR
A
F
T
84
Exhibit D-5
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.
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.
DR
A
F
T
85
Exhibit D-6
(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.)
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:
DR
A
F
T
86
Exhibit D-7
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.
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
DR
A
F
T
87
Exhibit D-8
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.
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.
DR
A
F
T
88
Exhibit D-9
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 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
DR
A
F
T
89
Exhibit D-10
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.
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.
DR
A
F
T
90
Exhibit D-11
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.
DR
A
F
T
91
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
____________________________
DR
A
F
T
92
Exhibit F-1
EXHIBIT F – LOBBYING ACTIVITIES DISCLOSURE
DR
A
F
T
93
Hawran & Malm, LLC – Statement of Qualifications Request for Proposals (RFP) NO. 22-31-030-00 21
H AWRAN & M ALM, LLC
Appendix L – Disclosure of Lobbying Activities
DR
A
F
T
94
Agreement No. 22-31-052-00
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA AND FTA FUNDING ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
ELLIS GROUP, INC.
D/B/A INTEGRA REALTY RESOUCES – LOS ANGELES
FOR ON-CALL
RIGHT OF WAY APPRAISAL REVIEW 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 ELLIS GROUP, INC., a California corporation, d/b/a INTEGRA
REALTY RESOUCES – LOS ANGELES ("Consultant"). 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 review
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 review 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
DR
A
F
T
95
ATTACHMENT 2
3
Commission as further described in this Agreement (“Task Order”). Consultant
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.
F. 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).
G. Commission may engage Consultant to provide services for the benefit of
the Western Riverside County Regional Conservation Authority (“RCA”)
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 review 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
DR
A
F
T
96
4
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
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:
DR
A
F
T
97
5
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.
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 February 28, 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.
DR
A
F
T
98
6
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
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 designates 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, Jerardo Arciniega, Thomas G.
Richardson, and J. Richard Donahue, 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
DR
A
F
T
99
7
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
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.
DR
A
F
T
100
8
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.
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.
DR
A
F
T
101
9
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 Consultant shall be reimbursed for hours worked at the hourly rates
specified in the Consultant’s approved cost proposal, attached hereto as Exhibit “B”. The
specified hourly rates shall include direct salary costs, employee benefits, prevailing
DR
A
F
T
102
10
wages, employer payments, overhead, and fee. These rates are not adjustable for the
performance period set forth in this Agreement.
18.2 In addition, Consultant shall be reimbursed for incurred (actual)
direct costs other than salary costs that are included in the attached Exhibit “B” and
identified in the approved Task Order.
18.3 Specific projects may be assigned to Consultant through issuance
of Task Orders, as set forth in this Agreement. Task Orders may be negotiated for a lump
sum (firm fixed price) or for specific rates of compensation, both of which must be based
on the labor and other rates set forth in the attached Exhibit “B”. Consultant shall be
responsible for any future adjustments to prevailing wage rates including, but not limited
to, base hourly rates and employer payments as determined by the Department of
Industrial Relations. Consultant is responsible for paying the appropriate rate, including
escalations that take place during the term of the Agreement.
18.4 Reimbursement for transportation and subsistence costs shall not
exceed the rates specified in Exhibit “B”. In addition, payments to Consultant for travel
and subsistence expenses claimed for reimbursement shall not exceed State rates,
unless otherwise authorized by Commission. If the rates invoiced are in excess of State
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.
18.5 When milestone cost estimates are included in the approved cost
proposal for a Task Order, Consultant shall obtain prior written approval in the form of
an amendment to the Task Order for a revised milestone cost estimate from the Contract
Administrator before exceeding such estimate.
18.6 Progress payments for each Task Order shall be made monthly in
arrears based on services provided and actual costs incurred.
18.7 Consultant shall not commence performance of work or services
until this Agreement has been approved by Commission, and a Task Order has been
authorized as detailed in Section 2 of this Agreement. No payment will be made prior to
approval or for any work performed prior to approval of this Agreement, and receipt of
Commission’s Task Order Authorization.
18.8 Consultant shall be reimbursed, within forty five (45) days upon
receipt by Commission’s Contract Administrator of itemized invoices in duplicate.
Separate invoices itemizing all costs are required for all work performed under each Task
Order. Invoices shall be submitted no later than forty five (45) calendar days after the
performance of work for which Consultant is billing. Invoices shall detail the work
performed on each milestone, on each project as applicable. Invoices shall follow the
format stipulated for the authorized Task Order, or as otherwise agreed upon by the
Parties, and shall reference this Agreement number, project title and Task Order number.
Credits due Commission that include any equipment purchased under the provisions of
DR
A
F
T
103
11
Section 25, Equipment Purchase, of this Agreement must be reimbursed by Consultant
prior to the expiration or termination of this Agreement. 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
18.9 The total amount payable by Commission, shall not exceed the
amount set forth in each Task Order.
18.10 Commission has or will enter into four (4) task order contracts for
performance of the Scope of Services identified in Exhibit “A”, including this Agreement
(“On-Call ROW Appraisal Review Task Order Contracts”). The other On-Call ROW
Appraisal Review Task Order Contracts are Hawran & Malm, 22-31-030-00, R.P. Laurain
& Associates, 22-31-053-00; and Santolucito Dorè Group, Inc., 22-31-054-00. The total
amount payable by Commission for the On-Call ROW Appraisal Review Task Order
Contracts shall not exceed a cumulative maximum total value of Five Hundred Thousand
($500,000) (“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 Review Task Order Contracts through Task Orders. Each time a Task Order
is awarded under any of the On-Call ROW Appraisal Review Task Order Contracts,
Commission must send written notification to Consultant and each of the other
consultants entering into the On-Call ROW Appraisal Review 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.
18.11 Consultant shall not be reimbursed for any expenses unless
authorized in writing by the Commission’s Contract Administrator.
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
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.
DR
A
F
T
104
12
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
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.
DR
A
F
T
105
13
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
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,
DR
A
F
T
106
14
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.
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.
DR
A
F
T
107
15
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.
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
DR
A
F
T
108
16
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
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
DR
A
F
T
109
17
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
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
DR
A
F
T
110
18
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, RCA and their 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.
DR
A
F
T
111
19
27.5 Provisions Applicable to RCA. To the extent the services are
performed for the benefit of RCA, the rights granted in this Section 27 to the Commission
shall also be granted to RCA.
28. Indemnification. To the fullest extent permitted by law, Consultant shall
defend, indemnify and hold Commission, RCA, 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, RCA, 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, RCA, 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
persons or damages to property which may arise from or in connection with the
DR
A
F
T
112
20
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
be required by the Commission. Such insurance shall include coverage for owned, hired
DR
A
F
T
113
21
and non-owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, RCA, 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, RCA, Caltrans
and their 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,
RCA’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, RCA, 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,
RCA, 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,
RCA, 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.
DR
A
F
T
114
22
(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, RCA, 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, RCA and Caltrans (if agreed to in a written contract or agreement) before
the Commission’s, RCA’s or Caltrans’ 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.
DR
A
F
T
115
23
(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.
DR
A
F
T
116
24
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, RCA and Caltrans as additional insureds 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,
DR
A
F
T
117
25
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.
DR
A
F
T
118
26
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.
DR
A
F
T
119
27
(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:
DR
A
F
T
120
28
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. Except as to rights expressly granted to RCA
hereunder, there are no intended third party beneficiaries of any right or obligation
assumed by the Parties.
DR
A
F
T
121
29
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]
DR
A
F
T
122
30
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:
[INSERT NAME]
Chair
Approved as to Form:
By:
Best, Best & Krieger LLP
General Counsel
CONSULTANT
ELLIS GROUP, INC. D/B/A 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.
DR
A
F
T
123
Exhibit A
EXHIBIT A
SCOPE OF SERVICES
RIGHT OF WAY
APPRAISAL REVIEW SERVICES
The Riverside County Transportation Commission (Commission) has procured one or more
Consultants (Consultant/Review Appraiser) to provide Appraisal Review Services on an On-
Call/as needed basis in support of current 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 review appraisal services may include, but are not limited to, the following work
programs, and/or comply with applicable requirements below:
1. When required by the Commission, Review Appraiser shall examine appraisals
prepared by Commission's On-Call Residential, Commercial, Industrial, Railroad,
and/or Agricultural appraisers.
2. When required by the Commission, Review Appraiser shall examine appraisals
submitted by the property owners and comment by memorandum on the findings.
3. Review Appraiser shall provide Appraisal Review Services based on nationally
recognized appraisal standards and techniques, including those established by the
Uniform Standards of Professional Appraisal Practice (USPAP), the Uniform
Appraisal Standards tor Federal Land Acquisition; ensure compliance 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.), and the California
Code of Civil Procedure. Comply with the requirements of the Caltrans Right of Way
Manual, when applicable. Consultants must be licensed by the State of California.
4. Review Appraiser shall provide Appraisal Review Services to ensure compliance for
appraisals prepared in accordance with the Uniform Appraisal Standards for Federal
Land Acquisition (“Yellow Book”), Consultant must be licensed by the State of
California.
5. Review Appraiser must be qualified to provide expert witness testimony and defend
the conclusions at any Administrative or Judicial proceeding.
6. Review Appraiser may be required to meet with and coordinate their efforts with
Commission staff, Commission legal counsel, other consultants, or Caltrans staff;
participate in office or project site meetings.
DR
A
F
T
124
Exhibit A
7. It is the Review Appraiser's responsibility to contact Commission's project engineers
for discussion and/or clarification of any project design matters. This is critical in
reviewing appraisals of partial acquisitions and easements where engineering
information must be verified.
8. Review Appraiser shall examine appraisals to assure that they meet applicable
appraisal requirements and shall, prior to acceptance, seek necessary corrections or
revisions.
9. Appraisal Review reports may be reviewed for acceptance by Caltrans or other
approving agencies.
10. If the Review Appraiser is unable to recommend approval of an appraisal as an
adequate basis for the establishment of the offer of just compensation or market value,
and it is determined that it is not practical to obtain additional appraisal, Review
Appraiser may develop appraisal documentation to recommend value.
11. The Review Appraiser and the Appraiser should discuss the appraisal assignment as
soon work is assigned. The Review Appraiser and, if practical, the Appraiser should
hold at least one field review to identify any legal issues that may exist. If any legal
issues exist; the Review Appraiser shall request legal opinion.
12. All legal opinions shall be rendered by Commission's legal counsel and the appraisal
prepared in accordance therewith.
13. The Review Appraiser's certification of the recommended value of the property shall be
set forth in a signed statement which identifies the appraisal reports reviewed and
explains the basis for such recommendation. Any damages or benefits to any remaining
property shall also be identified in the statement.
14. All reports and deliverables shall typically consist of one (1) original and one (1)
electronic copy, including specialty reports which may be prepared by other
consultants.
15. In cases where the assignment requires other services, Review Appraiser shall utilize
the services of Commission's On-Call Consultants. Fees charged by Commission's
On-Call Consultants shall be paid directly by Commission.
DR
A
F
T
125
FIRM PROJECT TASKS/ROLE COST
Integra Realty Resources - Los Angeles Right of Way Appraisal Review Services 500,000.00$
500,000.00$ 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
DR
A
F
T
126
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
DR
A
F
T
127
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.
DR
A
F
T
128
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
DR
A
F
T
129
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
DR
A
F
T
130
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.
DR
A
F
T
131
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
DR
A
F
T
132
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
DR
A
F
T
133
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
DR
A
F
T
134
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
DR
A
F
T
135
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.
DR
A
F
T
136
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.
3. Access to Records
The Consultant agrees to the following access to records requirements:
DR
A
F
T
137
Exhibit D-2
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,
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
DR
A
F
T
138
Exhibit D-3
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.
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:
DR
A
F
T
139
Exhibit D-4
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 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.
DR
A
F
T
140
Exhibit D-5
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.
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.
DR
A
F
T
141
Exhibit D-6
(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.)
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:
DR
A
F
T
142
Exhibit D-7
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.
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
DR
A
F
T
143
Exhibit D-8
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.
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.
DR
A
F
T
144
Exhibit D-9
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 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
DR
A
F
T
145
Exhibit D-10
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.
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.
DR
A
F
T
146
Exhibit D-11
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.
DR
A
F
T
147
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
____________________________
DR
A
F
T
148
Exhibit F-1
EXHIBIT F – LOBBYING ACTIVITIES DISCLOSURE
DR
A
F
T
149
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 12/16/21
NOT APPLICABLE - IRR-Los Angeles and it's Subconsultant,
IRR-Orange County have never participated in any lobbying activities.
DR
A
F
T
150
Agreement No. 22-31-053-00
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 REVIEW 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 California
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 review
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 review 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
DR
A
F
T
151
ATTACHMENT 3
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.
F. 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).
G. Commission may engage Consultant to provide services for the benefit of
the Western Riverside County Regional Conservation Authority (“RCA”)
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 review 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
DR
A
F
T
152
4
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
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:
DR
A
F
T
153
5
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.
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 February 28, 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.
DR
A
F
T
154
6
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
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 designates 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, Benjamin V. Balos, Ronald P.
Laurain, 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
DR
A
F
T
155
7
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
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.
DR
A
F
T
156
8
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.
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.
DR
A
F
T
157
9
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 Consultant shall be reimbursed for hours worked at the hourly rates
specified in the Consultant’s approved cost proposal, attached hereto as Exhibit “B”. The
specified hourly rates shall include direct salary costs, employee benefits, prevailing
DR
A
F
T
158
10
wages, employer payments, overhead, and fee. These rates are not adjustable for the
performance period set forth in this Agreement.
18.2 In addition, Consultant shall be reimbursed for incurred (actual)
direct costs other than salary costs that are included in the attached Exhibit “B” and
identified in the approved Task Order.
18.3 Specific projects may be assigned to Consultant through issuance
of Task Orders, as set forth in this Agreement. Task Orders may be negotiated for a lump
sum (firm fixed price) or for specific rates of compensation, both of which must be based
on the labor and other rates set forth in the attached Exhibit “B”. Consultant shall be
responsible for any future adjustments to prevailing wage rates including, but not limited
to, base hourly rates and employer payments as determined by the Department of
Industrial Relations. Consultant is responsible for paying the appropriate rate, including
escalations that take place during the term of the Agreement.
18.4 Reimbursement for transportation and subsistence costs shall not
exceed the rates specified in Exhibit “B”. In addition, payments to Consultant for travel
and subsistence expenses claimed for reimbursement shall not exceed State rates,
unless otherwise authorized by Commission. If the rates invoiced are in excess of State
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.
18.5 When milestone cost estimates are included in the approved cost
proposal for a Task Order, Consultant shall obtain prior written approval in the form of
an amendment to the Task Order for a revised milestone cost estimate from the Contract
Administrator before exceeding such estimate.
18.6 Progress payments for each Task Order shall be made monthly in
arrears based on services provided and actual costs incurred.
18.7 Consultant shall not commence performance of work or services
until this Agreement has been approved by Commission, and a Task Order has been
authorized as detailed in Section 2 of this Agreement. No payment will be made prior to
approval or for any work performed prior to approval of this Agreement, and receipt of
Commission’s Task Order Authorization.
18.8 Consultant shall be reimbursed, within forty five (45) days upon
receipt by Commission’s Contract Administrator of itemized invoices in duplicate.
Separate invoices itemizing all costs are required for all work performed under each Task
Order. Invoices shall be submitted no later than forty five (45) calendar days after the
performance of work for which Consultant is billing. Invoices shall detail the work
performed on each milestone, on each project as applicable. Invoices shall follow the
format stipulated for the authorized Task Order, or as otherwise agreed upon by the
Parties, and shall reference this Agreement number, project title and Task Order number.
Credits due Commission that include any equipment purchased under the provisions of
DR
A
F
T
159
11
Section 25, Equipment Purchase, of this Agreement must be reimbursed by Consultant
prior to the expiration or termination of this Agreement. 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
18.9 The total amount payable by Commission, shall not exceed the
amount set forth in each Task Order.
18.10 Commission has or will enter into four (4) task order contracts for
performance of the Scope of Services identified in Exhibit “A”, including this Agreement
(“On-Call ROW Appraisal Review Task Order Contracts”). The other On-Call ROW
Appraisal Review Task Order Contracts are Hawran & Malm, 22-31-030-00; Integra
Realty Resources – Los Angeles, 22-31-052-00; and Santolucito Dorè Group, Inc., 22-
31-054-00. The total amount payable by Commission for the On-Call ROW Appraisal
Review Task Order Contracts shall not exceed a cumulative maximum total value of Five
Hundred Thousand ($500,000) (“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 Review Task Order Contracts through Task Orders. Each
time a Task Order is awarded under any of the On-Call ROW Appraisal Review Task
Order Contracts, Commission must send written notification to Consultant and each of
the other consultants entering into the On-Call ROW Appraisal Review 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.
18.11 Consultant shall not be reimbursed for any expenses unless
authorized in writing by the Commission’s Contract Administrator.
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
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.
DR
A
F
T
160
12
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
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.
DR
A
F
T
161
13
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
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,
DR
A
F
T
162
14
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.
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.
DR
A
F
T
163
15
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.
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
DR
A
F
T
164
16
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
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
DR
A
F
T
165
17
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
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
DR
A
F
T
166
18
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, RCA and their 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.
DR
A
F
T
167
19
27.5 Provisions Applicable to RCA. To the extent the services are
performed for the benefit of RCA, the rights granted in this Section 27 to the Commission
shall also be granted to RCA.
28. Indemnification. To the fullest extent permitted by law, Consultant shall
defend, indemnify and hold Commission, RCA, 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, RCA, 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, RCA, 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
persons or damages to property which may arise from or in connection with the
DR
A
F
T
168
20
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
be required by the Commission. Such insurance shall include coverage for owned, hired
DR
A
F
T
169
21
and non-owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, RCA, 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, RCA, Caltrans
and their 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,
RCA’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, RCA, 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,
RCA, 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,
RCA, 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.
DR
A
F
T
170
22
(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, RCA, 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, RCA and Caltrans (if agreed to in a written contract or agreement) before
the Commission’s, RCA’s or Caltrans’ 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.
DR
A
F
T
171
23
(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.
DR
A
F
T
172
24
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, RCA and Caltrans as additional insureds 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,
DR
A
F
T
173
25
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.
DR
A
F
T
174
26
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.
DR
A
F
T
175
27
(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:
DR
A
F
T
176
28
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. Except as to rights expressly granted to RCA
hereunder, there are no intended third party beneficiaries of any right or obligation
assumed by the Parties.
DR
A
F
T
177
29
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]
DR
A
F
T
178
30
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:
[INSERT NAME]
Chair
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.
DR
A
F
T
179
Exhibit A
EXHIBIT A
SCOPE OF SERVICES
RIGHT OF WAY
APPRAISAL REVIEW SERVICES
The Riverside County Transportation Commission (Commission) has procured one or more
Consultants (Consultant/Review Appraiser) to provide Appraisal Review Services on an On-
Call/as needed basis in support of current 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 review appraisal services may include, but are not limited to, the following work
programs, and/or comply with applicable requirements below:
1. When required by the Commission, Review Appraiser shall examine appraisals
prepared by Commission's On-Call Residential, Commercial, Industrial, Railroad,
and/or Agricultural appraisers.
2. When required by the Commission, Review Appraiser shall examine appraisals
submitted by the property owners and comment by memorandum on the findings.
3. Review Appraiser shall provide Appraisal Review Services based on nationally
recognized appraisal standards and techniques, including those established by the
Uniform Standards of Professional Appraisal Practice (USPAP), the Uniform
Appraisal Standards tor Federal Land Acquisition; ensure compliance 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.), and the California
Code of Civil Procedure. Comply with the requirements of the Caltrans Right of Way
Manual, when applicable. Consultants must be licensed by the State of California.
4. Review Appraiser shall provide Appraisal Review Services to ensure compliance for
appraisals prepared in accordance with the Uniform Appraisal Standards for Federal
Land Acquisition (“Yellow Book”), Consultant must be licensed by the State of
California.
5. Review Appraiser must be qualified to provide expert witness testimony and defend
the conclusions at any Administrative or Judicial proceeding.
6. Review Appraiser may be required to meet with and coordinate their efforts with
Commission staff, Commission legal counsel, other consultants, or Caltrans staff;
participate in office or project site meetings.
DR
A
F
T
180
Exhibit A
7.It is the Review Appraiser's responsibility to contact Commission's project engineers
for discussion and/or clarification of any project design matters. This is critical in
reviewing appraisals of partial acquisitions and easements where engineering
information must be verified.
8.Review Appraiser shall examine appraisals to assure that they meet applicable
appraisal requirements and shall, prior to acceptance, seek necessary corrections or
revisions.
9.Appraisal Review reports may be reviewed for acceptance by Caltrans or other
approving agencies.
10.If the Review Appraiser is unable to recommend approval of an appraisal as an
adequate basis for the establishment of the offer of just compensation or market value,
and it is determined that it is not practical to obtain additional appraisal, Review
Appraiser may develop appraisal documentation to recommend value.
11.The Review Appraiser and the Appraiser should discuss the appraisal assignment as
soon work is assigned. The Review Appraiser and, if practical, the Appraiser should
hold at least one field review to identify any legal issues that may exist. If any legal
issues exist; the Review Appraiser shall request legal opinion.
12.All legal opinions shall be rendered by Commission's legal counsel and the appraisal
prepared in accordance therewith.
13.The Review Appraiser's certification of the recommended value of the property shall be
set forth in a signed statement which identifies the appraisal reports reviewed and
explains the basis for such recommendation. Any damages or benefits to any remaining
property shall also be identified in the statement.
14.All reports and deliverables shall typically consist of one (1) original and one (1)
electronic copy, including specialty reports which may be prepared by other
consultants.
15.In cases where the assignment requires other services, Review Appraiser shall utilize
the services of Commission's On-Call Consultants. Fees charged by Commission's
On-Call Consultants shall be paid directly by Commission.DR
A
F
T
181
FIRM PROJECT TASKS/ROLE COST
R.P. Laurain & Associates, Inc.Right of Way Appraisal Review Services 500,000.00$
500,000.00$ 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
DR
A
F
T
182
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
DR
A
F
T
183
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.
DR
A
F
T
184
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
DR
A
F
T
185
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
DR
A
F
T
186
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.
DR
A
F
T
187
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
DR
A
F
T
188
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
DR
A
F
T
189
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
DR
A
F
T
190
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
DR
A
F
T
191
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.
DR
A
F
T
192
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.
3. Access to Records
The Consultant agrees to the following access to records requirements:
DR
A
F
T
193
Exhibit D-2
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,
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
DR
A
F
T
194
Exhibit D-3
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.
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:
DR
A
F
T
195
Exhibit D-4
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 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.
DR
A
F
T
196
Exhibit D-5
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.
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.
DR
A
F
T
197
Exhibit D-6
(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.)
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:
DR
A
F
T
198
Exhibit D-7
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.
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
DR
A
F
T
199
Exhibit D-8
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.
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.
DR
A
F
T
200
Exhibit D-9
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 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
DR
A
F
T
201
Exhibit D-10
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.
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.
DR
A
F
T
202
Exhibit D-11
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.
DR
A
F
T
203
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
____________________________
DR
A
F
T
204
Exhibit F-1
EXHIBIT F – LOBBYING ACTIVITIES DISCLOSURE
DR
A
F
T
205
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
Telephone No.: (562) 426-0477 Date: 12-16-2021
THIS FIRM HAS NEVER BEEN INVOLVED IN LOBBYING ACTIVITIES
DR
A
F
T
206
Agreement No. 22-31-054-00
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA AND FTA FUNDING ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
SANTOLUCITO DORE GROUP, INC.
FOR ON-CALL
RIGHT OF WAY APPRAISAL REVIEW 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 DORE GROUP, INC. ("Consultant"), a California
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 review
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 review 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
DR
A
F
T
207
ATTACHMENT 4
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.
F. 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).
G. Commission may engage Consultant to provide services for the benefit of
the Western Riverside County Regional Conservation Authority (“RCA”)
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 review 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
DR
A
F
T
208
4
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
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:
DR
A
F
T
209
5
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.
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 February 28, 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.
DR
A
F
T
210
6
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
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 designates 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, Lance W. Dore, 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
DR
A
F
T
211
7
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
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.
DR
A
F
T
212
8
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.
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.
DR
A
F
T
213
9
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 Consultant shall be reimbursed for hours worked at the hourly rates
specified in the Consultant’s approved cost proposal, attached hereto as Exhibit “B”. The
specified hourly rates shall include direct salary costs, employee benefits, prevailing
DR
A
F
T
214
10
wages, employer payments, overhead, and fee. These rates are not adjustable for the
performance period set forth in this Agreement.
18.2 In addition, Consultant shall be reimbursed for incurred (actual)
direct costs other than salary costs that are included in the attached Exhibit “B” and
identified in the approved Task Order.
18.3 Specific projects may be assigned to Consultant through issuance
of Task Orders, as set forth in this Agreement. Task Orders may be negotiated for a lump
sum (firm fixed price) or for specific rates of compensation, both of which must be based
on the labor and other rates set forth in the attached Exhibit “B”. Consultant shall be
responsible for any future adjustments to prevailing wage rates including, but not limited
to, base hourly rates and employer payments as determined by the Department of
Industrial Relations. Consultant is responsible for paying the appropriate rate, including
escalations that take place during the term of the Agreement.
18.4 Reimbursement for transportation and subsistence costs shall not
exceed the rates specified in Exhibit “B”. In addition, payments to Consultant for travel
and subsistence expenses claimed for reimbursement shall not exceed State rates,
unless otherwise authorized by Commission. If the rates invoiced are in excess of State
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.
18.5 When milestone cost estimates are included in the approved cost
proposal for a Task Order, Consultant shall obtain prior written approval in the form of
an amendment to the Task Order for a revised milestone cost estimate from the Contract
Administrator before exceeding such estimate.
18.6 Progress payments for each Task Order shall be made monthly in
arrears based on services provided and actual costs incurred.
18.7 Consultant shall not commence performance of work or services
until this Agreement has been approved by Commission, and a Task Order has been
authorized as detailed in Section 2 of this Agreement. No payment will be made prior to
approval or for any work performed prior to approval of this Agreement, and receipt of
Commission’s Task Order Authorization.
18.8 Consultant shall be reimbursed, within forty five (45) days upon
receipt by Commission’s Contract Administrator of itemized invoices in duplicate.
Separate invoices itemizing all costs are required for all work performed under each Task
Order. Invoices shall be submitted no later than forty five (45) calendar days after the
performance of work for which Consultant is billing. Invoices shall detail the work
performed on each milestone, on each project as applicable. Invoices shall follow the
format stipulated for the authorized Task Order, or as otherwise agreed upon by the
Parties, and shall reference this Agreement number, project title and Task Order number.
Credits due Commission that include any equipment purchased under the provisions of
DR
A
F
T
215
11
Section 25, Equipment Purchase, of this Agreement must be reimbursed by Consultant
prior to the expiration or termination of this Agreement. 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
18.9 The total amount payable by Commission, shall not exceed the
amount set forth in each Task Order.
18.10 Commission has or will enter into four (4) task order contracts for
performance of the Scope of Services identified in Exhibit “A”, including this Agreement
(“On-Call ROW Appraisal Review Task Order Contracts”). The other On-Call ROW
Appraisal Review Task Order Contracts are Hawran & Malm, 22-31-030-00; Integra
Realty Resources – Los Angeles, 22-31-052-00; and R.P. Laurain & Associates, 22-31-
053-00. The total amount payable by Commission for the On-Call ROW Appraisal
Review Task Order Contracts shall not exceed a cumulative maximum total value of Five
Hundred Thousand ($500,000) (“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 Review Task Order Contracts through Task Orders. Each
time a Task Order is awarded under any of the On-Call ROW Appraisal Review Task
Order Contracts, Commission must send written notification to Consultant and each of
the other consultants entering into the On-Call ROW Appraisal Review 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.
18.11 Consultant shall not be reimbursed for any expenses unless
authorized in writing by the Commission’s Contract Administrator.
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
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.
DR
A
F
T
216
12
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
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.
DR
A
F
T
217
13
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
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,
DR
A
F
T
218
14
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.
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.
DR
A
F
T
219
15
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.
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
DR
A
F
T
220
16
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
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
DR
A
F
T
221
17
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
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
DR
A
F
T
222
18
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, RCA and their 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.
DR
A
F
T
223
19
27.5 Provisions Applicable to RCA. To the extent the services are
performed for the benefit of RCA, the rights granted in this Section 27 to the Commission
shall also be granted to RCA.
28. Indemnification. To the fullest extent permitted by law, Consultant shall
defend, indemnify and hold Commission, RCA, 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, RCA, 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, RCA, 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
persons or damages to property which may arise from or in connection with the
DR
A
F
T
224
20
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
be required by the Commission. Such insurance shall include coverage for owned, hired
DR
A
F
T
225
21
and non-owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, RCA, 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, RCA, Caltrans
and their 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,
RCA’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, RCA, 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,
RCA, 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,
RCA, 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.
DR
A
F
T
226
22
(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, RCA, 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, RCA and Caltrans (if agreed to in a written contract or agreement) before
the Commission’s, RCA’s or Caltrans’ 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.
DR
A
F
T
227
23
(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.
DR
A
F
T
228
24
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, RCA and Caltrans as additional insureds 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,
DR
A
F
T
229
25
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.
DR
A
F
T
230
26
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.
DR
A
F
T
231
27
(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:
DR
A
F
T
232
28
CONSULTANT: COMMISSION:
Santolucito Dore 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. Except as to rights expressly granted to RCA
hereunder, there are no intended third party beneficiaries of any right or obligation
assumed by the Parties.
DR
A
F
T
233
29
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]
DR
A
F
T
234
30
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:
[INSERT NAME]
Chair
Approved as to Form:
By:
Best, Best & Krieger LLP
General Counsel
CONSULTANT
SANTOLUCITO DORE 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.
DR
A
F
T
235
Exhibit A
EXHIBIT A
SCOPE OF SERVICES
RIGHT OF WAY
APPRAISAL REVIEW SERVICES
The Riverside County Transportation Commission (Commission) has procured one or more
Consultants (Consultant/Review Appraiser) to provide Appraisal Review Services on an On-
Call/as needed basis in support of current 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 review appraisal services may include, but are not limited to, the following work
programs, and/or comply with applicable requirements below:
1. When required by the Commission, Review Appraiser shall examine appraisals
prepared by Commission's On-Call Residential, Commercial, Industrial, Railroad,
and/or Agricultural appraisers.
2. When required by the Commission, Review Appraiser shall examine appraisals
submitted by the property owners and comment by memorandum on the findings.
3. Review Appraiser shall provide Appraisal Review Services based on nationally
recognized appraisal standards and techniques, including those established by the
Uniform Standards of Professional Appraisal Practice (USPAP), the Uniform
Appraisal Standards tor Federal Land Acquisition; ensure compliance 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.), and the California
Code of Civil Procedure. Comply with the requirements of the Caltrans Right of Way
Manual, when applicable. Consultants must be licensed by the State of California.
4. Review Appraiser shall provide Appraisal Review Services to ensure compliance for
appraisals prepared in accordance with the Uniform Appraisal Standards for Federal
Land Acquisition (“Yellow Book”), Consultant must be licensed by the State of
California.
5. Review Appraiser must be qualified to provide expert witness testimony and defend
the conclusions at any Administrative or Judicial proceeding.
6. Review Appraiser may be required to meet with and coordinate their efforts with
Commission staff, Commission legal counsel, other consultants, or Caltrans staff;
participate in office or project site meetings.
DR
A
F
T
236
Exhibit A
7. It is the Review Appraiser's responsibility to contact Commission's project engineers
for discussion and/or clarification of any project design matters. This is critical in
reviewing appraisals of partial acquisitions and easements where engineering
information must be verified.
8. Review Appraiser shall examine appraisals to assure that they meet applicable
appraisal requirements and shall, prior to acceptance, seek necessary corrections or
revisions.
9. Appraisal Review reports may be reviewed for acceptance by Caltrans or other
approving agencies.
10. If the Review Appraiser is unable to recommend approval of an appraisal as an
adequate basis for the establishment of the offer of just compensation or market value,
and it is determined that it is not practical to obtain additional appraisal, Review
Appraiser may develop appraisal documentation to recommend value.
11. The Review Appraiser and the Appraiser should discuss the appraisal assignment as
soon work is assigned. The Review Appraiser and, if practical, the Appraiser should
hold at least one field review to identify any legal issues that may exist. If any legal
issues exist; the Review Appraiser shall request legal opinion.
12. All legal opinions shall be rendered by Commission's legal counsel and the appraisal
prepared in accordance therewith.
13. The Review Appraiser's certification of the recommended value of the property shall be
set forth in a signed statement which identifies the appraisal reports reviewed and
explains the basis for such recommendation. Any damages or benefits to any remaining
property shall also be identified in the statement.
14. All reports and deliverables shall typically consist of one (1) original and one (1)
electronic copy, including specialty reports which may be prepared by other
consultants.
15. In cases where the assignment requires other services, Review Appraiser shall utilize
the services of Commission's On-Call Consultants. Fees charged by Commission's
On-Call Consultants shall be paid directly by Commission.
DR
A
F
T
237
FIRM PROJECT TASKS/ROLE COST
Santolucito Dore Group, Inc.Right of Way Appraisal Review Services 500,000.00$
500,000.00$ 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
DR
A
F
T
238
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
DR
A
F
T
239
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.
DR
A
F
T
240
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
DR
A
F
T
241
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
DR
A
F
T
242
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.
DR
A
F
T
243
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
DR
A
F
T
244
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
DR
A
F
T
245
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
DR
A
F
T
246
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
DR
A
F
T
247
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.
DR
A
F
T
248
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.
3. Access to Records
The Consultant agrees to the following access to records requirements:
DR
A
F
T
249
Exhibit D-2
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,
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
DR
A
F
T
250
Exhibit D-3
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.
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:
DR
A
F
T
251
Exhibit D-4
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 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.
DR
A
F
T
252
Exhibit D-5
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.
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.
DR
A
F
T
253
Exhibit D-6
(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.)
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:
DR
A
F
T
254
Exhibit D-7
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.
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
DR
A
F
T
255
Exhibit D-8
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.
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.
DR
A
F
T
256
Exhibit D-9
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 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
DR
A
F
T
257
Exhibit D-10
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.
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.
DR
A
F
T
258
Exhibit D-11
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.
DR
A
F
T
259
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
____________________________
DR
A
F
T
260
Exhibit F-1
EXHIBIT F – LOBBYING ACTIVITIES DISCLOSURE
DR
A
F
T
261
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
Christine S. Santolucito
President
951-225-3500 12/16/2021
DR
A
F
T
262
AGENDA ITEM 9
Agenda Item 9
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: January 24, 2022
TO: Western Riverside County Programs and Projects Committee
FROM: Gary Ratliff, Facilities Administrator
THROUGH: Marlin Feenstra, Project Delivery Director
SUBJECT: Agreement for Station Electrical Services
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Award Agreement No. 22-24-006-00 to Elite Electric, Inc. for station electrical
maintenance services and capital improvements, for a five-year term, in an amount of
$825,000 for maintenance and repairs, and $2,500,000 for capital improvements, for a
total not to exceed amount of $3,325,000;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to 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 agreements; and
4) Forward to the Commission for final action.
BACKGROUND INFORMATION:
The Commission owns and operates nine commuter rail stations (Riverside-Downtown, Jurupa
Valley-Pedley, Riverside-La Sierra, Corona-West, Corona-North Main, Riverside-Hunter Park,
Moreno Valley-March Field, Perris-Downtown, and Perris-South). The Commission has a security
operation control center at the Riverside Downtown Station and in 2018 the Commission
expanded the Riverside-La Sierra station to include a bus depot and a park and ride parking lot.
The Riverside Downtown station and Perris-South also provide layover facilities for Metrolink
operations.
As an established toll operator for the RCTC 91 Express Lanes and the 15 Express Lanes, the
Commission owns five toll facilities, consisting of a storage/maintenance building, two toll utility
buildings inside the operating right of way of State Route 91 and two adjacent office buildings for
toll business operations.
The 17 Commission owned and operated facilities require lighting and electrical maintenance
services. Electrical services are essential for day-to-day operations of these facilities, safety and
security of patrons, employees, and contractors; as well as preserving and maintaining
Commission properties.
263
Agenda Item 9
The Commission requires a professional, certified, and qualified electrical contractor to provide
quarterly and annual inspections and testing of facility lighting, solar panel systems, battery
back-up systems, tri-annual infrared survey and reporting, and on-call emergency electrical
services. These maintenance services include cleaning of stations and facility lights and the repair
or replacement of all defective lighting system components and fixtures.
All inspections will be conducted at each facility under Commission staff supervision and per the
contractor’s proposed labor, material, and equipment rates. On-call services will be provided on
an as needed basis to address repairs and emergency safety lighting issues as per the contract
rates. Task orders will be issued for additional repair and maintenance work items.
Since 2016, staff has used state and federal grant funds whenever possible to upgrade electrical
infrastructure and systems throughout station properties. These projects include upgrading
elevator electrical systems, installing emergency back-up lighting systems, solar power systems,
and infrastructure. Professional electrical services provide valuable improvements. The
Commission approved LED conversion lighting station project accomplished the installation of
LED bulbs at the original five stations resulting in a minimum 30 percent energy savings or higher
at each location.
Staff has identified additional electrical improvement needs, including installation of solar power
systems (per Commission solar power policy), LED fixtures, and other electrical upgrades for
efficiency and energy savings and to reduce maintenance and operations costs. Upgrades will be
funded by state and federal grants as available and are not guaranteed work. Upgrades and
improvements will be contingent on available funds and administered by task orders and staff
approval.
The integration of proven electrical technology and regular maintenance preserve Commission
assets and lower long-term costs. Station electrical upgrades and improvements, maintenance,
and efficiency efforts reflect the Commission’s commitment to patrons, the environment, and
sustainable practices.
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, personnel and the ability to respond to the Commission’s needs for electrical services as set
forth under the terms of request for proposals (RFP) No. 22-24-006-00.
RFP No. 22-24-006-00 for commuter rail station electrical services was released by staff on
October 28, 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 167 firms,
36 of which are located in Riverside County.
264
Agenda Item 9
Through the PlanetBids site, 26 firms downloaded the RFP; five of these firms are located in
Riverside County. A pre-bid conference was held on November 4, 2021. Staff responded to all
questions submitted by potential proposers prior to the November 11, 2021 clarification deadline
date. Three firms – Elite Electric, Inc. (Riverside); M Brey Electric, Inc. (Beaumont); and AMTEK
Construction (Orange) – submitted proposals prior to the 2:00 p.m. submittal deadline on
December 9. The three firms were determined to have submitted responsive and responsible
proposals. Utilizing the evaluation criteria set forth in the RFP, the three 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 Elite Electric, Inc. to perform station electrical
maintenance services and capital improvements for a five-year term, as this firm earned the
highest total evaluation score, having submitted the lowest price and demonstrated the highest
qualifications.
The overall evaluation scores included the qualifications of firm, personnel, understanding and
approach, and cost. Below is a summary of the bids received:
Firm Bid price Overall Ranking
Elite Electric, Inc. $119,302 1
M Brey Electric, Inc. $546,282 2
AMTEK Construction $2,134,044 3
Due to the wide disparity in bid prices, staff contacted the second and third place bidders to gain
an understanding of their bid prices. Factors that contributed to their prices were unfamiliarity
with the work, pricing risk into their bids, and difficulty in obtaining subcontractors for portions
of the work. As of the date of preparation of the staff report, the second low bidder has not
responded to inquiries.
In addition, staff analyzed the bids closely, to make sure the RFP was clear about the work to be
bid, and that the bid results are valid. The following factors contribute to the recommendation
to award the contract as bid to the #1 ranked firm:
• The same information was available to all proposers;
• A pre-proposal meeting was held to answer any questions the proposers had, at which all
potential proposers were urged to visit the facility sites;
• Questions submitted by potential proposers during the proposal process did not indicate
that the RFP was confusing or misunderstood; and
• The prices submitted by the low offeror are comparable to current prices the Commission
pays for those services.
The Commission’s standard form professional services agreement will be entered into with the
consultant subject to any changes approved by the Executive Director, and pursuant to legal
265
Agenda Item 9
counsel review. Outside of the routine electrical maintenance, on-call services, including capital
improvements, will be provided through the Commission’s issuance of contract task orders to
Elite Electric, Inc. on an as-needed basis. Staff oversight of the contract will maximize the
effectiveness of the contractor and minimize cost to the Commission.
Financial Information
In Fiscal Year Budget: Yes
N/A Year: FY 2021/2022
FY 2022/2023+ Amount: $825,000
$2,500,000
Source of Funds:
2009 Measure A Western County Rail, Toll
Revenues, State of Good Repair, Federal
Transit Administration Section 5307 grant,
CARES Act, Prop 1B and FEMA funds
Budget Adjustment: No
N/A
GL/Project Accounting No.:
244001-73315-00000-0000 265-24-73301
244002-73315-00000-0000 265-24-73301
244003-73315-00000-0000 265-24-73301
244004-73315-00000-0000 265-24-73301
244006-73315-00000-0000 265-24-73301
244010-73315-00000-0000 265-24-73301
244020-73315-00000-0000 265-24-73301
244021-73315-00000-0000 265-24-73301
244022-73315-00000-0000 265-24-73301
244024-73315-00000-0000 265-24-73301
004011-90701-0XXXX-4XXX 265-33-90501
001599-73315-00000-0000 515-31-73301
009199-73315-00000-0000 591-31-73301
Fiscal Procedures Approved: Date: 01/17/2022
Attachment: Draft Agreement No. 22-24-006-00 with Elite Electric, Inc.
266
DR
A
F
T
Agreement 22-24-006-00
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
STATION ELECTRICAL MAINTENANCE SERVICES AGREEMENT
1.PARTIES AND DATE.
This Agreement is made and entered into this “DATE” day of “MONTH”, “YEAR” by
and between the Riverside County Transportation Commission (“Commission”) and Elite Electric
Inc., a Corporation with its principal place of business at 9415 Bellegrave Avenue, Riverside, CA
92509 (“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, one transit
center, and five toll facility serving Riverside County, the addresses and descriptions of which are
set forth in Exhibit “A”, attached hereto and incorporated herein by reference (“Station Locations
and Toll Facilities”).
2.3 On or about October 28, 2021, Commission issued a Request for Proposals
No. 22-24-006-00 (“RFP”), pursuant to which Commission sought proposals from contractors to
provide periodic design, installation, inspection, and electrical maintenance services at its
Commuter Rail Stations.
2.4 Contractor desires to perform and assume responsibility for the provision of
certain periodic design, installation, inspection, and electrical maintenance services at its
Commuter Rail Stations required by Commission on the terms and conditions set forth in this
Agreement and, for the on-call portions of the services, in the task order(s) to be issued pursuant
to this Agreement and executed by the Commission and Contractor ("Task Order").
2.5 The work generally includes the periodic design, installation, inspection,
and electrical maintenance services of the Commuter Rail Stations and Toll Facility including, but
not limited to, repair/replace all lamps, ballasts, clocks, fuses, controllers, timers, outlet covers,
damaged or unsafe wiring, batteries, and other maintenance required to maintain the Commuter
Rail Stations and Toll Facility in a safe attractive and useable condition. Contractor represents
that it is a professional Contractor, experienced in providing electrical maintenance services to
public clients, and is familiar with the plans of Commission.
267
DR
A
F
T
2.6 Commission desires to engage Contractor to render routine and on-call
electrical maintenance services for the Commuter Rail Stations and Toll Facility. Routine
electrical maintenance services shall be as set forth in Exhibit “A”, attached hereto and
incorporated herein by reference. On-call electrical maintenance 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 Scope of Services and Term.
3.1.1 General Scope 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 electrical maintenance services for the
Commuter Rail Stations and Toll Facility as set forth in Exhibit “A” and any on-call electrical
maintenance services for the Commuter Rail Stations and Toll Facility 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 April 1, 2022 to March
31, 2027, 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.
268
DR
A
F
T
3.2.2 Schedule of Services. Contractor shall perform the routine electrical
maintenance Services expeditiously, within the term of this Agreement, and in accordance with
the schedule provided separately in writing to the Contractor. Contractor shall perform any on-
call Services in accordance with the schedule that shall be set forth in the Task Order (collectively,
"Schedule of Services"). Contractor shall be required to commence work on a Task Order
within five (5) days of receiving a fully executed Task Order. Contractor represents that it has
the professional and technical personnel required to perform the Services in conformance with
such conditions. In order to facilitate Contractor’s conformance with each Schedule, the
Commission shall respond to Contractor’s submittals in a timely manner. Upon the Commission’s
request, Contractor shall provide a more detailed schedule of anticipated performance to meet the
relevant 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 Carl Dawson,
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.
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
269
DR
A
F
T
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 Exhibit “A” 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
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.
270
DR
A
F
T
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.
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
271
DR
A
F
T
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
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.
272
DR
A
F
T
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 injuries 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: $1,000,000 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:
(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.
273
DR
A
F
T
(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.
(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
274
DR
A
F
T
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
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.
275
DR
A
F
T
(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.
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
276
DR
A
F
T
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 $3,325,000. 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.
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 if the total compensation is
$15,000 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
277
DR
A
F
T
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.
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-
278
DR
A
F
T
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 forty
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.
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:
Elite Electric, Inc. Riverside County
9415 Bellegrave Avenue Transportation Commission
Riverside, CA 92509 4080 Lemon Street, 3rd Floor
Riverside, CA 92501
Attn: Carl Dawson, President 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.
279
DR
A
F
T
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
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 unresolved
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.
280
DR
A
F
T
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,
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
281
DR
A
F
T
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. 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 “C” (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.
[SIGNATURES ON NEXT PAGE]
282
DR
A
F
T
SIGNATURE PAGE FOR STATION ELECTRICAL MAINTENANCE SERVICES
AGREEMENT
BETWEEN THE RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AND ELITE ELECTRIC, INC.
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
ELITE ELECTRIC, INC.
Signature
Name
Title
ATTEST:
Signature
Name
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 referenced persons are not the intended signators, evidence of signature authority shall
be provided to RCTC.
283
DR
A
F
T
EXHIBIT “A”
STATEMENT OF SERVICES
284
DR
A
F
T
EXHIBIT A
ELECTRICAL MAINTENANCE SERVICES
1.0 GENERAL INFORMATION
1.1 BACKGROUND
1.1.1 In establishing this agreement, the Riverside County Transportation
Commission ("Commission") intends to enhance availability, ease, and
accessibility to the specified contract services.
1.1.2 Contractor shall provide all personnel, tools, equipment, transportation,
and supplies necessary to successfully perform quarterly, annual, three
year and on-call electrical maintenance and repair services described
herein.
1.1.3 Contractor shall hold a valid C-10 (electrical, general) license issued by the
California State Contractor's License Board at the time of contract award
and throughout the full term of this Agreement.
1.1.4 The Commission intends to retrofit the commuter rail stations to LED and
solar carports lighting systems in the near future
1.2 DESCRIPTION OF WORK
1.2.1 Work Location- Riverside-Downtown, Pedley/ Jurupa Valley Station, La
Sierra Metrolink (A), La Sierra RTA(B), Corona- West, Corona- North Main, Perris-
Downtown, Riverside Hunter Park/UCR, Moreno Valley-March Field, Perris-South,
Riverside-Operation Control Center, 120 Joy Street-Corona CA, 301 and 291 Corporate
Terrace-Corona CA, 91 Express Toll Lanes Toll Utility Buildings (TUB’s)-91 Toll Express
Lanes (1 tub east end) (1 tub west end)
Contractor shall perform various electrical maintenance tasks including, but not
limited to:
1.2.2 Repair/Replace all lamps, ballasts, clocks, fuses, controllers, timers, outlet
covers, damaged or unsafe wiring, batteries, etc. as needed, during the
term of the Agreement at the nine Commission-owned commuter rail
stations.
1.2.3 Repair/Replace all broken, missing, stained (including yellowed) and
damaged diffusers, globes and fixtures, as needed, during the term of the
Agreement at the nine Commission-owned commuter rail stations.
285
DR
A
F
T
EXHIBITA - 2
1.2.4 Clean lenses/globes/fixtures (inside and outside) for bugs, spider webs,
noticeable debris, etc.
1.2.5 Repair the lighting systems and troubleshoot defective equipment and
tripped circuits as requested.
1.2.6 Perform testing and repair of emergency lighting systems and individual
emergency lighting units to insure operability in conformance with the code
requirements.
1.2.7 Perform infrared thermographic inspections of all electrical panels,
subpanels and transformer connections.
1.2.8 Clean and maintain solar panels and associated control systems.
2.0 PERFORMANCE
2.1 QUARTERLY SERVICES
2.1.1 Perform a visual field survey at each location (field walk) every 90 days to
identify inoperable lights or deficient equipment in the presence of the
Commission's Representative or designated Project Manager.
2.1.2 Provide the Commission's Representative or designated Project Manager
with a schedule for performing quarterly lighting maintenance service and
electrical equipment inspections within five (5) working days after the
effective date of this CONTRACT. Schedule shall include:
a. Station Name
b. Location
c. Day, Date and Time to Perform Service
2.2.3 Notify the Commission's Representative or designated Project Manager 72
hours in advance of the quarterly field survey to allow a Commission
Representative to accompany Contractor during the survey (if Commission
wishes to); scheduled field work shall not be delayed.
2.2.4 Provide a status report after each visual field survey documenting all
inoperable lights and required/recommended repairs. The report shall be
sorted by station listing the number and types of lights to be repaired and
general repairs to be made, and shall be submitted to the Commission's
Representative or designated Project Manager at the conclusion of the
visual field survey.
2.2.5 Repair/Replace all inoperable lights or deficient equipment identified in the
field survey status report, except those at the three (3) new Perris Valley
Line stations and the new portion of the Perris Multimodal station still under
286
DR
A
F
T
EXHIBIT A - 3
warranty, and clean all lenses/globes/fixtures on the Saturday/Sunday
following the field survey.
2.2.6 Perform inspection and testing of all emergency “bug eye” lights, including
depressing the test button on each unit to insure that the lamps turn on and
remain on.
2.2.7 Perform cleaning and maintenance of all solar panels, inverters and
associated equipment. The solar panels will be cleaned per the methods
and procedures as delineated in the array washing procedure section of
the “Solar America Board For Codes and Standards” Next Phase Solar,
Inc. (August 2013) or per the manufacture’s specifications if available.
2.3 ANNUAL SERVICES
2.3.1 Perform inspection and testing of all emergency “bug eye” lights, including
depressing the test button on each unit to insure that the lamps turn on and
remain on for 90 minutes, repair or replace components as necessary.
2.3.2 Perform a complete solar array maintenance procedure per the
manufacturer’s specifications (if available) or per the procedures as
delineated in the “Solar America Board For Codes and Standards” Next
Phase Solar, Inc. (August 2013).
2.3.3 Provide a comprehensive written report, by array system, of all pertinent
data, including but not limited to validation of all voltages and production
values, grounding continuity, open circuit voltages, etc.
2.3.4 Perform cleaning, testing, maintenance and repair of the emergency power
batteries and inverter/control system at the North Main Corona station per
the manufacturer’s specifications.
2.3.5 Provide a comprehensive written report on the condition of the emergency
power system, including but not limited to the condition of all battery strings,
inverter voltage and current output, etc.
2.4 YEAR ONE & YEAR THREE SERVICES
2.4.1 Perform infrared thermographic/photographic inspection of all panels,
subpanels, motor starters, circuit breakers, solar panel inverters and
associated connections, and transformer connections, and perform repairs
as necessary.
287
DR
A
F
T
EXHIBIT A - 4
2.4.2 Notify the Commission's Representative or designated Project Manager 72
hours in advance of the infrared inspection to allow a Commission
Representative to accompany Contractor during the inspection and repairs.
2.4.3 All connections deemed critical (40° C above ambient) shall be repaired
immediately. All connections deemed severe (20 – 40° C above ambient)
shall be repaired as soon as possible. In either case, repairs shall be made
only when it is safe for the public, the Contractor’s service personnel and
the Commission's Representative or designated Project Manager.
2.4.4 Provide a comprehensive written report, by station, with infrared and
normal color photographs of all panels, subpanels and transformer
connections, including before and after repair infrared and normal color
photographs of all connections deemed critical (40° C above ambient) or
severe (20 – 40° C above ambient). The report, including all photographs,
will also be provided in a digital format either on disc or via download from
the Contractor’s internet WEB site.
2.5 ON-CALL SERVICES
2.5.1 Unless otherwise specified by the Commission, the Contractor shall:
a.Repair inoperable lights within three (3) days;
b.Repair damaged wiring, outlets, poles, etc. within five (5) days.
2.5.2 Contractor shall complete all work during “non-rush hours” (8:30 am – 2:30
pm) or during weekend hours (Friday 8:00 pm – Monday 5:00 am).
3.0 CONTRACTOR OBLIGATIONS
3.1 PERSONNEL AND USE OF SITE(S)
3.1.1 The contractor shall provide a competent and sufficient supervisory work
force as may be necessary to properly maintain efficient performance of
the work at all times. Supervision shall have full authority to represent the
contractor in making decisions and executing the work in a first class
workmanlike manner.
3.1.2 Contractor shall not employ on any work for the Commission any unfit
person or anyone unskilled in the work assigned to him, and contractor
shall at all times keep the work site, including any storage areas used by
him, free from accumulation of waste materials, trash or rubbish. All
removed lamps and other material shall be removed from each site by the
end of each work day. Neither new nor used materials shall be stored on
site. All lamps and other materials that are replaced shall be properly
disposed off-site by the Contractor in accordance with all environmental
requirements. Commission dumpsters shall not be used for this purpose.
288
DR
A
F
T
EXHIBIT A - 5
3.1.3 Contractor shall confine the storage of materials and operations of its
workers, vehicles and equipment to limits prescribed by law, ordinances,
permits and the directions of the Commission's Representative or
designated Project Manager and, upon completion of work for the
Commission, Contractor shall leave the work and premises in a condition
satisfactory to the Commission's Representative or designated Project
Manager.
3.1.4 The contractor shall preserve and protect from damage all existing
monuments, utilities, structures, and hardscape. The contractor shall be
responsible for damages caused by its operations. In the event that
damage does occur, the cost of repairs shall be paid by the contractor at
no cost to the Commission.
3.1.5 Any concerns expressed by contractor, adjacent property owners or
government officials regarding acceptable conditions or procedures on
Commission-owned property will be resolved by consultation with the
Commission's Representative or designated Project Manager, prior to
work starting.
3.1.6 Contractor shall advise the Commission’s Representative or designated
Project Manager of any special repairs or upgrades that may be required
and provide written estimates as required: estimates are to be itemized.
Special repairs may include damaged/destroyed light poles, bollards, neon
lights etc.
3.2 SAFETY
3.2.1 All contractors and subcontractors performing services for the Commission
are required and shall comply with all Occupational and Health
Administration (OSHA), State and County Safety and Occupational Health
Standards, and any other applicable rules and regulations. Also, all
contractors and subcontractors shall be held responsible for the safety of
their employees and any unsafe acts or conditions that may cause injury or
damage to any persons or property within and around the work site area
under this contract.
3.2.2 Maintenance activities on the property shall be performed in a safe and
efficient manner and shall comply with all local, state, and federal
requirements. The contractor shall be responsible for initiating, maintaining
and supervising all safety precautions and programs in connection with the
work. Contractor and subcontractor’s employees will be expected to wear
approved safety equipment and follow all relevant safety rules and
guidelines.
289
DR
A
F
T
EXHIBIT A - 6
3.2.3 Contractor shall furnish, install and maintain all warning devices, i.e.
barricades, cones, etc. required to adequately protect the public during the
performance or work.
3.3 LABOR AND MATERIALS
3.3.1 Contractor shall provide all labor, materials, and tools required for the repair
or replacement of all lamps, fuses, ballasts, controllers, timers, batteries
and damaged or unsafe wiring, as necessary.
3.3.2 Provide necessary equipment (i.e., ladders, ladder trucks, aerial lifts,
scaffolding, etc.) required to perform the work specified in the Agreement
which shall include those tools and equipment required for
repairing/replacing of all lighting regardless of height.
3.3.3 Contractor shall provide all storage space needed for performance of this
work in an off- site location. Commission facilities shall not be used for the
storage of any material, tools or equipment required to perform this work.
3.3.4 All replaced material shall be made available to the Commission upon the
Commission's request.
3.3.5 Unless otherwise specifically noted, contractor shall provide and pay for all
labor, materials, equipment, tools, utilities not provided by the Commission,
transportation and other facilities and services needed for the proper
execution and completion of the work.
3.3.6 All materials shall be new, high grade (commercial grade), free of defects,
suitable for the specific purpose intended, and subject to the review and
approval of the Contract Administrator or his designee.
3.3.7 Materials being replaced shall be replaced with the same make and model
or an approved equal. All "OR EQUALS" must be approved by the
Commission’s Representative or designated Project Manager.
3.3.8 All lamps and bulbs shall have the manufacturer's date code imprinted on
each lamp and bulb.
3.3.9 All lamps and bulbs used in performance of this work shall be date coded
within one year of the date of installation.
3.3.10 Contractor shall maintain a reasonable supply/acquisition system which will
provide all necessary lamps, ballasts, diffusers and parts either
immediately or with minimal delay.
3.3.11 Any material or equipment not conforming to the requirements or found to
be damaged or defective at the time of delivery shall be replaced by the
contractor without additional cost to the Commission.
290
DR
A
F
T
EXHIBIT A - 7
3.3.12 If the contractor fails to comply promptly with any order of the Commission's
Representative or designated Project Manager, to replace or repair
damaged or defective material, equipment or work, the Commission's
Representative or designated Project Manager shall, upon written notice to
the contractor, have the authority to deduct the cost of such replacement
or repair from any compensation due or to become due the contractor.
3.3.13 Certain small parts, such as wire, nuts, bolts, screws, tape and other
consumables shall be included as overhead in the labor cost quoted for a
project.
3.3.14 All guarantees and warranties obtainable by the contractor from
manufacturers and vendors of equipment, in the performance of this
contract, shall be extended to the Commission to the full extent of their
terms.
3.4 KEY PERSONNEL AND QUALIFICATIONS
3.4.1 Key personnel will be available to the extent proposed for the duration of
the agreement and no person designated as "key" to the contract shall be
removed or replaced without the prior written concurrence of the
Commission. This includes subcontractors that are considered "key" to the
successful execution of this agreement.
3.4.2 Qualifications applicable to all positions:
3.4.2.1 All vehicle equipment operators must have and maintain
appropriate licenses for the operation of such equipment.
3.4.2.2 Ability to work out of doors in all weather conditions, to climb
irregular embankments and ladders, to lift objects not exceeding
OSHA weight regulations.
4.0 TASK ORDER (TO) PROCEDURES
4.1 DEFINITIONS
4.1.1 The terms bid and proposal, bidder and proposer, scope of work and
statement of work, are interchangeable as relates to this procurement. The
term contractor shall refer to the firm or firms that are awarded the ensuring
contract for services.
4.1.2 A TO is utilized by the parties to establish, outline, and authorize a
particular job or task.
4.2 INITIATING TASK ORDERS (TO)
291
DR
A
F
T
EXHIBIT A - 8
4.2.1 The Commission's Representative or designated Project Manager will
issue TOs to contractor on an as-needed basis.
4.2.2 REQUEST FOR Task Order SUBMITTALS. Upon a request for a TO
Proposal by the Commission's Representative or designated Project
Manager, contractor shall develop a plan and submit a TO proposal for the
requested services. These services include repairs, betterments, and
upgrades to enhance safety, improve efficiencies, and implement electrical
modernization technologies. The TO shall include a time schedule, number
of labor hours, and labor classification(s) to provide the requested services.
4.2.3 REVIEW AND AWARD OF TOs. The Commission's Representative or
designated Project Manager will review the submitted TO to ensure that
the submittal is complete, consistent with the Commission's written or oral
request for services, the personnel assigned are acceptable, the schedule
is acceptable, that all costs proposed are appropriate, and that the item is
in compliance with contractual requirements. The Commission's
Representative or designated Project Manager will award the TO if it is
determined to be fair and reasonable. If required, the Commission's
Representative or designated Project Manager will conduct negotiations to
address exceptions and clarify costs. The fully executed TO will serve as
the record of negotiations.
4.2.4 COMPLETION SCHEDULE. The contractor's performance of services
shall commence under each TO only upon written authorization by the
Commission's Representative or designated Project Manager.
4.2.5 Contractor shall complete the services within the time frame specified on a
particular TO.
4.2.6 All work shall be subject to the inspection and approval of the Commission
either by the Commission's Representative or designated Project Manager
prior to the acceptance and approval of payment.
4.3 NOTIFICATIONS AND RESPONSE TIME(S)
4.3.1 Unless otherwise directed by the Commission's Representative or
designated Project Manager, contractor must provide a TO Proposal in
response to the Commission's request for services within forty-eight (48)
hours of its receipt of a duly authorized request for TO submittal. In an
emergency situation, as determined by Commission staff, the Commission
will require the contractor to respond immediately to address the situation.
4.3.2 Contractor and sub-contractors must provide the Commission with 24-hour
contact number(s) for contractor's key personnel and an acceptable means
of emergency "on-call" communication with the Commission's
Representative or designated Project Manager.
292
DR
A
F
T
EXHIBIT A - 9
4.3.3 Contractor's offices must have voice, fax and e-mail capability.
4.3.4 The Commission's Representative or designated Project Manager must be
notified when contractor and or its subcontractor has employees on
Commission-owned property, at times other than regularly scheduled work
times.
4.3.5 Contractor and/or its subcontractor are to immediately notify the
Commission's Representative or designated Project Manager of any
unsafe or questionable condition that exists on the property. The
Commission's Representative or designated Project Manager will then
notify the necessary parties.
4.3.6 It is the contractor's responsibility to notify the Commission's
Representative or designated Project Manager of work completion within
24 hours of completion of each TO.
4.3.7 All TO's shall be performed in accordance with and subject to the
terms and conditions of the Agreement, including the indemnification
and defense obligations, and shall be considered "Services" as that
term is defined under the Agreement. Any TO issued pursuant to the
terms of this Agreement shall be considered a part hereof.
5.0 WORKMANSHIP
5.1 Contractor agrees to provide adequate supervision, and take necessary measures
to assure that all work is completed in a workmanlike manner. Contractor agrees
to perform the work assigned under this contract in a workmanlike manner by
qualified, careful and efficient workers. In the event 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 Representative or 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.
5.2 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.
5.3 Poor working performance will be determined to exist if any of the contractors'
workers fail to install work within the time allocated. 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.
293
DR
A
F
T
EXHIBIT A - 10
5.4 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.
5.5 Contractor 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.
5.6 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 contractor.
6.0 DIRECT COSTS AND MATERIAL MARKUP
6.1 Contractor shall be compensated for direct costs detailed on the quarterly field
survey report or task order for on-call services and subsequently substantiated
with invoices submitted by the contractor for materials used in carrying out the
various tasks issued under this contract.
6.2 Contractor markup on materials required to perform the services described herein
shall be fixed for the term of the agreement. In no case, shall contractor’s mark up
for materials exceed ten percent (5%).
6.3 Receipts will be required and shall be provided by the Contractor to substantiate
costs for all materials included in each invoice submitted to the Commission for
payment.
294
DR
A
F
T
EXHIBIT A - 11
STATION LOCATIONS
West Corona Metrolink Station North Main Corona Station
155 S. Auto Center Drive 250 E. Blaine Street
Corona, CA 92880 Corona, CA 92879
La Sierra Station Riverside Downtown
10901-A Indiana Ave 4066 Vine Street
Riverside, CA 92503 Riverside, CA 92507
Pedley Station Perris Downtown Station
6001 Pedley Road 121 South C Street
Riverside, CA 92509 Perris, CA 92570
Hunter Park Station Moreno Valley/MF Station
1101 Marlborough Avenue 14160 Meridian Parkway
Riverside, CA 92507 Riverside, CA 92518
295
DR
A
F
T
EXHIBIT A - 12
South Perris Station La Sierra Bus Station
1304 Case Road 10901-B Indiana Ave
Perris, CA 92510 Riverside, CA 92503
Operations Control Center
4344 Vine Street
Riverside CA, 92507
Toll Facilities
FAM ROC
120 N. Joy Street 301 Corporate Terrace
Corona CA Corona, CA
15 Toll Rd Office Toll TUB E91
291Corporate Terrace East Bound 91
Corona, CA Center divide
Toll TUB W91
West Bound 91
Center Divide
296
DR
A
F
T
EXHIBIT “B”
COMPENSATION
297
DR
A
F
T
FISCAL YEAR PROJECT COST
FY 2021/22 Station Electrical Maintenance Services 825,000.00$
FY 2022/23 Station Electrical Maintenance Services 500,000.00
FY 2023/24 Station Electrical Maintenance Services 500,000.00
FY 2024/25 Station Electrical Maintenance Services 500,000.00
FY 2025/26 Station Electrical Maintenance Services 500,000.00
FY 2026/27 Station Electrical Maintenance Services 500,000.00
3,325,000.00$
EXHIBIT "B"
COMPENSATION SUMMARY
TOTAL COSTS
298
DR
A
F
T
EXHIBIT “C”
FEDERAL REQUIREMENTS
299
DR
A
F
T
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.
EXHIBIT C-1300
DR
A
F
T
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.
EXHIBIT C-2301
DR
A
F
T
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
EXHIBIT C-3302
DR
A
F
T
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.
EXHIBIT C-4303
DR
A
F
T
FTA FUNDING REQUIREMENTS
The following FTA terms will be incorporated into all Task Orders utilizing FTA funds, unless
otherwise determined in writing by RCTC. 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 Contractor 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,
Contractor, or any other party (whether or not a party to that contract) pertaining to any matter
resulting from the underlying contract.
b.The Contractor 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 subcontractor who will be subject to its provisions.
2.Program Fraud and False or Fraudulent Statements or Related Acts
a.The Contractor 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 Contractor 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 Contractor 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 Contractor to the extent the
Federal Government deems appropriate.
b.The Contractor 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
Contractor, to the extent the Federal Government deems appropriate.
c.The Contractor 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 subcontractor who will be subject to the provisions.
EXHIBIT C-5304
DR
A
F
T
3. Access to Records
The Contractor 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 rec ords of
the Contractor which are directly pertinent to this contract for the purposes of making audits,
examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C. F. R. 633.17
to provide the FTA Administrator or his authorized representatives including any PMO
Contractor access to Contractor'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 Contractor 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 Contractor 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. Contractor'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 Contractor agrees that it will not
discriminate against any employee or applicant for employment because of race, color, creed,
EXHIBIT C-6305
DR
A
F
T
national origin, sex, age, or disability. In addition, the Contractor 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
Contractor 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 Contractor 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 Contractor
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 Contractor agrees to refrain from discrimination against present and prospective
employees for reason of age. In addition, the Contractor 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 Contractor 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 Contractor agrees to comply with any
implementing requirements FTA may issue.
EXHIBIT C-7306
DR
A
F
T
(3) The Contractor 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 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
EXHIBIT C-8307
DR
A
F
T
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).
D. Race-Neutral DBE Submissions and Ongoing Reporting Requirements (Post-Award):
For each Task Order proposal, 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 Task Order, 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 Task Order 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
any Task Order, 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 the Task
Order, 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.
EXHIBIT C-9308
DR
A
F
T
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 Contractor 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. ADA Access Requirements
The Contractor 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).
9. Fly America
.
The Contractor 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 contractors 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 Contractor 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 Contractor agrees to include the requirements of this section in all
subcontracts that may involve international air transportation.
10. Cargo Preference - Use of United States-Flag Vessels
The Contractor 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 Contractor in the case of a subcontractor's bill-of-lading.)
EXHIBIT C-10309
DR
A
F
T
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
The following shall apply unless otherwise specified in a Task Order request.
The Contractor agrees to comply with 49 U.S.C. 5323(j) and 49 CFR Part 661, which provide
that Federal funds may not be obligated unless steel, iron, and manufactured products used in
FTA-funded projects are produced in the United States, unless a waiver has been granted by FTA
or the product is subject to a general waiver. General waivers are listed in 49 CFR 661.7.
Separate requirements for rolling stock are set out at 5323(j)(2)(C) and 49 CFR 661.11. Rolling
stock not subject to a general waiver must be manufactured in the United States and have a 60
percent domestic content.
Contractor must submit to RCTC the appropriate Buy America certification with all bids on
FTA-funded contracts (including Task Orders), except those subject to a general waiver. Bids or
offers that are not accompanied by a completed Buy America certification must be rejected as
nonresponsive.
12. Employment Provisions
To the extent applicable to the Services, Consultant shall comply with the following:
A. Equal Employment Opportunity — Consultant must comply with Executive Order 11246 (3
CFR, 1964–1965 Comp., p. 339), “Equal Employment Opportunity,” as amended by Executive
Order 11375 (3 CFR, 1966–1970 Comp., p. 684), “Amending Executive Order 11246 Relating to
Equal Employment Opportunity,” and as supplemented by regulations at 41 CFR chapter 60,
“Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department
of Labor.”
B. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c) — Consultant must
comply with the Copeland “Anti-Kickback” Act (18 U.S.C. 874), as supplemented by
Department of Labor regulations (29 CFR Part 3, “Consultants and Subconsultants on Public
Building or Public Work Financed in Whole or in Part by Loans or Grants from the United
States”). The Act provides that each contractor or subrecipient must be prohibited from inducing,
by any means, any person employed in the construction, completion, or repair of public work, to
give up any part of the compensation to which he is otherwise entitled. The Commission shall
report all suspected or reported violations to the responsible DOE contracting officer.
C. Contact Work Hours and Safety Standards Act (40 U.S.C. 327–333) — Consultant must
comply with Sections 102 and 107 of the Contract Work Hours and Safety Standards Act (40
U.S.C. 327–333), as supplemented by Department of Labor regulations (29 CFR Part 5). Under
Section 102 of the Act, each Consultant is required to compute the wages of every mechanic and
EXHIBIT C-11310
DR
A
F
T
laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work
week is permissible provided that the worker is compensated at a rate of not less than 11/2 times
the basic rate of pay for all hours worked in excess of 40 hours in the work week. Section 107 of
the Act is applicable to construction work and provides that no laborer or mechanic is required to
work in surroundings or under working conditions which are unsanitary, hazardous or dangerous.
These requirements do not apply to the purchases of supplies or materials or articles ordinarily
available on the open market, or contracts for transportation or transmission of intelligence.
D. Davis-Bacon Act (40 U.S.C. 276a) — Consultant shall comply with the Davis-Bacon Act (40
U.S.C. 276a to 276a-7) as supplemented by Department of Labor regulations (29 CFR Part 5).
13. Release of Retainage
No retainage will be withheld by the RCTC from progress payments due Contractor. Retainage
by Contractor 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 Contractor 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 Contractor or subconsultant in the event of a dispute involving late payment or
nonpayment by Contractor or deficient subconsultant performance, or noncompliance by a
subconsultant.
14. Termination for Convenience
RCTC may terminate the Agreement for convenience in accordance with the terms of the
Agreement.
After such termination, the Contractor shall submit a final termination settlement proposal to
RCTC as directed. If the Contractor fails to submit a proposal within the time allowed, RCTC
may determine, on the basis of information available, the amount, if any due the Contractor
because of the termination and shall pay the amount determined. After the Contractor’s proposal
is received, RCTC and Contractor 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 Contractor does not agree
with this final determination or the determination resulting from the lack of timely submission of
a proposal, the Contractor may appeal under the Disputes clause.
15. Administrative and Contractual Remedies on Breach; Termination for Cause
a. The Contractor may be declared in breach of this Agreement (“Breach”) if the Contractor
fails to make delivery of the supplies or to perform the services within the time specified herein
or any extension thereof; or if the Contractor 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 Contractor of the Breach,
and the Contractor 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.
EXHIBIT C-12311
DR
A
F
T
b. RCTC may, by written notice of termination to the Contractor 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
Contractor 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 Contractor 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 Subcontractors, the Contractor 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 Contractor. If the failure to perform is caused by the
default of a Subcontractor, and if such default arises out of causes beyond the control of both the
Contractor and the Subcontractor, and without the fault or negligence of either of them, the
Contractor shall not be liable for any excess costs for failure to perform, unless the supplies or
services to be furnished by the Subcontractor were obtainable from other sources in sufficient
time to permit the Contractor 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 Contractor 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 3.4 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
EXHIBIT C-13312
DR
A
F
T
decided by RCTC’s Deputy Executive Director, who shall reduce the decision to writing and
mail or otherwise furnish a copy thereof to the Contractor. 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, Contractor 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 Contractor 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, Contractor 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.] - Contractors
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 Contractor 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.
EXHIBIT C-14313
DR
A
F
T
19. Clean Water
a. The Contractor agrees to comply with all applicable standards, orders or regulations issued
pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. The
Contractor 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.
b. The Contractor 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 Contractor 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 Contractor agrees to comply with all applicable standards, orders or regulations
issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Contractor
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.
b. The Contractor 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 Contractor 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 Contractor 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
EXHIBIT C-15314
DR
A
F
T
12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part
247.
21. 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 contractor 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 Contractor 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 Contractor or RCTC.
b. The Contractor 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.
EXHIBIT C-16315
RCTC COMMUTER RAIL STATIONS AND FACILITIES
ELECTRICAL MAINTENANCE AND
ON-CALL SERVICES AGREEMENT
ELITE ELECTRIC, INC
GARY RATLIFF –Facilities Administrator
1
2
COMMISSION OWNED/OPERATED PROPERTIES
ELECTRICAL INSPECTION &
MAINTENANCE SERVICES
3
LIGHTING
•QUARTERLY INSPECTION
•ANNUAL INSPECTION
•TRI-ANNUAL INFRARED
SOLAR
ELECTRICAL WIRING
•LANDSCAPING
•ELEVATOR
•CONTROL PANELS
•SWITCHES
CLEANING
REPAIRS/REPLACMENT
EMERGENCY LIGHTING
STATION LED PROJECT 2016/2017-ORIGINAL 5 STATIONS
SOLAR CANOPY PROJECT 2022
CLASSIC STATION LED PROJECT 2016/2017
•REPLACED ALL BULBS WITH LED BULBS
•AVERAGE ENERGY SAVINGS 30%
•PEDLEY STATION 65% savings in energy cost 2015-2021
MORENO VALLEY & SOUTH PERRIS SOLAR CARPORT PROJECTS
4
PROCUREMENT PROCESS
5
•RFP released October 28, 2021
•Planetbids
•Emails to 167 Firms, 36 Riverside
•26 downloads, 5 Riverside Firms
•Received 3 proposals
•Weighted factor selection method
PROCUREMENT PROCESS
6
•Elite Electric Inc., highest ranked firm based on all factors
Analysis of the RFP and proposals indicated:
•The same information was provided to all bidders
•All bidders were encouraged to make site visits
•Bidders did not demonstrate any misunderstanding of scope of work in
their question or comments at the pre-bid meeting
•Station lighting details were provided in RFP Section J
•Low bid closely matches the current pricing we have for those services
Firm Bid price Overall Ranking
Elite Electric, Inc.$119,302 1
M Brey Electric, Inc.$546,282 2
AMTEK Construction $2,134,044 3
STAFF RECOMMENDATION
01/21/2021
7
Recommend award of a five-year contract to Elite Electric,
Inc. for $3,325,000 for Electrical Maintenance and On-Call
Services
•Includes $825,000 for routine electrical and on-call
maintenance services.
•Also includes $2,500,000 for Electrical Upgrades and
Improvement Projects as grant funds are available
Thank you
8
Questions?
AGENDA ITEM 10
Agenda Item 10
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: January 24, 2022
TO: Western Riverside County Programs and Projects and Committee
FROM: Sri Srirajan, Senior Capital Projects Manager
THROUGH: David Thomas, Toll Project Delivery Director
SUBJECT:
Change Order to Amend the Interstate 15 Express Lanes Project Toll Services
Agreement with Kapsch TrafficCom USA to Provide for the Design and
Installation of the Tolling System for the Interstate 15/State Route 91 Express
Lanes Connector
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Approve Change Order No. 8B 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 for
the design and installation of the Tolling System for the I-15/SR-91 Express Lanes
Connector (15/91 ELC) in the amount of $6,203,750, plus a contingency amount of
$620,000, for a total amount not to exceed $6,823,750;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the change order on behalf of the Commission;
3) Authorize the Executive Director or designee to approve contingency work up to the total
amount not to exceed as required for the project; and
4) Forward to the Commission for final action.
BACKGROUND INFORMATION:
In April 2017 Governor Brown signed Senate Bill 132 (SB 132) which appropriated $427 million to
the Riverside County Transportation Efficiency Corridor (RCTEC) for five projects. SB 132
allocated $180 million to the 15/91 ELC. The 15/91 ELC will provide a tolled express lanes
connector between the 91 Express Lanes and the 15 Express Lanes to the north of SR-91 (Figure
1: Vicinity Map). The project is currently in construction and anticipated to be completed in 2023.
316
Agenda Item 10
Figure 1: 15/91 Express Lanes Connector Project Vicinity Map
At its October 2017 meeting, the Commission approved an overall procurement strategy for the
15/91 ELC to secure all the services and construction needed to deliver the project. The approved
strategy consists of a series of contract amendments, as permitted by AB 115, to existing 91
Project and I-15 ELP contracts with engineering companies, contractors, toll vendors, legal, and
financial advisors.
Kapsch is the current provider and operator of both the 91 Express Lanes and 15 Express Lanes
roadside toll system. Kapsch operates and maintains the toll equipment for the express lanes,
they manage the prices posted on the signs, operate the 15 Express Lanes dynamic pricing
algorithm and determine the toll that each customer should be charged. Having the same toll
system provider for the Commission’s express lanes provides for continuity in operations and a
seamless customer experience. The Kapsch contract is in its first year of operation and
maintenance. The current contract base period expires in April of 2026. The Commission has the
option to extend this contract in one-year increments through April of 2030.
The new 15/91 ELC adds a third origin or destination for customers that use the 91 Express Lanes:
McKinley, 15 South, and 15 North. In order to determine which toll to charge a customer, a toll
point on the 15/91 ELC and a toll point on the McKinley entrance and exit is needed (Figure 2:
Additional Toll Points).
317
Agenda Item 10
Figure 2: Additional toll points
DISCUSSION:
In order to charge a toll for the 15/91 ELC, new toll equipment and changes to the existing toll
system are needed. The design build contractor is installing the required toll gantries and this
change request is for Kapsch to provide the required tolling elements.
Kapsch will be required to provide the following:
1) Toll Equipment in each direction of the 15/91 ELC;
2) Toll Equipment at the westbound McKinley entrance to the 91 Express Lanes;
3) Toll Equipment at the eastbound McKinley exit from the 91 Express Lanes;
4) 7 Traffic detection sensors; and
5) 7 Closed-circuit television cameras
In addition to installing the equipment enumerated above, the change request includes the cost
for Kapsch to integrate the equipment into the existing Commission express lanes system.
Integration of the equipment will require changes to the system software and extensive testing.
The following systems will require changes as a result of the additional toll points:
• The roadside maintenance system requires updating to include the new equipment. The
roadside maintenance system tracks the performance of all equipment, providing
notification should equipment not be working properly.
Additional toll points
318
Agenda Item 10
• The sign management system requires updates to include the 15/91 ELC toll price.
• The 15 Express Lanes traffic detection system requires updates to integrate the additional
sensors. The traffic detection system provides important data for use by the dynamic
pricing algorithm and by staff in reporting on the express lanes performance.
• The traffic operations center system requires the integration of the additional cameras
for use by Kapsch staff and Caltrans in monitoring the express lanes and responding to
incidents.
• The trip build software requires updates to determine where a customer begins and ends
their trip and the toll rate they should be charged.
At the time of this staff report, the design for the destinations posted on the toll rate signs and
the specific trip combinations are still in discussion with staff. As the Commission’s express lanes
network expands, the current method of posting prices to the end of the express lanes causes
concern regarding our ability to properly manage traffic over long distances and introduces a
situation where a single posted toll rate has a combination of discounts. Staff and Kapsch are
working on alternate methods to amend the trip build and destinations posted on signs to
address these concerns. This change request does not include any additional work that may arise
to address these changes. The cost of this work may be provided for out of the requested
contingency or may result in an additional change request requiring Commission approval in the
future.
Additionally, this change request does not include Kapsch’s cost to operate and maintain the new
equipment, provide image processing for the new cameras, or any increased costs for providing
customer service. Staff is working with Kapsch to determine those costs and will return to the
Commission with an additional change request at a later date.
RECOMMENDATION:
Staff recommends approval of Change Order No. 8B to amend the Toll Services agreement
between the Commission and Kapsch in the amount of $6,203,750, plus a contingency amount
of $620,000, for a total amount not to exceed $6,823,750. Further, authorization is requested
for the Chair or Executive Director to execute the amendment on behalf of the Commission and
for the Executive Director or designee to approve contingency work up to the total not to exceed
amount as required for the project.
319
Agenda Item 10
Financial Information
In Fiscal Year Budget: Yes
N/A Year: FY 2021/22
FY 2022/23 Amount: $2,000,000
$4,823,750
Source of Funds: SB 132 State Funds and 91 Express Lanes
Surplus Toll Revenue Budget Adjustment: No
N/A
GL/Project Accounting No.: 003039 81301 00000 0000 605 31 81301
Fiscal Procedures Approved: Date: 01/12/2022
Attachment: Draft Change Order No. 8B with Kapsch
320
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
1
Sensitive
Change Response / TSP Change Request
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
I-15 Toll Services Provider Contract
Change Order No. 8B
Pursuant to: (check appropriate box)
Written Change Notice No. ______, dated _________, submitted by RCTC to
TSP pursuant to Section 20.4.1 of the Contract
TSP Change Request No._______, dated __________, submitted by TSP to
RCTC pursuant to Section 20.6 of the Contract
Directive Letter No. ________, dated __________, submitted by RCTC to TSP
pursuant to Section 20.3 of the Contract
Reference is made to that certain Toll Services Contract (Contract No. 16-31-043-00)
dated January 26, 2016, as amended, by and between Riverside County Transportation
Commission (“RCTC”), a public entity of the State of California (“RCTC”), and Kapsch
TrafficCom USA, Inc., a corporation organized under the laws of Delaware (“TSP”), as
amended, together with all Exhibits and prior amendments (the “Contract”).
This Change Order amends the Contract. Capitalized terms used herein , but not defined,
in this Change Order have the meanings given in the Contract, and all Section and Exhibit
references shall be to the Contract.
321
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
2
Sensitive
SECTION I – Narrative, Discussion of Additions, Deletions, Modifications to
the Requirements of the Toll Services Contract
A. Evaluation of Change including whether TSP considers any RCTC-Initiated
Change to constitute a Change and the specific provision(s) of this
Contract which permit a Change Order (Section 20.4.3(a)(i)):
N/A – RCTC Initiated Change Order
1) Overview of scope of Change (Section 20.4.3(a)(iii)). For detailed scope of
Change, please complete the Change Response Price Form:
All capitalized terms used in this Change Order No.8B and not defined herein have the
meanings given to such terms in the Toll Services Contract dated January 26, 2017 (as
amended), between the Riverside County Transportation Commission (RCTC) and
Kapsch TrafficCom USA, Inc. (TSP) (together the Contract).
RCTC plans to develop a new Express Lanes connector (ELC or ELC Project) between
the SR-91 Express Lanes (SR-91 EL) and the future I-15 Express Lanes being developed
under the I-15 Express Lanes Project (ELP Project). The ELC will consist of one Express
Lane in each direction facilitating a direct east-to-north and south-to-west connection
between the recently opened SR-91 Express Lanes extension and the future Express
Lanes on I-15. The ELC will allow SR-91 EL customers and I-15 Express Lanes
customers to make a continuous trip between the two Express Lane facilities.
Part 1: SR-91 Retrofit to support upgraded roadside electronic tolling system
Background
The construction of the ELC will create new destinations accessible from the SR-91
Express Lanes and I-15 Express Lanes. The I-15 Express Lanes system shall be
modified to allow for a new inter-facility pricing strategy. Given the access configuration
and location of toll points on the SR-91 Express Lanes and the I-15 Express Lanes,
customers using the ELC will be required to use the RCTC segment of the SR-91 Express
Lanes (RCTC SR-91 Express Lanes Segment) and one segment of the I-15 Express
Lanes (I-15 Express Lanes Segment). Prices for ELC transactions shall be combined with
the RCTC SR-91 Express Lanes Segment and the I-15 Express Lanes Segment, creating
an inter-facility pricing zone. Additionally, tolls for trips beginning with segment one
northbound on the I-15 Express Lanes to the SR-91 Express Lanes westbound or SR-91
322
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
3
Sensitive
Express Lanes eastbound through segment four of the I-15 Express Lanes southbound
shall be combined.
Pricing between the SR-91 Express Lanes and the I-15 Express Lanes will require an
interface between the SR-91 Express Lanes and I-15 Express Lanes toll systems to
collect and exchange entry time data. For example, the SR-91 Express Lanes toll system
would need to know the time that ELC users saw the SR-91 Express Lanes price so that
the appropriate toll could be charged.
The Parties intend that the scope of the Project under the Contract shall be made up of
three Sub projects:
1) The toll services work for the SR-91 Express Lanes described in previous Change
Orders No.5, and previous Change Order No. 6 (SR-91 Subproject);
2) The toll services work for the I-15 Express Lanes Project (ELP Subproject) –
described in the Contract as of the Effective Date; and
3) The toll services work for the ELC Subproject to be described in this Change
Order No. 8B.
The subprojects shall include the following phases of D&D Work described (Phases):
1) SR-91 Subproject
a) SR-91 Phase 1 –Tolling System Retrofit (described in Change Order No.
5):
Retrofit the existing RCTC SR-91 Express Lanes Segment roadside electronic
tolling system (currently Neology) with TSP’s roadside electronic tolling system of
the same design as the roadside electronic tolling system being installed on the I-
15 for the ELP Project to provide compatibility across the entire RCTC tolling
environment and add additional capabilities to the RCTC SR-91 Express Lanes
Segment (i.e., 6C compatibility) that are being introduced in the ELP Project. The
ETC Host will provide “core” services only by creating vehicle transactions and
transmitting them to the SR-91 Operator for trip-building.
b) SR-91 Phase 2 – New Tolling Infrastructure – described in Change Order
No. 6
i. South Gantry (including SR-91 (Gantry) Turnover Package 5)
c) Install new tolling equipment on the South Gantry to be included in Turnover
Package 5. This tolling point will have 1 toll lane in each direction. The
tolling point will be tied into the existing SR-91 fiber communications
system, and shall, upon completion communicate with the new ETC Host
which will be located at the RCTC Operations Center ROC).
323
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
4
Sensitive
d) After the new tolling point is put into Revenue Service, the TSP will
decommission the existing toll point at the I-15/SR-91 interchange by
removing the toll equipment from the site before the gantries are removed
due to ELC Project construction. The equipment will be returned to RCTC
inventory.
i. County Line VTMS (including SR-91 (VTMS) Turnover Package 6)
a) Install new VTMS price sign equipment consisting of LED
displays for pricing for 3 destinations. This VTMS price sign will
be tied into the existing SR-91 fiber communications network, and
shall, upon completion, communicate to the ELP Project ROC.
b) RCTC will provide a sign gantry structure. TSP will insert LED
pricing modules into a sign panel provided by RCTC. RCTC will
provide supporting structural elements to allow TSP to attach
LEDs to the sign panel structure.
c) A Yagi antenna will be mounted to the new VTMS sign to support
determination of delay for assignment of toll pricing in the
Eastbound direction on the SR-91 Express Lanes.
d) TSP will implement temporary pricing support utilizing the existing
INFO CMS (at station 524+00 on SR-91) utilizing existing network
connections, and the new sign manager software (planned for the
new County-Line VTMS) if delivery of the new County-Line VTMS
structure is delayed past ELP Revenue Service Commencement.
This is referred to as “County-Line VTMS Plan B”. County-Line
VTMS Plan B shall be implemented, tested, and functional no
later than ELP Package 4 Turnover.
ii. Network Revisions - Connect SR-91 Tolling Infrastructure to the I-15
ROC
a) Including the SR-91 Tolling Points as part of the overall Trip
Building/Trip Pricing process for the I-15 and RCTC SR-91
Express Lanes Segment – this work is included in previous
Change Order #3
b) After ELP Subproject has reached Revenue Service, the
tolling locations on the RCTC SR-91 Express Lanes Segment
will be disconnected from communicating with the SR-91
Operator, and will be reconnected with the new ETC Host
located at the new ELP Project ROC as described in Change
Order No.6
c) Includes changes to the Back Office System software to
support multi-facility trip tolling.
324
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
5
Sensitive
2) ELP Subproject – including Turnover Packages 1, 2, 3 and 4 to be performed as
described in the Contract as of the Contract Effective Date.
3) ELC Subproject –described in this Change Order No. 8B.
a) Roadside
i. Install new tolling equipment on the future gantry at Eastbound
McKinley Toll Gantry location, as designated on ELC DB Contractor
RFC Roadway drawings. This location will support 2 toll lanes.
ii. Install new tolling equipment on the future gantry at Westbound
McKinley Toll Gantry location, as designated on ELC DB Contractor
RFC Roadway drawings. This location will support 1 toll lane.
iii. Install new tolling equipment on the future gantry at the Northbound
Connector location, as designated on ELC DB Contractor RFC
Roadway drawings. This location will support 1 toll lane in each
direction.
iv. Install 7 CCTV locations as designated on the MRJV RFC Roadway
drawings. NOTE: 2 of these locations are on High Mast poles
(mounting will be on lowering equipment).
v. Install 7 TTMS/MVD locations as designated on the MRJV Roadway
drawings.
vi. These new locations will be tied into the I-15 fiber communications
system or SR-91 fiber communications system (as determined
during design, and communicate with the I-15 ROC facility.
vii. OPTION 1: Install 3 additional TTMS/MVD locations on the I-15 as
designated in Attachment 6. Should RCTC choose to implement
Option 1, RCTC will authorize such work by separate NTP. Pricing
provided in Attachment 1C.
b) Host
i. Add new tolling locations (Plaza IDs) to Trip Building and add new
trip formations to Golden Truths Document
ii. Add new TTMS/MVD locations to Dynamic Pricing Engine
iii. Add new CCTV locations to TOC
c) Back Office
i. Add new trip designations to Back Office system
ii. Add new Plaza IDs to IOP Transfers (and notify Interop Partners by
updating CTOC interface spec)
ELC Subproject D&D Work Milestones:
The key milestone dates for ELC Subproject D&D Work under this Change Order No. 8B
are:
325
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
6
Sensitive
1) Change Order No. 8B (ELC Subproject) – RCTC Commission Approval –
February 2022
2) Notice to Proceed – ELC Subproject – February 2022 (approximate)
3) ELC Turnover Package 1 – All CCTVs and TTMS/MVD locations – received
from MRJV and ready for installation – February 7, 2023
4) ELC Turnover Package 2 – Eastbound McKinley and Westbound McKinley Toll
Gantry locations – received from MRJV and ready for installation – March 9,
2023
5) ELC Turnover Package 3 – Northbound Connector Toll Gantry location –
received from MRJV and ready for installation – April 8, 2023
6) Site Acceptance Testing – after completion of each location install
7) Operations Testing – June 2023
8) ELC Subproject Revenue Service Commencement Deadline– June 30, 2023
9) ELC Subproject TCS Acceptance Deadline – December 30, 2023
Conditions to NTP For this Change Order No. 8B:
RCTC will not issue NTP until satisfaction of the following requirements:
1) TSP has submitted to RCTC the ELC Subproject Performance Bond Rider and
the ELC Subproject Payment Bond Rider, as specified in Part 2, section 6
below;
2) TSP has submitted to RCTC the certificates of insurance and endorsements as
required by Contract Section 17.3.2 to confirm the insurance coverages
required, as specified in Part 2, section 5 below;
3) TSP has delivered to RCTC an executed consent of the Guarantor to the
addition of ELC Subproject to the Project in the form provided in this Change
Order; and
4) TSP has provided to RCTC any other documents, things or assurances
required by this Change Order as a condition of NTP.
RCTC has no obligation to issue this NTP, and unless and until this NTP is issued, RCTC
has no liability to TSP under the Contract or this Change Order No. 8B with respect to the
ELC Subproject.
326
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
7
Sensitive
ELC Subproject Deliverables:
TSP shall deliver the following ELC Subproject Deliverables by the applicable
Delivery Date:
Deliverable Format for Update Delivery Date
Baseline Schedule Standalone ELC Subproject
Schedule
NTP + 30 Days
Monthly Progress
Schedule
Standalone ELC Subproject
Schedule
Monthly
Four-Week Look Ahead
Schedule
Standalone ELC Subproject
Schedule
Weekly
DBE Program
Performance Plan
update by addendum with
any specific requirements for
ELC Subproject
NTP + 30 Days
Business Rules
Update by Addendum any
changes to support
modifications to Trip Building,
Dynamic Pricing, and Back
Office Design Changes
NTP + 90 Days
Final Design Document
(FDD)
Update by Addendum any
changes to support
modifications to Trip Building,
Dynamic Pricing, and Back
Office Design Changes
NTP + 90 Days
Installation Plan
update by addendum with
any specific requirements for
ELC Subproject
NTP + 90 Days
Civil Site Acceptance
Checklist
Submit with Installation Plan
update
See Installation Plan
Communications
Network Acceptance
Checklist
Submit with Installation Plan
update
See Installation Plan
Installation Drawings Standalone for ELC
Subproject
NTP + 90 Days
Bill of Materials
Standalone for ELC
Subproject, including a
recommended list of spare
parts
NTP + 90 Days
Transportation
Management Plan
update by addendum with
any specific requirements for
ELC Subproject
NTP + 120 Days
327
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
8
Sensitive
Individual Test Plans Standalone for ELC
Subproject
NTP + 150 Days
Individual Test Reports
(including Site
Commissioning,
Operations Testing,
TCS Acceptance)
Standalone for ELC
Subproject
Completion of testing plus
10 Days
Interface Control
Documents
update by addendum with
any specific requirements for
ELC Subproject, i.e., new
Plaza designations for
transactions, etc.)
NTP + 90 Days
Financial, Auditing and
Traffic Reports Upon request Upon request
ELC Subproject As-Built
Technical Drawings
Standalone for ELC
Subproject
ELC Subproject Revenue
Service Commencement +
60 Days
Maintenance Plan
Update, as necessary, to
reflect the new locations that
require maintenance
ELC Subproject Revenue
Service Commencement -
30 Days
Transition Plan Standalone for ELC
Subproject
Go-Live – 120 Days
NOTE 1: PDF and AutoCAD acceptable for this milestone.
NOTE 2: Final As-built drawings must be delivered in PDF and Microstation formats.
Part 2: Other Material Terms
1) MOT
a. Coordination of MOT is the responsibility of TSP and shall be
handled in accordance with the TP, Section 4.7, “Maintenance of
Traffic” during D&D Work.
2) Spare Parts
a. A list of recommended Spare Parts for the ELC Subproject work will
be provided for RCTC review and approval per TP Section 16.15, as
part of the submittal of the Bill of Materials (BOM).
b. The purchase and pricing of the spares for ELC Subproject will be
part of Change Order No. 8B.
328
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
9
Sensitive
3) KPIs
The KPIs listed in TP Section 19.4 – Table 19-2, “Key Performance
Indicators” (KPIs) and all provisions of the Contract applicable to the O&M
Work shall apply to ELC Subproject when the ELC Subproject enters
Revenue Service (See milestone dates).
4) Liquidated Damages
a) TSP shall pay the following Delay Liquidated Damages to RCTC:
$5,000 for each day after the ELC Subproject Revenue Service
Commencement Deadline through the date that TSP achieves ELC
Subproject Revenue Service Commencement, not to exceed 60 days or
earlier termination of this Contract;
b) The liquidated damages set forth in Section 11 and Exhibit 22 of the
Contract will apply to the ELC Subproject.
5) Insurance Requirements
As a condition precedent to NTP, TSP shall modify their insurance policies
and certificates as follows:
i. Ensure all insurance coverage include the ELC Subproject
Work
6) Bonding Requirements
a) As a condition precedent to RCTC issuing NTP, TSP shall deliver to
RCTC the updated ELC Subproject Performance Bond Rider and the
ELC Subproject Payment Bond Rider.
7) Limitation of TSP’s Liability
For the avoidance of doubt, the Total Capital Cost, as referenced in
Contract Section 25.1.1(a), shall reflect the addition of the ELC Subproject
Total Capital Cost.
8) Source Code Escrow
As a condition to payment of invoices for ELC Subproject Payment
Milestones and ELC Subproject TCS Acceptance, TSP shall place all the
Software Source Code for Pre-Existing Software owned by TSP, licensed
to or by TSP or with respect to which TSP has a right to use in connection
with the ELC Subproject Work into Source Code Escrow upon
establishment of the same in accordance with the Contract.
329
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
10
Sensitive
Part 3:
A. Payments based on labor, overhead, margin, ODC, and subcontract costs (See
Attachment 1B)
(Percentages indicated below are percentages of the ELC Subproject Total System Cost)
1) ELC-NTP – Mobilization Payment – 10%
2) Design Documents Approved (specific modifications to be handled for the SR-91
Express Lanes version of the TCS) – 7%
3) Installation Drawings Approved – 7%
4) Installation Plan Approved – 7%
5) Approved Test Plans – 10%
6) Site Acceptance Testing Complete – 10%
7) Operations Testing Complete – 10%
8) ELC Subproject Revenue Service Commencement – 15%
9) ELC Subproject As-Built Technical Drawings – 12%
10) ELC Subproject TCS Acceptance – 12%
B. Payments based on Equipment costs:
TSP shall deliver Lane Equipment per List of Materials – Amount set forth in the
“Materials” section in the ELC Subproject Price Sheet. Payment will be made for
delivery of equipment related to item 4 on the Price List.
Part 4: SR-91 ROW Access
RCTC will provide TSP with access to the ELC Subproject ROW:
a) From NTP until ELC Subproject TCS Acceptance for the purposes of performing
the ELC Subproject D&D Work, provided that (i) TSP shall obtain a rider to the
existing RCTC encroachment permit providing TSP with access to the ELC
Subproject Site prior to commencing work on the site and shall comply with the
requirements of such permit, and (ii) TSP shall comply at all times with TSP’s
safety and security procedures and all applicable requirements of this Contract and
Technical Provisions.
Part 5: Additional Definitions (Exhibit 1 to the Contract), not already included in
Change Order No.5
1) ELC Notice to Proceed or ELC-NTP means the written Notice issued by RCTC
to TSP authorizing TSP to proceed with the ELC Subproject D&D Work.
330
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
11
Sensitive
2) ELC Subproject Payment Bond Rider means a bond rider in the form attached
to this Change Order No. 8B as Attachment 3-B (with such modifications as
RCTC approves by Notice, in its sole discretion).
3) ELC Subproject Performance Bond Rider means a bond rider in the form
attached to this Change Order No. 8B as Attachment 3-A (with such
modifications as RCTC approves by Notice, in its sole discretion).
4) ELC Turnover Package 1 means, for all ELC CCTV and TTMS/MVD locations,
the stage in the DB Work where DB Contractor has completed design,
construction and inspection of the following elements:
a. infrastructure for the CCTV and/or TTMS/MVD location, including pole,
conduit, power and communication to support all ETC components;
b. communications (temporary or otherwise) from the relevant Turnover
Area to the ROC;
c. commercial power to all of the infrastructure within the relevant Turnover
Area and other TCS equipment locations applicable to the Turnover
Area; and
d. Successful completion of testing of the lightning protection and
grounding systems to certify compliance with requirements in the NFPA-
70, National Electric Code: NFPA-780, Lightening Protection Code, and
UL-96A, Installation Requirements for Master Labeled Lightning
Protection Systems.
5) ELC Turnover Package 2 means, for Eastbound McKinley and Westbound
McKinley Toll Gantry locations, the stage in the DB Work where DB Contractor
has completed design, construction and inspection of the following elements:
a. infrastructure for the Read Point, including gantry, pads, conduit, power
and communication to support AVI, LPR, beacons, and all ETC
components;
b. a 3,000 foot-long paved and striped EL section that includes required
ELs, shoulders, and two-feet wide buffer to perform drive tests for the
applicable Turnover Area, with the toll gantry constructed approximately
within the center of the 3,000-foot long section;
c. communications (temporary or otherwise) from the relevant Turnover
Area to the ROC;
331
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
12
Sensitive
d. commercial power to all of the infrastructure within the relevant Turnover
Area and other TCS equipment locations applicable to the Turnover
Area;
e. Successful completion of a load verification and automatic transfer
switch test for each emergency generator meeting the requirements as
set forth by the manufacturer and in the DB Contract; and
f. Successful completion of testing of the lightning protection and
grounding systems to certify compliance with requirements in the NFPA-
70, National Electric Code: NFPA-780, Lightening Protection Code, and
UL-96A, Installation Requirements for Master Labeled Lightning
Protection Systems.
6) ELC Turnover Package 3 means, for Northbound Connector Toll Gantry
location, the stage in the DB Work where DB Contractor has completed design,
construction and inspection of the following elements:
a. infrastructure for the Read Point, including gantry, pads, conduit, power
and communication to support AVI, LPR, beacons, and all ETC
components;
b. a 3,000 foot-long paved and striped EL section that includes required
ELs, shoulders, and two-feet wide buffer to perform drive tests for the
applicable Turnover Area, with the toll gantry constructed approximately
within the center of the 3,000-foot long section;
c. communications (temporary or otherwise) from the relevant Turnover
Area to the ROC;
d. commercial power to all of the infrastructure within the relevant Turnover
Area and other TCS equipment locations applicable to the Turnover
Area;
e. Successful completion of a load verification and automatic transfer
switch test for each emergency generator meeting the requirements as
set forth by the manufacturer and in the DB Contract; and
f. Successful completion of testing of the lightning protection and
grounding systems to certify compliance with requirements in the NFPA-
70, National Electric Code: NFPA-780, Lightening Protection Code, and
UL-96A, Installation Requirements for Master Labeled Lightning
Protection Systems.
332
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
13
Sensitive
Part 6: Impacts on Existing Definitions and Contract Provisions
For purposes of the ELC Subproject, the Setting Date, the Effective Date and similar
reference dates under the Contract will be the date of issuance of this Change Order.
Reference Documents include the documents and information provided with respect to
the ELC Subproject, as listed on Change Order No. 8B – Attachment 5.
Except as specifically provided otherwise in this Change Order:
1) Defined terms previously applying generally to the ELP Project (such as
“Project,” “D&D Work,” “Toll Services,” “Work,” “Completion Deadlines,”
“Total Capital Cost,” etc.): (a) will retain the same names and the definitions
will be revised to include the ELC Subproject; but (b) corresponding ELP
Project-specific defined terms will also be created so as to distinguish from
the ELC Subproject as needed.
2) Provisions in the Contract of general application to the ELP Project (such
as TSP’s indemnities, events of default) will also apply to the ELC
Subproject.
B. Analysis of (impact of the Change on the performance of other aspects of the D&D
Work, O&M Work, RCTC or RCTC’s toll operations (as applicable); (Section
20.4.3(a)(v)):
All impacts of the Change are reflected in this Change Order No. 8B, and there are no
other impacts of the Change on the performance of other aspects of the D&D Work,
O&M Work, RCTC or RCTC’s toll operations.
C. Proposed plan for mitigating impacts of the Change (Section 20.4.2(a)(x)):
N/A
D. Additions / deletions / modifications to the requirements of the Contract including
KPIs (if any) (Section 20.4.3(a)(viii)):
See Redlined Technical Provisions Attachment 2.
333
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
14
Sensitive
SECTION II – Cost Impact(s)
A. Summary
Compensation under this Change Order is to be paid (check the applicable boxes below):
n/a 1 $0.00 (“no cost”) Change Order.
as a lump sum adjustment to the Contract Price in the amount of __________
dollars ($ __________).
as a series of milestone payments in the following amounts:
1) See Section I, Subsection B (Overview of Scope), Part 3, Item A for the D&D Milestone
Payment Schedule, and Attachment 1B.
2) See Section I, Subsection B (Overview of Scope), Part 3, Item B for the Equipment
Payment Schedule, and Attachment 1A.
as an adjustment to Total O&M Years 1 and 2 Cost or Total O&M Years 3, 4 and
5 Cost
as a Unit Price Change Order for increases or decreases in the Contract Price
[not to exceed] / [in the amount of] __________ dollars ($ __________))
as a Time and Materials Change Order, [not to exceed __________ dollars ($
__________)]
as is set forth below, under Section II(B)([2] / [3]).[select the proper reference]
If more than one box has been checked, also check this box and summarize
terms here:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
Documentation supporting the Change Order is attached as Annex[es] __________
[through __________].
B. Special Considerations
1. Delay and disruption damages for Excusable Delay (Section 20.10). n/a
Compensation available for Change Orders are (only) extra Work Costs and delay Costs
directly attributable to the proposed Change and exclude certain costs and expenses.
• Total extra Work Costs: $__________
• Total delay and disruption damages: $ __________
Discussion (if any):
1 If $0 (i.e., a “no cost” Change Order), leave remainder of Section II blank.
334
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
15
Sensitive
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
2. Deductive RCTC Changes. n/a
If this Change Order is a deductive change
Net Cost 2 Savings attributable to the deductive change $ __________
Amount due to RCTC attributable to the deductive Change (or which can be used by
RCTC, in its sole discretion, to offset payment to TSP) $ __________
Discussion (if any):
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
2 When both additions and reductions are involved in any one Change Order, the adjustment shall be
determined on the basis of net increase or decrease. TSP Margin will be allowed only for the net increase in labor
Cost in order to establish the amount to be added to the Contract Price. In determining a deductive change order, any
deduction will include the amount of TSP Margin and Audited Overhead which would have been payable on such
amounts by RCTC in accordance with Section 20.
335
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
16
Sensitive
SECTION III – Completion Deadline Impacts (Applicable to All Change Orders)
The status of the CSC Commencement Deadline is as follows:
Unaffected by this Change Order
Affected by [extending] / [accelerating] the date of the CSC Commencement
Deadline by _________calendar days to __________ calendar days prior to
Revenue Service Commencement.
The status of the Revenue Service Commencement Deadline is as follows:
Unaffected by this Change Order
Affected by [extending] / [accelerating] the date of the Revenue Service
Deadline by _________calendar days to __________ Days after the Package 4
Turnover Date.
The status of the total Float is as follows:
Unaffected by this Change Order
Affected by this Change Order as follows:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
If this Change Order is issued as a result of, or relating to, an Excusable Delay or a
shortening time, TSP’s Critical Path time impact delay analysis is attached as Annex
_____ (Section 20.4.3(a)(vi)). n/a
336
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
17
Sensitive
SECTION IV - (Reviewed and recommended agreed by TSP’s [Project Manager-D&D
Work] or [Project Manager-O&M Work])
By: ___________________________________________
Name: Jim Kirwin
Title: Project Manager
Date: ___________________
Comments:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
337
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
18
Sensitive
SECTION V - (Reviewed and agreed by TSP)
The undersigned Authorized Representative of TSP hereby certifies, under penalty of
perjury, as follows:
1. Sections I, II and III of this Change Order, including all Worksheets and Annexes,
collectively represent a true, accurate and complete summary of all aspects of this
Change Order.
2. The amounts of time and/or compensation set forth in this Change Order (a) are, in
each case, justified as to entitlement and amount, (b) reflect all changes to compensation
for and scheduling of the Project (inclusive of all Subcontractor and Supplier amounts,
impacts), (c) is complete, accurate and current and (d), in each case, the amounts of time,
if any, and/or compensation, if any, agreeable to, and is hereby agreed by, TSP.
3. This Change Order includes all known and anticipated impacts or amounts, direct,
indirect and consequential, which have been and may be incurred, as a result of the event,
occurrence or matter giving rise to this Change Order. This Change Order constitutes a
full and complete settlement of all Losses, Claims, matters, issues and disputes existing
as of the effective date of this Change Order, of whatever nature, kind or character relating
to the event, occurrence or matter giving rise to this Change Order and the performance
of any extra Work that this Change Order documents or relates, including all direct and
indirect costs for services, equipment, manpower, materials, overhead, profit, financing,
delay and disruption arising out of, or relating to, the issues set forth herein. TSP
acknowledges that it shall not be entitled to assert any Claim for relief under the Contract
for delay, disruption costs or any other adverse financial or Project Schedule impacts
existing as of the effective date of this Change Order and arising out of, or relating to, the
event, occurrence or matter giving rise to this Change Order or such extra Work.
4. If the foregoing Change Order includes claims of Subcontractors or Suppliers, TSP
represents that authorized representatives of each Subcontractor and Supplier, if any,
reviewed such claims, this Change Order and accept this Change Order as dispositive
on the same, subject to separate Contract between TSP and each such Subcontractor
and Supplier, as applicable. Furthermore, TSP has determined in good faith that such
claims are justified as to both entitlement and amount.
5. The cost and pricing data forming the basis for the Change Order is complete, accurate
and current, with specific reference to the California False Claims Act (Government Code
section 12650 et. seq.) and the U.S. False Claims Act (31 USC § 3729 et seq.)
6. It is understood and agreed that this Change Order shall not alter or change, in any
way, the force and effect of the Contract, including any previous amendment(s) thereto,
except insofar as the same is expressly altered and amended by this Change Order.
7. This Change Order supersedes all prior commitments, negotiations, correspondence,
conversations, Contracts or understanding applicable to the issues addressed herein. No
deviation from the terms hereof shall be predicated upon any prior representations or
338
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
19
Sensitive
Contracts, whether oral or written, other than the Contract, as amended in accordance
with its terms.
339
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
20
Sensitive
8. This Change Order is binding upon, and shall insure to the benefit of, each of the
parties and their respective heirs, personal representatives, successors and assigns.
IN WITNESS, WHEREOF, TSP, intending to be legally bound, has executed this
Change Order as of the date below.
TSP:
Kapsch TrafficCom USA, Inc.
Date: ___________________
By:
Name: Ray Cooper
Title: Vice President & General Manager /
Western Region Delivery & Operations
The undersigned Guarantor hereby (i) acknowledges and consents to this Change
Order No. 8B; (ii) reaffirms that certain Guaranty dated as of 25 August, 2020 (the
“Guaranty”), executed by the undersigned; and (iii) agrees that the Guaranty remains in
full force and effect and binding upon the undersigned as of the date hereof.
TSP:
Kapsch TrafficCom AG
Date: ___________________
By: _____________________________
Name: JB Kendrick
Title: President
340
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
21
Sensitive
SECTION VI - (Reviewed and recommended by RCTC)
By:_____________________________________________
Name: David Thomas
Title: Toll Project Delivery Director
Date: ___________________
Comments:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
341
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
22
Sensitive
SECTION VII - (Agreed by RCTC’s Authorized Representative)
IN WITNESS WHEREOF, RCTC, intending to be legally bound, has executed this
Change Order as of the date first written above.
Date: ___________________
(the effective date of this Change Order)
RCTC
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By: ____________________________
Name: Anne Mayer
Title: Executive Director
342
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
23
Sensitive
ATTACHMENT 1A
ELC SUBPROJECT D&D PRICE SHEET
# Item Description Unit Qty Unit Price Total
1 Labor –
Kapsch
Development of
System Design,
Documentation,
Installation, and
Testing for
components of
the ELC
Subproject
under this
Change Order
#8B
Lot 1 $2,807,061.14 $2,807,071,14
2 Subcontracts Support of
Installation,
Gantry
Analysis and
Modification
Design,
Maintenance of
Traffic for
components of
the ELC
Subproject
under this
Change Order
#8B
Lot 1 $1,149,731.55 $1,149,731.55
3 ODCs Supporting
Costs –
Vehicles,
Bonding, Lane
Closure Fees
for components
of the ELC
Subproject
under this
Change Order
#8B
Lot 1 $177,334.00 $177,334.00
Total System Cost $4,134,126.69
4 Materials and
Equipment
Materials and
System
Equipment for
Lot 1 $1,919,955.17 $1,919,955.17
343
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
24
Sensitive
Installation of
TCS
Total Materials Cost $1,919,955.17
Total D&D Costs $6,054,081.86
344
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
25
Sensitive
ATTACHMENT 1B
ELC SUBPROJECT D&D MILESTONE PAYMENTS
Milestone Description Percentage Amount
1 ELC-NTP – Mobilization Payment 10% $413,412.67
2 Design Documents Approved 7% $289,388.87
3 Installation Drawings Approved 7% $289,388.87
4 Installation Plan Approved 7% $289,388.87
5 Approved Test Plans 10% $413,412.67
6 Site Acceptance Testing Complete 10% $413,412.67
7 Operations Testing Complete 10% $413,412.67
8 ELC Subproject Revenue Service Commencement 15% $620,119.00
9 ELC Subproject As-Built Technical Drawings 12% $496,095.20
10 ELC Subproject TCS Acceptance 12% $496,095.20
$4,134,126.69
345
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
26
Sensitive
ATTACHMENT 1C
ELC SUBPROJECT D&D PRICE SHEET – OPTION #1
# Item Description Unit Qty Unit Price Total
1 Labor –
Kapsch
Development of
System Design,
Documentation,
Installation, and
Testing for
components of
the ELC
Subproject
under this
Change Order
#8B
Lot 1 $78.263.96 $78,263.96
2 Subcontracts Support of
Installation,
Gantry Analysis
and
Modification
Design,
Maintenance of
Traffic for
components of
the ELC
Subproject
under this
Change Order
#8B
Lot 1 $0 $0
3 ODCs Supporting
Costs –
Vehicles,
Bonding, Lane
Closure Fees
for components
of the ELC
Subproject
under this
Change Order
#8B
Lot 1 $1,405.00 $1,405.00
Total System Cost $79,668.96
4 Materials
and
Equipment –
Materials and
System
Equipment for
Lot 1 $69,367.14 $69,367.14
346
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
27
Sensitive
South
Gantry
Installation of
TCS
Total Materials Cost $69,367.14
Total D&D Costs $149,668.10
347
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
28
Sensitive
ATTACHMENT 2
ADDITIONAL AND REVISED TECHNICAL PROVISIONS
CHANGE #2 – The following provision is added as new Subsection 2.6.2.1
(and the subsections that follow are renumbered accordingly):
“2.6.2.1 Project Schedule Requirements - ELC
Added: The TSP shall maintain a separate Project Schedule for the ELC Subproject. The
Project Schedule shall include key milestones and interdependencies for the ELC Subproject.”
CHANGE #9 – The following provision is added as a new third paragraph to
Section 4.6.2 (Installation Drawings):
“The TSP shall prepare installation drawings for the ELC Subproject for review and approval
prior to any installation work being performed for the ELC Subproject.”
CHANGE #10 – The following provision is added as a new paragraph at the
end of Subsection 5.1 (General):
“The TSP shall test the ELC Subproject per Table 4.
ELC Subproject
ETC FAT N/A
ETC OFIT N/A
ELC Subproject ETC Site
Commission
For each installation site
CSC FAT N/A
CSC Installation N/A
CSC System Commissioning Test N/A
TCS Disaster Recovery and Back-
Up Test
N/A
ELC Subproject TCS Operations
Test
For the ELC Subproject
ELC Subproject TCS Acceptance
Test
For the ELC Subproject
Annual Renewal As part of ELP
Table 4 ELC Subproject Testing Overview”
348
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
29
Sensitive
ATTACHMENT 3-A
FORM OF ELC SUBPROJECT PERFORMANCE BOND RIDER
To be attached to and form a part of
Bond No.:
Type of
Bond:
Performance Bond
dated
effective
(Month – Day – Year)
[Principal]
and by , as Surety,
in favor of Riverside County Transportation Commission
In consideration of the mutual agreements herein contained Principal and the Surety hereby
consent to the following:
The amount of the Payment Bond is hereby increased by the amount of $6,203,749.96.
Nothing herein contained shall vary, alter or extend any provision or condition of this bond
except as herein expressly stated.
349
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
30
Sensitive
This rider is
effective
(Month – Day – Year)
Signed and
Sealed
(Month – Day – Year)
By:
(Principal)
(Surety)
By:
Attorney-in- Fact
350
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
31
Sensitive
ATTACHMENT 3-B
FORM OF ELC SUBPROJECT PAYMENT BOND RIDER
To be attached to and form a part of
Bond No.:
Type of
Bond:
Payment Bond
dated
effective
(Month – Day – Year)
[Principal]
and by , as Surety,
in favor of Riverside County Transportation Commission
In consideration of the mutual agreements herein contained Principal and the Surety hereby
consent to the following:
The amount of the Payment Bond is hereby increased by the amount of $6,203,749.96.
Nothing herein contained shall vary, alter or extend any provision or condition of this bond
except as herein expressly stated.
351
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
32
Sensitive
This rider is
effective
(Month – Day – Year)
Signed and
Sealed
(Month – Day – Year)
By:
(Principal)
(Surety)
By:
Attorney-in- Fact
352
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
33
Sensitive
ATTACHMENT 4
SR-91 AND ELC ROW
353
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
34
Sensitive
ATTACHMENT 5
ELC SUBPROJECT REFERENCE DOCUMENTS
1) SR-91 Express Lanes As-Built Drawings
2) RFC Plans (Roadway and Electrical) for the ELC Project provided by MRJV/TYLI
3) RFC Plans for Overhead Signs and Structures for the ELC Project provided by
MRJV/TYLI
354
Riverside County Transportation Commission
I-15 Express Lanes Project – Toll Services
35
Sensitive
ATTACHMENT 6
OPTION 1 – ADDITIONAL TTMS/MVD LOCATIONS FOR I-15
The potential locations, in priority order:
1. Station 2147 (which is south of the 91).
2. Station 2270
3. Station 2326
See purple/blue arrows below.
355
Presented by: Sri Srirajan, Senior Capital Projects Manager
1
Change Order to
Toll Service Provider Agreement
15/91 ELC Project
Project Overview
2
•Tolled express lane connectors:
o EB91 Express Lanes to NB15 Express
Lanes
o SB15 Express Lanes to WB91 Express
Lanes
•Operational improvements along EB91
extending Express Lane and GP lane
approximately 0.5 mile
•Anticipated to be completed in 2023
Toll System Provider
3
•Kapsch –current I-15 ELP toll system provider and operator
•Contract expires in April of 2026
•Having the same toll system provider for 15/91 ELC project
provides:
1)Continuity in operations
2)Seamless customer experience
Additional Scope of Work
4
•Two toll points are needed
•Kapsch will be required to provide:
1)Toll Equipment in each direction of the
15/91 ELC
2)Toll Equipment at the westbound McKinley
entrance to the 91 Express Lanes
3)Toll Equipment at the eastbound McKinley
exit from the 91 Express Lanes
4)7 Traffic detection sensors
5)7 Closed-circuit television cameras
Future Additional Scope of Work
5
•Change order does not include
1)Trip build and destinations
2)Operation and Maintenance of new equipment
3) Processing images for the new cameras
4) Customer service
•Future change order to address additional scope and cost
Committee Action
6
•Approve Change Order No. 8B with Kapsch to provide the Tolling
System for the 15/91 ELC in the amount of $6,203,750, plus a
contingency amount of $620,000, for a total amount not to exceed
$6,823,750;
•Authorize the Chair or Executive Director, pursuant to legal counsel
review, to execute the change order on behalf of the Commission;
•Authorize the Executive Director or designee to approve contingency
work up to the total amount not to exceed as required for the project;
and
•Forward to the Commission for final action.
Thank you
Questions?
7
AGENDA ITEM 11
PRESENTATION
INTERSTATE 15 INTERIM COP UPDATE
Riverside County
Transportation Commission
January 24, 2022
Stephanie Blanco, Capital Projects Manager
1
2
Proposed Improvements
Proposed Lane15 ICOP
3
No-Build Alternative
Opening Year (2022) PM Peak Period Speed Contour Plots
Build Alternative
Traffic Operations Benefits
Source: Fehr and Peers
Current Schedule -Status
4
Activity Dates
Commission Approval to Start Project September 2021
Complete Project Approval/Environmental Document February 2022
Complete Final Design February 2022
Construction Procurement (3 week bid period)January 18, 2022
Award Construction Contract March 9, 2022
Construction March –September 2022
Open to Traffic September 2022
Project Charter with Caltrans has resulted in expedited reviews and approvals
Construction advertisement released with 95% Final Design Plans
Current phase: Planning and Final Design
5
•Planning
•Design Engineering Evaluation Report
•Categorical Exclusion/Categorical Exemption
•Final Design
•95-1%PS&E submitted to Caltrans in December
•95-2%PS&E submitted to Caltrans in January (used for bid)
•100%PS&E will be submitted soon to Caltrans for review and approval
in February(will be used for award)
Next phase: Construction
6
•Engineer’s Estimate $2.7 Million
•Targeting beginning construction: early May
•105 working days
•2 stages –inside work,outside work
•Work during the day behind K-rail and at night with lane
closures
•Overhead exit signs may be installed after lanes are open
Contractor incentive
7
•Potential for lane to be open by mid-July
•Maximum bonus is about 9%
Milestone Completion Milestone
Date
$/Working
Day Early
Maximum
Working Days
Early
Maximum
Bonus
All southbound GP lanes and new
southbound auxiliary lane open to
traffic and interim exit signage in
place
August 16,
2022 $12,500 20 $250,000
Funding
8
•In September 2021, Commission approved the project estimated
at $5 Million using Measure A sales tax revenue bond proceeds
•Parsons
–Planning, Final Design, and Construction Management
–Total Contract = $1.20 Million
•Construction contract
–Engineers estimate = $2.95 Million (includes 10% incentive)
–15% Contingency = $0.40 Million
Next Steps
9
•Complete project development and final design approvals
•Close out bid process
–Bid closes on Feb 8
–Bid evaluation process
•March Commission for approval of construction contract
QUESTIONS & FEEDBACK
10
AGENDA ITEM 12
Agenda Item 12
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: January 24, 2022
TO: Western Riverside County Programs and Projects Committee
FROM: Lisa Mobley, Administrative Services Manager/Clerk of the Board
THROUGH: John Standiford, Deputy Executive Director
SUBJECT: Election of Officers for the Western Riverside County Programs and Projects
Committee
STAFF RECOMMENDATION:
This item is for the Western Riverside County Programs and Projects Committee to conduct an
election of officers for 2022 – Chair and Vice Chair.
BACKGROUND INFORMATION:
The election of officers for the full Commission and its Committees are held on an annual basis.
Commissioners Clint Lorimore (Chair) and Ben J. Benoit (Vice Chair) were elected as the Western
Riverside County Programs and Projects Committee’s officers for 2021. Once the election for
2022 is conducted, the new Chair and Vice Chair will immediately assume the positions.
Past Chairs of the Western Riverside County Programs and Projects Committee are as follows:
2021 – Clint Lorimore
2020 – Michael Vargas, City of Perris
2019 – Brian Berkson, City of Jurupa Valley
2018 – Adam Rush, City of Eastvale
2017 – Deborah Franklin, City of Banning
2016 – Ben Benoit, City of Wildomar
2015 – Ben Benoit, City of Wildomar
2014 – Frank Johnston, City of Jurupa Valley
2013 – Andrew Kotyuk, City of San Jacinto
2012 – Adam Rush, City of Eastvale
2011 – Darcy Kuenzi, City of Menifee
2010 – Karen Spiegel, City of Corona
356
TO: Riverside County Transportation Commission
FROM: Lisa Mobley, Clerk of the Board
DATE: January 18, 2022
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 Review Services
Consultant(s): Hawran & Malm, LLC
Sydney H. Hawran, Managing Member
2618 San Miguel Drive, Suite 1601
Newport Beach, CA 92660
Integra Realty Resources – Los Angeles
Beth B. Finestone, Managing Director
16030 Ventura Boulevard, Suite 620
Encino, CA 91436-4473
R.P. Laurain & Associates, Inc.
John P. Laurain, President
3353 Linden Avenue, Suite 200
Long Beach, CA 90807
RCTC Potential Conflicts of Interest
January 18, 2022
Page 2
Santolucito Dore Group, Inc.
Christine S. Santolucito, President
31600 Railroad Canyon Road, Suite 100-L
Canyon Lake, CA 92587
Agenda Item No. 9 - Agreement for Station Electrical Services
Consultant(s): Elite Electric, Inc.
Carl Dawson, President
9415 Bellgrave Avenue
Riverside, CA 92509
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS
COMMITTEE
ROLL CALL
JANUARY 24, 2022
Present Absent
County of Riverside, District I X
County of Riverside, District II 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 Norco X
City of Perris X
City of Wildomar X