HomeMy Public PortalAbout05 May 23, 2022 Western Riverside County Programs and ProjectsTime:
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RIVERSIDE
COUNTY
TRANSPORTATION
COMMISSION
MEETING AGENDA
Western Riverside County Programs and Projects Committee
1:30 p.m.
May 23, 2022
BOARD ROOM
County of Riverside Administration Center
4080 Lemon St, First Floor, Riverside CA 92501
COMMITTEE MEMBERS
Ben J. Benoit, Chair/Joseph Morabito, City of Wildomar
Brian Berkson, Vice Chair/Guillermo Silva, City ofJurupa Valley
Wes Speake/Jim Steiner, City of Corona
Clint Lorimore/Todd Rigby, City of Eastvale
Linda Krupa/Malcolm Lilienthal, City of Hemet
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.
Comments are welcomed by the Commission. If you wish to provide comments to the Commission,
please complete and submit a Speaker Card to the Clerk of the Board.
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE
www.rctc.orq
AGENDA *
*Actions may be taken on any item listed on the agenda
1:30 p.m.
Monday, May 23, 2022
BOARD ROOM
County Administrative Center
4080 Lemon Street, First Floor
Riverside, California
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.orq.
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
4. PUBLIC COMMENTS — Each individual speaker is limited to speak three (3) continuous minutes
or less. The Committee may, either at the direction of the Chair or by majority vote of the
Committee, waive this three minute time limitation. Depending on the number of items on the
Agenda and the number of speakers, the Chair may, at his/her discretion, reduce the time of
each speaker to two (2) continuous minutes. Also, the Committee may terminate public
comments if such comments become repetitious. In addition, the maximum time for public
comment for any individual item or topic is thirty (30) minutes. Speakers may not yield their
time to others without the consent of the Chair. Any written documents to be distributed or
presented to the Committee shall be submitted to the Clerk of the Board. This policy applies
to Public Comments and comments on Agenda Items.
Western Riverside County Programs and Projects Committee
May 23, 2022
Page 2
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.
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 — APRIL 25, 2022
Page 1
7. AGREEMENT FOR PREPARATION OF THE PROJECT APPROVAL AND ENVIRONMENTAL
DOCUMENT FOR THE INTERSTATE-10/HIGHLAND SPRINGS AVENUE INTERCHANGE
IMPROVEMENTS
Page 13
Overview
This item is for the Committee to:
1) Award Agreement No. 22-72-011-00 to Mark Thomas & Company, Inc. to provide
Preparation of Project Approval/Environmental Documents (PA/ED) for the I-
10/Highland Springs Avenue Interchange Improvements in the cities of Banning and
Beaumont (Project) for a twenty -four -month term in the amount of $2,199,634, plus
a contingency amount of $219,963, for a total amount not to exceed $2,419,597,
contingent upon final TUMF funding approval by Western Riverside Council of
Governments (WRCOG) Executive Committee;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize
and execute Agreement No. 22-72-011-00, on behalf of the Commission;
3) Authorize the Executive Director, or designee, to approve contingency work up to the
total not to exceed amount as required for these services;
4) Approve Agreement No. 22-72-091-00 with WRCOG for additional Transportation
Uniform Mitigation Fee (TUMF) Zone funding for the Project in the amount of
$1,000,000;
5) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize
and execute Agreement No. 22-72-091-00, on behalf of the Commission;
6) Authorize the Executive Director, pursuant to legal counsel review, to execute any
future non -funding related amendments to the agreements; and
7) Forward to the Commission for final action.
Western Riverside County Programs and Projects Committee
May 23, 2022
Page 3
8. AGREEMENTS FOR ON -CALL GEOTECHNICAL INVESTIGATION — LABORATORY AND FIELD
TESTING OF MATERIALS
Overview
This item is for the Committee to:
Page 94
1) Award the following agreements to provide On -Call Geotechnical Investigation —
Laboratory and Field Testing of Materials for a three-year term, and two one-year
options to extend the agreements, in an amount not to exceed an aggregate value of
$500,000;
a) Agreement No. 22-31-051-00 to Group Delta Consultants, Inc. (Group Delta);
b) Agreement No. 22-31-086-00 to Kleinfelder, Inc.;
c) Agreement No. 22-31-087-00 to Ninyo & Moore Geotechnical and
Environmental Sciences Consultants (Ninyo & Moore);
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreements, including option years, on behalf of the Commission;
3) Authorize the Executive Director, or designee, to execute task orders under the terms
of the agreements; and
4) Forward to the Commission for final action.
9. AGREEMENTS FOR ON -CALL RIGHT OF WAY SUPPORT SERVICES
Overview
This item is for the Committee to:
Page 253
1) Award the following agreements to provide on -call right of way support services for a
three-year term in an amount not to exceed an aggregate value of $3.3 million:
a) Agreement No. 22-31-040-00 to Epic Land Solutions;
b) Agreement No. 22-31-080-00 to Monument ROW, Inc.;
c) Agreement No. 22-31-081-00 to Overland, Pacific, & Cutler;
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.
Western Riverside County Programs and Projects Committee
May 23, 2022
Page 4
10. AGREEMENT FOR FREEWAY SERVICE PATROL TOW TRUCK SERVICE
Overview
This item is for the Committee to:
Page 451
1) Award Agreement No. 22-45-073-00 to Royal Coaches Auto Body and Towing, LLC for
Freeway Service Patrol (FSP) tow truck services on State Route 91, Beat Nos. 1 and 2,
for a five-year term, in the amount of $3,824,793, plus a contingency amount of
$191,240, for a total amount not to exceed $4,016,033;
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 approve the use of the contingency
amount as may be required for these services; and
4) Forward to the Commission for final action.
11. FUNDING AGREEMENT WITH THE CALIFORNIA HIGHWAY PATROL FOR FREEWAY SERVICE
PATROL SUPERVISION
Page 498
Overview
This item is for the Committee to:
1) Approve Agreement No. 22-45-079-00 with the California Highway Patrol (CHP) to
provide supervision and operation of the Freeway Service Patrol (FSP) program in
Riverside County for a three-year term in an amount not to exceed $2,167,546;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreement on behalf of the Commission; and
3) Forward to the Commission for final action.
12. EXECUTIVE DIRECTOR REPORT
13. COMMISSIONER COMMENTS
Overview
This item provides the opportunity for brief announcements or comments on items or matters
of general interest.
14. ADJOURNMENT
The next Western Riverside County Programs and Projects Committee meeting is scheduled
to be held at 1:30 p.m., Monday, June 27, 2022.
AGENDA ITEM 6A
MINUTES
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE
Monday, April 25, 2022
MINUTES
1. CALL TO ORDER
The meeting of the Western Riverside County Programs and Projects Committee was
called to order by Chair Ben J. Benoit at 1:30 p.m. via Zoom Meeting ID: 865 1211 5068.
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
Karen Spiegel
Michael Vargas
Bill Zimmerman
3. PLEDGE OF ALLEGIANCE
Commissioner Karen Spiegel 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.
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M/S/C (Lorimore/Speake) to approve the minutes as submitted.
6. APPROVAL OF MINUTES — MARCH 28, 2022
7. 91 EASTBOUND CORRIDOR OPERATIONS PROJECT
David Thomas, Toll Project Delivery Director, presented the 91 Eastbound Corridor
Operations Project (91 ECOP) project approval and environment document (PA/ED),
highlighting the following:
• Background/project location map
• Project limits/description
• Preliminary Traffic Analysis: Heat Map
• A map of the 1-15 Express Lanes — Southern Extension (1-15 ELPSE)
• Summary
✓ Component of 91 CIP Ultimate Project
✓ Measure A Project - not in 10 -Year Delivery Plan
✓ New Alternatives (Est. $49-$154 million)
✓ Environmental Revalidation (Estimate $5 million, 2-3 years)
✓ Target 2030 Opening (after 1-15 ELPSE)
✓ Caltrans District 8 Support
Commissioner Wes Speake expressed appreciation to David Thomas for his presentation
and requested to have the heat map displayed. He asked David Thomas to describe these
two basically the ELC egress versus the gap closure and noted the gap closure is what is
being discussed. David Thomas replied correct.
Commissioner Speake clarified that they are basically going to push the congestion from
Gypsum Canyon to Green River. David Thomas replied correct, they are essentially by
adding a lane at the County Line they are opening up capacity at the bottleneck that exists
there today, and more traffic will move into Riverside County faster because of that
additional capacity at the County Line.
Commissioner Speake asked about the 3:00 p.m. — 4:00 p.m. they are seeing a
degradation of about six miles per hour (MPH) average, that is the worst difference, from
30 MPH to 8 MPH is the worst at the State Route 71. He expressed concern for this driving
additional cars onto Green River and then turning on Foothill Parkway. There is enough
of a change there that he sees the benefit of it with the overall red difference in the before
build and getting people into the area. Commissioner Speake asked David Thomas to
describe what the differences are in the alternatives.
David Thomas replied there are four design variations that the alternative analysis is
recommending moving forward with. The initial project in 2012 identified full standard
alternative that shifted the centerline of the 91 to the north, much bigger impacts then
what is currently being proposed. He explained with the form design variations they all
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keep the centerline where it is and proposed widening to the south with different levels
of design exemptions to try to minimize the widening and the impact. The biggest
footprint and the highest cost alternative include mostly standard cross section as well as
adding a second lane to the Green River Road eastbound off ramp as part of it.
Commissioner Speake stated being aware that the Green River off ramp has been done
several times, but there is room there and it would be nice to be able to use it but
unfortunately it will shove people off. He concurred that the downstream stuff needs to
be handled before hand especially on 1-15 where they are shoving more cars down there
and people are getting that idea that if they get off the freeway they will be traversing
through and being caught in a plug that they have at Green River until they can continue
with the 1-15 southbound improvements. Commissioner Speake expressed concern that
they are not going to be working on anything east of 1-15 other than what they have
programmed and is aware that is something that has been pushed off for a while. He
expressed those red numbers at the very end do not change at all on the heat map
because they are just shoving cars and he sees everything being moved down although it
is an improvement. He asked when this goes forward that they analyze the impacts on
local streets as he does not want to stop this because it is something that is needed. The
eastbound sixth lane is something that has been part of this program since the beginning,
but he would like to discuss that issue about what the impacts would be on Green River
and Foothill.
Anne Mayer stated this falls under the category of fine tuning, this is a segment of the
original 91 Project that was intended to be built, it is part of the ED. As they start bringing
forward these final pieces of the project, they are on the outskirts of the original 91
Project and as Commissioner Speake mentioned there is still an issue with congestion in
the eastbound direction on SR -91 going from Corona into the city of Riverside. She
explained they did look at what the impact would be in the eastbound direction if they
extended the widening project to its original easterly limit, which is Pierce Street, and it
really did not make much of a difference. Anne Mayer stated in order to clear that
bottleneck in the eastbound direction it would take extensive improvements well into the
city of Riverside beyond Pierce, in order to start making a dent in the eastbound direction
beyond McKinley. These are where the tradeoffs start coming, in that many people
driving this corridor are driving from Orange County so the overall time savings people
are going to experience it will be there, but then there is the challenge of what will people
do to avoid any congestion in Riverside County. She noted but will they get off at Green
River, which was mentioned and start cutting through the city again. She stated that they
are at a point and are recommending going to the next step and perform an PA/ED, but
again this project cannot move forward until and unless 1-15 Southern Extension is open
to traffic. This is just the initial step to see where they can go with this project, but they
are fine tuning around the edges here and every year traffic volumes continue to grow.
Anne Mayer stated she believes that they have rebuilt Green River interchange itself
three or four times now and widen the ramps about as many times so this would be
another addition at Green River.
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Commissioner Brian Berkson stated that he is looking at this kind of the same way he
looked at the additional lane between Serfas Club and SR -241. This is a major pinch point
on the eastbound every single Monday — Friday and every time there seems to be a fire
on SR -241 and they have to shut down that toll lane for a while he looks forward to those
days because when he comes home without that pinch point the traffic moves smoothly
all the way from SR -55 to 1-15. He anticipated because of all the merging off SR -241 from
two lanes to one, and then the people wanting to get on the RCTC toll lanes system and
all the crisscrossing that eventually when all the projects they have on the boards are
complete including this one, they will actually have a really smooth operating line
between Orange County and Riverside County and he is looking forward to this.
M/S/C (Speake/Berkson) to:
1) Authorize staff to proceed with the Project Approval and Environmental
Document (PA/ED) phase for the 91 Eastbound Corridor Operations
Project; and
2) Forward to the Commission for final action.
8. SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY AMENDMENT FOR BI -
COUNTY RIDESHARE PROGRAM SERVICES AND COMMUTER ASSISTANCE UPDATE
Brian Cunanan, Commuter and Motorist Assistance Manager, presented the San
Bernardino County Transportation Authority (SBCTA) amendment for the Bi-County
Rideshare Program Services and Commuter Assistance update, highlighting the following
areas:
• Commuter Based Congestion Reduction
✓ Western Riverside County Measure A - 1989, 2009 Commuter Assistance
Program
✓ Congestion reduction and more efficient use of
transit network and infrastructure investments
✓ Improved quality of life for commuter constituents
• Bi-County partnership since 1993 — A map that shows significant intercounty
commuting between Riverside and San Bernardino Counties
• Employer and Commuter Services provided by IE Commuter
✓ Employer/ Commuter Outreach & Engagement
✓ Employer Services
✓ Ridematching & Information Services
✓ Rideshare Incentives
✓ Guaranteed Ride Home
✓ Vanpool Subsidy Program
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M/S/C (Jeffries/Lorimore) to:
1) Approve Agreement No. 20-41-090-02, Amendment No. 2 to Agreement
No. 20-41-090-00 with the San Bernardino County Transportation
Authority (SBCTA) for a two-year term to reimburse the Commission for
an additional amount of $2.4 million, and a total amount not to exceed
of $4,800,000, for commuter/employer rideshare (IE Commuter)
programs and vanpool program support administered by the
Commission, on behalf of both agencies;
2) Authorize the Chair or Executive Director, pursuant to legal counsel
review, to execute the agreement on behalf of the Commission; and
3) Forward to the Commission for final action.
9. MID COUNTY PARKWAY PROJECT STATUS AND REPROGRAMMING OF FUNDS
Anne Mayer, Executive Director, explained this item is related to the Mid County Parkway
(MCP) Construction Package No. 2. For the past couple of months they have had extensive
discussions regarding this project, its scope, and concerns the City of Perris (Perris) has
raised. She thanked Clara Miramontes, Perris City Manager, and former City Engineer
Habib Motlagh, for their facilitation of all the conversations they have had over the past
couple of months, she noted they are joining this meeting as well. She explained in the
conversations with the members of Perris City Council the concerns remained consistent
related to truck traffic, truck routing, the impact of trucks from adjacent industrial
developments, and what the possibilities were related to RCTC's project being able to
mitigate the impacts of the truck traffic. She referred to the Perris letter dated April 18,
2022, that she received and was included as an attachment to the agenda about their
current requests, which she discussed with the committee. They are looking at what
other interim options they may have for continuing progress of the MCP as it was
mentioned before with their environmental document approvals, they basically need to
start a new construction package every five years or less in terms of maintaining their
environmental approvals and maintaining progress on the corridor, as it is a much -needed
corridor for east -west traffic. Around the same time there were the news reports related
to significant accidents occurring in the county unincorporated area of Ramona
Expressway east of Perris. She received an email, which was included as an attachment
to the agenda along with some traffic diagrams from Juan Perez, County of Riverside,
asking RCTC to work in partnership with the County to implement possibly an interim
section of the MCP along that stretch as well. She then presented the MCP Project status
and reprogramming of funds, highlighting the following:
• MCP area map
• County of Riverside Fatal/Severe Injury Collision Pin Maps of Ramona Expressway
Segments 1 and 2
Anne Mayer discussed staff's recommendation with the Committee and noted with that
overall summary she would be happy to answer any questions. She stated a lot of hard
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work has gone into the MCP for almost 20 years and they have had an environmental
document in place for several years as well and it is important to maintain progress with
the environmental approvals they have. Staff is recommending they defer the section in
Perris until a later time at this point in time it is in the Commission's best interests
financially, from a MCP standpoint, and most important of all there are significant safety
concerns to the east along Ramona Expressway and that should be the number one
priority to make sure they are addressing safety concerns as a main focus.
Commissioner Jeff Hewitt stated on April 15, 2022, he met Juan Perez down there and he
brought two other members including Mark Lancaster, Director of Transportation, County
of Riverside Transportation Department, and they went those seven miles and spent quite
a bit of time down there. He explained Juan Perez brought those charts along, it is one of
the most dangerous stretches in the County they are looking at, and again they are
listening to engineers, but they can do some fairly short-term immediate mitigations
towards some safety. As they go on and do some widening any things that are done there
are not temporary, they fit in with the long-term plans for the MCP and suggested this is
something that not only keeps it for the areas of Nuevo, Lake View, and all along going
into San Jacinto, but all those people that travel right now from the San Jacinto Valley
going east. It is very important and he whole heartedly supports this at this time.
Commissioner Linda Krupa concurred with Commissioner Hewitt as ultimately this is
stopping the project and redefining it is a big disappointment. She stated going with the
safety of the traffic along Ramona Expressway is paramount as they have lost numerous
people along that stretch of road. Ultimately with that build out as Commissioner Hewitt
noted it would be a permanent fix along that stretch of the road and not temporary fixes,
but they do need to look ability to have truck traffic out of the San Jacinto Valley going
and connecting to 1-215 and she suggested to keep that in mind while they solve the traffic
and safety issues in that stretch of road.
Commissioner Karen Spiegel stated it still goes along with what she shared at the last
Committee meeting, which is that she is very disappointed that after 20 years and this
project was moving forward and there was never a comment made until recently. There
are other cities that have had projects and they move forward and expressed they cannot
because council changes and there are suddenly new people and take a regional project
and shift the whole direction of it. The benefits of interchanges such as the Placentia
Interchange they will have the benefit of having that upgraded and not having to pay for
it, so it is no longer a regional project if it is not working with the entire MCP so now they
have just given Perris an interchange. Commissioner Spiegel stated there are so many
other projects within Riverside County that a project of that size $70 million could have
gone to another entity, but this has been on the books, and it has been in the CETAP for
years. They know that this has been a very necessary project and it is very disappointing
and suggested that the Commission is setting precedence and it is another thing they have
to be very careful with is they have allowed a city to highjack as there is Measure A and
the sales tax that was very specific in that and there are several things to where they have
promised the voters of Riverside County not just those in Perris. Commissioner Spiegel
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expressed understanding especially with what the city of Corona has gone through and
never once did they say stop the project, they just said work with them to get it better.
Then the number of demands that Perris has made to let them do a project that has been
in the works for so long is very frustrating.
Commissioner Brian Berkson concurred with Commissioner Spiegel's comments as he was
a little frustrated last month when it was discussed and stated he was hopeful this time
around that they might get better results, but it seems that will not be the case. He asked
between the purple and the red on the MCP map that was displayed if they were to move
forward with this County segment to make any kind of improvements and if they can
never come to an agreement to continue that onto the red section ever, then where does
the purple section go to as it stops at Perris' boundaries. Is there an alternative backup
to go some other way also the money that is geared toward the MCP that has already
been budgeted and spent as he is unaware what the earmarks are for that money if it is
for a specific type of improvement. If they were to approve the alternative that is being
discussed today are those funds still allowed to be used for this kind of improvement
because it appears to be more of a road improvement instead of an expressway to get
people from SR -79 over to 1-215. Those are the two big questions, and his third question
is that he expressed why a city would require RCTC to purchase 12 houses for a buffer
and he was not sure what the purpose of that buffer would be because retaining walls or
k -rails, there are many other things that do not require an entire house to be torn down
to give a buffer.
Anne Mayer replied typically on a project like this they would do noise studies and install
a sound wall between the roadway and any homes, which is what they have done typically
anywhere one of their projects impacts a residential area. Perris is interested in having
more of a buffer between the roadway and these 12 homes, they asked that these homes
be removed and is also adjacent to Paragon Park so it would be continuous to the park as
well, which is her understanding of the request. She explained with respect to the
funding, they had planned for this initial phase of the Construction Package No. 2 to invest
about $57 million - $58 million. In fact, they already have $36 million programmed for
right of way (ROW) acquisition to start acquiring parcels for this interim section in Perris
and they have another $14 million or $15 million that was anticipated to be allocated for
the design work and environmental work and there was another section of local
programming dollars. She stated there was $57 million - $58 million that was already
either allocated or soon to be allocated for a package in Perris and they will need to
deprogram the funds that were programmed and create new allocation packages to
allocate the funding. They will need to go through a programming exercise to move the
money from the segment in Perris to the segment along Ramona Expressway in the
County. They first need to scope a new project and come up with new cost estimates,
but they will have to go through a programming exercise to pivot. Anne Mayer noted
back to Commissioner Berkson's initial question, Ramona Expressway is a continuous
corridor in the County as it sweeps south of Lake Perris and then starts heading in a
north/westerly direction so this will be a usable segment whether or not they continue in
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through the city of Perris, but the intent is to eventually continue westerly into the city of
Perris.
Commissioner Kevin Jeffries stated that he supports Perris protecting what it perceives to
be the rights and needs of its residents first and foremost with the caveat of the bigger
picture issue. He asked if this project could move forward without Perris being onboard.
Anne Mayer replied they have an environmental document that has already been
approved and certified that would allow them to proceed so on one hand the answer is
yes, they could keep going. However, in order to build some signals in their ROW, because
they would need to connect to city streets, they would need permits from Perris.
Commissioner Jeffries stated so that would be the challenge of moving forward without
a partner.
Anne Mayer replied yes and without any certainty that they could continue to spend
millions of dollars on a project that is controversial in the city that would be dependent
on the execution of cooperative agreements and issuance of permits.
In response to Commissioner Jeffries' question about the total amount that has been
spent to date, Anne Mayer replied the total to date on the MCP about $150 million.
In response to Commissioner Jeffries' clarification by adjusting they can salvage some of
that for continued public benefit, Anne Mayer replied yes they can.
Commissioner Jeffries stated as an obligation he has to his constituents, when the route
is reconfigured back to Ramona Expressway, which has horrendous accidents they are
going to get from SR -79 to 1-215 and they are going to drive up to 1-215 and see the
freeway at a dead stop and they will in some cases go over the freeway and head to SR -
91 or 1-15 onto Cajalco Road, which is a two-lane road. He explained if he had asked Juan
Perez to provide the maps, he could have showed the Committee the maps of the number
of fatalities and accidents on Cajalco Road, which is equal or are greater than Ramona
Expressway. He expressed that problem was going to continue no matter what route the
MCP was going to go, and it has to be addressed. Now it will need to be addressed even
sooner because if they are not sending them to the new Placentia Interchange, they are
going to come straight to Cajalco Road, and it has to be resolved going forward.
Commissioner Jeffries expressed concern on his behalf, for the of residents of Mead
Valley, and on behalf of the Second District for who is about to inherit all the Lake
Matthews/La Sierra area. He explained he respects the city of Perris making sure it
protects the interests of the residents impacted by this but there is a greater good here
to try to figure out what they are going to do because throwing away $150 million is not
an acceptable alternative especially given the number of fatalities and injuries occurring
on their existing roads today. He stated he does support the current proposal.
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RCTC WRC Programs and Projects Committee Minutes
April 25, 2022
Page 9
Anne Mayer clarified just a reminder for the Committee Members as well and it was
mentioned in the staff report, but she wanted to reiterate it especially in light of the
comments Commissioner Jeffries just made. When this Commission approved the
environmental document for the MCP, but also adopted another separate commitment
that this Commission would provide funding for Cajalco Road between 1-215 and 1-15
proportionally to the improvements being made on the eastside of 1-215. As they make
improvements along Ramona Expressway, they will also need to provide funding to the
County for the Cajalco Road widening to the west. They have been setting the stage for
doing that and the County is currently working on the environmental document, so they
will be able to start implementing that further when the County has full environmental
approval of Cajalco Road.
Commissioner Ted Hoffman stated that Anne Mayer just answered his question and
Commissioner Berkson asked the other question he had. He then asked if the
environmental documents for Ramona Expressway through the County have not been
done but the funding has been issued for it.
Anne Mayer replied the MCP environmental document is done all the way from 1-215 all
the way to Sanderson or SR -79 in San Jacinto. The stretch of Ramona Expressway that is
being discussed here is covered by that ultimate improvement, so the environmental
document is approved, and they will need to come back for authorization to do this, but
they will need to do some updated technical studies depending on the scope of work they
have. She stated overall she would anticipate any work they do on Ramona Expressway
will be within the footprint of the already approved environmental document.
Commissioner Michael Vargas expressed appreciation to Anne Mayer for reaching out to
some of his colleagues and putting in her time and effort in trying to come up with a
resolution on this. He referred to the Perris letter and stated Option la with removing
the houses, he understands the position behind RCTC, the second option to go a different
route he understood from staff that was an estimated adjustment of $5 million. He is
uncertain where they are getting the higher numbers from because it is not that
significantly high. He expressed overall after all these meetings and time spent, they did
not just shove this to the side and flat out say no, they came up with a resolution from
the council majority and recommended two options. Regarding Option la - because
those homes were not in the original plan to eliminate and stated he understood the
policy behind that so that could be significantly higher, but Option 2 would not have been
as high as Anne Mayer stated, but he is not the expert either he is coming from the
direction from his staff. Commissioner Vargas expressed the ultimate point here that
comes from the majority of his council is that this is not the original plan that was agreed
upon in the city of Perris. This is an interim project and if this were the ultimate, which
they all know they do not have the funding for that there would be no issues because
they are not stopping in the middle of the city of Perris and dropping all the traffic off. He
stated it is not just about trucks, MCP was never designated to accommodate trucks as
their region did not have that many warehouses back when this all started being talked
about. This was way before he moved to Perris in 2004 and these warehouses have come
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RCTC WRC Programs and Projects Committee Minutes
April 25, 2022
Page 10
over since then but that creates a concern with the majority of his council is that now the
fact that this will end in middle of their city, will deploy a lot trucks into their city, that is
the area they are trying to mitigate, and it is not a fair statement to indicate they just
want to stop this plan. He expressed understanding the mission of this Commission as he
sits on this Commission, and he represents everybody in this region not just the city of
Perris and they all have to make choices on what is best for this region. Commissioner
Vargas stated he is one of five and he has a council with a majority, which he has to stand
behind his majority, but it is a true statement to know that this is not the original plan.
The original plan was never going to stop at Redlands Avenue it was going to continue all
the way onto 1-215 so it is a big ask now to come back and now there is a school in place
and there are different residents in that area, so they bring up legitimate concerns and
issues. He noted they did come up with a couple solutions and he suggested Option 2
would be more viable then obviously the first one because they would have to take out
12 homes. He stated Anne Mayer has come through with her staff and has created a
temporary alternative that they can re-route this right now and then come back and see
how they can get this finalized through Perris. He expressed appreciation to Anne Mayer
for coming up with this plan, he supports it as well and for all her effort that she went
through on this and for his colleagues as well.
Commissioner Wes Speake concurred with Commissioner Jeffries comments and stated
that he respects the city of Perris for making the choice. He expressed appreciation that
staff found another way, which may not be the perfect way, but he concurred that
Ramona Expressway needs some help. He is concerned as Commissioner Jeffries stated
about Cajalco Road because it does dump into an area that is notoriously another
problem. They had a discussion earlier in the previous item about moving this bottleneck
back and forth where they are shoving this too. He concurred that Cajalco needs
attention for all the obvious reasons, and he has seen many accidents there and deaths,
but he wanted to make sure they continue to keep talking about it as they did on the
previous item the impacts of moving those bottlenecks around. It is very important that
people understand them and were able to either try and mitigate for them and he is
aware that staff has been working really hard with Juan Perez and the Riverside County
Transportation Department to ensure that these other projects like Cajalco and projects
in Temescal Canyon continue to push forward, and they all need to be apart of the
conversation. He stated as Anne Mayer has said many times, they cannot build their way
out of this, and this is the perfect example of that and even the previous item as well. For
what has been presented he can sympathize with the council in Perris and hopefully they
can find a way to get these folks moved around and have the money that they have spent
not be a waste but find ways to go forward with what staff proposed.
Clara Miramontes, City of Perris City Manager, expressed appreciation to Anne Mayer for
really working collaboratively with the city of Perris and going out of her way to meet with
their City Council, herself, and Perris staff in order to find a solution to see how they can
move this project forward. She stated that she will not repeat things that have already
been said but Perris is aware of the funding limitations and in consideration of that
knowingly that they wanted to see how they could find some solutions. She explained
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RCTC WRC Programs and Projects Committee Minutes
April 25, 2022
Page 11
they have been working with Anne Mayer with the understanding that the corridor
proposed interim improvements as presented to them is different than the original
alignment. Originally the corridor was intended to connect directly onto Placentia Avenue
Interchange, however the interim improvements at the time the Placentia Interchange
began construction that interim design was not yet completed. She stated that Perris was
able to find out about the changes after the start of construction of the Placentia
Interchange and knowing that they were trying to find a solution after so many funds had
already been expended on this interchange to see how they can move forward. She
stated by ending the corridor at Redlands Avenue this now is causing increased traffic and
noise to some of the local areas, residents in the area, there is a park, a school, and a fire
station along Placentia Avenue. After much discussion in trying to move forward the
council majority as Commissioner Vargas indicated did recommend moving forward in
support of the interim improvements with some mitigation. She explained the mitigation
that staff is recommending is very typical of any mitigation that causes traffic impacts
throughout the city. They understand that Option 1 is a little bit more cumbersome and
more costly because of those 12 homes and some of those homes were already slated to
be removed as part of the original design. Option 2, which is to divert truck traffic
northbound would eventually connect all truck traffic back to Placentia Avenue onto the
interchange at Indian Avenue. Ms. Miramontes stated they were the city willing to work
with RCTC so that they do not deviate from the environmental document and jeopardize
the environmental document, and for Perris to take part of those projects in cooperation
with RCTC. She noted that the Perris letter dated April 18, 2022, reflects the comments
she just made and thanked Anne Mayer for trying to work with Perris.
M/S/C (Hewitt/Krupa) to:
1) Receive and file an update on negotiations with the city of Perris (City)
regarding Mid County Parkway (MCP) since the March 28, 2022 Western
Riverside County Programs and Projects Committee meeting;
2) Direct staff to defer work on the Mid County Parkway Construction
Package 2 from Redlands Avenue to Ramona Expressway (MCP2) as
currently scoped within the city;
3) Direct staff to work with the county of Riverside (County) to scope a
different construction package within County jurisdiction, along Ramona
Expressway, to address ongoing safety issues and continue progress on
the overall MCP project;
4) Direct staff to return to the Commission at a future date with
recommendations to reprogram funds currently committed to MCP2
onto the newly scoped package, and;
5) Forward to the Commission for final action.
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RCTC WRC Programs and Projects Committee Minutes
April 25, 2022
Page 12
10. EXECUTIVE DIRECTOR REPORT
10A. Anne Mayer announced on April 21 there was a Ribbon Cutting Ceremony for the
Railroad Canyon/I-15 Interchange in the city of Lake Elsinore. It was a fun event
and great to celebrate in person, and Commissioner Bob Magee was an
outstanding emcee for the event. Congressman Ken Calvert made sure that he
made it known that they better hurry up and widen the 1-15 all the way down to
the city of Lake Elsinore.
10B. They are working on a date for the opening ceremony for the SR -60 Truck Lane
Project.
11. COMMISSIONER COMMENTS
10A. Commissioner Spiegel expressed working with Anne Mayer has been a learning
experience and her ability to compromise and work with 34 Commissioners and
to come up with solutions. When they express being frustrated about a project
that is not going in the direction they want, the ability to share that and then Anne
Mayer came in with some creative ideas as this has happened in several places
within Riverside County. She expressed appreciation for Anne Mayer's ability to
keep the pieces continually moving as changes have to be made and her ability to
work with this many entities and to keep this organization on a straight path.
Anne Mayer thanked Commissioner Spiegel and stated they have a great team
and will keep moving to keep progress going.
12. ADJOURNMENT
There being no further business for consideration by the Western Riverside County
Programs and Projects Committee, the meeting was adjourned at 2:40 p.m.
Respectfully submitted,
Lisa Mobley
Administrative Services Manager/
Clerk of the Board
12
AGENDA ITEM 7
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE:
May 23, 2022
TO:
Western Riverside County Programs and Projects Committee
FROM:
David Lewis, Capital Projects Manager
THROUGH:
Marlin Feenstra, Project Delivery Director
SUBJECT:
Agreement for Preparation of the Project Approval and Environmental
Document for the Interstate-10/Highland Springs Avenue Interchange
Improvements
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Award Agreement No. 22-72-011-00 to Mark Thomas & Company, Inc. to provide
Preparation of Project Approval/Environmental Documents (PA/ED) for the I-10/Highland
Springs Avenue Interchange Improvements in the cities of Banning and Beaumont
(Project) for a twenty -four -month term in the amount of $2,199,634, plus a contingency
amount of $219,963, for a total amount not to exceed $2,419,597, contingent upon final
TUMF funding approval by Western Riverside Council of Governments (WRCOG)
Executive Committee;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize and
execute Agreement No. 22-72-011-00, on behalf of the Commission;
3) Authorize the Executive Director, or designee, to approve contingency work up to the
total not to exceed amount as required for these services;
4) Approve Agreement No. 22-72-091-00 with WRCOG for additional Transportation
Uniform Mitigation Fee (TUMF) Zone funding for the Project in the amount of $1,000,000;
5) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize and
execute Agreement No. 22-72-091-00, on behalf of the Commission;
6) Authorize the Executive Director, pursuant to legal counsel review, to execute any future
non -funding related amendments to the agreements; and
7) Forward to the Commission for final action.
BACKGROUND INFORMATION:
At the request of the cities of Banning and Beaumont (Cities), the Commission managed the
preparation of a Project Study Report (PSR) for the Project. The study analyzed potential
alternatives for modifying the existing local roads, interchange, and ramps to improve circulation
at the interchange and surrounding local roads. The PSR was completed and approved by
Caltrans on December 10, 2021.
Agenda Item 7
13
Agreement No. 20-31-008-00 with the Cities established the Commission as the lead for the
PSR. On May 18 and 25, 2021, RCTC presented an update on the project to the Cities,
respectively. The presentation noted that the PSR phase was nearing completion and that the
project would be ready to enter the next phase, PA/ED. The Cities concurred and Agreement
No. 20-31-008-01 between the Cities and the Commission was amended on May 25, 2021, to
establish the Commission as the lead for the PA/ED phase of the project.
Cooperative Agreement No. 20-31-025-00 with Caltrans provided for their oversight and review
in the development of the PSR. On October 7, 2021, Cooperative Agreement No. 22-72-012-00
was executed with Caltrans to provide oversight and review during the development of the
PA/ED document. There is no cost associated with this agreement.
The PSR was completed by Commission and Bechtel staff under the existing Bechtel contract,
Agreement No. 21-31-065-00. Bechtel staff working under the current contract have a long
history of working with Caltrans District 8 to deliver similar projects and therefore were able to
cost-effectively prepare the PSR.
DISCUSSION:
Procurement Process for PA/ED
Pursuant to Government Code 4525 et seq, selection of architect, engineer, and related services
shall be on the basis of demonstrated competence and on professional qualifications necessary
for the satisfactory performance of the services required. Therefore, staff used the qualification
method of selection for the procurement. Evaluation criteria included elements such as firm
experience and stability, quality and experience of project manager, quality and experience of
key personnel, familiarity with Caltrans PA/ED procedures, project understanding and approach,
and the ability to respond to the requirements set forth under the terms of a request for
qualifications (RFQ).
RFQ No. 22-72-011-00 for the PA/ED for the 1-10 Highland Springs Interchange Improvements
was released by staff on December 16, 2021. The RFQ was posted on the Commission's Planet
Bids website, which is accessible through the Commission's website. Through Planet Bids,
87 firms downloaded the RFQ; 11 of these firms are located in Riverside County. A pre -submittal
meeting was held on January 12, 2022, and was attended by 18 firms. Staff responded to all
questions submitted by potential proposers prior to the January 20, 2022, clarification
deadline. Four firms — EXP U.S. Services, Inc. (San Bernardino); Kimley-Horn and Associates, Inc.
(Orange); Mark Thomas & Company, Inc. (Rancho Cucamonga); and WSP USA Inc. (Orange) —
submitted responsive and responsible statements of qualifications prior to the 2:00 p.m.
submittal deadline on February 3, 2022. Based on the evaluation criteria set forth in the RFQ,
the firms were evaluated and scored by an evaluation committee comprised of Commission,
Bechtel, and Cities of Beaumont and Banning staff.
Agenda Item 7
14
Based on the evaluation committee's assessment of the written statement of qualifications and
pursuant to the terms of the RFQ, the evaluation committee shortlisted and invited two firms
(Kimley-Horn and Associates, Inc. and Mark Thomas & Company, Inc.) to the interview phase of
the evaluation and selection process. Interviews were conducted on March 8, 2022.
The evaluation committee conducted a subsequent evaluation of each firm, based on both
written and interview components presented to the evaluation committee by each
proposer. Accordingly, the evaluation committee recommends contract award to Mark Thomas
& Company, Inc. for the PA/ED phase of the 1-10 Highland Springs Interchange Improvements, as
this firm earned the highest total evaluation score.
Subsequently, staff negotiated the scope (including the appropriate level of effort, labor
categories/mix, etc.), cost, and schedule proposal received from Mark Thomas & Company for
the Project services and established a fair and reasonable price, after extensive negotiations. As
part of the federal procurement process for architectural and engineering services, the contract
is subject to a pre -award audit by Caltrans Audits and Investigations Unit. The proposed cost is
$2,199,634 and may change slightly as a result of the pre -award audit and is expected to be
finalized prior to Commission approval in June 2022. Staff anticipates completing PA/ED in about
two years and advertising for the RFQ about that time.
FISCAL IMPACT:
Funding for the project is provided by WRCOG, through Funding Agreement No. 20-72-018-00,
which allocated $2 million of TUMF funding to the Commission for the PSR phase. The cost to
complete the PSR was $473,155, which includes the cost of Caltrans oversight. This leaves
$1,526,845 remaining which will be applied to the PA/ED phase of the project. The agreement
reimburses the Commission for all its costs associated with the project, including staff and
consultant costs.
The proposed contract authorization for PA/ED preparation of $2,419,597 exceeds the remaining
TUMF funding by $892,752. Commission and City staff coordinated with WRCOG to request
TUMF Zone funding so that the PA/ED phase could be advanced. On April 13, 2022, WRCOG held
the TUMF Pass Zone meeting during which $1 million in TUMF Zone funding was recommended
for programming on the 1-10 Highland Springs Interchange Improvements. As of the writing of
this agenda item, the WRCOG Pass Zone Executive Committee is tentatively scheduled to meet
the week of May 23, 2022, at which time it is anticipated the committee will approve the
recommended programming. Following Pass Zone Executive Committee approval, the item
would then go to the full WRCOG Executive Committee for final approval. It is anticipated this
process will take until June 2022, therefore the execution of the agreements with Mark Thomas
& Company, Inc. and WRCOG will be contingent on WRCOG's Executive Committee action.
Agenda Item 7
15
FISCAL IMPACT
Funding for these services will be provided by Transportation Uniform Mitigation Fees (TUMF).
Financial Information
In Fiscal Year Budget:
Yes
N/A
Year:
FY 2022/23
FY 2023/24+
Amount:
$1,000,000
$1,419,597
Source of Funds:
TUMF Zone
Budget Adjustment:
No
GL/Project
Accounting No.:
005135 81101 00000 0000 210 72 81101
Fiscal Procedures
Approved:
(ill
Date:
05/13/2022
���
1,
Attachments:
1) Draft Agreement No. 22-72-011-00 with Mark Thomas & Company, Inc.
2) Draft Agreement No. 22-72-091-00 with WRCOG
Agenda Item 7
16
ATTACHMENT 1
Agreement No. 22-72-011-00
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA FUNDING/ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
MARK THOMAS & COMPANY, INC.
FOR
PREPARATION OF PROJECT APPROVAL/ENVIRONMENTAL DOCUMENT (PA/ED)
FOR THE
1-10 HIGHLAND SPRINGS INTERCHANGE IIVIEROVEMENTS
Parties and Date.
This Agreement is made and entered into this day o , 2022, by and
between the RIVERSIDE COUNTY TRAN PORTATION COMMISSION ("the
Commission") and MARK THOMAS & COMPANY, INC. ("Consultant"), a California
"C" Corporation. The Commission and Consultant are sometimes referred to herein
individually as "Party", and collectively a °` arties'
Recitals.
A. On November 8, 198 h el s 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 professional services provided under this
Agreement is federal funds administered by the California Department of Transportation
("Caltrans") from the United States Department of Transportation pursuant to the
following project/program: TUMF
E. Consultant desires to perform and assume responsibility for the provision of
certain professional services required by the Commission on the terms and conditions
set forth in this Agreement. Consultant represents that it is experienced in providing
Preparation of Project Approval/Environmental Document services to public clients,
is licensed in the State of California (if necessary), and is familiar with the plans of the
Commission.
F. The Commission desires to engage Consultant to render such services for the
1-10 Highland Springs Interchange Improvements ("Project"), as set forth in this
Agreement.
Terms.
1. General Scope of Services. Consultant shall furnish all technical and
professional services, including labor, material, equipment, transportation, supervision
and expertise, and incidental and customary work necessary to fully and adequately
supply the professional Preparation of Project Approval/Environmental Document
services necessary for the Project ("Services"). The Services are more particularly
described in Exhibit "A" attached hereto and incorporated herein by reference.
All Services shall be subject to, and performed it cordance with, this Agreement, the
exhibits attached hereto and incorporated her r erence, and all applicable local,
state and federal laws, rules and regulations.
2. Commencement of Services. The Consultan II commence work upon receipt
of a written "Notice to Proceed" or "Limited Notice ceed" from Commission.
3. Pre -Award Audit. As a result of the federal funding for this Project, and to the
extent Caltrans procedures apply in connection therewith, issuance of a "Notice to
Proceed" may be contingent upon completion and approval of a pre -award audit. Any
questions raised during the pre -award audit shall be resolved before the Commission
will consider approval of this Agreement. The federal aid provided under this
Agreement is contingent on meeting all Federal 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 Federal
and State process reviews. In addition, the applicable federal agency, or Caltrans
acting in behalf of a federal agency, may require that prior to performance of any work
for which Federal reimbursement is requested and provided, that said federal agency or
Caltrans must give to Commission an "Authorization to Proceed".
4. Caltrans 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
2
18
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 24 and 25 of this Agreement.
4.2 During Caltrans' review of the ICR audit work papers created by the
Consultant's independent CPA (which may include review by the Independent Office of
Audits and Investigations), Caltrans will work with the CP - nd/or Consultant toward a
resolution of issues that arise during the review. Eac �' . rty agrees to use its best
efforts to resolve any audit disputes in a timely manna altrans identifies significant
issues during the review and is unable to issue a c. • zant . ' •royal letter, Commission
will reimburse the Consultant at an accepted until a (Federal Acquisition
Regulation) compliant ICR {e.g. 48 CFR Part GA ,F_,S (Gene '`.Ily Accepted Auditing
Standards); CAS (Cost Accounting Standa • %"applicable; in accordance with
procedures and guidelines of the American - ociation of State Highways and
Transportation Officials (AASHTO) Au •`` '�e; a ether applicable procedures and
guidelines} is received and approved by
Accepted rates will be as follo
a. If the propose
accepted rate reimburs
b. If th
hundred percent (2
proposed rate.
n one hundred fifty percent (150%) — the
ety percent (90%) of the proposed rate.
etween one hundred fifty percent (150%) and two
ccepted rate will be eighty-five percent (85%) of the
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.
4.4 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
3
19
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.
4.5 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 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 i date first set forth above,
contingent upon approval by Commission, and Cons o ;. hall commence work after
notification to proceed by Commission's Contract fr• mis . r. This Agreement shall
end on July 31, 2024, unless extended by contr
5.2 Consultant is advised that any r
not binding on Commission until this Agreement
Commission.
5.3 This Agreement sh
earlier terminated as provided
term of this Agreement, and
All applicable indemnificati
following the terminatio
ndation for Agreement award is
Ily executed and approved by the
main ' V ect til the date set forth above, unless
Con • tant shall complete the Services within the
er established schedules and deadlines.
this Agreement shall remain in effect
6. Commissio - Contract •mi, istrator. The Commission hereby designates the
Commission's Exec r, or his or her designee, to act as its Contract
Administrator for the ance of this Agreement ("Commission's Contract
Administrator"). Commis Y' 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 Bo Burick 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
4
20
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 as follows: Bo Burick, Aaron Silva, Richard
Galvin, Mark Hagar, Julie Passalacqua, and Jason Pac
9. Standard of Care; Licenses; Evaluation.
9.1 Consultant represents and maintai • hat it is d in the professional
calling necessary to perform all Services, es • obliga ons required by this
Agreement to fully and adequately complete t ' ct. Consultant shall perform the
Services and duties in conformance to and co .tent with the standards generally
recognized as being employed by prof - <Is in same discipline in the State of
California. Consultant warrants that - ,-s and subcontractors shall have
sufficient skill and experience to ery es assigned to them. Consultant
further represents and war + t Commission that its employees and
subcontractors have all lic • ' mits, alifications and approvals of whatever
nature that are legally requi of he Services, and that such licenses and
approvals shall be mai ,a ,�-d 'n��i�; ughout the term of this Agreement. Consultant shall
perform, at its own c an+ >;,•e and without reimbursement from the Commission,
any services nec >ary to ;.rec errors or omissions which are caused by the
Consultant's failure > >•mply the standard of care provided for herein, and shall be
fully responsible to the sion for all damages and other liabilities provided for in
the indemnification provi " v 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.
9.2 Consultant's performance will be evaluated by Commission. A copy of the
evaluation will be sent to Consultant for comments. The evaluation together with the
comments shall be retained as part of the Agreement record.
10. Independent Contractor. The Services shall be performed by Consultant or
under its supervision. Consultant will determine the means, methods and details of
5
21
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. Schedule of Services. Consultant shall perform the Services expeditiously,
within the term of this Agreement, and in accordance with _ :- Schedule of Services set
forth in Exhibit "B" attached hereto and incorporated h-,: = by reference. Consultant
represents that it has the professional and technical • el to perform the Services
in conformance with such conditions. In order to;. 'ilitat- onsultant's conformance
with the Schedule, the Commission shall respon Consulta submittals in a timely
manner. Upon request of Commission's trac, dminist `-tor, Consultant shall
provide a more detailed schedule of anticipat ' - mance to meet the Schedule of
Services.
11.1 Modification of the Sched► It nt shall regularly report to the
Commission, through correspon • -,• ce o • • res reports, its progress in providing
required Services within the �' - • ► d ti 'µ. periods. Commission shall be promptly
informed of all anticipated ays. n the vent that Consultant determines that a
schedule modification is n ?-s ultant shall promptly submit a revised
Schedule of Services f• � o •y Commission's Contract Administrator.
11.2 Tren
Commission's Contr
Commission, on a bi w
standard day and time.
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.
Co sultant shall conduct trend meetings with the
ator and other interested parties, as requested by the
is or as may be mutually scheduled by the Parties at a
se trend meetings will encompass focused and informal
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.
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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, epidemics, pandemics, 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 Se.::„.ces will be delayed due to
such conditions. Failure of Consultant to provide such ; _`r ely notice shall constitute a
waiver by Consultant of any right to an excusable dela e of performance.
12.3 Mutual Agreement. Performance
may be delayed upon mutual agreement
Consultant's Schedule of Services shall be ex
Consultant shall take all reasonable teps
additional costs, resulting from any suc
ny Servic under this Agreement
P ies. • on such agreement,
s necessary by the Commission.
imize delay in completion, and
13. Preliminar Review of W. AI '' .rts, orking papers, and similar work
products prepared for submi
Agreement shall be submitt
and the Commission may re
approval. In the even
final detailed plans
clearance as may
Commission's Cont
formally submitted wo
established under this A
ourse of providing Services under this
on's Contract Administrator in draft form,
such drafts prior to formal submission and
designs are to be developed as part of the Project,
all be contingent upon obtaining environmental
nnection with Federal funding. In the event that
rator, in his or her sole discretion, determines the
to be not in accordance with the standard of care
ment, Commission's Contract Administrator may require
Consultant to revise and resubmit the work at no cost to the Commission.
14. Appearance at Hearings. If and when required by the Commission, Consultant
shall render assistance at public hearings or other meetings related to the Project or
necessary to the performance of the Services. However, Consultant shall not be
required to, and will not, render any decision, interpretation or recommendation
regarding questions of a legal nature or which may be construed as constituting a legal
opinion.
15. Opportunity to Cure; Inspection of Work. Commission may provide Consultant
an opportunity to cure, at Consultant's expense, all errors and omissions 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
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the cost thereof charged to Consultant. Consultant shall allow the Commission's
Contract Administrator, Caltrans and FHWA to inspect or review Consultant's work in
progress at any reasonable time.
16. Claims Filed by Contractor.
16.1 If claims are filed by the Commission's contractor for the Project
("Contractor") relating to work performed by Consultant's personnel, and additional
information or assistance from the Consultant's personnel is required by the
Commission in order to evaluate or defend against such claims; Consultant agrees to
make reasonable efforts to make its personnel available for consultation with the
Commission's construction contract administration and legal staff and for testimony, if
necessary, at depositions and at trial or arbitration proceedings.
16.2 Consultant's personnel that the Commissi•. . onsiders essential to assist
in defending against Contractor claims will be made a on reasonable notice from
the Commission. Consultation or testimony will ' - 'reim , i, ed at the same rates,
including travel costs that are being paid for the ' 'nsultant's sonnel services under
this Agreement.
16.3 Services of the Consultant's
connection with Contractor claims will
amendment, if necessary, extending the
finally resolve the claims.
16.4 Nothing conta
Consultant's indemnification
conflict between this S
not intended to obli
personnel related t
defend the Commiss
nel and other support staff in
pursuant to a written contract
to of this Agreement in order to
shall be construed to in any way limit
ained in Section 29. In the case of any
ection 29, Section 29 shall govern. This Section is
ion to reimburse Consultant for time spent by its
for which Consultant is required to indemnify and
to Section 29 of this Agreement.
17. Final Acceptance. on determination by the Commission that Consultant has
satisfactorily completed the Services required under this Agreement and within the term
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.
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18. 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. Consultant shall be liable for all violations
of such laws and regulations in connection with Services. f the Consultant performs
any work knowing it to be contrary to such laws, rule , nd regulations and without
giving written notice to the Commission, Consultant - 'e solely responsible for all
costs arising therefrom. Consultant shall defend, nd hold Commission, its
officials, directors, officers, employees and age ,; ' ree and less, pursuant to the
indemnification provisions of this Agreement, f any, aim or li:'•ility arising out of any
failure or alleged failure to comply with such la or regulations.
19. Fees and Payment.
19.1 The method of pay - t for gre-ment will be based on actual cost
plus a fixed fee. Commission s► r- 'bur Consultant for actual costs (including labor
costs, employee benefits, %el, e� i.me rental costs, overhead and other direct
costs) incurred by Consults e of the Services. Consultant shall not be
reimbursed for actual ha" ceed the estimated wage rates, employee benefits,
travel, equipment re ► , ', ov- -a•, ; d other estimated costs set forth in the approved
Consultant cost p *osal atta, ed ereto as Exhibit "C" and incorporated herein by
reference ("Cost Pro al") unl ,s additional reimbursement is provided for by a written
amendment. In no ev- sh Consultant be reimbursed for overhead costs at a rate
that exceeds Commissio pproved overhead rate set forth in the Cost Proposal. In
the event that Commission determines that a change to the Services from that specified
in the Cost Proposal and this Agreement is required, the contract time or actual costs
reimbursable by Commission shall be adjusted by contract amendment to
accommodate the changed work. The maximum total cost as specified in Section 19.9
shall not be exceeded, unless authorized by a written amendment.
19.2 The indirect cost rate established for this Agreement is extended through
the duration of this Agreement. Consultant's agreement to the extension of the 1 -year
applicable period shall not be a condition or qualification to be considered for the work
or Agreement award.
19.3 In addition to the allowable incurred costs, Commission shall pay
Consultant a fixed fee of [ INSERT DOLLAR AMOUNT 1. The fixed fee is
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nonadjustable for the term of this Agreement, except in the event of a significant change
in the Scope of Services, and such adjustment is made by written amendment.
19.4 Reimbursement for transportation and subsistence costs shall not exceed
the rates specified in the approved Cost Proposal. In addition, payments to Consultant
for travel and subsistence expenses claimed for reimbursement or applied as local
match credit shall not exceed rates authorized to be paid exempt non -represented State
employees under current State Department of Personnel Administration (DPA) rules,
unless otherwise authorized by Commission. If the rates invoiced are in excess of
those authorized DPA rates, and Commission has not otherwise approved said rates,
then Consultant is responsible for the cost difference and any overpayments shall be
reimbursed to the Commission on demand.
19.5 When milestone cost estimates are inclu.,d in the approved Cost
Proposal, Consultant shall obtain prior written approv.;' r a revised milestone cost
estimate from the Contract Administrator before exceer. • ch cost estimate.
19.6 Progress payments shall be made
provided and allowable incurred costs. A pro r
be included in the monthly progress payments.
deliverable items according to the schedule
Commission shall have the right to
accordance with the provisions of Sectio
nthly in a rs based on Services
of Conultant's fixed fee shall
ultant fails to submit the required
forth in the Scope of Services,
r terminate this Agreement in
ti n.
19.7 No payment shal • e p r to approval of any Services, nor for any
Services performed prior to
19.8 Consulta
permit upon receipt
triplicate. Invoice
performance of wo
performed on each mi
format stipulated for the
number and project title. Final invoice must contain the final cost and all credits due
Commission including any equipment purchased under the Equipment Purchase
provisions of this Agreement. The final invoice should be submitted within 60 calendar
days after completion of Consultant's work. Invoices shall be mailed to Commission's
Contract Administrator at the following address:
reimbursed, as promptly as fiscal procedures will
's Contract Administrator of itemized invoices in
bmi ed no later than 45 calendar days after the
Consultant is billing. Invoices shall detail the work
d each project as applicable. Invoices shall follow the
oved Cost Proposal and shall reference this Agreement
Riverside County Transportation Commission
Attention: Accounts Payable
P.O. 12008
Riverside, CA 92502
19.9 The total amount payable by Commission including the fixed fee shall not
exceed [ INSERT DOLLAR AMOUNT 1.
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19.10 Salary increases shall be reimbursable if the new salary is within the
salary range identified in the approved Cost Proposal and is approved by Commission's
Contract Administrator. For personnel subject to prevailing wage rates as described in
the California Labor Code, all salary increases, which are the direct result of changes in
the prevailing wage rates are reimbursable.
19.11 Consultant shall not be reimbursed for any expenses unless authorized in
writing by the Commission's Contract Administrator.
19.12 All subcontracts in excess of $25,000 shall contain the above provisions.
20. Disputes.
20.1 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 verbal information submitted by
Consultant.
20.2 Not later than 30 days after co etion 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.
20.3 Neither the pe
will excuse Consultant from
this Agreement.
21. Terminatio
a dis e, nor its consideration by the committee
rformance in accordance with the terms of
21.1 Commission reserves the right to terminate this Agreement for any or no
reason upon thirty (30) calendar days written notice to Consultant with the reasons for
termination stated in the notice.
21.2 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
work 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 this 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.
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21.3 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.
21.4 Discontinuance of Services. 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.
21.5 Effect of Termination for Cause. In addition t. ; e above, Consultant shall
be liable to the Commission for any reasonable ad.i •nal costs incurred by the
Commission to revise work for which the Commissin°I compensated Consultant
under this Agreement, but which the Commission . ' dete ` ned in its sole discretion
needs to be revised, in part or whole, to comp) he Projec i -cause it did not meet
the standard of care established herein. Ter tion this Ag ement for cause may
be considered by the Commission in det ' r whether to enter into future
agreements with Consultant.
21.6 Cumulative Remedies. Th
this Section are in addition to another
this Agreement.
21.7 Waivers. Con
have waived any and
Commission's termi
this Section.
e edies of the Parties provided in
an emedies provided by law or under
ting this Agreement, shall be deemed to
for damages which may otherwise arise from the
ement, for convenience or cause, as provided in
21.8 Consulta t terminate this Agreement except for cause.
21.9 Suspension. In addition to the termination rights above, Commission may
temporarily suspend this Agreement, 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 this Agreement. A temporary suspension may be issued concurrent with a notice
of termination.
22. Cost Principles and Administrative Requirements.
22.1 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.
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22.2 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.
22.3 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.
22.4 All subcontracts in excess of $25,000 shall contain the above provisions.
23. 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 o -r matters connected with
the performance of this Agreement pursuant to Govern . t Code 8546.7; Consultant,
subconsultants, and Commission shall maintain and available for inspection all
books, documents, papers, accounting records, ar •''othe idence pertaining to the
performance of this Agreement, including but n.:._ ''" ited to, costs of administering
this Agreement. All parties shall make suc ater':.,, available at their respective
offices at all reasonable times during this Agre =riod and for three years from the
date of final payment under this Agreement. state, State Auditor, Commission,
FHWA, or any duly authorized repres of t' ederal Government shall have
access to any books, records, and do • sultant and it's certified public
accountants (CPA) work papers
rates (ICR) for audit, examinat
be furnished if requested.
provision.
23.1 Accou
maintain an acco
expenditures by line
subcontractors shall c
enable the determination
are T ent . this Agreement and indirect cost
erp ,, ,. and transactions, and copies thereof shall
acts "';, excess of $25,000 shall contain this
nsultant and its subcontractors shall establish and
records that properly accumulate and segregate
ervices. The accounting system of Consultant and its
o Generally Accepted Accounting Principles (GAAP),
curred costs at interim points of completion, and provide
support for reimbursement payment vouchers or invoices.
24. Audit Review Procedures.
24.1 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.
24.2 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 shall be submitted in writing.
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24.3 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.
25. Subcontracting.
25.1 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.
25.2 Consultant shall perform the Services with resources available within its
own organization and no portion of the Services shall be subcontracted without written
authorization by Commission's Contract Admini or, except that, which is expressly
identified in the approved Cost Proposal.
25.3 Consultant shall pay its subconsult°Tiis within fifteen (15) calendar days
from receipt of each payment made to Consultant by*mmission.
25.4 Any subcontract in cess of $' 52 ,01,0 entered into as a result of this
�
Agreement shall contain all th
to subconsultants.
ns st ulated in this Agreement to be applicable
25.5 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).
25.6 Exhibit "C" may also set forth the rates at which each subconsultant shall
bill the Consultant for ervices and that are subject to reimbursement by the
Commission to Consulta dditional Direct Costs, as defined in Exhibit "C" shall be
the same for both the Consultant and all subconsultants, unless otherwise identified in
Exhibit "C". The subconsultant rate schedules and cost proposals contained herein are
for accounting purposes only.
26. Equipment Purchase
26.1 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 Consultant services. Consultant shall provide an
evaluation of the necessity or desirability of incurring such costs.
26.2 For purchase of any item, service or consulting work not covered in
Consultant's Cost Proposal and exceeding $5,000 prior authorization by Commission's
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30
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.
26.3 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 compe nt independent appraisal of such
equipment. Appraisals shall be obtained from appraiser mutually agreeable to
Commission and Consultant. If Consultant de ine o sell the equipment, the terms
and conditions of such sale must be approved ce by Commission. 2 CFR, Part
200 requires a credit to Federal funds when par ating equipment with a fair market
value greater than $5,000 is credited to
26.4 All subcontracts in e ss $. r 0 sh. contain the above provisions.
27. Labor Code Re
27.1 Prevailin
(a) Con- .nt shall imply with the State of California's General Prevailing
Wage Rate require s in accordance with California Labor Code, Section 1770, and
all Federal, State, and -I I.ws and ordinances applicable to the Services.
(b) Any subcontract entered into as a result of this Agreement, if for more
than $25,000 for public works construction or more than $15,000 for the alteration,
demolition, repair, or maintenance of public works, shall contain all of the provisions of
this Section.
(c) When prevailing wages apply to the Services described in the Scope of
Services, transportation and subsistence costs shall be reimbursed at the minimum
rates set by the Department of Industrial Relations (DIR) as outlined in the applicable
Prevailing Wage Determination. See http://www.dir.ca.gov.
(d) Copies of the prevailing rate of per diem wages in effect at
commencement of this Agreement are on file at the Commission's offices. Consultant
shall make copies of the prevailing rates of per diem wages for each craft, classification
15
31
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.
27.2 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. If applicable, 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 resp.:; ibility to comply with all
applicable registration and labor compliance requirement
27.3 Eight -Hour Law. Pursuant to the provisions,: the ►'_ ornia Labor Code, eight
hours of labor shall constitute a legal day's work , ; d the tim service of any worker
employed on the work shall be limited and y'ricte► to eight ours during any one
calendar day, and forty hours in any one ca • . eek, except when payment for
overtime is made at not less than one and one -ha qe basic rate for all hours worked in
excess of eight hours per day ("Eight -H. , " , u s Consultant or the Services are
not subject to the Eight -Hour Law. Con an o eit to Commission as a penalty,
$50.00 for each worker employe • the - ion ." this Agreement by him, or by any
sub -consultant under him, for - -nda gay during which such workman is required
or permitted to work more t► eig ours any calendar day and forty hours in any
one calendar week without s n for overtime violation of the provisions of
the California Labor C• n Consultant or the Services are not subject to the
Eight -Hour Law.
27.4 Employment
of properly indentured •rep es in accordance with the California Labor Code, and
no employer or labor un''1'i 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.
s. This Agreement shall not prevent the employment
If California Labor Code Section 1777.5 applies to the Services, Consultant and any
subcontractor hereunder who employs workers in any apprenticeable craft or trade shall
apply to the joint apprenticeship council administering applicable standards for a
certificate approving Consultant or any sub -consultant for the employment and training
of apprentices. Upon issuance of this certificate, Consultant and any sub -consultant
shall employ the number of apprentices provided for therein, as well as contribute to the
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32
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
28. Ownership of Materials/Confidentiality.
28.1 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, ysical drawings or data
magnetically or otherwise recorded on computer dis F "``'-s, which are prepared or
caused to be prepared by Consultant under this Agree r "Documents & Data").
Consultant shall require all subcontractors to , `ee in wr
granted an exclusive and perpetual license for.. irr Do _ ents &
prepares under this Agreement.
Consultant represents and warrants t
exclusive and perpetual license for all s
such representation and warrant rega
by design professionals oth Con
Commission.
Commission shall not
time, provided that
shall be at Commi
that Commission is
ata the subcontractor
as the legal right to grant the
n s & Data. Consultant makes no
ocu ents & Data which were prepared
Itant or provided to Consultant by the
any way in its use of the Documents & Data at any
within the purposes intended by this Agreement
28.2 Intellectu. 'roe . `y. In addition, Commission shall have and retain all
right, title and interest (i ' ing 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 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
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33
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 represent nd warrants that it has the
right to grant the exclusive and perpetual license for a ch Intellectual Property as
provided herein.
Commission further is granted by Consultant a ► -exclusive d perpetual license to
copy, use, modify or sub -license any and all -Ilect -I Prope otherwise owned by
Consultant which is the basis or foundation fo ivative, collective, insurrectional,
or supplemental work created under this Agreeme
28.3 Confidentiality. All ideas, •ecifications, plans, procedures,
drawings, descriptions, computer.,.•gra • -, in• t record data, written information,
and other Documents and ther reated by or provided to Consultant in
connection with the perfor► nce this ; reement shall be held confidential by
Consultant. Such materials ' II the prior written consent of Commission,
be used by Consultan . ny poses other than the performance of the Services.
Nor shall such mat s b- c • -d to any person or entity not connected with the
performance of th • ` the roject. Nothing furnished to Consultant which is
otherwise known to sultan'_i ;'.r is generally known, or has become known, to the
related industry shall b. peer d confidential. Consultant shall not use Commission's
name or insignia, photogr ;; °s 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.
28.4 Infringement Indemnification. Consultant shall defend, indemnify and hold
the Commission, its directors, officials, officers, employees, volunteers and agents free
and harmless, pursuant to the indemnification provisions of this Agreement, for any
alleged infringement of any patent, copyright, trade secret, trade name, trademark, or
any other proprietary right of any person or entity in consequence of the use on the
Project by Commission of the Documents & Data, including any method, process,
product, or concept specified or depicted.
29. Indemnification. To the fullest extent permitted by law, Consultant shall defend
(with counsel of Commission's choosing), indemnify and hold Commission, its directors,
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34
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, in
any manner arising out of or 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 attorneys 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, its directors, officials, officers, employees,
consultants, agents, or volunteers. Consultant shall pay and satisfy any judgment,
award or decree that may be rendered against Commission or its directors, officials,
officers, employees, consultants, agents, or volunteers, in - y such suit, action or other
legal proceeding. Consultant shall reimburse Commis ` and its directors, officials,
officers, employees, consultants, agents, and/or v• >-rs, for any and all legal
expenses and costs, including reasonable attorney ees, rred by each of them in
connection therewith or in enforcing the index ity herein •vided. Consultant's
obligation to indemnify shall not be restricted ' sur. r e proceds, if any, received by
Commission, its directors, officials officers, r " •yees, consultants, agents, or
volunteers.
If Consultant's obligation to defend, in - • d r hold harmless arises out of
Consultant's performance as a "d- ',.•n pr • _•""ona (as that term is defined under Civil
Code section 2782.8), then, extent required by Civil Code section
2782.8, which is fully incor• ted ein, sultant's indemnification obligation shall
be limited to claims that , • •ertain to, or relate to the negligence,
recklessness, or willful •n• of the Consultant, and, upon Consultant obtaining a
final adjudication b co f + •etent jurisdiction, Consultant's liability for such
claim, including t cost to • ,' -n• shall not exceed the Consultant's proportionate
percentage of fault.
Consultant's obligations set forth in this Section shall survive expiration or
termination of this Agreement.
30. Insurance.
30.1 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.
30.2 Minimum Requirements. Consultant shall, at its expense, procure and
maintain for the duration of the Agreement insurance against claims for injuries to
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35
persons or damages to property which may arise from or in connection with the
performance of the Agreement by the Consultant, its agents, representatives,
employees or subcontractors. Consultant shall also require all of its subcontractors to
procure and maintain the same insurance for the duration of the Agreement. Such
insurance shall meet at least the following minimum levels of coverage:
(a) Minimum Scope of Insurance. Coverage shall be at least as broad
as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent);
(2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA
0001, code 1 (any auto) or exact equivalent); and (3) Workers' Compensation and
Employer's Liability: Workers' Compensation insurance as required by the State of
California and Employer's Liability Insurance.
(b) Minimum Limits of Insurance. Con-, `"ant shall maintain limits no
less than: (1) General Liability: $2,000,000 per occ - ; for bodily injury, personal
injury and property damage. If Commercial Gene -' iab'''``' Insurance or other form
with general aggregate limit is used, either th,-. •eneral a• -.•ate limit shall apply
separately to this Agreement/location or the • eral .-gregate `ymit shall be twice the
required occurrence limit. Limits may be ache • any combination of primary and
excess or umbrella liability insurance; (2 Autom i'- Liability: $2,000,000 per accident
for bodily injury and property damage. may achieved by any combination of
primary and excess or umbrella liability 1 ura - • (3) Workers' Compensation and
Employer's Liability: Workers' Co • •,-nsati - 'i its a required by the Labor Code of the
State of California. Employer's ` '-s Lia; jility limits of $1,000,000 per accident.
30.3 Professional Li , [1 1 •nt shall procure and maintain, and require
its sub -consultants to • re II • maintain, for a period of five (5) years following
completion of the P � sct, - s omissions liability insurance appropriate to their
profession. For sultant, ch nsurance shall be in an amount not less than
$1,000,000 per clai his ins ' ance shall be endorsed to include contractual liability
applicable to this Agre- -nt d shall be written on a policy form coverage specifically
designed to protect agai 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.
30.4 Aircraft Liability Insurance. Prior to conducting any Services requiring use
of aircraft, Consultant shall procure and maintain, or cause to be procured and
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36
maintained, aircraft liability insurance or equivalent form, with a single limit as shall be
required by the Commission. Such insurance shall include coverage for owned, hired
and non -owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, Caltrans and their directors, officials, officers, employees and agents as
additional insureds with respect to the Services or operations performed by or on behalf
of the Consultant.
30.5 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
coverage for (1) bodily Injury and property damage;
Injury; (3) premises/operations liability; (4) products/
aggregate limits that apply per Project; (6) explosi
exclusion deleted; (7) contractual liability with re
property damage; and (9) independent consult
(ii) The policy shall con
limiting coverage for (1) contractual li
suits by one insured against another; or
Agreement.
(iii) T
officers, employees, and age
01 and 20371001, or
"primary and non -co
Caltrans' insurance or
or endorsements providin
olla
to this
age.
Insurance must include
personal Injury/advertising
ted operations liability; (5)
and underground (UCX)
ement; (8) broad form
no endorsements or provisions
liability exclusion for claims or
other exclusion contrary to this
e the Commission, its directors, officials,
s using ISO endorsement forms 20 10 10
is providing the exact same coverage.
ddi onal insured coverage under the policy shall be
d will not seek contribution from the Commission's or
ance and shall be at least as broad as CG 20 01 04 13,
exact same coverage.
(b) Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) the Commission, Caltrans and their directors, officials,
officers, employees and agents shall be covered as additional insureds with respect to
the ownership, operation, maintenance, use, loading or unloading of any auto owned,
leased, hired or borrowed by the Consultant or for which the Consultant is responsible;
and (2) the insurance coverage shall be primary insurance as respects the Commission,
Caltrans and their directors, officials, officers, employees and agents, or if excess, shall
stand in an unbroken chain of coverage excess of the Consultant's scheduled
underlying coverage. Any insurance or self-insurance maintained by the Commission,
Caltrans and their directors, officials, officers, employees and agents shall be excess of
the Consultant's insurance and shall not be called upon to contribute with it in any way.
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(c) Workers' Compensation and Employers Liability Coverage.
(i) Consultant certifies that he/she is aware of the provisions of
Section 3700 of the California Labor Code which requires every employer to be insured
against liability for workers' compensation or to undertake self-insurance in accordance
with the provisions of that code, and he/she will comply with such provisions before
commencing work under this Agreement.
(ii) The insurer shall agree to waive all rights of subrogation
against the Commission, its directors, officials, officers, employees and agents for
losses paid under the terms of the insurance policy which arise from work performed by
the Consultant.
(d) All Coverages.
(1) Defense costs shall be pa in i :-,in addition to the limits set
forth hereunder.
(ii) Requirements of s•,, -£3y" is c•: ;-rage or nits contained in this
Section are not intended as a limitation on co • imits, or other requirement, or a
waiver of any coverage normally provided by an urance. It shall be a requirement
under this Agreement that any availabl nce • eeds broader than or in excess
of the specified minimum insurance cove • -nts and/or limits set forth herein
shall be available to the Commi n, s a " their directors, officials, officers,
employees and agents as ad• •n. `` insu;E •s under said policies. Furthermore, the
requirements for coverage lim' ; shall V ;_ a (1) the minimum coverage and limits
specified in this Agreemen , r oader coverage and maximum limits of
coverage of any ins . y or proceeds available to the named insured;
whichever is greater
its of insurance required in this Agreement may be
satisfied by a combina o unary and umbrella or excess insurance. Any umbrella
or excess insurance sha •ntain or be endorsed to contain a provision that such
coverage shall also apply on a primary and non-contributory basis for the benefit of the
Commission (if agreed to in a written contract or agreement) before the Commission's
own insurance or self-insurance shall be called upon to protect it as a named insured.
The umbrella/excess policy shall be provided on a "following form" basis with coverage
at least as broad as provided on the underlying policy(ies).
(iv) Consultant shall provide the Commission at least thirty (30)
days prior written notice of cancellation of any policy required by this Agreement, except
that the Consultant shall provide at least ten (10) days prior written notice of
cancellation of any such policy due to non-payment of premium. If any of the required
coverage is cancelled or expires during the term of this Agreement, the Consultant shall
deliver renewal certificate(s) including the General Liability Additional Insured
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Endorsement to the Commission at least ten (10) days prior to the effective date of
cancellation or expiration.
(v) The retroactive date (if any) of each policy is to be no later
than the effective date of this Agreement. Consultant shall maintain such coverage
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 an anner limit or qualify the
liabilities and obligations otherwise assumed by the onsultant pursuant to this
Agreement, including but not limited to, the provisions ning indemnification.
(vii) If at any time during
insurance required under this Agreement does
canceled and not replaced, Commission has
insurance it deems necessary and any .remium
reimbursed by Consultant or Commi
premium from Consultant payments. In
Agreement. The Commission m. -quir
all insurance policies in effect f rati
(viii) N
officers, employees or
under or by virtue of
ife of the eement, any policy of
co R $ly with t se specifications or is
but not the duty to obtain the
by Commission will be promptly
ill ' ' old amounts sufficient to pay
, Commission may cancel this
Itant to provide complete copies of
of the Project.
ission nor any of its directors, officials,
11 be personally responsible for any liability arising
Each insurance polic -quired this Agreement shall be endorsed to state that:
30.6 Deductibles : 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 expenses.
30.7 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.
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30.8 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.
30.9 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 endors
as an additional insured using ISO form CG 20 38 04 1
the exact same coverage. If requested by Consulta
different scopes or minimum limits of insuranc- or p
subconsultants.
to name the Commission
r an endorsement providing
Commission may approve
cular subcontractors or
30.10 Other Insurance. At its optio p % ommission may require such
additional coverage(s), limits and/or the redu ` of deductibles or retentions it
considers reasonable and prudent base risk ,0..rs that may directly or indirectly
impact the Project. In retaining this opt! • i• does not warrant Consultant's
insurance program to be adeq . tan shall have the right to purchase
insurance in addition to the ins in this Section.
31. Safety. Consultant s
damage to any person
all times be in com
regulations, and s
appropriate to the n
performed. Safety pre
(A) adequate life protecti
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.
maintain its work so as to avoid injury or
In carrying out its Services, the Consultant shall at
plicable local, state and federal laws, rules and
11 necessary precautions for the safety of employees
ork and the conditions under which the work is to be
as applicable shall include, but shall not be limited to:
nd life saving equipment and procedures; (B) instructions
As between Consultant and the construction contractors only, the construction
contractors shall remain solely responsible for construction safety notwithstanding any
safety obligations of Consultant at the jobsite. The foregoing sentence shall not impact
nor in any way modify or alter Consultant's indemnity and defense obligations to the
Commission, as set forth in Section 29 of this Agreement, not any of Consultant's duties
or obligations set forth under this Agreement, including the attached exhibits.
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40
Pursuant to the authority contained in Section 591 of the Vehicle Code, the Commission
has determined that the Project will contain areas that are open to public traffic.
Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14,
and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions
for safe operation of its vehicles and the protection of the traveling public from injury and
damage from such vehicles.
32. 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 reasonab ; within the contemplation of
the parties when the Agreement was entered into. An e ple of a change which is not
a Cardinal Change would be where, in a contract to c• :. t a building there are many
changes in the materials used, but the size and lay• of th- ilding remains the same.
Cardinal Changes are not within the authority . ''' is provisi. ` . o order, and shall be
processed by the Commission as "sole sour proc -ments : cording to applicable
law, including the requirements of FTA Circular • •, paragraph 9(f).
(a) In addition to the c .utho -.-d above, a modification which is
signed by Consultant and the Commissi v Director, other than a Cardinal
Change, may be made in order *.: 1) m n ne•'•tiated equitable adjustment to the
Agreement price, delivery sch - �F. e d o'; ,-r terms resulting from the issuance of a
Change Order, (2) reflect d itive ; er co acts, and (3) reflect other agreements of
the parties modifying the ter •f ent ("Bilateral Contract Modification").
(b) su sh of perform, nor be compensated for any change,
without written a +rization m "e Commission's Executive Director as set forth
herein. In the eve ` .. uch a ange authorization is not issued and signed by the
Commission's Executiv .ire- r, Consultant shall not provide such change.
33. Prohibited Interests.
33.1 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.
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33.2 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, or any ensuing Commission construction project. Consultant shall also list
current clients who may have a financial interest in the outcome of this Agreement, or
any ensuing Commission construction project, which will follow.
(b) 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. Consultant agrees to advise Commission of any actual,
apparent or potential conflicts of interest that may develop subsequent to the date of
execution of this Agreement. Consultant further agrees to complete any statements of
economic interest if required by either Commission or State,: -w.
(c) Any subcontract in excess of $2 entered into as a result of
this Agreement, shall contain all of the provisions of Arti
(d) Consultant hereby certifi- at ► -ither C•'` sultant, nor any firm
affiliated with Consultant will bid on any con contract, or on any contract to
provide construction inspection for any con tion project resulting from this
Agreement. An affiliated firm is one, wh bjec the control of the same persons
through joint -ownership, or otherwise.
(e) Except for
surveying or materials testi
services in connection with
contract, or on any c
project resulting fro
whose services are limited to providing
subconsultant who has provided design
hall be eligible to bid on any construction
rovide construction inspection for any construction
33.3 Comm!' .n Co "i t of Interest. For the term of this Agreement, no
member, officer or em• e the Commission, during the term of his or her service
with the Commission, sh J: ave any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising therefrom.
33.4 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.
33.5 Covenant Against Contingent Fees. As required in connection with
federal funding, the Consultant warrants that he/she has not employed or retained any
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42
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.
33.6 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 hav
terminate this Agreement without liability; to pay only fo
performed; or to deduct from the contract price; or of
such rebate, kickback or other unlawful consideratio
e right in its discretion; to
e value of the work actually
recover the full amount of
33.7 Covenant Against Expenditure o •mm' ;,ion, Sta or Federal Funds for
Lobbying. The Consultant certifies that to the : :.t is/ her knowledge and belief no
state, federal or local agency appropriated funds ve been paid, or will be paid by or
on behalf of the Consultant to any pers e of influencing or attempting to
influence an officer or employee of any • . ' agency; a Member of the State
Legislature or United States Co -ss; icer .r employee of the Legislature or
Congress; or any employee of - •er .3 ' he Legislature or Congress, in connection
with the award of any state grant, loan, or cooperative agreement, or
the extension, continuation, r_ v- l i ent, or modification of any state or federal
contract, grant, loan, or - •er." agreement.
(a) any fun• oth-'r than federal appropriated funds have been paid,
or will be paid to an son fo e purpose of influencing or attempting to influence an
officer or employee o y deral agency; a Member of Congress; an officer or
employee of Congress, o employee of a Member of Congress; in connection with
this Agreement, the Consultant shall complete and submit the attached Exhibit "F",
Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with the
attached instructions.
(b) The Consultant's certification provided in this Section is a material
representation of fact upon which reliance was placed when this Agreement was
entered into, and is a prerequisite for entering into this Agreement pursuant to Section
1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the
disclosure and certification requirements set forth in Section 1352, Title 31, US. Code
may result in a civil penalty of not less than $10,000 and not more than $100,000 for
each such failure.
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(c) The Consultant also agrees by signing this Agreement that he/she
shall require that the language set forth in this Section be included in all Consultant
subcontracts which exceed $100,000, and that all such subcontractors shall certify and
disclose accordingly.
33.8 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.
34. 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 n be limited to, all activities
related to initial employment, upgrading, demotion, tran , recruitment or recruitment
advertising, layoff or termination.
35. Right to Employ Other Consultants. Co
other consultants in connection with the Proje
ssion rests the right to employ
36. Governing Law. This Agreement shall b- 'verned by and construed with the
laws of the State of California. Venue sl' jn Ri 'de County.
37. Disputes; Attorneys' Fees.
37.1 Prior to either party commencing any legal action under this Agreement,
the Parties agree to try in good faith, to resolve any dispute amicably between them. If a
dispute has not been resolved after forty-five (45) days of good -faith negotiations and as
may be otherwise provided herein, then either Party may seek any other available
remedy to resolve the dispute.
37.2. 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.
38. Time of Essence. Time is of the essence for each and every provision of this
Agreement.
39. 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.
39.1 Notices. All notices permitted or required under this Agreement shall be
given to the respective parties at the following address, or at such other address as the
respective parties may provide in writing for this purpose:
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44
CONSULTANT:
Mark Thomas & Company
10630 Town Center Drive, Ste. 117
Rancho Cucamonga, CA 91730
Attn: Bo Burick
COMMISSION:
Riverside County Transportation Commission
4080 Lemon Street, 3rd Floor
Riverside, CA 92501
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 AgreemelAR contains the entire agreement of the Parties
relating to the subject matter her . , and supersedes all prior negotiations, agreements
or understandings.
43. Invalidity; Severability. •• An of this Agreement is declared invalid, illegal,
or otherwise unenfor - - i - court of competent jurisdiction, the remaining
provisions shall cont - in or - nd effect.
44. Provisions A. cable en Federal Department of Transportation Funds Are
Involved. When funding for the Services provided by this Agreement are provided, in
whole or in part, from the United States Department of Transportation, Consultant shall
also fully and adequately comply with the provisions included in Exhibit "D" (Federal
Department of Transportation Requirements and California Department of
Transportation (Caltrans) DBE program requirements) attached hereto and incorporated
herein by reference.
45. Survival. All rights and obligations hereunder that by their nature are to continue
after any expiration or termination of this Agreement, including, but not limited to, the
indemnification and confidentiality obligations, shall survive any such expiration or
termination.
46. No Third Party Beneficiaries. There are no intended third party beneficiaries of
any right or obligation assumed by the Parties.
29
45
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 coop? {>te with the Commission in
responding to the subpoena or court order.
50. Assignment or Transfer. Consultant shall no . 'assi• ypothecate, or transfer,
either directly or by operation of law, this Agreement or any i -st herein, without the
prior written consent of the Commission. Any attempt to do so hall 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 I 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 Comiission 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]
30
46
SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA FUNDING/ASSISTANCE
IN WITNESS WHEREOF, this Agreement was executed on the date first written
above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
Anne Mayer
Executive Director
11?°
Approved as to Form: <iiiimlw
Title
By:
Best, Best & K
General Co
ATTEST:
By:
Its:
MARK THOMAS & COMPANY
By:
Si ture
e
* 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.
31
47
EXHIBIT "A"
SCOPE OF WORK
A. INTRODUCTION
The Scope of Work will include the preparation of Project Approval/Environmental
Document and related activities as described below for the 1-10 Highland Springs
Avenue Interchange Project in the Cities of Banning and Beaumont in Riverside County.
The proposed project intends to modify the local arterials, Highland Springs Avenue,
and Joshua Palmer Way, to eliminate the left -turn conflicts and reduce traffic queuing
delays such that a level -of -service (LOS) D or better is maintained over the course of
the 20 -year time horizon, 2025 through 2045. The PS DS for the 1-10 Highland
Spring Avenue Interchange Project was approved by Ca s in November 2021.
B. Work Activities:
All work will be performed to meet the latest Caltrans, State . Federal standards as
they are applicable to the element of work being performed. Th- activities listed in this
scope of work are intended to be delivered to support the development and issuance of
the necessary California Environmental Quality Act (CEQA) and National Environmental
Policy Act (NEPA) environmental document and project report reviews that are typically
used by Caltrans to review PA/ED packages led by Local Agencies.
Your SOQ should discuss how you will address the following primary activities:
1. Development of PA/ED for highway and interchange projects with Caltrans
oversight.
2. Understanding and experience in development of Initial Study document
for CEQA compliance and Environmental Assessment for NEPA
compliance.
3. Understanding and experience in higher level environmental documents if
required.
4. Caltrans will serve as the CEQA/NEPA lead agency.
5. Develop all technical studies to support the development of the
environmental documents including but not limited to Traffic, Air Quality,
Noise and Vibration, Vehicle Miles Traveled (VMT), Hazardous Waste,
Geology, soils, topography, Paleontology, Land use, Community Impacts,
Visual/Aesthetics, Cultural Resources, Hydrology, Water Quality and
Storm Water Runoff, Energy and Climate Change, Biological, Cumulative
impacts, and any others required.
6. Identify and document how the alternatives/preferred alternative complies
with the CALSTA Climate Action Plan for Transportation Infrastructure
dated July 2021.
7. Necessary Geotechnical Engineering, Materials Report and Log of Test
Borings to support the development of the PA/ED.
Exhibit A-1
48
8. Traffic Engineering to support the development and selection of the
preferred alternative.
9. Update and maintain the Complete Streets Decision Document (CSDD).
10. Identify how the proposed alternatives can incorporate Bike Lane or other
mobility options with the project limits and include with the documents.
11. Roadway Engineering, to Caltrans standards, to develop the concept
design (less than 30%) for support of the environmental document
process. This may include, but not limited to: Title Sheet, Typical Cross
Sections, Key Map and Line Index, Layout drawings, Profiles and
Superelevation Diagrams, Contour Grading, Drainage and BMP Layouts,
Drainage Profiles, Details and Quantities, Utility Plans, Details and
Quantities, Electrical and Communication Plans, Summary of Quantity
Sheets, Lighting and Sign Illumination, Rip Metering System, and
Planting and Storm Water Plans.
12. Aerial and ground Survey (mapping for c engineering).
13. Conceptual Hydraulic and Draina• - ngin g, Storm Water Data
Report and On -Site Roadway Drair •e Report.
14. Conceptual Storm Water Pollutio 'rev- !tion Plan (SWPPP) Preparation
Identify Right -of -Way Requirem . nd develop Right-of-way data
sheets.
15. If any person or place will be di ace• then prepare Relocation Impact
Studies.
16. Identification of non-standa atures that will require preparation and
approval of Design Standar• , 'ecision Document (DSDD) in the PS&E
phase. Develop fact shee • support all mandatory and advisory
standard deviations.
17. Environmental Coordination includes acquiring the Section 404
Nationwide Permit 14 Pre -Construction Notification (USACE), the 1600
Streambed Agreement Sub -Notification (CDFW), and Section 401 Water
Quality Certification.
18. Identify any necessary Encroachment Permits for the project.
19. Utility Coordination and potholing.
20. Coordination Meetings with the Commission, City of Banning, City of
Beaumont, County of Riverside, Caltrans, and FHWA.
21. Coordination, reviews and approvals with: Army Corps of Engineers, US
Fish and Wildlife Services, California Department of Fish and Wildlife,
Regional Conservation Authority, Santa Ana Regional Water Quality
Control Board, Colorado Regional Water Quality Control Board, City of
Banning, City of Beaumont, County Flood Control District and Caltrans.
22. Coordination with Native American Tribes and development of any cultural
study reports necessary to obtain the Native American Tribes approval of
the project.
23. Identify all forms, maps and documents required for all applicable permits.
24. Preparation of hard copy and electronic/CAD drawings to Caltrans
standards (reproducible drawings).
Exhibit A-2
49
25. Assist the Commission and Cities of Banning and Beaumont in identifying
the preferred alternative.
26. Develop cost estimates for the various alternatives.
27. Perform a Value Analysis Study of the various alternatives.
28. Provide copies of reports, drawings and studies to the Commission at
each stage of submittal.
29. Develop, Issue, mail, and track the Notice of Preparation (NOP).
30. Coordination of the CEQA document with RCTC legal counsel review and
incorporation of comments.
31. Development and obtain approval of a Modified Access Report (MAR).
32. Develop, Issue, mail, and track and notifications to the public, state
clearing house, or others as required by the environmental process.
Prepare and assist RCTC in circulation of the Mitigated Negative
Declaration (MND) and Finding of No Significant Impact (FONSI).
33. Develop and obtain Caltrans / RCTC/ Cities approval of the Draft Project
Report.
34. Perform typical Project Management (PM) duties including but not limited
to organizing and chairing Project Development Team meetings and
another focus or necessary meetings to deliver the project; maintain a
project schedule and provide monthly updates and narratives on the work
performed identify any delays/impacts to the project schedule and provide
recovery plans; develop and maintain a risk matrix; develop and maintain
a deliverables matrix and all other PM duties as outlined in Caltrans
Project Development Procedures Manual (PDPM).
35. The Offeror will coordinate with the RCTC and City of Banning and
Beaumont's Public Affairs teams to ensure community awareness and
engagement in the project through the appointment of a Public Outreach
Specialist, who will assist with developing a Public Outreach Plan; drafting
and using consistent key messages; participating in team meetings;
preparing content for project fact sheet in English and Spanish; preparing
and monitoring social media content for posting to @therctc; developing
and maintaining contact database; informing database contacts via email
notices, telephone calls, and door-to-door delivery, as directed; organizing
informational meetings (in -person and/or virtual formats, as well as
meetings with residents, businesses, and stakeholder groups, as
directed); assisting with scheduling presentations for Commission staff
and attending presentations as directed; coordinating logistics and
notification efforts for public hearing, including methods to gather and
summarize public comments.
1. PROJECT DELIVERY
The Commission has established the following tentative project milestones:
Exhibit A-3
50
1. Consultant Notice to Proceed
2. Prepare PA/ED
3. Circulate ND/MND/FONSI
4. Issue Draft Project Report
5. Finalize Project Report
1. GENERAL REQUIREMENTS
May 2022
May 2022 to September 2023
September 2023
September 2023
December 2023
The consultant is expected to prepare all reports, studies and plans to meet Caltrans,
City of Banning, City of Beaumont, and Federal Highway Administration (FHWA)
requirements. Commission staff will provide overall project coordination and will handle
administrative matters. Caltrans will provide oversight, guidance and interpretation on
matters relating to State policies and regulations.
2. DATA COLLECTION
The project will involve the review and assimilati of the ex g and approved PSR-
PDS for the 1-10 Highland Springs Project. The consultant will b expected to make the
best use of existing data to minimize waste and duplication of work efforts.
3. MEETINGS/PUBLIC INVOLVEMENT
The consultant will be required to meet with the Commission and others that may
include Caltrans, the City of Banning, City of Beaumont, FHWA, other public agencies,
and private entities located within the Project boundaries on a regular basis. Project
Development Team (PDT) meetings will be held monthly with the project stakeholders.
4. FINAL PRODUCTS/DELIVERABLES
Specific final products/deliverables related to the project are listed below:
• PA/ED and all technical studies
• Conceptual Plans (less than 30%) electronic version plus 1 Full Size (D -Size)
and 1 half size copy of final drawings. Also required is, electronic versions
and hard copies of all reports, value engineering and cost estimates).
• Conceptual Water Quality Management Plan(WQMP)/Transportation Project
Guidance (TPG) and Storm Water Pollution Prevention Plan (SWPPP) as
required
• Geotechnical Report, Materials Report, Log of Test Borings, and Materials
Information Write -Up to support the PA/ED Development
• Conceptual Cross Sections
• Drainage and Hydraulic Reports
• Right of Way Requirements and Right of Way Data Sheet, Legal and Plats
• Utility Drawings and Draft Notice to Relocate
• Modified Access Report
• Other products to match your work activities as described in Section B above.
Exhibit A-4
51
EXHIBIT "B" - SCHEDULE OF SERVICES
52
PROPOSAL
1-10 HIGHLAND SPRINGS INTERCHANGE IMPROVEMENTS
Riverside County Transportation Commission
PROJECT SCHEDULE
ID
10
11
12
13
14
15
16
7
18
19
20
21
22
23
24
25
26
35
43
49
53
63
68
73
80
88
89
90
91
92
93
94
95
103
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
83
184
185
186
187
188
189
8
ask Name
Notice to Proceed
Data Gathering, Surveying & Base Map
Preliminary Engineering
Duration Start
Finish
1 day 5/2/22 5/2/22
60 days 5/3/22 7/25/22
355 days 5/3/22 9/11/23
5/3/22 2/20/23
5/3/22 5/30/22
5/3/22 5/30/22
4 wks 5/31/22 6/27/22
2 wks 6/28/22 7/11/22
4 wks 7/12/22 8/8/22
2 wks 8/9/22 8/22/22
4 wks 8/23/22 9/19/22
2 wks 9/20/22 10/3/22
6 wks 10/4/22 11/14/22
4 wks 11/15/22 12/12/22
4 wks 12/13/22 1/9/23
2 wks 1/10/23 1/23/23
2 wks 1/24/23 2/6/23
0 wks 2/20/23 2/20/23
140 days 8/23/22 3/6/23
5/31/22 9/19/22
55 days 11/1/22 1/16/23
30 days 11/29/22 1/9/23
140 days 11/29/22 6/12/23
35 days 11/29/22 1/16/23
80 days 8/23/22 12/12/22
35 days 12/13/22 1/30/23
105 days 4/18/23 9/11/23
175 days 1/10/23 9/11/23
8 wks 1/10/23 3/6/23
4 wks 3/7/23 4/3/23
2 wks 4/4/23 4/17/23
2 wks 4/18/23 5/1/23
8/29/23 9/11/23
432 days 5/3/22 12/27/23
100 days 5/3/22 9/19/22
5/31/22 4/17/23
157 days 3/21/23 10/25/23
3/21/23 4/17/23
4/18/23 5/15/23
3 wks 5/16/23 6/5/23
4 wks 6/6/23 7/3/23
4 wks 7/4/23 7/31/23
4 wks 8/1/23 8/28/23
4 wks 8/29/23 9/25/23
9/25/23
9/25/23 10/25/23
0 days 10/9/23 10/9/23
50 days 10/19/23 12/27/23
10/26/23 11/1/23
2 wks 10/19/23 11/1/23
4 wks 11/2/23 11/29/23
1 wk 11/30/23 12/6/23
2 wks 12/7/23 12/20/23
1 wk 12/21/23 12/27/23
1 wk 12/21/23 12/27/23
10/19/23 12/27/23
10/19/23 11/1/23
2 wks 11/2/23 11/15/23
11/16/23 12/20/23
1 wk 12/21/23 12/27/23
0 days 12/27/23 12/27/23
Traffic Analysis
Data Collection and Existing Conditions Analysis
210 days
4 wks
Traffic Analysis Approach and Methodology Memo 4 wks
PDT Review
Final Traffic Approach Memo
Develop Traffic Forecasts and VMT Analysis
Draft Traffic Forecasting Memorandum
PDT Review
Final Traffic Forecasting Memorandum
Operational Analysis
Draft Traffic Operations Analysis Report
PDT Review
Revise TOAR
PDT Review
Final TOAR
Geometric Approval Drawings
Preliminary Geotechnical Engineering 80 days
Structure Advance Planning Studies
Traffic Management Plan
Design Standard Decision Documents
Drainage and Storm Water Reports
Life Cycle Cost Analysis
Right of Way
Modified Access Report
Draft Project Report
Prepare Admin Draft Project Report
PDT Review
Prepare Draft Project Report (Caltrans Management Review)
PDT Review
Draft Project Report (Caltrans Signatures) 2 wks
Environmental Document
Notice of Preparation
Technical Studies 230 days
Draft IS/EA
Admin Draft 4 wks
PDT Review 4 wks
2nd Admin Draft
Caltrans QA/QC
Pre -Public Draft
PDT Review
Public Draft Production
Public Review Submittal to SCH
0 days 9/25/23
Public Review 30 edays
Public Meeting
Final IS/EA
Response to Public Comments 1 wk
Admin Final
PDT Review
2nd Admin Final
PDT Review #2
Pre -Public Final
Distribute Responses to Comments to Commenting Agencies
Final Project Report
Prepare Final Project Report
50 days
2 wks
PDT Review
Prepare Final Project Report (Caltrans Management Review) 5 wks
Final Project Report (Caltrans Signatures)
Project Report Approved
A M
Half 2, 2022
A
S 0 N n
Half 1, 2023
F I M I A M 1
Half 2, 2023 Half 1, 2024
1 A I S O N n 1
An IS/EA .s expected and is
consistent with the completed
PEAR. Since VMT is not expected
to be increased, there is an
opportunity to streamline the
environmental approach.
Final Project Report will be
completed in December 2023.
This matches RCTC's anticipated
schedule, allowing the project to
move into Final Design.
4_
Traffic will be the critical path and help define
the alternatives and develop the environmental
footprint. Our focused approach in the first
30 -days will build consensus with the
Commission and Caltrans.
The Modified Access Report will
be submitted with the Draft Project
Report. This coodination with FHWA
is required when modifying the
ramp connection of 1-10.
1
42
53
EXHIBIT "C" - COMPENSATION PROVISIONS
54
EXHIBIT "C"
COMPENSATION SUMMARY
FIRM
I PROJECT TASKS/ROLE
COST
Prime Consultant:
Mark Thomas
PA/ED Services
$
882,291.00
Sub Consultants:
Ambient
109,067.00
Arellano
110,460.00
Duke
22,144.00
Fehr & Peers
153,180.00
GPA
507,330.00
Group Delta
68,617.00
HDR
282,111.00
Q3
64,434.00
VMS
011°(
41
TOTAL COSTS
$
2,199,634.00
1 Commission authorization pertains to total contract award amou Compensation adjustments between consultants may occur;
however, the maximum total compensation authorized may not be eeded.
55
EXHIBIT "D"
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, Consultan d its subconsultants shall
not deny the Agreement's benefits to any person on th- :asis of race, religious creed,
color, national origin, ancestry, physical disability, a ability, medical condition,
genetic information, marital status, sex, gender, -rider i•` ity, gender expression,
age, sexual orientation, or military and vete `'`' status, n• hall they unlawfully
discriminate, harass, or allow harassment wins y employee or applicant for
employment because of race, religious creed, ational origin, ancestry, physical
disability, mental disability, medical co ion, ge c information, marital status, sex,
gender, gender identity, gender expre e, ;;: al orientation, or military and
veteran status. Consultant and its subc cult pall insure that the evaluation and
treatment of their employees . ppli ` `s for employment are free from such
discrimination and harassmen
C. Consultant and its su
Employment and Hou
promulgated thereu
11139.5, and any
article. The applicab
implementing Gov. Co
into this Agreement by ref
an all comply with the provisions of the Fair
Code §12990 et seq.), the applicable regulations
0 et seq.), the provisions of Gov. Code §§11135 -
standards adopted by Commission to implement such
s of the Fair Employment and Housing Commission
0 (a -f), set forth 2 CCR §§8100-8504, are incorporated
ce 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.
56
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 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 Civil Rights Act of 1964).
Specifically, the Consultant shall not participate eith'_ ;'directly or indirectly in the
discrimination prohibited by 49 CFR §21.5, include ; e oyment practices and the
selection and retention of subconsultants.
H. Consultant and its subconsultants will ne exc any person from participation
in, deny any person the benefits of, or oth discriminate against anyone in
connection with the award and perform e of an ntract covered by 49 CFR 26 on
the basis of race, color, sex, or nati, •in. administering the Commission
components of the DBE Program plan, o► • and its subconsultants will not,
directly, or through contractual ether angements, use criteria or methods of
administration that have a 'ct defeating or substantially impairing
accomplishment of the objet es o - . rogram plan with respect to individuals of
a particular race, color, sex, o
I. Consultant shal clude - n. •iscrimination and compliance provisions of this
section in all subco work under this Agreement.
2. DEBARMENT AND ` _ SION 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.
57
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.
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 CFA>>''art 26. The Commission
shall take all necessary and reasonable steps and ;% 9 CFR Part 26 to ensure
nondiscrimination in the award and administration of isted contracts.
Consultant or subcontractor shall not discrimin
origin, of sex in the performance of this Agre
carry out applicable requirements of 49 CFR P
the award and administration of DOT- isted
Failure by the Consultant or subcontrac
breach of this Agreement, which may res
other remedy, as the Commissio
on the basi race, color, national
nsultant or subcontractor shall
and the Caltrans DBE program in
acts, as further set forth below.
ese requirements is a material
ination of this Agreement or such
Failure by the Consultant t equirements is a material breach of this
contract, which may result in - rmi - of this contract or such other remedy as
the recipient deems a .ch may include, but is not limited to:
(1) Withholding mo
(2) Assessing sanctio
(3) Liquidated damages,
(4) Disqualifying Consulta
4. PROMPT PAYMENT
rom future proposing as non -responsible
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
58
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
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 prohibite
subconsultants. Any delay or postponement of paymer(J
cause and with the Commission's prior written
provisions shall subject Consultant or the viola
sanctions, and other remedies specified in Se
This requirement shall not be construed to lim
or judicial remedies, otherwise available to Con
dispute involving late payment or none.:, ment b
performance and/or noncompliance by
DBE and non -DBE subconsultants.
6. LEGAL REMEDIES
In addition to those contract
law, either Party to
violations of this A
and 26, to the r
violations, and to th
"whistleblower" actions,
provisions of law.
m holding retainage from
ay take place only for good
Any violation of these
subc' ,.ultant to the penalties,
3321 of t ,California Civil Code.
any con ractual, administrative
or subconsultant in the event of a
onsultant, deficient subconsultant
t. This clause applies to both
es orth under relevant provisions of California
t may, where applicable, seek legal redress for
to the relevant provisions of 49 C.F.R. Parts 23
or state statutory provisions governing civil rights
deral and state provisions governing false claims or
II as any and all other applicable federal and state
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 Exhibits "E" of this Agreement in compliance with
the Caltrans DBE program, and a final utilization report in the form provided by the
Commission.
59
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 has a DBE goal. Participation by DBE Consultant or
subconsultants shall be in accordance with the information contained in the Consultant
Contract DBE Commitment form attached hereto and incorporated into this Agreement
by reference. 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 material 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
60
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.
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 prop al list of subcontractors.
F. A Consultant who is a certified DBE is eligible to claim all of the work in the
Agreement toward the DE rtic ation except that portion of the work to be performed
by non -DBE subcontractors .
G. Consultant shall notify a 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.
61
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 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-CERTIFICATIO . ATUS
If a DBE subcontractor is decertified before c npletin• work, the decertified
subcontractor shall notify the Contractor in writing with the da •f 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
AOPRIk
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
62
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,.'>lifornia Highway Patrol CA
number, and if applicable, the DBE certification number he truck owner for all trucks
used during that month. This documentation sha_",,'. = =. bmitted on the Caltrans
"Monthly DBE Trucking Verification," CEM-2404(F .rm p ed to the Contractor by
the Commission's Contract Administrator.
12. REPORTING MATERIAL OR SUPPLIE HASED FROM DBEs
When Reporting DBE Participation, M
count as follows:
A. If the materials or supp
cost of the materials or
manufacturer is a firm that
produces on the prem
the Agreement and
B. If the material
the cost of the material
that owns, operates or m
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.
purchased from DBEs may
from a DBE manufacturer, 100 % of the
toward the DBE participation. A DBE
es aintains a factory or establishment that
rials, supplies, articles, or equipment required under
acter described by the specifications.
purchased from a DBE regular dealer, count 60 % of
plies toward DBE goals. A DBE regular dealer is a firm
ains a store, warehouse, or other establishment in which
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,
63
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 perfo
materials for which each is listed unless Consultant or
Commission's written consent. Consultant shall not t
for convenience and perform the work with their
other sources without authorization from the
consent is provided, the Consultant shall no
material unless it is performed or supplied by
Contract DBE Commitment form.
n forc
mission.
the work and supply the
subconsultant obtains the
or substitute a listed DBE
r obtain materials from
s the Commission's
d to any payment for work or
DBE on the attached Consultant
The Commission authorizes a request orces or sources of materials if
Consultant shows any of the foll• ' usti ': ons:
1. Listed DBE fails
specifications for
2. The Com
subcon
require
3. Work req
license and
to a written contract based on plans and
jec
ated that a bond is a condition of executing the
d DBE fails to meet the Commission's bond
ultant's license and listed DBE does not have a valid
actors License Law.
4. Listed DBE fai .r 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.
64
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
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
65
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, is Agreement is subject to
any additional restrictions, limitations, conditions, or statute enacted by the
Congress, State Legislature, or Commission gover ' board that may affect the
provisions, terms, or funding of this Agreement in an
It is mutually agreed that if sufficient funds are ►. '' appr•priated, 'is Agreement may be
amended to reflect any reduction in funds.
66
EXHIBIT "E" - CONSULTANT DBE COMMITMENT
67
LA MARK
■ ■ THOMAS /
EXHIBIT 10-01 CONSULTANT PROPOSAL DBE COMMITMENT
1. Local Agency: Riverside County Transportation Commission 2. Contract DBE Goal: 18%
3. Project Description:
Forms
1-10 Highland Springs Interchange Improvements 08-RIV-10-PM8.2/11.3
4. Project Location: Riverside County
5. Consultant's Name: Mark Thomas & Company, Inc.
6. Prime Certified DBE: 0
7. Description of Work, Service, or Materials
Supplied
8. DBE
Certification
Number
9. DBE Contact Information
10. DBE %
Environmental Lead, Biological, Cultural,
and Water Quality Resources
36278
GPA - 840 A •Ilo Street, Suite 312
El Segun• A 90245 I (310) 792-2690
TBD
Public Outreach
41199
Arell. - 1 Pine Avenue, Suite A
C ' • • ills, 11709 I (909) 627-2974
TBD
Local Agency to • lete t cti
11. TOTAL CLAIMED DBE PARTICIPATION
18 %
17. Local Agency Contract Numb -
18. Federal -Aid Project Number:
19. Proposed Contract Execution Date:
Local Agency certifies that all DBE certifications are valid and information on
this form is complete and accurate.
IMPORTANT: Identify all DBE firms being claimed for credit,
regardless of tier. Written confirmation of each listed DBE is
. _ 02/03/2022
20. Local Agency Representative's Signature 21. Date
` 13. Date
Darin Johnson (949) 701-9427
22. Local Agency Representative's Name
23. Phone
14. Preparer's Name 15. Phone
Associate Principal
24. Local Agency Representative's Title
16. Preparer's Title
DISTRIBUTION: Original — Included with consultant's proposal to local agency.
ADA Notice: For individuals with sensory disabilities, this document is available in alternate formats. For information call (916) 654-6410 or TDD (916) 654-
3880 or write Records and Forms Management, 1120 N Street, MS -89, Sacramento, CA 95814.
68
EXHIBIT "F" - DISCLOSURE OF LOBBYING ACTIVITIES
69
►I MARK
■ ■ THOMAS
Local Assistance Procedures Manual
Forms
EXHBIT 10-Q
Disclosure of Lobbying Activities
Not applicable - Mark Thomas has no lobbying activities to disclose
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:
a. contract
b. grant
c. cooperative agreement
d. loan
e. loan guarantee
f. loan insurance
2. Status of Federal Action:
❑ a bid/offer/application
b. initial award
c. post -award
4. Name and Address of Reporting Entity
Prime nSubawardee
Tier , if known
Congressional District, if known
6. Federal Department/Agency:
8. Federal Action Number, if known:
10. Name and Address of Lobby Enti
(If individual, last name, first nam
12. Amount of Paymen
13. Form of Payment
®a. cash
b. in -kind; specify:
3. Report Type:
a. initial
b. material change
For Material Change Only:
year quarter
date of last report
5. If Reporti i i tity in No. 4 is Subawardee,
Enter N , nd Address of Prime:
ional Distri. 'f known
rogram Name/Description:
Number, if applicable
mount, if known:
11. Individuals Performing Services
(including address if different from No. 10)
(last name, first name, MI)
eet(s) if necessary)
14. Type of Payment (check all that apply)
a. retainer
b. one-time fee
c. commission
d. contingent fee
e deferred
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 pi No n
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. Telephone No.: (805) 701-9427
arin
0
nson
Federal Use Only:
Signature:
Print Name:
Title: Associate Principal
Date: 02/03/2022
Authorized for Local Reproduction
Standard Form - LLL
Standard Form LLL Rev. 04-28-06
70
Distribution: Orig- Local Agency Project Files
ATTACHMENT 2
[INSERT PROJECT #]
TRANSPORTATION UNIFORM MITIGATION FEE PROGRAM
AGREEMENT TO REIMBURSE TUMF FUNDS
INTERSTATE 10 HIGHLAND SPRINGS INTERCHANGE IMPROVEMENTS
PROJECT APPROVALS & ENVIRONMENTAL DOCUMENT PHASE
THIS REIMBURSEMENT AGREEMENT ("Agreement") is entered into as of this day
of , 20 , by and between the Western Riverside Council of Governments ("WRCOG"), a
California joint powers authority and the Riverside County Transportation Commission
("AGENCY"). WRCOG and AGENCY are sometimes hereinafter referred to individually as
"Party" and collectively as "Parties".
RECITALS
A. WRCOG is the Administrator of the Transportation Uniform Mitigation Fee
Program of Western Riverside County ("TUMF Program").
B. WRCOG has identified and designated certain transportation improvement
projects throughout Western Riverside County as projects of regional importance ("Qualifying
Projects" or "Projects"). The Qualifying Projects are more specifically described in that certain
WRCOG study titled "TUMF Nexus Study", as may be amended from time to time. Qualifying
Projects can have Regional or Zonal significance as further described in the TUMF Nexus Study.
C. The TUMF Program is funded by TUMF fees paid by new development in
Western Riverside County (collectively, "TUMF Program Funds"). TUMF Program Funds are
held in trust by WRCOG for the purpose of funding the Qualifying Projects.
D. The AGENCY proposes to implement a Qualifying Project, and it is the purpose
of this Agreement to identify the project and to set forth the terms and conditions by which
WRCOG will release TUMF Program Funds.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and subject to the
conditions contained herein, the Parties hereby agree as follows:
1. Description of the Qualifying Project. This Agreement is intended to distribute
TUMF Program Funds to the AGENCY for the Interstate 10 Highland Springs Interchange
Improvements, (the "Project"), a Qualifying Project. The Work, including a timetable and a
detailed scope of work, is more fully described in Exhibit "A" attached hereto and incorporated
herein by reference and, pursuant to Section 20 below, is subject to modification if requested by
the AGENCY and approved by WRCOG. The work shall be consistent with one or more of the
defined WRCOG Call for Projects phases detailed herein as follows:
1) PA&ED — Project Approvals & Environmental Document
2. WRCOG Funding Amount. WRCOG hereby agrees to distribute to AGENCY,
on the terms and conditions set forth herein, a sum not to exceed One Million Dollars
Page 1 of 23
71
[INSERT PROJECT #]
($1,000,000), to be used for reimbursing the AGENCY for eligible Project expenses as described
in Section 3 herein ("Funding Amount"). The Parties acknowledge and agree that the Funding
Amount may be less than the actual cost of the Project. Nevertheless, the Parties acknowledge
and agree that WRCOG shall not be obligated to contribute TUMF Program Funds in excess of
the maximum TUMF share identified in the TUMF Nexus Study ("Maximum TUMF Share"), as
may be amended from time to time.
3. Project Costs Eligible for Advance/Reimbursement. The total Project costs
("Total Project Cost") may include the following items, provided that such items are included in
the scope of work attached hereto as Exhibit "A" ("Scope of Work"): (1) AGENCY and/or
consultant costs associated with direct Project coordination and support; (2) funds expended in
preparation of preliminary engineering studies; (3) funds expended for preparation of
environmental review documentation for the Project; (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 AGENCY, 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 AGENCY or consultants;
(7) AGENCY costs associated with bidding, advertising and awarding of the Project contracts;
(8) construction costs, including change orders to construction contract approved by the
AGENCY; (9) construction management, field inspection and material testing costs; and (10)
any AGENCY administrative cost to deliver the Project.
4. Ineligible Project Costs. The Total Project Cost shall not include the following
items which shall be borne solely by the AGENCY without reimbursement: (1) any AGENCY
administrative fees attributed to the reviewing and processing of the Project; and (2) expenses for
items of work not included within the Scope of Work in Exhibit "A".
5. Procedures for Distribution of TUMF Program Funds to AGENCY.
(a) Initial Payment by the AGENCY. The AGENCY shall be responsible for
initial payment of all the Project costs as they are incurred. Following payment of such Project
costs, the AGENCY shall submit invoices to WRCOG requesting reimbursement of eligible
Project costs. Each invoice shall be accompanied by detailed contractor invoices, or other
demands for payment addressed to the AGENCY, and documents evidencing the AGENCY's
payment of the invoices or demands for payment. Documents evidencing the AGENCY'S
payment of the invoices shall be retained for four (4) years and shall be made available for
review by WRCOG. The AGENCY shall submit invoices not more often than monthly and not
less often than quarterly.
(b) Review and Reimbursement by WRCOG. Upon receipt of an invoice
from the AGENCY, WRCOG may request additional documentation or explanation of the
Project costs for which reimbursement is sought. Undisputed amounts shall be paid by WRCOG
to the AGENCY within thirty (30) days. In the event that WRCOG disputes the eligibility of the
AGENCY 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 AGENCY may appeal WRCOG's decision as to the eligibility of one
or more invoices to WRCOG's Executive Director. The WRCOG Executive Director shall
Page 2 of 23
72
[INSERT PROJECT #]
provide his/her decision in writing. If the AGENCY disagrees with the Executive Director's
decision, the AGENCY may appeal the decision of the Executive Director to the full WRCOG
Executive Committee, provided the AGENCY submits its request for appeal to WRCOG within
ten (10) days of the Executive Director's written decision. The decision of the WRCOG
Executive Committee shall be final. Additional details concerning the procedure for the
AGENCY's submittal of invoices to WRCOG and WRCOG's consideration and payment of
submitted invoices are set forth in Exhibit "B", attached hereto and incorporated herein by
reference.
(c) Funding Amount/Adjustment. If a post Project audit or review indicates
that WRCOG has provided reimbursement to the AGENCY in an amount in excess of the
Maximum TUMF Share of the Project, or has provided reimbursement of ineligible Project
costs, the AGENCY shall reimburse WRCOG for the excess or ineligible payments within 30
days of notification by WRCOG.
6. Increases in Project Funding. The Funding Amount may, in WRCOG's sole
discretion, be augmented with additional TUMF Program Funds if the TUMF Nexus Study is
amended to increase the maximum eligible TUMF share for the Project. Any such increase in
the Funding Amount must be approved in writing by WRCOG's Executive Director. In no case
shall the amount of TUMF Program Funds allocated to the AGENCY exceed the then -current
maximum eligible TUMF share for the Project. No such increased funding shall be expended to
pay for any Project already completed. For purposes of this Agreement, the Project or any
portion thereof shall be deemed complete upon its acceptance by WRCOG's Executive Director
which shall be communicated to the AGENCY in writing.
7. No Funding for Temporary Improvements. Only segments or components of the
construction that are intended to form part of or be integrated into the Project may be funded by
TUMF Program Funds. No improvement which is temporary in nature, including but not limited
to temporary roads, curbs, tapers or drainage facilities, shall be funded with TUMF Program
Funds, except as needed for staged construction of the Project.
8. AGENCY's Funding Obligation to Complete the Project. In the event that the
TUMF Program Funds allocated to the Project represent less than the total cost of the Project, the
AGENCY shall provide such additional funds as may be required to complete the Project.
9. AGENCY's Obligation to Repay TUMF Program Funds to WRCOG; Exception
For PA&ED Phase Work. Except as otherwise expressly excepted within this paragraph, in the
event that: (i) the AGENCY, for any reason, determines not to proceed with or complete the
Project; or (ii) the Project is not timely completed, subject to any extension of time granted by
WRCOG pursuant to the terms of this Agreement; the AGENCY agrees that any TUMF Program
Funds that were distributed to the AGENCY for the Project shall be repaid in full to WRCOG,
and the Parties shall enter into good faith negotiations to establish a reasonable repayment
schedule and repayment mechanism. If the Project involves work pursuant to a PA&ED phase,
AGENCY shall not be obligated to repay TUMF Program Funds to WRCOG relating solely to
PA&ED phase work performed for the Project.
Page 3 of 23
73
[INSERT PROJECT #]
10. AGENCY's Local Match Contribution. AGENCY local match funding is not
required, as shown in Exhibit "A".
11. Term/Notice of Completion. The term of this Agreement shall be from the date
first herein above written until the earlier of the following: (i) the date WRCOG formally
accepts the Project as complete, pursuant to Section 6; (ii) termination of this Agreement
pursuant to Section 15; or (iii) the AGENCY has fully satisfied its obligations under this
Agreement. All applicable indemnification provisions of this Agreement shall remain in effect
following the termination of this Agreement.
12. Representatives of the Parties. WRCOG's Executive Director, or his or her
designee, shall serve as WRCOG's representative and shall have the authority to act on behalf of
WRCOG for all purposes under this Agreement. The AGENCY hereby designates Anne Mayer,
Executive Director, or his or her designee, as the AGENCY's representative to WRCOG. The
AGENCY's representative shall have the authority to act on behalf of the AGENCY for all
purposes under this Agreement and shall coordinate all activities of the Project under the
AGENCY's responsibility. The AGENCY shall work closely and cooperate fully with
WRCOG's representative and any other agencies which may have jurisdiction over or an interest
in the Project.
13. Expenditure of Funds by AGENCY Prior to Execution of Agreement. Nothing in
this Agreement shall be construed to prevent or preclude the AGENCY from expending funds on
the Project prior to the execution of the Agreement, or from being reimbursed by WRCOG for
such expenditures. However, the AGENCY understands and acknowledges that any expenditure
of funds on the Project prior to the execution of the Agreement is made at the AGENCY's sole
risk, and that some expenditures by the AGENCY may not be eligible for reimbursement under
this Agreement.
14. Review of Services. The AGENCY shall allow WRCOG's Representative to
inspect or review the progress of the Project at any reasonable time in order to determine whether
the terms of this Agreement are being met.
15. Termination.
(a) Notice. Either WRCOG or AGENCY 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.
(b) Effect of Termination. In the event that the AGENCY terminates this
Agreement, the AGENCY shall, within 180 days, repay to WRCOG any unexpended TUMF
Program Funds provided to the AGENCY under this Agreement and shall complete any portion
or segment of work for the Project for which TUMF Program Funds have been provided. In the
event that WRCOG terminates this Agreement, WRCOG shall, within 90 days, distribute to the
AGENCY TUMF Program Funds in an amount equal to the aggregate total of all unpaid
Page 4 of 23
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[INSERT PROJECT #]
invoices which have been received from the AGENCY regarding the Project at the time of the
notice of termination; provided, however, that WRCOG shall be entitled to exercise its rights
under Section 5(b), including but not limited to conducting a review of the invoices and
requesting additional information. Upon such termination, the AGENCY shall, within 180 days,
complete any portion or segment of work for the Project for which TUMF Program Funds have
been provided. This Agreement shall terminate upon receipt by the non -terminating Party of the
amounts due to it hereunder and upon completion of the segment or portion of Project work for
which TUMF Program Funds have been provided.
(c) 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.
16. Prevailing Wages. The AGENCY and any other person or entity hired to perform
services on the Project 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 AGENCY shall ensure
compliance with these prevailing wage requirements by any person or entity hired to perform the
Project. The AGENCY shall defend, indemnify, and hold harmless WRCOG, 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.
17. Progress Reports. WRCOG may request the AGENCY to provide WRCOG with
progress reports concerning the status of the Project.
18. Indemnification.
(a) AGENCY Responsibilities. In addition to the indemnification required
under Section 16, the AGENCY agrees to indemnify and hold harmless WRCOG, its officers,
agents, consultants, and employees from any and all claims, demands, costs or liability arising
from or connected with all activities governed by this Agreement including all design and
construction activities, due to negligent acts, errors or omissions or willful misconduct of the
AGENCY or its subcontractors. The AGENCY will reimburse WRCOG for any expenditures,
including reasonable attorneys' fees, incurred by WRCOG, in defending against claims
ultimately determined to be due to negligent acts, errors or omissions or willful misconduct of
the AGENCY.
(b) WRCOG Responsibilities. WRCOG agrees to indemnify and hold
harmless the AGENCY, its officers, agents, consultants, and employees from any and all claims,
demands, costs or liability arising from or connected with all activities governed by this
Agreement including all design and construction activities, due to negligent acts, errors or
omissions or willful misconduct of WRCOG or its sub -consultants. WRCOG will reimburse the
AGENCY for any expenditures, including reasonable attorneys' fees, incurred by the AGENCY,
in defending against claims ultimately determined to be due to negligent acts, errors or omissions
or willful misconduct of WRCOG.
Page 5 of 23
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[INSERT PROJECT #]
(c) Effect of Acceptance. The AGENCY shall be responsible for the
professional quality, technical accuracy and the coordination of any services provided to
complete the Project. WRCOG's review, acceptance or funding of any services performed by
the AGENCY or any other person or entity under this Agreement shall not be construed to
operate as a waiver of any rights WRCOG may hold under this Agreement or of any cause of
action arising out of this Agreement. Further, the AGENCY shall be and remain liable to
WRCOG, in accordance with applicable law, for all damages to WRCOG caused by the
AGENCY's negligent performance of this Agreement or supervision of any services provided to
complete the Project.
19. Insurance. The AGENCY shall require, at a minimum, all persons or entities
hired to perform the Project to obtain, and require their subcontractors to obtain, insurance of the
types and in the amounts described below and satisfactory to the AGENCY and WRCOG. Such
insurance shall be maintained throughout the term of this Agreement, or until completion of the
Project, whichever occurs last.
(a) Commercial General Liability Insurance. Occurrence version commercial
general liability insurance or equivalent form with a combined single limit of not less than
$1,000,000.00 per occurrence. If such insurance contains a general aggregate limit, it shall apply
separately to the Project or be no less than two times the occurrence limit. Such insurance shall:
(i) Name WRCOG and AGENCY, and their respective officials,
officers, employees, agents, and consultants as insured with respect to performance of the
services on the Project and shall contain no special limitations on the scope of coverage or the
protection afforded to these insured;
(ii) Be primary with respect to any insurance or self-insurance
programs covering WRCOG and AGENCY, and/or their respective officials, officers,
employees, agents, and consultants; and
(iii) Contain standard separation of insured provisions.
(b) 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.
(c) 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.
(d) 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.
Page 6 of 23
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[INSERT PROJECT #]
20. Project Amendments. Changes to the characteristics of the Project, including the
deadline for Project completion, and any responsibilities of the AGENCY or WRCOG may be
requested in writing by the AGENCY and are subject to the approval of WRCOG's
Representative, which approval will not be unreasonably withheld, provided that extensions of
time for completion of the Project shall be approved in the sole discretion of WRCOG's
Representative. Nothing in this Agreement shall be construed to require or allow completion of
the Project 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.), if applicable, but the necessity of compliance with CEQA and/or
NEPA shall not justify, excuse, or permit a delay in completion of the Project.
21. Conflict of Interest. For the term of this Agreement, no member, officer or
employee of the AGENCY or WRCOG, during the term of his or her service with the AGENCY
or WRCOG, as the case may be, shall have any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising therefrom.
22. Limited Scope of Duties. WRCOG's and the AGENCY's duties and obligations
under this Agreement are limited to those described herein. WRCOG has no obligation with
respect to the safety of any Project performed at a job site. In addition, WRCOG shall not be
liable for any action of AGENCY or its contractors relating to the condemnation of property
undertaken by AGENCY or construction related to the Project.
23. Books and Records. Each party shall maintain complete, accurate, and clearly
identifiable records with respect to costs incurred for the Project 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 four (4) years following termination of this Agreement, and they shall
have access to such information during the four-year period for the purposes of examination or
audit.
24. 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.
25. Governing Law. This Agreement shall be governed by and construed with the
laws of the State of California.
26. Attorneys' Fees. If either party commences an action against the other party
arising out of or in connection with this Agreement, the prevailing party in such litigation shall
be entitled to have and recover from the losing party reasonable attorneys' fees and costs of suit.
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[INSERT PROJECT #]
27. Time of Essence. Time is of the essence for each and every provision of this
Agreement.
28. 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.
29. Public Acknowledgement. The AGENCY agrees that all public notices, news
releases, information signs and other forms of communication shall indicate that the Project is
being cooperatively funded by the AGENCY and WRCOG TUMF Program Funds.
30. No Joint Venture. This Agreement is for funding purposes only and nothing
herein shall be construed to make WRCOG a party to the construction of the Project or to make
it a partner or joint venture with the AGENCY for such purpose.
31. Compliance With the Law. The AGENCY shall comply with all applicable laws,
rules and regulations governing the implementation of the Qualifying Project, including, where
applicable, the rules and regulations pertaining to the participation of businesses owned or
controlled by minorities and women promulgated by the Federal Highway Administration and
the Federal Department of Transportation.
32. Notices. All notices hereunder and communications regarding interpretation of
the terms of this 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:
If to AGENCY:
If to WRCOG:
Riverside County Transportation Commission
4080 Lemon Street, 3rd Floor
Riverside, CA 92501
Attention: Shirley Gooding, Senior Administrative Assistant
Telephone: (951) 787-7141
Facsimile: (951) 787-7920
Western Riverside Council of Governments
3390 University Avenue; Suite 200
Riverside, California 92501
Attention: Christopher Gray, Director of Transportation
Telephone: (951) 405-6710
Facsimile: (951) 223-9720
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.
Page 8 of 23
78
[INSERT PROJECT #]
33. Integration; Amendment. This Agreement contains the entire agreement between
the PARTIES. Any agreement or representation respecting matters addressed herein that are not
expressly set forth in this Agreement is null and void. This Agreement may be amended only by
mutual written agreement of the PARTIES.
34. Severability. If any term, provision, condition or covenant of this Agreement is
held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby.
35. 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 Agreement.
36. Independent Contractors. Any person or entities retained by the AGENCY or any
contractor shall be retained on an independent contractor basis and shall not be employees of
WRCOG. Any personnel performing services on the Project shall at all times be under the
exclusive direction and control of the AGENCY or contractor, whichever is applicable. The
AGENCY or contractor shall pay all wages, salaries and other amounts due such personnel in
connection with their performance of services on the Project and as required by law. The
AGENCY 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.
37. Effective Date. This Agreement shall not be effective until executed by both
Parties. The failure of one party to execute this Agreement within forty-five (45) days of the
other party executing this Agreement shall render any execution of this Agreement ineffective.
38. No Third Party Beneficiaries. There are no intended third party beneficiaries of
any right or obligation assumed by the Parties.
[SIGNATURES ON FOLLOWING PAGE]
Page 9 of 23
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[INSERT PROJECT #]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly
authorized representatives to be effective on the day and year first above -written.
WESTERN RIVERSIDE COUNCIL RIVERSIDE COUNTY
OF GOVERNMENTS TRANSPORTATION COMMISSION
By: Date: By: Date:
Dr. Kurt Wilson Anne Mayer
Executive Director Executive Director
Approved to Form:
By: Date:
Steven C. DeBaun
General Counsel
Page 10 of 23
80
[INSERT PROJECT #]
EXHIBIT "A"
SCOPE OF WORK
SCOPE OF WORK: [DELETE THIS PARAGRAPH AND INSERT DETAIL THE
PHASE(S) OF WORK TO BE PERFORMED UNDER THIS AGREEMENT. (Note: Detail
the full Project description on Exhibit B.) Provide specific information regarding the Work to be
performed, identify the reaches of the work and include a general location map and site map, if
applicable.]
Exhibit A
Page 11 of 23
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[INSERT PROJECT #]
EXHIBIT "A-1"
ESTIMATE OF COST
Phase
TUMF
LOCAL
TOTAL
PA&ED
2,500,000
0
2,500,000
TOTAL
2,500,000
0
2,500,000
Exhibit A —1
Page 12 of 23
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[INSERT PROJECT #]
EXITIBIT "A-2"
PROJECT SCHEDULE
TIMETABLE:
[DELETE THIS PARAGRAPH AND PROVIDE, AT A MINIMUM, THE BEGINNING
AND ENDING DATES FOR EACH PHASE OF WORK INCLUDING MAJOR
MILESTONES WITHIN A PHASE.]
Phase
Estimated
Completion Date
Estimated Cost
Comments
PA&ED
June 2022 —
July 2024
2,500,000
TOTAL
2,500,000
Exhibit A — 2
Page 13 of 23
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Elements of Compensation
EXHIBIT "B"
PROCEDURES FOR SUBMITTAL, CONSIDERATION AND PAYMENT OF INVOICES
1. For professional services, WRCOG recommends that the AGENCY incorporate this
Exhibit "B-1" into its contracts with any subcontractors to establish a standard method
for preparation of invoices by contractors to the AGENCY and ultimately to WRCOG for
reimbursement of AGENCY contractor costs.
2. Each month the AGENCY shall submit an invoice for eligible Project costs incurred
during the preceding month. The original invoice shall be submitted to WRCOG's
Executive Director with a copy to WRCOG's Project Coordinator. Each invoice shall be
accompanied by a cover letter in a format substantially similar to that of Exhibit "B-2".
3. For jurisdictions with large construction projects (with the total construction cost
exceeding $10 million) under construction at the same time, may with the approval of
WRCOG submit invoices to WRCOG for payment at the same time they are received by
the jurisdiction. WRCOG must receive the invoice by the 5th day of the month in order to
process the invoice within 30 days. WRCOG will retain 10% of the invoice until all
costs have been verified as eligible and will release the balance at regular intervals not
more than quarterly and not less than semi-annually. If there is a discrepancy or
ineligible costs that exceed 10% of the previous invoice WRCOG will deduct that
amount from the next payment.
4. Each invoice shall include documentation from each contractor used by the AGENCY for
the Project, 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 subcontractor for the month and for the entire
Project to date. Samples of acceptable task level documentation and progress reports are
attached as Exhibits "B-4" and "B-5". All documentation from the Agency's contractors
should be accompanied by a cover letter in a format substantially similar to that of
Exhibit "B-3".
5. If the AGENCY is seeking reimbursement for direct expenses incurred by AGENCY
staff for eligible Project costs, the AGENCY shall provide the same level of information
for its labor and any expenses as required of its contractors pursuant to Exhibit "B" and
its attachments.
6. Charges for each task and milestone listed in Exhibit "A" shall be listed separately in the
invoice.
7. Each invoice shall include a certification signed by the AGENCY Representative or his
or her designee which reads as follows:
Exhibit B
Page 14 of 23
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[INSERT PROJECT #]
"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 contractors or
subcontractors listed.
Signed
Title
Date
Invoice No.
8. WRCOG will pay the AGENCY within 30 days after receipt by WRCOG of an invoice.
If WRCOG 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.
9. The final payment under this Agreement will be made only after: (I) the AGENCY has
obtained a Release and Certificate of Final Payment from each contractor or
subcontractor used on the Project; (ii) the AGENCY has executed a Release and
Certificate of Final Payment; and (iii) the AGENCY has provided copies of each such
Release to WRCOG.
Exhibit B
Page 15 of 23
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[INSERT PROJECT #]
EXHIBIT "B-1"
[Sample for Professional Services]
For the satisfactory performance and completion of the Services under this Agreement,
Agency will pay the Contractor 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 Agency's
City Manager [or applicable position] ("Total Compensation").
1. ELEMENTS OF COMPENSATION.
Compensation for the Services 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
Contractor's personnel directly engaged in performance of the Services
under the Agreement. (The range of hourly rates paid to the Contractor'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.
1.1.2.3 Overhead Costs
Exhibit B-1
Page 16 of 23
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[INSERT PROJECT #]
The Decimal Ratio of Allowable Overhead Costs to the Contractor 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 The fixed fee is $
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 J
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 Contractor's office nearest to
Agency's office must have Agency's prior written approval to be reimbursed under this
Agreement.
Exhibit B-1
Page 17 of 23
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[INSERT PROJECT #]
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
Contractor's adjustments to individual compensation. The Contractor shall notify
Agency 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 J
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 Contractor only. All rates for subcontractors to the
Contractor will be in accordance with the Contractor's cost proposal.
3. INVOICING.
3.1 Each month the Contractor shall submit an invoice for Services performed during
the preceding month. The original invoice shall be submitted to Agency's
Executive Director with two (2) copies to Agency's Project Coordinator.
3.2 Charges shall be billed in accordance with the terms and rates included herein,
unless otherwise agreed in writing by Agency's Representative.
3.3 Base Work and Extra Work shall be charged separately, and the charges for each
task and Milestone listed in the Scope of Services, shall be listed separately. The
charges for each individual assigned by the Contractor under this Agreement shall
be listed separately on an attachment to the invoice.
Exhibit B-1
Page 18 of 23
88
[INSERT PROJECT #]
3.4 A charge of $500 or more for any one item of Additional Direct Costs shall be
accompanied by substantiating documentation satisfactory to Agency 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 If applicable, each invoice shall indicate payments to DBE subcontractors or
supplies by dollar amount and as a percentage of the total invoice.
3.7 Each invoice shall include a certification signed by the Contractor'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 Agency shall pay the Contractor within four to six weeks after receipt by Agency
of an original invoice. Should Agency contest any portion of an invoice, that
portion shall be held for resolution, without interest, but the uncontested balance
shall be paid.
4.2 The final payment for Services under this Agreement will be made only after the
Contractor has executed a Release and Certificate of Final Payment.
Exhibit B-1
Page 19 of 23
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[INSERT PROJECT #]
EXHIBIT B-2
Sample Cover Letter to WRCOG
Date
Western Riverside Council of Governments
3390 University Avenue; Suite 450
Riverside, California 92501
Attention: Deputy Executive Director
ATTN: Accounts Payable
Re: Project Title - Invoice #
Enclosed for your review and payment approval is the AGENCY's invoice for professional and
technical services that was rendered by our contractors in connection with the 2002 Measure "A"
Local Streets and Roads Funding per 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:
Total Invoiced to Date:
Total Previously Invoiced:
Balance Remaining:
Amount due this Invoice:
$0,000,000.00
$0,000,000.00
$0,000,000.00
$0,000,000.00
$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:
cc:
Name
Title
Exhibit B-2
Page 20 of 23
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[INSERT PROJECT #]
EXHIBIT B-3
Sample Letter from Contractor to AGENCY
Month/Date/Year
Western Riverside Council of Governments
3390 University Avenue; Suite 200
Riverside, California 92501
Attention: Deputy Executive Director
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:
Authorized Extra Work (if Applicable)
$000,000.00
$000,000.00
TOTAL AUTHORIZED CONTRACT AMOUNT: $000,000.00
Total Invoice to Date:
Total Previously Billed:
Balance Remaining:
$000,000.00
$000,000.00
$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
Exhibit B-3
Page 21 of 23
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[INSERT PROJECT #]
EXHIBIT B-4
SAMPLE TASK SUMMARY SCHEDULE
(OPTIONAL)
Exhibit B-4
Page 22 of 23
92
[INSERT PROJECT #]
EXHIBIT B-5
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
None
C. Work Planned Next Period
Corrective Action
None
TASK 01 — 100% PS&E SUBMITTAL
1. Completing and to submit Traffic Signal and Electrical Design plans
2. Responding to review comments
Exhibit B-5
Page 23 of 23
93
RIVERSIDE
COUNTY
TRANSPORTATION
COMMISSION
INTERSTATE 10/HIGHLAND SPRINGS AVENUE INTERCHANGE
IMPROVEMENTS
AGREEMENTS FOR PREPARATION OF THE PROJECT APPROVAL
AND ENVIRONMENTAL DOCUMENT (PA/ED) AND FUNDING
DAVID LEWIS, CAPITAL PROJECT MANAGER
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Vona.. • ORGO C
Res.:
BEAUM.ONT Beam ' .I ' t
----Ramona-Expy-
Nuevo , . SAN rACINTO. VALLFY
LAKEVIEW MOUNTAIN
Hemet
MCC hester __�
,Dornetstrni-P`4 _
Into
tbrongo
1,a servahon
BANNING
So to be
Reservation
East Hemet
N1NG PASS
�,Cabazon�
Im1911..,Jr1 �,
Yea
'ROUSE RIDGE
10875 h
l-1 yll..ild
Mountain
Center
San G.,ry.,nro
Wilda, MIS
tvbunt San
Jacinto
_=:mat. rya rk
North Paln
Springs
Agua Calwr�r.
r -
Sources: ESRI 2022.
1.1, 1inee
"-Diamond ' • I
2
I-10 Highland Springs Interchange Project
Project Footprint
Project Footprint for All Alternatives
3
I-10 Highland Springs Interchange Project
Background and Update
• Presented update to City Councils in May 2021
• Caltrans approved PSR on December 10, 2021
• Alternatives
• Hook Ramp Alternatives
• Diverging Diamond Interchange (DDI) Alternatives
• Auxiliary lanes included on 1-10
• CEQA—Initial Study with Proposed Mitigated Negative Declaration (IS/MND)
• NEPA — Environmental Assessment with Finding of No Significant Impact (EA/FONSI)
4
I-10 Highland Springs Interchange Project
Procurement Process
• Request for Qualifications (RFQ) released on December 16, 2021
• 87 Firms downloaded the RFQ
— 11 firms located in Riverside County
• Four Firms submitted statements of qualifications on February 3, 2022
• Two firms selected for interview
— Kimley-Horn and Associates, Inc. (Orange)
— Mark Thomas & Company, Inc. (Rancho Cucamonga)
• Evaluation committee recommends contract award to:
— Mark Thomas & Company, Inc. (Rancho Cucamonga)
5
I-10 Highland Springs Interchange Project
Scope, Cost and Schedule
• Staff negotiated fair and reasonable cost of $2,199,634
• 10% ($219,963) contingency covers potential changes or issues
that arise
• Total authorized amount - $2,419,597
• 24 -month PA/ED schedule
6
I-10 Highland Springs Interchange Project
Additional Funds Needed for PA/ED
PSR Phase Funding
Funding Provided by WRCOG — Cooperative Agreement No. 20-72-018-00
• Allocated $2 million of TUMF Pass Zone Funding
• PSR cost $473,155
• Remaining $1,526,845 to be used for PA/ED Phase
PA/ED Phase Funding
• Amend Cooperative Agreement to increase TUMF Pass Zone funding by an additional
$1 million
• Any remaining funds will be allocated to the PS&E phase
• This action is subject to the approval of the Pass Zone Executive Committee (meeting May
23) and WRCOG Executive Committee (meeting June 6)
• This item will not go to the full Commission if the Pass Zone Committee does not approve funding
7
I-10 Highland Springs Interchange Project
Requested Actions
• Award Agreement No. 22-27-011-00 to Mark Thomas and Company
— Amount of $2,199,634
— With a Contingency of $219,963
— Total authorized amount of $2,419,597
• Approve Cooperative Agreement No. 22-72-091-00 with WRCOG for
additional TUMF Zone funding in the amount of $1,000,000
8
RIVERSIDE
COUNTY
TRANSPORTATION
COMMISSION
QUESTIONS
AGENDA ITEM 8
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE:
May 23, 2022
TO:
Western Riverside County Programs and Projects Committee
FROM:
Bryce Johnston, Senior Capital Projects Manager
THROUGH:
Marlin Feenstra, Project Delivery Director
SUBJECT:
Agreements for On -Call Geotechnical Investigation — Laboratory and Field
Testing of Materials
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Award the following agreements to provide On -Call Geotechnical Investigation —
Laboratory and Field Testing of Materials for a three-year term, and two one-year options
to extend the agreements, in an amount not to exceed an aggregate value of $500,000;
a) Agreement No. 22-31-051-00 to Group Delta Consultants, Inc. (Group Delta);
b) Agreement No. 22-31-086-00 to Kleinfelder, Inc.;
c) Agreement No. 22-31-087-00 to Ninyo & Moore Geotechnical and Environmental
Sciences Consultants (Ninyo & Moore);
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreements, including option years, on behalf of the Commission;
3) Authorize the Executive Director, or designee, to execute task orders under the terms of
the agreements; and
4) Forward to the Commission for final action.
BACKGROUND INFORMATION:
The Commission has a periodic need for the provision of comprehensive on -call geotechnical
investigation — laboratory and field testing of materials services. Typically, the Commission
obtains geotechnical investigation and lab testing services through subconsultants to primary
consultant contracts for preliminary design or construction management. There are occasions in
which these services will be needed independent of a design or construction contract. Examples
of this include rail station capital projects where construction management will be administered
by Commission and Bechtel staff.
Procurement Process
Pursuant to Government Code 4525 et seq, selection of architect, engineer, and related services
shall be on the basis of demonstrated competence and on professional qualifications necessary
Agenda Item 8
94
for the satisfactory performance of the services required. Therefore, staff used the qualification
method of selection for the procurement. Evaluation criteria included elements such as
qualifications of firm, staffing and project organization, project understanding and approach, and
the ability to respond to the requirements set forth under the terms of a request for qualifications
(
RFQ).
RFQ No. 22-31-051-00 for On -Call Geotechnical Investigation — Laboratory and Field Testing of
Materials was released by staff on March 3, 2022. The RFQ was posted on the Commission's
Planet Bids website, which is accessible through the Commission's website. Through Planet Bids,
46 firms downloaded the RFQ; 9 of these firms are located in Riverside County. A pre -submittal
meeting was held on March 15, 2022 and attended by 13 firms. Staff responded to all questions
submitted by potential proposers prior to the March 29, 2022, clarification deadline. Nine firms
— Aragon Geotechnical (Riverside); Geocon Incorporated (Redlands); Group Delta (Ontario);
Kleinfelder (Riverside); Leighton Consulting (Irvine); MTGL, Inc. (Riverside); Ninyo & Moore
(Irvine); Tetra Tech (Diamond Bar); and Twining (San Bernardino) — submitted responsive and
responsible statements of qualifications prior to the 2:00 p.m. submittal deadline on April 14,
2022. Based on the evaluation criteria set forth in the RFQ the firms were evaluated and scored
by an evaluation committee comprised of Commission, Bechtel, Caltrans and Metrolink staff.
Based on the evaluation committee's assessment of the written proposals and pursuant to the
terms of the RFP, the evaluation committee shortlisted and invited four firms to the interview
phase of the evaluation and selection process. Interviews of the shortlisted firms — Group Delta,
Kleinfelder, Inc., Leighton Consulting, and Ninyo & Moore— were conducted on May 3, 2022.
The evaluation committee conducted a subsequent evaluation of each firm, based on both
written and interview components presented to the evaluation committee by each proposer.
Accordingly, the evaluation committee determined three firms — Group Delta, Kleinfelder, Inc.,
and Ninyo & Moore —to be the most qualified firms to provide On -Call Geotechnical Investigation
— Laboratory and Field Testing of Materials. The evaluation committee recommends contract
awards to these three firms for a three-year term, and two single -year options to extend the
agreements, 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
Agenda Item 8
95
counsel review. Staff oversight of the contracts and task orders will maximize the effectiveness
of the consultants and minimize costs to the Commission.
FISCAL IMPACT
Funding for these services will be provided by Measure A and various local, state and federal
sources.
Financial Information
In Fiscal Year Budget:
N/A
Year:
FY 2022/23+
Amount:
$500,000
Source of Funds:
Various Federal, Measure A and/or other
local or state funds
Budget Adjustment:
N/A
GL/Project Accounting No.:
654199 81304 00000 0000 265 33 81301
623999 81304 00000 0000 262 3181301
Fiscal Procedures Approved:
Date:
05/13/2022
Attachments:
1) Draft On -Call Professional Services Agreement 22-31-051-00 with Group Delta
2) Draft On -Call Professional Services Agreement 22-31-086-00 with Kleinfelder, Inc.
3) Draft On -Call Professional Services Agreement 22-31-087-00 with Ninyo & Moore
Agenda Item 8
96
ATTACHMENT 1
Agreement No. 22-31-051-00
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA FUNDING/ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
GROUP DELTA
FOR
ON -CALL GEOTECHNICAL INVESTIGATION SERVICES —
LABORATORY AND FIELD TESTING OF MATERIALS
Parties and Date.
This Agreement is made and entered into this ,e day o , 2022, by and
between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the
Commission") and GROUP DELTA CONSULTANTS, INC. ("Consultant"), a
CORPORATION The Commission and Consultant are sometimes referred to herein
individually as "Party", and collectively a "
Recitals.
A. A. On November 8, 198 h el s 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 professional services provided under this
Agreement is federal funds administered by the California Department of Transportation
("Caltrans") from the United States Department of Transportation pursuant to the
following project/program: [ INSERT FUNDING SOURCE_].
E. Consultant desires to perform and assume responsibility for the provision of
certain professional services required by the Commission on the terms and conditions
set forth in this Agreement. Consultant represents that it is experienced in providing
Geotechnical Investigation services to public clients, is licensed in the State of
California (if necessary), and is familiar with the plans of the Commission.
F. The Commission desires to engage Consultant to render such services for the
On -Call Geotechnical Investigation ("Project"), as set forth in this Agreement.
Terms.
1. General Scope of Services. Consultant shall furnish all technical and
professional services, including labor, material, equipment, transportation, supervision
and expertise, and incidental and customary work necessary to fully and adequately
supply the professional Geotechnical Investigation services necessary for the Project
("Services"). The Services are more particularly descri.'d in Exhibit "A" attached
hereto and incorporated herein by reference. All Se _:'i; -s shall be subject to, and
performed in accordance with, this Agreement, t ibits attached hereto and
incorporated herein by reference, and all applicabl_ wcal, and federal laws, rules
and regulations.
2. Commencement of Services. The Cons
all commence work upon receipt
of a written "Notice to Proceed" or "Limited Notice roceed" from Commission.
3. Pre -Award Audit. As
extent Caltrans procedures
Proceed" may be contingent
questions raised during the
will consider approval of
Agreement is continge
thereby entitling the
completed. The
and State process
acting in behalf of a fe
for which Federal reimbur
a result of
appl co
u
u ding for this Project, and to the
on erewith, issuance of a "Notice to
and approval of a pre -award audit. Any
hall be resolved before the Commission
The federal aid provided under this
all Federal requirements and could be withdrawn,
rminate this Agreement, if the procedures are not
s all be maintained in a manner to facilitate Federal
addition, the applicable federal agency, or Caltrans
ncy, may require that prior to performance of any work
ent is requested and provided, that said federal agency or
Caltrans must give to Commission an "Authorization to Proceed".
4. Caltrans 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
2
98
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 24 and 25 of this Agreement.
4.2 During Caltrans' review of the ICR audit work papers created by the
Consultant's independent CPA (which may include review by the Independent Office of
Audits and Investigations), Caltrans will work with the CPA and/or Consultant toward a
resolution of issues that arise during the review. Each •, ty agrees to use its best
efforts to resolve any audit disputes in a timely manner altrans identifies significant
issues during the review and is unable to issue a cog pproval letter, Commission
will reimburse the Consultant at an accepted IC;, ntil - R (Federal Acquisition
Regulation) compliant ICR {e.g. 48 CFR Part 31 GAS (Ge -Ily Accepted Auditing
Standards); CAS (Cost Accounting Standa if ,; • plicabl in accordance with
procedures and guidelines of the America a iation of State Highways and
Transportation Officials (AASHTO) Audit Guide; c;: other applicable procedures and
guidelines} is received and approved by
Accepted rates will be as follows:
a. If the propose
accepted rate reimbursed wi
b. If the p
hundred percent
proposed rate.
one hundred fifty percent (150%) — the
nt (90%) of the proposed rate.
etween one hundred fifty percent (150%) and two
ted rate will be eighty-five percent (85%) of the
c. If the propo 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.
4.4 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
3
99
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.
4.5 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 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, *ate first set forth above,
contingent upon approval by Commission, and Consult shall commence work after
notification to proceed by Commission's Contract Ad r_; ator. This Agreement shall
end on June 30, 2025, unless extended by contract . "end qt.
5.2 Consultant is advised that any r•
not binding on Commission until this Agreeme
Commission.
5.3 This Agreement shall remai
earlier terminated as provided her-.',, Co
term of this Agreement, and s m t an
All applicable indemnificati
following the termination of t
6.
Commission's Ex
Administrator for
Administrator"). Com
behalf of the Commissi
dation f• Agreement award is
executed and approved by the
the date set forth above, unless
nt s' :II complete the Services within the
ther established schedules and deadlines.
this Agreement shall remain in effect
Commission' strator. The Commission hereby designates the
r his or her designee, to act as its Contract
nce of this Agreement ("Commission's Contract
ontract Administrator shall have the authority to act on
or 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 Nick Turner 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
4
100
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 as follows: Nick Turner and Michael Givens
9. Standard of Care; Licenses; Evaluation.
9.1 Consultant represents and maintains th skilled in the professional
calling necessary to perform all Services, dutie nd ations required by this
Agreement to fully and adequately complete the, oject. Co tant shall perform the
Services and duties in conformance to and sist<<,,t with t standards generally
recognized as being employed by profession same discipline in the State of
California. Consultant warrants that all emplo -s and subcontractors shall have
sufficient skill and experience to perfo Servi. >. assigned to them. Consultant
further represents and warrants to - 's is ion that its employees and
subcontractors have all license , •ermi alific•tions and approvals of whatever
nature that are legally require o b .rfor he Services, and that such licenses and
approvals shall be maintain . ° hrou► rout th :', erm of this Agreement. Consultant shall
perform, at its own cost and 1,eR out reimbursement from the Commission,
any services necessa c• ' pct errors or omissions which are caused by the
Consultant's failure � omp - ' ith standard of care provided for herein, and shall be
fully responsible ti e Comm = ion or all damages and other liabilities provided for in
the indemnification r isions this Agreement arising from the Consultant's errors
and omissions. Any e oy of Consultant or its sub -consultants who is determined
by the Commission to be ► II I 'operative, 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.
9.2 Consultant's performance will be evaluated by Commission. A copy of the
evaluation will be sent to Consultant for comments. The evaluation together with the
comments shall be retained as part of the Agreement record.
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
5
101
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. Schedule of Services. Consultant shall perform the Services expeditiously,
within the term of this Agreement, and in accordance with the Schedule of Services set
forth in each Task Order. Consultant represents that it has the professional and
technical personnel to perform the Services in conforman with such conditions. In
order to facilitate Consultant's conformance with the S __`'dule, the Commission shall
respond to Consultant's submittals in a timely manne n request of Commission's
Contract Administrator, Consultant shall provide a R• det ;• schedule of anticipated
performance to meet the Schedule of Services.
11.1 Modification of the Schedule. .;" . nt shall regularly report to the
Commission, through correspondence or progr ' reports, its progress in providing
required Services within the schedule • •erio• Commission shall be promptly
informed of all anticipated delays. In ' ` - Consultant determines that a
schedule modification is neces ,, , C ant ` hall promptly submit a revised
Schedule of Services for appro sion's Contract Administrator.
11.2 Trend Meeting shall conduct trend meetings with the
Commission's Contrac z�'ni " ; or and other interested parties, as requested by the
Commission, on a b -ek sis b: as may be mutually scheduled by the Parties at a
standard day and ;` : e. The tre d meetings will encompass focused and informal
discussions concern scope, .chedule, and current progress of Services, relevant
cost issues, and futur 'ro :.0 objectives. Consultant shall be responsible for the
preparation and distribute meeting agendas to be received by the Commission and
other attendees no later than three (3) working days prior to the meeting.
11.3 Progress Reports. As part of its monthly invoice, Consultant shall submit
a progress report, in a form determined by the Commission, which will indicate the
progress achieved during the previous month in relation to the Schedule of Services.
Submission of such progress report by Consultant shall be a condition precedent to
receipt of payment from the Commission for each monthly invoice submitted.
6
102
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, epidemics, pandemics, 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 Se::„.ces will be delayed due to
such conditions. Failure of Consultant to provide such ,do , ely notice shall constitute a
waiver by Consultant of any right to an excusable dela e of performance.
12.3 Mutual Agreement. Performance
may be delayed upon mutual agreement
Consultant's Schedule of Services shall be ex
Consultant shall take all reasonable teps
additional costs, resulting from any suc
ny Servic: under this Agreement
P ies. • on such agreement,
s necessary by the Commission.
imize delay in completion, and
13. Preliminar Review of W. AI '' .rts, orking papers, and similar work
products prepared for submi
Agreement shall be submitt
and the Commission may re
approval. In the even
final detailed plans
clearance as may
Commission's Cont
formally submitted wo
established under this A
ourse of providing Services under this
on's Contract Administrator in draft form,
such drafts prior to formal submission and
designs are to be developed as part of the Project,
all be contingent upon obtaining environmental
nnection with Federal funding. In the event that
rator, in his or her sole discretion, determines the
to be not in accordance with the standard of care
ment, Commission's Contract Administrator may require
Consultant to revise and resubmit the work at no cost to the Commission.
14. Appearance at Hearings. If and when required by the Commission, Consultant
shall render assistance at public hearings or other meetings related to the Project or
necessary to the performance of the Services. However, Consultant shall not be
required to, and will not, render any decision, interpretation or recommendation
regarding questions of a legal nature or which may be construed as constituting a legal
opinion.
15. Opportunity to Cure; Inspection of Work. Commission may provide Consultant
an opportunity to cure, at Consultant's expense, all errors and omissions 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
7
103
the cost thereof charged to Consultant. Consultant shall allow the Commission's
Contract Administrator, Caltrans and FHWA to inspect or review Consultant's work in
progress at any reasonable time.
16. Claims Filed by Contractor.
16.1 If claims are filed by the Commission's contractor for the Project
("Contractor") relating to work performed by Consultant's personnel, and additional
information or assistance from the Consultant's personnel is required by the
Commission in order to evaluate or defend against such claims; Consultant agrees to
make reasonable efforts to make its personnel available for consultation with the
Commission's construction contract administration and legal staff and for testimony, if
necessary, at depositions and at trial or arbitration proceedings.
16.2 Consultant's personnel that the Commissi•. . onsiders essential to assist
in defending against Contractor claims will be made a on reasonable notice from
the Commission. Consultation or testimony will . - 'reim , is ed at the same rates,
including travel costs that are being paid for the ' nsultant's ;sonnet services under
this Agreement.
16.3 Services of the Consultant's
connection with Contractor claims will
amendment, if necessary, extending the
finally resolve the claims.
16.4 Nothing conta
Consultant's indemnification
conflict between this S
not intended to obli
personnel related t
defend the Commiss
nel and other support staff in
pursuant to a written contract
to of this Agreement in order to
shall be construed to in any way limit
ained in Section 29. In the case of any
ection 29, Section 29 shall govern. This Section is
ion to reimburse Consultant for time spent by its
for which Consultant is required to indemnify and
to Section 29 of this Agreement.
17. Final Acceptance. on determination by the Commission that Consultant has
satisfactorily completed the Services required under this Agreement and within the term
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.
8
104
18. 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. Consultant shall be liable for all violations
of such laws and regulations in connection with Services. f the Consultant performs
any work knowing it to be contrary to such laws, rule nd regulations and without
giving written notice to the Commission, Consultant i'e solely responsible for all
costs arising therefrom. Consultant shall defend, nd hold Commission, its
officials, directors, officers, employees and age , ree and less, pursuant to the
indemnification provisions of this Agreement, f any, aim or li.' ility arising out of any
failure or alleged failure to comply with such la or regulations.
19. Fees and Payment.
19.1 The method of pay • - t for £ gre-ment will be based on actual cost
plus a fixed fee. Commission s► r- bur Consultant for actual costs (including labor
costs, employee benefits, %el, e� i.me rental costs, overhead and other direct
costs) incurred by Consults e of the Services. Consultant shall not be
reimbursed for actual ha" ceed the estimated wage rates, employee benefits,
travel, equipment re ► ov- -a•, d other estimated costs set forth in the approved
Consultant cost p ed ereto as Exhibit "B" and incorporated herein by
reference ("Cost Pro al") unl s additional reimbursement is provided for by a written
amendment. In no ev- sh Consultant be reimbursed for overhead costs at a rate
that exceeds Commissio approved overhead rate set forth in the Cost Proposal. In
the event that Commission determines that a change to the Services from that specified
in the Cost Proposal and this Agreement is required, the contract time or actual costs
reimbursable by Commission shall be adjusted by contract amendment to
accommodate the changed work. The maximum total cost as specified in Section 19.9
shall not be exceeded, unless authorized by a written amendment.
19.2 The indirect cost rate established for this Agreement is extended through
the duration of this Agreement. Consultant's agreement to the extension of the 1 -year
applicable period shall not be a condition or qualification to be considered for the work
or Agreement award.
19.3 In addition to the allowable incurred costs, Commission shall pay
Consultant a fixed fee of j INSERT DOLLAR AMOUNT 1. The fixed fee is
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nonadjustable for the term of this Agreement, except in the event of a significant change
in the Scope of Services, and such adjustment is made by written amendment.
19.4 Reimbursement for transportation and subsistence costs shall not exceed
the rates specified in the approved Cost Proposal. In addition, payments to Consultant
for travel and subsistence expenses claimed for reimbursement or applied as local
match credit shall not exceed rates authorized to be paid exempt non -represented State
employees under current State Department of Personnel Administration (DPA) rules,
unless otherwise authorized by Commission. If the rates invoiced are in excess of
those authorized DPA rates, and Commission has not otherwise approved said rates,
then Consultant is responsible for the cost difference and any overpayments shall be
reimbursed to the Commission on demand.
19.5 When milestone cost estimates are inclu.,d in the approved Cost
Proposal, Consultant shall obtain prior written approv.;' r a revised milestone cost
estimate from the Contract Administrator before exceer. • ch cost estimate.
19.6 Progress payments shall be made
provided and allowable incurred costs. A pro r
be included in the monthly progress payments.
deliverable items according to the schedule
Commission shall have the right to
accordance with the provisions of Sectio
nthly in a rs based on Services
of Con ultant's fixed fee shall
ultant fails to submit the required
forth in the Scope of Services,
r terminate this Agreement in
ti n.
19.7 No payment shal • e p " r to approval of any Services, nor for any
Services performed prior to
19.8 Consulta
permit upon receipt
triplicate. Invoice
performance of wo
performed on each mi
format stipulated for the
number and project title. Final invoice must contain the final cost and all credits due
Commission including any equipment purchased under the Equipment Purchase
provisions of this Agreement. The final invoice should be submitted within 60 calendar
days after completion of Consultant's work. Invoices shall be mailed to Commission's
Contract Administrator at the following address:
reimbursed, as promptly as fiscal procedures will
's Contract Administrator of itemized invoices in
bmi ed no later than 45 calendar days after the
Consultant is billing. Invoices shall detail the work
d each project as applicable. Invoices shall follow the
oved Cost Proposal and shall reference this Agreement
Riverside County Transportation Commission
Attention: Accounts Payable
P.O. 12008
Riverside, CA 92502
19.9 The total amount payable by Commission including the fixed fee shall not
exceed amount set forth in each Task Order.
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19.10 Commission has or will enter into three (3) task order contracts for
performance of the Scope of Services identified in Exhibit "A", including this Agreement
("On -Call Geotechnical Investigation — Laboratory and Field Testing of Materials"). The
other On -Call Geotechnical Investigation — Laboratory and Field Testing of Materials
Task Order Contracts are Kleinfelder, 22-31-086-00 and Ninyo & Moore, 22-31-087-00.
The total amount payable by Commission for the On -Call Geotechnical Investigation —
Laboratory and Field Testing of Materials Task Order Contracts shall not exceed a
cumulative maximum total value of Five Hundred Thousand Dollars ($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 Geotechnical
Investigation — Laboratory and Field Testing of Materials Task Order Contracts through
Task Orders. Each time a Task Order is awarded under any of the On -Call
Geotechnical Investigation — Laboratory and Field Testi;_^. of Materials Task Order
Contracts, Commission must send written notification -°:,>'' onsultant and each of the
other consultants entering into the On -Call Geotechni -stigation — Laboratory and
Field Testing of Materials Task Order Contracts, T - otice i' , . st identify the total funds
allocated under issued Task Orders, and the re ► . ning une bered amount of the
NTE Sum. Consultant acknowledges and ag th. Commis on must not pay any
amount under this Agreement that would exc- - TE Sum, and Consultant must
not enter into a Task Order that exceeds the NT
19.11 Salary increases shall be e if the new salary is within the
salary range identified in the appr•- _-d Co �'•pos and is approved by Commission's
Contract Administrator. For pe subs, t to prevailing wage rates as described in
the California Labor Code, alary creas: which are the direct result of changes in
the prevailing wage rates are
19.12 Consu ,, '"`' sh. got eimbursed for any expenses unless authorized in
writing by the Co
rac Administrator.
19.13 All subco pct excess of $25,000 shall contain the above provisions.
20. Disputes.
20.1 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.
20.2 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.
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20.3 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.
21. Termination; Suspension.
21.1 Commission reserves the right to terminate this Agreement for any or no
reason upon thirty (30) calendar days written notice to Consultant with the reasons for
termination stated in the notice.
21.2 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
work in any manner deemed proper by Commission. If ...mmission terminates this
Agreement with Consultant, Commission shall pay ;=:•'nsultant the sum due to
Consultant under this Agreement for Services co •: -d and accepted prior to
termination, unless the cost of completion to Com ,; ion e ;-eds the funds remaining
in this Agreement. In such case, the overage ' I be ded b . -d from any sum due
Consultant under this Agreement and the ba e, if, y, shal '•e paid to Consultant
upon demand.
21.3 In addition to the abov
prorated amount of profit, if applicable, b
on unperformed Services. Consul ' sha
Commission's Contract Admi a to
Consultant prior to the effec dat- .'f term
the effective date of the Notic
21.4 Discon
Termination, Cons
or as otherwise pro
Data, as defined in th
Consultant in performanc
n termination shall include a
all be paid for anticipated profit
ide ••cumentation deemed adequate by
ow the Services actually completed by
tion. This Agreement shall terminate on
ices. Upon receipt of the written Notice of
con nue all affected Services as directed in the Notice
, and deliver to the Commission all Documents and
ent, as may have been prepared or accumulated by
he Services, whether completed or in progress.
21.5 Effect of Termination for Cause. 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 herein. Termination of this Agreement for cause may
be considered by the Commission in determining whether to enter into future
agreements with Consultant.
21.6 Cumulative Remedies. The rights and remedies of the Parties provided in
this Section are in addition to any other rights and remedies provided by law or under
this Agreement.
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21.7 Waivers. 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.
21.8 Consultant may not terminate this Agreement except for cause.
21.9 Suspension. In addition to the termination rights above, Commission may
temporarily suspend this Agreement, 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 this Agreement. A temporary suspension may be issued concurrent with a notice
of termination.
22. Cost Principles and Administrative Requirement;',
22.1 Consultant agrees that the Contra
CFR, Federal Acquisition Regulations System
used to determine the cost allowability of indivi
22.2 Consultant also agrees to
with 2 CFR, Part 200, Uniform Administr
Requirements for Federal Awards
22.3 Any costs for
determined by subsequent a
Federal Acquisition Re
repayment by Cons
ost Princ
apt 1, Part
and Procedures, 48
.000 et seq., shall be
deral procedures in accordance
ents, Cost Principles, and Audit
as been made to Consultant that are
able under 2 CFR, Part 200 and 48 CFR,
stem, Chapter 1, Part 31.000 et seq., are subject to
22.4 All sub • racts i xcess of $25,000 shall contain the above provisions.
23. Retention of Reco ' udit. 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; 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 this Agreement period and for three years from the
date of final payment under this Agreement. The state, State Auditor, Commission,
FHWA, or any duly authorized representative of the 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 indirect cost
rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall
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109
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.
24. Audit Review Procedures.
24.1 Any dispute concerning a question of fact arising under an interim or post
audit of this Agreement that is not disposed of by agree ent, shall be reviewed by
Commission's Chief Financial Officer.
24.2 Not later than 30 days after issuance the final audit report, Consultant
may request a review by Commission's ChieLiWancial Officer of unresolved audit
issues. The request for review shall be submitted in writing.
24.3 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.
25. Subcontracting.
25.1 Nothing contained "reement 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.
25.2 Consultant shall perform the Services with resources available within its
own organization and no portion of the Services shall be subcontracted without written
authorization by Commission's Contract Administrator, except that, which is expressly
identified in the approved Cost Proposal.
25.3 Consultant shall pay its subconsultants within fifteen (15) calendar days
from receipt of each payment made to Consultant by Commission.
25.4 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.
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25.5 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).
25.6 Exhibit "B" may also 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". The subconsultant rate schedules and cost proposals contained herein are
for accounting purposes only.
26. Equipment Purchase
26.1 Prior authorization, in writing, by Commiss 's Contract Administrator
shall be required before Consultant enters into any ur;_'°dgeted purchase order, or
subcontract for supplies, equipment, or Consultant ser lr Consultant shall provide an
evaluation of the necessity or desirability of incurrin• `'ch c
26.2 For purchase of any item, se
Consultant's Cost Proposal and exceeding $5,
Contract Administrator is required. Three com
with the request for such purchase,
justified.
nsultin• work not covered in
r authorization by Commission's
ive quotations must be submitted
of bidding must be adequately
26.3 Any equipment p = : d as result of this Agreement is subject to the
following:
Consultant shall maint
property is defined a
$5,000 or more. If
Commission shall re
or if this Agreement is
Commission in an amoun
tory of all nonexpendable property. Nonexpendable
life of at least two years and an acquisition cost of
eq `'pment needs replacement and is sold or traded in,
r refund or credit at the conclusion of this Agreement,
d, Consultant may either keep the equipment and credit
ual 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
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.
26.4 All subcontracts in excess $25,000 shall contain the above provisions.
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27. Labor Code Requirements.
27.1 Prevailing Wages.
(a) Consultant shall comply with the State of California's General Prevailing
Wage Rate requirements in accordance with California Labor Code, Section 1770, and
all Federal, State, and local laws and ordinances applicable to the Services.
(b) Any subcontract entered into as a result of this Agreement, if for more
than $25,000 for public works construction or more than $15,000 for the alteration,
demolition, repair, or maintenance of public works, shall contain all of the provisions of
this Section.
(c) When prevailing wages apply to the Service- •escribed in the Scope of
Services, transportation and subsistence costs shall b- eimbursed at the minimum
rates set by the Department of Industrial Relations (Pa outlined in the applicable
Prevailing Wage Determination. See http://www.dir.
(d) Copies of the prevailing rat- >> of •,. il diem ages in effect at
commencement of this Agreement are on file ommission's offices. Consultant
shall make copies of the prevailing rates of per di wages for each craft, classification
or type of worker needed to execute t +ices \ - Table to interested parties upon
request, and shall post copies at the Co Ita pal place of business and at the
project site. Consultant shall de , in y an`. hold the Commission, its elected
officials, officers, employees a ' ` • '`` is fr and harmless from any claims, liabilities,
costs, penalties or interest ng o •f an ilure or alleged failure to comply with the
Prevailing Wage Laws.
27.2 DIR Registra '; ' ' I S- es are being performed as part of an applicable
"public works" or " ` =intenanc: prod=ct, then pursuant to Labor Code Sections 1725.5
and 1771.1, the ultant d all subconsultants must be registered with the
Department of Industri. 1'el. ' ns. If applicable, Consultant shall maintain registration
for the duration of the Pro 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.
27.3 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
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112
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.
27.4 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 theF rvices, Consultant and any
subcontractor hereunder who employs workers in any ;' ticeable craft or trade shall
apply to the joint apprenticeship council admini 'i? t Iicable standards for a
certificate approving Consultant or any sub -cons l 'nt for the (9 •Ioyment and training
of apprentices. Upon issuance of this certifi► -, C• ultant a d any sub -consultant
shall employ the number of apprentices provid- • erein, as well as contribute to the
fund to administer the apprenticeship program in ch craft or trade in the area of the
work hereunder.
The parties expressly understan
of this Section and with Secti
Code in regard to all appren
t th- ''•onsi•ility for compliance with provisions
77.6 and 1777.7 of the California Labor
s lies with Consultant
28. Ownership of Matofiats/ `"t; identiality.
28.1 Doc -nts & D is Agreement creates an exclusive and perpetual
license for Comm! y, use, modify, reuse, or sub -license any and all
copyrights and designs gib. '"'-d in plans, specifications, studies, drawings, estimates,
materials, data and oth- ocuments 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.
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113
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.
28.2 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 , 's Agreement.
The Commission shall have and retain all right, title
developed or modified under this Agreement wheth
Commission, whether or not developed in conju
not developed by Consultant. Consultant will
any and all rights to the above reference
Commission.
Consultant shall also be responsible to
from any subcontractors or age of
referenced Intellectual Prop
termination of this Agreem
Property, it shall first obtain
All materials and do
general use prior t
any other party or p
to be the property of t
prior to execution of this
right to grant the exclusive
provided herein.
aw -rest in Intellectual Property
r no - id for wholly or in part by
on with C• Itant, and whether or
cut eparate' v ritten assignments of
tual Property upon request of
ti g separate written assignments
tant :f any and all right to the above
Consultant, either during or following
any of the above -referenced Intellectual
al of the Commission.
ere developed or prepared by the Consultant for
o ° his Agreement and which are not the copyright of
le and any other computer applications, shall continue
Itant. However, unless otherwise identified and stated
ement, Consultant represents and warrants that it has the
and perpetual license for all such Intellectual Property as
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.
28.3 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,
18
114
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.
28.4 Infringement Indemnification. Consultant shall defend, indemnify and hold
the Commission, its directors, officials, officers, employees, volunteers and agents free
and harmless, pursuant to the indemnification provisions of this Agreement, for any
alleged infringement of any patent, copyright, trade secret, trade name, trademark, or
any other proprietary right of any person or entity in con quence of the use on the
Project by Commission of the Documents & Data, i ► • ing any method, process,
product, or concept specified or depicted.
29. Indemnification. To the fullest extent per ed by la , .nsultant shall defend
(with counsel of Commission's choosing), inde ify ar hold Co mission, its directors,
officials, officers, employees, consultants, vo ► - = , and agents free and harmless
from any and all claims, demands, causes of •n, costs, expenses, liability, loss,
damage or injury, in law or equity, to p ns, including wrongful death, in
any manner arising out of or incident t, al -. • agent acts, omissions, or willful
misconduct of Consultant, its o .Is, o e ployees, agents, consultants, and
contractors arising out of or i r ". . ctio ith the performance of the Services, the
Project or this Agreement, udiniu;-witho �_, limitation the payment of consequential
damages, expert witness eys fees and other related costs and
expenses. Consultant d - d, at Consultant's own cost, expense and risk, any
and all such afores uits, do or other legal proceedings of every kind that may
be brought or insti =d agams om°` ission, its directors, officials, officers, employees,
consultants, agents, volunt rs. Consultant shall pay and satisfy any judgment,
award or decree that b endered against Commission or its directors, officials,
officers, employees, cons ► ts, agents, or volunteers, in any such suit, action or other
legal proceeding. Consultant shall reimburse Commission and its 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, its directors, officials officers, employees, consultants, agents, or
volunteers.
If Consultant's obligation to defend, indemnify, and/or hold harmless arises out of
Consultant's performance as a "design professional" (as that term is defined under Civil
Code section 2782.8), then, and only to the extent required by Civil Code section
2782.8, which is fully incorporated herein, Consultant's indemnification obligation shall
be limited to claims that arise out of, pertain to, or relate to the negligence,
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115
recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a
final adjudication by a court of competent jurisdiction, Consultant's liability for such
claim, including the cost to defend, shall not exceed the Consultant's proportionate
percentage of fault.
Consultant's obligations as set forth in this Section shall survive expiration or
termination of this Agreement.
30. Insurance.
30.1 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, C ultant shall not allow any
subcontractor to commence work on any subcontract u has secured all insurance
required under this Section.
30.2 Minimum Requirements. Consult
maintain for the duration of the Agreement
persons or damages to property which ma
performance of the Agreement by the Con
employees or subcontractors. Consult
procure and maintain the same insura
insurance shall meet at least the f• •wing aft' u
(a) Minimu
as the latest version of the
Commercial General L'
(2) Automobile Liab'
0001, code 1 (an
Employer's Liability:
California and Employe
shall, at ixpense, procure and
uran, agains claims for injuries to
rom or in connection with the
nt, its agents, representatives,
quire all of its subcontractors to
ration of the Agreement. Such
m `'-vels of coverage:
ce. Coverage shall be at least as broad
eneral Liability: Insurance Services Office
age (occurrence form CG 0001 or exact equivalent);
rvices Office Business Auto Coverage (form CA
quivalent); and (3) Workers' Compensation and
ompensation insurance as required by the State of
y 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: $2,000,000 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.
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116
30.3 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 Coy .ultant, on a case -by -case
basis, depending on the nature and scope of the S- es to be provided by the
subconsultant. Approval of such request shall writing, signed by the
Commission's Contract Administrator.
30.4 Aircraft Liability Insurance. Prior
of aircraft, Consultant shall procure and m
maintained, aircraft liability insurance or equivale
required by the Commission. Such ins sha
and non -owned aircraft and passengers,
Commission, Caltrans and their •' -ctors,
additional insureds with respe Se
of the Consultant.
30.5 Insuranc
following provisions
the Commission t
(a)
ting any ` ervices requiring use
or cause to be procured and
orm, with a single limit as shall be
lude coverage for owned, hired
e, or be endorsed to name, the
ials, °•fficers, employees and agents as
s or operations performed by or on behalf
ents. The insurance policies shall contain the
all provide endorsements on forms approved by
ing •rovisions to the insurance policies:
(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.
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(iii) The policy shall give the Commission, its directors, officials,
officers, employees, and agents insured status using ISO endorsement forms 20 10 10
01 and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the policy shall be
"primary and non-contributory" and will not seek contribution from the Commission's or
Caltrans' insurance or self-insurance and shall be at least as broad as CG 20 01 04 13,
or endorsements providing the exact same coverage.
(b) Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) the Commission, Caltrans and their directors, officials,
officers, employees and agents shall be covered as additional insureds with respect to
the ownership, operation, maintenance, use, loading or unloading of any auto owned,
leased, hired or borrowed by the Consultant or for which t , ; Consultant is responsible;
and (2) the insurance coverage shall be primary insuran F;r s respects the Commission,
Caltrans and their directors, officials, officers, employ • agents, or if excess, shall
stand in an unbroken chain of coverage exce of Consultant's scheduled
underlying coverage. Any insurance or self -ins ce maint d by the Commission,
Caltrans and their directors, officials, officers, • loy- ' . and ag = nts shall be excess of
the Consultant's insurance and shall not be cal . to contribute with it in any way.
(c) Workers' Compens
(i) Consu
Section 3700 of the California
against liability for workers'
with the provisions of that
commencing work and - A•' �- ment.
ers Liability Coverage.
t ce '-' hat e/she is aware of the provisions of
ich requires every employer to be insured
undertake self-insurance in accordance
will comply with such provisions before
against the Commi
losses paid under the t
the Consultant.
(d)
forth hereunder.
All Coverages.
r shall agree to waive all rights of subrogation
ectors, officials, officers, employees and agents for
e insurance policy which arise from work performed by
(i) Defense costs shall be payable in addition to the limits set
(ii) Requirements of specific coverage or limits contained in this
Section are not intended as a limitation on coverage, limits, or other requirement, or a
waiver of any coverage normally provided by any insurance. It shall be a requirement
under this Agreement that any available insurance proceeds broader than or in excess
of the specified minimum insurance coverage requirements and/or limits set forth herein
shall be available to the Commission, Caltrans and their directors, officials, officers,
employees and agents as additional insureds under said policies. Furthermore, the
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requirements for coverage and limits shall be (1) the minimum coverage and limits
specified in this Agreement; or (2) the broader coverage and maximum limits of
coverage of any insurance policy or proceeds available to the named insured;
whichever is greater.
(iii) The limits of insurance required in this Agreement may be
satisfied by a combination of primary and umbrella or excess insurance. Any umbrella
or excess insurance shall contain or be endorsed to contain a provision that such
coverage shall also apply on a primary and non-contributory basis for the benefit of the
Commission (if agreed to in a written contract or agreement) before the Commission's
own insurance or self-insurance shall be called upon to protect it as a named insured.
The umbrella/excess policy shall be provided on a "following form" basis with coverage
at least as broad as provided on the underlying policy(ies).
(iv) Consultant shall provide the
days prior written notice of cancellation of any policy r
that the Consultant shall provide at least ten
cancellation of any such policy due to non -pay
coverage is cancelled or expires during the ter
deliver renewal certificate(s) including the
Endorsement to the Commission at least ten
cancellation or expiration.
(v) The
than the effective date of this
continuously for a period of
this Agreement. Consultant
if the retroactive date
policy is cancelled
made policy with a
mission at least thirty (30)
by this Agreement, except
) d `. prior written notice of
of premi If any of the required
thi greeme t, the Consultant shall
al Liability Additional Insured
ays prior to the effective date of
ctiv (if y) of each policy is to be no later
ent. Consultant shall maintain such coverage
ree y s after the completion of the work under
one (1) year extended reporting period A)
past the effective date of this Agreement; B) if the
r C) if the policy is replaced by another claims-
sequent to the effective date of this Agreement.
(vi) T oregoing requirements as to the types and limits of
insurance coverage to be ntained 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.
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(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:
30.6 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 -.N,;•enses.
30.7 Acceptability of Insurers. Insurance is = .•laced with insurers with a
current A.M. Best's rating no less than A:VIII, license: to d J,:, siness in California, and
satisfactory to the Commission.
30.8 Verification of Coverage. Co shall furnish Commission with
original certificates of insurance and endorseme ffecting coverage required by this
Agreement on forms satisfactory t - Co sion. The certificates and
endorsements for each insurance policy gal e by a person authorized by that
insurer to bind coverage on its •,;-.. alf ,i ° erti ates and endorsements must be
received and approved by the sion -fore work commences. The Commission
reserves the right to require ple F certifi copies of all required insurance policies,
at any time.
30.9 Subco e Requirements. Consultant shall not allow any
subcontractors or sconsulta to '`ommence work on any subcontract until they have
provided evidence s actory +ti the Commission that they have secured all insurance
required under this Se icies of commercial general liability insurance provided
by such subcontractors o .'.consultants shall be endorsed to name the Commission
as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing
the exact same coverage. If requested by Consultant, the Commission may approve
different scopes or minimum limits of insurance for particular subcontractors or
subconsultants.
30.10 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.
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31. 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.
As between Consultant and the construction contrac
contractors shall remain solely responsible for construc
safety obligations of Consultant at the jobsite. The for
nor in any way modify or alter Consultant's inde an
Commission, as set forth in Section 29 of this Ag yk'' ent, not
or obligations set forth under this Agreement, i din. <<, e attach
s only, the construction
safety notwithstanding any
sentence shall not impact
fense obligations to the
of Consultant's duties
d exhibits.
Pursuant to the authority contained in Section 59 the Vehicle Code, the Commission
has determined that the Project will . are. hat are open to public traffic.
Consultant shall comply with all of the rep e forth in Divisions 11, 12, 13, 14,
and 15 of the Vehicle Code. Con nt s . _. ke a reasonably necessary precautions
for safe operation of its vehicle ction of the traveling public from injury and
damage from such vehicles.
32. Additional Work
outside of, the Se
performed pursua
foregoing, the Com
other than a Cardinal
change which is "outsid
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 4220.1 D, paragraph 9(f).
or activities that are in addition to, or otherwise
rmed pursuant to this Agreement shall only be
eement between the parties. Notwithstanding the
cutive Director may make a change to the Agreement,
or purposes of this Agreement, a Cardinal Change is a
scope" of the Agreement; in other words, work which
(a) In addition to the changes authorized above, a modification which is
signed by Consultant and the Commission's Executive Director, 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
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121
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.
33. Prohibited Interests.
33.1 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 per ,. , other than a bona fide
employee working solely for Consultant, any fee, com r:' ion, percentage, brokerage
fee, gift or other consideration contingent upon or res r p om the award or making of
this Agreement. For breach or violation of this warr ', th= : >•mmission shall have the
right to rescind this Agreement without liability.
33.2 Consultant Conflict of Interest.
(a) Consultant shall e a financial, business, or other
relationship with Commission that ma act upon the outcome of this
Agreement, or any ensuing Coma' sion ucti.` project. Consultant shall also list
current clients who may have ial i rest in the outcome of this Agreement, or
any ensuing Commission co ucti. •roje which will follow.
(b) Co
acquire any financi
Services under thi
apparent or potentia
execution of this Agree
economic interest if requi
eby certifies that it does not now have, nor shall it
erest that would conflict with the performance of
ultant agrees to advise Commission of any actual,
interest that may develop subsequent to the date of
onsultant further agrees to complete any statements of
y either Commission or State law.
(c) Any subcontract in excess of $25,000 entered into as a result of
this Agreement, shall contain all of the provisions of this Article.
(d) Consultant hereby certifies that neither Consultant, nor any firm
affiliated with Consultant will bid on any construction contract, or on any contract to
provide construction inspection for any construction project resulting from this
Agreement. An affiliated firm is one, which is subject to the control of the same persons
through joint -ownership, or otherwise.
(e) Except for subconsultants whose services are limited to providing
surveying or materials testing information, no subconsultant who has provided design
services in connection with this Agreement shall be eligible to bid on any construction
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122
contract, or on any contract to provide construction inspection for any construction
project resulting from this Agreement.
33.3 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.
33.4 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 Agree ► •nt, where this employment
is caused by and or dependent upon the Consultant sec • this or related Agreements
with the Commission, is prohibited.
33.5 Covenant Against Contingent Fe As req 'd in connection with
federal funding, the Consultant warrants that ► he not e . oyed or retained any
company or person, other than a bona fide e working for the Consultant, to
solicit or secure this Agreement, and that he/sh" 'as not paid or agreed to pay any
company or person, other than a bona f •loye- y fee, commission, percentage,
brokerage fee, gift, or any other consid. -tio � i gent upon or resulting from the
award or formation of this Agre- • -nt. rear or violation of this warranty, the
Commission shall have the rig ina this Agreement without liability pursuant to
the terms herein, or at deduct from the Agreement price or
consideration, or otherwise - full amount of such fee, commission,
percentage, brokerage - • ift, ontingent fee.
33.6 Reb. Kickb. !: s r Other Unlawful Consideration. Consultant
warrants that this Ag ent w not obtained or secured through rebates kickbacks or
other unlawful conside gin, er promised or paid to any Commission employee. For
breach or violation of this ranty, 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 contract price; or otherwise recover the full amount of
such rebate, kickback or other unlawful consideration.
33.7 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
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123
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 "E",
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.
(c) The Consultant also agre ning this Agreement that he/she
shall require that the language set fort in this tion be included in all Consultant
subcontracts which exceed $100,000, all s subcontractors shall certify and
disclose accordingly.
33.8 Employment Adverse to the ommission. Consultant shall notify the
Commission, and shall obtain the Commissi 's written consent, prior to accepting work
to assist with or participate in a third -fry lawsuit or other legal or administrative
proceeding against the Commission during the term of this Agreement.
Any
34. 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.
35. Right to Employ Other Consultants. Commission reserves the right to employ
other consultants in connection with the Project.
36. Governing Law. This Agreement shall be governed by and construed with the
laws of the State of California. Venue shall be in Riverside County.
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Group Delta Consultants
1035 Milliken Ave, Ste.
Ontario, CA 91761
Attn: Michael Give
37. Disputes; Attorneys' Fees.
37.1 Prior to either party commencing any legal action under this Agreement,
the Parties agree to try in good faith, to resolve any dispute amicably between them. If a
dispute has not been resolved after forty-five (45) days of good -faith negotiations and as
may be otherwise provided herein, then either Party may seek any other available
remedy to resolve the dispute.
37.2. 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.
38. Time of Essence. Time is of the essence for eac nd every provision of this
Agreement.
39. Headings. Article and Section Heading
headings contained in this Agreement are for co
in the construction or interpretation of any prov •n he _°'n
arag captions or marginal
ience on d shall have no effect
39.1 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:
side County Transportation Commission
4080 Lemon Street, 3rd Floor
Riverside, CA 92501
Attn: Executive Director
Such notice shall be deemedfiiade 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.
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125
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 Federal Department of Transportation Funds Are
Involved. When funding for the Services provided by this Agreement are provided, in
whole or in part, from the United States Department of Transportation, Consultant shall
also fully and adequately comply with the provisions included in Exhibit "C" (Federal
Department of Transportation Requirements and California Department of
Transportation (Caltrans) DBE program requirements) atta -d hereto and incorporated
herein by reference.
45. Survival. All rights and obligations hereunde at b -ir nature are to continue
after any expiration or termination of this Agree t, includi but not limited to, the
indemnification and confidentiality obligation , hall urvive a y such expiration or
termination.
46. No Third Party Beneficiaries. T ded third party beneficiaries of
any right or obligation assumed by the P
47. Labor Certification.
aware of the provisions of
every employer to be ins
undertake self-insuran
comply with such pr
48. Counterparts.
shall constitute an origi
B atu <T . hereunder, Consultant certifies that it is
he California Labor Code which require
ility for Workers' Compensation or to
nce with the provisions of that Code, and agrees to
mmencing the performance of the Services.
ment may be signed in counterparts, each of which
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.
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126
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 purpose This Agreement may be
signed using an electronic signature.
[S tur !lowing page]
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127
SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA FUNDING/ASSISTANCE
IN WITNESS WHEREOF, this Agreement was executed on the date first written
above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
Anne Mayer
Executive Director
11?°
Approved as to Form: Title
Kr � liiimmr
By:
Best, Best &
General Co
ATTEST:
By:
Its:
GROUP DELTA CONSULTANTS, INC.
By:
Si ture
e
* A corporation requires the signatures of two corporate officers.
One signature shall be that of the chairman of board, the president or any vice president and the second
signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial
officer or any assistant treasurer of such corporation.
If the above persons are not the intended signators, evidence of signature authority shall be provided to
RCTC.
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EXHIBIT "A" - SCOPE OF SERVICES
Services that will be requested include special inspections, laboratory and field testing
of materials, as is listed on the Materials Test Request form (Exhibit "A") and preparing
any requested / required reports to serve as quality assurance in capital projects.
Services may also be requested to perform plant inspection, geo-technical studies and
recommendations.
Consultant shall provide qualified personnel to perform material testing and inspection
services. Testing personnel shall maintain current Certificates of Proficiency for specific
tests being performed on the project including but not limited to sampling aggregates,
Portland cement concrete, and asphalt concrete, concr- - and asphalt batch plant
inspection, fabricating and testing concrete cylinder s " `ples, sampling and testing
import borrow material for project specific requiremen orming relative compaction
testing using a nuclear gauge, sampling and te i g m ry grout, sampling and
testing asphalt concrete for compliance with th-, ontractor's •roved quality control
plan. Every effort shall be made to mainta onti 'ty of te ing personnel on the
project for the duration of the project.
Consultant shall operate and maintain ns fled laboratory(ies) for the tests
required for the project. Testing perform ' n accordance with the procedures
set forth in the Caltrans Stan• • Te-' `" -tho• Manuals and at the frequency
recommended by the latest v- •n the altrans Construction Manual. Testing not
covered by a Caltrans Stan • _ 'd Te eth. ° shall be performed per the specified test
method required by the proje
Consultant shall docu da ctivities on a daily work report acceptable to the
Resident Engineer. e • re• shall consist of work monitored, tests performed
and samples tak : - "location th- project, date, weather conditions, hours on the
project.
Consultant shall identify .I and potential problems associated with the project and
recommend sound engineering solutions.
Consultant shall record all deviations from the approved plans to assist the Resident
Engineer and/or Design Engineer in the preparation of as -built plans.
The following is a list of tests that may be performed by the consultant and which must
be included in the Fee Schedule.
Calif. Test No. 202 — Sieve Analysis of Fine and Course Aggregates
Calif. Test No. 204 — Plasticity Index of Soils
Calif. Test No. 206 — Specific Gravity and Absorption of Coarse Aggregate
Calif. Test No. 207 — Specific Gravity and Absorption of Fine Aggregate
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129
Calif. Test No. 216 — Relative Compaction of Untreated and Treated Soils and
Aggregates Soils and Aggregates. (or ASTM D 1557)
Calif. Test No. 217 — Sand Equivalent (or ASTM D2419)
Calif. Test No. 227 — Cleanness of Coarse Aggregate
Calif. Test No. 231 — Nuclear Gage Relative Compaction Test of Soils (or ASTM D2922)
Calif. Test No. 301 — Resistance "R" Value of Treated and Untreated Bases, Sub -bases
and Basement Soils by The Stabilometer (Unit price to include all
preparatory tests)
Calif. Test No. 308 — Specific Gravity and Weight per Cubic Foot of Compressed
Bituminous Mixtures
Calif. Test No. 309 — Theoretical Maximum Specific Gravity and Density of Hot Mix
Asphalt
Calif. Test No. 310 — Determination of Asphalt and Moisture Contents of Bituminous
Mixtures by Hot Solvent Extraction or a method approved by the
Resident Engineer
Calif. Test No. 366 — Test for Stabilometer Val
Calif. Test No. 375 — Compaction Testin
Calif. Test No. 518 — Concrete Yield
Calif. Test No. 521 — Compressive Streng o • + Concrete Cylinders
Calif. Test No. 541 — Flow of Grout Mixture
Calif. Test No. 556 — Slump Test ,
If approved by the Resident Engineer, an alternate test method as shown in parenthesis
may be used in lie the listed California Test method.
All tests shall conform to the newest version "Greenbook Standards for Construction or
Caltrans Standards". Any discrepancies in testing method shall be brought to the
attention of the Resident Engineer in writing.
The Resident Engineer may require special testing that is not listed on the attached unit
sheet. The Consultant will be paid a price agreed prior to commencement of any testing
or work.
The Consultant shall provide a 24hr emergency phone number as part of the proposal.
The Resident Engineer may require a written recommendation from the Consultant
when field conditions do not allow for a specific testing method to take place.
34 130
A. Sampling
Sampling of material, delivery of the sampled material to the laboratory and preparation
of the sample for testing will be done by the Consultant. The cost of this work shall be
included in the unit price of the test being performed.
B. Time Schedule
The Consultant will receive a 24 hour notice when field testing is required. If any
contractor delays are incurred due to the Consultant not performing the required tests
within the specified time or the test results not being available within the specified
response time, the Consultant will bear the full incurred delay costs.
C. Reports
For field density and relative compaction tests, the Consultant shall provide a copy of
the test results to the Resident Engineer "at the time of te- ng". The consultant shall
provide a formal report to the Commission [when applica► within five (5) working days
of project completion.
For all other tests, an informal report shall be
test. A formal report, including all backup i
working days of completion of the test.
All reports shall be identified with the c
by the Commission's Purchasing Depart
name on all documents.
on completion of the
sent within five (5)
nd task order number assigned
the Project Number and contact
Consultant shall provide res -s of rson for approval by the Commission.
Consultant shall provid= • • the Quality Control Manual for each laboratory used
on the project.
Consultant shall pr. ' e an • ated copy of the Caltrans Laboratory Accreditation
Manual for each labora u • on the project.
Consultant shall provide a copy of certificates of proficiency for each employee working
on the project as soon as they are available.
Consultant shall provide copies of all Reference Sample Program test results as soon
as they are available.
Consultant shall provide certified payrolls for covered workers with each payment
application submittal.
35 131
EXHIBIT "B" - COMPENSATION PROVISIONS
B-1
132
EXHIBIT "B"
COMPENSATION SUMMARY
FIRM
I PROJECT TASKS/ROLE
COST
Prime Consultant:
Group Delta Consultants, Inc.
Geotechnical and Material Testing & Inspection
$ 500,000.00
Sub Consultants:
Aragon Geotechnical
Geotechnical & Materials Engineering Services
TBD
Veteran Drilling
Environmental & Geotechnical Drilling Services
TBD
TOTAL COSTS
$ 500,000.00
1 Commission authorization pertains to total contract award amou
however, the maximum total compensation authorized may not be Weeded.
Compensation adjustments between consultants may occur;
133
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.
Exhibit C-1
134
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 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 Civil Rights Act of 1964).
Specifically, the Consultant shall not participate eith'_ %'directly or indirectly in the
discrimination prohibited by 49 CFR §21.5, include ; e oyment practices and the
selection and retention of subconsultants.
H. Consultant and its subconsultants will ne exc any person from participation
in, deny any person the benefits of, or oth discriminate against anyone in
connection with the award and perform e of an ntract covered by 49 CFR 26 on
the basis of race, color, sex, or nati, •in. administering the Commission
components of the DBE Program plan, o► • and its subconsultants will not,
directly, or through contractual ether angements, use criteria or methods of
administration that have a ct defeating or substantially impairing
accomplishment of the obje rogram plan with respect to individuals of
a particular race, color, sex, o
I. Consultant shal clude - n. •iscrimination and compliance provisions of this
section in all subco work under this Agreement.
2. DEBARMENT AND ` _ SION 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.
Exhibit C-2
135
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.
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.'art 26. The Commission
shall take all necessary and reasonable steps and -;:_ % 9 CFR Part 26 to ensure
nondiscrimination in the award and administration of 'w isted contracts.
Consultant or subcontractor shall not discrimin
origin, of sex in the performance of this Agre
carry out applicable requirements of 49 CFR P
the award and administration of DOT- isted
Failure by the Consultant or subcontrac
breach of this Agreement, which may res
other remedy, as the Commissio
on the basi race, color, national
nsultant or subcontractor shall
and the Caltrans DBE program in
acts, as further set forth below.
ese requirements is a material
ination of this Agreement or such
Failure by the Consultant t equirements is a material breach of this
contract, which may result in - rmi - of this contract or such other remedy as
the recipient deems a -te, '.ch may include, but is not limited to:
(1) Withholding mo
(2) Assessing sanctio
(3) Liquidated damages,
(4) Disqualifying Consulta
4. PROMPT PAYMENT
rom future proposing as non -responsible
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
Exhibit C-3
136
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
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 prohibite
subconsultants. Any delay or postponement of paymer
cause and with the Commission's prior written
provisions shall subject Consultant or the viola
sanctions, and other remedies specified in Se
This requirement shall not be construed to lim
or judicial remedies, otherwise available to Con
dispute involving late payment or none_:, ment b
performance and/or noncompliance by
DBE and non -DBE subconsultants.
6. LEGAL REMEDIES
In addition to those contract
law, either Party to
violations of this A
and 26, to the r
violations, and to th
"whistleblower" actions,
provisions of law.
m holding retainage from
ay take place only for good
Any violation of these
subc ultant to the penalties,
3321 of t California Civil Code.
any con ractual, administrative
or subconsultant in the event of a
onsultant, deficient subconsultant
t. This clause applies to both
es orth under relevant provisions of California
t may, where applicable, seek legal redress for
to the relevant provisions of 49 C.F.R. Parts 23
or state statutory provisions governing civil rights
deral and state provisions governing false claims or
II as any and all other applicable federal and state
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 Exhibits "E" of this Agreement in compliance with
the Caltrans DBE program, and a final utilization report in the form provided by the
Commission.
Exhibit C-4
137
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 has a DBE goal. Participation by DBE Consultant or
subconsultants shall be in accordance with the information contained in the Consultant
Contract DBE Commitment form attached hereto and incorporated into this Agreement
by reference. 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 altrans federally mandated
statewide overall DBE goal. Credit for materials or s onsultant purchases from
DBEs counts towards the goal in the following man
• 100 percent counts if the materials
manufacturer.
• 60 percent counts if the materials
dealer.
• Only fees, commissions, and ch
delivery of materials or suppli .: -:. unt
manufacturer nor regular de
dealer."
D. DBE and other
encouraged to parti
with federal funds.
on the basis of race,
The Consultant shall ca
and administration of US
s are obtained from a DBE
re purchased from a DBE regular
!stance in the procurement and
tained from a DBE that is neither a
.55 defines "manufacturer" and "regular
sses (SB), as defined in Title 49 CFR, Part 26 are
mance of agreements financed in whole or in part
t, subrecipient or subconsultant shall not discriminate
al origin, or sex in the performance of this Agreement.
pplicable requirements of 49 CFR, Part 26 in the award
- 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.
Exhibit C-5
138
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.
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 lis > on 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 prop , List of subcontractors.
F. A Consultant who is ertified DBE is eligible to claim all of the work in the
Agreement toward the DBE pa ipation 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
Exhibit C-6
139
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 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 S
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 . ha; a in records of materials purchased and/or supplied
from all subcontrac tere o with certified DBEs. The records shall show the name
and business ad of eac DBE subconsultant, DBE vendor, and DBE trucking
company and the tot Ilar a punt actually paid each business regardless of tier. The
records shall show the ayment 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
Exhibit C-7
140
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
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-240 ) 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,
Exhibit C-8
141
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 perfo
materials for which each is listed unless Consultant or
Commission's written consent. Consultant shall not t
for convenience and perform the work with their
other sources without authorization from the
consent is provided, the Consultant shall not
material unless it is performed or supplied by th
Contract DBE Commitment form.
n forc
mission.
the work and supply the
subconsultant obtains the
or substitute a listed DBE
r obtain materials from
s the Commission's
d to any payment for work or
DBE on the attached Consultant
The Commission authorizes a request . orces or sources of materials if
Consultant shows any of the foll• usti ': ons:
1. Listed DBE fails
specifications for
2. The Com
subcon
require
3. Work req
license and
to a written contract based on plans and
jec
ated that a bond is a condition of executing the
d DBE fails to meet the Commission's bond
ultant's license and listed DBE does not have a valid
actors License Law.
4. Listed DBE fai .r 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.
Exhibit C-9
142
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 undef the contract to the extent
needed to meet or exceed the DBE goal.
14. DEBARMENT, SUSPENSION AND OTHER INELIGIBILITY AND VOLUNTARY
EXCLUSION
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
Exhibit C-10
143
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.
Exhibit C-11
144
EXHIBIT "D" - CONSULTANT DBE COMMITMENT
Exhibit D-1
145
Local Assistance Procedures Manual
Exhibit 10-01
Consultant Proposal DBE Commitment
EXHIBIT 10-01 CONSULTANT PROPOSAL DBE COMMITMENT
1. Local Agency: Riverside County Transportation Commission 2. Contract DBE Goal: 1 5%
3. Project Description: on -call geotechnical engineering and field/laboratory testing and inspection services for various Commission projects
4. Project Location: Riverside County
5. Consultant's Name: Group Delta Consultants, Inc.
6. Prime Certified DBE: 0
7. Description of Work, Service, or Materials
Supplied
8. DBE
Certification
Number
9. DBE Contact Information
10. DBE
Inspection Services
45365
Aragon Geotechnical Inc
Name: C. Ph e: (951)Fernando 776 0345 Aragon
TBD
Envrionmental and Geotechnical Drilling
CUCP - 45421
M R Drilling
Name: Terry Smith
Ph e: (714) 994-0402
TBD
Environmental and Geotechnical Drilling
2017022
Veteran Drilling
Name: Frank Stolfi
Phone: (951) 523-8994
TBD
N
t l? i
1 1 4 1 1 P<(-
Local Agency to Complete th
- cti
11. TOTAL CLAIMED DBE PARTICIPATION
IMPORTANT: Identify all DBE firms being claimed for
regardless of tier. Written confirmation of each listed
required.
1. ICJ C< ,I 04/14/2022
15 %
credit,
DBE is
17. Local Agency Contract Number:
18. Federal -Aid Project Number:
19. Proposed Contract Execution Date.
20. Consultant's Ranking after Evaluatio
Local Agency certifies that all DBE certificat . - valid and information on
this form is complete and accurate.
21. Local Agency Representative's Signature 22. Date
12. Preparer's Signature 13. Date
Shah Ghanbari (949) 450-2100
23. Local Agency Representative's Name
24. Phone
14. Preparers Name 15. Phone
President
25. Local Agency Representative's Title
16. Preparer's Title
DISTRIBUTION: Original — Included with consultant's proposal to local agency.
ADA Notice: For individuals with sensory disabilities, this document is available in alternate formats. For information call (916) 654-6410 or TDD (916) 654-
3880 or write Records and Forms Management, 1120 N Street, MS -89, Sacramento, CA 95814.
LPP 18-01
146
Page 1 of 2
January 2019
EXHIBIT "E" - DISCLOSURE OF LOBBYING ACTIVITIES
Exhibit E-1
147
Local Assistance Procedures Manual
EXHBIT 10-Q
Disclosure of Lobbying Activities
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:
IVI
a. contract
b. grant
c. cooperative agreement
d. loan
e. loan guarantee
f. loan insurance
2. Status of Federal Action:
VI a bid/offer/application
b. initial award
e. post -award
4. Name and Address of Reporting Entity
n Prime
S ubawardee
Tier , if known
Congressional District, if known
6. Federal Department/Agency:
8. Federal Action Number, if known:
10. Name and Address of Lobby Entity
(If individual, last name, first name, MI)
(attach Continua
12. Amount of Payment (check all that
$ n actual
13. Form of Payment (check all
8 a. cash
b. m -kind; s
3. Report Type:
a. initial
b. material change
For Material Change Only:
year quarter
date of last report
5. If Reporting Entity in No. 4 is Subawardee,
Enter Name and Address of Prime:
Congression 'strict, if known
7. Federal am Name/Description:
1CF 1l/Numb�i applicable
9. and Amount, I wn:
11. Ind' als Performing Services
(inc, ding address if different from No. 10)
(1as me, first name, MI)
ry)
pe of Payment (check all that apply)
a. retainer
b. one-time fee
c. commission
d. contingent fee
e deferred
f. other, specify
15. Brief Descriptio ervices Per med or to be performed and Date(s) of Service, including
officer(s), employee i r mem o s) contacted, for Payment Indicated in Item 12:
16. Continuation Sheet(s) attached:
(attach Continuation Sheet(s) if necessary)
Yes n
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.
Federal Use Only:
No
Signature:
F71
}NoJt} &.7
Print Name: Shah Ghanbari
Title: President
Telephone No.:
949-450-2100
Date: 04/14/2022
Authorized for Local Reproduction
Standard Form - LLL
Standard Form LLL Rev. 04-28-06
Distribution: Orig- Local Agency Project Files
LPP 13-01
148
Page 1
May 8, 2013
ATTACHMENT 2
Agreement No. 22-31-087-00
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA FUNDING/ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
NINYO & MOORE GEOTECHNICAL AND
ENVIRONMENTAL SCIENCES CONSULTANTS
FOR
ON -CALL GEOTECHNICAL INVESTIGATION SERVICES —
LABORATORY AND FIELD TESTING OF MATERIALS
Parties and Date.
This Agreement is made and entered into this day of ' , 2022, by and
between the RIVERSIDE COUNTY TRANSP TATION COMMISSION ("the
Commission") and NINYO & MOORE GEOTECHNICAL AND ENVIRONMENTAL
SCIENCES CONSULTANTS ("Consultant"), a CORPORATION The Commission and
Consultant are sometimes referred to herein individually as "Party", and collectively as
the "Parties".
Recitals.
A. On November 8, 1988 the Voters of Riverside County approved Measure A
authorizing the collection of a one-half percent (1/2 °/o) 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 professional services provided under this
Agreement is federal funds administered by the California Department of Transportation
("Caltrans") from the United States Department of Transportation pursuant to the
following project/program: [ INSERT FUNDING SOURCE_].
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149
E. Consultant desires to perform and assume responsibility for the provision of
certain professional services required by the Commission on the terms and conditions
set forth in this Agreement. Consultant represents that it is experienced in providing
Geotechnical Investigation services to public clients, is licensed in the State of
California (if necessary), and is familiar with the plans of the Commission.
F. The Commission desires to engage Consultant to render such services for the
On -Call Geotechnical Investigation ("Project"), as set forth in this Agreement.
Terms.
1. General Scope of Services. Consultant shall furnish all technical and
professional services, including labor, material, equipment, transportation, supervision
and expertise, and incidental and customary work neces y to fully and adequately
supply the professional Geotechnical Investigation se =s necessary for the Project
("Services"). The Services are more particularly d' -d in Exhibit "A" attached
hereto and incorporated herein by reference. Al "ervic- hall be subject to, and
performed in accordance with, this Agreeme .: the exhib attached hereto and
incorporated herein by reference, and all appl le I•::: .I, state nd federal laws, rules
and regulations.
2. Commencement of Services. Th
11 commence work upon receipt
of a written "Notice to Proceed" or "Limit- ' No •ceed" from Commission.
3. Pre -Award Audit. As
extent Caltrans procedures
Proceed" may be contingent
questions raised durin
will consider appro
Agreement is cont
thereby entitling the
completed. The Cons
and State process revie
acting in behalf of a federal agency, may require that prior to performance of any work
for which Federal reimbursement is requested and provided, that said federal agency or
Caltrans must give to Commission an "Authorization to Proceed".
a u if th= ederal funding for this Project, and to the
ion therewith, issuance of a "Notice to
and approval of a pre -award audit. Any
and audit shall be resolved before the Commission
ement. The federal aid provided under this
ting all Federal requirements and could be withdrawn,
to terminate this Agreement, if the procedures are not
es shall be maintained in a manner to facilitate Federal
In addition, the applicable federal agency, or Caltrans
4. Caltrans 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
2
150
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 24 and 25 of this Agreement.
4.2 During Caltrans' review of the ICR audit work papers created by the
Consultant's independent CPA (which may include review
Audits and Investigations), Caltrans will work with the C
resolution of issues that arise during the review. E
efforts to resolve any audit disputes in a timely ma
issues during the review and is unable to issue a
will reimburse the Consultant at an accepte
Regulation) compliant ICR {e.g. 48 CFR Part
Standards); CAS (Cost Accounting Standards
procedures and guidelines of the A
Transportation Officials (AASHTO) Audi
guidelines} is received and appro by C
Accepted rates will be as fol
a. If the pro
accepted rate reimb
b. If the p
hundred percent (200
proposed rate.
the Independent Office of
and/or Consultant toward a
rty agrees to use its best
r If :i,Tans identifies significant
gnizant ap oval letter, Commission
R til a FA (Federal Acquisition
S (Generally Accepted Auditing
applicable; in accordance with
'ation of State Highways and
ther applicable procedures and
s less than one hundred fifty percent (150%) — the
percent (90%) of the proposed rate.
is between one hundred fifty percent (150%) and two
accepted rate will be eighty-five percent (85%) of the
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.
4.4 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
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151
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.
4.5 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 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
contingent upon approval by Commission, and Cons
notification to proceed by Commission's Contract
end on June 30, 2025, unless extended by contr
5.2 Consultant is advised that any r
not binding on Commission until this Agreement
Commission.
5.3 This Agreement sh
earlier terminated as provided
term of this Agreement, and
All applicable indemnificati
following the terminatio
date first set forth above,
hall commence work after
r. This Agreement shall
ndation for Agreement award is
Ily executed and approved by the
main ' V ect til the date set forth above, unless
Con • tant shall complete the Services within the
er established schedules and deadlines.
this Agreement shall remain in effect
6. Commissio - Contract •mi, istrator. The Commission hereby designates the
Commission's Exec r, or his or her designee, to act as its Contract
Administrator for the ance of this Agreement ("Commission's Contract
Administrator"). Commis Y' 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 Nick Turner 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
4
152
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 as follows: Garreth Saiki, Kurt Yoshii, Rajiindra
Handapangoda, Dave Meras, and James Dalgity.
9. Standard of Care; Licenses; Evaluation.
9.1 Consultant represents and maintai • hat it is d in the professional
calling necessary to perform all Services, es • obliga ons required by this
Agreement to fully and adequately complete t ' ct. Consultant shall perform the
Services and duties in conformance to and co .tent with the standards generally
recognized as being employed by prof - <Is in same discipline in the State of
California. Consultant warrants that - ,-s and subcontractors shall have
sufficient skill and experience to ery es assigned to them. Consultant
further represents and war + t Commission that its employees and
subcontractors have all lic • ' mits, alifications and approvals of whatever
nature that are legally requi of he Services, and that such licenses and
approvals shall be mai d ughout the term of this Agreement. Consultant shall
perform, at its own c an+ :;.e and without reimbursement from the Commission,
any services nec >ary to rec ''errors or omissions which are caused by the
Consultant's failure > >•mply the standard of care provided for herein, and shall be
fully responsible to the sion for all damages and other liabilities provided for in
the indemnification provi " vF,. 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.
9.2 Consultant's performance will be evaluated by Commission. A copy of the
evaluation will be sent to Consultant for comments. The evaluation together with the
comments shall be retained as part of the Agreement record.
10. Independent Contractor. The Services shall be performed by Consultant or
under its supervision. Consultant will determine the means, methods and details of
5
153
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. Schedule of Services. Consultant shall perform the Services expeditiously,
within the term of this Agreement, and in accordance with _F.:- Schedule of Services set
forth in each Task Order. Consultant represents th "`` has the professional and
technical personnel to perform the Services in confo : r,_ e with such conditions. In
order to facilitate Consultant's conformance with t►e' che e, the Commission shall
respond to Consultant's submittals in a timely m- I I er. Upon : uest of Commission's
Contract Administrator, Consultant shall prove etailed chedule of anticipated
performance to meet the Schedule of Services.
11.1 Modification of the Sche
Commission, through correspondence
required Services within the sch led
informed of all anticipated d
schedule modification is
Schedule of Services for app
11.2 Trend
Commission's Co
Commission, on a bi
standard day and time
discussions concerning s e, 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.
nt shall regularly report to the
reports, its progress in providing
en() s. Commission shall be promptly
event that Consultant determines that a
Itant shall promptly submit a revised
sion's Contract Administrator.
sultant shall conduct trend meetings with the
ato and other interested parties, as requested by the
s or as may be mutually scheduled by the Parties at a
trend meetings will encompass focused and informal
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.
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154
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, epidemics, pandemics, 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 Se.::„.ces will be delayed due to
such conditions. Failure of Consultant to provide such ,do , ely notice shall constitute a
waiver by Consultant of any right to an excusable dela e of performance.
12.3 Mutual Agreement. Performance
may be delayed upon mutual agreement
Consultant's Schedule of Services shall be ex
Consultant shall take all reasonable teps
additional costs, resulting from any suc
ny Servic under this Agreement
P ies. • on such agreement,
s necessary by the Commission.
imize delay in completion, and
13. Preliminar Review of W. AI '' .rts, orking papers, and similar work
products prepared for submi
Agreement shall be submitt
and the Commission may re
approval. In the even
final detailed plans
clearance as may
Commission's Cont
formally submitted wo
established under this A
ourse of providing Services under this
on's Contract Administrator in draft form,
such drafts prior to formal submission and
designs are to be developed as part of the Project,
all be contingent upon obtaining environmental
nnection with Federal funding. In the event that
rator, in his or her sole discretion, determines the
to be not in accordance with the standard of care
ment, Commission's Contract Administrator may require
Consultant to revise and resubmit the work at no cost to the Commission.
14. Appearance at Hearings. If and when required by the Commission, Consultant
shall render assistance at public hearings or other meetings related to the Project or
necessary to the performance of the Services. However, Consultant shall not be
required to, and will not, render any decision, interpretation or recommendation
regarding questions of a legal nature or which may be construed as constituting a legal
opinion.
15. Opportunity to Cure; Inspection of Work. Commission may provide Consultant
an opportunity to cure, at Consultant's expense, all errors and omissions 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
7
155
the cost thereof charged to Consultant. Consultant shall allow the Commission's
Contract Administrator, Caltrans and FHWA to inspect or review Consultant's work in
progress at any reasonable time.
16. Claims Filed by Contractor.
16.1 If claims are filed by the Commission's contractor for the Project
("Contractor") relating to work performed by Consultant's personnel, and additional
information or assistance from the Consultant's personnel is required by the
Commission in order to evaluate or defend against such claims; Consultant agrees to
make reasonable efforts to make its personnel available for consultation with the
Commission's construction contract administration and legal staff and for testimony, if
necessary, at depositions and at trial or arbitration proceedings.
16.2 Consultant's personnel that the Commissi•. i;-`onsiders essential to assist
in defending against Contractor claims will be made a on reasonable notice from
the Commission. Consultation or testimony will . - reim , is ed at the same rates,
including travel costs that are being paid for the ' .nsultant's sonnel services under
this Agreement.
16.3 Services of the Consultant's
connection with Contractor claims will
amendment, if necessary, extending the
finally resolve the claims.
16.4 Nothing conta
Consultant's indemnification
conflict between this S
not intended to obli
personnel related t
defend the Commiss
nel and other support staff in
pursuant to a written contract
to of this Agreement in order to
shall be construed to in any way limit
ained in Section 29. In the case of any
ection 29, Section 29 shall govern. This Section is
ion to reimburse Consultant for time spent by its
for which Consultant is required to indemnify and
to Section 29 of this Agreement.
17. Final Acceptance. on determination by the Commission that Consultant has
satisfactorily completed the Services required under this Agreement and within the term
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.
8
156
18. 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. Consultant shall be liable for all violations
of such laws and regulations in connection with Services.; f the Consultant performs
any work knowing it to be contrary to such laws, rule nd regulations and without
giving written notice to the Commission, Consultant i'e solely responsible for all
costs arising therefrom. Consultant shall defend, nd hold Commission, its
officials, directors, officers, employees and age , ree and less, pursuant to the
indemnification provisions of this Agreement, f any„ aim or li:' ility arising out of any
failure or alleged failure to comply with such la or regulations.
19. Fees and Payment.
19.1 The method of pay • - t for £ gre-ment will be based on actual cost
plus a fixed fee. Commission s► r- bur Consultant for actual costs (including labor
costs, employee benefits, %el, e� i.me rental costs, overhead and other direct
costs) incurred by Consults e of the Services. Consultant shall not be
reimbursed for actual ha" ceed the estimated wage rates, employee benefits,
travel, equipment re ► ov- -a•, d other estimated costs set forth in the approved
Consultant cost p ed ereto as Exhibit "B" and incorporated herein by
reference ("Cost Pro al") unl s additional reimbursement is provided for by a written
amendment. In no ev- sh Consultant be reimbursed for overhead costs at a rate
that exceeds Commissio approved overhead rate set forth in the Cost Proposal. In
the event that Commission determines that a change to the Services from that specified
in the Cost Proposal and this Agreement is required, the contract time or actual costs
reimbursable by Commission shall be adjusted by contract amendment to
accommodate the changed work. The maximum total cost as specified in Section 19.9
shall not be exceeded, unless authorized by a written amendment.
19.2 The indirect cost rate established for this Agreement is extended through
the duration of this Agreement. Consultant's agreement to the extension of the 1 -year
applicable period shall not be a condition or qualification to be considered for the work
or Agreement award.
19.3 In addition to the allowable incurred costs, Commission shall pay
Consultant a fixed fee of j INSERT DOLLAR AMOUNT 1. The fixed fee is
9
157
nonadjustable for the term of this Agreement, except in the event of a significant change
in the Scope of Services, and such adjustment is made by written amendment.
19.4 Reimbursement for transportation and subsistence costs shall not exceed
the rates specified in the approved Cost Proposal. In addition, payments to Consultant
for travel and subsistence expenses claimed for reimbursement or applied as local
match credit shall not exceed rates authorized to be paid exempt non -represented State
employees under current State Department of Personnel Administration (DPA) rules,
unless otherwise authorized by Commission. If the rates invoiced are in excess of
those authorized DPA rates, and Commission has not otherwise approved said rates,
then Consultant is responsible for the cost difference and any overpayments shall be
reimbursed to the Commission on demand.
19.5 When milestone cost estimates are inclu d in the approved Cost
Proposal, Consultant shall obtain prior written approv._ '•r a revised milestone cost
estimate from the Contract Administrator before excee ch cost estimate.
19.6 Progress payments shall be made
provided and allowable incurred costs. A pro r
be included in the monthly progress payments.
deliverable items according to the schedule
Commission shall have the right to
accordance with the provisions of Sectio
nthly in a rs based on Services
of Con ultant's fixed fee shall
ultant fails to submit the required
forth in the Scope of Services,
r terminate this Agreement in
ti n.
19.7 No payment shal • e p " r to approval of any Services, nor for any
Services performed prior to
19.8 Consulta
permit upon receipt
triplicate. Invoice
performance of wo
performed on each mi
format stipulated for the
number and project title. Final invoice must contain the final cost and all credits due
Commission including any equipment purchased under the Equipment Purchase
provisions of this Agreement. The final invoice should be submitted within 60 calendar
days after completion of Consultant's work. Invoices shall be mailed to Commission's
Contract Administrator at the following address:
reimbursed, as promptly as fiscal procedures will
's Contract Administrator of itemized invoices in
bmi ed no later than 45 calendar days after the
Consultant is billing. Invoices shall detail the work
d each project as applicable. Invoices shall follow the
oved Cost Proposal and shall reference this Agreement
Riverside County Transportation Commission
Attention: Accounts Payable
P.O. 12008
Riverside, CA 92502
19.9 The total amount payable by Commission including the fixed fee shall not
exceed amount set forth in each Task Order.
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158
19.10 Commission has or will enter into three (3) task order contracts for
performance of the Scope of Services identified in Exhibit "A", including this Agreement
("On -Call Geotechnical Investigation — Laboratory and Field Testing of Materials"). The
other On -Call Geotechnical Investigation — Laboratory and Field Testing of Materials
Task Order Contracts are Kleinfelder, 22-31-086-00 and Group Delta, 22-31-051-00.
The total amount payable by Commission for the On -Call Geotechnical Investigation —
Laboratory and Field Testing of Materials Task Order Contracts shall not exceed a
cumulative maximum total value of Five Hundred Thousand Dollars ($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 Geotechnical
Investigation — Laboratory and Field Testing of Materials Task Order Contracts through
Task Orders. Each time a Task Order is awarded under any of the On -Call
Geotechnical Investigation — Laboratory and Field Testi;_^. of Materials Task Order
Contracts, Commission must send written notification -°:,>'' onsultant and each of the
other consultants entering into the On -Call Geotechni -stigation — Laboratory and
Field Testing of Materials Task Order Contracts, T - otice i' , . st identify the total funds
allocated under issued Task Orders, and the re ► . ning une bered amount of the
NTE Sum. Consultant acknowledges and ag th. Commis on must not pay any
amount under this Agreement that would exc- - TE Sum, and Consultant must
not enter into a Task Order that exceeds the NT
19.11 Salary increases shall be e if the new salary is within the
salary range identified in the appr•- _-d Co �'•pos and is approved by Commission's
Contract Administrator. For pe subs, t to prevailing wage rates as described in
the California Labor Code, alary creas: which are the direct result of changes in
the prevailing wage rates are
19.12 Consu ,, '"' sh. got eimbursed for any expenses unless authorized in
writing by the Co
rac Administrator.
19.13 All subco pct excess of $25,000 shall contain the above provisions.
20. Disputes.
20.1 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.
20.2 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.
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20.3 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.
21. Termination; Suspension.
21.1 Commission reserves the right to terminate this Agreement for any or no
reason upon thirty (30) calendar days written notice to Consultant with the reasons for
termination stated in the notice.
21.2 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
work in any manner deemed proper by Commission. If ...mmission terminates this
Agreement with Consultant, Commission shall pay = •'nsultant the sum due to
Consultant under this Agreement for Services co •: -d and accepted prior to
termination, unless the cost of completion to Com ,; ion e ;-eds the funds remaining
in this Agreement. In such case, the overage ' I be ded b . -d from any sum due
Consultant under this Agreement and the ba e, if, y, shal '•e paid to Consultant
upon demand.
21.3 In addition to the abov
prorated amount of profit, if applicable, b
on unperformed Services. Consul ' sha
Commission's Contract Admi a to
Consultant prior to the effec dat- .'f term
the effective date of the Notic
21.4 Discon
Termination, Cons
or as otherwise pro
Data, as defined in th
Consultant in performanc
n termination shall include a
all be paid for anticipated profit
ide ••cumentation deemed adequate by
ow the Services actually completed by
tion. This Agreement shall terminate on
ices. Upon receipt of the written Notice of
con nue all affected Services as directed in the Notice
, and deliver to the Commission all Documents and
ent, as may have been prepared or accumulated by
he Services, whether completed or in progress.
21.5 Effect of Termination for Cause. 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 herein. Termination of this Agreement for cause may
be considered by the Commission in determining whether to enter into future
agreements with Consultant.
21.6 Cumulative Remedies. The rights and remedies of the Parties provided in
this Section are in addition to any other rights and remedies provided by law or under
this Agreement.
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21.7 Waivers. 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.
21.8 Consultant may not terminate this Agreement except for cause.
21.9 Suspension. In addition to the termination rights above, Commission may
temporarily suspend this Agreement, 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 this Agreement. A temporary suspension may be issued concurrent with a notice
of termination.
22. Cost Principles and Administrative Requiremen_
22.1 Consultant agrees that the Contra
CFR, Federal Acquisition Regulations System
used to determine the cost allowability of indivi
22.2 Consultant also agrees to
with 2 CFR, Part 200, Uniform Administr
Requirements for Federal Awards
22.3 Any costs for
determined by subsequent a
Federal Acquisition Re
repayment by Cons
ost Princ
apt 1, Part
and Procedures, 48
.000 et seq., shall be
deral procedures in accordance
ents, Cost Principles, and Audit
as been made to Consultant that are
able under 2 CFR, Part 200 and 48 CFR,
stem, Chapter 1, Part 31.000 et seq., are subject to
22.4 All sub • racts i xcess of $25,000 shall contain the above provisions.
23. Retention of Reco ' udit. 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; 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 this Agreement period and for three years from the
date of final payment under this Agreement. The state, State Auditor, Commission,
FHWA, or any duly authorized representative of the 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 indirect cost
rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall
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161
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.
24. Audit Review Procedures.
24.1 Any dispute concerning a question of fact arising under an interim or post
audit of this Agreement that is not disposed of by agree ent, shall be reviewed by
Commission's Chief Financial Officer.
24.2 Not later than 30 days after issuance,-•° the final audit report, Consultant
may request a review by Commission's Chief ancial Officer of unresolved audit
issues. The request for review shall be submit in wr ' • g.
24.3 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.
25. Subcontracting.
25.1 Nothing contained "reement 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.
25.2 Consultant shall perform the Services with resources available within its
own organization and no portion of the Services shall be subcontracted without written
authorization by Commission's Contract Administrator, except that, which is expressly
identified in the approved Cost Proposal.
25.3 Consultant shall pay its subconsultants within fifteen (15) calendar days
from receipt of each payment made to Consultant by Commission.
25.4 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.
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25.5 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).
25.6 Exhibit "B" may also 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". The subconsultant rate schedules and cost proposals contained herein are
for accounting purposes only.
26. Equipment Purchase
26.1 Prior authorization, in writing, by Commiss 's Contract Administrator
shall be required before Consultant enters into any ur;_'°dgeted purchase order, or
subcontract for supplies, equipment, or Consultant ser is Consultant shall provide an
evaluation of the necessity or desirability of incurrin•, ` 'ch c
26.2 For purchase of any item, se
Consultant's Cost Proposal and exceeding $5,
Contract Administrator is required. Three com
with the request for such purchase,
justified.
nsultin• work not covered in
r authorization by Commission's
ive quotations must be submitted
of bidding must be adequately
26.3 Any equipment p = : d as result of this Agreement is subject to the
following:
Consultant shall maint
property is defined a
$5,000 or more. If
Commission shall re
or if this Agreement is
Commission in an amoun
tory of all nonexpendable property. Nonexpendable
life of at least two years and an acquisition cost of
eq `'pment needs replacement and is sold or traded in,
r refund or credit at the conclusion of this Agreement,
d, Consultant may either keep the equipment and credit
ual 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
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.
26.4 All subcontracts in excess $25,000 shall contain the above provisions.
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27. Labor Code Requirements.
27.1 Prevailing Wages.
(a) Consultant shall comply with the State of California's General Prevailing
Wage Rate requirements in accordance with California Labor Code, Section 1770, and
all Federal, State, and local laws and ordinances applicable to the Services.
(b) Any subcontract entered into as a result of this Agreement, if for more
than $25,000 for public works construction or more than $15,000 for the alteration,
demolition, repair, or maintenance of public works, shall contain all of the provisions of
this Section.
(c) When prevailing wages apply to the Service- •escribed in the Scope of
Services, transportation and subsistence costs shall b- eimbursed at the minimum
rates set by the Department of Industrial Relations (Pa outlined in the applicable
Prevailing Wage Determination. See http://www.dir.
(d) Copies of the prevailing rat- >> of •,. il diem ages in effect at
commencement of this Agreement are on file ommission's offices. Consultant
shall make copies of the prevailing rates of per di wages for each craft, classification
or type of worker needed to execute t +ices \ - Table to interested parties upon
request, and shall post copies at the Co Ita pal place of business and at the
project site. Consultant shall de , in y an`. hold the Commission, its elected
officials, officers, employees a ' ` • '`` is fr and harmless from any claims, liabilities,
costs, penalties or interest ng o •f an ilure or alleged failure to comply with the
Prevailing Wage Laws.
27.2 DIR Registra I S- es are being performed as part of an applicable
"public works" or " =;intenanc: prod=ct, then pursuant to Labor Code Sections 1725.5
and 1771.1, the d all subconsultants must be registered with the
Department of Industri.° i'el ins. If applicable, Consultant shall maintain registration
for the duration of the Pro 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.
27.3 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
16
164
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.
27.4 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 theF rvices, Consultant and any
subcontractor hereunder who employs workers in any ;' ticeable craft or trade shall
apply to the joint apprenticeship council admini i? t Iicable standards for a
certificate approving Consultant or any sub -cons l 'nt for the `(m.loyment and training
of apprentices. Upon issuance of this certifi► -, C• ultant a d any sub -consultant
shall employ the number of apprentices provid- • erein, as well as contribute to the
fund to administer the apprenticeship program in ch craft or trade in the area of the
work hereunder.
The parties expressly understan
of this Section and with Secti
Code in regard to all appren
t th- '' .onsi.ility for compliance with provisions
77.6 and 1777.7 of the California Labor
s lies with Consultant
28. Ownership of M,, -; '_;. s/ i identiality.
28.1 Doc -nts & D is Agreement creates an exclusive and perpetual
license for Comm! y, use, modify, reuse, or sub -license any and all
copyrights and designs gib. '"'-d in plans, specifications, studies, drawings, estimates,
materials, data and oth- ocuments 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.
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165
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.
28.2 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 , 's Agreement.
The Commission shall have and retain all right, title
developed or modified under this Agreement wheth
Commission, whether or not developed in conju
not developed by Consultant. Consultant will
any and all rights to the above reference
Commission.
Consultant shall also be responsible to
from any subcontractors or age of
referenced Intellectual Prop
termination of this Agreem
Property, it shall first obtain
All materials and do
general use prior t
any other party or p
to be the property of t
prior to execution of this
right to grant the exclusive
provided herein.
aw -rest in Intellectual Property
r no - id for wholly or in part by
on with C•' Itant, and whether or
cut eparate' v ritten assignments of
tual Property upon request of
ti g separate written assignments
tant :f any and all right to the above
Consultant, either during or following
any of the above -referenced Intellectual
al of the Commission.
ere developed or prepared by the Consultant for
o ° his Agreement and which are not the copyright of
le and any other computer applications, shall continue
Itant. However, unless otherwise identified and stated
ement, Consultant represents and warrants that it has the
and perpetual license for all such Intellectual Property as
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.
28.3 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,
18
166
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.
28.4 Infringement Indemnification. Consultant shall defend, indemnify and hold
the Commission, its directors, officials, officers, employees, volunteers and agents free
and harmless, pursuant to the indemnification provisions of this Agreement, for any
alleged infringement of any patent, copyright, trade secret, trade name, trademark, or
any other proprietary right of any person or entity in con quence of the use on the
Project by Commission of the Documents & Data, in ing any method, process,
product, or concept specified or depicted.
29. Indemnification. To the fullest extent per ed by la , nsultant shall defend
(with counsel of Commission's choosing), inde ify ar hold Co mission, its directors,
officials, officers, employees, consultants, vo ► - = , and agents free and harmless
from any and all claims, demands, causes of •n, costs, expenses, liability, loss,
damage or injury, in law or equity, to p ns, including wrongful death, in
any manner arising out of or incident t, al -. • agent acts, omissions, or willful
misconduct of Consultant, its o .Is, o e ployees, agents, consultants, and
contractors arising out of or i r ". . ctio ith the performance of the Services, the
Project or this Agreement, udiniu;-witho �_, limitation the payment of consequential
damages, expert witness eys fees and other related costs and
expenses. Consultant d - d, at Consultant's own cost, expense and risk, any
and all such afores uits, do or other legal proceedings of every kind that may
be brought or insti =d agams om°` ission, its directors, officials, officers, employees,
consultants, agents, volunt rs. Consultant shall pay and satisfy any judgment,
award or decree that b endered against Commission or its directors, officials,
officers, employees, cons ► ts, agents, or volunteers, in any such suit, action or other
legal proceeding. Consultant shall reimburse Commission and its 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, its directors, officials officers, employees, consultants, agents, or
volunteers.
If Consultant's obligation to defend, indemnify, and/or hold harmless arises out of
Consultant's performance as a "design professional" (as that term is defined under Civil
Code section 2782.8), then, and only to the extent required by Civil Code section
2782.8, which is fully incorporated herein, Consultant's indemnification obligation shall
be limited to claims that arise out of, pertain to, or relate to the negligence,
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167
recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a
final adjudication by a court of competent jurisdiction, Consultant's liability for such
claim, including the cost to defend, shall not exceed the Consultant's proportionate
percentage of fault.
Consultant's obligations as set forth in this Section shall survive expiration or
termination of this Agreement.
30. Insurance.
30.1 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, C ultant shall not allow any
subcontractor to commence work on any subcontract u has secured all insurance
required under this Section.
30.2 Minimum Requirements. Consult
maintain for the duration of the Agreement
persons or damages to property which ma
performance of the Agreement by the Con
employees or subcontractors. Consult
procure and maintain the same insura
insurance shall meet at least the f• •wing ' u
(a) Minimu
as the latest version of the
Commercial General L'
(2) Automobile Liab'
0001, code 1 (an
Employer's Liability:
California and Employe
shall, at ixpense, procure and
uran, agains claims for injuries to
rom or in connection with the
nt, its agents, representatives,
quire all of its subcontractors to
ration of the Agreement. Such
m `'-vels of coverage:
ce. Coverage shall be at least as broad
eneral Liability: Insurance Services Office
age (occurrence form CG 0001 or exact equivalent);
rvices Office Business Auto Coverage (form CA
quivalent); and (3) Workers' Compensation and
ompensation insurance as required by the State of
y 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: $2,000,000 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.
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168
30.3 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 Coy .ultant, on a case -by -case
basis, depending on the nature and scope of the S- es to be provided by the
subconsultant. Approval of such request shall writing, signed by the
Commission's Contract Administrator.
30.4 Aircraft Liability Insurance. Prior
of aircraft, Consultant shall procure and m
maintained, aircraft liability insurance or equivale
required by the Commission. Such ins sha
and non -owned aircraft and passengers,
Commission, Caltrans and their •' -ctors,
additional insureds with respe Se
of the Consultant.
30.5 Insuranc
following provisions
the Commission t
(a)
ting any ervices requiring use
or cause to be procured and
orm, with a single limit as shall be
lude coverage for owned, hired
e, or be endorsed to name, the
ials, °•fficers, employees and agents as
s or operations performed by or on behalf
ents. The insurance policies shall contain the
all provide endorsements on forms approved by
ing •rovisions to the insurance policies:
(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.
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169
(iii) The policy shall give the Commission, its directors, officials,
officers, employees, and agents insured status using ISO endorsement forms 20 10 10
01 and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the policy shall be
"primary and non-contributory" and will not seek contribution from the Commission's or
Caltrans' insurance or self-insurance and shall be at least as broad as CG 20 01 04 13,
or endorsements providing the exact same coverage.
(b) Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) the Commission, Caltrans and their directors, officials,
officers, employees and agents shall be covered as additional insureds with respect to
the ownership, operation, maintenance, use, loading or unloading of any auto owned,
leased, hired or borrowed by the Consultant or for which t , ; Consultant is responsible;
and (2) the insurance coverage shall be primary insuran F;r s respects the Commission,
Caltrans and their directors, officials, officers, employ • agents, or if excess, shall
stand in an unbroken chain of coverage exce of Consultant's scheduled
underlying coverage. Any insurance or self -ins ce maint '' -d by the Commission,
Caltrans and their directors, officials, officers, • loy- ' . and ag = nts shall be excess of
the Consultant's insurance and shall not be cal . to contribute with it in any way.
(c) Workers' Compens
(i) Consu
Section 3700 of the California
against liability for workers'
with the provisions of that
commencing work and - A• ment.
ers Liability Coverage.
t ce '-' hat e/she is aware of the provisions of
ich requires every employer to be insured
undertake self-insurance in accordance
will comply with such provisions before
against the Comm!
losses paid under the t
the Consultant.
(d)
forth hereunder.
All Coverages.
r shall agree to waive all rights of subrogation
ectors, officials, officers, employees and agents for
e insurance policy which arise from work performed by
(i) Defense costs shall be payable in addition to the limits set
(ii) Requirements of specific coverage or limits contained in this
Section are not intended as a limitation on coverage, limits, or other requirement, or a
waiver of any coverage normally provided by any insurance. It shall be a requirement
under this Agreement that any available insurance proceeds broader than or in excess
of the specified minimum insurance coverage requirements and/or limits set forth herein
shall be available to the Commission, Caltrans and their directors, officials, officers,
employees and agents as additional insureds under said policies. Furthermore, the
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170
requirements for coverage and limits shall be (1) the minimum coverage and limits
specified in this Agreement; or (2) the broader coverage and maximum limits of
coverage of any insurance policy or proceeds available to the named insured;
whichever is greater.
(iii) The limits of insurance required in this Agreement may be
satisfied by a combination of primary and umbrella or excess insurance. Any umbrella
or excess insurance shall contain or be endorsed to contain a provision that such
coverage shall also apply on a primary and non-contributory basis for the benefit of the
Commission (if agreed to in a written contract or agreement) before the Commission's
own insurance or self-insurance shall be called upon to protect it as a named insured.
The umbrella/excess policy shall be provided on a "following form" basis with coverage
at least as broad as provided on the underlying policy(ies).
(iv) Consultant shall provide the
days prior written notice of cancellation of any policy r
that the Consultant shall provide at least ten
cancellation of any such policy due to non -pay
coverage is cancelled or expires during the ter
deliver renewal certificate(s) including the
Endorsement to the Commission at least ten
cancellation or expiration.
(v) The
than the effective date of this
continuously for a period of
this Agreement. Consultant
if the retroactive date
policy is cancelled
made policy with a
mission at least thirty (30)
by this Agreement, except
d prior written notice of
of premi If any of the required
thi greeme t, the Consultant shall
al Liability Additional Insured
ays prior to the effective date of
ctiv (if y) of each policy is to be no later
ent. Consultant shall maintain such coverage
ree y s after the completion of the work under
one (1) year extended reporting period A)
past the effective date of this Agreement; B) if the
r C) if the policy is replaced by another claims-
sequent to the effective date of this Agreement.
(vi) T oregoing requirements as to the types and limits of
insurance coverage to be ntained 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.
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171
(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:
30.6 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 -.N;, senses.
30.7 Acceptability of Insurers. Insurance is .•laced with insurers with a
current A.M. Best's rating no less than A:VIII, license: to d: J;;, siness in California, and
satisfactory to the Commission.
30.8 Verification of Coverage. Co shall furnish Commission with
original certificates of insurance and endorseme ffecting coverage required by this
Agreement on forms satisfactory t - Co sion. The certificates and
endorsements for each insurance policy gal e by a person authorized by that
insurer to bind coverage on its •,;-.. alf ,i ° erti ates and endorsements must be
received and approved by the sion -fore work commences. The Commission
reserves the right to require ple F certifi copies of all required insurance policies,
at any time.
30.9 Subco e Requirements. Consultant shall not allow any
subcontractors or sconsulta to '`ommence work on any subcontract until they have
provided evidence s actory +ti the Commission that they have secured all insurance
required under this Se icies of commercial general liability insurance provided
by such subcontractors o .'.consultants shall be endorsed to name the Commission
as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing
the exact same coverage. If requested by Consultant, the Commission may approve
different scopes or minimum limits of insurance for particular subcontractors or
subconsultants.
30.10 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.
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172
31. 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.
As between Consultant and the construction contrac
contractors shall remain solely responsible for construc
safety obligations of Consultant at the jobsite. The for
nor in any way modify or alter Consultant's inde an
Commission, as set forth in Section 29 of this Ag ent, not
or obligations set forth under this Agreement, i f ^din. <<, e attach
s only, the construction
safety notwithstanding any
sentence shall not impact
fense obligations to the
of Consultant's duties
d exhibits.
Pursuant to the authority contained in Section 59 the Vehicle Code, the Commission
has determined that the Project will . are. hat are open to public traffic.
Consultant shall comply with all of the rep e forth in Divisions 11, 12, 13, 14,
and 15 of the Vehicle Code. Con nt s . _. ke a reasonably necessary precautions
for safe operation of its vehicle- pr•"` ction of the traveling public from injury and
damage from such vehicles.
32. Additional Work
outside of, the Se
performed pursua
foregoing, the Com
other than a Cardinal
change which is "outsid
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 4220.1 D, paragraph 9(f).
or activities that are in addition to, or otherwise
rmed pursuant to this Agreement shall only be
eement between the parties. Notwithstanding the
cutive Director may make a change to the Agreement,
or purposes of this Agreement, a Cardinal Change is a
scope" of the Agreement; in other words, work which
(a) In addition to the changes authorized above, a modification which is
signed by Consultant and the Commission's Executive Director, 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
25
173
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.
33. Prohibited Interests.
33.1 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 per ,. , other than a bona fide
employee working solely for Consultant, any fee, com r:' ion, percentage, brokerage
fee, gift or other consideration contingent upon or res r p om the award or making of
this Agreement. For breach or violation of this warr ', th= : >•mmission shall have the
right to rescind this Agreement without liability.
33.2 Consultant Conflict of Interest.
(a) Consultant shall e a financial, business, or other
relationship with Commission that ma act upon the outcome of this
Agreement, or any ensuing Coma' sion ucti.` project. Consultant shall also list
current clients who may have ial i rest in the outcome of this Agreement, or
any ensuing Commission co ucti. •roje which will follow.
(b) Co
acquire any financi
Services under thi
apparent or potentia
execution of this Agree
economic interest if requi
eby certifies that it does not now have, nor shall it
erest that would conflict with the performance of
ultant agrees to advise Commission of any actual,
interest that may develop subsequent to the date of
onsultant further agrees to complete any statements of
y either Commission or State law.
(c) Any subcontract in excess of $25,000 entered into as a result of
this Agreement, shall contain all of the provisions of this Article.
(d) Consultant hereby certifies that neither Consultant, nor any firm
affiliated with Consultant will bid on any construction contract, or on any contract to
provide construction inspection for any construction project resulting from this
Agreement. An affiliated firm is one, which is subject to the control of the same persons
through joint -ownership, or otherwise.
(e) Except for subconsultants whose services are limited to providing
surveying or materials testing information, no subconsultant who has provided design
services in connection with this Agreement shall be eligible to bid on any construction
26
174
contract, or on any contract to provide construction inspection for any construction
project resulting from this Agreement.
33.3 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.
33.4 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 Agree ► •nt, where this employment
is caused by and or dependent upon the Consultant sec • this or related Agreements
with the Commission, is prohibited.
33.5 Covenant Against Contingent Fe As req 'd in connection with
federal funding, the Consultant warrants that ► he not e . oyed or retained any
company or person, other than a bona fide e working for the Consultant, to
solicit or secure this Agreement, and that he/sh" 'as not paid or agreed to pay any
company or person, other than a bona f •loye- y fee, commission, percentage,
brokerage fee, gift, or any other consid. -tio � i gent upon or resulting from the
award or formation of this Agre- • -nt. rear or violation of this warranty, the
Commission shall have the rig ina this Agreement without liability pursuant to
the terms herein, or at deduct from the Agreement price or
consideration, or otherwise - full amount of such fee, commission,
percentage, brokerage - • ift, ontingent fee.
33.6 Reb. Kickb. !: s r Other Unlawful Consideration. Consultant
warrants that this Ag ent w not obtained or secured through rebates kickbacks or
other unlawful conside gin, er promised or paid to any Commission employee. For
breach or violation of this ranty, 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 contract price; or otherwise recover the full amount of
such rebate, kickback or other unlawful consideration.
33.7 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
27
175
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 "E",
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.
(c) The Consultant also agre ning this Agreement that he/she
shall require that the language set fort in this tion be included in all Consultant
subcontracts which exceed $100,000, all s subcontractors shall certify and
disclose accordingly.
33.8 Employment Adverse to the ommission. Consultant shall notify the
Commission, and shall obtain the Commissi 's written consent, prior to accepting work
to assist with or participate in a third -fry lawsuit or other legal or administrative
proceeding against the Commission during the term of this Agreement.
Any
34. 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.
35. Right to Employ Other Consultants. Commission reserves the right to employ
other consultants in connection with the Project.
36. Governing Law. This Agreement shall be governed by and construed with the
laws of the State of California. Venue shall be in Riverside County.
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176
37. Disputes; Attorneys' Fees.
37.1 Prior to either party commencing any legal action under this Agreement,
the Parties agree to try in good faith, to resolve any dispute amicably between them. If a
dispute has not been resolved after forty-five (45) days of good -faith negotiations and as
may be otherwise provided herein, then either Party may seek any other available
remedy to resolve the dispute.
37.2. 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.
38. Time of Essence. Time is of the essence for eac nd every provision of this
Agreement.
39. Headings. Article and Section Heading .arag captions or marginal
headings contained in this Agreement are for co r f fence on d shall have no effect
in the construction or interpretation of any prov : n he <. ;'n
39.1 Notices. All notices permitted or re e .ed under this Agreement shall be
given to the respective parties at the fo addr or at such other address as the
respective parties may provide in writing ••s-•
CONSULTANT: C• 'MISSION:
Ninyo & Moore Consultants
7888 Cherry Ave., Unit
Fontana, CA 92336
Attn: Kurt Yoshii
side County Transportation Commission
4080 Lemon Street, 3rd Floor
Riverside, CA 92501
Attn: Executive Director
Such notice shall be .. - ade when personally delivered or when mailed, forty-
eight (48) hours after .. .sit 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.
29
177
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 Federal Department of Transportation Funds Are
Involved. When funding for the Services provided by this Agreement are provided, in
whole or in part, from the United States Department of Transportation, Consultant shall
also fully and adequately comply with the provisions included in Exhibit "C" (Federal
Department of Transportation Requirements and California Department of
Transportation (Caltrans) DBE program requirements) atta -d hereto and incorporated
herein by reference.
45. Survival. All rights and obligations hereunde, at b -ir nature are to continue
after any expiration or termination of this Agree t, includi but not limited to, the
indemnification and confidentiality obligation hall urvive a y such expiration or
termination.
46. No Third Party Beneficiaries. T - no - ded third party beneficiaries of
any right or obligation assumed by the P
47. Labor Certification.
aware of the provisions of
every employer to be ins
undertake self-insuran
comply with such pr
48. Counterparts.
shall constitute an origi
B atu <T . hereunder, Consultant certifies that it is
he California Labor Code which require
ility for Workers' Compensation or to
nce with the provisions of that Code, and agrees to
mmencing the performance of the Services.
ment may be signed in counterparts, each of which
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.
30
178
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 purpose This Agreement may be
signed using an electronic signature.
[S tur !lowing page]
31
179
SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA FUNDING/ASSISTANCE
IN WITNESS WHEREOF, this Agreement was executed on the date first written
above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
Anne Mayer
Executive Director
Approved as to Form:
By:
Best, Best &
General Co
NINYO AND MOORE GEOTECHNICAL
AND ENVIR• ENTAL SCIENCES
CONSULT
B
By:
Title
ATTEST:
Its:
ature
* 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.
32
180
EXHIBIT "A" - SCOPE OF SERVICES
Services that will be requested include special inspections, laboratory and field testing
of materials, as is listed on the Materials Test Request form (Exhibit "A") and preparing
any requested / required reports to serve as quality assurance in capital projects.
Services may also be requested to perform plant inspection, geo-technical studies and
recommendations.
Consultant shall provide qualified personnel to perform material testing and inspection
services. Testing personnel shall maintain current Certificates of Proficiency for specific
tests being performed on the project including but not limited to sampling aggregates,
Portland cement concrete, and asphalt concrete, concr- - and asphalt batch plant
inspection, fabricating and testing concrete cylinder s " `ples, sampling and testing
import borrow material for project specific requiremen orming relative compaction
testing using a nuclear gauge, sampling and te i g m ry grout, sampling and
testing asphalt concrete for compliance with th-, ontractor's •roved quality control
plan. Every effort shall be made to mainta onti 'ty of te ing personnel on the
project for the duration of the project.
Consultant shall operate and maintain ns fled laboratory(ies) for the tests
required for the project. Testing perform ' n accordance with the procedures
set forth in the Caltrans Stan• • Te-' `" -tho• Manuals and at the frequency
recommended by the latest v- •n the altrans Construction Manual. Testing not
covered by a Caltrans Stan • _ 'd Te eth. ° shall be performed per the specified test
method required by the proje
Consultant shall docu da ctivities on a daily work report acceptable to the
Resident Engineer. e • re• shall consist of work monitored, tests performed
and samples tak : - "location th- project, date, weather conditions, hours on the
project.
Consultant shall identify .I and potential problems associated with the project and
recommend sound engineering solutions.
Consultant shall record all deviations from the approved plans to assist the Resident
Engineer and/or Design Engineer in the preparation of as -built plans.
The following is a list of tests that may be performed by the consultant and which must
be included in the Fee Schedule.
Calif. Test No. 202 — Sieve Analysis of Fine and Course Aggregates
Calif. Test No. 204 — Plasticity Index of Soils
Calif. Test No. 206 — Specific Gravity and Absorption of Coarse Aggregate
Calif. Test No. 207 — Specific Gravity and Absorption of Fine Aggregate
33
181
Calif. Test No. 216 — Relative Compaction of Untreated and Treated Soils and
Aggregates Soils and Aggregates. (or ASTM D 1557)
Calif. Test No. 217 — Sand Equivalent (or ASTM D2419)
Calif. Test No. 227 — Cleanness of Coarse Aggregate
Calif. Test No. 231 — Nuclear Gage Relative Compaction Test of Soils (or ASTM D2922)
Calif. Test No. 301 — Resistance "R" Value of Treated and Untreated Bases, Sub -bases
and Basement Soils by The Stabilometer (Unit price to include all
preparatory tests)
Calif. Test No. 308 — Specific Gravity and Weight per Cubic Foot of Compressed
Bituminous Mixtures
Calif. Test No. 309 — Theoretical Maximum Specific Gravity and Density of Hot Mix
Asphalt
Calif. Test No. 310 — Determination of Asphalt and Moisture Contents of Bituminous
Mixtures by Hot Solvent Extraction or a method approved by the
Resident Engineer
Calif. Test No. 366 — Test for Stabilometer Val
Calif. Test No. 375 — Compaction Testin
Calif. Test No. 518 — Concrete Yield
Calif. Test No. 521 — Compressive Streng o • + Concrete Cylinders
Calif. Test No. 541 — Flow of Grout Mixture
Calif. Test No. 556 — Slump Test ,
If approved by the Resident Engineer, an alternate test method as shown in parenthesis
may be used in lie the listed California Test method.
All tests shall conform to the newest version "Greenbook Standards for Construction or
Caltrans Standards". Any discrepancies in testing method shall be brought to the
attention of the Resident Engineer in writing.
The Resident Engineer may require special testing that is not listed on the attached unit
sheet. The Consultant will be paid a price agreed prior to commencement of any testing
or work.
The Consultant shall provide a 24hr emergency phone number as part of the proposal.
The Resident Engineer may require a written recommendation from the Consultant
when field conditions do not allow for a specific testing method to take place.
34 182
A. Sampling
Sampling of material, delivery of the sampled material to the laboratory and preparation
of the sample for testing will be done by the Consultant. The cost of this work shall be
included in the unit price of the test being performed.
B. Time Schedule
The Consultant will receive a 24 hour notice when field testing is required. If any
contractor delays are incurred due to the Consultant not performing the required tests
within the specified time or the test results not being available within the specified
response time, the Consultant will bear the full incurred delay costs.
C. Reports
For field density and relative compaction tests, the Consultant shall provide a copy of
the test results to the Resident Engineer "at the time of te- ng". The consultant shall
provide a formal report to the Commission [when applica► within five (5) working days
of project completion.
For all other tests, an informal report shall be
test. A formal report, including all backup i
working days of completion of the test.
All reports shall be identified with the c
by the Commission's Purchasing Depart
name on all documents.
on completion of the
sent within five (5)
nd task order number assigned
the Project Number and contact
Consultant shall provide res -s of rson for approval by the Commission.
Consultant shall provid the Quality Control Manual for each laboratory used
on the project.
Consultant shall pr a an ated copy of the Caltrans Laboratory Accreditation
Manual for each labora u on the project.
Consultant shall provide a copy of certificates of proficiency for each employee working
on the project as soon as they are available.
Consultant shall provide copies of all Reference Sample Program test results as soon
as they are available.
Consultant shall provide certified payrolls for covered workers with each payment
application submittal.
35 183
EXHIBIT "B" - COMPENSATION PROVISIONS
B-1
184
EXHIBIT "B"
COMPENSATION SUMMARY
FIRM
I PROJECT TASKS/ROLE
COST
Prime Consultant:
Ninyo & Moore
Geotechnical and Material Testing & Inspection
$ 500,000.00
Sub Consultants:
California Testing & Inspections, Inc.
Testing and Inspection Services
TBD
S&T Engineering Inc.
Quality Assurance and Quality Control
TBD
EDIFICA USA LLC
Supplemental Geotechnical Investigation Services
TBD
Veteran Drilling
Environmental & Geotechnical Drilling Services
TBD
___"1_,
/TOTAL COSTS
$ 500,000.00
1 Commission authorization pertains to total contract award amou
however, the maximum total compensation authorized may not be Weeded.
Compensation adjustments between consultants may occur;
185
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.
Exhibit C-1
186
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 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 Civil Rights Act of 1964).
Specifically, the Consultant shall not participate eith'_ %'directly or indirectly in the
discrimination prohibited by 49 CFR §21.5, include ; e oyment practices and the
selection and retention of subconsultants.
H. Consultant and its subconsultants will ne exc any person from participation
in, deny any person the benefits of, or oth discriminate against anyone in
connection with the award and perform e of an ntract covered by 49 CFR 26 on
the basis of race, color, sex, or nati, •in. administering the Commission
components of the DBE Program plan, o► • and its subconsultants will not,
directly, or through contractual ether angements, use criteria or methods of
administration that have a ct defeating or substantially impairing
accomplishment of the obje rogram plan with respect to individuals of
a particular race, color, sex, o
I. Consultant shal clude - n. •iscrimination and compliance provisions of this
section in all subco work under this Agreement.
2. DEBARMENT AND `` _ : ' SION 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.
Exhibit C-2
187
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.
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 CF' art 26. The Commission
shall take all necessary and reasonable steps and -;:_ % 9 CFR Part 26 to ensure
nondiscrimination in the award and administration of 'w isted contracts.
Consultant or subcontractor shall not discrimin
origin, of sex in the performance of this Agre
carry out applicable requirements of 49 CFR P
the award and administration of DOT- isted
Failure by the Consultant or subcontrac
breach of this Agreement, which may res
other remedy, as the Commissio
on the basi race, color, national
nsultant or subcontractor shall
and the Caltrans DBE program in
acts, as further set forth below.
ese requirements is a material
ination of this Agreement or such
Failure by the Consultant t equirements is a material breach of this
contract, which may result in - rmi - of this contract or such other remedy as
the recipient deems a -te, '.ch may include, but is not limited to:
(1) Withholding mo
(2) Assessing sanctio
(3) Liquidated damages,
(4) Disqualifying Consulta
4. PROMPT PAYMENT
rom future proposing as non -responsible
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
Exhibit C-3
188
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
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 prohibite H .m holding retainage from
subconsultants. Any delay or postponement of payme ;' ay take place only for good
cause and with the Commission's prior written Any violation of these
provisions shall subject Consultant or the viola + subci ultant to the penalties,
sanctions, and other remedies specified in Se _. 3321 of t California Civil Code.
This requirement shall not be construed to lim +r im. �' any con ractual, administrative
or judicial remedies, otherwise available to Con or subconsultant in the event of a
dispute involving late payment or nonp, ment b onsultant, deficient subconsultant
performance and/or noncompliance by �^ �.•ns 7:���, t. This clause applies to both
DBE and non -DBE subconsultants.
6. LEGAL REMEDIES
In addition to those contract
law, either Party to
violations of this A
and 26, to the r
violations, and to th
"whistleblower" actions,
provisions of law.
es orth under relevant provisions of California
t may, where applicable, seek legal redress for
to the relevant provisions of 49 C.F.R. Parts 23
or state statutory provisions governing civil rights
deral and state provisions governing false claims or
II as any and all other applicable federal and state
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 Exhibits "E" of this Agreement in compliance with
the Caltrans DBE program, and a final utilization report in the form provided by the
Commission.
Exhibit C-4
189
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 has a DBE goal. Participation by DBE Consultant or
subconsultants shall be in accordance with the information contained in the Consultant
Contract DBE Commitment form attached hereto and incorporated into this Agreement
by reference. 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 altrans federally mandated
statewide overall DBE goal. Credit for materials or s onsultant purchases from
DBEs counts towards the goal in the following man
• 100 percent counts if the materials
manufacturer.
• 60 percent counts if the materials
dealer.
• Only fees, commissions, and ch
delivery of materials or suppli .: -:. unt
manufacturer nor regular de
dealer."
D. DBE and other
encouraged to parti
with federal funds.
on the basis of race,
The Consultant shall ca
and administration of US
s are obtained from a DBE
re purchased from a DBE regular
!stance in the procurement and
tained from a DBE that is neither a
.55 defines "manufacturer" and "regular
sses (SB), as defined in Title 49 CFR, Part 26 are
mance of agreements financed in whole or in part
t, subrecipient or subconsultant shall not discriminate
al origin, or sex in the performance of this Agreement.
pplicable requirements of 49 CFR, Part 26 in the award
- 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.
Exhibit C-5
190
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.
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 lis > on 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 prop , List of subcontractors.
F. A Consultant who is ertified DBE is eligible to claim all of the work in the
Agreement toward the DBE pa ipation 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
Exhibit C-6
191
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 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 S
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
from all subcontrac
and business ad
company and the tot
records shall show the
prime Contractors shall als
with the corresponding dollar value of the work.
in records of materials purchased and/or supplied
o with certified DBEs. The records shall show the name
DBE subconsultant, DBE vendor, and DBE trucking
punt actually paid each business regardless of tier. The
ayment and the total dollar figure paid to all firms. DBE
show the date of work performed by their own forces along
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
Exhibit C-7
192
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
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-240 ) 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,
Exhibit C-8
193
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 perfo
materials for which each is listed unless Consultant or
Commission's written consent. Consultant shall not t
for convenience and perform the work with their
other sources without authorization from the
consent is provided, the Consultant shall not
material unless it is performed or supplied by th
Contract DBE Commitment form.
n forc
mission.
the work and supply the
subconsultant obtains the
or substitute a listed DBE
r obtain materials from
s the Commission's
d to any payment for work or
DBE on the attached Consultant
The Commission authorizes a request orces or sources of materials if
Consultant shows any of the foll• ' 'usti ons:
1. Listed DBE fails
specifications for
2. The Com
subcon
require
3. Work req
license and
to a written contract based on plans and
jec
ated that a bond is a condition of executing the
d DBE fails to meet the Commission's bond
ultant's license and listed DBE does not have a valid
actors License Law.
4. Listed DBE fai .r 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.
Exhibit C-9
194
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
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
Exhibit C-10
195
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.
Exhibit C-11
196
EXHIBIT "D" - CONSULTANT DBE COMMITMENT
Exhibit D-1
197
Local Assistance Procedures Manual
Exhibit 10-01
Consultant Proposal DBE Commitment
1. Local Agency:
3. Project Description:
4. Project Location:
EXHIBIT 10-01 CONSULTANT PROPOSAL DBE COMMITMENT
Riverside County Transportation Commission 2 Contract DBE Goal: 15%
On -Call Geotechnical Investigation — Laboratory and Field Testing of Materials
Riverside County
5. Consultant's Name: Ninyo & Moore Geotechnical and Environmental Sciences Consultants
6. Prime Certified DBE: 0
7. Description of Work, Service, or Materials
Supplied
8. DBE
Certification
Number
9. DBE Contact Information
10. DBE %
Geotechnical, materials
testing and inspection
CU PC #37594
California Testing & Inspections, Inc. (CT&I)
Ms. Fabiola Jaque-Diaz
p. 213.748.4900 I jaque@caltestinspection.com
9%
Geotechnical Investigation
CUPC #48970
EDIFICA USA (Edifice)
Mr. Luis F. Ve
p. 909.34 0 I vesgaluis@edificausa.com
4%
Quality Control/
Quality Assurance
CUPC #34609
S & T g, Inc. (S&T)
ms. m esident/CEO
p. .390.44 ariamali@s-t-engineering.com
2%
l e11111111111.P
Local Agency to Complete th
11. TOTAL CLAIMED DBE PARTICIPATION
IMPORTANT: Identify all DBE firms being claimed for
regardless of tier. Written confirmation of each listed
required.
4//14/2022
15
credit,
DBE is
%
17. Local Agency Contract Number:
18. Federal -Aid Project Number:
19. Proposed Contract Execution
20. Consultant's Ranking after Evalua
Local Agency certifies that all DBE certificate. - valid and information on
this form is complete and accurate.
21. Local Agency Representative's Signature 22. Date
12. Prep s Signature 13. Date
Kurt S. Yoshii, PE, GE 909.758.5960
23. Local Agency Representative's Name
24. Phone
14. Preparer's Name 15. Phone
Principal Engineer
25. Local Agency Representative's Title
16. Preparer's Title
DISTRIBUTION: Original — Included with consultant's proposal to local agency.
ADA Notice: For individuals with sensory disabilities, this document is available in alternate formats. For information call (916) 654-6410 or TDD (916) 654-
3880 or write Records and Forms Management, 1120 N Street, MS -89, Sacramento, CA 95814.
LPP 18-01
198
Page 1 of 2
January 2019
EXHIBIT "E" - DISCLOSURE OF LOBBYING ACTIVITIES
Exhibit E-1
199
Local Assistance Procedures Manual
NOT APPLICABLE
EXHIBIT 10-Q
Disclosure of Lobbying Activities
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:
a. contract
b. grant
c. cooperative agreement
d. loan
e. loan guarantee
f. loan insurance
2. Status of Federal Action:
❑ a bid/offer/application
b. initial award
c. post -award
4. Name and Address of Reporting Entity
nPrime nSubawardee
Tier , if known
Congressional District, if known
6. Federal Department/Agency:
8. Federal Action Number, if known:
3. Report Type:
❑ a. initial
b. material change
For Material Change Only:
year quarter
date of last report
5. If Reporting Entity in No. 4 is Subawardee,
Enter Name and Address of Prime:
Congression 'strict, if known
7. Federal am Name/Description:
1CF 1Numbi applicable
9. and Amount, 1 wn:
10. Name and Address of Lobby Entity 11. Ind*
(If individual, last name, first name, MI) (inc
(las
(attach Continua
12. Amount of Payment (check all that
$ n actual
13. Form of Payment (check all
8 a. cash
b. in -kind; s
als Performing Services
ding address if different from No. 10)
me, first name, MI)
pe of Payment (check all that apply)
a. retainer
b. one-time fee
c. commission
d. contingent fee
e deferred
f. other, specify
15. Brief Descriptio ervices Perf med or to be performed and Date(s) of Service, including
officer(s), employee r membe s) contacted, for Payment Indicated in Item 12:
(attach Continuation Sheet(s) if necessary)
16. Continuation Sheet(s) attached: Yes pi
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 909.758.5960
$100,000 for each such failure. Telephone No.:
No
Signature:
Print Name: Kurt S. Yoshii, PE, GE
Title: Principal Engineer
Federal Use Only:
Date: 4//14/2022
Authorized for Local Reproduction
Standard Form - LLL
Standard Form LLL Rev. 04-28-06
Distribution: Orig- Local Agency Project Files
LPP 13-01
EXHIBEQ- 1
Page 1
May 8, 2013
ATTACHMENT 3
Agreement No. 22-31-086-00
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA FUNDING/ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
KLEINFELDER, INC.
FOR
ON -CALL GEOTECHNICAL INVESTIGATION SERVICES —
LABORATORY AND FIELD TESTING OF MATERIALS
Parties and Date.
This Agreement is made and entered into thi day o , 2022, by and
between the RIVERSIDE COUNTY TRA PORTATION COMMISSION ("the
Commission") and KLEINFELDER, INC. ("Consultant"), a CALIFORNIA C
CORPORATION The Commission and Consultant are sometimes referred to herein
individually as "Party", and collectively a °` arties'
Recitals.
A. On November 8, 198 h el s 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 professional services provided under this
Agreement is federal funds administered by the California Department of Transportation
("Caltrans") from the United States Department of Transportation pursuant to the
following project/program: [ INSERT FUNDING SOURCE_].
E. Consultant desires to perform and assume responsibility for the provision of
certain professional services required by the Commission on the terms and conditions
1
201
set forth in this Agreement. Consultant represents that it is experienced in providing
Geotechnical Investigation services to public clients, is licensed in the State of
California (if necessary), and is familiar with the plans of the Commission.
F. The Commission desires to engage Consultant to render such services for the
On -Call Geotechnical Investigation ("Project"), as set forth in this Agreement.
Terms.
1. General Scope of Services. Consultant shall furnish all technical and
professional services, including labor, material, equipment, transportation, supervision
and expertise, and incidental and customary work necessary to fully and adequately
supply the professional Geotechnical Investigation services necessary for the Project
("Services"). The Services are more particularly descri.'d in Exhibit "A" attached
hereto and incorporated herein by reference. All Se _:'i; -s shall be subject to, and
performed in accordance with, this Agreement, t ibits attached hereto and
incorporated herein by reference, and all applicabl_ wcal, and federal laws, rules
and regulations.
2. Commencement of Services. The Cons
all commence work upon receipt
of a written "Notice to Proceed" or "Limited Notice roceed" from Commission.
3. Pre -Award Audit. As
extent Caltrans procedures
Proceed" may be contingent
questions raised during the
will consider approval of
Agreement is continge
thereby entitling the
completed. The
and State process
acting in behalf of a fe
for which Federal reimbur
a result of
appl co
u
u ding for this Project, and to the
on erewith, issuance of a "Notice to
and approval of a pre -award audit. Any
hall be resolved before the Commission
The federal aid provided under this
all Federal requirements and could be withdrawn,
rminate this Agreement, if the procedures are not
s all be maintained in a manner to facilitate Federal
addition, the applicable federal agency, or Caltrans
ncy, may require that prior to performance of any work
ent is requested and provided, that said federal agency or
Caltrans must give to Commission an "Authorization to Proceed".
4. Caltrans 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
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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 24 and 25 of this Agreement.
4.2 During Caltrans' review of the ICR audit work papers created by the
Consultant's independent CPA (which may include review by the Independent Office of
Audits and Investigations), Caltrans will work with the CPA and/or Consultant toward a
resolution of issues that arise during the review. Each •, . ty agrees to use its best
efforts to resolve any audit disputes in a timely manner altrans identifies significant
issues during the review and is unable to issue a cog pproval letter, Commission
will reimburse the Consultant at an accepted IC;, ntil - R (Federal Acquisition
Regulation) compliant ICR {e.g. 48 CFR Part 31 GAS (Ge -Ily Accepted Auditing
Standards); CAS (Cost Accounting Standa if ,; • plicabl in accordance with
procedures and guidelines of the America T iation of State Highways and
Transportation Officials (AASHTO) Audit Guide; ;• other applicable procedures and
guidelines} is received and approved by
Accepted rates will be as follows:
a. If the propose
accepted rate reimbursed wi
b. If the p
hundred percent
proposed rate.
one hundred fifty percent (150%) — the
nt (90%) of the proposed rate.
etween one hundred fifty percent (150%) and two
ted rate will be eighty-five percent (85%) of the
c. If the propo 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.
4.4 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
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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.
4.5 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 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
contingent upon approval by Commission, and Cons
notification to proceed by Commission's Contract
end on June 30, 2025, unless extended by contr
5.2 Consultant is advised that any r
not binding on Commission until this Agreement
Commission.
5.3 This Agreement sh
earlier terminated as provided
term of this Agreement, and
All applicable indemnificati
following the terminatio
date first set forth above,
hall commence work after
r. This Agreement shall
ndation for Agreement award is
Ily executed and approved by the
main ' V ect til the date set forth above, unless
Con • tant shall complete the Services within the
er established schedules and deadlines.
this Agreement shall remain in effect
6. Commissio - Contract •mi, istrator. The Commission hereby designates the
Commission's Exec r, or his or her designee, to act as its Contract
Administrator for the -rf•. 'ance of this Agreement ("Commission's Contract
Administrator"). Commis Y' 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 Dany Hanna 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
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204
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 as follows: Mark Peabody, Dany Hanna, Mike
Dorsch, Roger Khoudessian, Eric Noel, and Jeff Waller
9. Standard of Care; Licenses; Evaluation.
9.1 Consultant represents and maintai
calling necessary to perform all Services,
Agreement to fully and adequately complete t
Services and duties in conformance to and co
recognized as being employed by prof
California. Consultant warrants that
sufficient skill and experience to
further represents and war
subcontractors have all lic
nature that are legally requ
approvals shall be mai
perform, at its own c
any services nec
Consultant's failure
fully responsible to the
the indemnification provi
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.
hat it is d in the professional
obliga ons required by this
ct. Consultant shall perform the
tent with the standards generally
same discipline in the State of
s and subcontractors shall have
ery es assigned to them. Consultant
Commission that its employees and
alifications and approvals of whatever
he Services, and that such licenses and
ghout the term of this Agreement. Consultant shall
and without reimbursement from the Commission,
ec " errors or omissions which are caused by the
the standard of care provided for herein, and shall be
sion for all damages and other liabilities provided for in
of this Agreement arising from the Consultant's errors
9.2 Consultant's performance will be evaluated by Commission. A copy of the
evaluation will be sent to Consultant for comments. The evaluation together with the
comments shall be retained as part of the Agreement record.
10. Independent Contractor. The Services shall be performed by Consultant or
under its supervision. Consultant will determine the means, methods and details of
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205
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. Schedule of Services. Consultant shall perform the Services expeditiously,
within the term of this Agreement, and in accordance with _ .:- Schedule of Services set
forth in each Task Order. Consultant represents th has the professional and
technical personnel to perform the Services in confo : r,_ e with such conditions. In
order to facilitate Consultant's conformance with t►e' che e, the Commission shall
respond to Consultant's submittals in a timely m-. i, er. Upon • uest of Commission's
Contract Administrator, Consultant shall prove etailed chedule of anticipated
performance to meet the Schedule of Services.
11.1 Modification of the Sche
Commission, through correspondence
required Services within the sch led
informed of all anticipated d
schedule modification is
Schedule of Services for app
11.2 Trend
Commission's Co
Commission, on a bi
standard day and time
discussions concerning s e, 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.
nt shall regularly report to the
reports, its progress in providing
en() s. Commission shall be promptly
event that Consultant determines that a
Itant shall promptly submit a revised
sion's Contract Administrator.
sultant shall conduct trend meetings with the
ato ' and other interested parties, as requested by the
s or as may be mutually scheduled by the Parties at a
trend meetings will encompass focused and informal
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.
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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, epidemics, pandemics, 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 Se::„.ces will be delayed due to
such conditions. Failure of Consultant to provide such ,do , ely notice shall constitute a
waiver by Consultant of any right to an excusable dela e of performance.
12.3 Mutual Agreement. Performance
may be delayed upon mutual agreement
Consultant's Schedule of Services shall be ex
Consultant shall take all reasonable teps
additional costs, resulting from any suc
ny Servic: under this Agreement
P ies. • on such agreement,
s necessary by the Commission.
imize delay in completion, and
13. Preliminar Review of W. AI '' .rts, orking papers, and similar work
products prepared for submi
Agreement shall be submitt
and the Commission may re
approval. In the even
final detailed plans
clearance as may
Commission's Cont
formally submitted wo
established under this A
ourse of providing Services under this
on's Contract Administrator in draft form,
such drafts prior to formal submission and
designs are to be developed as part of the Project,
all be contingent upon obtaining environmental
nnection with Federal funding. In the event that
rator, in his or her sole discretion, determines the
to be not in accordance with the standard of care
ment, Commission's Contract Administrator may require
Consultant to revise and resubmit the work at no cost to the Commission.
14. Appearance at Hearings. If and when required by the Commission, Consultant
shall render assistance at public hearings or other meetings related to the Project or
necessary to the performance of the Services. However, Consultant shall not be
required to, and will not, render any decision, interpretation or recommendation
regarding questions of a legal nature or which may be construed as constituting a legal
opinion.
15. Opportunity to Cure; Inspection of Work. Commission may provide Consultant
an opportunity to cure, at Consultant's expense, all errors and omissions 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
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207
the cost thereof charged to Consultant. Consultant shall allow the Commission's
Contract Administrator, Caltrans and FHWA to inspect or review Consultant's work in
progress at any reasonable time.
16. Claims Filed by Contractor.
16.1 If claims are filed by the Commission's contractor for the Project
("Contractor") relating to work performed by Consultant's personnel, and additional
information or assistance from the Consultant's personnel is required by the
Commission in order to evaluate or defend against such claims; Consultant agrees to
make reasonable efforts to make its personnel available for consultation with the
Commission's construction contract administration and legal staff and for testimony, if
necessary, at depositions and at trial or arbitration proceedings.
16.2 Consultant's personnel that the Commissi. ,-'onsiders essential to assist
in defending against Contractor claims will be made a on reasonable notice from
the Commission. Consultation or testimony will . - 'reim ed at the same rates,
including travel costs that are being paid for the ' nsultant's ;sonnet services under
this Agreement.
16.3 Services of the Consultant's
connection with Contractor claims will
amendment, if necessary, extending the
finally resolve the claims.
16.4 Nothing contai
Consultant's indemnification
conflict between this S
not intended to obli
personnel related t
defend the Commiss
nel and other support staff in
pursuant to a written contract
to of this Agreement in order to
shall be construed to in any way limit
ained in Section 29. In the case of any
ection 29, Section 29 shall govern. This Section is
ion to reimburse Consultant for time spent by its
for which Consultant is required to indemnify and
to Section 29 of this Agreement.
17. Final Acceptance. on determination by the Commission that Consultant has
satisfactorily completed the Services required under this Agreement and within the term
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.
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18. 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. Consultant shall be liable for all violations
of such laws and regulations in connection with Services.; f the Consultant performs
any work knowing it to be contrary to such laws, rule nd regulations and without
giving written notice to the Commission, Consultant I. re solely responsible for all
costs arising therefrom. Consultant shall defend, nd hold Commission, its
officials, directors, officers, employees and age , ree and less, pursuant to the
indemnification provisions of this Agreement, f any, aim or li.' ility arising out of any
failure or alleged failure to comply with such la or regulations.
19. Fees and Payment.
19.1 The method of pay • - t for £ gre-ment will be based on actual cost
plus a fixed fee. Commission s► r- bur Consultant for actual costs (including labor
costs, employee benefits, %el, e� i.me rental costs, overhead and other direct
costs) incurred by Consults e of the Services. Consultant shall not be
reimbursed for actual ha" ceed the estimated wage rates, employee benefits,
travel, equipment re ► ov- -a•, d other estimated costs set forth in the approved
Consultant cost p ed ereto as Exhibit "B" and incorporated herein by
reference ("Cost Pro al") unl s additional reimbursement is provided for by a written
amendment. In no ev- sh Consultant be reimbursed for overhead costs at a rate
that exceeds Commissio approved overhead rate set forth in the Cost Proposal. In
the event that Commission determines that a change to the Services from that specified
in the Cost Proposal and this Agreement is required, the contract time or actual costs
reimbursable by Commission shall be adjusted by contract amendment to
accommodate the changed work. The maximum total cost as specified in Section 19.9
shall not be exceeded, unless authorized by a written amendment.
19.2 The indirect cost rate established for this Agreement is extended through
the duration of this Agreement. Consultant's agreement to the extension of the 1 -year
applicable period shall not be a condition or qualification to be considered for the work
or Agreement award.
19.3 In addition to the allowable incurred costs, Commission shall pay
Consultant a fixed fee of j INSERT DOLLAR AMOUNT 1. The fixed fee is
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209
nonadjustable for the term of this Agreement, except in the event of a significant change
in the Scope of Services, and such adjustment is made by written amendment.
19.4 Reimbursement for transportation and subsistence costs shall not exceed
the rates specified in the approved Cost Proposal. In addition, payments to Consultant
for travel and subsistence expenses claimed for reimbursement or applied as local
match credit shall not exceed rates authorized to be paid exempt non -represented State
employees under current State Department of Personnel Administration (DPA) rules,
unless otherwise authorized by Commission. If the rates invoiced are in excess of
those authorized DPA rates, and Commission has not otherwise approved said rates,
then Consultant is responsible for the cost difference and any overpayments shall be
reimbursed to the Commission on demand.
19.5 When milestone cost estimates are inclu.,d in the approved Cost
Proposal, Consultant shall obtain prior written approv.;'Hr a revised milestone cost
estimate from the Contract Administrator before excee, > ch cost estimate.
19.6 Progress payments shall be made
provided and allowable incurred costs. A pro r
be included in the monthly progress payments.
deliverable items according to the schedule
Commission shall have the right to
accordance with the provisions of Sectio
nthly in a rs based on Services
of Con ultant's fixed fee shall
ultant fails to submit the required
forth in the Scope of Services,
r terminate this Agreement in
ti n.
19.7 No payment shal • e p " r to approval of any Services, nor for any
Services performed prior to
19.8 Consulta
permit upon receipt
triplicate. Invoice
performance of wo
performed on each mi
format stipulated for the
number and project title. Final invoice must contain the final cost and all credits due
Commission including any equipment purchased under the Equipment Purchase
provisions of this Agreement. The final invoice should be submitted within 60 calendar
days after completion of Consultant's work. Invoices shall be mailed to Commission's
Contract Administrator at the following address:
reimbursed, as promptly as fiscal procedures will
's Contract Administrator of itemized invoices in
bmi ed no later than 45 calendar days after the
Consultant is billing. Invoices shall detail the work
d each project as applicable. Invoices shall follow the
oved Cost Proposal and shall reference this Agreement
Riverside County Transportation Commission
Attention: Accounts Payable
P.O. 12008
Riverside, CA 92502
19.9 The total amount payable by Commission including the fixed fee shall not
exceed amount set forth in each Task Order.
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210
19.10 Commission has or will enter into three (3) task order contracts for
performance of the Scope of Services identified in Exhibit "A", including this Agreement
("On -Call Geotechnical Investigation — Laboratory and Field Testing of Materials"). The
other On -Call Geotechnical Investigation — Laboratory and Field Testing of Materials
Task Order Contracts are Group Delta, 22-31-051-00 and Ninyo & Moore, 22-31-087-
00. The total amount payable by Commission for the On -Call Geotechnical Investigation
— Laboratory and Field Testing of Materials Task Order Contracts shall not exceed a
cumulative maximum total value of Five Hundred Thousand Dollars ($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 Geotechnical
Investigation — Laboratory and Field Testing of Materials Task Order Contracts through
Task Orders. Each time a Task Order is awarded under any of the On -Call
Geotechnical Investigation — Laboratory and Field Testi;_^. of Materials Task Order
Contracts, Commission must send written notification , °:,>'' onsultant and each of the
other consultants entering into the On -Call Geotechni -stigation — Laboratory and
Field Testing of Materials Task Order Contracts, T otice i' , . st identify the total funds
allocated under issued Task Orders, and the re ning une bered amount of the
NTE Sum. Consultant acknowledges and ag th. Commis on must not pay any
amount under this Agreement that would exc- TE Sum, and Consultant must
not enter into a Task Order that exceeds the NTE
19.11 Salary increases shall be
salary range identified in the appr•- -_-d Co
Contract Administrator. For pe
the California Labor Code,
the prevailing wage rates are
e if the new salary is within the
pos and is approved by Commission's
to prevailing wage rates as described in
which are the direct result of changes in
19.12 Consu ,, '"`' sh. got eimbursed for any expenses unless authorized in
writing by the Co
rac Administrator.
19.13 All subco pct excess of $25,000 shall contain the above provisions.
20. Disputes.
20.1 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.
20.2 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.
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20.3 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.
21. Termination; Suspension.
21.1 Commission reserves the right to terminate this Agreement for any or no
reason upon thirty (30) calendar days written notice to Consultant with the reasons for
termination stated in the notice.
21.2 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
work in any manner deemed proper by Commission. If .mmission terminates this
Agreement with Consultant, Commission shall pay ,:•'nsultant the sum due to
Consultant under this Agreement for Services co •: -d and accepted prior to
termination, unless the cost of completion to Com ,; ion e ;-eds the funds remaining
in this Agreement. In such case, the overage 'I be dedb .;-d from any sum due
Consultant under this Agreement and the ba e, if, y, shal '•e paid to Consultant
upon demand.
21.3 In addition to the abov
prorated amount of profit, if applicable, b
on unperformed Services. Consul ' sha
Commission's Contract Admi a to
Consultant prior to the effec dat- .'f term
the effective date of the Notic
21.4 Discon
Termination, Cons
or as otherwise pro
Data, as defined in th
Consultant in performanc
n termination shall include a
all be paid for anticipated profit
ide ••cumentation deemed adequate by
ow the Services actually completed by
tion. This Agreement shall terminate on
ices. Upon receipt of the written Notice of
con nue all affected Services as directed in the Notice
, and deliver to the Commission all Documents and
ent, as may have been prepared or accumulated by
he Services, whether completed or in progress.
21.5 Effect of Termination for Cause. 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 herein. Termination of this Agreement for cause may
be considered by the Commission in determining whether to enter into future
agreements with Consultant.
21.6 Cumulative Remedies. The rights and remedies of the Parties provided in
this Section are in addition to any other rights and remedies provided by law or under
this Agreement.
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212
21.7 Waivers. 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.
21.8 Consultant may not terminate this Agreement except for cause.
21.9 Suspension. In addition to the termination rights above, Commission may
temporarily suspend this Agreement, 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 this Agreement. A temporary suspension may be issued concurrent with a notice
of termination.
22. Cost Principles and Administrative Requirement;',
22.1 Consultant agrees that the Contra
CFR, Federal Acquisition Regulations System
used to determine the cost allowability of indivi
22.2 Consultant also agrees to
with 2 CFR, Part 200, Uniform Administr
Requirements for Federal Awards
22.3 Any costs for
determined by subsequent a
Federal Acquisition Re
repayment by Cons
ost Princ
apt 1, Part
and Procedures, 48
.000 et seq., shall be
deral procedures in accordance
ents, Cost Principles, and Audit
as been made to Consultant that are
able under 2 CFR, Part 200 and 48 CFR,
stem, Chapter 1, Part 31.000 et seq., are subject to
22.4 All sub• racts i xcess of $25,000 shall contain the above provisions.
23. Retention of Reco ' udit. 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; 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 this Agreement period and for three years from the
date of final payment under this Agreement. The state, State Auditor, Commission,
FHWA, or any duly authorized representative of the 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 indirect cost
rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall
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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.
24. Audit Review Procedures.
24.1 Any dispute concerning a question of fact arising under an interim or post
audit of this Agreement that is not disposed of by agree ent, shall be reviewed by
Commission's Chief Financial Officer.
24.2 Not later than 30 days after issuance the final audit report, Consultant
may request a review by Commission's ChieLiWancial Officer of unresolved audit
issues. The request for review shall be submitted in writing.
24.3 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.
25. Subcontracting.
25.1 Nothing contained rreement 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.
25.2 Consultant shall perform the Services with resources available within its
own organization and no portion of the Services shall be subcontracted without written
authorization by Commission's Contract Administrator, except that, which is expressly
identified in the approved Cost Proposal.
25.3 Consultant shall pay its subconsultants within fifteen (15) calendar days
from receipt of each payment made to Consultant by Commission.
25.4 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.
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25.5 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).
25.6 Exhibit "B" may also 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". The subconsultant rate schedules and cost proposals contained herein are
for accounting purposes only.
26. Equipment Purchase
26.1 Prior authorization, in writing, by Commiss
shall be required before Consultant enters into any u
subcontract for supplies, equipment, or Consultant ser
evaluation of the necessity or desirability of incurrin• ch c
26.2 For purchase of any item, se
Consultant's Cost Proposal and exceeding $5,
Contract Administrator is required. Three com
with the request for such purchase,
justified.
's Contract Administrator
dgeted purchase order, or
Consultant shall provide an
nsultin• work not covered in
r authorization by Commission's
ive quotations must be submitted
of bidding must be adequately
26.3 Any equipment p ==z . d as ; result of this Agreement is subject to the
following:
Consultant shall maint
property is defined a
$5,000 or more. If
Commission shall re
or if this Agreement is
Commission in an amoun
tory of all nonexpendable property. Nonexpendable
life of at least two years and an acquisition cost of
eq `'pment needs replacement and is sold or traded in,
r refund or credit at the conclusion of this Agreement,
d, Consultant may either keep the equipment and credit
ual 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
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.
26.4 All subcontracts in excess $25,000 shall contain the above provisions.
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27. Labor Code Requirements.
27.1 Prevailing Wages.
(a) Consultant shall comply with the State of California's General Prevailing
Wage Rate requirements in accordance with California Labor Code, Section 1770, and
all Federal, State, and local laws and ordinances applicable to the Services.
(b) Any subcontract entered into as a result of this Agreement, if for more
than $25,000 for public works construction or more than $15,000 for the alteration,
demolition, repair, or maintenance of public works, shall contain all of the provisions of
this Section.
(c) When prevailing wages apply to the Service- •escribed in the Scope of
Services, transportation and subsistence costs shall b- eimbursed at the minimum
rates set by the Department of Industrial Relations (Pa outlined in the applicable
Prevailing Wage Determination. See http://www.dir.
(d) Copies of the prevailing rat- >> of •,. il diem ages in effect at
commencement of this Agreement are on file ommission's offices. Consultant
shall make copies of the prevailing rates of per di wages for each craft, classification
or type of worker needed to execute t +ices \ - Table to interested parties upon
request, and shall post copies at the Co Ita pal place of business and at the
project site. Consultant shall de , in y an hold the Commission, its elected
officials, officers, employees a' ` • '``ts fr and harmless from any claims, liabilities,
costs, penalties or interest ng o •f an ilure or alleged failure to comply with the
Prevailing Wage Laws.
27.2 DIR Registra '; ' ' I S- es are being performed as part of an applicable
"public works" or " ` =intenanc: prod=ct, then pursuant to Labor Code Sections 1725.5
and 1771.1, the ultant d all subconsultants must be registered with the
Department of Industri. 1'el. ' ns. If applicable, Consultant shall maintain registration
for the duration of the Pro 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.
27.3 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
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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.
27.4 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 theF rvices, Consultant and any
subcontractor hereunder who employs workers in any ;' ticeable craft or trade shall
apply to the joint apprenticeship council admini i? t Iicable standards for a
certificate approving Consultant or any sub -cons l 'nt for the `(m.loyment and training
of apprentices. Upon issuance of this certifi► -, C• ultant a d any sub -consultant
shall employ the number of apprentices provid- • erein, as well as contribute to the
fund to administer the apprenticeship program in ch craft or trade in the area of the
work hereunder.
The parties expressly understan
of this Section and with Secti
Code in regard to all appren
t th- '' .onsi.ility for compliance with provisions
77.6 and 1777.7 of the California Labor
s lies with Consultant
28. Ownership of M,, -; '_;. s/ i identiality.
28.1 Doc -nts & D is Agreement creates an exclusive and perpetual
license for Comm! y, use, modify, reuse, or sub -license any and all
copyrights and designs gib. ''-d in plans, specifications, studies, drawings, estimates,
materials, data and oth- ":ocuments 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.
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217
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.
28.2 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 , 's Agreement.
The Commission shall have and retain all right, title
developed or modified under this Agreement wheth
Commission, whether or not developed in conju
not developed by Consultant. Consultant will
any and all rights to the above reference
Commission.
Consultant shall also be responsible to
from any subcontractors or age of
referenced Intellectual Prop
termination of this Agreem
Property, it shall first obtain
All materials and do
general use prior t
any other party or p
to be the property of t
prior to execution of this
right to grant the exclusive
provided herein.
a -rest in Intellectual Property
r no - id for wholly or in part by
on with C• Itant, and whether or
cut eparate' v ritten assignments of
tual Property upon request of
ti g separate written assignments
tant :f any and all right to the above
Consultant, either during or following
any of the above -referenced Intellectual
al of the Commission.
ere developed or prepared by the Consultant for
o his Agreement and which are not the copyright of
le and any other computer applications, shall continue
Itant. However, unless otherwise identified and stated
ement, Consultant represents and warrants that it has the
and perpetual license for all such Intellectual Property as
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.
28.3 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,
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218
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.
28.4 Infringement Indemnification. Consultant shall defend, indemnify and hold
the Commission, its directors, officials, officers, employees, volunteers and agents free
and harmless, pursuant to the indemnification provisions of this Agreement, for any
alleged infringement of any patent, copyright, trade secret, trade name, trademark, or
any other proprietary right of any person or entity in con quence of the use on the
Project by Commission of the Documents & Data, i ► • ing any method, process,
product, or concept specified or depicted.
29. Indemnification. To the fullest extent per ed by la , .nsultant shall defend
(with counsel of Commission's choosing), inde ify ar hold Co mission, its directors,
officials, officers, employees, consultants, vo ► - = , and agents free and harmless
from any and all claims, demands, causes of •n, costs, expenses, liability, loss,
damage or injury, in law or equity, to p ns, including wrongful death, in
any manner arising out of or incident t, al -. • agent acts, omissions, or willful
misconduct of Consultant, its o .Is, o e ployees, agents, consultants, and
contractors arising out of or i r ". . ctio ith the performance of the Services, the
Project or this Agreement, udiniu;-witho �_, limitation the payment of consequential
damages, expert witness eys fees and other related costs and
expenses. Consultant d - d, at Consultant's own cost, expense and risk, any
and all such afores uits, do or other legal proceedings of every kind that may
be brought or insti =d agams om°` ission, its directors, officials, officers, employees,
consultants, agents, volunt rs. Consultant shall pay and satisfy any judgment,
award or decree that b endered against Commission or its directors, officials,
officers, employees, cons ► ts, agents, or volunteers, in any such suit, action or other
legal proceeding. Consultant shall reimburse Commission and its 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, its directors, officials officers, employees, consultants, agents, or
volunteers.
If Consultant's obligation to defend, indemnify, and/or hold harmless arises out of
Consultant's performance as a "design professional" (as that term is defined under Civil
Code section 2782.8), then, and only to the extent required by Civil Code section
2782.8, which is fully incorporated herein, Consultant's indemnification obligation shall
be limited to claims that arise out of, pertain to, or relate to the negligence,
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recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a
final adjudication by a court of competent jurisdiction, Consultant's liability for such
claim, including the cost to defend, shall not exceed the Consultant's proportionate
percentage of fault.
Consultant's obligations as set forth in this Section shall survive expiration or
termination of this Agreement.
30. Insurance.
30.1 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, C ultant shall not allow any
subcontractor to commence work on any subcontract u has secured all insurance
required under this Section.
30.2 Minimum Requirements. Consult
maintain for the duration of the Agreement
persons or damages to property which ma
performance of the Agreement by the Con
employees or subcontractors. Consult
procure and maintain the same insura
insurance shall meet at least the f• •wing aft' u
(a) Minimu
as the latest version of the
Commercial General L'
(2) Automobile Liab'
0001, code 1 (an
Employer's Liability:
California and Employe
shall, at ixpense, procure and
uran, agains claims for injuries to
rom or in connection with the
nt, its agents, representatives,
quire all of its subcontractors to
ration of the Agreement. Such
m `'-vels of coverage:
ce. Coverage shall be at least as broad
eneral Liability: Insurance Services Office
age (occurrence form CG 0001 or exact equivalent);
rvices Office Business Auto Coverage (form CA
quivalent); and (3) Workers' Compensation and
ompensation insurance as required by the State of
y 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: $2,000,000 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.
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30.3 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 Coy .ultant, on a case -by -case
basis, depending on the nature and scope of the S- es to be provided by the
subconsultant. Approval of such request shall writing, signed by the
Commission's Contract Administrator.
30.4 Aircraft Liability Insurance. Prior
of aircraft, Consultant shall procure and m
maintained, aircraft liability insurance or equivale
required by the Commission. Such ins sha
and non -owned aircraft and passengers,
Commission, Caltrans and their •' -ctors,
additional insureds with respe Se
of the Consultant.
30.5 Insuranc
following provisions
the Commission t
(a)
ting any ` ervices requiring use
or cause to be procured and
orm, with a single limit as shall be
lude coverage for owned, hired
e, or be endorsed to name, the
ials, °•fficers, employees and agents as
s or operations performed by or on behalf
ents. The insurance policies shall contain the
all provide endorsements on forms approved by
ing •rovisions to the insurance policies:
(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.
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(iii) The policy shall give the Commission, its directors, officials,
officers, employees, and agents insured status using ISO endorsement forms 20 10 10
01 and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the policy shall be
"primary and non-contributory" and will not seek contribution from the Commission's or
Caltrans' insurance or self-insurance and shall be at least as broad as CG 20 01 04 13,
or endorsements providing the exact same coverage.
(b) Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) the Commission, Caltrans and their directors, officials,
officers, employees and agents shall be covered as additional insureds with respect to
the ownership, operation, maintenance, use, loading or unloading of any auto owned,
leased, hired or borrowed by the Consultant or for which t , ; Consultant is responsible;
and (2) the insurance coverage shall be primary insuran ., ; s respects the Commission,
Caltrans and their directors, officials, officers, employ- • agents, or if excess, shall
stand in an unbroken chain of coverage exce of Consultant's scheduled
underlying coverage. Any insurance or self -ins ce maint d by the Commission,
Caltrans and their directors, officials, officers, • loy- ' - and ag = nts shall be excess of
the Consultant's insurance and shall not be cal . to contribute with it in any way.
(c) Workers' Compens
(i) Consu
Section 3700 of the California
against liability for workers'
with the provisions of that
commencing work and ment.
ers Liability Coverage.
t ce '-' hat e/she is aware of the provisions of
ich requires every employer to be insured
undertake self-insurance in accordance
will comply with such provisions before
against the Commi
losses paid under the t
the Consultant.
(d)
forth hereunder.
All Coverages.
r shall agree to waive all rights of subrogation
ectors, officials, officers, employees and agents for
e insurance policy which arise from work performed by
(i) Defense costs shall be payable in addition to the limits set
(ii) Requirements of specific coverage or limits contained in this
Section are not intended as a limitation on coverage, limits, or other requirement, or a
waiver of any coverage normally provided by any insurance. It shall be a requirement
under this Agreement that any available insurance proceeds broader than or in excess
of the specified minimum insurance coverage requirements and/or limits set forth herein
shall be available to the Commission, Caltrans and their directors, officials, officers,
employees and agents as additional insureds under said policies. Furthermore, the
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requirements for coverage and limits shall be (1) the minimum coverage and limits
specified in this Agreement; or (2) the broader coverage and maximum limits of
coverage of any insurance policy or proceeds available to the named insured;
whichever is greater.
(iii) The limits of insurance required in this Agreement may be
satisfied by a combination of primary and umbrella or excess insurance. Any umbrella
or excess insurance shall contain or be endorsed to contain a provision that such
coverage shall also apply on a primary and non-contributory basis for the benefit of the
Commission (if agreed to in a written contract or agreement) before the Commission's
own insurance or self-insurance shall be called upon to protect it as a named insured.
The umbrella/excess policy shall be provided on a "following form" basis with coverage
at least as broad as provided on the underlying policy(ies).
(iv) Consultant shall provide the
days prior written notice of cancellation of any policy r
that the Consultant shall provide at least ten
cancellation of any such policy due to non -pay
coverage is cancelled or expires during the ter
deliver renewal certificate(s) including the
Endorsement to the Commission at least ten
cancellation or expiration.
(v) The
than the effective date of this
continuously for a period of
this Agreement. Consultant
if the retroactive date
policy is cancelled
made policy with a
mission at least thirty (30)
by this Agreement, except
) d `. prior written notice of
of premi If any of the required
thi greeme t, the Consultant shall
al Liability Additional Insured
ays prior to the effective date of
ctiv (if y) of each policy is to be no later
ent. Consultant shall maintain such coverage
ree y s after the completion of the work under
one (1) year extended reporting period A)
past the effective date of this Agreement; B) if the
r C) if the policy is replaced by another claims-
sequent to the effective date of this Agreement.
(vi) T oregoing requirements as to the types and limits of
insurance coverage to be ntained 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.
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(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:
30.6 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 -.N:,;•enses.
30.7 Acceptability of Insurers. Insurance is .. •laced with insurers with a
current A.M. Best's rating no less than A:VIII, licence• to d• siness in California, and
satisfactory to the Commission.
30.8 Verification of Coverage. Co shall furnish Commission with
original certificates of insurance and endorseme ffecting coverage required by this
Agreement on forms satisfactory t - Co sion. The certificates and
endorsements for each insurance policy gal e by a person authorized by that
insurer to bind coverage on its •,;-.. alf ,i erti ates and endorsements must be
received and approved by the sion -fore work commences. The Commission
reserves the right to require ple F certifi copies of all required insurance policies,
at any time.
30.9 Subco e Requirements. Consultant shall not allow any
subcontractors or to '`ommence work on any subcontract until they have
provided evidence s actory +ti the Commission that they have secured all insurance
required under this Se icies of commercial general liability insurance provided
by such subcontractors o .'.consultants shall be endorsed to name the Commission
as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing
the exact same coverage. If requested by Consultant, the Commission may approve
different scopes or minimum limits of insurance for particular subcontractors or
subconsultants.
30.10 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.
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31. 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.
As between Consultant and the construction contrac
contractors shall remain solely responsible for construc
safety obligations of Consultant at the jobsite. The for
nor in any way modify or alter Consultant's inde an
Commission, as set forth in Section 29 of this Ag yk'' ent, not
or obligations set forth under this Agreement, i din. <<, e attach
s only, the construction
safety notwithstanding any
sentence shall not impact
fense obligations to the
of Consultant's duties
d exhibits.
Pursuant to the authority contained in Section 59 the Vehicle Code, the Commission
has determined that the Project will . are. hat are open to public traffic.
Consultant shall comply with all of the rep e forth in Divisions 11, 12, 13, 14,
and 15 of the Vehicle Code. Con nt s ke a reasonably necessary precautions
for safe operation of its vehicle- pr•='f ction of the traveling public from injury and
damage from such vehicles.
32. Additional Work
outside of, the Se
performed pursua
foregoing, the Com
other than a Cardinal
change which is "outsid
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 4220.1 D, paragraph 9(f).
or activities that are in addition to, or otherwise
rmed pursuant to this Agreement shall only be
eement between the parties. Notwithstanding the
cutive Director may make a change to the Agreement,
or purposes of this Agreement, a Cardinal Change is a
scope" of the Agreement; in other words, work which
(a) In addition to the changes authorized above, a modification which is
signed by Consultant and the Commission's Executive Director, 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
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225
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.
33. Prohibited Interests.
33.1 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 per ,. , other than a bona fide
employee working solely for Consultant, any fee, com r:' ion, percentage, brokerage
fee, gift or other consideration contingent upon or res J T,.r=; u' , om the award or making of
this Agreement. For breach or violation of this warr th •mmission shall have the
right to rescind this Agreement without liability.
33.2 Consultant Conflict of Interest.
(a) Consultant shall e a financial, business, or other
relationship with Commission that ma act upon the outcome of this
Agreement, or any ensuing Coma' sion ucti.` project. Consultant shall also list
current clients who may have .: ial i -rest in the outcome of this Agreement, or
any ensuing Commission co ► `: `ucti• •roje which will follow.
(b) Co
acquire any financi
Services under thi
apparent or potentia
execution of this Agree
economic interest if requi
eby certifies that it does not now have, nor shall it
erest that would conflict with the performance of
ultant agrees to advise Commission of any actual,
interest that may develop subsequent to the date of
onsultant further agrees to complete any statements of
y either Commission or State law.
(c) Any subcontract in excess of $25,000 entered into as a result of
this Agreement, shall contain all of the provisions of this Article.
(d) Consultant hereby certifies that neither Consultant, nor any firm
affiliated with Consultant will bid on any construction contract, or on any contract to
provide construction inspection for any construction project resulting from this
Agreement. An affiliated firm is one, which is subject to the control of the same persons
through joint -ownership, or otherwise.
(e) Except for subconsultants whose services are limited to providing
surveying or materials testing information, no subconsultant who has provided design
services in connection with this Agreement shall be eligible to bid on any construction
26
226
contract, or on any contract to provide construction inspection for any construction
project resulting from this Agreement.
33.3 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.
33.4 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 Agree ► •nt, where this employment
is caused by and or dependent upon the Consultant sec • this or related Agreements
with the Commission, is prohibited.
33.5 Covenant Against Contingent Fe As req 'd in connection with
federal funding, the Consultant warrants that ► he not e . oyed or retained any
company or person, other than a bona fide e working for the Consultant, to
solicit or secure this Agreement, and that he/sh, as not paid or agreed to pay any
company or person, other than a bona f •loye- y fee, commission, percentage,
brokerage fee, gift, or any other consid. -tio � i gent upon or resulting from the
award or formation of this Agre nt. • •reac'' or violation of this warranty, the
Commission shall have the rig ina this Agreement without liability pursuant to
the terms herein, or at deduct from the Agreement price or
consideration, or otherwise - full amount of such fee, commission,
percentage, brokerage - • ift, ontingent fee.
33.6 Reb. Kickb. !: s r Other Unlawful Consideration. Consultant
warrants that this Ag ent w not obtained or secured through rebates kickbacks or
other unlawful conside . gin, er promised or paid to any Commission employee. For
breach or violation of this ranty, 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 contract price; or otherwise recover the full amount of
such rebate, kickback or other unlawful consideration.
33.7 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
27
227
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 "E",
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.
(c) The Consultant also agre ning this Agreement that he/she
shall require that the language set fort in this tion be included in all Consultant
subcontracts which exceed $100,000, all s subcontractors shall certify and
disclose accordingly.
33.8 Employment Adverse to the ommission. Consultant shall notify the
Commission, and shall obtain the Commissi 's written consent, prior to accepting work
to assist with or participate in a third -fry lawsuit or other legal or administrative
proceeding against the Commission during the term of this Agreement.
Any
34. 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.
35. Right to Employ Other Consultants. Commission reserves the right to employ
other consultants in connection with the Project.
36. Governing Law. This Agreement shall be governed by and construed with the
laws of the State of California. Venue shall be in Riverside County.
28
228
37. Disputes; Attorneys' Fees.
37.1 Prior to either party commencing any legal action under this Agreement,
the Parties agree to try in good faith, to resolve any dispute amicably between them. If a
dispute has not been resolved after forty-five (45) days of good -faith negotiations and as
may be otherwise provided herein, then either Party may seek any other available
remedy to resolve the dispute.
37.2. 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.
38. Time of Essence. Time is of the essence for eac nd every provision of this
Agreement.
39. Headings. Article and Section Heading
headings contained in this Agreement are for co
in the construction or interpretation of any prov •n he _'n
arag captions or marginal
ience on d shall have no effect
39.1 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: CO MISSION:
Kleinfelder, Inc. side County Transportation Commission
2280 Market Street, Suite 300 4080 Lemon Street, 3rd Floor
Riverside, CA 92501. Riverside, CA 92501
Attn: Dany Hanna 4 Attn: Executive Director
Such notice shall be deemed ade 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.
29
229
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 Federal Department of Transportation Funds Are
Involved. When funding for the Services provided by this Agreement are provided, in
whole or in part, from the United States Department of Transportation, Consultant shall
also fully and adequately comply with the provisions included in Exhibit "C" (Federal
Department of Transportation Requirements and California Department of
Transportation (Caltrans) DBE program requirements) atta -d hereto and incorporated
herein by reference.
45. Survival. All rights and obligations hereunde at b -ir nature are to continue
after any expiration or termination of this Agree t, includi but not limited to, the
indemnification and confidentiality obligation , hall > urvive a y such expiration or
termination.
46. No Third Party Beneficiaries. T ded third party beneficiaries of
any right or obligation assumed by the P
47. Labor Certification.
aware of the provisions of
every employer to be ins
undertake self-insuran
comply with such pr
48. Counterparts.
shall constitute an origi
B atu .^T, hereunder, Consultant certifies that it is
he California Labor Code which require
ility for Workers' Compensation or to
nce with the provisions of that Code, and agrees to
mmencing the performance of the Services.
ment may be signed in counterparts, each of which
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.
30
230
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 purpose This Agreement may be
signed using an electronic signature.
[S tur !lowing page]
31
231
SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA FUNDING/ASSISTANCE
IN WITNESS WHEREOF, this Agreement was executed on the date first written
above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
Anne Mayer
Executive Director
11?°
Approved as to Form: Title
iiiimlw
Kr � <
By:
Best, Best &
General Co
ATTEST:
By:
Its:
KLEINFELDER, INC.
By:
Si ture
e
* 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.
32
232
EXHIBIT "A" - SCOPE OF SERVICES
Services that will be requested include special inspections, laboratory and field testing
of materials, as is listed on the Materials Test Request form (Exhibit "A") and preparing
any requested / required reports to serve as quality assurance in capital projects.
Services may also be requested to perform plant inspection, geo-technical studies and
recommendations.
Consultant shall provide qualified personnel to perform material testing and inspection
services. Testing personnel shall maintain current Certificates of Proficiency for specific
tests being performed on the project including but not limited to sampling aggregates,
Portland cement concrete, and asphalt concrete, concr- - and asphalt batch plant
inspection, fabricating and testing concrete cylinder s " `ples, sampling and testing
import borrow material for project specific requiremen orming relative compaction
testing using a nuclear gauge, sampling and te i g m ry grout, sampling and
testing asphalt concrete for compliance with th-, ontractor's •roved quality control
plan. Every effort shall be made to mainta onti 'ty of te '"ing personnel on the
project for the duration of the project.
Consultant shall operate and maintain ns fled laboratory(ies) for the tests
required for the project. Testing perform ' n accordance with the procedures
set forth in the Caltrans Stan• • Te-' `" -tho• Manuals and at the frequency
recommended by the latest v- •n the altrans Construction Manual. Testing not
covered by a Caltrans Stan • _ 'd Te eth. ° shall be performed per the specified test
method required by the proje
Consultant shall docu da ctivities on a daily work report acceptable to the
Resident Engineer. e • re• shall consist of work monitored, tests performed
and samples tak : - "location th - project, date, weather conditions, hours on the
project.
Consultant shall identify .I and potential problems associated with the project and
recommend sound engineering solutions.
Consultant shall record all deviations from the approved plans to assist the Resident
Engineer and/or Design Engineer in the preparation of as -built plans.
The following is a list of tests that may be performed by the consultant and which must
be included in the Fee Schedule.
Calif. Test No. 202 — Sieve Analysis of Fine and Course Aggregates
Calif. Test No. 204 — Plasticity Index of Soils
Calif. Test No. 206 — Specific Gravity and Absorption of Coarse Aggregate
Calif. Test No. 207 — Specific Gravity and Absorption of Fine Aggregate
33
233
Calif. Test No. 216 — Relative Compaction of Untreated and Treated Soils and
Aggregates Soils and Aggregates. (or ASTM D 1557)
Calif. Test No. 217 — Sand Equivalent (or ASTM D2419)
Calif. Test No. 227 — Cleanness of Coarse Aggregate
Calif. Test No. 231 — Nuclear Gage Relative Compaction Test of Soils (or ASTM D2922)
Calif. Test No. 301 — Resistance "R" Value of Treated and Untreated Bases, Sub -bases
and Basement Soils by The Stabilometer (Unit price to include all
preparatory tests)
Calif. Test No. 308 — Specific Gravity and Weight per Cubic Foot of Compressed
Bituminous Mixtures
Calif. Test No. 309 — Theoretical Maximum Specific Gravity and Density of Hot Mix
Asphalt
Calif. Test No. 310 — Determination of Asphalt and Moisture Contents of Bituminous
Mixtures by Hot Solvent Extraction or a method approved by the
Resident Engineer
Calif. Test No. 366 — Test for Stabilometer Val
Calif. Test No. 375 — Compaction Testin
Calif. Test No. 518 — Concrete Yield
Calif. Test No. 521 — Compressive Streng o • + Concrete Cylinders
Calif. Test No. 541 — Flow of Grout Mixture
Calif. Test No. 556 — Slump Test ,
If approved by the Resident Engineer, an alternate test method as shown in parenthesis
may be used in lie the listed California Test method.
All tests shall conform to the newest version "Greenbook Standards for Construction or
Caltrans Standards". Any discrepancies in testing method shall be brought to the
attention of the Resident Engineer in writing.
The Resident Engineer may require special testing that is not listed on the attached unit
sheet. The Consultant will be paid a price agreed prior to commencement of any testing
or work.
The Consultant shall provide a 24hr emergency phone number as part of the proposal.
The Resident Engineer may require a written recommendation from the Consultant
when field conditions do not allow for a specific testing method to take place.
34 234
A. Sampling
Sampling of material, delivery of the sampled material to the laboratory and preparation
of the sample for testing will be done by the Consultant. The cost of this work shall be
included in the unit price of the test being performed.
B. Time Schedule
The Consultant will receive a 24 hour notice when field testing is required. If any
contractor delays are incurred due to the Consultant not performing the required tests
within the specified time or the test results not being available within the specified
response time, the Consultant will bear the full incurred delay costs.
C. Reports
For field density and relative compaction tests, the Consultant shall provide a copy of
the test results to the Resident Engineer "at the time of te- ng". The consultant shall
provide a formal report to the Commission [when applica► within five (5) working days
of project completion.
For all other tests, an informal report shall be
test. A formal report, including all backup i
working days of completion of the test.
All reports shall be identified with the c
by the Commission's Purchasing Depart
name on all documents.
on completion of the
sent within five (5)
nd task order number assigned
the Project Number and contact
Consultant shall provide res -s of rson for approval by the Commission.
Consultant shall provid= • • the Quality Control Manual for each laboratory used
on the project.
Consultant shall pr. ' e an • ated copy of the Caltrans Laboratory Accreditation
Manual for each labora u • on the project.
Consultant shall provide a copy of certificates of proficiency for each employee working
on the project as soon as they are available.
Consultant shall provide copies of all Reference Sample Program test results as soon
as they are available.
Consultant shall provide certified payrolls for covered workers with each payment
application submittal.
35 235
EXHIBIT "B" - COMPENSATION PROVISIONS
B-1
236
EXHIBIT "B"
COMPENSATION SUMMARY
FIRM
I PROJECT TASKS/ROLE
COST
Prime Consultant:
Kleinfelder, Inc.
Geotechnical and Material Testing & Inspection
$ 500,000.00
Sub Consultants:
Transmat
Geotechnical Laboratory and Field Materials Testinc
TBD
Destination Enterprises
Support services including inspection, project and
office engineers, and associated professional
support services
TBD
AP Engineering & Testing
Laboratory Testing Services
TBD
AL COSTS
$ 500,000.00
1 Commission authorization pertains to total contract award amount. ensation adjustments between consultants may occur;
however, the maximum total compensation authorized may not be ex ded.
237
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.
Exhibit C-1
238
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 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 Civil Rights Act of 1964).
Specifically, the Consultant shall not participate eith directly or indirectly in the
discrimination prohibited by 49 CFR §21.5, include ii e oyment practices and the
selection and retention of subconsultants.
H. Consultant and its subconsultants will ne exc any person from participation
in, deny any person the benefits of, or oth discriminate against anyone in
connection with the award and perform e of an ntract covered by 49 CFR 26 on
the basis of race, color, sex, or nati, •in. administering the Commission
components of the DBE Program plan, o► • and its subconsultants will not,
directly, or through contractual ether angements, use criteria or methods of
administration that have a ct defeating or substantially impairing
accomplishment of the obje rogram plan with respect to individuals of
a particular race, color, sex, o
I. Consultant shal clude - n. •iscrimination and compliance provisions of this
section in all subco work under this Agreement.
2. DEBARMENT AND ` _ : ' SION 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.
Exhibit C-2
239
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.
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 CF ''art 26. The Commission
shall take all necessary and reasonable steps and -;:_ % 9 CFR Part 26 to ensure
nondiscrimination in the award and administration of isted contracts.
Consultant or subcontractor shall not discrimin
origin, of sex in the performance of this Agre
carry out applicable requirements of 49 CFR P
the award and administration of DOT- isted
Failure by the Consultant or subcontrac
breach of this Agreement, which may res
other remedy, as the Commissio
on the basi race, color, national
nsultant or subcontractor shall
and the Caltrans DBE program in
acts, as further set forth below.
ese requirements is a material
ination of this Agreement or such
Failure by the Consultant t equirements is a material breach of this
contract, which may result in - rmi - of this contract or such other remedy as
the recipient deems a -te, '.ch may include, but is not limited to:
(1) Withholding mo
(2) Assessing sanctio
(3) Liquidated damages,
(4) Disqualifying Consulta
4. PROMPT PAYMENT
rom future proposing as non -responsible
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
Exhibit C-3
240
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
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 prohibite m holding retainage from
subconsultants. Any delay or postponement of payme _; ay take place only for good
cause and with the Commission's prior written r• Any violation of these
provisions shall subject Consultant or the viola ' .+ subc' ultant to the penalties,
sanctions, and other remedies specified in Se 3321 of t ,California Civil Code.
This requirement shall not be construed to lim any con ractual, administrative
or judicial remedies, otherwise available to Con or subconsultant in the event of a
dispute involving late payment or nonp,_ ment b onsultant, deficient subconsultant
performance and/or noncompliance by •ns t. This clause applies to both
DBE and non -DBE subconsultants.
6. LEGAL REMEDIES
In addition to those contract
law, either Party to
violations of this A
and 26, to the r
violations, and to th
"whistleblower" actions,
provisions of law.
es orth under relevant provisions of California
t may, where applicable, seek legal redress for
to the relevant provisions of 49 C.F.R. Parts 23
or state statutory provisions governing civil rights
deral and state provisions governing false claims or
II as any and all other applicable federal and state
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 Exhibits "E" of this Agreement in compliance with
the Caltrans DBE program, and a final utilization report in the form provided by the
Commission.
Exhibit C-4
241
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 has a DBE goal. Participation by DBE Consultant or
subconsultants shall be in accordance with the information contained in the Consultant
Contract DBE Commitment form attached hereto and incorporated into this Agreement
by reference. 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 altrans federally mandated
statewide overall DBE goal. Credit for materials or s i_ onsultant purchases from
DBEs counts towards the goal in the following man
• 100 percent counts if the materials
manufacturer.
• 60 percent counts if the materials
dealer.
• Only fees, commissions, and ch
delivery of materials or suppli .: -:. unt
manufacturer nor regular de
dealer."
D. DBE and other
encouraged to parti
with federal funds.
on the basis of race,
The Consultant shall ca
and administration of US
s are obtained from a DBE
re purchased from a DBE regular
!stance in the procurement and
tained from a DBE that is neither a
.55 defines "manufacturer" and "regular
sses (SB), as defined in Title 49 CFR, Part 26 are
mance of agreements financed in whole or in part
t, subrecipient or subconsultant shall not discriminate
al origin, or sex in the performance of this Agreement.
pplicable requirements of 49 CFR, Part 26 in the award
- 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.
Exhibit C-5
242
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.
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 lis > on 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 prop , List of subcontractors.
F. A Consultant who is ertified DBE is eligible to claim all of the work in the
Agreement toward the DBE pa ipation 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
Exhibit C-6
243
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 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 S
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 shag;; , a in records of materials purchased and/or supplied
from all subcontracts entere• o 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
Exhibit C-7
244
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
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-240 ) 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,
Exhibit C-8
245
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 perfo
materials for which each is listed unless Consultant or
Commission's written consent. Consultant shall not t
for convenience and perform the work with their
other sources without authorization from the
consent is provided, the Consultant shall no
material unless it is performed or supplied by
Contract DBE Commitment form.
n forc
mission.
the work and supply the
subconsultant obtains the
or substitute a listed DBE
r obtain materials from
s the Commission's
d to any payment for work or
DBE on the attached Consultant
The Commission authorizes a request orces or sources of materials if
Consultant shows any of the foll• ' usti ': ons:
1. Listed DBE fails
specifications for
2. The Com
subcon
require
3. Work req
license and
to a written contract based on plans and
jec
ated that a bond is a condition of executing the
d DBE fails to meet the Commission's bond
ultant's license and listed DBE does not have a valid
actors License Law.
4. Listed DBE fai .r 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.
Exhibit C-9
246
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 undef the contract to the extent
needed to meet or exceed the DBE goal.
14. DEBARMENT, SUSPENSION AND OTHER INELIGIBILITY AND VOLUNTARY
EXCLUSION
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
Exhibit C-10
247
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.
Exhibit C-11
248
EXHIBIT "D" - CONSULTANT DBE COMMITMENT
Exhibit D-1
249
Local Assistance Procedures Manual
Exhibit 10-01
Consultant Proposal DBE Commitment
*Writt
EXHIBIT 10-01 CONSULTANT PROPOSAL DBE COMMITMENT
1. Local Agency: Riverside County Transportation Commission 2. Contract DBE Goal: 15%
3. Project Description: On -Call Geotechnical Investigation -Laboratory and Field Testing of Materials
4. Project Location: Riverside County, California
5. Consultant's Name: Kleinfelder, Inc.
6. Prime Certified DBE: 0
7. Description of Work, Service, or Materials
Supplied
8. DBE
Certification
Number
9. DBE Contact Information
10. DBE
Laboratory Testing
33877
Justin Phukunhaphan T 1 909.869.6316
2607 Pomona Blvd, Pomona, CA 91768
4%
Field Materials Testing and Laboratory Testing
45222
Kreetha Mekc i T 1 909.293.9186
243 W. Che Ave., Monrovia, CA 91016
11%
Rail Inspection
40931
Marcy rama T 1 310.439.2655
119 011rammack St, Culver City, CA 90230
Optional
n confirmation from DBE Subconsultants listed above
are included in Appe
dix B -S bconsultant mmitment Memorandums
of this pro
II)IIIIIIIIIP.
Local Agency to Complete th
- cti
11. TOTAL CLAIMED DBE PARTICIPATION
IMPORTANT: Identify all DBE firms being claimed for
regardless of tier. Written confirmation of each listed
required.
J
04.14.2022
15 ok
credit,
DBE is
17. Local Agency Contract Number:
18. Federal -Aid Project Number:
19. Proposed Contract Execution Date.
20. Consultant's Ranking after Evaluatio
Local Agency certifies that all DBE certificat . - valid and information on
this form is complete and accurate.
21. Local Agency Representative's Signature 22. Date
12. Pre(parer's Signature 13. Date
Dany Hanna, PE 909.376.6128
23. Local Agency Representative's Name
24. Phone
14. Preparer's Name 15. Phone
Contract Manager/Vice President
25. Local Agency Representative's Title
16. Preparers Title
DISTRIBUTION: Original — Included with consultant's proposal to local agency.
ADA Notice: For individuals with sensory disabilities, this document is available in alternate formats. For information call (916) 654-6410 or TDD (916) 654-
3880 or write Records and Forms Management, 1120 N Street, MS -89, Sacramento, CA 95814.
osal
LPP 18-01
250
Page 1 of 2
January 2019
EXHIBIT "E" - DISCLOSURE OF LOBBYING ACTIVITIES
Exhibit E-1
251
Local Assistance Procedures Manual
EXHBIT 10-Q
Disclosure of Lobbying Activities
Kleinfelder, Inc. has not participated in any lobbying activities
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:
a. contract
b. grant
c. cooperative agreement
d. loan
e. loan guarantee
f. loan insurance
2. Status of Federal Action: 3. Report Type:
❑ a bid/offer/application
b. initial award
c. post -award
4. Name and Address of Reporting Entity
nPrime nSubawardee
Tier , if known
Congressional District, if known
6. Federal Department/Agency:
8. Federal Action Number, if known:
10. Name and Address of Lobby Entity
(If individual, last name, first name, MI)
(attach Continua
12. Amount of Payment (check all that
$ n actual
13. Form of Payment (check all
8 a. cash
b. m -kind; s
a. initial
b. material change
For Material Change Only:
year quarter
date of last report
5. If Reporting Entity in No. 4 is Subawardee,
Enter Name and Address of Prime:
Congression 'strict, if known
7. Federal am Name/Description:
1CF 11/Numb�i applicable
9. and Amount, I wn:
11. Ind' als Performing Services
(inc, ding address if different from No. 10)
(1as me, first name, MI)
ry)
pe of Payment (check all that apply)
a. retainer
b. one-time fee
c. commission
d. contingent fee
e deferred
f. other, specify
15. Brief Descriptio ervices Per med or to be performed and Date(s) of Service, including
officer(s), employee i r mem o s) contacted, for Payment Indicated in Item 12:
16. Continuation Sheet(s) attached:
(attach Continuation Sheet(s) if necessary)
Yes n No n
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.
Federal Use Only:
Signature:
Print Name: Dany Hanna, PE
Title: Contract Manager/Vice President
Telephone No.: 909.657.1716 Date: 4.14.22
Authorized for Local Reproduction
Standard Form - LLL
Standard Form LLL Rev. 04-28-06
Distribution: Orig- Local Agency Project Files
LPP 13-01
252
Page 1
May 8, 2013
RIVERSIDE
COUNTY
TRANSPORTATION
COMMISSION
ON -CALL GEOTECHNICAL - LABORATORY AND FIELD TESTING OF
MATERIALS SERVICES
Western Riverside County Programs and Projects Committee
May 23, 2022
David Lewis, Capital Projects Manager
For Bryce Johnston
Background
• Most geotechnical services part of larger consultant contract
• Streamlines process when geotechnical services are needed
• Comprehensive Geotechnical services for a variety of
projects/tasks
• Fund type depends on project: eligible for State/Federal
funding
2
Procurement Process
• Request for Qualifications (RFQ) was released on
March 3, 2022
• 9 firms submitted responsive and responsible
statements of qualifications
• 4 firms were shortlisted for the interview phase
• Group Delta, Kleinfelder, Inc., and Ninyo & Moore
were the 3 firms selected as most qualified
3
Task Order Process
• Work is not guaranteed to any of the awardees
• Pre -Qualified consultants will be selected for specific
tasks or projects based on their proposals for each task
order
• Evaluated on price, qualifications, availability
• Total contract value: $500,000 over 3 years +2 one-year
extensions
4
RIVERSIDE
COUNTY
TRANSPORTATION
COMMISSION
QUESTIONS
AGENDA ITEM 9
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE:
May 23, 2022
TO:
Western Riverside County Programs and Projects Committee
FROM:
Hector Casillas, Right of Way Manager
THROUGH:
Marlin Feenstra, Project Delivery Director
SUBJECT:
Agreements for On -Call Right of Way Support Services
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Award the following agreements to provide on -call right of way support services for a
three-year term in an amount not to exceed an aggregate value of $3.3 million:
a) Agreement No. 22-31-040-00 to Epic Land Solutions;
b) Agreement No. 22-31-080-00 to Monument ROW, Inc.;
c) Agreement No. 22-31-081-00 to Overland, Pacific, & Cutler;
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:
Right of way services are necessary to support the Right of Way department's Commission
projects, future Measure A highway and rail projects, as well as projects for the Western Riverside
County Regional Conservation Authority (RCA), for which the Commission is the managing agency
as of January 1, 2021.
The services include project management, RCA property owner outreach, appraisal coordination,
title escrow services, acquisition, residential/business relocation, utility relocation coordination,
eminent domain coordination, property management, right of way certification, construction
support, and project closeout. To meet project schedules, control costs, and assure compliance
with federal and state regulations and requirements related to right of way acquisition, staff
recommends awarding contracts for on -call right of way support services with the work to be
issued on an as -needed task order basis.
Agenda Item 9
253
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 proposals 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 on -call right of way
support services as set forth under the terms of the Request for Proposals (RFP)
No. 22-31-040-00.
RFP No. 22-31-040-00 for on -call right of way support services was released by staff on February
17, 2022. The RFP was posted on the Commission's PlanetBids website, which is accessible
through the Commission's website. Through PlanetBids, 63 firms downloaded the RFP; 9 of these
firms are located in Riverside County. A pre -proposal conference was held on March 2, 2022 and
attended by 6 firms. Staff responded to all questions submitted by potential proposers prior to
the March 10, 2022, clarification deadline date. Five firms — Epic Land Solutions (Riverside);
Monument ROW, Inc. (Irvine); Overland, Pacific & Cutler (Riverside); Paragon Partners (Cypress);
and The ROW Company (Redlands) — submitted responsive and responsible proposals prior to
the submittal deadline on March 29, 2022. Utilizing the evaluation criteria set forth in the RFP,
the five proposals 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 three firms — Epic Land Solutions, Monument ROW, Inc. and Overland,
Pacific & Cutler — to be the most qualified firms to provide on -call right of way support services.
The evaluation committee recommends contract awards to these three firms for a three-year
term in the aggregate amount of $3.3 million, as these firms earned the highest total evaluation
scores.
The overall evaluation ranking, based on highest to lowest total evaluation score, and the average
hourly rates are presented in the following table:
Monument ROW, Inc.
$122.50
1
Epic Land Solutions
$132.94
2
Overland, Pacific & Cutler
$102.86
3
Paragon Partners
$111.07
4
The ROW Company
$108.08
5
*Prices reflect average hourly rate for key personnel.
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.
Agenda Item 9
254
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, 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.
Fiscal Impact
Funding for these agreements will be provided by various highway, rail, and conservation
projects.
Financial Information
In Fiscal Year Budget:
Yes
Year:
FY 2022/23+
Amount:
$3,300,000
Source of Funds:
2009 Measure A, State Transportation
Improvement Program, various Federal,
and Transportation Uniform Mitigation
Fees, RCA reimbursements
Budget Adjustment:
No
GL/Project Accounting No.:
623999 81403 00014 0000 262 3181403
654199 81403 00014 0000 265 33 81403
r22001 81403 00014 0000 750 68 81403
Fiscal Procedures Approved:
f�
Date:
05/13/2022
Attachments:
1) Draft On -Call Professional Services Agreement 22-31-040-00 with Epic Land Solutions
2) Draft On -Call Professional Services Agreement 22-31-080-00 with Monument ROW, Inc.
3) Draft On -Call Professional Services Agreement 22-31-081-00 with Overland, Pacific &
Cutler
Agenda Item 9
255
ATTACHMENT 1
Agreement No. 22-31-040-00
PROFESSIONAL SERVICES AGREEMENT
WITH PROPOSITION 1B, FTA AND FHWA FUNDING ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
EPIC LAND SOLUTIONS, INC.
FOR ON -CALL
RIGHT OF WAY SUPPORT SERVICES
Parties and Date.
This Agreement is made and entered into this day of , 2022, by
and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the
Commission") and Epic Land Solutions, , c. "Consultant"), C Corporation.
The Commission and Consultant are sometime fe to herein individually as "Party",
and collectively as the "Parties".
Recitals.
A. On November 8, 1988 the Vo of Riverside County approved Measure A
authorizing the collection of a one-half perce (1/2 %) retail transactions and use tax (the
"tax") to fund transportation programs and improvements within the County of Riverside,
and adopting the RiversiidCounty Transportation Improvement Plan (the "Plan").
B. Purs
Utility Code Sections 240000 et seq., the Commission is
authorized to alloc s of the Tax in furtherance of the Plan.
C. On November 5, 2'002, 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 consulting services
provided under this Agreement may be State Proposition 1B funds, Federal Highway
Administration Funds ("FHWA") administered by the California Department of
Transportation ("Caltrans"), and/or funds from the Federal Transit Administration ("FTA").
E. Consultant desires to perform and assume responsibility for the provision of
certain on -call right of way support services 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 issued pursuant to this Agreement and executed by the Commission and the
Consultant ("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. The Commission desires to engage Consultant to render such services on an
on -call basis. Services shall be ordered by Task Order(s) to be issued pursuant to this
Agreement for future projects as set forth herein and in each Task Order (each such project
shall be designated a "Project" under this Agreement).
Terms.
1. General Scope of Services. Consultant shall furnish all technical and
professional services, including labor, material, equipment, transportation, supervision and
expertise, and incidental and customary work necessary to fu,.. and adequately supply the
on -call right of way support services for the Projects (" vices"). The Services are
generally described in Exhibit "A" attached hereto and ' orated herein by reference.
The Services shall be more particularly described in t indi , al Task Orders issued by
the Commission's Executive Director or designee. Service ;;_ .II be performed unless
authorized by a fully executed Task Order. All S ces all be s"` 'ect to, and performed
in accordance with, this Agreement, the releva s der, the exhibits attached hereto
and incorporated herein by reference, and all app e local, state and federal laws, rules
and regulations.
2. Commencement of S
upon receipt of a written "No
Commission.
3. Pre -Award Audit.
extent Caltrans proc
Proceed" may be
questions raised du
consider approval of t
contingent on meeting al
the Commission to termina
Consultant shall commence work
d" or "Limited Notice to Proceed" from
result o the federal funding for this Project, and to the
connection therewith, issuance of a "Notice to
pletion and approval of a pre -award audit. Any
and audit shall be resolved before the Commission will
ent. The federal aid provided under this Agreement is
al requirements and could be withdrawn, thereby entitling
this Agreement, if the procedures are not completed. The
Consultant's files shall be maintained in a manner to facilitate Federal and State process
reviews. In addition, the applicable federal agency, or Caltrans acting in behalf of a federal
agency, may require that prior to performance of any work for which Federal
reimbursement is requested and provided, that said federal agency or Caltrans must give to
Commission an "Authorization to Proceed".
4. Audit Procedures. Consultant and 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,
2
257
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 23 and 24 of this Agreement.
5. Term.
5.1 This Agreement shall go into effect o
contingent upon approval by Commission, and Cons
notification to proceed by Commission's Contract Ad
three years from the date set forth above, unless e
case shall the term of this Agreement exceed t
be completed within the term.
e date first set forth above,
shall commence work after
This Agreement shall end
ract amendment. In no
sk Order work should
5.2 Consultant is advis i at any • mmendation for contract award is
not binding on Commission until this A. f executed and approved by the
Commission.
5.3 This Agr
unless earlier terminated a
within the term of this A• ree
deadlines. All appli
effect following th
6. Commis
the Commission's Exe
Administrator for the p
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.
ain in effect until the date set forth above,
Consultant shall complete the Services
nd s . meet any other established schedules and
ation provisions of this Agreement shall remain in
Agreement.
act Administrator. The Commission hereby designates
'rector, or his or her designee, to act as its Contract
ormance of this Agreement ("Commission's Contract
7. Consultant's Representative. Consultant hereby designates Karen Starr 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: Kari Anvick, Darcy Me ,oza, Melissa Mann, Eddie
Quintero, Tyler Kelleher, and Michael Mays, or as othe ,'`='identified in the Task Order.
9. Standard of Care; Licenses. Consultan
skilled in the professional calling necessary to perf
required by this Agreement to fully and adequat
perform the Services and duties in conforma
generally recognized as being employed by pro
State of California. Consultant warrants
sufficient skill and experience to perform t
represents and warrants to the Commissio
licenses, permits, qualifications '•rov
to perform the Services, a
throughout the term of this
expense and without re
correct errors or omis
standard of care pr
all damages and o
Agreement arising fr
Consultant or its sub-
pr- , is and maintains that it is
all Sery duties and obligations
ete the ' ject. Consultant shall
d consistent with the standards
onals in the same discipline in the
1 emp es and subcontractors shall have
gned to them. Consultant further
loyees and subcontractors have all
of whatever nature that are legally required
ses and approvals shall be maintained
sultant shall perform, at its own cost and
nt from the Commission, any services necessary to
aused by the Consultant's failure to comply with the
in, d shall be fully responsible to the Commission for
provided for in the indemnification provisions of this
nsultant's errors and omissions. Any employee of
tants 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
4
259
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. Task Orders; Commencement of Services; Schedule of Services. Consultant
shall commence Services under a Task Order within five (5) days of receiving a fully
executed Task Order from the Commission. Task Orders shall be in substantially the form
set forth in Exhibit "B" attached hereto and incorporated herein by reference. Each Task
Order shall identify the funding source(s) to be used to fund the Services under the relevant
Task Order, and Consultant shall comply with the requirements specified herein, and in the
attached exhibits, applicable to the identified funding source(s).
Consultant shall perform the Services expe•' .usly, within the term of this
Agreement, and in accordance with any schedule of S es set forth in a Task Order
("Schedule"). Consultant represents that it has the pro sio and technical personnel to
perform the Services in conformance with su conditio In order to facilitate
Consultant's conformance with the Schedule, the mmi ion sha -spond to Consultant's
submittals in a timely manner. Upon reques C•'° ission's Contract Administrator,
Consultant shall provide a more detailed schedul - . nticipated performance to meet the
Schedule of Services.
11.1 Modification of the Sc i•`J" -. sultant shall regularly report to the
Commission, through corresp• or ogress reports, its progress in providing
required Services within the ed d tim •eriods. Commission shall be promptly
informed of all anticipated de . .. 1► - ' hat Consultant determines that a schedule
modification is necessa ..,ons►,, _ t shall promptly submit a revised Schedule of Services
for approval by Com -_ct Administrator.
11.2
Commission's Contra
Commission, on a bi-we
standard day and time.
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.
s. Consultant shall conduct trend meetings with the
trator and other interested parties, as requested by the
asis or as may be mutually scheduled by the Parties at a
ese trend meetings will encompass focused and informal
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.
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260
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, 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 ti -ly notice shall constitute a
waiver by Consultant of any right to an excusable delay i ► `ro ` e of performance.
12.3 Mutual Agreement. Perform- ;, e ny Services under this
Agreement may be delayed upon mutual agrs '` ent of 1 ,- Parties. Upon such
agreement, Consultant's Schedule of Service all b- exten• as necessary by the
Commission. Consultant shall take all reason. ' - st; r' to minimize delay in completion,
and additional costs, resulting from any such ex
13. Prelimina Review of Wor - - •rts, orking papers, and similar work
products prepared for submission in the co -e • ing Services under this Agreement
shall be submitted to the Com 's ract Administrator in draft form, and the
Commission may require revi s of ch d is prior to formal submission and approval.
In the event plans and desi• .are •- oped as part of the Project, final detailed
plans and designs shall be con t upon btaining environmental clearance as may be
required in connection -d _ _ funding. In the event that Commission's Contract
Administrator, in hi ; 1, er sol- sc •n, determines the formally submitted work product
to be not in accor•' °r.,. a with standard of care established under this Agreement,
Commission's Contra "dmin ator may require Consultant to revise and resubmit the
work at no cost to the C. 1 ,p,i ion.
14. Appearance at Hearings. If and when required by the Commission,
Consultant shall render assistance at public hearings or other meetings related to the
Project or necessary to the performance of the Services. However, Consultant shall not be
required to, and will not, render any decision, interpretation or recommendation regarding
questions of a legal nature or which may be construed as constituting a legal opinion.
15. Opportunity to Cure; Inspection of Work. Commission may provide
Consultant an opportunity to cure, at Consultant's expense, all errors and omissions 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, Caltrans and FHWA to inspect or review Consultant's work in progress at
any reasonable time.
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261
16. Claims Filed by Contractor.
16.1 If claims are filed by the Commission's contractor for the Project
("Contractor") relating to work performed by Consultant's personnel, and additional
information or assistance from the Consultant's personnel is required by the Commission
in order to evaluate or defend against such claims; Consultant agrees to make reasonable
efforts to make its personnel available for consultation with the Commission's construction
contract administration and legal staff and for testimony, if necessary, at depositions and
at trial or arbitration proceedings.
16.2 Consultant's personnel that the Commission considers essential to
assist in defending against Contractor claims will be made available on reasonable notice
from the Commission. Consultation or testimony will be reimbursed at the same rates,
including travel costs that are being paid for the Consultant's •ersonnel services under this
Agreement.
16.3 Services of the Consultant's p
connection with Contractor claims will be perf
amendment, if necessary, extending the termi
finally resolve the claims.
16.4 Nothing contained i.
Consultant's indemnification obligation
conflict between this Section and Section
intended to obligate the Com
personnel related to Contrac
defend the Commission pu
nd other support staff in
t to a written contract
greement in order to
s Secti hall be construed to in any way limit
ection 29. In the case of any
9 shall govern. This Section is not
burse Consultant for time spent by its
ch Consultant is required to indemnify and
of this Agreement.
17. Final Ac - .n determination by the Commission that Consultant
has satisfactorily c
term set forth her
Acceptance. Upon
hereunder, unless othe
request issuance of a Noti
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.
es required under this Agreement and within the
ission shall give Consultant a written Notice of Final
such notice, Consultant shall incur no further costs
cified in the Notice of Final Acceptance. Consultant may
of Final Acceptance when, in its opinion, it has satisfactorily
18. 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
7
262
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.
19. Fees and Payment.
19.1 The method of payment for thi • ree - t will be based on actual
cost plus a fixed fee. Commission shall reimburs: ; onsultan actual costs (including
Tabor costs, employee benefits, travel, equipm ;t'``ent. ,,costs, o head and other direct
w
costs) incurred by Consultant in performanc= :w;.tha°s ervices. Consultant shall not be
reimbursed for actual costs that exceed the est ed wage rates, employee benefits,
travel, equipment rental, overhead, an. ;?_., -r esti ,,-d costs set forth in the approved
Consultant cost proposal attached her. • • ibi C" and incorporated herein by
reference, or any cost proposal included . .' • o ask Order ("Cost Proposal") unless
additional reimbursement is p for written amendment. The overhead rates
included in the attached Ex "C" all be ed for the term of the Master Agreement,
and shall not be subject to a t required by the applicable funding source.
In no event, shall Cons nt . ; imbursed for overhead costs at a rate that exceeds
Commission's appro • e.. , .te set forth in the Cost Proposal. In the event that
Commission dete es that '' cha '•e to the Services from that specified in the Cost
Proposal, this Agre . ent or a i Task Order is required, the Agreement time or actual
costs reimbursable • Co ission shall be adjusted by written amendment to
accommodate the chan• +ork. The maximum total cost as specified in Section 19.8
shall not be exceeded, unless authorized by a written amendment.
19.2 In addition to the allowable incurred costs, Commission shall pay
Consultant a fixed fee to be set forth in each Task Order ("Fixed Fee"). The Fixed Fee is
nonadjustable for each Task Order, except in the event of a significant change in the
Scope of Services, and such adjustment is made by written amendment.
19.3 Reimbursement for transportation and subsistence costs shall not
exceed the rates specified in the approved Cost Proposal. In addition, payments to
Consultant for travel and subsistence expenses claimed for reimbursement or applied as
local match credit shall not exceed rates authorized to be paid exempt non -represented
State employees under current State Department of Personnel Administration (DPA) rules,
unless otherwise authorized by Commission. If the rates invoiced are in excess of those
authorized DPA rates, and Commission has not otherwise approved said rates, then
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263
Consultant is responsible for the cost difference and any overpayments shall be
reimbursed to the Commission on demand.
19.4 When milestone cost estimates are included in the approved Cost
Proposal for a Task Order, Consultant shall obtain prior written approval for a revised
milestone cost estimate from the Contract Administrator before exceeding such cost
estimate.
19.5 Progress payments shall be made monthly in arrears based on
Services provided and allowable incurred costs. A pro rata portion of the Fixed Fee shall
be included in the monthly progress payments. If Consultant fails to submit the required
deliverable items according to the schedule set forth in the Scope of Services,
Commission shall have the right to delay payment or terminate this Agreement in
accordance with the provisions of Section 21, Termination.
19.6 No payment shall be made prior to ' royal of any Services, nor for
any Services performed prior to approval of this Agr
19.7 Consultant shall be reimbu
permit upon receipt by Commission's Cont
triplicate. Invoices shall be submitted no latertha
of work for which Consultant is billing. I - •'ces sh
milestone and each project as applicable
approved Cost Proposal and shall referen
invoice must contain the fina
equipment purchased under
final invoice should be sub
work. Invoices shall be maile
address:
Riverside County
Attention: Accounts
P.O. 12008
Riverside, CA 92502
as prompt fiscal procedures will
istrator of itemized invoices in
alendar days after the performance
etail the work performed on each
flow the format stipulated for the
ment number and project title. Final
credits due Commission including any
urchase provisions of this Agreement. The
ndar days after completion of Consultant's
ommi ion's Contract Administrator at the following
Commission
19.8 The total amount payable by Commission, including the Fixed Fee,
shall not exceed the amount set forth in each Task Order.
19.9 Salary increases shall be reimbursable if the new salary is within the
salary range identified in the approved Cost Proposal and is approved by Commission's
Contract Administrator. For personnel subject to prevailing wage rates as described in the
California Labor Code, all salary increases, which are the direct result of changes in the
prevailing wage rates are reimbursable.
19.10 Consultant shall not be reimbursed for any expenses unless
authorized in writing by the Commission's Contract Administrator.
19.11 All subcontracts in excess of $25,000 shall contain the above
provisions.
20. Disputes.
20.1 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.
20.2 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 f r review will be submitted in
writing.
20.3 Neither the pendency of a dis
committee will excuse Consultant from full and tim
terms of this Agreement.
21. Termination.
21.1 Commission resery
(30) calendar days written notice to Cons
termination stated in the notice.
at any time, for any or no rea
the notice of termination of
21.2 C
Consultant fail to p
herein provided.
Services in any ma
Agreement with Consu
under this Agreement for
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.
e, its consideration by the
erformW';;. a in accordance with the
inate this Agreement upon thirty
or no reason, with the reasons for
ay terminate Services under a Task Order,
ctive date of termination to be specified in
ay terminate this Agreement with Consultant should
is herein contained at the time and in the manner
f su h termination, Commission may proceed with the
proper by Commission. If Commission terminates this
mission shall pay Consultant the sum due to Consultant
ices completed and accepted prior to termination, unless the
21.3 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
21.4 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
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265
may have been prepared or accumulated by Consultant in performance of the Services,
whether completed or in progress.
21.5 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.
21.6 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.
21.7 Consultant, in executing this Agree
waived any and all claims for damages which may othe
termination of this Agreement, for convenience or ca
, shall be deemed to have
arise from the Commission's
rovided in this Section.
21.8 Consultant may not termin this Agreem except for cause.
22. Cost Principles and Admin',:: , ative R A[ 'rements.
22.1 Consultant agrees t
48 CFR, Federal Acquisition Re
used to determine the cost all
ct Cost Principles and Procedures,
m, Chapter 1, Part 31.000 et seq., shall be
vidual items.
22.2 Consult to comply with federal procedures in
accordance with 2 CF' 2�`' .'; niform Administrative Requirements, Cost Principles,
and Audit Require s fo •e swards.
22.3 costs r which payment has been made to CONSULTANT that
are determined by su i ; u - audit to be unallowable under 2 CFR, Part 200 and 48
CFR, Federal Acquisition ulations System, Chapter 1, Part 31.000 et seq., are subject
to repayment by Consultant to Commission.
22.4 All subcontracts in excess of $25,000 shall contain the above
provisions.
23. 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
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266
from the date of final payment under this Agreement. The State, State Auditor,
Commission, FHWA, 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
indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies
thereof shall be furnished if requested. Subcontracts in excess of $25,000 shall contain this
provision.
23.1 Accounting System. Consultant and its subcontractors shall establish
and maintain an accounting system and records that properly accumulate and segregate
expenditures by line item for the Services. The accounting system of Consultant and its
subcontractors shall conform to Generally Accepted Accounting Principles (GAAP), enable
the determination of incurred costs at interim points of completion, and provide support for
reimbursement payment vouchers or invoices.
24. Audit Review Procedures.
24.1 Any dispute concerning a qucOton of fac ing under an interim or
post audit of this Agreement that is not disposed of by agreeme , shall be reviewed by
Commission's Chief Financial Officer.
24.2 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 shall be submitted in writing.
24.3 Neither pendency of a dispute nor its consideration by
Commission shall excuse C. .ult- I and timely performance, in accordance with
the terms of this Agreement.
25.1 ing c' tained in this Agreement or otherwise, shall create any
contractual relation be - •mmission and any subconsultant(s), and no subcontract
shall relieve Consultant o esponsibilities 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.
25.2 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.
25.3 Consultant shall pay its subconsultants within ten (10) calendar days
from receipt of each payment made to Consultant by Commission.
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267
25.4 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.
25.5 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).
25.6 Exhibit "C" 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 "C" shall be the same for both
the Consultant and all subconsultants, unless otherwise identified in Exhibit "C" or in a
Task Order. The subconsultant rate schedules and cost proposals contained herein are for
accounting purposes only.
26. Equipment Purchase
26.1 Prior authorization, in writing, by C
shall be required before Consultant enters into
subcontract for supplies, equipment, or services
the necessity or desirability of incurring such
26.2 For purchase of an
the Cost Proposal and exceeding $5,00
Contract Administrator is required. Thre
the request for such purchase, • abs
26.3 Any eq
the following: Consultant sh
Nonexpendable prop
acquisition cost of
sold or traded in,
this Agreement, or
equipment and credit
equipment at the best pr
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.
on's Contract Administrator
ted purchase order, or
ovide an evaluation of
or consulting work not covered in
ion, in writing, by Commission's
quotations must be submitted with
of bidding must be adequately justified.
as a result of this Agreement is subject to
inventory of all nonexpendable property.
as having a useful life of at least two years and an
e purchased equipment needs replacement and is
all receive a proper refund or credit at the conclusion of
ment is terminated, Consultant may either keep the
on in an amount equal to its fair market value, or sell such
obtainable at a public or private sale, in accordance with
26.4 All subcontracts in excess $25,000 shall contain the above provisions.
27. Labor Code Requirements.
27.1 Prevailing Wages.
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268
(a) Consultant shall comply with the State of California's General
Prevailing Wage Rate requirements in accordance with California Labor Code, Section
1770, and all Federal, State, and local laws and ordinances applicable to the Services.
(b) Any subcontract entered into as a result of this Agreement, if for
more than $25,000 for public works construction or more than $15,000 for the alteration,
demolition, repair, or maintenance of public works, shall contain all of the provisions of this
Section.
(c) When prevailing wages apply to the Services described in the
Scope of Services, transportation and subsistence costs shall be reimbursed at the
minimum rates set by the Department of Industrial Relations (DIR) as outlined in the
applicable Prevailing Wage Determination. See http://www.dir.ca.gov.
(d) Copies of the prevailing rate •<;i'°per diem wages in effect at
commencement of this Agreement are on file at the Com on's offices. Consultant shall
make copies of the prevailing rates of per diem wages e ::craft, classification or type
of worker needed to execute the Services available ntereste rties upon request, and
shall post copies at the Consultant's principal . e of .usines d at the project site.
Consultant shall defend, indemnify and hold th .m ion, its elected officials, officers,
employees and agents free and harmless from aims, liabilities, costs, penalties or
interest arising out of any failure or all :� failure comply with the Prevailing Wage
Laws.
27.2 DIR Reaist
an applicable "public works"
Sections 1725.5 and 1771.
with the Department of Indust
duration of the Projec
be subject to com
Relations. It sha
registration and labo
e Services are being performed as part of
e" project, then pursuant to Labor Code
nd all subconsultants must be registered
lations.Consultant shall maintain registration for the
e same of any subconsultants. This Project may also
and enforcement by the Department of Industrial
nt's sole responsibility to comply with all applicable
e requirements.
27.3 Eight our 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.
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27.4 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 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-, onsultant shall employ the
number of apprentices provided for therein, as well as co ;;_; _;ute to the fund to administer
the apprenticeship program in each craft or trade in th-: FFn of the work hereunder.
The parties expressly understand that t , responsi '.,_ for compliance with
provisions of this Section and with Sections 17 17 7.6 and 77.7 of the California
Labor Code in regard to all apprenticeable occ► tio- ies with Consultant
28. Ownership of Materials/C. ntialit
28.1 Documents
perpetual license for Commissio
copyrights and designs embo
materials, data and other do
expression, including but not
recorded on comput
Consultant under t
& Data: : ement creates an exclusive and
modify, reuse, or sub -license any and all
ecifications, studies, drawings, estimates,
authorship fixed in any tangible medium of
o, phys al drawings or data magnetically or otherwise
hich are prepared or caused to be prepared by
(` uments & Data").
hall require all subcontractors to agree in writing that
Commission is granted . sive and perpetual license for any Documents & Data the
subcontractor prepares un' 'r 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.
28.2 Intellectual Property. In addition, Commission shall have and retain all
right, title and interest (including copyright, patent, trade secret and other proprietary
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270
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
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 respons',.;`• obtain in writing separate
written assignments from any subcontractors or age •f Co Itant of any and all right to
the above referenced Intellectual Property. Shou onsultan , her during or following
termination of this Agreement, desire to use of e above eferenced Intellectual
Property, it shall first obtain the written approv t ommission.
All materials and do
Consultant for general use prior to the ex
copyright of any other party or publ avai
continue to be the property of t
stated prior to execution of th.
the right to grant the exclusi
provided herein.
perpetual license to
otherwise owned by
collective, insurrectional,
ere developed or prepared by the
is greement and which are not the
n. y other computer applications, shall
However, unless otherwise identified and
sultant represents and warrants that it has
icense for all such Intellectual Property as
er is granted by Consultant a non-exclusive and
odify or sub -license any and all Intellectual Property
which is the basis or foundation for any derivative,
pplemental work created under this Agreement.
28.3 Confidentiality. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents and Data either created by or provided to Consultant in
connection with the performance of this Agreement shall be held confidential by
Consultant. Such materials shall not, without the prior written consent of Commission, be
used by Consultant for any purposes other than the performance of the Services. Nor
shall such materials be disclosed to any person or entity not connected with the
performance of the Services or the Project. Nothing furnished to Consultant which is
otherwise known to Consultant or is generally known, or has become known, to the related
industry shall be deemed confidential. Consultant shall not use Commission's name or
insignia, photographs of the Project, or any publicity pertaining to the Services or the
Project in any magazine, trade paper, newspaper, television or radio production or other
similar medium without the prior written consent of Commission.
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28.4 Infringement Indemnification. Consultant shall defend, indemnify and
hold the Commission, its directors, officials, officers, employees, volunteers and agents
free and harmless, pursuant to the indemnification provisions of this Agreement, for any
alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any
other proprietary right of any person or entity in consequence of the use on the Project by
Commission of the Documents & Data, including any method, process, product, or concept
specified or depicted.
29. Indemnification. To the fullest extent permitted by law, Consultant shall
defend (with counsel of Commission's choosing), indemnify and hold Commission, Caltrans
and their directors, officials, officers, employees, consultants, volunteers, and agents free
and harmless from any and all claims, demands, causes of action, costs, expenses, liability,
loss, damage or injury, in law or equity, to property or persons, including wrongful death, in
any manner arising out of or incident to alleged neglige acts, omissions, or willful
misconduct of Consultant, its officials, officers, employ agents, consultants, and
contractors arising out of or in connection with the perfor e of the Services, the Project
or this Agreement, including without limitation the .,- r en ' . consequential damages,
expert witness fees, and attorneys fees and other r .' ed costs * expenses. Consultant
shall defend, at Consultant's own cost, expense d ris any an I such aforesaid suits,
actions or other legal proceedings of every kin• t be brought or instituted against
Commission, Caltrans and their directors, offic officers, employees, consultants,
agents, or volunteers. Consultant shall p ,,• satis y judgment, award or decree that
may be rendered against Commission, a •r eir directors, officials, officers,
employees, consultants, agents, • volu = in y such suit, action or other legal
proceeding. Consultant shall re Co '` ission, Caltrans and their directors, officials,
officers, employees, consult. age , an. ! volunteers, for any and all legal expenses
and costs, including reasona. i a -s, incurred by each of them in connection
therewith or in enforce mnity herein provided. Consultant's obligation to
indemnify shall not b urance proceeds, if any, received by Commission,
Caltrans, their dire rs, offices ' •ffi rs, employees, consultants, agents, or volunteers.
If Consultant's • :ate• o defend, indemnify, and/or hold harmless arises out of
Consultant's performanc. a "design professional" (as that term is defined under Civil
Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8,
which is fully incorporated herein, Consultant's indemnification obligation shall be limited to
claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a
court of competent jurisdiction, Consultant's liability for such claim, including the cost to
defend, shall not exceed the Consultant's proportionate percentage of fault.
Consultant's obligations as set forth in this Section shall survive expiration or
termination of this Agreement.
30. To the fullest extent permitted by law, Consultant shall defend, indemnify and
hold Commission, Caltrans and their directors, officials, officers, employees, consultants,
volunteers, and agents free and harmless from any and all claims, demands, causes of
action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or
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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 attorneys 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 s II reimburse Commission,
Caltrans and their directors, officials, officers, employe consultants, agents, and/or
volunteers, for any and all legal expenses and costs, in _ �ll a n. reasonable attorney's fees,
incurred by each of them in connection therewith n en . i; ing the indemnity herein
provided. Consultant's obligation to indemnif , ; "` all not b_ -stricted to insurance
proceeds, if any, received by Commission, C n ns their dir- tors, officials officers,
employees, consultants, agents, or volunteers i anding the foregoing, to the extent
Consultant's Services are subject to Civil Code Se 2782.8, the above indemnity shall
be limited, to the extent required by Civil ecti. 782.8, to claims that arise out of,
pertain to, or relate to the negligence, reck w ful misconduct of the Consultant.
Consultant's obligations as set h in , Sec on 29 shall survive expiration or
termination of this Agreement.
31. Insurance.
31.1
Agreement until i
secured all insuran
acceptable to the Com
commence work on any
Section.
nce. Consultant shall not commence work under this
ence satisfactory to the Commission that it has
der this Section, in a form and with insurance companies
addition, Consultant shall not allow any subcontractor to
ntract until it has secured all insurance required under this
31.2 Minimum Requirements. Consultant shall, at its expense, procure and
maintain for the duration of the Agreement insurance against claims for injuries to persons
or damages to property which may arise from or in connection with the performance of the
Agreement by the Consultant, its agents, representatives, employees or subcontractors.
Consultant shall also require all of its subcontractors to procure and maintain the same
insurance for the duration of the Agreement. Such insurance shall meet at least the
following minimum levels of coverage:
(a) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2)
Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001,
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273
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 abor Code of the State of
California. Employer's Practices Liability limits of $1,000 ° + per accident.
31.3 Professional Liability. Consults %sh:'"' ocure and maintain, and
require its sub -consultants to procure and maintai r, •r a perio• ' five (5) years following
completion of the Project, errors and omission iabil' insura «'e appropriate to their
profession. For Consultant, such insuranc ,.ha •e in an amount not less than
$1,000,000 per claim. This insurance shall be -°, I,+rsed to include contractual liability
applicable to this Agreement and shall kitten o ; policy form coverage specifically
designed to protect against acts, erro o u : io ' of the Consultant. "Covered
Professional Services" as desi • nated p •' must specifically include work
performed under this Agreeme •olio ust "pay on behalf of the insured and must
include a provision establishi rer's ty to defend. Subconsultants of Consultant
shall obtain such insura t not less than $2,000,000 per claim.
Notwithstanding the for- • •'ng, !' ommission may consider written requests to lower or
dispense with the er •m •ns liability insurance requirement contained in this
Section for certai '•consul is o onsultant, on a case -by -case basis, depending on
the nature and sco• .f the S: ices to be provided by the subconsultant. Approval of
such request shall be riti signed by the Commission's Contract Administrator.
31.4 Aircra Liability Insurance. Prior to conducting any Services requiring
use of aircraft, Consultant shall procure and maintain, or cause to be procured and
maintained, aircraft liability insurance or equivalent form, with a single limit as shall be
required by the Commission. Such insurance shall include coverage for owned, hired and
non -owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, Caltrans and their directors, officials, officers, employees and agents as
additional insureds with respect to the Services or operations performed by or on behalf of
the Consultant.
31.5 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:
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(a) General Liability.
(1) Commercial General Liability Insurance must include
coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury;
(3) premises/operations liability; (4) products/completed operations liability; (5) aggregate
limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion
deleted; (7) contractual liability with respect to this Agreement; (8) broad form property
damage; and (9) independent consultants coverage.
(ii) The policy shall contain no endorsements or provisions
limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by
one insured against another; or (3) contain any other exclusion contrary to this Agreement.
(iii) The policy shall give the Commission, its directors,
officials, officers, employees, and agents insured status us"ISO endorsement forms 20
10 10 01 and 20 37 10 01, or endorsements providing t► act same coverage.
(iv) The additional in
"primary and non-contributory" and will not see
Caltrans' insurance or self-insurance and shall
endorsements providing the exact same covera
d cove`_- under the policy shall be
ntribution fr li. the Commission's or
as broad as CG 20 01 04 13, or
(b) Automobile L \ The tomobile liability policy shall be
endorsed to state that: (1) the Commissio d their directors, officials, officers,
employees and agents shall b: ere• additional insureds with respect to the
ownership, operation, mainte e, -, loa g or unloading of any auto owned, leased,
hired or borrowed by the Co Itant % hi the Consultant is responsible; and (2) the
insurance coverage shall be p insur e as respects the Commission, Caltrans and
their directors, official , ,s, •loyees and agents, or if excess, shall stand in an
unbroken chain of ,U' -rage _es the Consultant's scheduled underlying coverage.
Any insurance or -insurank _ maintained by the Commission, Caltrans and their
directors, officials, o s, a 1.yees and agents shall be excess of the Consultant's
insurance and shall not . d upon to contribute with it in any way.
(c)
Workers' Compensation and Employers Liability Coverage.
(i) Consultant certifies that he/she is aware of the provisions
of Section 3700 of the California Labor Code which requires every employer to be insured
against liability for workers' compensation or to undertake self-insurance in accordance with
the provisions of that code, and he/she will comply with such provisions before
commencing work under this Agreement.
(ii) The insurer shall agree to waive all rights of subrogation
against the Commission, its directors, officials, officers, employees and agents for losses
paid under the terms of the insurance policy which arise from work performed by the
Consultant.
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(d) All Coverages.
(i) Defense costs shall be payable in addition to the limits
set forth hereunder.
(ii) Requirements of specific coverage or limits contained in
this Section are not intended as a limitation on coverage, limits, or other requirement, or a
waiver of any coverage normally provided by any insurance. It shall be a requirement
under this Agreement that any available insurance proceeds broader than or in excess of
the specified minimum insurance coverage requirements and/or limits set forth herein shall
be available to the Commission, Caltrans and their directors, officials, officers, employees
and agents as additional insureds under said policies. Furthermore, the requirements for
coverage and limits shall be (1) the minimum coverage and limits specified in this
Agreement; or (2) the broader coverage and maximum limits .f coverage of any insurance
policy or proceeds available to the named insured; which is greater.
(iii) The limits of insura re. `-;,'. ed in this Agreement may
be satisfied by a combination of primary and umbrel r excess '':' urance. Any umbrella or
excess insurance shall contain or be endorsed onta. a prow'` 'i n that such coverage
shall also apply on a primary and non-contribu ba ' or the benefit of the Commission
(if agreed to in a written contract or agreement) be e Commission's own insurance or
self-insurance shall be called upon to pr 't as a ed insured. The umbrella/excess
policy shall be provided on a "following coverage at least as broad as
provided on the underlying policy(ies).
(30) days prior written noti
except that the Consultant s
cancellation of any s
coverage is cancell
deliver renewal cert
to the Commission a
expiration.
hall provide the Commission at least thirty
f any policy required by this Agreement,
ovide least ten (10) days prior written notice of
to non-payment of premium. If any of the required
the term of this Agreement, the Consultant shall
ing the General Liability Additional Insured Endorsement
10) days prior to the effective date of cancellation or
(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.
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(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.
31.6 Deductibles and Self -Insurance Retenti • ns. Any deductibles or self -
insured retentions must be declared to and approve.; the Commission. If the
Commission does not approve the deductibles or self,. ed retentions as presented,
Consultant shall guarantee that, at the option of the (4m on, either: (1) the insurer
shall reduce or eliminate such deductibles or s- nsured tions as respects the
Commission, its directors, officials, officers, em s eesnd agen or, (2) the Consultant
shall procure a bond guaranteeing payment c, „ .s ' and related investigation costs,
claims and administrative and defense expense.
31.7 Acce•tabilit of Ins
a current A.M. Best's rating no less than
satisfactory to the Commission
31.8 Verific
original certificates of insuran
Agreement on forms
for each insuranc
coverage on its be
by the Commission
require complete, certifi
is to be placed with insurers with
d to do business in California, and
Consultant shall furnish Commission with
d en.. ements effecting coverage required by this
he Commission. The certificates and endorsements
ed by a person authorized by that insurer to bind
ates and endorsements must be received and approved
commences. The Commission reserves the right to
ies of all required insurance policies, at any time.
31.9 Subconsultant Insurance Requirements. Consultant shall not allow
any subcontractors or subconsultants to commence work on any subcontract until they
have provided evidence satisfactory to the Commission that they have secured all
insurance required under this Section. Policies of commercial general liability insurance
provided by such subcontractors or subconsultants shall be endorsed to name the
Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement
providing the exact same coverage. If requested by Consultant, the Commission may
approve different scopes or minimum limits of insurance for particular subcontractors or
subconsultants.
31.10 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
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277
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.
32. 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 devic , equipment and wearing
apparel as are necessary or lawfully required to preven, = cidents or injuries; and (C)
adequate facilities for the proper inspection and maint of all safety measures.
Pursuant to the authority contained in Section 59 : "the Vehi Code, the Commission
has determined that the Project will contain area : ` at ar- open to blic traffic. Consultant
shall comply with all of the requirements set fo `; D .tons 11, 12, 13, 14, and 15 of the
Vehicle Code. Consultant shall take all reaso y necessary precautions for safe
operation of its vehicles and the protects :,; _ he tra W g public from injury and damage
from such vehicles.
33. Additional Work.
outside of, the Services to
performed pursuant to a se
foregoing, the Commissi
other than a Cardinal
change which is "o
not be regarded as
parties when the Agre
Cardinal Change would
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 4220.1 D, paragraph 9(f).
tivities that are in addition to, or otherwise
rsuant to this Agreement shall only be
etween the parties. Notwithstanding the
tive Director may make a change to the Agreement,
urposes of this Agreement, a Cardinal Change is a
the Agreement; in other words, work which should
fairly and reasonably within the contemplation of the
entered into. An example of a change which is not a
ere, in a contract to construct a building there are many
(a) In addition to the changes authorized above, a
modification which is signed by Consultant and the Commission's Executive Director, 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").
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(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.
34. Prohibited Interests.
34.1 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 Co ission shall have the right
to rescind this Agreement without liability.
34.2 Consultant Conflict of Interest
(a) Consultant shall di
relationship with Commission that may ha
Agreement, or any ensuing Commission constr
current clients who may have a financial -st in
ensuing Commission construction projec
y finan I, business, or other
act upon the outcome of this
project. Consultant shall also list
utcome of this Agreement, or any
w.
(b) Cons here 1'`r ertifies that it does not now have, nor shall it
acquire any financial or buss r ..< rest
services under this Agreem
t would conflict with the performance of
(c s►n..ontract in excess of $25,000 entered into as a result of
this Agreement, sh provisions of this Article.
Itant hereby certifies that neither Consultant, nor any firm
affiliated with Consultan ;^ on any construction contract, or on any contract to provide
construction inspection for construction project resulting from this contract. An affiliated
firm is one, which is subject to the control of the same persons through joint -ownership, or
otherwise.
(e) Except for subconsultants whose services are limited to
providing surveying or materials testing information, no subconsultant who has provided
design services in connection with this contract shall be eligible to bid on any construction
contract, or on any contract to provide construction inspection for any construction project
resulting from this contract.
34.3 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.
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34.4 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.
34.5 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, commis 'on, percentage, brokerage
fee, gift, or any other consideration, contingent upon esulting from the award or
formation of this Agreement. For breach or violation warranty, the Commission
shall have the right to terminate this Agreement w't %ut li. ,'.ity pursuant to the terms
herein, or at its discretion to deduct from the eement e or consideration, or
otherwise recover, the full amount of such fee mmi ion, per ntage, brokerage fee,
gift, or contingent fee.
34.6 Rebates Kickbac .§ _ :ether .�L -wful Consideration. Consultant
warrants that this Agreement was not o ed through rebates kickbacks or
other unlawful consideration, either •rom • p o any Commission employee. For
breach or violation of this warr •m •.ion shall have the right in its discretion; to
terminate this Agreement w li.. . lity; t• gay only for the value of the work actually
performed; or to deduct fro - ice; or otherwise recover the full amount of
such rebate, kickback o •he awful consideration.
34.7 ''` ovens ga t Expenditure of Commission, State or Federal
Funds for Lobb in•' he Conk. Itant certifies that to the best of his/ her knowledge and
belief no state, federa loca •ency appropriated funds have been paid, or will be paid
by or on behalf of the Co t to any person for the purpose of influencing or attempting
to influence an officer or e ' ployee 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 "G", Standard
Form-LLL, "Disclosure Form to Report Lobbying," in accordance with the attached
instructions.
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(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.
(c) The Consultant also agrees by signing this Agreement that
he/she shall require that the language set forth in this Section 3.23.5 be included in all
Consultant subcontracts which exceed $100,000, and that all such subcontractors shall
certify and disclose accordingly.
34.8 Employment Adverse to the Commissio Consultant shall notify the
Commission, and shall obtain the Commission's written co► nt, prior to accepting work to
assist with or participate in a third -party lawsuit or other ; ,or administrative proceeding
against the Commission during the term of this Agre
35. Equal Opportunity Employment.
opportunity employer and it shall not discrimin
applicant for employment because of race, religio
age. Such non-discrimination shall incl •ut no
initial employment, upgrading, demotion,
layoff or termination.
nt repre is that it is an equal
any subcontractor, employee or
or, national origin, ancestry, sex or
limited to, all activities related to
ent or recruitment advertising,
36. Right to Em • lo Commission reserves the right to employ
other consultants in connec
37. Govern! h • reement shall be governed by and construed with the
laws of the State of. f; ifornia en �, shall be in Riverside County.
38. Dispute ",ttorne ' Fees.
38.1 Prior ommencing 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.
38.2. 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.
39. Time of Essence. Time is of the essence for each and every provision of this
Agreement.
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40. 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.
41. 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:
Epic Land Solutions, Inc.
3850 Vine Street, Suite. 200
Riverside, CA 92507
Attn: Karen Starr
COMMISSION:
Riverside County
Transportation Commission
4080 Lemon Street, 3rd Floor
River ;de, CA 92501
Att . '1' xecutive Director
Such notice shall be deemed made when personally d ver 1.r when mailed, forty-eight
(48) hours after deposit in the U.S. mail, first class .' ` "tage pre+ :,•, and addressed to the
Party at its applicable address. Actual notice sh .e de-med ad r'° ate notice on the date
actual notice occurred, regardless of the meth. +f s ice.
42. Conflicting Provisions. In tt
conflict in any way with the provisions set
conditions contained in this Agreement s
Parties and the interpretation of
the Services.
ovisions of any attached exhibits
ement, the language, terms and
he actions and obligations of the
derstanding concerning the performance of
43. Amendment or '` ation. o supplement, modification, or amendment of
this Agreement shall s executed in writing and signed by both Parties.
44. Entire °<--.areemen `, ' This Agreement contains the entire agreement of the
Parties relating to th u,"matter hereof and supersedes all prior negotiations,
agreements or understa
45. 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.
46. Provisions Applicable When State Funds or Federal Funds Are Involved.
When funding for the Services under a Task Order is provided by this Agreement are
provided, in whole or in part, from the United States Department of Transportation,
Consultant shall also fully and adequately comply with the provisions included in Exhibit
"D" (Federal Department of Transportation Requirements and California Department of
Transportation (Caltrans) DBE program 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
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282
provisions included in Exhibit "F" (FTA Requirements) attached hereto and incorporated
herein by reference
47. 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.
48. No Third Party Beneficiaries. There are no intended third party beneficiaries
of any right or obligation assumed by the Parties.
49. 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' Compe sation or to undertake self-
insurance in accordance with the provisions of that Code, .. 3 `agrees to comply with such
provisions before commencing the performance of the ces.
50. Counterparts. This Agreement may b--.'gned in nterparts, each of which
shall constitute an original.
51. Attorney Client Privilege. The Pa ognize that, during the Project, the
Commission and its attorneys will engag=;.' comm ► ' '; ation that gives rise to an attorney
client privilege of confidentiality (" Confid m ' i ,. m ation"). Given the nature of the
work done by Consultant for the Commis ` 'e necessary for the Consultant to
participate in Confidential Comm i ions `'• the extent that (i) the Consultant is a party
to any Confidential Commu .tion and a third party seeks discovery of such
communications, then the C. ulta • seemed to be an agent of the Commission
solely for purposes of presery a o =y client privilege in the relevant Confidential
Communication. Any - or client privilege shall be held by the Commission and
the Consultant is autho d aive that privilege or, otherwise, disclose such
Confidential Comm t as set forth below. This Section is intended to maintain
the privilege in any lege• '` onfidential Communications that are (1) between and
among Commission, Co and Commission's attorneys; (2) between Consultant (on
behalf of the Commission) d Commission's attorneys; (3) Confidential Communications
that occur in Closed Session meetings wherein the Commission, the Commission's
attorneys and Consultant are present; and (4) between Commission and Consultant
wherein the substance of the Confidential Communication is conveyed to/from the
Consultant.
Consultant may disclose a Confidential Communication to the extent such
disclosure is required by legal process, by a court of competent jurisdiction or by any other
governmental authority, provided that any such disclosure shall be limited to the specific
part of the Confidential Communication required to be disclosed and provided that
Consultant first comply with the requirements set forth in this paragraph. As soon as
practicable after Consultant becomes aware that it is required, or may become required, to
disclose the Confidential Communication for such reason, Consultant shall notify the
Commission in writing, in order to allow the Commission to pursue legal remedies designed
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283
to limit the Confidential Communication required to be disclosed or to assure the
confidential treatment of the disclosed information following its disclosure. Consultant shall
cooperate with the Commission, on a reimbursable basis, to assist the Commission in
limiting the scope of disclosure or assuring the confidential treatment of any disclosed
information.
52. 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.
53. 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.
54. 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.
55. Incorporation of Recitals. The recitals set forth above are true and correct
and are incorporated into this Agreement as though fully set forth herein.
56. 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.
[Signatures on following page]
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284
SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH PROPOSITION 1 B, FTA AND FHWA FUNDING ASSISTANCE FOR
RIGHT OF WAY SUPPORT SERVICES
IN WITNESS WHEREOF, this Agreement was executed on the date first written
above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
CONSULTANT
EPIC LAND SOLUTIONS, INC.
By:
Anne Mayer
Approved as to Form:
By:
i natur
me
. Ie
Best, Best & Krieger L
General Counsel
ATTEST:
By:
Its:
* A corporation requires the signatures of two corporate officers.
One signature shall be that of the chairman of board, the president or any vice president and the second
signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or
any assistant treasurer of such corporation.
If the above persons are not the intended signators, evidence of signature authority shall be provided to
RCTC.
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285
EXHIBIT "A" - SCOPE OF SERVICES
RIGHT OF WAY SUPPORT SERVICES
The Riverside County Transportation Commission (Commission) and the Western
Riverside County Regional Conservation Authority (RCA) have procured one or more
Consultants (Consultant or Right of Way Support Services Consultant) to provide Right
of Way Support Services on an On-Call/as needed basis in support of current
Commission and RCA Projects, Measure A Projects, and projects done in partnership
with other agencies, pursuant to Task Orders issued in the sole discretion of the
Commission and/or the RCA.
Task Orders shall be awarded through an additional qualification -based selection
process.
Such Right of Way Support Services mayinclude, b •ot limited to, the following
work programs, and/or comply with applicable re me elow:
• Project Management
Consultant shall provide project ma ent services for all functions and
tasks under this contract. •nsulta hall be responsible for project
management and planning, . g, st estimates, budgeting, and
coordination with Consultan . r .. mission and/or RCA staff, sub
consultants and oth ission and/or RCA consultants, reporting,
documentation of.,:: acti ies • maintaining all records and documents.
Consultant shal .n, :cilitate and prepare meeting minutes for
regular and/or pe status eetings as requested by the Commission
and/or th= ultant shall ensure project completion based on
milestorr and d- lin- nd that all work complies with applicable Federal,
State a u,,•cal stat and regulations, including but not limited to the Uniform
Relocatio ,d R- ' Property Acquisition Policies Act of 1970, as amended,
and implem in .y 49 CFR Part 24; the State of California Government
Code, the Sta `- of California Relocation Assistance and Real Property
Acquisition Guidelines (Title 25, California Code of Regulations Ch 6, Art 1,
Section 6000 et seq.), the California Code of Civil Procedure, the Uniform
Standards for Federal Land Acquisition Act, the California Public Utilities Code,
the California Streets and Highways Code, the Federal Transit Administration
Real Estate Policies, the Caltrans Right of Way Manual, and the Commission's
and the RCA's Right of Way Manual.
• Title & Escrow Services
Consultant shall order preliminary title reports, vesting deeds, title policies, and
litigation guarantees as needed, coordinate opening and closing of escrows,
monitor progress, determine title deficiencies, provide assistance to resolve
and cure title deficiencies, and assist in obtaining any partial reconveyances.
Exhibit A
286
• Appraisal Coordination
Consultant shall coordinate with the Commission's and the RCA's on -call
appraisal, appraisal review, goodwill, and fixtures and equipment consultants
to perform internal review of appraisals prior to submittal to Review Appraiser.
• Acquisition/Negotiation
Consultant shall provide all acquisition services, including, but not limited to,
coordinating all phases of the acquisition, assuring that acquisition schedules
meet project schedules, documenting all activity, and maintaining all records
and documents. Consultant shall prepare all written correspondence, any
administrative settlements, and shall coordinate with Commission's and/or
RCA's legal counsel and any other on -call consultants as required. Consultant
shall prepare acquisition packages, including recommendation of the amount
of just compensation or market value, and maintain parcel diaries for each file.
• Relocation Assistance
Consultant shall provide relocation services to assure that displaced individuals
and businesses promptly receive relocation benefits consistent with federal,
state, and local regulations, Caltrans Policies and Procedures, and the
Commission's and/or the RCA's Right of Way Policies and Procedures.
• Utility Relocation Coordination
Consultant shall work with Commission and/or RCA staff and other
participatin• agencies to provide utility relocation services that may include, but
not be I',,: ; ed to, identifying public and private utilities, researching and
identif " + prior rights, obtaining utility as -built plans, coordination of potholing
and field eys with the design team, preparation of utility agreements, and
obtaining r .ti•° plans and cost estimates from the utility owners.
• Eminent Domain Coordination
Consultant shall coordinate, assist and participate as required with
Commission and Commission's legal counsel in the activities required for
Resolutions of Necessity, Caltrans's Condemnation Evaluation and Panel
Review Meetings, mediations, depositions and trials.
• RCA Property Owner Outreach
Consultant shall prepare mailings to various properties for land necessary for
conservation efforts, as an example, Willing Seller, Habitat Acquisition and
Negotiation Strategies (HANS), Grant Funded requiring Department of General
Services approvals, and Donation acquisitions.
Exhibit A
287
• Property Management
Consultant shall perform property management activities related to acquired
properties until construction start, including but not limited to, property
maintenance, repair, coordination of rental activities, demolition, and clearance
of property improvements.
• Property Maintenance and Repair Services
Consultant shall perform property maintenance and repair services, including
but not limited to, weed abatement and vegetation control, litter removal and
clean-up of debris, fencing repairs, and installation, maintenance, and repair of
property signs related to property owned by Commission or RCA.
• Right of Way Certification
Consultant shall ensure that all right of
by the date required. Consultant sha
forms and assemble and package
Caltrans. Consultant shall respond
• Construction Support
•
A"'
'requirements have been secured
epare the Right of Way Certification
ing documents for submittal to
mments and revise as necessary.
Consultant shall assist Commission and/or RCA in all phases of construction,
including Temporary Construction Easement notifications, preparing and
providing Right of Way Obligation lists, utility coordination, and contractor
compliance with Right of Way agreements.
Pro
Prepare proces onveyance deeds to transfer all acquired right of way to
Caltrans or ; ;-r d -party entities, if applicable. Process final utility invoices
and close ou ` ity files. Prepare files and submit to Caltrans and/or the
Commission or the RCA.
Other right of way services may include, but not be limited to the following:
o Obtaining Rights of Entry
o Preparing Railroad Agreements
o Review of Site Assessment Reports
o Provide bilingual acquisition and relocation agents
o Identify potential excess land for planning purposes
Exhibit A
288
EXHIBIT "B"
SAMPLE TASK ORDER FORM
ON --CALL RIGHT OF WAY SUPPORT SERVICES
REQUEST FOR TASK ORDER PROPOSAL
Background
The Riverside County Transportation Commission (the "Commission") issued Request for Proposal
No. 19-31-045-00 (the "RFP"), on January 17, 2019, to seek out a bench of qualified consultants to
provide on -call right of way support services. Pursuant to the RFP, the Commission selected
qualified firms to serve as on -call consultants for various t of way support services
("Consultants"). The RFP specified that the Commission w ek proposals from the selected
The selected firms are:
firms for right of way support consulting projects, a
ee
This Right of Way Support Services Request for Ta i rde • posal ("Task Order RFP") seeks the
following services:
Process Timeline
The Commission intends to awa l/transi operations consulting services task order for the
above described services ("Task Order") pursuant to this Task Order RFP to the highest ranked
proposal, subject to l itations, i cordance with the following timeline:
a. Requests for Clarificati
The deadline for requLsts for clarification regarding this Task Order RFP is (INSERT
DATE). Requests for clarification shall be submitted via email to
b. Proposal Deadline Date
i. The Commission will accept proposals submitted to the Commission office prior to
(INSERT DATE and Time).
ii. Proposals must be submitted to
in format.
Submittal Requirements
Each proposal submitted in response to this Task Order RFP must include the following information
in the order specified below.
Exhibit B-1
289
The proposal content and format is as follows:
a. Proposals shall be typed and submitted on 8.5 x 11 inch paper. Charts and schedules may
be included in 11" x 17" format, which will be counted as 2 pages and included in the total
page count. Proposals should not exceed pages in length, excluding any RCTC-provided
forms or attachments. The beginning of a section must be clearly indicated between sections
on a page.
b. Proposals must include the following sections, organized as indicated.
SECTION 1— PROPOSAL LETTER
Proposal Letter: This letter must be signed by a person or persons authorized to
legally bind the Consultant to enter into the sk Order.
SECTION 2 — QUALIFICATIONS ( IRM A RSONNEL
This section should identify the qua li' icatio,of the firm, the individuals and any
subconsultants proposed to •rovide the Task Order services. These must be
individuals proposed by Con ' the nal RFP.
ii. Provide qua atio regarding your firm's and the proposed
personnel's a ation descriptions of relevant projects previously
perform . nd re nces this particular Task Order RFP, including:
(A) exper = of your firm in performing similar services, and examples of such
ices, including references. Include any information that may be of value
the Comm': sioi n evaluating your firm's qualifications for the Task Order
ces;
ey person who will perform the required services and their key
(C) descriptions of the experience and qualifications of proposed key
personnel;
(D) descriptions of relevant projects previously performed by the proposed
key personnel. Include what services were performed, the date of the project,
and unique features of the project which would be beneficial to the
Commission; and
(E) a written assurance that the key individuals listed and identified will
perform the work and will not be substituted with other personnel without the
Commission's prior approval.
Exhibit B-2
290
SECTION 3 — UNDERSTANDING AND APPROACH
Describe the services and activities that your firm proposes to provide to the
Commission. Include the following information:
Demonstrate your firm's understanding of the nature of the work and the approach to
be taken. Provide an explanation of the approach to providing the services requested
under this Task Order RFP. Describe how Consultant would tailor its services to
meet the needs of the Commission addressing the tasks and discussing the
deliverables. Include a detailed proposed timeline for completing the services.
Provide a list of documents and/or information your firm anticipates needing from
the Commission and its consultants to perform the ices.
SECTION 4 — PROPOSAL PRICING
Proposal Pricing Form. Provide a propoossed price
is Task Order request.
Pricing shall itemize all items that will be charged to t Task Order, including
anticipated mileage, printing or other direct cost categories previously identified in
your firm's Schedule of Other Direct Costs. Costs shall be segregated to show staff
hours, rates, classifications, administrative ov -head, and other direct costs, if any.
Hourly rates must not exceed rates for classifications noted in the original RFP
Evaluation Process
a. Basis of Award
Proposals will be evaluated in accordance with the stated evaluation criteria. The Commission
reserves the right to award the contract not to a proposer with the highest ranked proposal, but to the
proposal who will provide the best veratmatch to the task order requirements. The Commission
also reserves the right to postpone a ecision, request follow up material, or cancel or withdraw this
request in its sole and absolute discretion. The Commission will award the Task Order to the best
overall match to the Task Order RFP requirements and who serves the Commission's interest.
b. Evaluation Criteria —100 total points possible
1. Qualifications of Firm and Personnel (INSERT NUMBER points max)
Experience in performing work similar in nature and/or related to the work
described in this Task Order RFP; appropriateness of personnel to their
assigned work tasks; logic of project organization; adequacy of labor
commitment.
Exhibit B-3
291
2. Understanding & Approach (INSERT NUMBER points max)
Depth of Offeror's understanding of Commission's requirements listed in this
Task Order RFP; understanding of the project issues and potential conflicts;
and ability to meet deadlines.
3. Cost (INSERT NUMBER points max)
Reasonableness of the total cost based on anticipated requirements; adequacy
of data in support of figures quoted; basis on which prices are quotes.
Proposer Price Score = Lowest Price Proposed X Points
Proposer's Price
Commission Rights
i
a) The Commission shall not be liable for proposal pation related expenses.
b) The Commission retains the right to negoti
chooses not to accept the proposal as offere
c) The Commission retains the right to consi
comply with federal and/or state law.
d) The Commission retains ti ght to
thereof, at its discretion.
ith the highest scoring Consultant if it
y other factors it deems necessary to
or -ject any and all proposals, or any part
e) The Commission reta he right to Oncel, amend or withdraw the entire Task Order
RFP.
VI. Notification nd Debriefi g
Consultants submitting a proposal pursuant to this Task Order RFP shall be informed of the
Commission's decision regarding award of the Task Order. Any Consultant not awarded a Task
Order pursuant to this Task Order RFP may request an explanation regarding the strengths and
weaknesses of its proposal. Such request must be made within ten (10) days of notification of
Task Order award.
Exhibit B-4
292
EXHIBIT "C"- COMPENSATION AND PAYMENT
Exhibit C-1
293
EXHIBIT "C"
COMPENSATION SUMMARY
FIRM
PROJECT TASKS/ROLE
COST
Prime Consultant:
Epic Land Solutions, Inc.
Right of Way Support Services
$ 3,300,000.00
Sub Consultants:
Commonwealth Land Title Insurance Company
Title Services
TBD per Task Order
Golden State Escrow
Escrow Services
TBD per Task Order
The ROW Company
Right of Way
TBD per Task Order
Joshua Grading & Excavating, Inc.
Property Maintenance
TBD per Task Order
Bess Testlab, Inc.
Utility Locating & Potholing
TBD per Task Order
UltraSystems Environmental Inc.
Phase 1 & 2 Environmental Site Assessments
TBD per Task Order
OTAL COSTS
t 3,300,000.00
1 Commission authorization pertains to total contract award amount. npensatioi 'ustments between consultants may occur;
however, the maximum total compensation authorized may not be exceeded.
294
EXHIBIT "D"
FHWA/ CALTRANS REQUIREMENTS
1. 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
unlawfully discriminate, harass, or allow harassment against any employee or applicant for
employment because of sex, race, color, ancestry, religious r,-ed, national origin, physical
disability (including HIV and AIDS), mental disability, med.
(over 40), marital status, and denial of family care leav
shall insure that the evaluation and treatment of
employment are free from such discriminati
subconsultants shall comply with the provision
(Gov. Code §12990 (a -f) et seq.) and the applic
(California Code of Regulations, Title 2, Section 7
of the Fair Employment and Housing Co ��� �� imp
12990 (a -f), set forth in Chapter 5 of
Regulations, are incorporated into
if set forth in full. Consultant
obligations under this claus
bargaining or other Agreeme
C. If this Agree
relative to Title VI
Transportation — Titl
the 1964 Civil Rights A
condition (e.g., cancer), age
sultant and subconsultants
e `"�� r. ees and applicants for
hara Gw ent. Consultant and
r Employment and Housing Act
ulations promulgated there under
et seq.). The applicable regulations
enting Government Code Section
Ale 2 of the California Code of
t by eference and made a part hereof as
sultants shall give written notice of their
ations with which they have a collective
nded, the Consultant shall comply with regulations
ion federally -assisted programs of the Department of
Federal Regulations, Part 21 - Effectuation of Title VI of
I provides that the recipients of federal assistance will
implement and maintain icy 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.
D. If this Agreement is federally funded, the Consultant, with regard to the work performed
by it during the Agreement shall act in accordance with Title VI. Specifically, the Consultant
shall not discriminate on the basis of race, color, national origin, religion, sex, age, or
disability in the selection and retention of Subconsultants, including procurement of
materials and leases of equipment. The Consultant shall not participate either directly or
indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT's Regulations,
including employment practices when the Agreement covers a program whose goal is
employment.
Exhibit D-1
295
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 rec
considered in determining CONSULTANT responsibil',, Disc
exceptions apply, initiating agency, and dates of
C. Exceptions to the Federal Government Exclu
General Services Administration are to be
Administration.
3. DISCRIMINATION
The Commission shall not di
the award and performance
Caltrans DBE program
all necessary and re
the award and ad
dation for award, but will be
es must indicate to whom
es List System maintained by the
mined by the Federal highway
sis of race, color, national origin, or sex in
ed contract or in the implementation of the
ments of 49 CFR Part 26. The Commission shall take
der 49 CFR Part 26 to ensure nondiscrimination in
0 -assisted contracts.
Consultant or subcont ` ..r - :11 not discriminate on the basis of race, color, national
origin, of sex in the perfor i e 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.
4. PROMPT PAYMENT
Consultant agrees to pay each subcontractor under this prime contract for satisfactory
performance of its contract no later than 10 days from the receipt of each payment the
prime contractor receives from the Commission. Any delay or postponement of payment
from the above referenced time frame may occur only for good cause following written
Exhibit D-2
296
approval of the Commission. This clause applies to both DBE and non -DBE
subcontractors.
5. RELEASE OF RETAINAGE
No retainage will be withheld by the Agency from progress payments due the prime
consultant. Retainage by the prime 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 prime 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 the prime
consultant or subconsultant in the event of a dispute involving late payment or nonpayment
by the prime consultant or deficient subconsultant perform e, or noncompliance by a
subconsultant. This provision applies to both DBE and BE prime consultants and
subconsultants.
6. LEGAL REMEDIES
In addition to those contract remedies set forth
either Party to this Agreement may, where applica
this Agreement pursuant to the relevan 'ons
relevant federal or state statutory provisi
relevant federal and state provisio
well as any and all other applic
The Consultant shall include
subcontractors.
7. DBE PART
evant provisions of California law,
seek legal redress for violations of
C.F.R. Parts 23 and 26, to the
civil rights violations, and to the
alse aims or "whistleblower" actions, as
state provisions of law.
is effect in each of its agreements with its
Caltrans has develope• st. ide DBE program pursuant to 49 C.F.R. Part 26. The
requirements and proce•to<= , 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 Exhibits "E" of this Agreement in compliance with the
Caltrans DBE program, a final utilization report in the form provided by the Commission,
and any other Caltrans required DBE forms.
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." By obtaining DBE participation on this
Agreement, Consultant will assist Caltrans in meeting its federally mandated statewide
overall DBE goal.
B. This Agreement does not have a DBE goal, but DBE goals may be included with
each task order request for proposals. If a DBE subconsultant is unable to perform, the
Exhibit D-3
297
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. 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.
D. Any subcontract entered into as a result of this Ag ment shall contain all of the
provisions of this section.
E. A DBE may be terminated only with prior wr n approva the Commission and
only for the reasons specified in 49 CFR 26.53 rior equesti Commission consent
for the termination, the prime consultant must m tf rocedural requirements specified
in 49 CFR 26.53(f).
8. DBE PARTICIPATION GENERAL
It is Consultant's responsibility e y info;' ed regarding the requirements of 49 CFR,
Part 26, and the Caltrans D rogr �Pa `` ular attention is directed to the following:
A. A DBE must be •call iness firm defined pursuant to 13 CFR 121 and be
certified through the ' . ifor ni Certification Program (CUCP).
B. A certified DB
pate as a prime contractor, subcontractor, joint venture
partner, as a vendor o er' or supplies, or as a trucking company.
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 8 below.
Exhibit D-4
298
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.
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 materi..,r;. and supplies used on the
Agreement, for negotiating price, determining quality and; "'iantity, ordering the material,
and installing (where applicable) and paying for the mat- elf. To determine whether a
DBE is performing a commercially useful functi eva i e the amount of work
subcontracted, industry practices; whether the a! y' nt the fir to be paid under the
Agreement is commensurate with the work it ctua,R;. perform g, and other relevant
factors.
B. A DBE does not perform a comm
an extra participant in a transaction, Agre
in order to obtain the appearance ,•. ! BE
such an extra participant, exami
not participate.
C. If a DBE does no
total cost of its Agre
portion of the wor
industry practice for
commercially useful fu
ction if its role is limited to that of
e t through which funds are passed
pati.` In determining whether a DBE is
actions, particularly those in which DBEs do
exercise responsibility for at least thirty percent of the
n work force, or the DBE subcontracts a greater
me than would be expected on the basis of normal
rk involved, it will be presumed that it is not performing a
10. DBE CERTIFICATION AND DE -CERTIFICATION STATUS
If a DBE subcontractor is decertified during the life of the Agreement, 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 or vendor and the total dollar amount actually paid each
Exhibit D-5
299
DBE or vendor, 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.
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 twenty-
five percent (25%) of the dollar value of the invoice being withheld from payment until the
form is submitted. The 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 e C•' mission's Contract Administrator
documentation showing the truck number, e of owner, California Highway Patrol CA
number, and if applicable, the DBE certifica number of the truck owner for all trucks
used during that month. This documentationishall 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
Exhibit D-6
300
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. REPORTING PARTICIPATION OF DBE TRUCKING COMPANIES
When Reporting DBE Participation, Participation of DBE trucking companies may count as
follows:
A. The DBE must be responsible for the management and supervision of the entire
trucking operation for which it is responsible.
B. The DBE must itself own and operate at least one fully licensed, insure, and
operational truck used on the AgreeVnt.
C. The DBE receives credit r the total value of the transportation services it provides
on the Agreement using c owns, insures, and operates using drivers it employs.
D. The DBE may lease trucks from another DBE firm including an owner -operator who
is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the
total value of the transportation services the lessee DBE provides on the Agreement.
E. The DBE may also lease trucks from a non -DBE firm, including an owner -operator.
The DBE who leases trucks from a non -DBE is entitled to credit only for the fee or
commission it receives as a result of the lease arrangement. The DBE does not receive
credit for the total value of the transportation services provided by the lessee, since these
services are not provided by the DBE.
F. For the purposes of this section, a lease must indicate that the DBE has exclusive
use and control over the truck. This does not preclude the leased truck from working for
others during the term of the lease with the consent of the DBE, as long as the lease gives
Exhibit D-7
301
the DBE absolute priority for use of the leased truck. Leased trucks must display the name
and identification number of the DBE.
14. DEBARMENT, SUSPENSION AND OTHER INELIGIBILITY AND VOLUNTARY
EXCLUSION
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 iss ALP. compince with the Energy Policy and
Conservation Act (Pub. L. 94-163, 89 Sta
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.
Exhibit D-8
302
EXHIBIT "E"
CONSULTANT DBE COMMITMENT
Exhibit E-1
303
Local Assistance Procedures Manual
Exhibit 10-01
Consultant Proposal DBE Commitment
1. Local Agency:
EXHIBIT 10-01 CONSULTANT PROPOSAL DBE COMMITMENT
Riverside County Transportation Commission (RCTC)
3. Project Description:
On -Call Right of Way Support Services
2. Contract DBE Goal:
12% DBE
4. Project Location: Various Locations, Riverside County
5. Consultant's Name: Epic Land Solutions, Inc. 6. Prime Certified DBE: ❑
7. Description of Work, Service, or Materials
Supplied
8. DBE
Certification
Number
9. DBE Contact Information
10. DBE %
Utility locating and excavation services
(potholing)
DBE CPUC #34267
BESS Testlab, Inc., 1508 E Francis St
Ontario, CA 91761, (909) 510-5535
3.00
Escrow services
DBE CPUC #44077
Golden State Escrow, 10630 Town Center Dr, Ste
119, Rancho Cucamonga, 91730, (909) 777-3500
3.00
Right of way acquisition and relocation assistance
agent services
DBE CPUC 447336
The ROW Company. 680 East Colorado Blvd.,
Pasadena, CA 91101, (626) 314-2440
3.00
Environmental consulting services, including
Phase 1 and 2 Environmental Site Assessments
DBE CPUC #25485
UltraSystems Environmental Inc., 16431
Scientific Wy, Irvine, CA 92618, (949)788-4900
3.00
ill iiiiiIIIIIP
, \
Local Agency to Complete
11. TOTAL CLAIMED DBE PARTICIPATION
12.00
%
17. Local Agency Contract Number:
18. Federal -Aid Project Number:
19. Proposed Contract Execution Date
20. Consultant's Ranking after Evaluation
IMPORTANT: Identify all DBE firms being claimed for credit,
regardless of tier. Written confirmation of each listed DBE is
required.
gAeh.2241-) 03/25/2022
Local Agency certifies that all DBE certifications are valid and information on
this form is complete and accurate. ',./
12. Preparer's Signature 13. Date
Karen Starr (951) 321-1834
14. Preparer's Name 15. Phone
President
16. Preparer's Title
DISTRIBUTION: Original — Included with consultant's proposal to local agency.
ADA Notice: For individuals with sensory disabilities, this document is available in altemate formats. For information call (916) 654-6410 or TDD (916) 654-
3880 or write Records and Forms Management, 1120 N Street, MS -89, Sacramento, CA 95814.
LPP 18-01
Page 1 of 2
January 2019
304
EXHIBIT "F" - FTA PROVISIONS
Exhibit F-1
305
FEDERAL TRANSIT ADMINISTRATION REQUIREMENTS
Notwithstanding anything to the contrary contained in the Agreement, including
the other Exhibits attached thereto, the following provisions shall apply if funding for the
Services is provided, in whole or in part, from the Federal Transit Administration ("FTA").
In addition, the exhibits attached to this Agreement, may be replaced and substituted
with similar forms required by FTA. Consultant agrees to complete any such substitute
forms.
1. NO FEDERAL GOVERNMENT OBLIGATIONS TO THIRD -PARTIES
BY USE OF A DISCLAIMER
(1) The Commission and Consultant ackno
notwithstanding any concurrence by the Federal
the solicitation or award of the underlying co
consent by the Federal Government ("Gove
not a party to this contract and shall not
to the Commission, Consultant, or any
contract) pertaining to any matter resultin
(2) The Consultant agrees to
financed in whole or in part with F
agreed that the clause s
who will be subject to
ledge and agree that,
vernment in or approval of
absent the express written
Federal Government is
ubject to a ",+bligations or liabilities
(whether or not a party to that
the underlying contract.
ve clause in each subcontract
nce provided by FTA. It is further
dified, except to identify the subconsultant
2. PROGRA ND FALSE OR FRAUDULENT STATEMENTS
AND RELATED AC
(1) The Consulta ": `' acknowl = ';� es ' hat the provisions of the Program Fraud Civil
Remedies Act of 1
ended, 31 U.S.C. §§ 3801 et seq. and U.S. DOT
regulations, "Program • " ``vil Remedies," 49 C.F.R. Part 31, apply to its actions
pertaining to this Project. - pon 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.
1 UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL TRANSIT ADMINISTRATION MASTER
AGREEMENT For Federal Transit Administration Agreements authorized by 49 U.S.C. chapter 53, Title 23, U.S.C. (Highways),
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, the National Capital Transportation Act of 1969,
as amended, the Transportation Equity Act for the 21st Century, as amended, 23 U.S.C. § 101 note, or other Federal enabling
legislation; FTA MA(14); October 1, 2007; [http://www.fta.dot.qov/documents/14-Master.pdfl.
APPENDIGK N - 1
(2) The Consultant also acknowledges that if it makes, or causes to be made,
a false, fictitious, or fraudulent claim, statement, submission, certification,
assurance, or representation 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. chapter 53
or any other Federal law, the Government reserves the right to impose the
penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5323(1) on the Consultant, to the
extent the Federal Government deems appropriate.
(3) 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 provision
3. ACCESS TO RECORDS
(1) The Consultant agrees to provide t e Commission, the FTA Administrator,
the U.S. Secretary of Transportation, the Comptroller General of the United
States or any of their authorized representatives access to all Project work,
materials, payrolls, and other data of the Consultant which are directly pertinent
to this contract as required by 49 U.S.C. § 5325(g).
(2) The Consultant agrees to permit any of the foregoing parties to reproduce
by any means whatsoever or to copy excerpts and transcriptions as reasonably
needed.
(3) The Consultant agrees 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 transmission of the final expenditure report, 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 the Commission, 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).
(4) The Consultant agrees to require its subcontractors and third party
contractors to provide the same.
4. FEDERAL CHANGES
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 Grant Agreement or Cooperative Agreement between the Commission
and the Federal Government
APPENDYX N - 2
("Grant Agreement or Cooperative Agreement"), 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 REQUIREMENTS
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000d et seq., U.S. DOT regulations, "Nondiscrimination in
Federally -Assisted Programs of the Department of Transportation — Effectuation of Title
VI of the Civil Rights Act," 49 C.F.R. Part 21, FTA Circular 4702.1A, "Title VI and Title VI
— Dependent Guidelines for Federal Transit Administration Recipients," May 13, 2007,
Federal transit law at 49 U.S.C. § 5332, the Consultant agrees that it will not
discriminate against any employee or applicant for employ► ;,-nt because of race, color,
creed, national origin, sex, age, or disability. In adds the Consultant agrees to
comply with applicable Federal implementing re• i. and other implementing
requirements FTA may issue.
(2) Equal Employment Opportunity - The
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin
Title VII of the Civil Rights Act, as
employment opportunity provi
employment opportunity r
regulations, "Office of Fede
Opportunity, Departm
Executive Order
Executive Order
Employment Opportu
statutes, executive orde
qual employment opportunity
nsultant agrees to comply with
U.S.C. § 2000e, and equal
.S.C. § 5332, and all applicable equal
.S. Department of Labor (U.S. DOL)
ompliance Programs, Equal Employment
" 41 C.F.R. Parts 60 et seq., (which implement
I Employment Opportunity," as amended by
mending Executive Order 11246 Relating to Equal
.S.C. § 2000e note), and with any applicable Federal
gulations, 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.
(3) Age - In accordance with the Age Discrimination in Employment Act, as amended,
29 U.S.C. §§ 621 through 634 and Federal transit law at 49 U.S.C. § 5332, the
Consultant agrees to refrain from discrimination against present and prospective
APPENDIX N - 3
employees for reason of age. In addition, the Consultant agrees to comply with any
implementing requirements FTA may issue.
(4) Disabilities - In accordance with section 102 of the Americans with Disabilities Act,
as amended, 42 U.S.C. § 12112, the Consultant agrees 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.
(5) DBE Program Compliance - The Commission has established a DBE Program
pursuant to 49 C.F.R. Part 26, which applies to FTA funded agreements. The
requirements and procedures of the Commission's DBE Program are hereby
incorporated by reference into this Agreement. Consultant shall complete Exhibits "G"
and "H" of this Agreement, or similar forms to be provided by the Commission, in
compliance with the Commission's DBE Program for FTA funded agreements. Failure
by Consultant or its subcontractor(s) to carry out the Commission's DBE Program
procedures and requirements, or the applicable requirements of 49 C.F.R. Part 26,
section 1101(b) of SAFETEA-LU, 23 U.S.C. § 101 note, and U.S. DOT regulations,
"Participation by Disadvantaged Business Enterprises in Department of Transportation
Financial Assistance Programs," 49 C.F.R. Part 26, shall be considered a material
breach of this Agreement. Such a material breach may be grounds for termination of
this Agreement or such other appropriate administrative remedy as the Commission
deems appropriate. The Consultant shall ensure that a provision mandating compliance
with the Commission's DBE Program for FTA funded agreements is included in any and
all sub -agreements entered into which arise out of or are related to this Agreement.
Consultant shall also promptly provide the Commission with all necessary information
related to the DBE status of its subcontractors. Should the DBE status of any of its
subcontractors change in any way, Consultant shall promptly inform the Commission of
this change.
(6) 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. TERMINATION PROVISIONS
The termination provisions found at Section 21 of this Agreement are consistent with the
termination provisions suggested by FTA for the protection of the Federal Government.
The termination provisions found at Section 21 of this Agreement control termination
under this Agreement.
APPENDgX N - 4
7. DEBARMENT AND SUSPENSION
Instructions for Certification
1. By signing and submitting a Proposal, the Consultant is providing the signed
certification set out below.
2. The certification in this clause is a material representation of fact upon which reliance
was placed when this transaction was entered into. If it is later determined that the
Consultant knowingly rendered an erroneous certification, in addition to other remedies
available to the Federal Government, Commission may pursue available remedies,
including suspension and/or debarment.
3. The Consultant shall provide immediate written noti
the Consultant learns that its certification was e
become erroneous by reason of changed circums es.
4. The terms "covered transaction," "debarr
covered transaction," "participant," "persons,
"principal," "proposal," and "voluntarily ded,'
meanings set out in the Definitions a
Commission if at any time
when submitted or has
ended," "ineligible," "lower tier
ower tier covered transaction,"
used in this clause, have the
sections of rules implementing
Executive Order 12549 [49 CFR = 29] may contact Commission for assistance
in obtaining a copy of those re
5. The Consultant agrees by
transaction be entere
transaction with a
excluded from parti
Commission.
roposal that, should the proposed covered
not knowingly enter into any lower tier covered
red, suspended, declared ineligible, or voluntarily
s covered transaction, unless authorized in writing by
6. The Consultant further agrees by submitting a Proposal that it will include the clause
titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary
Exclusion - Lower Tier Covered Transaction", without modification, in all lower tier
covered transactions and in all solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective
participant in a lower tier covered transaction that it is not debarred, suspended, ineligible,
or voluntarily excluded from the covered transaction, unless it knows that the certification
is erroneous. A participant may decide the method and frequency by which it determines
the eligibility of its principals. Each participant may, but is not required to, check the
Nonprocurement List issued by U.S. General Service Administration.
APPENDIX N-5
8. Nothing contained in the foregoing shall be construed to require establishment of
system of records in order to render in good faith the certification required by this
clause. The knowledge and information of a participant is not required to exceed that
which is normally possessed by a prudent person in the ordinary course of business
dealings. Except for transactions authorized under Paragraph 5 of these instructions, if
a participant in a covered transaction knowingly enters into a lower tier covered
transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded
from participation in this transaction, in addition to all remedies available to the Federal
Government, Commission may pursue available remedies including suspension and/or
debarment.
9. The Consultant agrees to comply, and assures the compliance of each
subconsultant, lessee, or third party contractor, with Executive Orders Nos. 12549 and
12689, "Debarment and Suspension," 31 U.S.C. § 6 ' 1 note, and U.S. DOT
regulations, "Governmentwide Debarment and Susp- on (Nonprocurement)," 49
C.F.R. Part 29.
10. The Consultant agrees to, and assures tha subcons nts, lessees and third
party contractors have reviewed the "Exclude • " -rties sting Syem" at http://elps.gov/
before entering into any third sub agreement, le _- - f; ird party contract.
"Certification Regarding Debarment, ,-.. sio eligibility and Voluntary
Exclusion"
(1) The Consultant certifies, b
"principals" [as defined at
proposed for debarment, de
in this transaction by
(2) When the Co
shall attach an expla
f this bid or proposal, that neither it nor its
5(p)] is presently debarred, suspended,
, or voluntarily excluded from participation
partment or agency.
ble to certify to the statements in this certification, it
s proposal.
8. PROVISION OR RESOLUTION OF DISPUTES, BREACHES, OR
OTHER LITIGATION
Disputes - Disputes arising in the performance of this Contract which are not resolved
by agreement of the parties shall be decided in writing by the Commission Executive
Director, or his or her designee. This decision shall be final and conclusive unless
within ten (10) days from the date of receipt of its copy, the Consultant mails or
otherwise furnishes a written appeal to the Commission's Executive Director, or his or
her designee. In connection with any such appeal, the Consultant shall be afforded an
opportunity to be heard and to offer evidence in support of its position. The decision of
the Commission's Executive Director, or his or her designee, shall be binding upon the
Consultant and the Consultant shall abide be the decision.
APPENDIX N - 6
Performance During Dispute - Unless otherwise directed by Commission, Consultant
shall continue performance under this Contract while matters in dispute are being
resolved.
Claims for Damages - Should either party to the Contract suffer injury or damage to
person or property because of any act or omission of the party or of any of his
employees, agents or others for whose acts he is legally liable, a claim for damages
therefor shall be made in writing to such other party within a reasonable time after the
first observance of such injury of damage.
Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes
and other matters in question between the Commission and the Consultant arising out
of or relating to this agreement or its breach will be decid by arbitration if the parties
mutually agree, or in a court of competent jurisdictio hin the State in which the
Commission is located.
Rights and Remedies - The duties and obligations imposed is Agreement and the
rights and remedies available hereunder shall be in addition to nd not a limitation of
any duties, obligations, rights and remedies otherwise imposed or available by law. No
action or failure to act by the Commissio or Consultant shall constitute a waiver of any
right or duty afforded any of them un• e Contract, nor shall any such action or
failure to act constitute an approval of acquiescence in any breach thereunder,
except as may be specifically agreed i wri
FTA Notification - Consulta
major dispute, breach,
interests in the Proj
party to litigation, t
in writing of any current or prospective
itigation that may affect the Federal Government's
ant wishes to name the Federal Government as a
ha inform FTA in writing before doing so.
Lobbying Restrictions. To the extent applicable, Consultant agrees to:
(1) Comply, and assure the compliance of each subcontractor at any tier, with U.S.
DOT regulations, "New Restrictions on Lobbying," 49 C.F.R. Part 20, modified as
necessary by 31 U.S.C. § 1352.
(2) Comply with Federal statutory provisions, to the extent applicable, prohibiting the
use of Federal assistance funds for activities designed to influence Congress or a State
legislature on legislation or appropriations, except through proper, official channels.
10. CLEAN AIR
APPENDPX N - 7
(1) 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 through 7671q.
The Consultant agrees to report each violation to the Commission and understands and
agrees that the Commission will, in turn, report each violation as required to assure
notification to FTA and the appropriate EPA Regional Office.
(2) The Consultant also agrees to include these requirements in each subcontract
exceeding $100,000 financed in whole or in part with Federal assistance provided by
FTA.
11. CLEAN WATER
(1) The Consultant agrees to comply with all applicable sta► ards, orders or regulations
issued pursuant to the Federal Water Pollution Contr• - ct, as amended, 33 U.S.C.
1251 through 1377. The Consultant agrees to repo :c .lation to the Commission
and understands and agrees that the Commission ill, in to eport each violation as
required to assure notification to FTA and the a► opri. e EPA ' •ional Office.
(2) The Consultant also agrees to include th
exceeding $100,000 financed in whole
FTA.
12. ENERGY CONSERVA'
equirements in each subcontract
Federal assistance provided by
Energy Conservation. To the extent applicable, Consultant agrees to comply with the
mandatory energy efficiency standards and policies within the applicable State energy
conservation plans issued in compliance with the Energy Policy and Conservation Act,
42 U.S.C. §§ 6321 et seq. To the extent applicable, Consultant agrees to perform an
energy assessment for any building constructed, reconstructed, or modified with FTA
assistance, as provided in FTA regulations, "Requirements for Energy Assessments,"
49 C.F.R. Part 622, Subpart C.
13. CONFORMANCE WITH NATIONAL ITS ARCHITECTURE
National Intelligent Transportation Systems Architecture and Standards. To the extent
applicable, Consultant agrees to conform, to the extent applicable, to the National
Intelligent Transportation Systems (ITS) Architecture and Standards as required by
SAFETEA-LU § 5307(c), 23 U.S.C. § 512 note, and with FTA Notice, "FTA National
ITS Architecture Policy on Transit Projects" 66 Fed. Reg. 1455 et seq., January 8,
2001, and other subsequent Federal directives that may be issued.
APPENI11BX N - 8
14. ADDITIONAL REQUIREMENTS
To the extent applicable, Consultant agrees to comply with the Federal programs
specified below and, with regard to such programs, Consultant agrees not compromise
the Commission's compliance with Federal requirements as pertains to the Project.
The Programs are as follows:
(1) Urbanized Area Formula Program authorized under 49. U.S.C. § 5307.
(2) Elderly Individuals and Individuals with Disabilities Formula Program authorized
under 49 U.S.C. § 5310 as amended by SAFETEA-LU and subsection 3012(b) of
SAFETEA-LU, 49 U.S.C. § 5310 note, respectively.
(3) New Freedom Program authorized under 49 U.S.C. § 5317.
(4) Nonurbanized Area Formula Program authorized under 49 U.S.C. § 5311(b).
(5) Clean Fuels Grant Program authorized under 49 U.S.C. § 5308.
(6) Job Access and Reverse Commute Formula Grant Program authorized under 49
U.S.C. § 5316.
15. RELEASE OF RETAINAGE
°11
The Commission shall hold ainage from t prime contractor and shall make prompt
and regular incremental acceptances of portions, as determined by the Commission of
the contract work and pay retainage to prime contractors based on these acceptances.
The prime contractor or subcontractor shall return all monies withheld in retention from
a subcontractor within 30 days after receiving payment for work satisfactorily completed
and accepted including incremental acceptances of portions of the contract work by the
Commission. Federal regulations (49 CFR 26.29) require that any delay or
postponement of payment over 30 days may take place only for good cause and with
the Commission's prior written approval. Any violation of this provision shall subject the
violating prime contractor or subcontractor to the penalties, sanctions, and other
remedies specified in Section 7108.5 of the California Business and Professions Code.
These requirements shall not be construed to limit or impair any contractual,
administrative, or judicial remedies otherwise available to the prime contractor or
subcontractor in the event of a dispute involving late payment or nonpayment by the
prime contractor, deficient subcontract performance, or noncompliance by a
subcontractor. This provision applies to both DBE and non -DBE prime contractors and
subcontractors.
APPENII4X N - 9
16. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA)
TERMS
The preceding provisions include, in part, certain Standard Terms and Conditions
required by the Federal Transit Authority, whether or not expressly set forth in the
preceding contract provisions. All contractual provisions required by the Federal Transit
Authority, 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 Commission requests which would cause the Com mission to be in violation of
the FTA terms and conditions.
17. 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 Rela ' o Equal Employment Opportunity," and as
supplemented by regulation : 4 FR chapter 60, "Office of Federal Contract
Compliance Programs, Equ. p ,` ment 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 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
APPENDIX N - 10
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).
18. 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 peorm of contracts financed in whole or in
part with U.S. DOT funds.
It is the policy of the Commis
1. Ensure nondiscrimin in the award and administration of DOT -assisted
contracts;
2. Create a el playi field on which DBE's can compete fairly for DOT -
assisted contracts;
3. Ensure that th- 'IBE 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.
APPEN J N - 11
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 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.
APPENDIX N - 12
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 su.,:= nsultants for satisfactory
performance of their contracts no later than 30 days m receipt of each payment
Commission makes to the Consultant. 49 C.F.R. § �;' •' unless a shorter period is
provided in the contract.
J. Compliance with DBE Requirements ContRed in A Provisions: Consultant shall
comply with all DBE reporting and other requiremen ontained in this Agreement.
APPENDIX N - 13
EXHIBIT "G" — LOBBYING ACTIVITIES DISCLOSURE
Exhibit G-1
319
Local Assistance Procedures Manual
EXHBIT 10-Q
Disclosure of Lobbying Activities
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:
a. contract
b. grant
c. cooperative agreement
d. loan
e. loan guarantee
f. loan insurance
❑ a bid/offer/application
b. initial award
e. post -award
3. Report Type:
❑ a. initial
b. material change
Epic Land Solutions does not have any
lobbying activities to report.
4. Name and Address of Reporting Entity
nPrime nSubawardee
Tier , if known
For Material Change Only:
year quarter
date of last report
5. If Reporting Entity in No. 4 is Subawardee,
Enter Name and Address of Prime:
Congressional District, if known Congression
6. Federal Department/Agency: 7. Federal
8. Federal Action Number, if known:
10. Name and Address of Lobby Entity
(If individual, last name, first name, MI)
(attach Continua
12. Amount of Payment (check all that
$ n actual
13. Form of Payment (check all
8 a. cash
b. in -kind; s
Valu
'strict, if known
am Name/Description:
CF 11/Numb applicable
9. and Amount,' wn:
11. Indi> bals Performing Services
(including address if different from No. 10)
(last name, first name, MI)
`eSry)
pe of Payment (check all that apply)
a. retainer
b. one-time fee
c. commission
d. contingent fee
e deferred
f. other, specify
15. Brief Descriptio ervices Perfined or to be performed and Date(s) of Service, including
officer(s), employee i r membe s) contacted, for Payment Indicated in Item 12:
(attach Continuation Sheet(s) if necessary)
16. Continuation Sheet(s) attached: Yes pi
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.
Federal Use Only:
No
Signature:
Print Name: Karen Starr
Title: President
Telephone No.: (951) 321-1834 Date: 03/29/2022
Authorized for Local Reproduction
Standard Form - LLL
Standard Form LLL Rev. 04-28-06
Distribution: Orig- Local Agency Project Files
LPP 13-01
APPEND(DX L - 1
Page 1
May 8, 2013
ATTACHMENT 2
Agreement No. 22-31-080-00
PROFESSIONAL SERVICES AGREEMENT
WITH PROPOSITION 1B, FTA AND FHWA FUNDING ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
MONUMENT ROW, INC.
FOR ON -CALL
RIGHT OF WAY SUPPORT SERVICES
Parties and Date.
This Agreement is made and entered i t his day of , 2022, by
and between the RIVERSIDE COUNTY TRA ORTATION COMMISSION ("the
Commission") and Monument ROW, Inc. ("Co - ant" :y Corporation. The Commission
and Consultant are sometimes referred to herei div' . ally as "Party", and collectively as
the "Parties".
Recitals.
A. On November 8, 1988 the Vo of Riverside County approved Measure A
authorizing the collection of a one-half perce (1/2 %) retail transactions and use tax (the
"tax") to fund transportation programs and improvements within the County of Riverside,
and adopting the RiversiidCounty Transportation Improvement Plan (the "Plan").
B. Purs
Utility Code Sections 240000 et seq., the Commission is
authorized to alloc s of the Tax in furtherance of the Plan.
C. On November 5, 2'002, 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 consulting services
provided under this Agreement may be State Proposition 1B funds, Federal Highway
Administration Funds ("FHWA") administered by the California Department of
Transportation ("Caltrans"), and/or funds from the Federal Transit Administration ("FTA").
E. Consultant desires to perform and assume responsibility for the provision of
certain on -call right of way support services 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 issued pursuant to this Agreement and executed by the Commission and the
Consultant ("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. The Commission desires to engage Consultant to render such services on an
on -call basis. Services shall be ordered by Task Order(s) to be issued pursuant to this
Agreement for future projects as set forth herein and in each Task Order (each such project
shall be designated a "Project" under this Agreement).
Terms.
1. General Scope of Services. Consultant shall furnish all technical and
professional services, including labor, material, equipment, transportation, supervision and
expertise, and incidental and customary work necessary to fully and adequately supply the
on -call right of way support 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. Commencement of Services. The Consultant shall commence work
upon receipt of a written "Notice to Proceed" or "Limited Notice to Proceed" from
Commission.
3. Pre -Award Au e federal funding for this Project, and to the
extent Caltrans procedures ar in connection therewith, issuance of a "Notice to
Proceed" may be contingent upon completion and approval of a pre -award audit. Any
questions raised during the pre -award audit shall be resolved before the Commission will
consider approval of this Agreement. The federal aid provided under this Agreement is
contingent on meeting all Federal 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 Federal and State process
reviews. In addition, the applicable federal agency, or Caltrans acting in behalf of a federal
agency, may require that prior to performance of any work for which Federal
reimbursement is requested and provided, that said federal agency or Caltrans must give to
Commission an "Authorization to Proceed".
4. Audit Procedures. Consultant and 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
2
322
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 23 and 24 of this Agreement.
5. Term.
5.1 This Agreement shall go into effect
contingent upon approval by Commission, and Consult
notification to proceed by Commission's Contract Admi
three years from the date set forth above, unless ext r"ed
case shall the term of this Agreement exceed three ) yea
be completed within the term.
5.2 Consultant is advised that a
not binding on Commission until this Aroy'- ent
Commission.
5.3 This Agree
unless earlier terminated as
within the term of this Agre
deadlines. All applicable in
effect following the to
6. Com
the Commission's E
Administrator for the
Administrator"). Commissi
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.
on e date first set forth above,
shall commence work after
or. This Agreement shall end
ontract amendment. In no
rs. c, ask Order work should
ommendation for contract award is
ly executed and approved by the
ain in effect until the date set forth above,
Consultant shall complete the Services
eet any other established schedules and
cation .rovisions of this Agreement shall remain in
s Agreement.
act Administrator. The Commission hereby designates
ector, or his or her designee, to act as its Contract
ance of this Agreement ("Commission's Contract
's Contract Administrator shall have the authority to act on
7. Consultant's Representative. Consultant hereby designates Joey Mendoza
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
3
323
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: Kim Bibolet, Joey Mendoza, Daniela Borbe, Curtis
Bibolet, or as otherwise identified in the Task Order.
9. Standard of Care; Licenses. Consultant r( r;, ents and maintains that it is
skilled in the professional calling necessary to perfor Se es, duties and obligations
required by this Agreement to fully and adequately i ' plete th. oject. Consultant shall
perform the Services and duties in conforms F to a consis t with the standards
generally recognized as being employed by p -s als in the same discipline in the
State of California. Consultant warrants that all e ees and subcontractors shall have
sufficient skill and experience to perform -rvices igned to them. Consultant further
represents and warrants to the Commissi• p' ees and subcontractors have all
licenses, permits, qualifications and appro w -ver nature that are legally required
to perform the Services, and ,i ch 1';=: nses and approvals shall be maintained
throughout the term of this uir' . C • � ultant shall perform, at its own cost and
expense and without reimb 111 ] -" Commission, any services necessary to
correct errors or omissio hi e caused by the Consultant's failure to comply with the
standard of care prov , . - re - nd shall be fully responsible to the Commission for
all damages and ' er liabili pr ided for in the indemnification provisions of this
Agreement arising nsultant's errors and omissions. Any employee of
Consultant or its su •ns ants who is determined by the Commission to be
uncooperative, incompet- hreat 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
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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. Task Orders; Commencement of Services; Schedule of Services. Consultant
shall commence Services under a Task Order within five (5) days of receiving a fully
executed Task Order from the Commission. Task Orders shall be in substantially the form
set forth in Exhibit "B" attached hereto and incorporated herein by reference. Each Task
Order shall identify the funding source(s) to be used to fund the Services under the relevant
Task Order, and Consultant shall comply with the requirements specified herein, and in the
attached exhibits, applicable to the identified funding source(s).
Consultant shall perform the Services expeditiausly, within the term of this
Agreement, and in accordance with any schedule of Ser
("Schedule"). Consultant represents that it has the profe
perform the Services in conformance with such
Consultant's conformance with the Schedule, the C
submittals in a timely manner. Upon request
Consultant shall provide a more detailed sche
Schedule of Services.
s set forth in a Task Order
al and technical personnel to
di In order to facilitate
ission s ; ,,respond to Consultant's
om.gission's ntract Administrator,
cipated performance to meet the
11.1 Modification of the S - • on ltant shall regularly report to the
Commission, through correspondence o • %re reports, its progress in providing
required Services within the s -d ti periods. Commission shall be promptly
informed of all anticipated del In eve '' hat Consultant determines that a schedule
modification is necessary, Co ptly submit a revised Schedule of Services
for approval by Commis _'•_ 's ► act Administrator.
Commission's Con
Commission, on a bi-
standard day and time.
discussions concerning sc•pe, 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.
Consultant shall conduct trend meetings with the
rator and other interested parties, as requested by the
is or as may be mutually scheduled by the Parties at a
e trend meetings will encompass focused and informal
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.
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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, 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 ti -ly notice shall constitute a
waiver by Consultant of any right to an excusable delay i ► `ro ` e of performance.
12.3 Mutual Agreement. Perform- : e 16111 .ny Services under this
Agreement may be delayed upon mutual agrs '` ent of 1 ,- Parties. Upon such
agreement, Consultant's Schedule of Service all b- exten• as necessary by the
Commission. Consultant shall take all reason. ' - st; r' to minimize delay in completion,
and additional costs, resulting from any such ex
13. Prelimina Review of Wor - - •rts, orking papers, and similar work
products prepared for submission in the co -e • ing Services under this Agreement
shall be submitted to the Com 's ract Administrator in draft form, and the
Commission may require revi s of ch d is prior to formal submission and approval.
In the event plans and desi• .are •- oped as part of the Project, final detailed
plans and designs shall be con t upon btaining environmental clearance as may be
required in connection -d _ _ funding. In the event that Commission's Contract
Administrator, in hi ; 1, er sol- sc •n, determines the formally submitted work product
to be not in accor' °;r,,. a with standard of care established under this Agreement,
Commission's Contra dmin' ator may require Consultant to revise and resubmit the
work at no cost to the C 'F,L ion.
14. Appearance at Hearings. If and when required by the Commission,
Consultant shall render assistance at public hearings or other meetings related to the
Project or necessary to the performance of the Services. However, Consultant shall not be
required to, and will not, render any decision, interpretation or recommendation regarding
questions of a legal nature or which may be construed as constituting a legal opinion.
15. Opportunity to Cure; Inspection of Work. Commission may provide
Consultant an opportunity to cure, at Consultant's expense, all errors and omissions 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, Caltrans and FHWA to inspect or review Consultant's work in progress at
any reasonable time.
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16. Claims Filed by Contractor.
16.1 If claims are filed by the Commission's contractor for the Project
("Contractor") relating to work performed by Consultant's personnel, and additional
information or assistance from the Consultant's personnel is required by the Commission
in order to evaluate or defend against such claims; Consultant agrees to make reasonable
efforts to make its personnel available for consultation with the Commission's construction
contract administration and legal staff and for testimony, if necessary, at depositions and
at trial or arbitration proceedings.
16.2 Consultant's personnel that the Commission considers essential to
assist in defending against Contractor claims will be made available on reasonable notice
from the Commission. Consultation or testimony will be reimbursed at the same rates,
including travel costs that are being paid for the Consultant's •ersonnel services under this
Agreement.
16.3 Services of the Consultant's p
connection with Contractor claims will be perf
amendment, if necessary, extending the termi
finally resolve the claims.
16.4 Nothing contained i.
Consultant's indemnification obligation
conflict between this Section and Section
intended to obligate the Com
personnel related to Contrac
defend the Commission pu
nd other support staff in
t to a written contract
greement in order to
s Secti hall be construed to in any way limit
ection 29. In the case of any
9 shall govern. This Section is not
burse Consultant for time spent by its
ch Consultant is required to indemnify and
of this Agreement.
17. Final Ac - .n determination by the Commission that Consultant
has satisfactorily c
term set forth her
Acceptance. Upon
hereunder, unless othe
request issuance of a Noti
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.
es required under this Agreement and within the
ission shall give Consultant a written Notice of Final
such notice, Consultant shall incur no further costs
cified in the Notice of Final Acceptance. Consultant may
of Final Acceptance when, in its opinion, it has satisfactorily
18. 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
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327
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.
19. Fees and Payment.
19.1 The method of payment for thi • ree - t will be based on actual
cost plus a fixed fee. Commission shall reimburs onsultan actual costs (including
Tabor costs, employee benefits, travel, equipm r� ent. ,_costs, o head and other direct
costs) incurred by Consultant in performanc= th ;,`services. Consultant shall not be
reimbursed for actual costs that exceed the est ed wage rates, employee benefits,
travel, equipment rental, overhead, an. ;?_.r . r esti ,,-d costs set forth in the approved
Consultant cost proposal attached her. • • ibi C" and incorporated herein by
reference, or any cost proposal included . .' • o ask Order ("Cost Proposal") unless
additional reimbursement is p for written amendment. The overhead rates
included in the attached Ex "C" all be ed for the term of the Master Agreement,
and shall not be subject to a t required by the applicable funding source.
In no event, shall Cons nt . ; imbursed for overhead costs at a rate that exceeds
Commission's appro • e.. , .te set forth in the Cost Proposal. In the event that
Commission dete es that '' cha '•e to the Services from that specified in the Cost
Proposal, this Agre. •ent or a i Task Order is required, the Agreement time or actual
costs reimbursable • . Co ission shall be adjusted by written amendment to
accommodate the chan• +ork. The maximum total cost as specified in Section 19.8
shall not be exceeded, unless authorized by a written amendment.
19.2 In addition to the allowable incurred costs, Commission shall pay
Consultant a fixed fee to be set forth in each Task Order ("Fixed Fee"). The Fixed Fee is
nonadjustable for each Task Order, except in the event of a significant change in the
Scope of Services, and such adjustment is made by written amendment.
19.3 Reimbursement for transportation and subsistence costs shall not
exceed the rates specified in the approved Cost Proposal. In addition, payments to
Consultant for travel and subsistence expenses claimed for reimbursement or applied as
local match credit shall not exceed rates authorized to be paid exempt non -represented
State employees under current State Department of Personnel Administration (DPA) rules,
unless otherwise authorized by Commission. If the rates invoiced are in excess of those
authorized DPA rates, and Commission has not otherwise approved said rates, then
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Consultant is responsible for the cost difference and any overpayments shall be
reimbursed to the Commission on demand.
19.4 When milestone cost estimates are included in the approved Cost
Proposal for a Task Order, Consultant shall obtain prior written approval for a revised
milestone cost estimate from the Contract Administrator before exceeding such cost
estimate.
19.5 Progress payments shall be made monthly in arrears based on
Services provided and allowable incurred costs. A pro rata portion of the Fixed Fee shall
be included in the monthly progress payments. If Consultant fails to submit the required
deliverable items according to the schedule set forth in the Scope of Services,
Commission shall have the right to delay payment or terminate this Agreement in
accordance with the provisions of Section 21, Termination.
19.6 No payment shall be made prior to ' royal of any Services, nor for
any Services performed prior to approval of this Agr
19.7 Consultant shall be reimbu
permit upon receipt by Commission's Cont
triplicate. Invoices shall be submitted no latertha
of work for which Consultant is billing. I - •'ces sh
milestone and each project as applicable
approved Cost Proposal and shall referen
invoice must contain the fina
equipment purchased under
final invoice should be sub
work. Invoices shall be maile
address:
Riverside County
Attention: Accounts
P.O. 12008
Riverside, CA 92502
as prompt fiscal procedures will
istrator of itemized invoices in
alendar days after the performance
etail the work performed on each
flow the format stipulated for the
ment number and project title. Final
credits due Commission including any
urchase provisions of this Agreement. The
ndar days after completion of Consultant's
ommi ion's Contract Administrator at the following
Commission
19.8 The total amount payable by Commission, including the Fixed Fee,
shall not exceed the amount set forth in each Task Order.
19.9 Salary increases shall be reimbursable if the new salary is within the
salary range identified in the approved Cost Proposal and is approved by Commission's
Contract Administrator. For personnel subject to prevailing wage rates as described in the
California Labor Code, all salary increases, which are the direct result of changes in the
prevailing wage rates are reimbursable.
19.10 Consultant shall not be reimbursed for any expenses unless
authorized in writing by the Commission's Contract Administrator.
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19.11 All subcontracts in excess of $25,000 shall contain the above
provisions.
20. Disputes.
20.1 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.
20.2 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.
20.3 Neither the pendency of a disp
committee will excuse Consultant from full and timely
terms of this Agreement.
21. Termination.
21.1 Commission resery
(30) calendar days written notice to Con
termination stated in the notice. Commis
at any time, for any or no reaso the
the notice of termination of T
21.2 Commis
Consultant fail to perf
herein provided. I
Services in any m
Agreement with Con
under this Agreement f
cost of completion to Com
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.
or its consideration by the
nce in accordance with the
he righ erminate this Agreement upon thirty
r no reason, with the reasons for
inate Services under a Task Order,
ctive date of termination to be specified in
y - ate this Agreement with Consultant should
ants herein contained at the time and in the manner
termination, Commission may proceed with the
proper by Commission. If Commission terminates this
mission shall pay Consultant the sum due to Consultant
es completed and accepted prior to termination, unless the
sion exceeds the funds remaining in the Agreement. In such
21.3 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
21.4 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
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330
may have been prepared or accumulated by Consultant in performance of the Services,
whether completed or in progress.
21.5 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.
21.6 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.
21.7 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.
21.8 Consultant may not terminate this Agreement except for cause.
22. Cost Principles and Administrative Requirements.
22.1 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 allo y of individual items.
22.2 Consu t also agrees to comply with federal procedures in
accordance with 2 CFR, Part , Uniform Administrative Requirements, Cost Principles,
and Audit Requirements fe 1 Awards.
22.3 Any costs or 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.
22.4 All subcontracts in excess of $25,000 shall contain the above
provisions.
23. 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,
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331
Commission, FHWA, 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
indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies
thereof shall be furnished if requested. Subcontracts in excess of $25,000 shall contain this
provision.
23.1 Accounting System. Consultant and its subcontractors shall establish
and maintain an accounting system and records that properly accumulate and segregate
expenditures by line item for the Services. The accounting system of Consultant and its
subcontractors shall conform to Generally Accepted Accounting Principles (GAAP), enable
the determination of incurred costs at interim points of completion, and provide support for
reimbursement payment vouchers or invoices.
24. Audit Review Procedures.
24.1 Any dispute concerning a quest'
post audit of this Agreement that is not disposed
Commission's Chief Financial Officer.
of rising under an interim or
agree t, shall be reviewed by
24.2 Not later than 30 days a suance of the final audit report,
Consultant may request a review by Commission's Chief Financial Officer of unresolved
audit issues. The request for review shall be submitted in writing.
-
24.3 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.
25. Subcont
25.1 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.
25.2 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.
25.3 Consultant shall pay its subconsultants within ten (10) calendar days
from receipt of each payment made to Consultant by Commission.
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25.4 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.
25.5 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).
25.6 Exhibit "C" 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 "C" shall be the same for both
the Consultant and all subconsultants, unless otherwise identified in Exhibit "C" or in a
Task Order. The subconsultant rate schedules and cost proposals contained herein are for
accounting purposes only.
26. Equipment Purchase
26.1 Prior authorization, in writing, by C
shall be required before Consultant enters into
subcontract for supplies, equipment, or services
the necessity or desirability of incurring such
26.2 For purchase of an
the Cost Proposal and exceeding $5,00
Contract Administrator is required. Thre
the request for such purchase, • abs
26.3 Any eq
the following: Consultant sh
Nonexpendable prop
acquisition cost of
sold or traded in,
this Agreement, or
equipment and credit
equipment at the best pr
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.
on's Contract Administrator
ted purchase order, or
ovide an evaluation of
or consulting work not covered in
ion, in writing, by Commission's
quotations must be submitted with
of bidding must be adequately justified.
as a result of this Agreement is subject to
inventory of all nonexpendable property.
as having a useful life of at least two years and an
e purchased equipment needs replacement and is
all receive a proper refund or credit at the conclusion of
ment is terminated, Consultant may either keep the
on in an amount equal to its fair market value, or sell such
obtainable at a public or private sale, in accordance with
26.4 All subcontracts in excess $25,000 shall contain the above provisions.
27. Labor Code Requirements.
27.1 Prevailing Wages.
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(a) Consultant shall comply with the State of California's General
Prevailing Wage Rate requirements in accordance with California Labor Code, Section
1770, and all Federal, State, and local laws and ordinances applicable to the Services.
(b) Any subcontract entered into as a result of this Agreement, if for
more than $25,000 for public works construction or more than $15,000 for the alteration,
demolition, repair, or maintenance of public works, shall contain all of the provisions of this
Section.
(c) When prevailing wages apply to the Services described in the
Scope of Services, transportation and subsistence costs shall be reimbursed at the
minimum rates set by the Department of Industrial Relations (DIR) as outlined in the
applicable Prevailing Wage Determination. See http://www.dir.ca.gov.
(d) Copies of the prevailing rate •<;i'°per diem wages in effect at
commencement of this Agreement are on file at the Com on's offices. Consultant shall
make copies of the prevailing rates of per diem wages a ::craft, classification or type
of worker needed to execute the Services available ntereste rties upon request, and
shall post copies at the Consultant's principal . e of .usines ` d at the project site.
Consultant shall defend, indemnify and hold th .m ion, its elected officials, officers,
employees and agents free and harmless from aims, liabilities, costs, penalties or
interest arising out of any failure or all :� failure comply with the Prevailing Wage
Laws.
27.2 DIR Reaist
an applicable "public works"
Sections 1725.5 and 1771.
with the Department of Indust
duration of the Projec
be subject to com
Relations. It sha
registration and labo
e Services are being performed as part of
e" project, then pursuant to Labor Code
nd all subconsultants must be registered
lations.Consultant shall maintain registration for the
e same of any subconsultants. This Project may also
and enforcement by the Department of Industrial
nt's sole responsibility to comply with all applicable
e requirements.
27.3 Eight our 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.
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27.4 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 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-, onsultant shall employ the
number of apprentices provided for therein, as well as co ;;_; _;ute to the fund to administer
the apprenticeship program in each craft or trade in th-: Fn of the work hereunder.
The parties expressly understand that t , responsi ':, for compliance with
provisions of this Section and with Sections 17 ":' 17 .7.6 and 77.7 of the California
Labor Code in regard to all apprenticeable occ► -tio- ies with Consultant
28. Ownership of Materials/C. ntialit
28.1 Documents
perpetual license for Commissio
copyrights and designs embo
materials, data and other do
expression, including but not
recorded on comput
Consultant under t
& Data: : ement creates an exclusive and
modify, reuse, or sub -license any and all
ecifications, studies, drawings, estimates,
authorship fixed in any tangible medium of
o, phys al drawings or data magnetically or otherwise
hich are prepared or caused to be prepared by
(` uments & Data").
hall require all subcontractors to agree in writing that
Commission is granted . sive and perpetual license for any Documents & Data the
subcontractor prepares un r 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.
28.2 Intellectual Property. In addition, Commission shall have and retain all
right, title and interest (including copyright, patent, trade secret and other proprietary
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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
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 respons' .;`• obtain in writing separate
written assignments from any subcontractors or age f Co =, Itant of any and all right to
the above referenced Intellectual Property. Shou onsultan , her during or following
termination of this Agreement, desire to use of e above eferenced Intellectual
Property, it shall first obtain the written approv t ommission.
All materials and do
Consultant for general use prior to the ex
copyright of any other party or publ avai
continue to be the property of t
stated prior to execution of th.
the right to grant the exclusi
provided herein.
perpetual license to
otherwise owned by
collective, insurrectional,
ere developed or prepared by the
is greement and which are not the
n. y other computer applications, shall
However, unless otherwise identified and
sultant represents and warrants that it has
icense for all such Intellectual Property as
er is granted by Consultant a non-exclusive and
odify or sub -license any and all Intellectual Property
which is the basis or foundation for any derivative,
pplemental work created under this Agreement.
28.3 Confidentiality. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents and Data either created by or provided to Consultant in
connection with the performance of this Agreement shall be held confidential by
Consultant. Such materials shall not, without the prior written consent of Commission, be
used by Consultant for any purposes other than the performance of the Services. Nor
shall such materials be disclosed to any person or entity not connected with the
performance of the Services or the Project. Nothing furnished to Consultant which is
otherwise known to Consultant or is generally known, or has become known, to the related
industry shall be deemed confidential. Consultant shall not use Commission's name or
insignia, photographs of the Project, or any publicity pertaining to the Services or the
Project in any magazine, trade paper, newspaper, television or radio production or other
similar medium without the prior written consent of Commission.
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28.4 Infringement Indemnification. Consultant shall defend, indemnify and
hold the Commission, its directors, officials, officers, employees, volunteers and agents
free and harmless, pursuant to the indemnification provisions of this Agreement, for any
alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any
other proprietary right of any person or entity in consequence of the use on the Project by
Commission of the Documents & Data, including any method, process, product, or concept
specified or depicted.
29. Indemnification. To the fullest extent permitted by law, Consultant shall
defend (with counsel of Commission's choosing), indemnify and hold Commission, Caltrans
and their directors, officials, officers, employees, consultants, volunteers, and agents free
and harmless from any and all claims, demands, causes of action, costs, expenses, liability,
loss, damage or injury, in law or equity, to property or persons, including wrongful death, in
any manner arising out of or incident to alleged neglige acts, omissions, or willful
misconduct of Consultant, its officials, officers, employ agents, consultants, and
contractors arising out of or in connection with the perfor e of the Services, the Project
or this Agreement, including without limitation the .,- r en ' . consequential damages,
expert witness fees, and attorneys fees and other r .' ed costs * expenses. Consultant
shall defend, at Consultant's own cost, expense d ris any an I such aforesaid suits,
actions or other legal proceedings of every kin• t be brought or instituted against
Commission, Caltrans and their directors, offic officers, employees, consultants,
agents, or volunteers. Consultant shall p ,,• satis y judgment, award or decree that
may be rendered against Commission, a •r eir directors, officials, officers,
employees, consultants, agents, • volu = in y such suit, action or other legal
proceeding. Consultant shall re Co '` ission, Caltrans and their directors, officials,
officers, employees, consult. age , an. ! volunteers, for any and all legal expenses
and costs, including reasona. i a -s, incurred by each of them in connection
therewith or in enforce mnity herein provided. Consultant's obligation to
indemnify shall not b- -s`r .1 ,a t• urance proceeds, if any, received by Commission,
Caltrans, their dire rs, offices •ffi rs, employees, consultants, agents, or volunteers.
If Consultant's • :ate• o defend, indemnify, and/or hold harmless arises out of
Consultant's performanc. a "design professional" (as that term is defined under Civil
Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8,
which is fully incorporated herein, Consultant's indemnification obligation shall be limited to
claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a
court of competent jurisdiction, Consultant's liability for such claim, including the cost to
defend, shall not exceed the Consultant's proportionate percentage of fault.
Consultant's obligations as set forth in this Section shall survive expiration or
termination of this Agreement.
30. To the fullest extent permitted by law, Consultant shall defend, indemnify and
hold Commission, Caltrans and their directors, officials, officers, employees, consultants,
volunteers, and agents free and harmless from any and all claims, demands, causes of
action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or
17
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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 attorneys 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 s II reimburse Commission,
Caltrans and their directors, officials, officers, employe consultants, agents, and/or
volunteers, for any and all legal expenses and costs, in _ �ll a n. reasonable attorney's fees,
incurred by each of them in connection therewith n en . i; ing the indemnity herein
provided. Consultant's obligation to indemnif , ; "` all not b_ -stricted to insurance
proceeds, if any, received by Commission, C n ns their dir- tors, officials officers,
employees, consultants, agents, or volunteers i anding the foregoing, to the extent
Consultant's Services are subject to Civil Code Se 2782.8, the above indemnity shall
be limited, to the extent required by Civil ecti. 782.8, to claims that arise out of,
pertain to, or relate to the negligence, reck w ful misconduct of the Consultant.
Consultant's obligations as set h in , Sec on 29 shall survive expiration or
termination of this Agreement.
31. Insurance.
31.1
Agreement until i
secured all insuran
acceptable to the Com
commence work on any
Section.
nce. Consultant shall not commence work under this
ence satisfactory to the Commission that it has
der this Section, in a form and with insurance companies
addition, Consultant shall not allow any subcontractor to
ntract until it has secured all insurance required under this
31.2 Minimum Requirements. Consultant shall, at its expense, procure and
maintain for the duration of the Agreement insurance against claims for injuries to persons
or damages to property which may arise from or in connection with the performance of the
Agreement by the Consultant, its agents, representatives, employees or subcontractors.
Consultant shall also require all of its subcontractors to procure and maintain the same
insurance for the duration of the Agreement. Such insurance shall meet at least the
following minimum levels of coverage:
(a) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2)
Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001,
18
338
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 abor Code of the State of
California. Employer's Practices Liability limits of $1,000 ° + per accident.
31.3 Professional Liability. Consults % sh. ocure and maintain, and
require its sub -consultants to procure and maintai r, -r a perio• ' five (5) years following
completion of the Project, errors and omission iabil' insura «'e appropriate to their
profession. For Consultant, such insuranc ,.ha •e in an amount not less than
$1,000,000 per claim. This insurance shall be -°, I,+rsed to include contractual liability
applicable to this Agreement and shall kitten o ; policy form coverage specifically
designed to protect against acts, erro o u ; io of the Consultant. "Covered
Professional Services" as desi • nated p •' must specifically include work
performed under this Agreeme •olio ust "pay on behalf of the insured and must
include a provision establishi rer's ty to defend. Subconsultants of Consultant
shall obtain such insura t not less than $2,000,000 per claim.
Notwithstanding the for- • •'ng, ommission may consider written requests to lower or
dispense with the er •m •ns liability insurance requirement contained in this
Section for certai '•consul is o onsultant, on a case -by -case basis, depending on
the nature and sco• .f the S: ices to be provided by the subconsultant. Approval of
such request shall be riti signed by the Commission's Contract Administrator.
31.4 Aircra Liability Insurance. Prior to conducting any Services requiring
use of aircraft, Consultant shall procure and maintain, or cause to be procured and
maintained, aircraft liability insurance or equivalent form, with a single limit as shall be
required by the Commission. Such insurance shall include coverage for owned, hired and
non -owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, Caltrans and their directors, officials, officers, employees and agents as
additional insureds with respect to the Services or operations performed by or on behalf of
the Consultant.
31.5 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:
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339
(a) General Liability.
(1) Commercial General Liability Insurance must include
coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury;
(3) premises/operations liability; (4) products/completed operations liability; (5) aggregate
limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion
deleted; (7) contractual liability with respect to this Agreement; (8) broad form property
damage; and (9) independent consultants coverage.
(ii) The policy shall contain no endorsements or provisions
limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by
one insured against another; or (3) contain any other exclusion contrary to this Agreement.
(iii) The policy shall give the Commission, its directors,
officials, officers, employees, and agents insured status us"ISO endorsement forms 20
10 10 01 and 20 37 10 01, or endorsements providing t► act same coverage.
(iv) The additional in
"primary and non-contributory" and will not see
Caltrans' insurance or self-insurance and shall
endorsements providing the exact same covera
d cove under the policy shall be
ntribution frl i. the Commission's or
as broad as CG 20 01 04 13, or
(b) Automobile L \ The tomobile liability policy shall be
endorsed to state that: (1) the Commissio d their directors, officials, officers,
employees and agents shall b: ere• additional insureds with respect to the
ownership, operation, mainte e, -, loa g or unloading of any auto owned, leased,
hired or borrowed by the Co Itant % hi the Consultant is responsible; and (2) the
insurance coverage shall be p insur e as respects the Commission, Caltrans and
their directors, official , -,s, -' •loyees and agents, or if excess, shall stand in an
unbroken chain of ,U' -rage _es the Consultant's scheduled underlying coverage.
Any insurance or -insurank _ maintained by the Commission, Caltrans and their
directors, officials, o s, a .yees and agents shall be excess of the Consultant's
insurance and shall not . d upon to contribute with it in any way.
(c)
Workers' Compensation and Employers Liability Coverage.
(i) Consultant certifies that he/she is aware of the provisions
of Section 3700 of the California Labor Code which requires every employer to be insured
against liability for workers' compensation or to undertake self-insurance in accordance with
the provisions of that code, and he/she will comply with such provisions before
commencing work under this Agreement.
(ii) The insurer shall agree to waive all rights of subrogation
against the Commission, its directors, officials, officers, employees and agents for losses
paid under the terms of the insurance policy which arise from work performed by the
Consultant.
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(d) All Coverages.
(i) Defense costs shall be payable in addition to the limits
set forth hereunder.
(ii) Requirements of specific coverage or limits contained in
this Section are not intended as a limitation on coverage, limits, or other requirement, or a
waiver of any coverage normally provided by any insurance. It shall be a requirement
under this Agreement that any available insurance proceeds broader than or in excess of
the specified minimum insurance coverage requirements and/or limits set forth herein shall
be available to the Commission, Caltrans and their directors, officials, officers, employees
and agents as additional insureds under said policies. Furthermore, the requirements for
coverage and limits shall be (1) the minimum coverage and limits specified in this
Agreement; or (2) the broader coverage and maximum limits .f coverage of any insurance
policy or proceeds available to the named insured; which is greater.
(iii) The limits of insura re. `-;,'. ed in this Agreement may
be satisfied by a combination of primary and umbrel r excess '':' urance. Any umbrella or
excess insurance shall contain or be endorsed onta. a prow'` 'i n that such coverage
shall also apply on a primary and non-contribu ba ' or the benefit of the Commission
(if agreed to in a written contract or agreement) be e Commission's own insurance or
self-insurance shall be called upon to pr 't as a ed insured. The umbrella/excess
policy shall be provided on a "following coverage at least as broad as
provided on the underlying policy(ies).
(30) days prior written noti
except that the Consultant s
cancellation of any s
coverage is cancell
deliver renewal cert
to the Commission a
expiration.
hall provide the Commission at least thirty
f any policy required by this Agreement,
ovide least ten (10) days prior written notice of
to non-payment of premium. If any of the required
the term of this Agreement, the Consultant shall
ing the General Liability Additional Insured Endorsement
10) days prior to the effective date of cancellation or
(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.
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(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.
31.6 Deductibles and Self -Insurance Retenti • ns. Any deductibles or self -
insured retentions must be declared to and approve.; the Commission. If the
Commission does not approve the deductibles or self,. ed retentions as presented,
Consultant shall guarantee that, at the option of the (4m on, either: (1) the insurer
shall reduce or eliminate such deductibles or s-'s'nsured tions as respects the
Commission, its directors, officials, officers, em » eesnd agen or, (2) the Consultant
shall procure a bond guaranteeing payment c, „ .s ' and related investigation costs,
claims and administrative and defense expense.
31.7 Acce•tabilit of Ins
a current A.M. Best's rating no less than
satisfactory to the Commission
31.8 Verific
original certificates of insuran
Agreement on forms
for each insuranc
coverage on its be
by the Commission
require complete, certifi
is to be placed with insurers with
d to do business in California, and
Consultant shall furnish Commission with
d en.. ements effecting coverage required by this
he Commission. The certificates and endorsements
ed by a person authorized by that insurer to bind
ates and endorsements must be received and approved
commences. The Commission reserves the right to
ies of all required insurance policies, at any time.
31.9 Subconsultant Insurance Requirements. Consultant shall not allow
any subcontractors or subconsultants to commence work on any subcontract until they
have provided evidence satisfactory to the Commission that they have secured all
insurance required under this Section. Policies of commercial general liability insurance
provided by such subcontractors or subconsultants shall be endorsed to name the
Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement
providing the exact same coverage. If requested by Consultant, the Commission may
approve different scopes or minimum limits of insurance for particular subcontractors or
subconsultants.
31.10 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
22
342
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.
32. 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 devic , equipment and wearing
apparel as are necessary or lawfully required to preven, = cidents or injuries; and (C)
adequate facilities for the proper inspection and maint of all safety measures.
Pursuant to the authority contained in Section 59 : "the Vehi Code, the Commission
has determined that the Project will contain area : ` at ar- open to blic traffic. Consultant
shall comply with all of the requirements set fo ; D dons 11, 12, 13, 14, and 15 of the
Vehicle Code. Consultant shall take all reaso y necessary precautions for safe
operation of its vehicles and the protects ,.; _he tra W g public from injury and damage
from such vehicles.
33. Additional Work.
outside of, the Services to
performed pursuant to a se
foregoing, the Commissi
other than a Cardinal
change which is "o
not be regarded as
parties when the Agre
Cardinal Change would
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 4220.1 D, paragraph 9(f).
tivities that are in addition to, or otherwise
rsuant to this Agreement shall only be
etween the parties. Notwithstanding the
tive Director may make a change to the Agreement,
urposes of this Agreement, a Cardinal Change is a
the Agreement; in other words, work which should
fairly and reasonably within the contemplation of the
entered into. An example of a change which is not a
ere, in a contract to construct a building there are many
(a) In addition to the changes authorized above, a
modification which is signed by Consultant and the Commission's Executive Director, 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").
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(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.
34. Prohibited Interests.
34.1 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 Co ission shall have the right
to rescind this Agreement without liability.
34.2 Consultant Conflict of Interest
(a) Consultant shall di
relationship with Commission that may ha
Agreement, or any ensuing Commission constr
current clients who may have a financial -st in
ensuing Commission construction projec
y finan I, business, or other
act upon the outcome of this
project. Consultant shall also list
utcome of this Agreement, or any
w.
(b) Cons here 1'`r ertifies that it does not now have, nor shall it
acquire any financial or buss r ..< rest
services under this Agreem
t would conflict with the performance of
(c s►n..ontract in excess of $25,000 entered into as a result of
this Agreement, sh provisions of this Article.
Itant hereby certifies that neither Consultant, nor any firm
affiliated with Consultan ;rt on any construction contract, or on any contract to provide
construction inspection for construction project resulting from this contract. An affiliated
firm is one, which is subject to the control of the same persons through joint -ownership, or
otherwise.
(e) Except for subconsultants whose services are limited to
providing surveying or materials testing information, no subconsultant who has provided
design services in connection with this contract shall be eligible to bid on any construction
contract, or on any contract to provide construction inspection for any construction project
resulting from this contract.
34.3 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.
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344
34.4 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.
34.5 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, commis 'on, percentage, brokerage
fee, gift, or any other consideration, contingent upon esulting from the award or
formation of this Agreement. For breach or violation warranty, the Commission
shall have the right to terminate this Agreement w't %ut li. ,'.ity pursuant to the terms
herein, or at its discretion to deduct from the eement e or consideration, or
otherwise recover, the full amount of such fee mmi ion, per ntage, brokerage fee,
gift, or contingent fee.
34.6 Rebates Kickbac .§ _ :ether .�L -wful Consideration. Consultant
warrants that this Agreement was not o ed through rebates kickbacks or
other unlawful consideration, either •rom • p- `o any Commission employee. For
breach or violation of this warr •m •.ion shall have the right in its discretion; to
terminate this Agreement w li.. . lity; t• gay only for the value of the work actually
performed; or to deduct fro - ice; or otherwise recover the full amount of
such rebate, kickback o •he awful consideration.
34.7 ''` ovens ga t Expenditure of Commission, State or Federal
Funds for Lobb in•' he Conk. Itant certifies that to the best of his/ her knowledge and
belief no state, federa loca •ency appropriated funds have been paid, or will be paid
by or on behalf of the Co t to any person for the purpose of influencing or attempting
to influence an officer or e ' ployee 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 "G", Standard
Form-LLL, "Disclosure Form to Report Lobbying," in accordance with the attached
instructions.
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345
(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.
(c) The Consultant also agrees by signing this Agreement that
he/she shall require that the language set forth in this Section 3.23.5 be included in all
Consultant subcontracts which exceed $100,000, and that all such subcontractors shall
certify and disclose accordingly.
34.8 Employment Adverse to the Commissio Consultant shall notify the
Commission, and shall obtain the Commission's written co► nt, prior to accepting work to
assist with or participate in a third -party lawsuit or other ; ,or administrative proceeding
against the Commission during the term of this Agre
35. Equal Opportunity Employment.
opportunity employer and it shall not discrimin
applicant for employment because of race, religio
age. Such non-discrimination shall incl •ut no
initial employment, upgrading, demotion,
layoff or termination.
nt repre ': is that it is an equal
any subcontractor, employee or
or, national origin, ancestry, sex or
limited to, all activities related to
ent or recruitment advertising,
36. Right to Em • lo Commission reserves the right to employ
other consultants in connec
37. Govern! h • reement shall be governed by and construed with the
laws of the State of. f; ifornia en �, shall be in Riverside County.
38. Dispute ",ttorne ' Fees.
38.1 Prior ommencing 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.
38.2. 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.
39. Time of Essence. Time is of the essence for each and every provision of this
Agreement.
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40. 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.
41. 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:
Monument ROW, Inc.
200 Spectrum Center, Suite 300
Irvine, CA 92618
Attn: Joey Mendoza
COMMISSION:
Riverside County
Transportation Commission
4080 Lemon Street, 3rd Floor
Riverside, CA 92501
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.
42. 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' derstanding concerning the performance of
the Services.
43. Amendment or o . ' ation. o supplement, modification, or amendment of
this Agreement shall be binding u ss executed in writing and signed by both Parties.
44. 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.
45. 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.
46. Provisions Applicable When State Funds or Federal Funds Are Involved.
When funding for the Services under a Task Order is provided by this Agreement are
provided, in whole or in part, from the United States Department of Transportation,
Consultant shall also fully and adequately comply with the provisions included in Exhibit
"D" (Federal Department of Transportation Requirements and California Department of
Transportation (Caltrans) DBE program 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
27
347
provisions included in Exhibit "F" (FTA Requirements) attached hereto and incorporated
herein by reference
47. 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.
48. No Third Party Beneficiaries. There are no intended third party beneficiaries
of any right or obligation assumed by the Parties.
49. 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' Compe sation or to undertake self-
insurance in accordance with the provisions of that Code, .,;`> agrees to comply with such
provisions before commencing the performance of the ces.
50. Counterparts. This Agreement may b gned in nterparts, each of which
shall constitute an original.
51. Attorney Client Privilege. The Pa ognize that, during the Project, the
Commission and its attorneys will engag=;.' comm ► ' '; ation that gives rise to an attorney
client privilege of confidentiality (" Confid m ' i ,. m ation"). Given the nature of the
work done by Consultant for the Commis` �e necessary for the Consultant to
participate in Confidential Comm ions. . the extent that (i) the Consultant is a party
to any Confidential Commu .tion and a third party seeks discovery of such
communications, then the C. ulta - • - seemed to be an agent of the Commission
solely for purposes of presery a o =y client privilege in the relevant Confidential
Communication. Any - or client privilege shall be held by the Commission and
the Consultant is autho d aive that privilege or, otherwise, disclose such
Confidential Comm t as set forth below. This Section is intended to maintain
the privilege in any lege• '` onfidential Communications that are (1) between and
among Commission, Co and Commission's attorneys; (2) between Consultant (on
behalf of the Commission) d Commission's attorneys; (3) Confidential Communications
that occur in Closed Session meetings wherein the Commission, the Commission's
attorneys and Consultant are present; and (4) between Commission and Consultant
wherein the substance of the Confidential Communication is conveyed to/from the
Consultant.
Consultant may disclose a Confidential Communication to the extent such
disclosure is required by legal process, by a court of competent jurisdiction or by any other
governmental authority, provided that any such disclosure shall be limited to the specific
part of the Confidential Communication required to be disclosed and provided that
Consultant first comply with the requirements set forth in this paragraph. As soon as
practicable after Consultant becomes aware that it is required, or may become required, to
disclose the Confidential Communication for such reason, Consultant shall notify the
Commission in writing, in order to allow the Commission to pursue legal remedies designed
28
348
to limit the Confidential Communication required to be disclosed or to assure the
confidential treatment of the disclosed information following its disclosure. Consultant shall
cooperate with the Commission, on a reimbursable basis, to assist the Commission in
limiting the scope of disclosure or assuring the confidential treatment of any disclosed
information.
52. 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.
53. 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.
54. 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.
55. Incorporation of Recitals. The recitals set forth above are true and correct
and are incorporated into this Agreement as though fully set forth herein.
56. 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.
[Signatures on following page]
29
349
SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH PROPOSITION 1 B, FTA AND FHWA FUNDING ASSISTANCE FOR
RIGHT OF WAY SUPPORT SERVICES
IN WITNESS WHEREOF, this Agreement was executed on the date first written
above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
CONSULTANT
MONUMENT ROW, INC.
By:
Anne Mayer
Approved as to Form:
By:
i natur
me
. Ie
Best, Best & Krieger L
General Counsel
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.
30
350
EXHIBIT "A" - SCOPE OF SERVICES
RIGHT OF WAY SUPPORT SERVICES
The Riverside County Transportation Commission (Commission) and the Western
Riverside County Regional Conservation Authority (RCA) have procured one or more
Consultants (Consultant or Right of Way Support Services Consultant) to provide Right
of Way Support Services on an On-Call/as needed basis in support of current
Commission and RCA Projects, Measure A Projects, and projects done in partnership
with other agencies, pursuant to Task Orders issued in the sole discretion of the
Commission and/or the RCA.
Task Orders shall be awarded through an additional qualification -based selection
process.
Such Right of Way Support Services mayinclude, b •ot limited to, the following
work programs, and/or comply with applicable re me elow:
• Project Management
Consultant shall provide project ma ent services for all functions and
tasks under this contract. •nsulta hall be responsible for project
management and planning, . g, st estimates, budgeting, and
coordination with Consultan . r .. mission and/or RCA staff, sub
consultants and oth ission and/or RCA consultants, reporting,
documentation of.,:: acti ies • maintaining all records and documents.
Consultant shal .n, :cilitate and prepare meeting minutes for
regular and/or pe status eetings as requested by the Commission
and/or th= ultant shall ensure project completion based on
milestorr and d- lin- nd that all work complies with applicable Federal,
State a u,,•cal stat and regulations, including but not limited to the Uniform
Relocatio ,d R- ' Property Acquisition Policies Act of 1970, as amended,
and implem in .y 49 CFR Part 24; the State of California Government
Code, the Sta `- of California Relocation Assistance and Real Property
Acquisition Guidelines (Title 25, California Code of Regulations Ch 6, Art 1,
Section 6000 et seq.), the California Code of Civil Procedure, the Uniform
Standards for Federal Land Acquisition Act, the California Public Utilities Code,
the California Streets and Highways Code, the Federal Transit Administration
Real Estate Policies, the Caltrans Right of Way Manual, and the Commission's
and the RCA's Right of Way Manual.
• Title & Escrow Services
Consultant shall order preliminary title reports, vesting deeds, title policies, and
litigation guarantees as needed, coordinate opening and closing of escrows,
monitor progress, determine title deficiencies, provide assistance to resolve
and cure title deficiencies, and assist in obtaining any partial reconveyances.
Exhibit A
351
• Appraisal Coordination
Consultant shall coordinate with the Commission's and the RCA's on -call
appraisal, appraisal review, goodwill, and fixtures and equipment consultants
to perform internal review of appraisals prior to submittal to Review Appraiser.
• Acquisition/Negotiation
Consultant shall provide all acquisition services, including, but not limited to,
coordinating all phases of the acquisition, assuring that acquisition schedules
meet project schedules, documenting all activity, and maintaining all records
and documents. Consultant shall prepare all written correspondence, any
administrative settlements, and shall coordinate with Commission's and/or
RCA's legal counsel and any other on -call consultants as required. Consultant
shall prepare acquisition packages, including recommendation of the amount
of just compensation or market value, and maintain parcel diaries for each file.
• Relocation Assistance
Consultant shall provide relocation services to assure that displaced individuals
and businesses promptly receive relocation benefits consistent with federal,
state, and local regulations, Caltrans Policies and Procedures, and the
Commission's and/or the RCA's Right of Way Policies and Procedures.
• Utility Relocation Coordination
Consultant shall work with Commission and/or RCA staff and other
participatin• agencies to provide utility relocation services that may include, but
not be I',,: ; ed to, identifying public and private utilities, researching and
identif " + prior rights, obtaining utility as -built plans, coordination of potholing
and field eys with the design team, preparation of utility agreements, and
obtaining r .ti•° plans and cost estimates from the utility owners.
• Eminent Domain Coordination
Consultant shall coordinate, assist and participate as required with
Commission and Commission's legal counsel in the activities required for
Resolutions of Necessity, Caltrans's Condemnation Evaluation and Panel
Review Meetings, mediations, depositions and trials.
• RCA Property Owner Outreach
Consultant shall prepare mailings to various properties for land necessary for
conservation efforts, as an example, Willing Seller, Habitat Acquisition and
Negotiation Strategies (HANS), Grant Funded requiring Department of General
Services approvals, and Donation acquisitions.
Exhibit A
352
• Property Management
Consultant shall perform property management activities related to acquired
properties until construction start, including but not limited to, property
maintenance, repair, coordination of rental activities, demolition, and clearance
of property improvements.
• Property Maintenance and Repair Services
Consultant shall perform property maintenance and repair services, including
but not limited to, weed abatement and vegetation control, litter removal and
clean-up of debris, fencing repairs, and installation, maintenance, and repair of
property signs related to property owned by Commission or RCA.
• Right of Way Certification
Consultant shall ensure that all right of way requirements have been secured
by the date required. Consultant shall prepare the Right of Way Certification
forms and assemble and package all supporting documents for submittal to
Caltrans. Consultant shall respond to any comments and revise as necessary.
• Construction Support
Consultant shall assist Commission and/or RCA in all phases of construction,
including Temporary Construction Easement notifications, preparing and
providing Right of Way Obligation lists, utility coordination, and contractor
compliance with Right of Way agreements.
• Project Closeou
Prepare and process conveyance deeds to transfer all acquired right of way to
Caltrans or other third -party entities, if applicable. Process final utility invoices
and close out utility files. Prepare files and submit to Caltrans and/or the
Commission or the RCA.
Other right of way services may include, but not be limited to the following:
o Obtaining Rights of Entry
o Preparing Railroad Agreements
o Review of Site Assessment Reports
o Provide bilingual acquisition and relocation agents
o Identify potential excess land for planning purposes
Exhibit A
353
EXHIBIT "B"
SAMPLE TASK ORDER FORM
ON --CALL RIGHT OF WAY SUPPORT SERVICES
REQUEST FOR TASK ORDER PROPOSAL
Background
The Riverside County Transportation Commission (the "Commission") issued Request for Proposal
No. 19-31-045-00 (the "RFP"), on January 17, 2019, to seek out a bench of qualified consultants to
provide on -call right of way support services. Pursuant to the RFP, the Commission selected
qualified firms to serve as on -call consultants for various t of way support services
("Consultants"). The RFP specified that the Commission w ek proposals from the selected
The selected firms are:
firms for right of way support consulting projects, a
ee
This Right of Way Support Services Request for Ta i rde • posal ("Task Order RFP") seeks the
following services:
Process Timeline
The Commission intends to awa l/transi operations consulting services task order for the
above described services ("Task Order") pursuant to this Task Order RFP to the highest ranked
proposal, subject to l itations, i cordance with the following timeline:
a. Requests for Clarificati
The deadline for requLsts for clarification regarding this Task Order RFP is (INSERT
DATE). Requests for clarification shall be submitted via email to
b. Proposal Deadline Date
i. The Commission will accept proposals submitted to the Commission office prior to
(INSERT DATE and Time).
ii. Proposals must be submitted to
in format.
Submittal Requirements
Each proposal submitted in response to this Task Order RFP must include the following information
in the order specified below.
Exhibit B-1
354
The proposal content and format is as follows:
a. Proposals shall be typed and submitted on 8.5 x 11 inch paper. Charts and schedules may
be included in 11" x 17" format, which will be counted as 2 pages and included in the total
page count. Proposals should not exceed pages in length, excluding any RCTC-provided
forms or attachments. The beginning of a section must be clearly indicated between sections
on a page.
b. Proposals must include the following sections, organized as indicated.
SECTION 1— PROPOSAL LETTER
Proposal Letter: This letter must be signed by a person or persons authorized to
legally bind the Consultant to enter into the sk Order.
SECTION 2 — QUALIFICATIONS ( IRM A RSONNEL
This section should identify the qua li' icatio,of the firm, the individuals and any
subconsultants proposed to •rovide the Task Order services. These must be
individuals proposed by Con ' the nal RFP.
ii. Provide qua atio regarding your firm's and the proposed
personnel's a ation descriptions of relevant projects previously
perform . nd re nces this particular Task Order RFP, including:
(A) exper = of your firm in performing similar services, and examples of such
ices, including references. Include any information that may be of value
the Comm': sioi n evaluating your firm's qualifications for the Task Order
ces;
ey person who will perform the required services and their key
(C) descriptions of the experience and qualifications of proposed key
personnel;
(D) descriptions of relevant projects previously performed by the proposed
key personnel. Include what services were performed, the date of the project,
and unique features of the project which would be beneficial to the
Commission; and
(E) a written assurance that the key individuals listed and identified will
perform the work and will not be substituted with other personnel without the
Commission's prior approval.
Exhibit B-2
355
SECTION 3 — UNDERSTANDING AND APPROACH
Describe the services and activities that your firm proposes to provide to the
Commission. Include the following information:
Demonstrate your firm's understanding of the nature of the work and the approach to
be taken. Provide an explanation of the approach to providing the services requested
under this Task Order RFP. Describe how Consultant would tailor its services to
meet the needs of the Commission addressing the tasks and discussing the
deliverables. Include a detailed proposed timeline for completing the services.
Provide a list of documents and/or information your firm anticipates needing from
the Commission and its consultants to perform the ices.
SECTION 4 — PROPOSAL PRICING
Proposal Pricing Form. Provide a propoossed price
is Task Order request.
Pricing shall itemize all items that will be charged to t Task Order, including
anticipated mileage, printing or other direct cost categories previously identified in
your firm's Schedule of Other Direct Costs. Costs shall be segregated to show staff
hours, rates, classifications, administrative ov -head, and other direct costs, if any.
Hourly rates must not exceed rates for classifications noted in the original RFP
Evaluation Process
a. Basis of Award
Proposals will be evaluated in accordance with the stated evaluation criteria. The Commission
reserves the right to award the contract not to a proposer with the highest ranked proposal, but to the
proposal who will provide the best veramatch to the task order requirements. The Commission
also reserves the right to postpone a ecision, request follow up material, or cancel or withdraw this
request in its sole and absolute discretion. The Commission will award the Task Order to the best
overall match to the Task Order RFP requirements and who serves the Commission's interest.
b. Evaluation Criteria —100 total points possible
1. Qualifications of Firm and Personnel (INSERT NUMBER points max)
Experience in performing work similar in nature and/or related to the work
described in this Task Order RFP; appropriateness of personnel to their
assigned work tasks; logic of project organization; adequacy of labor
commitment.
Exhibit B-3
356
2. Understanding & Approach (INSERT NUMBER points max)
Depth of Offeror's understanding of Commission's requirements listed in this
Task Order RFP; understanding of the project issues and potential conflicts;
and ability to meet deadlines.
3. Cost (INSERT NUMBER points max)
Reasonableness of the total cost based on anticipated requirements; adequacy
of data in support of figures quoted; basis on which prices are quotes.
Proposer Price Score = Lowest Price Proposed X Points
Proposer's Price
Commission Rights
a) The Commission shall not be liable for proposal ppepara 'on related expenses.
b) The Commission retains the right to negoti
chooses not to accept the proposal as offere
c) The Commission retains the right to consi
comply with federal and/or state law.
d) The Commission retains t
thereof, at its discretion.
e) The Commission reta
RFP.
ith the highest scoring Consultant if it
y other factors it deems necessary to
ht to V ..t or -ject any and all proposals, or any part
he right to Oncel, amend or withdraw the entire Task Order
VI. Notification nd Debriefi g
Consultants submitting a proposal pursuant to this Task Order RFP shall be informed of the
Commission's decision regarding award of the Task Order. Any Consultant not awarded a Task
Order pursuant to this Task Order RFP may request an explanation regarding the strengths and
weaknesses of its proposal. Such request must be made within ten (10) days of notification of
Task Order award.
Exhibit B-4
357
EXHIBIT "C"- COMPENSATION AND PAYMENT
Exhibit C-1
358
EXHIBIT "C"
COMPENSATION SUMMARY
FIRM
PROJECT TASKS/ROLE
COST
Prime Consultant:
Monument ROW, Inc.
Right of Way Support Services
$ 3,300,000.00
Sub Consultants:
Commonwealth
Title and Escrow Services
TBD per Task Order
SLS Property Solutions
Board Ups and Maintenance
TBD per Task Order
Carry -All Property Maintenance
Weed Abatement
TBD per Task Order
Aztec
Potholing
TBD per Task Order
J&G Industries
Demolition Services
TBD per Task Order
A
441,c,
OTAL COSTS
t 3,300,000.00
1 Commission authorization pertains to total contract award amount. Compensatio 'ustments between consultants may occur;
however, the maximum total compensation authorized may not be exceeded.
359
EXHIBIT "D"
FHWA/ CALTRANS REQUIREMENTS
1. 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
unlawfully discriminate, harass, or allow harassment against any employee or applicant for
employment because of sex, race, color, ancestry, religious red, national origin, physical
disability (including HIV and AIDS), mental disability, med.
(over 40), marital status, and denial of family care leav
shall insure that the evaluation and treatment of
employment are free from such discriminati
subconsultants shall comply with the provision
(Gov. Code §12990 (a -f) et seq.) and the applic
(California Code of Regulations, Title 2, Section 7
of the Fair Employment and Housing Co ��� �� imp
12990 (a -f), set forth in Chapter 5 of
Regulations, are incorporated into
if set forth in full. Consultant
obligations under this claus
bargaining or other Agreeme
C. If this Agree
relative to Title VI
Transportation — Titl
the 1964 Civil Rights A
condition (e.g., cancer), age
sultant and subconsultants
e `"�� r. ees and applicants for
hara Gw ent. Consultant and
r Employment and Housing Act
ulations promulgated there under
et seq.). The applicable regulations
enting Government Code Section
Ale 2 of the California Code of
t by eference and made a part hereof as
sultants shall give written notice of their
ations with which they have a collective
nded, the Consultant shall comply with regulations
ion federally -assisted programs of the Department of
Federal Regulations, Part 21 - Effectuation of Title VI of
I provides that the recipients of federal assistance will
implement and maintain icy 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.
D. If this Agreement is federally funded, the Consultant, with regard to the work performed
by it during the Agreement shall act in accordance with Title VI. Specifically, the Consultant
shall not discriminate on the basis of race, color, national origin, religion, sex, age, or
disability in the selection and retention of Subconsultants, including procurement of
materials and leases of equipment. The Consultant shall not participate either directly or
indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT's Regulations,
including employment practices when the Agreement covers a program whose goal is
employment.
Exhibit D-1
360
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 rec•4; <,, dation for award, but will be
considered in determining CONSULTANT responsibilia I isc • ,; ;, es must indicate to whom
exceptions apply, initiating agency, and dates of
C. Exceptions to the Federal Government Exclu
General Services Administration are to be
Administration.
3. DISCRIMINATION
The Commission shall not di
the award and performance
Caltrans DBE program
all necessary and re
the award and ad
es List System maintained by the
mined by the Federal highway
sis of race, color, national origin, or sex in
ed contract or in the implementation of the
ments of 49 CFR Part 26. The Commission shall take
der 49 CFR Part 26 to ensure nondiscrimination in
0 -assisted contracts.
Consultant or subcont ` ..r - :11 not discriminate on the basis of race, color, national
origin, of sex in the perfor i e 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.
4. PROMPT PAYMENT
Consultant agrees to pay each subcontractor under this prime contract for satisfactory
performance of its contract no later than 10 days from the receipt of each payment the
prime contractor receives from the Commission. Any delay or postponement of payment
from the above referenced time frame may occur only for good cause following written
Exhibit D-2
361
approval of the Commission. This clause applies to both DBE and non -DBE
subcontractors.
5. RELEASE OF RETAINAGE
No retainage will be withheld by the Agency from progress payments due the prime
consultant. Retainage by the prime 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 prime 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 the prime
consultant or subconsultant in the event of a dispute involving late payment or nonpayment
by the prime consultant or deficient subconsultant perform e, or noncompliance by a
subconsultant. This provision applies to both DBE and BE prime consultants and
subconsultants.
6. LEGAL REMEDIES
In addition to those contract remedies set forth r evant provisions of California law,
either Party to this Agreement may, where applica seek legal redress for violations of
this Agreement pursuant to the relevant provisions C.F.R. Parts 23 and 26, to the
relevant federal or state statutory provisions governin civil rights violations, and to the
relevant federal and state provisions governing false c aims 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 PART
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 Exhibits "E" of this Agreement in compliance with the
Caltrans DBE program, a final utilization report in the form provided by the Commission,
and any other Caltrans required DBE forms.
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." By obtaining DBE participation on this
Agreement, Consultant will assist Caltrans in meeting its federally mandated statewide
overall DBE goal.
B. This Agreement does not have a DBE goal, but DBE goals may be included with
each task order request for proposals. If a DBE subconsultant is unable to perform, the
Exhibit D-3
362
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. 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.
D. Any subcontract entered into as a result of this Ag ment shall contain all of the
provisions of this section.
E. A DBE may be terminated only with prior wr n approva the Commission and
only for the reasons specified in 49 CFR 26.53 rior equesti Commission consent
for the termination, the prime consultant must m tf rocedural requirements specified
in 49 CFR 26.53(f).
8. DBE PARTICIPATION GENERAL
It is Consultant's responsibility e y info;' ed regarding the requirements of 49 CFR,
Part 26, and the Caltrans D rogr �Pa `` ular attention is directed to the following:
A. A DBE must be •call iness firm defined pursuant to 13 CFR 121 and be
certified through the ' . ifor ni Certification Program (CUCP).
B. A certified DB
pate as a prime contractor, subcontractor, joint venture
partner, as a vendor o er' or supplies, or as a trucking company.
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 8 below.
Exhibit D-4
363
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.
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 materi..,r;. and supplies used on the
Agreement, for negotiating price, determining quality and; "'iantity, ordering the material,
and installing (where applicable) and paying for the mat- elf. To determine whether a
DBE is performing a commercially useful functi eva ''m.e the amount of work
subcontracted, industry practices; whether the a! y' nt the fir to be paid under the
Agreement is commensurate with the work it ctua,R;. perform g, and other relevant
factors.
B. A DBE does not perform a comm
an extra participant in a transaction, Agre
in order to obtain the appearance ,•. ! BE
such an extra participant, exami
not participate.
C. If a DBE does no
total cost of its Agre
portion of the wor
industry practice for
commercially useful fu
ction if its role is limited to that of
e t through which funds are passed
pati.` In determining whether a DBE is
actions, particularly those in which DBEs do
exercise responsibility for at least thirty percent of the
n work force, or the DBE subcontracts a greater
me than would be expected on the basis of normal
rk involved, it will be presumed that it is not performing a
10. DBE CERTIFICATION AND DE -CERTIFICATION STATUS
If a DBE subcontractor is decertified during the life of the Agreement, 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 or vendor and the total dollar amount actually paid each
Exhibit D-5
364
DBE or vendor, 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.
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 twenty-
five percent (25%) of the dollar value of the invoice being withheld from payment until the
form is submitted. The 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 e C•' mission's Contract Administrator
documentation showing the truck number, e of owner, California Highway Patrol CA
number, and if applicable, the DBE certifica number of the truck owner for all trucks
used during that month. This documentationishall 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
Exhibit D-6
365
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. REPORTING PARTICIPATION OF DBE TRUCKING COMPANIES
When Reporting DBE Participation, Participation of DBE trucking companies may count as
follows:
A. The DBE must be responsible for the management and supervision of the entire
trucking operation for which it is responsible.
B. The DBE must itself own and operate at least one fully licensed, insure, and
operational truck used on the AgreeVnt.
C. The DBE receives credit r the total value of the transportation services it provides
on the Agreement using c owns, insures, and operates using drivers it employs.
D. The DBE may lease trucks from another DBE firm including an owner -operator who
is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the
total value of the transportation services the lessee DBE provides on the Agreement.
E. The DBE may also lease trucks from a non -DBE firm, including an owner -operator.
The DBE who leases trucks from a non -DBE is entitled to credit only for the fee or
commission it receives as a result of the lease arrangement. The DBE does not receive
credit for the total value of the transportation services provided by the lessee, since these
services are not provided by the DBE.
F. For the purposes of this section, a lease must indicate that the DBE has exclusive
use and control over the truck. This does not preclude the leased truck from working for
others during the term of the lease with the consent of the DBE, as long as the lease gives
Exhibit D-7
366
the DBE absolute priority for use of the leased truck. Leased trucks must display the name
and identification number of the DBE.
14. DEBARMENT, SUSPENSION AND OTHER INELIGIBILITY AND VOLUNTARY
EXCLUSION
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 iss ALP. compince with the Energy Policy and
Conservation Act (Pub. L. 94-163, 89 Sta
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.
Exhibit D-8
367
EXHIBIT "E"
CONSULTANT DBE COMMITMENT
Exhibit E-1
368
EXHIBIT "E"
CONSULTANT DBE COMMITMENT
Consultant to Complete this Section
><. Local Agency Name. Riverside County Transportation Commission
2. Project Location: Riverside County, CA
3. Project Description:
4. Consultant Name: Monument
5. Contract DBE Goal %: 12%
DBE Commitment Informat*n
6. Description of Services to be Provided
7. DBE Firm
Contact Information
8. DBE Cert.
Number
9. DBE
Right -of -Way Services
Monument
46456
100%
Exhibit E-1
17336.00603\31171937.1
369
EXHIBIT "F" - FTA PROVISIONS
Exhibit F-1
370
FEDERAL TRANSIT ADMINISTRATION REQUIREMENTS
Notwithstanding anything to the contrary contained in the Agreement, including
the other Exhibits attached thereto, the following provisions shall apply if funding for the
Services is provided, in whole or in part, from the Federal Transit Administration ("FTA").
In addition, the exhibits attached to this Agreement, may be replaced and substituted
with similar forms required by FTA. Consultant agrees to complete any such substitute
forms.
1. NO FEDERAL GOVERNMENT OBLIGATIONS TO THIRD -PARTIES
BY USE OF A DISCLAIMER
(1) The Commission and Consultant ackno
notwithstanding any concurrence by the Federal
the solicitation or award of the underlying co
consent by the Federal Government ("Gove
not a party to this contract and shall not
to the Commission, Consultant, or any
contract) pertaining to any matter resultin
(2) The Consultant agrees to
financed in whole or in part with F
agreed that the clause s
who will be subject to
ledge and agree that,
vernment in or approval of
absent the express written
Federal Government is
ubject to a ",+bligations or liabilities
(whether or not a party to that
the underlying contract.
ve clause in each subcontract
nce provided by FTA. It is further
dified, except to identify the subconsultant
2. PROGRA ND FALSE OR FRAUDULENT STATEMENTS
AND RELATED AC
(1) The Consulta ": `' acknowl = ';� es ' hat the provisions of the Program Fraud Civil
Remedies Act of 1
ended, 31 U.S.C. §§ 3801 et seq. and U.S. DOT
regulations, "Program • " ``vil Remedies," 49 C.F.R. Part 31, apply to its actions
pertaining to this Project. - pon 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.
1 UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL TRANSIT ADMINISTRATION MASTER
AGREEMENT For Federal Transit Administration Agreements authorized by 49 U.S.C. chapter 53, Title 23, U.S.C. (Highways),
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, the National Capital Transportation Act of 1969,
as amended, the Transportation Equity Act for the 21st Century, as amended, 23 U.S.C. § 101 note, or other Federal enabling
legislation; FTA MA(14); October 1, 2007; [http://www.fta.dot.qov/documents/14-Master.pdfl.
APPENDIX N - 1
(2) The Consultant also acknowledges that if it makes, or causes to be made,
a false, fictitious, or fraudulent claim, statement, submission, certification,
assurance, or representation 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. chapter 53
or any other Federal law, the Government reserves the right to impose the
penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5323(1) on the Consultant, to the
extent the Federal Government deems appropriate.
(3) 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 provision
3. ACCESS TO RECORDS
(1) The Consultant agrees to provide t "e Commission, the FTA Administrator,
the U.S. Secretary of Transportation, the Comptroller General of the United
States or any of their authorized representatives access to all Project work,
materials, payrolls, and other data of the Consultant which are directly pertinent
to this contract as required by 49 U.S.C. § 5325(g).
(2) The Consultant agrees to permit any of the foregoing parties to reproduce
by any means whatsoever or to copy excerpts and transcriptions as reasonably
needed.
(3) The Consultant agrees 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 transmission of the final expenditure report, 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 the Commission, 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).
(4) The Consultant agrees to require its subcontractors and third party
contractors to provide the same.
4. FEDERAL CHANGES
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 Grant Agreement or Cooperative Agreement between the Commission
and the Federal Government
APPENDPX N - 2
("Grant Agreement or Cooperative Agreement"), 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 REQUIREMENTS
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000d et seq., U.S. DOT regulations, "Nondiscrimination in
Federally -Assisted Programs of the Department of Transportation — Effectuation of Title
VI of the Civil Rights Act," 49 C.F.R. Part 21, FTA Circular 4702.1A, "Title VI and Title VI
— Dependent Guidelines for Federal Transit Administration Recipients," May 13, 2007,
Federal transit law at 49 U.S.C. § 5332, the Consultant agrees that it will not
discriminate against any employee or applicant for employ► ;,-nt because of race, color,
creed, national origin, sex, age, or disability. In adds the Consultant agrees to
comply with applicable Federal implementing re• i. and other implementing
requirements FTA may issue.
(2) Equal Employment Opportunity - The
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin
Title VII of the Civil Rights Act, as
employment opportunity provi
employment opportunity r
regulations, "Office of Fede
Opportunity, Departm
Executive Order
Executive Order
Employment Opportu
statutes, executive orde
qual employment opportunity
nsultant agrees to comply with
U.S.C. § 2000e, and equal
.S.C. § 5332, and all applicable equal
.S. Department of Labor (U.S. DOL)
ompliance Programs, Equal Employment
" 41 C.F.R. Parts 60 et seq., (which implement
I Employment Opportunity," as amended by
mending Executive Order 11246 Relating to Equal
.S.C. § 2000e note), and with any applicable Federal
gulations, 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.
(3) Age - In accordance with the Age Discrimination in Employment Act, as amended,
29 U.S.C. §§ 621 through 634 and Federal transit law at 49 U.S.C. § 5332, the
Consultant agrees to refrain from discrimination against present and prospective
APPENDIX N - 3
employees for reason of age. In addition, the Consultant agrees to comply with any
implementing requirements FTA may issue.
(4) Disabilities - In accordance with section 102 of the Americans with Disabilities Act,
as amended, 42 U.S.C. § 12112, the Consultant agrees 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.
(5) DBE Program Compliance - The Commission has established a DBE Program
pursuant to 49 C.F.R. Part 26, which applies to FTA funded agreements. The
requirements and procedures of the Commission's DBE Program are hereby
incorporated by reference into this Agreement. Consultant shall complete Exhibits "G"
and "H" of this Agreement, or similar forms to be provided by the Commission, in
compliance with the Commission's DBE Program for FTA funded agreements. Failure
by Consultant or its subcontractor(s) to carry out the Commission's DBE Program
procedures and requirements, or the applicable requirements of 49 C.F.R. Part 26,
section 1101(b) of SAFETEA-LU, 23 U.S.C. § 101 note, and U.S. DOT regulations,
"Participation by Disadvantaged Business Enterprises in Department of Transportation
Financial Assistance Programs," 49 C.F.R. Part 26, shall be considered a material
breach of this Agreement. Such a material breach may be grounds for termination of
this Agreement or such other appropriate administrative remedy as the Commission
deems appropriate. The Consultant shall ensure that a provision mandating compliance
with the Commission's DBE Program for FTA funded agreements is included in any and
all sub -agreements entered into which arise out of or are related to this Agreement.
Consultant shall also promptly provide the Commission with all necessary information
related to the DBE status of its subcontractors. Should the DBE status of any of its
subcontractors change in any way, Consultant shall promptly inform the Commission of
this change.
(6) 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. TERMINATION PROVISIONS
The termination provisions found at Section 21 of this Agreement are consistent with the
termination provisions suggested by FTA for the protection of the Federal Government.
The termination provisions found at Section 21 of this Agreement control termination
under this Agreement.
APPEND4X N - 4
7. DEBARMENT AND SUSPENSION
Instructions for Certification
1. By signing and submitting a Proposal, the Consultant is providing the signed
certification set out below.
2. The certification in this clause is a material representation of fact upon which reliance
was placed when this transaction was entered into. If it is later determined that the
Consultant knowingly rendered an erroneous certification, in addition to other remedies
available to the Federal Government, Commission may pursue available remedies,
including suspension and/or debarment.
3. The Consultant shall provide immediate written noti
the Consultant learns that its certification was e
become erroneous by reason of changed circums es.
4. The terms "covered transaction," "debarr
covered transaction," "participant," "persons,
"principal," "proposal," and "voluntarily ded,'
meanings set out in the Definitions a
Commission if at any time
when submitted or has
ended," "ineligible," "lower tier
ower tier covered transaction,"
used in this clause, have the
sections of rules implementing
Executive Order 12549 [49 CFR = 29] may contact Commission for assistance
in obtaining a copy of those re
5. The Consultant agrees by
transaction be entere
transaction with a
excluded from parti
Commission.
roposal that, should the proposed covered
not knowingly enter into any lower tier covered
red, suspended, declared ineligible, or voluntarily
s covered transaction, unless authorized in writing by
6. The Consultant further agrees by submitting a Proposal that it will include the clause
titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary
Exclusion - Lower Tier Covered Transaction", without modification, in all lower tier
covered transactions and in all solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective
participant in a lower tier covered transaction that it is not debarred, suspended, ineligible,
or voluntarily excluded from the covered transaction, unless it knows that the certification
is erroneous. A participant may decide the method and frequency by which it determines
the eligibility of its principals. Each participant may, but is not required to, check the
Nonprocurement List issued by U.S. General Service Administration.
APPENDIX N - 5
8. Nothing contained in the foregoing shall be construed to require establishment of
system of records in order to render in good faith the certification required by this
clause. The knowledge and information of a participant is not required to exceed that
which is normally possessed by a prudent person in the ordinary course of business
dealings. Except for transactions authorized under Paragraph 5 of these instructions, if
a participant in a covered transaction knowingly enters into a lower tier covered
transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded
from participation in this transaction, in addition to all remedies available to the Federal
Government, Commission may pursue available remedies including suspension and/or
debarment.
9. The Consultant agrees to comply, and assures the compliance of each
subconsultant, lessee, or third party contractor, with Executive Orders Nos. 12549 and
12689, "Debarment and Suspension," 31 U.S.C. § 6 ' 1 note, and U.S. DOT
regulations, "Governmentwide Debarment and Susp- on (Nonprocurement)," 49
C.F.R. Part 29.
10. The Consultant agrees to, and assures tha subcons nts, lessees and third
party contractors have reviewed the "Exclude • " -rties sting Syem" at http://elps.gov/
before entering into any third sub agreement, le _- - f; ird party contract.
"Certification Regarding Debarment, ,-.. sio eligibility and Voluntary
Exclusion"
(1) The Consultant certifies, b
"principals" [as defined at
proposed for debarment, de
in this transaction by
(2) When the Co
shall attach an expla
f this bid or proposal, that neither it nor its
5(p)] is presently debarred, suspended,
, or voluntarily excluded from participation
partment or agency.
ble to certify to the statements in this certification, it
s proposal.
8. PROVISION OR RESOLUTION OF DISPUTES, BREACHES, OR
OTHER LITIGATION
Disputes - Disputes arising in the performance of this Contract which are not resolved
by agreement of the parties shall be decided in writing by the Commission Executive
Director, or his or her designee. This decision shall be final and conclusive unless
within ten (10) days from the date of receipt of its copy, the Consultant mails or
otherwise furnishes a written appeal to the Commission's Executive Director, or his or
her designee. In connection with any such appeal, the Consultant shall be afforded an
opportunity to be heard and to offer evidence in support of its position. The decision of
the Commission's Executive Director, or his or her designee, shall be binding upon the
Consultant and the Consultant shall abide be the decision.
APPEI1mb0( N - 6
Performance During Dispute - Unless otherwise directed by Commission, Consultant
shall continue performance under this Contract while matters in dispute are being
resolved.
Claims for Damages - Should either party to the Contract suffer injury or damage to
person or property because of any act or omission of the party or of any of his
employees, agents or others for whose acts he is legally liable, a claim for damages
therefor shall be made in writing to such other party within a reasonable time after the
first observance of such injury of damage.
Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes
and other matters in question between the Commission and the Consultant arising out
of or relating to this agreement or its breach will be decid by arbitration if the parties
mutually agree, or in a court of competent jurisdictio hin the State in which the
Commission is located.
Rights and Remedies - The duties and obligations imposed is Agreement and the
rights and remedies available hereunder shall be in addition to nd not a limitation of
any duties, obligations, rights and remedies otherwise imposed or available by law. No
action or failure to act by the Commissio or Consultant shall constitute a waiver of any
right or duty afforded any of them un• e Contract, nor shall any such action or
failure to act constitute an approval of acquiescence in any breach thereunder,
except as may be specifically agreed i wri
FTA Notification - Consulta
major dispute, breach,
interests in the Proj
party to litigation, t
in writing of any current or prospective
itigation that may affect the Federal Government's
ant wishes to name the Federal Government as a
ha inform FTA in writing before doing so.
Lobbying Restrictions. To the extent applicable, Consultant agrees to:
(1) Comply, and assure the compliance of each subcontractor at any tier, with U.S.
DOT regulations, "New Restrictions on Lobbying," 49 C.F.R. Part 20, modified as
necessary by 31 U.S.C. § 1352.
(2) Comply with Federal statutory provisions, to the extent applicable, prohibiting the
use of Federal assistance funds for activities designed to influence Congress or a State
legislature on legislation or appropriations, except through proper, official channels.
10. CLEAN AIR
APPENDIX N - 7
(1) 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 through 7671q.
The Consultant agrees to report each violation to the Commission and understands and
agrees that the Commission will, in turn, report each violation as required to assure
notification to FTA and the appropriate EPA Regional Office.
(2) The Consultant also agrees to include these requirements in each subcontract
exceeding $100,000 financed in whole or in part with Federal assistance provided by
FTA.
11. CLEAN WATER
(1) The Consultant agrees to comply with all applicable sta► ards, orders or regulations
issued pursuant to the Federal Water Pollution Contr• - ct, as amended, 33 U.S.C.
1251 through 1377. The Consultant agrees to repo :c .lation to the Commission
and understands and agrees that the Commission ill, in to eport each violation as
required to assure notification to FTA and the a► opri. e EPA ' •ional Office.
(2) The Consultant also agrees to include th
exceeding $100,000 financed in whole
FTA.
12. ENERGY CONSERVA'
equirements in each subcontract
Federal assistance provided by
Energy Conservation. To the extent applicable, Consultant agrees to comply with the
mandatory energy efficiency standards and policies within the applicable State energy
conservation plans issued in compliance with the Energy Policy and Conservation Act,
42 U.S.C. §§ 6321 et seq. To the extent applicable, Consultant agrees to perform an
energy assessment for any building constructed, reconstructed, or modified with FTA
assistance, as provided in FTA regulations, "Requirements for Energy Assessments,"
49 C.F.R. Part 622, Subpart C.
13. CONFORMANCE WITH NATIONAL ITS ARCHITECTURE
National Intelligent Transportation Systems Architecture and Standards. To the extent
applicable, Consultant agrees to conform, to the extent applicable, to the National
Intelligent Transportation Systems (ITS) Architecture and Standards as required by
SAFETEA-LU § 5307(c), 23 U.S.C. § 512 note, and with FTA Notice, "FTA National
ITS Architecture Policy on Transit Projects" 66 Fed. Reg. 1455 et seq., January 8,
2001, and other subsequent Federal directives that may be issued.
APPENIDEX N - 8
14. ADDITIONAL REQUIREMENTS
To the extent applicable, Consultant agrees to comply with the Federal programs
specified below and, with regard to such programs, Consultant agrees not compromise
the Commission's compliance with Federal requirements as pertains to the Project.
The Programs are as follows:
(1) Urbanized Area Formula Program authorized under 49. U.S.C. § 5307.
(2) Elderly Individuals and Individuals with Disabilities Formula Program authorized
under 49 U.S.C. § 5310 as amended by SAFETEA-LU and subsection 3012(b) of
SAFETEA-LU, 49 U.S.C. § 5310 note, respectively.
(3) New Freedom Program authorized under 49 U.S.C. § 5317.
(4) Nonurbanized Area Formula Program authorized under 49 U.S.C. § 5311(b).
(5) Clean Fuels Grant Program authorized under 49 U.S.C. § 5308.
(6) Job Access and Reverse Commute Formula Grant Program authorized under 49
U.S.C. § 5316.
15. RELEASE OF RETAINAGE
°11
The Commission shall hold ainage from t prime contractor and shall make prompt
and regular incremental acceptances of portions, as determined by the Commission of
the contract work and pay retainage to prime contractors based on these acceptances.
The prime contractor or subcontractor shall return all monies withheld in retention from
a subcontractor within 30 days after receiving payment for work satisfactorily completed
and accepted including incremental acceptances of portions of the contract work by the
Commission. Federal regulations (49 CFR 26.29) require that any delay or
postponement of payment over 30 days may take place only for good cause and with
the Commission's prior written approval. Any violation of this provision shall subject the
violating prime contractor or subcontractor to the penalties, sanctions, and other
remedies specified in Section 7108.5 of the California Business and Professions Code.
These requirements shall not be construed to limit or impair any contractual,
administrative, or judicial remedies otherwise available to the prime contractor or
subcontractor in the event of a dispute involving late payment or nonpayment by the
prime contractor, deficient subcontract performance, or noncompliance by a
subcontractor. This provision applies to both DBE and non -DBE prime contractors and
subcontractors.
APPENINX N - 9
16. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA)
TERMS
The preceding provisions include, in part, certain Standard Terms and Conditions
required by the Federal Transit Authority, whether or not expressly set forth in the
preceding contract provisions. All contractual provisions required by the Federal Transit
Authority, 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 Commission requests which would cause the Com mission to be in violation of
the FTA terms and conditions.
17. 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 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
APPENDIX N - 10
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).
18. 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 peorm of contracts financed in whole or in
part with U.S. DOT funds.
It is the policy of the Commis
1. Ensure nondiscrimin in the award and administration of DOT -assisted
contracts;
2. Create a el playi field on which DBE's can compete fairly for DOT -
assisted contracts;
3. Ensure that th- 'IBE 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.
APPEN1 X N - 11
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 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.
APPEN1X N - 12
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 su.,:= nsultants for satisfactory
performance of their contracts no later than 30 days m receipt of each payment
Commission makes to the Consultant. 49 C.F.R. § �;' •' unless a shorter period is
provided in the contract.
J. Compliance with DBE Requirements ContRed in A Provisions: Consultant shall
comply with all DBE reporting and other requiremen ontained in this Agreement.
APPENDIX N - 13
EXHIBIT "G" — LOBBYING ACTIVITIES DISCLOSURE
Exhibit G-1
384
Local Assistance Procedures Manual
EXHIBIT 10-Q
Disclosure of Lobbying Activities
NOT APPLICABLE
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:
a. contract
b. grant
c. cooperative agreement
d. loan
e. loan guarantee
f. loan insurance
2. Status of Federal Action: 3. Report Type:
❑ a bid/offer/application
b. initial award
e. post -award
4. Name and Address of Reporting Entity
nPrime nSubawardee
Tier , if known
Congressional District, if known
6. Federal Department/Agency:
8. Federal Action Number, if known:
10. Name and Address of Lobby Entity
(If individual, last name, first name, MI)
(attach Continua
12. Amount of Payment (check all that
$ n actual
13. Form of Payment (check all
8 a. cash
b. in -kind; s
a. initial
b. material change
For Material Change Only:
year quarter
date of last report
5. If Reporting Entity in No. 4 is Subawardee,
Enter Name and Address of Prime:
Congression 'strict, if known
7. Federal am Name/Description:
1CF 1l/Numbi applicable
9. and Amount, I wn:
11. Ind als Performing Services
(inc, ding address if different from No. 10)
(las me, first name, MI)
ry)
pe of Payment (check all that apply)
a. retainer
b. one-time fee
c. commission
d. contingent fee
e deferred
f. other, specify
15. Brief Descriptio ervices Per med or to be performed and Date(s) of Service, including
officer(s), employee i r mem s) contacted, for Payment Indicated in Item 12:
(attach Continuation Sheet(s) if necessary)
16. Continuation Sheet(s) attached: Yes n
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
Amber Costello
Print Name:
person who fails to file the required disclosure shall be subject Title: President
to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure. Telephone No.: 562.260.0507 Date:3.29.22
Federal Use Only:
Authorized for Local Reproduction
Standard Form - LLL
Standard Form LLL Rev. 04-28-06
Distribution: Ong- Local Agency Project Files
LPP 13-01
APPENDIX L - 1
Page 1
May 8, 2013
ATTACHMENT 3
Agreement No. 22-31-081-00
PROFESSIONAL SERVICES AGREEMENT
WITH PROPOSITION 1B, FTA AND FHWA FUNDING ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
OVERLAND, PACIFIC & CUTLER, LLC
FOR ON -CALL
RIGHT OF WAY SUPPORT SERVICES
Parties and Date.
This Agreement is made and entered into this day of , 2022, by
and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the
Commission") and Overland, Pacific & , utle LLC. ("Consultant"), LLC.
The Commission and Consultant are sometime fe to herein individually as "Party",
and collectively as the "Parties".
Recitals.
A. On November 8, 1988 the Vo of Riverside County approved Measure A
authorizing the collection of a one-half perce (1/2 %) retail transactions and use tax (the
"tax") to fund transportation programs and improvements within the County of Riverside,
and adopting the Riversid- County Transportation Improvement Plan (the "Plan").
B. Purs
authorized to alloc
to Pub
e proc
Utility Code Sections 240000 et seq., the Commission is
s of the Tax in furtherance of the Plan.
C. On November 5, '102, 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 consulting services
provided under this Agreement may be State Proposition 1B funds, Federal Highway
Administration Funds ("FHWA") administered by the California Department of
Transportation ("Caltrans"), and/or funds from the Federal Transit Administration ("FTA").
E. Consultant desires to perform and assume responsibility for the provision of
certain on -call right of way support services 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 issued pursuant to this Agreement and executed by the Commission and the
Consultant ("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. The Commission desires to engage Consultant to render such services on an
on -call basis. Services shall be ordered by Task Order(s) to be issued pursuant to this
Agreement for future projects as set forth herein and in each Task Order (each such project
shall be designated a "Project" under this Agreement).
Terms.
1. General Scope of Services. Consultant shall furnish all technical and
professional services, including labor, material, equipment, transportation, supervision and
expertise, and incidental and customary work necessary to fully and adequately supply the
on -call right of way support 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. Commencement of Services. The Consultant shall commence work
upon receipt of a written "Notice to Proceed" or "Limited Notice to Proceed" from
Commission.
3. Pre -Award Au e federal funding for this Project, and to the
extent Caltrans procedures ar in connection therewith, issuance of a "Notice to
Proceed" may be contingent upon completion and approval of a pre -award audit. Any
questions raised during the pre -award audit shall be resolved before the Commission will
consider approval of this Agreement. The federal aid provided under this Agreement is
contingent on meeting all Federal 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 Federal and State process
reviews. In addition, the applicable federal agency, or Caltrans acting in behalf of a federal
agency, may require that prior to performance of any work for which Federal
reimbursement is requested and provided, that said federal agency or Caltrans must give to
Commission an "Authorization to Proceed".
4. Audit Procedures. Consultant and 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
2
387
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 23 and 24 of this Agreement.
5. Term.
5.1 This Agreement shall go into effect
contingent upon approval by Commission, and Consult
notification to proceed by Commission's Contract Admi
three years from the date set forth above, unless ext r"ed
case shall the term of this Agreement exceed three ) yea
be completed within the term.
5.2 Consultant is advised that a
not binding on Commission until this Aroy'- ent
Commission.
5.3 This Agree
unless earlier terminated as
within the term of this Agre
deadlines. All applicable in
effect following the to
6. Com
the Commission's E
Administrator for the
Administrator"). Commissi
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.
on e date first set forth above,
shall commence work after
or. This Agreement shall end
ontract amendment. In no
rs. c, ask Order work should
ommendation for contract award is
ly executed and approved by the
ain in effect until the date set forth above,
Consultant shall complete the Services
eet any other established schedules and
cation .rovisions of this Agreement shall remain in
s Agreement.
act Administrator. The Commission hereby designates
ector, or his or her designee, to act as its Contract
ance of this Agreement ("Commission's Contract
's Contract Administrator shall have the authority to act on
7. Consultant's Representative. Consultant hereby designates Vicky Cook 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: Vicky Cook, Roy Guinaldo, Kelly Dewitt, Norma
Jacquez, Mike Parker, or as otherwise identified in the Tas;.Order.
9. Standard of Care; Licenses. Consultant r,,-, ents and maintains that it is
skilled in the professional calling necessary to perfor S es, duties and obligations
required by this Agreement to fully and adequately i ' piete th' ' oject. Consultant shall
perform the Services and duties in conforms F to a consis t with the standards
generally recognized as being employed by p -s als in the same discipline in the
State of California. Consultant warrants that all e ees and subcontractors shall have
sufficient skill and experience to perform -rvices igned to them. Consultant further
represents and warrants to the Commissi• p' ees and subcontractors have all
licenses, permits, qualifications and appro w -ver nature that are legally required
to perform the Services, and ,i ch 1';=: nses and approvals shall be maintained
throughout the term of this 'uir'. C• .ultant shall perform, at its own cost and
expense and without reimb 111 ] -" Commission, any services necessary to
correct errors or omissio hi e caused by the Consultant's failure to comply with the
standard of care prov , . - re - nd shall be fully responsible to the Commission for
all damages and ' er liabili pr ided for in the indemnification provisions of this
Agreement arising nsultant's errors and omissions. Any employee of
Consultant or its su •ns ants who is determined by the Commission to be
uncooperative, incompet- hreat 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
4
389
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. Task Orders; Commencement of Services; Schedule of Services. Consultant
shall commence Services under a Task Order within five (5) days of receiving a fully
executed Task Order from the Commission. Task Orders shall be in substantially the form
set forth in Exhibit "B" attached hereto and incorporated herein by reference. Each Task
Order shall identify the funding source(s) to be used to fund the Services under the relevant
Task Order, and Consultant shall comply with the requirements specified herein, and in the
attached exhibits, applicable to the identified funding source(s).
Consultant shall perform the Services expeditiausly, within the term of this
Agreement, and in accordance with any schedule of Ser
("Schedule"). Consultant represents that it has the profe
perform the Services in conformance with such
Consultant's conformance with the Schedule, the C
submittals in a timely manner. Upon request
Consultant shall provide a more detailed sche
Schedule of Services.
s set forth in a Task Order
al and technical personnel to
di In order to facilitate
ission s ; ,,respond to Consultant's
om.gission's ntract Administrator,
cipated performance to meet the
11.1 Modification of the S - • on ltant shall regularly report to the
Commission, through correspondence o • %re reports, its progress in providing
required Services within the s -d ti periods. Commission shall be promptly
informed of all anticipated del In eve '' hat Consultant determines that a schedule
modification is necessary, Co ptly submit a revised Schedule of Services
for approval by Commis _'•_ 's ► act Administrator.
Commission's Con
Commission, on a bi-
standard day and time.
discussions concerning sc•pe, 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.
Consultant shall conduct trend meetings with the
rator and other interested parties, as requested by the
is or as may be mutually scheduled by the Parties at a
e trend meetings will encompass focused and informal
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.
5
390
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, 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 ti -ly notice shall constitute a
waiver by Consultant of any right to an excusable delay i► : e of performance.
12.3 Mutual Agreement. Perform- : e 16111 .ny Services under this
Agreement may be delayed upon mutual agrs '` ent of 1 ,- Parties. Upon such
agreement, Consultant's Schedule of Service all b- exten• as necessary by the
Commission. Consultant shall take all reason. ' - st; r' to minimize delay in completion,
and additional costs, resulting from any such ex
13. Prelimina Review of Wor - - •rts, orking papers, and similar work
products prepared for submission in the co -e • ing Services under this Agreement
shall be submitted to the Com 's ract Administrator in draft form, and the
Commission may require revi s of ch d is prior to formal submission and approval.
In the event plans and desi• .are •- oped as part of the Project, final detailed
plans and designs shall be con t upon btaining environmental clearance as may be
required in connection -d funding. In the event that Commission's Contract
Administrator, in hi ; 1, er sol- sc •n, determines the formally submitted work product
to be not in accor' °;r,,. a with standard of care established under this Agreement,
Commission's Contra dmin' ator may require Consultant to revise and resubmit the
work at no cost to the C 'F,L ion.
14. Appearance at Hearings. If and when required by the Commission,
Consultant shall render assistance at public hearings or other meetings related to the
Project or necessary to the performance of the Services. However, Consultant shall not be
required to, and will not, render any decision, interpretation or recommendation regarding
questions of a legal nature or which may be construed as constituting a legal opinion.
15. Opportunity to Cure; Inspection of Work. Commission may provide
Consultant an opportunity to cure, at Consultant's expense, all errors and omissions 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, Caltrans and FHWA to inspect or review Consultant's work in progress at
any reasonable time.
6
391
16. Claims Filed by Contractor.
16.1 If claims are filed by the Commission's contractor for the Project
("Contractor") relating to work performed by Consultant's personnel, and additional
information or assistance from the Consultant's personnel is required by the Commission
in order to evaluate or defend against such claims; Consultant agrees to make reasonable
efforts to make its personnel available for consultation with the Commission's construction
contract administration and legal staff and for testimony, if necessary, at depositions and
at trial or arbitration proceedings.
16.2 Consultant's personnel that the Commission considers essential to
assist in defending against Contractor claims will be made available on reasonable notice
from the Commission. Consultation or testimony will be reimbursed at the same rates,
including travel costs that are being paid for the Consultant's •ersonnel services under this
Agreement.
16.3 Services of the Consultant's p
connection with Contractor claims will be perf
amendment, if necessary, extending the termi
finally resolve the claims.
16.4 Nothing contained i.
Consultant's indemnification obligation
conflict between this Section and Section
intended to obligate the Com
personnel related to Contrac
defend the Commission pu
17. Final Ac
has satisfactorily c
term set forth her
Acceptance. Upon
hereunder, unless othe
request issuance of a Noti
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.
nd other support staff in
t to a written contract
greement in order to
s Secti hall be construed to in any way limit
ection 29. In the case of any
9 shall govern. This Section is not
burse Consultant for time spent by its
ch Consultant is required to indemnify and
of this Agreement.
determination by the Commission that Consultant
es required under this Agreement and within the
ission shall give Consultant a written Notice of Final
such notice, Consultant shall incur no further costs
cified in the Notice of Final Acceptance. Consultant may
of Final Acceptance when, in its opinion, it has satisfactorily
18. 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
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392
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.
19. Fees and Payment.
19.1 The method of payment for thi • ree - t will be based on actual
cost plus a fixed fee. Commission shall reimburs onsultan actual costs (including
Tabor costs, employee benefits, travel, equipm r� ent. ,_costs, o head and other direct
costs) incurred by Consultant in performanc= th ;,`services. Consultant shall not be
reimbursed for actual costs that exceed the est ed wage rates, employee benefits,
travel, equipment rental, overhead, an. ;?_.r . r esti ,,-d costs set forth in the approved
Consultant cost proposal attached her. • • ibi C" and incorporated herein by
reference, or any cost proposal included . .' • o ask Order ("Cost Proposal") unless
additional reimbursement is p for written amendment. The overhead rates
included in the attached Ex "C" all be ed for the term of the Master Agreement,
and shall not be subject to a t required by the applicable funding source.
In no event, shall Cons nt . ; imbursed for overhead costs at a rate that exceeds
Commission's appro • e.. , .te set forth in the Cost Proposal. In the event that
Commission dete es that '' cha '•e to the Services from that specified in the Cost
Proposal, this Agre. •ent or a i Task Order is required, the Agreement time or actual
costs reimbursable • . Co ission shall be adjusted by written amendment to
accommodate the chan• +ork. The maximum total cost as specified in Section 19.8
shall not be exceeded, unless authorized by a written amendment.
19.2 In addition to the allowable incurred costs, Commission shall pay
Consultant a fixed fee to be set forth in each Task Order ("Fixed Fee"). The Fixed Fee is
nonadjustable for each Task Order, except in the event of a significant change in the
Scope of Services, and such adjustment is made by written amendment.
19.3 Reimbursement for transportation and subsistence costs shall not
exceed the rates specified in the approved Cost Proposal. In addition, payments to
Consultant for travel and subsistence expenses claimed for reimbursement or applied as
local match credit shall not exceed rates authorized to be paid exempt non -represented
State employees under current State Department of Personnel Administration (DPA) rules,
unless otherwise authorized by Commission. If the rates invoiced are in excess of those
authorized DPA rates, and Commission has not otherwise approved said rates, then
8
393
Consultant is responsible for the cost difference and any overpayments shall be
reimbursed to the Commission on demand.
19.4 When milestone cost estimates are included in the approved Cost
Proposal for a Task Order, Consultant shall obtain prior written approval for a revised
milestone cost estimate from the Contract Administrator before exceeding such cost
estimate.
19.5 Progress payments shall be made monthly in arrears based on
Services provided and allowable incurred costs. A pro rata portion of the Fixed Fee shall
be included in the monthly progress payments. If Consultant fails to submit the required
deliverable items according to the schedule set forth in the Scope of Services,
Commission shall have the right to delay payment or terminate this Agreement in
accordance with the provisions of Section 21, Termination.
19.6 No payment shall be made prior to ' royal of any Services, nor for
any Services performed prior to approval of this Agr
19.7 Consultant shall be reimbu
permit upon receipt by Commission's Cont
triplicate. Invoices shall be submitted no latertha
of work for which Consultant is billing. I - •'ces sh
milestone and each project as applicable
approved Cost Proposal and shall referen
invoice must contain the fina
equipment purchased under
final invoice should be sub
work. Invoices shall be maile
address:
Riverside County
Attention: Accounts
P.O. 12008
Riverside, CA 92502
as prompt fiscal procedures will
istrator of itemized invoices in
alendar days after the performance
etail the work performed on each
flow the format stipulated for the
ment number and project title. Final
credits due Commission including any
urchase provisions of this Agreement. The
ndar days after completion of Consultant's
ommi ion's Contract Administrator at the following
Commission
19.8 The total amount payable by Commission, including the Fixed Fee,
shall not exceed the amount set forth in each Task Order.
19.9 Salary increases shall be reimbursable if the new salary is within the
salary range identified in the approved Cost Proposal and is approved by Commission's
Contract Administrator. For personnel subject to prevailing wage rates as described in the
California Labor Code, all salary increases, which are the direct result of changes in the
prevailing wage rates are reimbursable.
19.10 Consultant shall not be reimbursed for any expenses unless
authorized in writing by the Commission's Contract Administrator.
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394
19.11 All subcontracts in excess of $25,000 shall contain the above
provisions.
20. Disputes.
20.1 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.
20.2 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.
20.3 Neither the pendency of a disp
committee will excuse Consultant from full and timely
terms of this Agreement.
21. Termination.
21.1 Commission resery
(30) calendar days written notice to Con
termination stated in the notice. Commis
at any time, for any or no reaso the
the notice of termination of T
21.2 Commis
Consultant fail to perf
herein provided. I
Services in any m
Agreement with Con
under this Agreement f
cost of completion to Com
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.
or its consideration by the
nce in accordance with the
he righ erminate this Agreement upon thirty
r no reason, with the reasons for
inate Services under a Task Order,
ctive date of termination to be specified in
y - ate this Agreement with Consultant should
ants herein contained at the time and in the manner
termination, Commission may proceed with the
proper by Commission. If Commission terminates this
mission shall pay Consultant the sum due to Consultant
es completed and accepted prior to termination, unless the
sion exceeds the funds remaining in the Agreement. In such
21.3 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
21.4 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
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395
may have been prepared or accumulated by Consultant in performance of the Services,
whether completed or in progress.
21.5 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.
21.6 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.
21.7 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.
21.8 Consultant may not terminate this Agreement except for cause.
22. Cost Principles and Administrative Requirements.
22.1 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 allo y of individual items.
22.2 Consu t also agrees to comply with federal procedures in
accordance with 2 CFR, Part , Uniform Administrative Requirements, Cost Principles,
and Audit Requirements fe 1 Awards.
22.3 Any costs or 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.
22.4 All subcontracts in excess of $25,000 shall contain the above
provisions.
23. 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,
11
396
Commission, FHWA, 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
indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies
thereof shall be furnished if requested. Subcontracts in excess of $25,000 shall contain this
provision.
23.1 Accounting System. Consultant and its subcontractors shall establish
and maintain an accounting system and records that properly accumulate and segregate
expenditures by line item for the Services. The accounting system of Consultant and its
subcontractors shall conform to Generally Accepted Accounting Principles (GAAP), enable
the determination of incurred costs at interim points of completion, and provide support for
reimbursement payment vouchers or invoices.
24. Audit Review Procedures.
24.1 Any dispute concerning a quest'
post audit of this Agreement that is not disposed
Commission's Chief Financial Officer.
of rising under an interim or
agree t, shall be reviewed by
24.2 Not later than 30 days a suance of the final audit report,
Consultant may request a review by Commission's Chief Financial Officer of unresolved
audit issues. The request for review shall be submitted in writing.
-
24.3 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.
25. Subcont
25.1 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.
25.2 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.
25.3 Consultant shall pay its subconsultants within ten (10) calendar days
from receipt of each payment made to Consultant by Commission.
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397
25.4 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.
25.5 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).
25.6 Exhibit "C" 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 "C" shall be the same for both
the Consultant and all subconsultants, unless otherwise identified in Exhibit "C" or in a
Task Order. The subconsultant rate schedules and cost proposals contained herein are for
accounting purposes only.
26. Equipment Purchase
26.1 Prior authorization, in writing, by C
shall be required before Consultant enters into
subcontract for supplies, equipment, or services
the necessity or desirability of incurring such
26.2 For purchase of an
the Cost Proposal and exceeding $5,00
Contract Administrator is required. Thre
the request for such purchase, • abs
26.3 Any eq
the following: Consultant sh
Nonexpendable prop
acquisition cost of
sold or traded in,
this Agreement, or
equipment and credit
equipment at the best pr
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.
on's Contract Administrator
ted purchase order, or
ovide an evaluation of
or consulting work not covered in
ion, in writing, by Commission's
quotations must be submitted with
of bidding must be adequately justified.
as a result of this Agreement is subject to
inventory of all nonexpendable property.
as having a useful life of at least two years and an
e purchased equipment needs replacement and is
all receive a proper refund or credit at the conclusion of
ment is terminated, Consultant may either keep the
on in an amount equal to its fair market value, or sell such
obtainable at a public or private sale, in accordance with
26.4 All subcontracts in excess $25,000 shall contain the above provisions.
27. Labor Code Requirements.
27.1 Prevailing Wages.
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398
(a) Consultant shall comply with the State of California's General
Prevailing Wage Rate requirements in accordance with California Labor Code, Section
1770, and all Federal, State, and local laws and ordinances applicable to the Services.
(b) Any subcontract entered into as a result of this Agreement, if for
more than $25,000 for public works construction or more than $15,000 for the alteration,
demolition, repair, or maintenance of public works, shall contain all of the provisions of this
Section.
(c) When prevailing wages apply to the Services described in the
Scope of Services, transportation and subsistence costs shall be reimbursed at the
minimum rates set by the Department of Industrial Relations (DIR) as outlined in the
applicable Prevailing Wage Determination. See http://www.dir.ca.gov.
(d) Copies of the prevailing rate •<;i'°per diem wages in effect at
commencement of this Agreement are on file at the Com on's offices. Consultant shall
make copies of the prevailing rates of per diem wages y" e :u;.craft, classification or type
of worker needed to execute the Services available ° 'ntereste, j';. rties upon request, and
shall post copies at the Consultant's principal . e of usines d at the project site.
Consultant shall defend, indemnify and hold th .m ion, its elected officials, officers,
employees and agents free and harmless from aims, liabilities, costs, penalties or
interest arising out of any failure or all :� failure comply with the Prevailing Wage
Laws.
27.2 DIR Reaist
an applicable "public works"
Sections 1725.5 and 1771.
with the Department of Indust
duration of the Projec
be subject to com
Relations. It sha
registration and labo
e Services are being performed as part of
e" project, then pursuant to Labor Code
nd all subconsultants must be registered
lations.Consultant shall maintain registration for the
e same of any subconsultants. This Project may also
and enforcement by the Department of Industrial
nt's sole responsibility to comply with all applicable
e requirements.
27.3 Eight our 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.
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399
27.4 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 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-, onsultant shall employ the
number of apprentices provided for therein, as well as co ;;_; _;ute to the fund to administer
the apprenticeship program in each craft or trade in th-: FFn of the work hereunder.
The parties expressly understand that t , responsi '., for compliance with
provisions of this Section and with Sections 17 17 7.6 and 77.7 of the California
Labor Code in regard to all apprenticeable occ► tio- ies with Consultant
28. Ownership of Materials/C. ntialit
28.1 Documents
perpetual license for Commissio
copyrights and designs embo
materials, data and other do
expression, including but not
recorded on comput
Consultant under t
& Data: : ement creates an exclusive and
modify, reuse, or sub -license any and all
ecifications, studies, drawings, estimates,
authorship fixed in any tangible medium of
o, phys al drawings or data magnetically or otherwise
hich are prepared or caused to be prepared by
(` uments & Data").
hall require all subcontractors to agree in writing that
Commission is granted . sive and perpetual license for any Documents & Data the
subcontractor prepares un' r 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.
28.2 Intellectual Property. In addition, Commission shall have and retain all
right, title and interest (including copyright, patent, trade secret and other proprietary
15
400
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
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 respons' .;`• obtain in writing separate
written assignments from any subcontractors or age f Co =, Itant of any and all right to
the above referenced Intellectual Property. Shou onsultan , her during or following
termination of this Agreement, desire to use of e above eferenced Intellectual
Property, it shall first obtain the written approv t ommission.
All materials and do
Consultant for general use prior to the ex
copyright of any other party or publ avai
continue to be the property of t
stated prior to execution of th.
the right to grant the exclusi
provided herein.
perpetual license to
otherwise owned by
collective, insurrectional,
ere developed or prepared by the
is greement and which are not the
n. y other computer applications, shall
However, unless otherwise identified and
sultant represents and warrants that it has
icense for all such Intellectual Property as
er is granted by Consultant a non-exclusive and
odify or sub -license any and all Intellectual Property
which is the basis or foundation for any derivative,
pplemental work created under this Agreement.
28.3 Confidentiality. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents and Data either created by or provided to Consultant in
connection with the performance of this Agreement shall be held confidential by
Consultant. Such materials shall not, without the prior written consent of Commission, be
used by Consultant for any purposes other than the performance of the Services. Nor
shall such materials be disclosed to any person or entity not connected with the
performance of the Services or the Project. Nothing furnished to Consultant which is
otherwise known to Consultant or is generally known, or has become known, to the related
industry shall be deemed confidential. Consultant shall not use Commission's name or
insignia, photographs of the Project, or any publicity pertaining to the Services or the
Project in any magazine, trade paper, newspaper, television or radio production or other
similar medium without the prior written consent of Commission.
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401
28.4 Infringement Indemnification. Consultant shall defend, indemnify and
hold the Commission, its directors, officials, officers, employees, volunteers and agents
free and harmless, pursuant to the indemnification provisions of this Agreement, for any
alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any
other proprietary right of any person or entity in consequence of the use on the Project by
Commission of the Documents & Data, including any method, process, product, or concept
specified or depicted.
29. Indemnification. To the fullest extent permitted by law, Consultant shall
defend (with counsel of Commission's choosing), indemnify and hold Commission, Caltrans
and their directors, officials, officers, employees, consultants, volunteers, and agents free
and harmless from any and all claims, demands, causes of action, costs, expenses, liability,
loss, damage or injury, in law or equity, to property or persons, including wrongful death, in
any manner arising out of or incident to alleged neglige acts, omissions, or willful
misconduct of Consultant, its officials, officers, employ agents, consultants, and
contractors arising out of or in connection with the perfor e of the Services, the Project
or this Agreement, including without limitation the •.`:r en '. consequential damages,
expert witness fees, and attorneys fees and other r .' ed costs * expenses. Consultant
shall defend, at Consultant's own cost, expense d ris any an I such aforesaid suits,
actions or other legal proceedings of every kin• t be brought or instituted against
Commission, Caltrans and their directors, offic officers, employees, consultants,
agents, or volunteers. Consultant shall p ,,• satis y judgment, award or decree that
may be rendered against Commission, a •r eir directors, officials, officers,
employees, consultants, agents, • volu = in y such suit, action or other legal
proceeding. Consultant shall re Co '` ission, Caltrans and their directors, officials,
officers, employees, consult. age , an. ! volunteers, for any and all legal expenses
and costs, including reasona. i a -s, incurred by each of them in connection
therewith or in enforce • _ -l. a ..'emnity herein provided. Consultant's obligation to
indemnify shall not b- -s`r .1 ,a t• urance proceeds, if any, received by Commission,
Caltrans, their dire rs, offices •ffi rs, employees, consultants, agents, or volunteers.
If Consultant's • :ate• o defend, indemnify, and/or hold harmless arises out of
Consultant's performanc. a "design professional" (as that term is defined under Civil
Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8,
which is fully incorporated herein, Consultant's indemnification obligation shall be limited to
claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a
court of competent jurisdiction, Consultant's liability for such claim, including the cost to
defend, shall not exceed the Consultant's proportionate percentage of fault.
Consultant's obligations as set forth in this Section shall survive expiration or
termination of this Agreement.
30. To the fullest extent permitted by law, Consultant shall defend, indemnify and
hold Commission, Caltrans and their directors, officials, officers, employees, consultants,
volunteers, and agents free and harmless from any and all claims, demands, causes of
action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or
17
402
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 attorneys 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 s II reimburse Commission,
Caltrans and their directors, officials, officers, employe consultants, agents, and/or
volunteers, for any and all legal expenses and costs, in _ �ll a n. reasonable attorney's fees,
incurred by each of them in connection therewith n en . i; ing the indemnity herein
provided. Consultant's obligation to indemnif , ; "` all not b_ -stricted to insurance
proceeds, if any, received by Commission, C n ns their dir-'tors, officials officers,
employees, consultants, agents, or volunteers i anding the foregoing, to the extent
Consultant's Services are subject to Civil Code Se 2782.8, the above indemnity shall
be limited, to the extent required by Civil ecti. 782.8, to claims that arise out of,
pertain to, or relate to the negligence, reck w ful misconduct of the Consultant.
Consultant's obligations as set h in , Sec on 29 shall survive expiration or
termination of this Agreement.
31. Insurance.
31.1
Agreement until i
secured all insuran
acceptable to the Com
commence work on any
Section.
nce. Consultant shall not commence work under this
ence satisfactory to the Commission that it has
der this Section, in a form and with insurance companies
addition, Consultant shall not allow any subcontractor to
ntract until it has secured all insurance required under this
31.2 Minimum Requirements. Consultant shall, at its expense, procure and
maintain for the duration of the Agreement insurance against claims for injuries to persons
or damages to property which may arise from or in connection with the performance of the
Agreement by the Consultant, its agents, representatives, employees or subcontractors.
Consultant shall also require all of its subcontractors to procure and maintain the same
insurance for the duration of the Agreement. Such insurance shall meet at least the
following minimum levels of coverage:
(a) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2)
Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001,
18
403
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 abor Code of the State of
California. Employer's Practices Liability limits of $1,000 ° + per accident.
31.3 Professional Liability. Consults %sh:'"' ocure and maintain, and
require its sub -consultants to procure and maintai r, •r a perio• ' five (5) years following
completion of the Project, errors and omission iabil' insura «'e appropriate to their
profession. For Consultant, such insuranc ,.ha •e in an amount not less than
$1,000,000 per claim. This insurance shall be -°, I,+rsed to include contractual liability
applicable to this Agreement and shall kitten o ; policy form coverage specifically
designed to protect against acts, erro o u ; io of the Consultant. "Covered
Professional Services" as desi • nated p •' must specifically include work
performed under this Agreeme •olio ust "pay on behalf of the insured and must
include a provision establishi rer's ty to defend. Subconsultants of Consultant
shall obtain such insura t not less than $2,000,000 per claim.
Notwithstanding the for- • •'ng, !' ommission may consider written requests to lower or
dispense with the er •m •ns liability insurance requirement contained in this
Section for certai '•consul is o ` onsultant, on a case -by -case basis, depending on
the nature and sco• .f the S: ices to be provided by the subconsultant. Approval of
such request shall be riti signed by the Commission's Contract Administrator.
31.4 Aircra " Liability Insurance. Prior to conducting any Services requiring
use of aircraft, Consultant shall procure and maintain, or cause to be procured and
maintained, aircraft liability insurance or equivalent form, with a single limit as shall be
required by the Commission. Such insurance shall include coverage for owned, hired and
non -owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, Caltrans and their directors, officials, officers, employees and agents as
additional insureds with respect to the Services or operations performed by or on behalf of
the Consultant.
31.5 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:
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404
(a) General Liability.
(1) Commercial General Liability Insurance must include
coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury;
(3) premises/operations liability; (4) products/completed operations liability; (5) aggregate
limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion
deleted; (7) contractual liability with respect to this Agreement; (8) broad form property
damage; and (9) independent consultants coverage.
(ii) The policy shall contain no endorsements or provisions
limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by
one insured against another; or (3) contain any other exclusion contrary to this Agreement.
(iii) The policy shall give the Commission, its directors,
officials, officers, employees, and agents insured status us"ISO endorsement forms 20
10 10 01 and 20 37 10 01, or endorsements providing t► act same coverage.
(iv) The additional in
"primary and non-contributory" and will not see
Caltrans' insurance or self-insurance and shall
endorsements providing the exact same covera
d cove under the policy shall be
ntribution frl i. the Commission's or
as broad as CG 20 01 04 13, or
(b) Automobile L \ The tomobile liability policy shall be
endorsed to state that: (1) the Commissio d their directors, officials, officers,
employees and agents shall b: ere• additional insureds with respect to the
ownership, operation, mainte e, -, loa g or unloading of any auto owned, leased,
hired or borrowed by the Co Itant % hi the Consultant is responsible; and (2) the
insurance coverage shall be p insur e as respects the Commission, Caltrans and
their directors, official , -,s, -' •loyees and agents, or if excess, shall stand in an
unbroken chain of ,U' -rage _es the Consultant's scheduled underlying coverage.
Any insurance or -insurank _ maintained by the Commission, Caltrans and their
directors, officials, o s, a .yees and agents shall be excess of the Consultant's
insurance and shall not . d upon to contribute with it in any way.
(c)
Workers' Compensation and Employers Liability Coverage.
(i) Consultant certifies that he/she is aware of the provisions
of Section 3700 of the California Labor Code which requires every employer to be insured
against liability for workers' compensation or to undertake self-insurance in accordance with
the provisions of that code, and he/she will comply with such provisions before
commencing work under this Agreement.
(ii) The insurer shall agree to waive all rights of subrogation
against the Commission, its directors, officials, officers, employees and agents for losses
paid under the terms of the insurance policy which arise from work performed by the
Consultant.
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405
(d) All Coverages.
(i) Defense costs shall be payable in addition to the limits
set forth hereunder.
(ii) Requirements of specific coverage or limits contained in
this Section are not intended as a limitation on coverage, limits, or other requirement, or a
waiver of any coverage normally provided by any insurance. It shall be a requirement
under this Agreement that any available insurance proceeds broader than or in excess of
the specified minimum insurance coverage requirements and/or limits set forth herein shall
be available to the Commission, Caltrans and their directors, officials, officers, employees
and agents as additional insureds under said policies. Furthermore, the requirements for
coverage and limits shall be (1) the minimum coverage and limits specified in this
Agreement; or (2) the broader coverage and maximum limits .f coverage of any insurance
policy or proceeds available to the named insured; which is greater.
(iii) The limits of insura re. `-;,'. ed in this Agreement may
be satisfied by a combination of primary and umbrel r excess '':' urance. Any umbrella or
excess insurance shall contain or be endorsed onta. a prow'` ;`gin that such coverage
shall also apply on a primary and non-contribu ba ' or the benefit of the Commission
(if agreed to in a written contract or agreement) be e Commission's own insurance or
self-insurance shall be called upon to pr 't as a ed insured. The umbrella/excess
policy shall be provided on a "following coverage at least as broad as
provided on the underlying policy(ies).
(30) days prior written noti
except that the Consultant s
cancellation of any s
coverage is cancell
deliver renewal cert
to the Commission a
expiration.
hall provide the Commission at least thirty
f any policy required by this Agreement,
ovide least ten (10) days prior written notice of
to non-payment of premium. If any of the required
the term of this Agreement, the Consultant shall
ing the General Liability Additional Insured Endorsement
10) days prior to the effective date of cancellation or
(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.
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406
(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.
31.6 Deductibles and Self -Insurance Retenti • ns. Any deductibles or self -
insured retentions must be declared to and approve.; the Commission. If the
Commission does not approve the deductibles or self,. ed retentions as presented,
Consultant shall guarantee that, at the option of the (4m on, either: (1) the insurer
shall reduce or eliminate such deductibles or s-'s'nsured tions as respects the
Commission, its directors, officials, officers, em » eesnd agen or, (2) the Consultant
shall procure a bond guaranteeing payment c, „ .s ' and related investigation costs,
claims and administrative and defense expense.
31.7 Acce•tabilit of Ins
a current A.M. Best's rating no less than
satisfactory to the Commission
31.8 Verific
original certificates of insuran
Agreement on forms
for each insuranc
coverage on its be
by the Commission
require complete, certifi
is to be placed with insurers with
d to do business in California, and
Consultant shall furnish Commission with
d en.. ements effecting coverage required by this
he Commission. The certificates and endorsements
ed by a person authorized by that insurer to bind
ates and endorsements must be received and approved
commences. The Commission reserves the right to
ies of all required insurance policies, at any time.
31.9 Subconsultant Insurance Requirements. Consultant shall not allow
any subcontractors or subconsultants to commence work on any subcontract until they
have provided evidence satisfactory to the Commission that they have secured all
insurance required under this Section. Policies of commercial general liability insurance
provided by such subcontractors or subconsultants shall be endorsed to name the
Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement
providing the exact same coverage. If requested by Consultant, the Commission may
approve different scopes or minimum limits of insurance for particular subcontractors or
subconsultants.
31.10 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
22
407
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.
32. 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 devic , equipment and wearing
apparel as are necessary or lawfully required to preven, = cidents or injuries; and (C)
adequate facilities for the proper inspection and maint of all safety measures.
Pursuant to the authority contained in Section 59 : "the Vehi Code, the Commission
has determined that the Project will contain area : ` at ar- open to blic traffic. Consultant
shall comply with all of the requirements set fo ; D dons 11, 12, 13, 14, and 15 of the
Vehicle Code. Consultant shall take all reaso y necessary precautions for safe
operation of its vehicles and the protects ,.; _he tra W g public from injury and damage
from such vehicles.
33. Additional Work.
outside of, the Services to
performed pursuant to a se
foregoing, the Commissi
other than a Cardinal
change which is "o
not be regarded as
parties when the Agre
Cardinal Change would
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 4220.1 D, paragraph 9(f).
tivities that are in addition to, or otherwise
rsuant to this Agreement shall only be
etween the parties. Notwithstanding the
tive Director may make a change to the Agreement,
urposes of this Agreement, a Cardinal Change is a
the Agreement; in other words, work which should
fairly and reasonably within the contemplation of the
entered into. An example of a change which is not a
ere, in a contract to construct a building there are many
(a) In addition to the changes authorized above, a
modification which is signed by Consultant and the Commission's Executive Director, 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").
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408
(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.
34. Prohibited Interests.
34.1 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 Co ission shall have the right
to rescind this Agreement without liability.
34.2 Consultant Conflict of Interest
(a) Consultant shall di
relationship with Commission that may ha
Agreement, or any ensuing Commission constr
current clients who may have a financial -st in
ensuing Commission construction projec
y finan I, business, or other
act upon the outcome of this
project. Consultant shall also list
utcome of this Agreement, or any
w.
(b) Cons here 1'`r ertifies that it does not now have, nor shall it
acquire any financial or buss r ..< rest
services under this Agreem
t would conflict with the performance of
(c s►n..ontract in excess of $25,000 entered into as a result of
this Agreement, sh provisions of this Article.
Itant hereby certifies that neither Consultant, nor any firm
affiliated with Consultan ,rt on any construction contract, or on any contract to provide
construction inspection for construction project resulting from this contract. An affiliated
firm is one, which is subject to the control of the same persons through joint -ownership, or
otherwise.
(e) Except for subconsultants whose services are limited to
providing surveying or materials testing information, no subconsultant who has provided
design services in connection with this contract shall be eligible to bid on any construction
contract, or on any contract to provide construction inspection for any construction project
resulting from this contract.
34.3 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.
24
409
34.4 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.
34.5 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, commis 'on, percentage, brokerage
fee, gift, or any other consideration, contingent upon esulting from the award or
formation of this Agreement. For breach or violation -» 1 1 ;_';. warranty, the Commission
shall have the right to terminate this Agreement w't >ut li. `,'.ity pursuant to the terms
herein, or at its discretion to deduct from the eement e or consideration, or
otherwise recover, the full amount of such fee mmi ion, per ntage, brokerage fee,
gift, or contingent fee.
34.6 Rebates Kickbac .§ _ :ether .�L -wful Consideration. Consultant
warrants that this Agreement was not o ed through rebates kickbacks or
other unlawful consideration, either •rom • p- `o any Commission employee. For
breach or violation of this warr •m •.ion shall have the right in its discretion; to
terminate this Agreement w li.. . lity; t• gay only for the value of the work actually
performed; or to deduct fro - ice; or otherwise recover the full amount of
such rebate, kickback o •he awful consideration.
34.7 ''` ovens ga t Expenditure of Commission, State or Federal
Funds for Lobb in•' he Conk. Itant certifies that to the best of his/ her knowledge and
belief no state, federa loca •ency appropriated funds have been paid, or will be paid
by or on behalf of the Co t to any person for the purpose of influencing or attempting
to influence an officer or e ' ployee 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 "G", Standard
Form-LLL, "Disclosure Form to Report Lobbying," in accordance with the attached
instructions.
25
410
(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.
(c) The Consultant also agrees by signing this Agreement that
he/she shall require that the language set forth in this Section 3.23.5 be included in all
Consultant subcontracts which exceed $100,000, and that all such subcontractors shall
certify and disclose accordingly.
34.8 Employment Adverse to the Commissio Consultant shall notify the
Commission, and shall obtain the Commission's written co► nt, prior to accepting work to
assist with or participate in a third -party lawsuit or other ; ,or administrative proceeding
against the Commission during the term of this Agre
35. Equal Opportunity Employment.
opportunity employer and it shall not discrimin
applicant for employment because of race, religio
age. Such non-discrimination shall incl •ut no
initial employment, upgrading, demotion,
layoff or termination.
nt repre ': is that it is an equal
any subcontractor, employee or
or, national origin, ancestry, sex or
limited to, all activities related to
ent or recruitment advertising,
36. Right to Em • lo Commission reserves the right to employ
other consultants in connec
37. Govern! h • reement shall be governed by and construed with the
laws of the State of. f; ifornia en �, shall be in Riverside County.
38. Dispute Fees.
38.1 Prior ommencing 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.
38.2. 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.
39. Time of Essence. Time is of the essence for each and every provision of this
Agreement.
26
411
40. 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.
41. 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:
Overland, Pacific & Cutler, LLC
5000 Airport Plaza Drive, Suite 250
Long Beach, CA 90815
Attn: Vicky Cook
COMMISSION:
Riverside County
Transportation Commission
4080 Lemon Street, 3rd Floor
Riverside, CA 92501
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.
42. 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' derstanding concerning the performance of
the Services.
43. Amendment or o . ' ation. o supplement, modification, or amendment of
this Agreement shall be binding u ss executed in writing and signed by both Parties.
44. 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.
45. 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.
46. Provisions Applicable When State Funds or Federal Funds Are Involved.
When funding for the Services under a Task Order is provided by this Agreement are
provided, in whole or in part, from the United States Department of Transportation,
Consultant shall also fully and adequately comply with the provisions included in Exhibit
"D" (Federal Department of Transportation Requirements and California Department of
Transportation (Caltrans) DBE program 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
27
412
provisions included in Exhibit "F" (FTA Requirements) attached hereto and incorporated
herein by reference
47. 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.
48. No Third Party Beneficiaries. There are no intended third party beneficiaries
of any right or obligation assumed by the Parties.
49. 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' Compe sation or to undertake self-
insurance in accordance with the provisions of that Code, .,;`> agrees to comply with such
provisions before commencing the performance of the ces.
50. Counterparts. This Agreement may b gned in nterparts, each of which
shall constitute an original.
51. Attorney Client Privilege. The Pa ognize that, during the Project, the
Commission and its attorneys will engag=;.' comm ► ' '; ation that gives rise to an attorney
client privilege of confidentiality (" Confid m ' i ,. m ation"). Given the nature of the
work done by Consultant for the Commis` �e necessary for the Consultant to
participate in Confidential Comm ions. . the extent that (i) the Consultant is a party
to any Confidential Commu .tion and a third party seeks discovery of such
communications, then the C. ulta - • - seemed to be an agent of the Commission
solely for purposes of presery a o =y client privilege in the relevant Confidential
Communication. Any - or client privilege shall be held by the Commission and
the Consultant is autho d aive that privilege or, otherwise, disclose such
Confidential Comm t as set forth below. This Section is intended to maintain
the privilege in any lege• '` onfidential Communications that are (1) between and
among Commission, Co and Commission's attorneys; (2) between Consultant (on
behalf of the Commission) d Commission's attorneys; (3) Confidential Communications
that occur in Closed Session meetings wherein the Commission, the Commission's
attorneys and Consultant are present; and (4) between Commission and Consultant
wherein the substance of the Confidential Communication is conveyed to/from the
Consultant.
Consultant may disclose a Confidential Communication to the extent such
disclosure is required by legal process, by a court of competent jurisdiction or by any other
governmental authority, provided that any such disclosure shall be limited to the specific
part of the Confidential Communication required to be disclosed and provided that
Consultant first comply with the requirements set forth in this paragraph. As soon as
practicable after Consultant becomes aware that it is required, or may become required, to
disclose the Confidential Communication for such reason, Consultant shall notify the
Commission in writing, in order to allow the Commission to pursue legal remedies designed
28
413
to limit the Confidential Communication required to be disclosed or to assure the
confidential treatment of the disclosed information following its disclosure. Consultant shall
cooperate with the Commission, on a reimbursable basis, to assist the Commission in
limiting the scope of disclosure or assuring the confidential treatment of any disclosed
information.
52. 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.
53. 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.
54. 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.
55. Incorporation of Recitals. The recitals set forth above are true and correct
and are incorporated into this Agreement as though fully set forth herein.
56. 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.
[Signatures on following page]
29
414
SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH PROPOSITION 1 B, FTA AND FHWA FUNDING ASSISTANCE FOR
RIGHT OF WAY SUPPORT SERVICES
IN WITNESS WHEREOF, this Agreement was executed on the date first written
above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
CONSULTANT
OVERLAND, PACIFIC & CUTLER, LLC
By:
Anne Mayer
Approved as to Form:
By:
i natur
me
. Ie
Best, Best & Krieger L
General Counsel
ATTEST:
By:
Its:
* A corporation requires the signatures of two corporate officers.
One signature shall be that of the chairman of board, the president or any vice president and the second
signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or
any assistant treasurer of such corporation.
If the above persons are not the intended signators, evidence of signature authority shall be provided to
RCTC.
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415
EXHIBIT "A" - SCOPE OF SERVICES
RIGHT OF WAY SUPPORT SERVICES
The Riverside County Transportation Commission (Commission) and the Western
Riverside County Regional Conservation Authority (RCA) have procured one or more
Consultants (Consultant or Right of Way Support Services Consultant) to provide Right
of Way Support Services on an On-Call/as needed basis in support of current
Commission and RCA Projects, Measure A Projects, and projects done in partnership
with other agencies, pursuant to Task Orders issued in the sole discretion of the
Commission and/or the RCA.
Task Orders shall be awarded through an additional qualification -based selection
process.
Such Right of Way Support Services mayinclude, b •ot limited to, the following
work programs, and/or comply with applicable re me elow:
• Project Management
Consultant shall provide project ma ent services for all functions and
tasks under this contract. •nsulta hall be responsible for project
management and planning, . g, st estimates, budgeting, and
coordination with Consultan . r .. mission and/or RCA staff, sub
consultants and oth ission and/or RCA consultants, reporting,
documentation of.,:: acti ies • maintaining all records and documents.
Consultant shal .n, :cilitate and prepare meeting minutes for
regular and/or pe status eetings as requested by the Commission
and/or th= ultant shall ensure project completion based on
milestorr and d- lin- nd that all work complies with applicable Federal,
State a u ,•cal stat and regulations, including but not limited to the Uniform
Relocatio R- ' Property Acquisition Policies Act of 1970, as amended,
and implem- y 49 CFR Part 24; the State of California Government
Code, the Sta of California Relocation Assistance and Real Property
Acquisition Guidelines (Title 25, California Code of Regulations Ch 6, Art 1,
Section 6000 et seq.), the California Code of Civil Procedure, the Uniform
Standards for Federal Land Acquisition Act, the California Public Utilities Code,
the California Streets and Highways Code, the Federal Transit Administration
Real Estate Policies, the Caltrans Right of Way Manual, and the Commission's
and the RCA's Right of Way Manual.
• Title & Escrow Services
Consultant shall order preliminary title reports, vesting deeds, title policies, and
litigation guarantees as needed, coordinate opening and closing of escrows,
monitor progress, determine title deficiencies, provide assistance to resolve
and cure title deficiencies, and assist in obtaining any partial reconveyances.
Exhibit A
416
• Appraisal Coordination
Consultant shall coordinate with the Commission's and the RCA's on -call
appraisal, appraisal review, goodwill, and fixtures and equipment consultants
to perform internal review of appraisals prior to submittal to Review Appraiser.
• Acquisition/Negotiation
Consultant shall provide all acquisition services, including, but not limited to,
coordinating all phases of the acquisition, assuring that acquisition schedules
meet project schedules, documenting all activity, and maintaining all records
and documents. Consultant shall prepare all written correspondence, any
administrative settlements, and shall coordinate with Commission's and/or
RCA's legal counsel and any other on -call consultants as required. Consultant
shall prepare acquisition packages, including recommendation of the amount
of just compensation or market value, and maintain parcel diaries for each file.
• Relocation Assistance
Consultant shall provide relocation services to assure that displaced individuals
and businesses promptly receive relocation benefits consistent with federal,
state, and local regulations, Caltrans Policies and Procedures, and the
Commission's and/or the RCA's Right of Way Policies and Procedures.
• Utility Relocation Coordination
Consultant shall work with Commission and/or RCA staff and other
participatin• agencies to provide utility relocation services that may include, but
not be I',,: ; ed to, identifying public and private utilities, researching and
identif " + prior rights, obtaining utility as -built plans, coordination of potholing
and field eys with the design team, preparation of utility agreements, and
obtaining r .ti•° plans and cost estimates from the utility owners.
• Eminent Domain Coordination
Consultant shall coordinate, assist and participate as required with
Commission and Commission's legal counsel in the activities required for
Resolutions of Necessity, Caltrans's Condemnation Evaluation and Panel
Review Meetings, mediations, depositions and trials.
• RCA Property Owner Outreach
Consultant shall prepare mailings to various properties for land necessary for
conservation efforts, as an example, Willing Seller, Habitat Acquisition and
Negotiation Strategies (HANS), Grant Funded requiring Department of General
Services approvals, and Donation acquisitions.
Exhibit A
417
• Property Management
Consultant shall perform property management activities related to acquired
properties until construction start, including but not limited to, property
maintenance, repair, coordination of rental activities, demolition, and clearance
of property improvements.
• Property Maintenance and Repair Services
Consultant shall perform property maintenance and repair services, including
but not limited to, weed abatement and vegetation control, litter removal and
clean-up of debris, fencing repairs, and installation, maintenance, and repair of
property signs related to property owned by Commission or RCA.
• Right of Way Certification
Consultant shall ensure that all right of way requirements have been secured
by the date required. Consultant shall prepare the Right of Way Certification
forms and assemble and package all supporting documents for submittal to
Caltrans. Consultant shall respond to any comments and revise as necessary.
• Construction Support
Consultant shall assist Commission and/or RCA in all phases of construction,
including Temporary Construction Easement notifications, preparing and
providing Right of Way Obligation lists, utility coordination, and contractor
compliance with Right of Way agreements.
• Project Closeou
Prepare and process conveyance deeds to transfer all acquired right of way to
Caltrans or other third -party entities, if applicable. Process final utility invoices
and close out utility files. Prepare files and submit to Caltrans and/or the
Commission or the RCA.
Other right of way services may include, but not be limited to the following:
o Obtaining Rights of Entry
o Preparing Railroad Agreements
o Review of Site Assessment Reports
o Provide bilingual acquisition and relocation agents
o Identify potential excess land for planning purposes
Exhibit A
418
EXHIBIT "B"
SAMPLE TASK ORDER FORM
ON --CALL RIGHT OF WAY SUPPORT SERVICES
REQUEST FOR TASK ORDER PROPOSAL
Background
The Riverside County Transportation Commission (the "Commission") issued Request for Proposal
No. 19-31-045-00 (the "RFP"), on January 17, 2019, to seek out a bench of qualified consultants to
provide on -call right of way support services. Pursuant to the RFP, the Commission selected
qualified firms to serve as on -call consultants for various t of way support services
("Consultants"). The RFP specified that the Commission w ek proposals from the selected
The selected firms are:
firms for right of way support consulting projects, a
ee
This Right of Way Support Services Request for Ta posal ("Task Order RFP") seeks the
following services:
Process Timeline
The Commission intends to awa l/transi operations consulting services task order for the
above described services ("Task Order") pursuant to this Task Order RFP to the highest ranked
proposal, subject to l itations, i cordance with the following timeline:
a. Requests for Clarificati
The deadline for requLsts for clarification regarding this Task Order RFP is (INSERT
DATE). Requests for clarification shall be submitted via email to
b. Proposal Deadline Date
i. The Commission will accept proposals submitted to the Commission office prior to
(INSERT DATE and Time).
ii. Proposals must be submitted to
in format.
Submittal Requirements
Each proposal submitted in response to this Task Order RFP must include the following information
in the order specified below.
Exhibit B-1
419
The proposal content and format is as follows:
a. Proposals shall be typed and submitted on 8.5 x 11 inch paper. Charts and schedules may
be included in 11" x 17" format, which will be counted as 2 pages and included in the total
page count. Proposals should not exceed pages in length, excluding any RCTC-provided
forms or attachments. The beginning of a section must be clearly indicated between sections
on a page.
b. Proposals must include the following sections, organized as indicated.
SECTION 1— PROPOSAL LETTER
Proposal Letter: This letter must be signed by a person or persons authorized to
legally bind the Consultant to enter into the sk Order.
SECTION 2 — QUALIFICATIONS ( IRM A RSONNEL
This section should identify the qua li' icatio,of the firm, the individuals and any
subconsultants proposed to •rovide the Task Order services. These must be
individuals proposed by Con ' the nal RFP.
ii. Provide qua atio regarding your firm's and the proposed
personnel's a ation descriptions of relevant projects previously
perform . nd re nces this particular Task Order RFP, including:
(A) exper = of your firm in performing similar services, and examples of such
ices, including references. Include any information that may be of value
the Comm': sioi n evaluating your firm's qualifications for the Task Order
ces;
ey person who will perform the required services and their key
(C) descriptions of the experience and qualifications of proposed key
personnel;
(D) descriptions of relevant projects previously performed by the proposed
key personnel. Include what services were performed, the date of the project,
and unique features of the project which would be beneficial to the
Commission; and
(E) a written assurance that the key individuals listed and identified will
perform the work and will not be substituted with other personnel without the
Commission's prior approval.
Exhibit B-2
420
SECTION 3 — UNDERSTANDING AND APPROACH
Describe the services and activities that your firm proposes to provide to the
Commission. Include the following information:
Demonstrate your firm's understanding of the nature of the work and the approach to
be taken. Provide an explanation of the approach to providing the services requested
under this Task Order RFP. Describe how Consultant would tailor its services to
meet the needs of the Commission addressing the tasks and discussing the
deliverables. Include a detailed proposed timeline for completing the services.
Provide a list of documents and/or information your firm anticipates needing from
the Commission and its consultants to perform the ices.
SECTION 4 — PROPOSAL PRICING
Proposal Pricing Form. Provide a propoossed price
is Task Order request.
Pricing shall itemize all items that will be charged to t Task Order, including
anticipated mileage, printing or other direct cost categories previously identified in
your firm's Schedule of Other Direct Costs. Costs shall be segregated to show staff
hours, rates, classifications, administrative ov -head, and other direct costs, if any.
Hourly rates must not exceed rates for classifications noted in the original RFP
Evaluation Process
a. Basis of Award
Proposals will be evaluated in accordance with the stated evaluation criteria. The Commission
reserves the right to award the contract not to a proposer with the highest ranked proposal, but to the
proposal who will provide the best veramatch to the task order requirements. The Commission
also reserves the right to postpone a ecision, request follow up material, or cancel or withdraw this
request in its sole and absolute discretion. The Commission will award the Task Order to the best
overall match to the Task Order RFP requirements and who serves the Commission's interest.
b. Evaluation Criteria —100 total points possible
1. Qualifications of Firm and Personnel (INSERT NUMBER points max)
Experience in performing work similar in nature and/or related to the work
described in this Task Order RFP; appropriateness of personnel to their
assigned work tasks; logic of project organization; adequacy of labor
commitment.
Exhibit B-3
421
2. Understanding & Approach (INSERT NUMBER points max)
Depth of Offeror's understanding of Commission's requirements listed in this
Task Order RFP; understanding of the project issues and potential conflicts;
and ability to meet deadlines.
3. Cost (INSERT NUMBER points max)
Reasonableness of the total cost based on anticipated requirements; adequacy
of data in support of figures quoted; basis on which prices are quotes.
Proposer Price Score = Lowest Price Proposed X Points
Proposer's Price
Commission Rights
a) The Commission shall not be liable for proposal ppepara 'on related expenses.
b) The Commission retains the right to negoti
chooses not to accept the proposal as offere
c) The Commission retains the right to consi
comply with federal and/or state law.
d) The Commission retains t
thereof, at its discretion.
e) The Commission reta
RFP.
ith the highest scoring Consultant if it
y other factors it deems necessary to
ht to V ..t or -ject any and all proposals, or any part
he right to Oncel, amend or withdraw the entire Task Order
VI. Notification nd Debriefi g
Consultants submitting a proposal pursuant to this Task Order RFP shall be informed of the
Commission's decision regarding award of the Task Order. Any Consultant not awarded a Task
Order pursuant to this Task Order RFP may request an explanation regarding the strengths and
weaknesses of its proposal. Such request must be made within ten (10) days of notification of
Task Order award.
Exhibit B-4
422
EXHIBIT "C"- COMPENSATION AND PAYMENT
Exhibit C-1
423
EXHIBIT "C"
COMPENSATION SUMMARY
FIRM
PROJECT TASKS/ROLE
COST
Prime Consultant:
Overland, Pacific & Cutler
Right of Way Support Services
$ 3,300,000.00
Sub Consultants:
Del Richardson & Associates, Inc.
Acquistion/Relocation Assistance
TBD per Task Order
Simplex Construction Management
Construction Support
TBD per Task Order
Group Delta
Construction Support
TBD per Task Order
Commonwealth Land Title Company
Title & Escrow Coordination
TBD per Task Order
4
OTAL COSTS
t 3,300,000.00
1 Commission authorization pertains to total contract award amount. Compensatio 'ustments between consultants may occur;
however, the maximum total compensation authorized may not be exceeded.
424
EXHIBIT "D"
FHWA/ CALTRANS REQUIREMENTS
1. 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
unlawfully discriminate, harass, or allow harassment against any employee or applicant for
employment because of sex, race, color, ancestry, religious r-ed, national origin, physical
disability (including HIV and AIDS), mental disability, med.
(over 40), marital status, and denial of family care leav
shall insure that the evaluation and treatment of
employment are free from such discriminati
subconsultants shall comply with the provision
(Gov. Code §12990 (a -f) et seq.) and the applic
(California Code of Regulations, Title 2, Section 7
of the Fair Employment and Housing Co ��� �� imp
12990 (a -f), set forth in Chapter 5 of
Regulations, are incorporated into
if set forth in full. Consultant
obligations under this claus
bargaining or other Agreeme
C. If this Agree
relative to Title VI
Transportation — Titl
the 1964 Civil Rights A
condition (e.g., cancer), age
sultant and subconsultants
e ``~,r.* ees and applicants for
hara ent. Consultant and
r Employment and Housing Act
ulations promulgated there under
et seq.). The applicable regulations
enting Government Code Section
Ale 2 of the California Code of
t by eference and made a part hereof as
sultants shall give written notice of their
ations with which they have a collective
nded, the Consultant shall comply with regulations
ion federally -assisted programs of the Department of
Federal Regulations, Part 21 - Effectuation of Title VI of
I provides that the recipients of federal assistance will
implement and maintain icy 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.
D. If this Agreement is federally funded, the Consultant, with regard to the work performed
by it during the Agreement shall act in accordance with Title VI. Specifically, the Consultant
shall not discriminate on the basis of race, color, national origin, religion, sex, age, or
disability in the selection and retention of Subconsultants, including procurement of
materials and leases of equipment. The Consultant shall not participate either directly or
indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT's Regulations,
including employment practices when the Agreement covers a program whose goal is
employment.
Exhibit D-1
425
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 rec
considered in determining CONSULTANT responsibil',, Disc
exceptions apply, initiating agency, and dates of
C. Exceptions to the Federal Government Exclu
General Services Administration are to be
Administration.
3. DISCRIMINATION
The Commission shall not di
the award and performance
Caltrans DBE program
all necessary and re
the award and ad
dation for award, but will be
es must indicate to whom
es List System maintained by the
mined by the Federal highway
sis of race, color, national origin, or sex in
ed contract or in the implementation of the
ments of 49 CFR Part 26. The Commission shall take
der 49 CFR Part 26 to ensure nondiscrimination in
0 -assisted contracts.
Consultant or subcont ` ..r - :11 not discriminate on the basis of race, color, national
origin, of sex in the perfor i e 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.
4. PROMPT PAYMENT
Consultant agrees to pay each subcontractor under this prime contract for satisfactory
performance of its contract no later than 10 days from the receipt of each payment the
prime contractor receives from the Commission. Any delay or postponement of payment
from the above referenced time frame may occur only for good cause following written
Exhibit D-2
426
approval of the Commission. This clause applies to both DBE and non -DBE
subcontractors.
5. RELEASE OF RETAINAGE
No retainage will be withheld by the Agency from progress payments due the prime
consultant. Retainage by the prime 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 prime 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 the prime
consultant or subconsultant in the event of a dispute involving late payment or nonpayment
by the prime consultant or deficient subconsultant perform e, or noncompliance by a
subconsultant. This provision applies to both DBE and BE prime consultants and
subconsultants.
6. LEGAL REMEDIES
In addition to those contract remedies set forth
either Party to this Agreement may, where applica
this Agreement pursuant to the relevan 'ons
relevant federal or state statutory provisi
relevant federal and state provisio
well as any and all other applic
The Consultant shall include
subcontractors.
7. DBE PART
evant provisions of California law,
seek legal redress for violations of
C.F.R. Parts 23 and 26, to the
civil rights violations, and to the
alse aims or "whistleblower" actions, as
state provisions of law.
is effect in each of its agreements with its
Caltrans has develope• st. ide DBE program pursuant to 49 C.F.R. Part 26. The
requirements and proce• .; , 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 Exhibits "E" of this Agreement in compliance with the
Caltrans DBE program, a final utilization report in the form provided by the Commission,
and any other Caltrans required DBE forms.
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." By obtaining DBE participation on this
Agreement, Consultant will assist Caltrans in meeting its federally mandated statewide
overall DBE goal.
B. This Agreement does not have a DBE goal, but DBE goals may be included with
each task order request for proposals. If a DBE subconsultant is unable to perform, the
Exhibit D-3
427
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. 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.
D. Any subcontract entered into as a result of this Ag'ment shall contain all of the
provisions of this section.
E. A DBE may be terminated only with prior wr n approva the Commission and
only for the reasons specified in 49 CFR 26.53 rior equesti Commission consent
for the termination, the prime consultant must m tf rocedural requirements specified
in 49 CFR 26.53(f).
8. DBE PARTICIPATION GENERAL ►' !- Il'3N
It is Consultant's responsibility e y info ed regarding the requirements of 49 CFR,
Part 26, and the Caltrans D rogr Pa ular attention is directed to the following:
A. A DBE must be •call iness firm defined pursuant to 13 CFR 121 and be
certified through the ' . ifor ni Certification Program (CUCP).
B. A certified DB. gay pa pate as a prime contractor, subcontractor, joint venture
partner, as a vendor o er' or supplies, or as a trucking company.
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 8 below.
Exhibit D-4
428
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.
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 materi.., and supplies used on the
Agreement, for negotiating price, determining quality and; "'iantity, ordering the material,
and installing (where applicable) and paying for the mat- elf. To determine whether a
DBE is performing a commercially useful functi eva ''m.e the amount of work
subcontracted, industry practices; whether the a! y' nt the fir to be paid under the
Agreement is commensurate with the work it ctua,R;. perform g, and other relevant
factors.
B. A DBE does not perform a comm
an extra participant in a transaction, Agre
in order to obtain the appearance •; .! BE
such an extra participant, exami
not participate.
C. If a DBE does no
total cost of its Agre
portion of the wor
industry practice for
commercially useful fu
ction if its role is limited to that of
e t through which funds are passed
pati.' In determining whether a DBE is
actions, particularly those in which DBEs do
exercise responsibility for at least thirty percent of the
n work force, or the DBE subcontracts a greater
me than would be expected on the basis of normal
rk involved, it will be presumed that it is not performing a
10. DBE CERTIFICATION AND DE -CERTIFICATION STATUS
If a DBE subcontractor is decertified during the life of the Agreement, 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 or vendor and the total dollar amount actually paid each
Exhibit D-5
429
DBE or vendor, 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.
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 twenty-
five percent (25%) of the dollar value of the invoice being withheld from payment until the
form is submitted. The 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 e C•' mission's Contract Administrator
documentation showing the truck number, name of owner, California Highway Patrol CA
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
Exhibit D-6
430
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. REPORTING PARTICIPATION OF DBE TRUCKING COMPANIES
When Reporting DBE Participation, Participation of DBE trucking companies may count as
follows:
A. The DBE must be responsible for the management and supervision of the entire
trucking operation for which it is responsible.
B. The DBE must itself own and operate at least one fully licensed, insure, and
operational truck used on the Agreement.
C. The DBE receives credit r the total value of the transportation services it provides
on the Agreement using c owns, insures, and operates using drivers it employs.
D. The DBE may lease trucks from another DBE firm including an owner -operator who
is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the
total value of the transportation services the lessee DBE provides on the Agreement.
E. The DBE may also lease trucks from a non -DBE firm, including an owner -operator.
The DBE who leases trucks from a non -DBE is entitled to credit only for the fee or
commission it receives as a result of the lease arrangement. The DBE does not receive
credit for the total value of the transportation services provided by the lessee, since these
services are not provided by the DBE.
F. For the purposes of this section, a lease must indicate that the DBE has exclusive
use and control over the truck. This does not preclude the leased truck from working for
others during the term of the lease with the consent of the DBE, as long as the lease gives
Exhibit D-7
431
the DBE absolute priority for use of the leased truck. Leased trucks must display the name
and identification number of the DBE.
14. DEBARMENT, SUSPENSION AND OTHER INELIGIBILITY AND VOLUNTARY
EXCLUSION
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 iss ALP. compince with the Energy Policy and
Conservation Act (Pub. L. 94-163, 89 Sta
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.
Exhibit D-8
432
EXHIBIT "E"
CONSULTANT DBE COMMITMENT
Exhibit E-1
433
EXHIBIT "E"
CONSULTANT DBE COMMITMENT
Consultant to Complete this Section
]l. Local Agency Name: Riverside County Transportation Commission
2. Project Location: Riverside, CA
3. Project Description: On -Call Right of Way Services
4. Consultant Name: Overland, Pacific & Cutler, LLC
5. Contract DBE Goal %: 12
4
DBE Commitment Informa '
6. Description of Services to be Provided
7. DBE Firm
Contact Information
8. DB11 Cert.
Number
9. DBE
Del Richardson & Associates
m.garcia@drain com
Certificates
10
Simplex Construction
Mgmt. 714-458-2251
attached
2
Z!L '
Exhibit E-1
17336.00603\31171937.1
434
EXHIBIT "F" - FTA PROVISIONS
Exhibit F-1
435
FEDERAL TRANSIT ADMINISTRATION REQUIREMENTS
Notwithstanding anything to the contrary contained in the Agreement, including
the other Exhibits attached thereto, the following provisions shall apply if funding for the
Services is provided, in whole or in part, from the Federal Transit Administration ("FTA").
In addition, the exhibits attached to this Agreement, may be replaced and substituted
with similar forms required by FTA. Consultant agrees to complete any such substitute
forms.
1. NO FEDERAL GOVERNMENT OBLIGATIONS TO THIRD -PARTIES
BY USE OF A DISCLAIMER
(1) The Commission and Consultant ackno
notwithstanding any concurrence by the Federal
the solicitation or award of the underlying co
consent by the Federal Government ("Gove
not a party to this contract and shall not
to the Commission, Consultant, or any
contract) pertaining to any matter resultin
(2) The Consultant agrees to
financed in whole or in part with F
agreed that the clause s
who will be subject to
ledge and agree that,
vernment in or approval of
absent the express written
Federal Government is
ubject to a ",+bligations or liabilities
(whether or not a party to that
the underlying contract.
ve clause in each subcontract
nce provided by FTA. It is further
dified, except to identify the subconsultant
2. PROGRA ND FALSE OR FRAUDULENT STATEMENTS
AND RELATED AC
(1) The Consulta ": `' acknowl = ';� es ' hat the provisions of the Program Fraud Civil
Remedies Act of 1
ended, 31 U.S.C. §§ 3801 et seq. and U.S. DOT
regulations, "Program • " ``vil Remedies," 49 C.F.R. Part 31, apply to its actions
pertaining to this Project. - pon 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.
1 UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL TRANSIT ADMINISTRATION MASTER
AGREEMENT For Federal Transit Administration Agreements authorized by 49 U.S.C. chapter 53, Title 23, U.S.C. (Highways),
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, the National Capital Transportation Act of 1969,
as amended, the Transportation Equity Act for the 21st Century, as amended, 23 U.S.C. § 101 note, or other Federal enabling
legislation; FTA MA(14); October 1, 2007; [http://www.fta.dot.qov/documents/14-Master.pdfl.
APPEI4DIV N - 1
(2) The Consultant also acknowledges that if it makes, or causes to be made,
a false, fictitious, or fraudulent claim, statement, submission, certification,
assurance, or representation 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. chapter 53
or any other Federal law, the Government reserves the right to impose the
penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5323(1) on the Consultant, to the
extent the Federal Government deems appropriate.
(3) 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 provision
3. ACCESS TO RECORDS
(1) The Consultant agrees to provide t e Commission, the FTA Administrator,
the U.S. Secretary of Transportation, the Comptroller General of the United
States or any of their authorized representatives access to all Project work,
materials, payrolls, and other data of the Consultant which are directly pertinent
to this contract as required by 49 U.S.C. § 5325(g).
(2) The Consultant agrees to permit any of the foregoing parties to reproduce
by any means whatsoever or to copy excerpts and transcriptions as reasonably
needed.
(3) The Consultant agrees 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 transmission of the final expenditure report, 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 the Commission, 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).
(4) The Consultant agrees to require its subcontractors and third party
contractors to provide the same.
4. FEDERAL CHANGES
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 Grant Agreement or Cooperative Agreement between the Commission
and the Federal Government
APPEIk1DVX N - 2
("Grant Agreement or Cooperative Agreement"), 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 REQUIREMENTS
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000d et seq., U.S. DOT regulations, "Nondiscrimination in
Federally -Assisted Programs of the Department of Transportation — Effectuation of Title
VI of the Civil Rights Act," 49 C.F.R. Part 21, FTA Circular 4702.1A, "Title VI and Title VI
— Dependent Guidelines for Federal Transit Administration Recipients," May 13, 2007,
Federal transit law at 49 U.S.C. § 5332, the Consultant agrees that it will not
discriminate against any employee or applicant for employ► ;,-nt because of race, color,
creed, national origin, sex, age, or disability. In adds the Consultant agrees to
comply with applicable Federal implementing re• i. and other implementing
requirements FTA may issue.
(2) Equal Employment Opportunity - The
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin
Title VII of the Civil Rights Act, as
employment opportunity provi
employment opportunity r
regulations, "Office of Fede
Opportunity, Departm
Executive Order
Executive Order
Employment Opportu
statutes, executive orde
qual employment opportunity
nsultant agrees to comply with
U.S.C. § 2000e, and equal
.S.C. § 5332, and all applicable equal
.S. Department of Labor (U.S. DOL)
ompliance Programs, Equal Employment
" 41 C.F.R. Parts 60 et seq., (which implement
I Employment Opportunity," as amended by
mending Executive Order 11246 Relating to Equal
.S.C. § 2000e note), and with any applicable Federal
gulations, 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.
(3) Age - In accordance with the Age Discrimination in Employment Act, as amended,
29 U.S.C. §§ 621 through 634 and Federal transit law at 49 U.S.C. § 5332, the
Consultant agrees to refrain from discrimination against present and prospective
APPENDIX N - 3
employees for reason of age. In addition, the Consultant agrees to comply with any
implementing requirements FTA may issue.
(4) Disabilities - In accordance with section 102 of the Americans with Disabilities Act,
as amended, 42 U.S.C. § 12112, the Consultant agrees 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.
(5) DBE Program Compliance - The Commission has established a DBE Program
pursuant to 49 C.F.R. Part 26, which applies to FTA funded agreements. The
requirements and procedures of the Commission's DBE Program are hereby
incorporated by reference into this Agreement. Consultant shall complete Exhibits "G"
and "H" of this Agreement, or similar forms to be provided by the Commission, in
compliance with the Commission's DBE Program for FTA funded agreements. Failure
by Consultant or its subcontractor(s) to carry out the Commission's DBE Program
procedures and requirements, or the applicable requirements of 49 C.F.R. Part 26,
section 1101(b) of SAFETEA-LU, 23 U.S.C. § 101 note, and U.S. DOT regulations,
"Participation by Disadvantaged Business Enterprises in Department of Transportation
Financial Assistance Programs," 49 C.F.R. Part 26, shall be considered a material
breach of this Agreement. Such a material breach may be grounds for termination of
this Agreement or such other appropriate administrative remedy as the Commission
deems appropriate. The Consultant shall ensure that a provision mandating compliance
with the Commission's DBE Program for FTA funded agreements is included in any and
all sub -agreements entered into which arise out of or are related to this Agreement.
Consultant shall also promptly provide the Commission with all necessary information
related to the DBE status of its subcontractors. Should the DBE status of any of its
subcontractors change in any way, Consultant shall promptly inform the Commission of
this change.
(6) 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. TERMINATION PROVISIONS
The termination provisions found at Section 21 of this Agreement are consistent with the
termination provisions suggested by FTA for the protection of the Federal Government.
The termination provisions found at Section 21 of this Agreement control termination
under this Agreement.
APPEF'4D X N - 4
7. DEBARMENT AND SUSPENSION
Instructions for Certification
1. By signing and submitting a Proposal, the Consultant is providing the signed
certification set out below.
2. The certification in this clause is a material representation of fact upon which reliance
was placed when this transaction was entered into. If it is later determined that the
Consultant knowingly rendered an erroneous certification, in addition to other remedies
available to the Federal Government, Commission may pursue available remedies,
including suspension and/or debarment.
3. The Consultant shall provide immediate written noti
the Consultant learns that its certification was e
become erroneous by reason of changed circums es.
4. The terms "covered transaction," "debarr
covered transaction," "participant," "persons,
"principal," "proposal," and "voluntarily ded,'
meanings set out in the Definitions a
Commission if at any time
when submitted or has
ended," "ineligible," "lower tier
ower tier covered transaction,"
used in this clause, have the
sections of rules implementing
Executive Order 12549 [49 CFR = 29] may contact Commission for assistance
in obtaining a copy of those re
5. The Consultant agrees by
transaction be entere
transaction with a
excluded from parti
Commission.
roposal that, should the proposed covered
not knowingly enter into any lower tier covered
red, suspended, declared ineligible, or voluntarily
s covered transaction, unless authorized in writing by
6. The Consultant further agrees by submitting a Proposal that it will include the clause
titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary
Exclusion - Lower Tier Covered Transaction", without modification, in all lower tier
covered transactions and in all solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective
participant in a lower tier covered transaction that it is not debarred, suspended, ineligible,
or voluntarily excluded from the covered transaction, unless it knows that the certification
is erroneous. A participant may decide the method and frequency by which it determines
the eligibility of its principals. Each participant may, but is not required to, check the
Nonprocurement List issued by U.S. General Service Administration.
APPENDIX N - 5
8. Nothing contained in the foregoing shall be construed to require establishment of
system of records in order to render in good faith the certification required by this
clause. The knowledge and information of a participant is not required to exceed that
which is normally possessed by a prudent person in the ordinary course of business
dealings. Except for transactions authorized under Paragraph 5 of these instructions, if
a participant in a covered transaction knowingly enters into a lower tier covered
transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded
from participation in this transaction, in addition to all remedies available to the Federal
Government, Commission may pursue available remedies including suspension and/or
debarment.
9. The Consultant agrees to comply, and assures the compliance of each
subconsultant, lessee, or third party contractor, with Executive Orders Nos. 12549 and
12689, "Debarment and Suspension," 31 U.S.C. § 6 ' 1 note, and U.S. DOT
regulations, "Governmentwide Debarment and Susp- on (Nonprocurement)," 49
C.F.R. Part 29.
10. The Consultant agrees to, and assures tha subcons nts, lessees and third
party contractors have reviewed the "Exclude • " -rties sting Syem" at http://elps.gov/
before entering into any third sub agreement, le _- - f; ird party contract.
"Certification Regarding Debarment, ,-.. sio eligibility and Voluntary
Exclusion"
(1) The Consultant certifies, b
"principals" [as defined at
proposed for debarment, de
in this transaction by
(2) When the Co
shall attach an expla
f this bid or proposal, that neither it nor its
5(p)] is presently debarred, suspended,
, or voluntarily excluded from participation
partment or agency.
ble to certify to the statements in this certification, it
s proposal.
8. PROVISION OR RESOLUTION OF DISPUTES, BREACHES, OR
OTHER LITIGATION
Disputes - Disputes arising in the performance of this Contract which are not resolved
by agreement of the parties shall be decided in writing by the Commission Executive
Director, or his or her designee. This decision shall be final and conclusive unless
within ten (10) days from the date of receipt of its copy, the Consultant mails or
otherwise furnishes a written appeal to the Commission's Executive Director, or his or
her designee. In connection with any such appeal, the Consultant shall be afforded an
opportunity to be heard and to offer evidence in support of its position. The decision of
the Commission's Executive Director, or his or her designee, shall be binding upon the
Consultant and the Consultant shall abide be the decision.
APPENDIX N - 6
Performance During Dispute - Unless otherwise directed by Commission, Consultant
shall continue performance under this Contract while matters in dispute are being
resolved.
Claims for Damages - Should either party to the Contract suffer injury or damage to
person or property because of any act or omission of the party or of any of his
employees, agents or others for whose acts he is legally liable, a claim for damages
therefor shall be made in writing to such other party within a reasonable time after the
first observance of such injury of damage.
Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes
and other matters in question between the Commission and the Consultant arising out
of or relating to this agreement or its breach will be decid by arbitration if the parties
mutually agree, or in a court of competent jurisdictio hin the State in which the
Commission is located.
Rights and Remedies - The duties and obligations imposed is Agreement and the
rights and remedies available hereunder shall be in addition to nd not a limitation of
any duties, obligations, rights and remedies otherwise imposed or available by law. No
action or failure to act by the Commissio or Consultant shall constitute a waiver of any
right or duty afforded any of them un• e Contract, nor shall any such action or
failure to act constitute an approval of acquiescence in any breach thereunder,
except as may be specifically agreed i wri
FTA Notification - Consulta
major dispute, breach,
interests in the Proj
party to litigation, t
in writing of any current or prospective
itigation that may affect the Federal Government's
ant wishes to name the Federal Government as a
ha inform FTA in writing before doing so.
Lobbying Restrictions. To the extent applicable, Consultant agrees to:
(1) Comply, and assure the compliance of each subcontractor at any tier, with U.S.
DOT regulations, "New Restrictions on Lobbying," 49 C.F.R. Part 20, modified as
necessary by 31 U.S.C. § 1352.
(2) Comply with Federal statutory provisions, to the extent applicable, prohibiting the
use of Federal assistance funds for activities designed to influence Congress or a State
legislature on legislation or appropriations, except through proper, official channels.
10. CLEAN AIR
APPEF4 X N - 7
(1) 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 through 7671q.
The Consultant agrees to report each violation to the Commission and understands and
agrees that the Commission will, in turn, report each violation as required to assure
notification to FTA and the appropriate EPA Regional Office.
(2) The Consultant also agrees to include these requirements in each subcontract
exceeding $100,000 financed in whole or in part with Federal assistance provided by
FTA.
11. CLEAN WATER
(1) The Consultant agrees to comply with all applicable sta► ards, orders or regulations
issued pursuant to the Federal Water Pollution Contr• - ct, as amended, 33 U.S.C.
1251 through 1377. The Consultant agrees to repo :c .lation to the Commission
and understands and agrees that the Commission ill, in to eport each violation as
required to assure notification to FTA and the a► opri. e EPA ' •ional Office.
(2) The Consultant also agrees to include th
exceeding $100,000 financed in whole
FTA.
12. ENERGY CONSERVA'
equirements in each subcontract
Federal assistance provided by
Energy Conservation. To the extent applicable, Consultant agrees to comply with the
mandatory energy efficiency standards and policies within the applicable State energy
conservation plans issued in compliance with the Energy Policy and Conservation Act,
42 U.S.C. §§ 6321 et seq. To the extent applicable, Consultant agrees to perform an
energy assessment for any building constructed, reconstructed, or modified with FTA
assistance, as provided in FTA regulations, "Requirements for Energy Assessments,"
49 C.F.R. Part 622, Subpart C.
13. CONFORMANCE WITH NATIONAL ITS ARCHITECTURE
National Intelligent Transportation Systems Architecture and Standards. To the extent
applicable, Consultant agrees to conform, to the extent applicable, to the National
Intelligent Transportation Systems (ITS) Architecture and Standards as required by
SAFETEA-LU § 5307(c), 23 U.S.C. § 512 note, and with FTA Notice, "FTA National
ITS Architecture Policy on Transit Projects" 66 Fed. Reg. 1455 et seq., January 8,
2001, and other subsequent Federal directives that may be issued.
APPEIk1®BX N - 8
14. ADDITIONAL REQUIREMENTS
To the extent applicable, Consultant agrees to comply with the Federal programs
specified below and, with regard to such programs, Consultant agrees not compromise
the Commission's compliance with Federal requirements as pertains to the Project.
The Programs are as follows:
(1) Urbanized Area Formula Program authorized under 49. U.S.C. § 5307.
(2) Elderly Individuals and Individuals with Disabilities Formula Program authorized
under 49 U.S.C. § 5310 as amended by SAFETEA-LU and subsection 3012(b) of
SAFETEA-LU, 49 U.S.C. § 5310 note, respectively.
(3) New Freedom Program authorized under 49 U.S.C. § 5317.
(4) Nonurbanized Area Formula Program authorized under 49 U.S.C. § 5311(b).
(5) Clean Fuels Grant Program authorized under 49 U.S.C. § 5308.
(6) Job Access and Reverse Commute Formula Grant Program authorized under 49
U.S.C. § 5316.
15. RELEASE OF RETAINAGE
°11
The Commission shall hold ainage from t prime contractor and shall make prompt
and regular incremental acceptances of portions, as determined by the Commission of
the contract work and pay retainage to prime contractors based on these acceptances.
The prime contractor or subcontractor shall return all monies withheld in retention from
a subcontractor within 30 days after receiving payment for work satisfactorily completed
and accepted including incremental acceptances of portions of the contract work by the
Commission. Federal regulations (49 CFR 26.29) require that any delay or
postponement of payment over 30 days may take place only for good cause and with
the Commission's prior written approval. Any violation of this provision shall subject the
violating prime contractor or subcontractor to the penalties, sanctions, and other
remedies specified in Section 7108.5 of the California Business and Professions Code.
These requirements shall not be construed to limit or impair any contractual,
administrative, or judicial remedies otherwise available to the prime contractor or
subcontractor in the event of a dispute involving late payment or nonpayment by the
prime contractor, deficient subcontract performance, or noncompliance by a
subcontractor. This provision applies to both DBE and non -DBE prime contractors and
subcontractors.
APPEND -04X N - 9
16. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA)
TERMS
The preceding provisions include, in part, certain Standard Terms and Conditions
required by the Federal Transit Authority, whether or not expressly set forth in the
preceding contract provisions. All contractual provisions required by the Federal Transit
Authority, 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 Commission requests which would cause the Com mission to be in violation of
the FTA terms and conditions.
17. 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 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
APPENDIX N - 10
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).
18. 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 peorm of contracts financed in whole or in
part with U.S. DOT funds.
It is the policy of the Commis
1. Ensure nondiscrimin in the award and administration of DOT -assisted
contracts;
2. Create a el playi field on which DBE's can compete fairly for DOT -
assisted contracts;
3. Ensure that th- 'IBE 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.
APPENDIX N - 11
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 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.
APPENDIX N - 12
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 su.,:= nsultants for satisfactory
performance of their contracts no later than 30 days m receipt of each payment
Commission makes to the Consultant. 49 C.F.R. § �;' •' unless a shorter period is
provided in the contract.
J. Compliance with DBE Requirements ContRed in A Provisions: Consultant shall
comply with all DBE reporting and other requiremen ontained in this Agreement.
APPENDIX N - 13
EXHIBIT "G" — LOBBYING ACTIVITIES DISCLOSURE
Exhibit G-1
449
Local Assistance Procedures Manual
EXHBIT 10-Q
Disclosure of Lobbying Activities
EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES
COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVI11ES PURSUANT' TO 31 U.S.C. 1352
1. Type of Federal Action:
X❑
a. contract
b. grant
c. cooperative agreement
d. loan
e. loan guarantee
f. loan insurance
2. Status of Federal Action:
a bid/offer/application
b. initial award
c. post -award
4. Name and Address of Reporting Entity
nPrime Subawardee
5000 Airport P1azaTtlrrive, ''Long
Congressional District, if known
6. Federal Department/Agency:
NA
8. Federal Action Number, if known:
NA
10. Name and Address of Lobby Entity
(If individual, last name, first name, MI)
NA
(attach Continua
12. Amount of Payment (check all that
$ NA
actual
13. Form of Payment (check all
®a. cash
b. in -kind; spec
15. Brief Description'if Services Per
officer(s), employee( r mem
16. Continuation Sheet(s) attached:
3. Report Type:
X❑
a. initial
b. material change
For Material Change Only:
year quarter
date of last report
5. If Reporting Entity in No. 4 is Subawardee,
Enter Name and Address of Prime:
NA
Beach 90815
Congression strict, if known
7. Federal am Name/Description:
NA
C 11/Numb applicable
9. and Amount, 1 wn:
NA
11. Indi bals Performing Services
(including address if different from No. 10)
(las me, first name, MI) NA
pe of Payment (check all that apply)
a. retainer
b. one-time fee
c. commission
d. contingent fee
e deferred
f. other, specify
med or to be performed and Date(s) of Service, including
s) contacted, for Payment Indicated in Item 12:
(attach Continuation Sheet(s) if necessary)
Yes El
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.
Federal Use Only:
No
Signature:
ett
Print Name: Brian E
NA
Title: CEO
Telephone No.: 562.304 .2 0 0 0 Date: 3/29/2
Authorized for Local Reproduction
Standard Form - LLL
2
Standard Form LLL Rev. 04-28-06
Distribution: Orig- Local Agency Project Files
LPP 13-01
APPEM9(DX L - 1
Page 1
May 8, 2013
AGENDA ITEM 10
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE:
May 23, 2022
TO:
Western Riverside County Programs and Projects Committee
FROM:
Brian Cunanan, Commuter and Motorist Assistance Manager
THROUGH:
David Knudsen, Interim External Affairs Director
SUBJECT:
Agreement for Freeway Service Patrol Tow Truck Service
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Award Agreement No. 22-45-073-00 to Royal Coaches Auto Body and Towing, LLC for
Freeway Service Patrol (FSP) tow truck services on State Route 91, Beat Nos. 1 and 2, for
a five-year term, in the amount of $3,824,793, plus a contingency amount of $191,240,
for a total amount not to exceed $4,016,033;
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 approve the use of the contingency
amount as may be required for these services; and
4) Forward to the Commission for final action.
BACKGROUND INFORMATION:
In 1986, the Commission established itself as the Riverside County Service Authority for Freeway
Emergencies (RC SAFE) after the enactment of SB 1199 in 1985. The purpose of the formation of
SAFEs in California was to provide call box services and, with excess funds, provide additional
motorist aid services. Funding for RC SAFE is derived from a one dollar per vehicle registration
fee on vehicles registered in Riverside County. Initially, these funds were used only for the call
box program. As additional motorist aid services were developed, SAFE funds were also used to
provide FSP and traveler information services as part of a comprehensive motorist aid system in
Riverside County.
In 1990, Proposition C was passed to fund transportation improvements and to help reduce
traffic congestion in California. From this, the FSP program was created by Caltrans, which
developed the corresponding Local Funding Allocation Plan to distribute funds to participating
jurisdictions. In addition to funding received from Caltrans, agencies are required to contribute
a 25 percent local match. For the Commission, SAFE revenues are used to meet this match
requirement.
Agenda Item 10
451
The Commission, acting in its capacity as the RC SAFE, is the principal agency in Riverside County,
in partnership with Caltrans and the California Highway Patrol (CHP), managing the FSP program.
The purpose of the FSP program is to provide a continuously roving tow services patrol along
designated freeway segments (referred to as beats) to relieve freeway congestion and facilitate
the rapid removal of disabled vehicles and those involved in minor accidents on local freeways.
Contracts to provide FSP tow service are competitively bid as needed for each service area.
Currently, the Commission contracts with three tow truck operators to provide service on a total
of twelve beats Monday through Friday during the peak commute hours, 5:30 a.m. to
8:30 a.m. and 2:30 p.m. (12:30 p.m. on Fridays) to 6:30 p.m. In addition, select beats, such as
Beat 1 & 2, also have mid -day and weekend service. In FY 2020/21, FSP performed nearly 60,000
assists.
DISCUSSION:
Staff sought a competitive solution to award a tow contract to a qualified firm to cover a FSP
service area comprised of two beats on SR -91.
Contract FSP Service Area (Beats 1 & 2)
Number of Tow Trucks
•
•
Beat 1: SR -91 from Orange County line to Lincoln Ave.
Beat 2: SR -91 from Lincoln Ave. to Magnolia Ave. and
1-15 from Hidden Valley Parkway to Magnolia Ave.
3 primary
(+1 backup truck)
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 FSP tow truck services
on State Route 91, Beat Nos.1 and 2, as set forth under the terms of the request for proposals
(RFP) No. 22-44-073-00.
RFP No. 22-45-073-00 was released on March 18, 2022. The RFP was posted on the Commission's
PlanetBids website, which is accessible through the Commission's website. Utilizing PlanetBids,
emails were sent to 44 firms, 20 of which are located in Riverside County. Through the PlanetBids
site, 13 firms downloaded the RFP; 1 of these firms is located in Riverside County. A pre -proposal
conference was held on March 24, 2022. Staff responded to all questions submitted by potential
proposers prior to the March 31, 2022, clarification deadline date. Four firms — Royal Coaches
Auto Body and Towing (Baldwin Park); Pepe's Towing Service Inc. (Colton); Pomona Valley Towing
(Pomona) and Amazon Towing and Recovery (Jurupa Valley) — submitted proposals prior to the
2:00 p.m. submittal deadline on April 14, 2022. Of the four proposals submitted, three proposals
were responsive and responsible as staff determined that the proposal submitted by Amazon
Towing and Recovery was non -responsive due to not meeting the minimum qualifications of the
Agenda Item 10
452
RFP. Utilizing the evaluation criteria set forth in the RFP, the remaining three proposals were
evaluated and scored by an evaluation committee comprised of the CHP Inland Division, San
Bernardino County Transportation Authority, and Commission staff.
As a result of the evaluation committee's assessment of the written proposals and pursuant to
the terms of the RFP, the evaluation committee recommends contract award to Royal Coaches
Auto Body and Towing for FSP tow truck services for State Route 91, Beat Nos. 1 and 2 for a five-
year term, in the amount of $3,824,793, plus a contingency amount of $191,240, for a total
amount not to exceed $4,016,033, as this firm earned the highest total evaluation score.
The proposed five-year contract totals and evaluation rankings for all firms are presented in the
following tables:
State Route 91— Beat Nos. 1 and 2
Firm
Tow Rates: Years 1-3/ Year 4/ Year 5
Evaluation Ranking
Royal Coaches Auto Body and Towing
$92.32/ $98.79/ $98.79
1
Pepe's Towing
$145.00/ $157.58/ $164.90
2
Pomona Valley Towing
$116.45/ $121.00/ $126.00
3
The Commission's standard form FSP services agreement will be entered into with the
consultants subject to any changes approved by the Executive Director and pursuant to legal
counsel review. Staff also recommends that the Executive Director, or designee, approve the use
of the contingency amount as may be required for these services.
FISCAL IMPACT
Sufficient funding, consisting of Caltrans and SAFE funds, for towing services is included in the
proposed FY 2022/23 budget.
Financial Information
In Fiscal Year Budget:
Yes
N/A
Year:
FY 2022/23
FY 2023/24+
Amount:
$585,980
$3,430,053
Source of Funds:
State of California, SAFE funds
Budget Adjustment:
No
N/A
GL/Project Accounting No.:
002173 81014 00000 0000 201 45 81002
Fiscal Procedures Approved:
Date:
05/13/2022
Attachment: Draft FSP Agreement No. 22-45-073-00 with Royal Coaches Auto Body and Towing
Agenda Item 10
453
CONTRACT
Agreement No. 22-045-073
RIVERSIDE COUNTY TRANSPORTATION COMMISSION, ACTING AS THE RIVERSIDE
COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES,
FOR
FREEWAY SERVICE PATROL FOR BEAT # 1 and 2 WITHIN RIVERSIDE COUNTY
WITH ROYAL COACHES AUTO BODY AND TOWING
1. PARTIES AND DATE.
1.1 This Agreement is made and entered into as of day of
2022, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION
("COMMISSION") acting as the RIVERSIDE COUNTY SERVICE AUTHORITY FOR
FREEWAY EMERGENCIES ("SAFE") and ROYAL COACHES AUTO BODY AND TOWING,
a LLC (referred to herein as "CONTRACTOR"). SAFE and CONTRACTOR are sometimes
individually referred to herein as "Party" and collectively as "Parties".
1.2 The California Highway Patrol herein referred to as "CHP" and California
Department of Transportation, herein referred to as "Caltrans" are hereby expressly designated
as third -party beneficiaries of CONTRACTOR's performance under this Agreement.
2. RECITALS.
2.1 WHEREAS, COMMISSION is a California County Transportation
Commission existing under the authority of Section 130050 et seq. of the
California Public Utilities Code;
2.2 WHEREAS, COMMISSION is authorized, pursuant to Section 2550 et seq.
of the California Streets and Highways Code, to act as SAFE for purposes
of providing a motorist aid system, including provision of freeway service
patrols;
2.3 WHEREAS, SAFE requires the services of a CONTRACTOR to provide
the freeway service patrol professional services as described in the Scope
of Services;
2.4 WHEREAS, SAFE has determined that CONTRACTOR is best qualified to
perform the required services;
2.5 WHEREAS, the CONTRACTOR is able and willing to perform the required
services under the terms and conditions of this Contract;
2.6 WHEREAS, COMMISSION is the short range transportation planning
agency for Riverside County, and programs federal, state, and local funds.
454
COMMISSION has entered into a Memorandum of Understanding with
Caltrans and CHP to fund peak period freeway service patrols on selected
freeway segments in Riverside County; and
2.7 WHEREAS, Section 21718 (a) of the California Vehicle Code specifically
authorized CHP to be responsible for freeway service patrols stopping on
freeways for the purpose of rapid removal of impediments to traffic. Article
3, Section 91, of the Streets and Highways Code, states that Caltrans has
responsibility to improve and maintain the state highways. Caltrans also
has the responsibility for traffic management and removing impediments
from the highways.
NOW, THEREFORE, for the consideration hereinafter stated, SAFE and CONTRACTOR agree
as follows:
3. TERMS.
3.1 General Scope of Services. The purpose of the Freeway Service Patrol
("FSP") program is to provide for the rapid removal of disabled vehicles and vehicles involved
in minor accidents from the freeway. Contractor promises and agrees to furnish to SAFE all
labor materials, tools, equipment, services, and incidental and customary work necessary to
fully and adequately provide the FSP services ("Services"). The Services are more particularly
described in Exhibit "A" attached hereto and incorporated herein by reference. All Services
shall be subject to, and performed in accordance with, this Agreement, the exhibits attached
hereto and incorporated herein by reference, and all applicable local, state, and federal laws,
rules and regulations, and the SOP manual (as defined below).
3.1.1. Contract Oversight. Caltrans and CHP will jointly oversee the
Services. Both agencies will have responsibility for overseeing Service performance and
ensuring that the CONTRACTOR abides by the terms of this Contract. CHP is responsible for
dispatch services to incident locations within the CONTRACTOR's patrol limits. The
dispatching will be done in accordance with this Contract. A Standard Operating Procedures
("SOP") manual will be given to the CONTRACTOR explaining the types of incidents to which
his/her operators may be dispatched.
3.1.2 Beat Descriptions. The FSP will operate on selected freeway
segments referred to herein as "beats". Each beat has specific turnaround locations and
designated drop locations identified by the CHP. Exhibit "A" shows the specific limits, number
of tow trucks, number of back-up trucks and hours of operation, and holidays for the
CONTRACTOR's specific beat. SAFE reserves the right to add or delete holidays to the work
schedule, provided that SAFE provides CONTRACTOR seven (7) days advanced notice of
such addition or deletion. Travel time to and from the beat will be at the expense of the
CONTRACTOR.
3.1.3 Change Orders. At any time during the term of this Contract, SAFE
reserves the right to adjust beat specifications to better accommodate demand for the Services,
455
or availability of funding, at no cost to SAFE. Adjustments may include reduction in the hours
of Services. SAFE may direct such adjustments during the course of this Contract through
written change orders, signed by SAFE, setting forth any changes to Exhibit "A". Changes may
include a change of the specified beat(s) to other beats that SAFE determines better serve the
needs of SAFE, as well as changes to schedules and hours for the beats set forth in Exhibit
"A". If warranted, as determined in SAFE's sole discretion, and during the hours of operation
of the Services, the CONTRACTOR may be requested to temporarily reassign his/her FSP
operators/trucks to locations outside the assigned beat. Such reassignments shall be at no
cost to SAFE.
3.1.4. The SOP Manual. To promote a safe work environment and for the
maintenance of professionalism, the most current version of the SOP manual shall, at all times,
be followed by the CONTRACTOR and its vehicle operators. The SOP manual, as such manual
may from time to time be amended, is incorporated into this Contract by reference.
CONTRACTOR shall be notified and provided with a copy of any changes to the SOP manual.
Drivers found not to be in compliance with FSP procedures, as set forth in the SOP manual or
this Contract, may be suspended or terminated from the FSP program and the CONTRACTOR
may be fined three (3) times the hourly Contract rate in one (1) minute increments until a
replacement vehicle is provided (Driver and Truck must return to beat compliant with all FSP
requirements), or fined for the entire shift at three (3) times the hourly rate at the discretion of
the FSP Field Supervisors.
3.2 Equipment Requirements. CONTRACTOR shall comply with all equipment
requirements outlined in the attached Exhibit "A".
3.3 Commencement of Services. The CONTRACTOR shall commence work
upon receipt of a written Notice to Proceed from SAFE.
3.4 Term. The term of this Contract shall be for a period of five (5) years, from
(start date) to (end date) unless earlier terminated as provided
herein. SAFE shall also have the right to renew this Contract from one month up to a one (1)
year term after the initial term by providing notice as provided below. SAFE must provide written
notice to CONTRACTOR no less than ninety (90) days prior to the end of the applicable term,
indicating its renewal of the Contract. CONTRACTOR shall complete the Services within the
term of this Contract, and shall meet any other established schedules and deadlines. All
applicable indemnification provisions of this Contract shall remain in effect following the
termination of this Contract. The rates shall be as follows:
SCHEDULE OF HOURLY RATES
Classification
Years 1-3
Year 4
Year 5
Regular Rate
$ xx per hour
$ xx per hour
$ xx per hour
CFSP/Extra Rate
$ xx per hour
$ xx per hour
$ xx per hour
3.5 SAFE's Representative. SAFE hereby designates the SAFE Executive
Director or his or her designee, to act as its Representative for the performance of this Contract
456
("SAFE's Representative"). SAFE's Representative shall have the authority to act on behalf of
SAFE for all purposes under this Contract. SAFE's Representative shall also review and give
approval, as needed, to the details of CONTRACTOR's work as it progresses. CONTRACTOR
shall not accept direction or orders from any person other than the SAFE's Representative or
his or her designee.
3.6 CONTRACTOR'S Representative. CONTRACTOR hereby designates
WILLIAM SALAZAR, PRESIDENT AND CEO to act as its representative for the performance
of this Contract ("CONTRACTOR's Representative"). CONTRACTOR's Representative shall
have full authority to act on behalf of CONTRACTOR for all purposes under this Contract. 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
Contract. CONTRACTOR shall work closely and cooperate fully with SAFE's Representative
and any other agencies which may have jurisdiction over or an interest in the Services.
CONTRACTOR's Representative shall be available to the SAFE staff at all reasonable times.
Any substitution in CONTRACTOR's Representative shall be approved in writing by SAFE's
Representative.
3.7 Substitution of Key Personnel. CONTRACTOR has represented to SAFE
that certain key personnel will perform and coordinate the Services under this Contract. Should
one or more of such personnel become unavailable, CONTRACTOR may substitute other
personnel of at least equal competence upon written approval by SAFE's Representative. In
the event that SAFE's Representative and CONTRACTOR cannot agree as to the substitution
of the key personnel, SAFE shall be entitled to terminate this Contract for cause, pursuant to
the provisions of Section 3.15. The key personnel for performance of this Contract are: JUAN
PEREZ, FSP PROGRAM MANAGER.
3.7.1 Availability of FSP Manager. Except in the case of unpreventable
circumstances, the FSP Manager must be available at the CONTRACTOR's office for at least
50% of each Work Day to address time sensitive issues related to this Contract or the Services,
including, but not limited to, FSP administrative responsibilities; SAFE, CHP, and Caltrans
requests; driver matters; and truck maintenance issues. CONTRACTOR shall, within 24 hours,
notify SAFE of each circumstance causing the FSP Manager not to be available as required
herein. As used in this section, the term "Work Day" shall mean and refer to any day that FSP
service is provided, during those hours of operation for Construction FSP as identified on the
attached Exhibit "A-1".
3.8 Review of Work and Deliverables. All reports, working papers, and similar
work products prepared for submission in the course of providing Services under this Contract
may be required to be submitted to SAFE's Representative in draft form, and SAFE's
Representative may require revisions of such drafts prior to formal submission and approval.
In the event that SAFE's Representative, in his or her sole discretion, determines the formally
submitted work product to be inadequate, SAFE's Representative may require CONTRACTOR
to revise and resubmit the work at no cost to SAFE. Upon determination by SAFE that
CONTRACTOR has satisfactorily completed the Services required under this Contract and
457
within the term set forth in Section 3.4, SAFE shall give CONTRACTOR a written Notice of Final
Completion. Upon receipt of such notice, CONTRACTOR shall incur no further costs
hereunder, unless otherwise specified in the Notice of Completion. CONTRACTOR may
request issuance of a Notice of Final Completion when, in its opinion, it has satisfactorily
completed all Services required under the provisions of this Contract.
3.9 Appearance at Hearings. If and when required by SAFE, CONTRACTOR
shall render assistance at public hearings or other meetings related to the performance of the
Services.
3.10 Standard of Care: Licenses. CONTRACTOR represents and maintains
that it is skilled in the professional calling necessary to perform all Services, duties and
obligations required by this Contract. CONTRACTOR 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. CONTRACTOR warrants that all
employees and subcontractors shall have sufficient skill and experience to perform the Services
assigned to them. CONTRACTOR further represents and warrants to SAFE that its employees
and subcontractors have all licenses, permits, qualifications (including medical certification) 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 Contract.
CONTRACTOR shall perform, at its own cost and expense and without reimbursement from
SAFE, 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, and shall be
fully responsible to SAFE for all damages and other liabilities provided for in the indemnification
provisions of this Contract arising from the CONTRACTOR's errors and omissions. Any
employee of CONTRACTOR or its subcontractors who is determined by SAFE to be
uncooperative, incompetent, a threat to the adequate or timely completion of the Services, 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 SAFE, shall be promptly removed from performing the
Services by the CONTRACTOR and shall not be re-employed to perform any of the Services.
3.11 Opportunity to Cure. SAFE may provide CONTRACTOR an opportunity to
cure, at CONTRACTOR's expense, all errors and omissions which may be disclosed during
performance of the Services. Should CONTRACTOR fail to make such correction in a timely
manner, such correction may be made by SAFE, and the cost thereof charged to
CONTRACTOR.
3.12 Inspection of Work. CONTRACTOR shall allow SAFE's Representative to
inspect or review CONTRACTOR's performance of Services in progress at any time.
SAFE/Caltrans/CHP also reserves the right to audit all paperwork demonstrating that
CONTRACTOR participates in an employee alcohol/drug-testing program and the DMV Pull
Notice Program.
3.13 Laws and Regulations. 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 Services, including all Cal/OSHA requirements, and shall give
all notices required by law. CONTRACTOR shall be solely liable for all violations of such laws
458
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 SAFE,
CONTRACTOR shall be solely responsible for all costs arising therefrom. CONTRACTOR shall
defend, indemnify and hold SAFE, their officials, directors, officers, employees and agents free
and harmless, pursuant to the indemnification provisions of this Contract, from any claim or
liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.14 Damage Complaints. Upon receiving a damage complaint from a motorist
assisted by the CONTRACTOR, that the CONTRACTOR damaged their vehicle while lending
assistance, the CONTRACTOR shall notify CHP immediately regarding the nature of the
damage complaint and its disposition. The CONTRACTOR shall reply to the motorist by
telephone within twenty-four (24) hours of receiving the damage complaint notification. If
necessary, the CONTRACTOR shall send either his or her authorized representative or his or
her insurance company representative to inspect the vehicle and complete an incident report
within forty-eight (48) hours after receiving the damage complaint. If the investigation shows
that damage to the vehicle could have been caused by the CONTRACTOR, the CONTRACTOR
shall negotiate in good faith to try and resolve the issue and shall report to the CHP the result
of the negotiations. All complaints shall be resolved within a reasonable period of time after
being received.
3.14.1 Complaint Review Committee. The FSP Technical Advisory
Committee ("FSP TAC") is composed of voting members from CHP, SAFE and Caltrans. Voting
members of the FSP TAC are hereby designated as the members of the Damage Complaint
Review Committee ("DCRC"). If the DCRC finds that justifiable complaints are not resolved
within a reasonable time frame, it can recommend that payment to the CONTRACTOR in the
amount of the damage claim may be deducted from the CONTRACTOR's monthly invoice.
3.15 Termination.
3.15.1 Notice; Reason. SAFE may, by written notice to CONTRACTOR,
terminate this Contract, in whole or in part, including, without limitation, the geographical
territory covered by this Contract, at any time by giving written notice to CONTRACTOR of such
termination, and specifying the effective date thereof ("Notice of Termination"). Such
termination may be for SAFE's convenience, due to lack of available funding for the Services,
or because of CONTRACTOR's failure to perform its duties and obligations under this Contract,
including, but not limited to, the failure of CONTRACTOR to timely perform Services pursuant
to the Scope of Services described in Section 3, entitled "Terms," as well as Section 7 of the
RFP. CONTRACTOR may not terminate this Contract except for cause.
3.15.2 Discontinuance of Services. Upon receipt of the written Notice of
Termination, CONTRACTOR shall discontinue all affected Services as directed in the Notice of
Termination, and deliver to SAFE all Documents and Data, as defined in this Contract, as may
have been prepared or accumulated by CONTRACTOR in performance of the Services,
whether completed or in progress.
459
3.15.3 Effect of Termination For Convenience. If the termination is to be for
the convenience of SAFE, SAFE shall compensate CONTRACTOR for Services fully and
adequately provided through the effective date of termination as provided in the Notice of
Termination. Such payment shall include a pro -rated amount of profit, if applicable, up through
such effective date, but no amount shall be paid for anticipated profit on unperformed Services
past such effective date. CONTRACTOR shall provide documentation deemed adequate by
SAFE's Representative to show the Services actually completed by CONTRACTOR prior to the
effective date of termination. This Contract shall terminate on the effective date of the Notice
of Termination.
3.15.4 Effect of Termination for Cause. If the termination is for cause,
CONTRACTOR shall be compensated for those Services which have been fully and adequately
completed and accepted by SAFE as of the effective date of termination as provided in the
Notice of Termination. In such case, SAFE may take over the work and prosecute the same to
completion by contract or otherwise. Further, CONTRACTOR shall be liable to SAFE for any
reasonable additional costs or damages incurred to revise work for which SAFE has
compensated CONTRACTOR under this Contract, but which SAFE has determined in its sole
discretion needs to be revised, in part or whole. Termination of this Contract for cause may be
considered by SAFE in determining whether to enter into future contracts with CONTRACTOR.
3.15.5 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 Contract.
3.15.6 Procurement of Similar Services. In the event this Contract is
terminated, in whole or in part, as provided by this Section, SAFE may procure, upon such
terms and in such manner as it deems appropriate, services similar to those terminated.
3.15.7 Waivers. CONTRACTOR, in executing this Contract, recognizes
that the Services may be terminated, in whole or in part, as provided in this Section.
CONTRACTOR shall not be entitled to any damages including, but not limited to, any
compensation for costs incurred to procure vehicles, meet the terms for providing the Services,
or for any other costs or expenses, and shall be deemed to have waived any and all claims for
damages, costs or expenses which may otherwise arise from SAFE's termination of this
Contract, for convenience or cause, as provided in this Section.
3.15.8 Authorization to Terminate. The Executive Director of SAFE shall
have the full authority and discretion to exercise SAFE's rights under this Section 3.15, entitled
"Termination".
3.16 Trend Meetings. CONTRACTOR shall attend, or send a designated
management -level representative, to all trend meetings (i.e., required FSP TAC meeting which
meets every other month). These trend meetings will encompass focused and informal
discussions concerning, but not limited to: scope, Services, schedule, current progress of
Services, relevant cost issues, and future objectives. CONTRACTOR shall be responsible for
having a representative attend all meetings (i.e., FSP TAC meetings) that has the ability to
make management -level decisions on the behalf of the CONTRACTOR. If the CONTRACTOR
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cannot have a management -level representative at a meeting, CONTRACTOR shall notify
SAFE and CHP prior to the meeting. Management -level attendance at these meetings shall be
considered part of the CONTRACTOR's contractual responsibility. Meetings are scheduled,
and CONTRACTOR will be notified of such schedule, no later than three (3) working days prior
to the meeting.
3.17 Fees and Payment.
3.17.1 Amount to be Paid. Subject to the provisions set forth below for
Services satisfactorily performed hereunder, SAFE shall pay the CONTRACTOR on a fixed unit
rate basis a ceiling price NOT TO EXCEED DOLLARS ($ ).
3.17.2 Maximum Payment is the Ceiling Price. SAFE shall not be obligated
to pay costs which exceed the ceiling price set forth above, except as provided in Sections 3.15
and 3.17.10. CONTRACTOR agrees to use its best efforts to perform the services and all
obligations under this Contract within such ceiling price.
3.17.3 Hourly Rate; Break and Meal Periods. For its performance of the
Services, the CONTRACTOR shall be paid for labor expended directly in the performance of
the Services at the rates specified below. Payments shall be made monthly in arrears based
on Services provided and allowable incurred expenses. The CONTRACTOR shall not be
entitled to reimbursements for any expenses unless approved in advance in writing.
SCHEDULE OF HOURLY RATES
Classification
Year 1
Year 2
Year 3
Year 4
Year 5
Regular Rate
$ xx per hour
$ xx per hour
$ xx per hour
$ xx per hour
$ xx per hour
CFSP/Extra Rate
$ xx per hour
$ xx per hour
$ xx per hour
$ xx per hour
$ xx per hour
Hourly rates may be adjusted as set forth in Chapter 9, Violations/Penalties, of the FSP
Standard Operating Procedures (SOP).
A) CONTRACTOR is responsible for compliance with all
California labor laws related to break periods and meal periods including, but not limited to,
compliance with Labor Code section 512. CONTRACTOR shall be solely responsible for
any additional pay to which its drivers may be entitled for CONTRACTOR's failure to comply
with the California labor law requirements.
B) During shifts that require drivers to be provided a 30 -
minute meal period break pursuant to Labor Code section 512, CONTRACTOR shall either
make arrangements for another certified driver to provide Services during those breaks or
not be compensated for each 30 -minute meal period break during which Services are not
provided. In no case shall CONTRACTOR be entitled to bill RCTC for time during which a
driver is taking a meal period break.
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3.17.4 Payment Coverage. The compensation herein above specified will
cover and include all applicable labor surcharges such as taxes, insurance and fringe benefits,
as well as indirect costs, overhead, general and administrative expense, and profit.
3.17.5 Cost Principles.
A) CONTRACTOR agrees to comply with 2 CFR, Part 225, Cost
Principles for State and Local Government, and 2 CFR, Part 200, Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal Awards.
B) CONTRACTOR agrees that 1) Contract Cost Principles and
Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq.,
shall be used to determine the allowability of individual cost items, and 2) CONTRACTOR
shall comply with Federal administrative procedures in accordance with 2 CFR, Part 200,
Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal
Awards.
C) Any costs for which CONTRACTOR has received payment
or credit that are determined by subsequent audit to be unallowable under 2 CFR, Part 225,
48 CFR, Chapter 1, Part 31 or 2 CFR, Part 200, are subject to repayment by CONTRACTOR
to SAFE. Should CONTRACTOR fail to reimburse moneys due SAFE within 30 days of
demand, or within such other period as may be agreed in writing between the Parties hereto,
SAFE is authorized to intercept and withhold future payments due CONTRACTOR from
SAFE or any third -party source, including, but not limited to, the State Treasurer, the State
Controller, and the California Transportation Commission.
3.17.6 Fines. Fines for starting late; leaving early; taking more breaks
than authorized; or being ordered out of service by a CHP, SAFE Representative or Caltrans
supervisor for Contract infractions shall be deducted from the CONTRACTOR's monthly
invoice at five (5) times the hourly rate, plus the loss of revenue for the down time. Fines
may be further described in the attached Exhibit "A" or Exhibit "B".
3.17.7 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.
3.17.8 Invoices. Invoices for CONTRACTOR's Services shall be submitted
monthly on forms approved by SAFE. Invoices will be routinely verified by CHP. To ensure
prompt payment, most billing disputes may be resolved within ten (10) working days of written
notice of dispute. However, at SAFE's discretion, reconciliation of disputed fines that sum to
less than 2% of the months' Invoice may be corrected on the next month's Invoice to ensure
prompt payment of the major portion of the invoice. Each Invoice shall include a cover sheet
bearing a certification as to the accuracy of the statement signed by the CONTRACTOR's
authorized officer. Invoices shall be mailed to SAFE's Contract Administrator at the following
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address:
Riverside County Service Authority for Freeway Emergencies
FSP Program
P.O. Box 12008
Riverside, CA
92502-2208
Attn: Brian Cunanan
3.17.8.1 Monthly Progress Reports. As part of its Invoice,
CONTRACTOR shall submit a Monthly Progress Report, in a form determined by SAFE, which
will cover the Invoice period and include spreadsheets showing hours expended for each day
of the month per vehicle per beat, and the total for the term of the Contract to date. Submission
of such Monthly Progress Report by CONTRACTOR shall be a condition precedent to receipt
of payment from SAFE for each monthly Invoice submitted.
3.17.8.2 Payment Schedule. Invoice periods shall be based
upon a calendar month, beginning with the first day of the month. SAFE shall reimburse
CONTRACTOR for Services adequately provided under this Contract within thirty (30) days of
receiving the current period invoice with no errors. If the Invoice is completed incorrectly by the
CONTRACTOR it will delay payment. If SAFE fails to pay any amount owed to CONTRACTOR
under this Contract within thirty (30) days after receipt of the invoice, CONTRACTOR may give
SAFE a notice of failure to pay which shall set forth the invoice(s) and amount(s) which
CONTRACTOR believes are thirty (30) days overdue. SAFE shall pay any undisputed
invoice(s) and amount(s) within thirty (30) days of receipt of a notice of failure to pay.
3.17.9 Right to Audit. For the purpose of determining compliance with this
Contract and other matters connected with the performance of CONTRACTOR's contracts with
third parties, CONTRACTOR and its subcontractors shall each maintain and make available for
inspection all books, documents, papers, accounting records, and other evidence pertaining to
the performance of such contracts, including, but not limited to, the costs of administering those
various contracts. All of the above referenced parties shall make such materials available at
their respective offices at all reasonable times for three years from the date of final payment of
Funds to CONTRACTOR. SAFE, the State of California acting through the Department of
Transportation or its duly authorized representative, the California State Auditor, or the United
States Department of Transportation shall each have access to any books, records, and
documents that are pertinent for audits, examinations, excerpts, and transactions, and
CONTRACTOR shall furnish copies thereof if requested.
3.17.10 Taxes. CONTRACTOR shall pay any sales, use, or other taxes,
if any, attributable to the provision of the Services.
3.17.11 Travel and Subsistence. 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. If the rates invoiced are in excess
of those authorized DPA rates, then CONTRACTOR is responsible for the cost difference and
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any overpayments shall be reimbursed to SAFE on demand.
3.17.12 Employment Adverse to the SAFE. CONTRACTOR shall notify
SAFE, and shall obtain SAFE's written consent, prior to accepting work to assist with or
participate in a third -party lawsuit or other legal or administrative proceeding against SAFE
during the term of this Contract.
3.17.13 Extra Work. At any time during the term of this Contract, SAFE
may request CONTRACTOR to perform Extra Work. "Extra Work" shall mean any work which
is determined by SAFE to be necessary for proper completion of the Services, but which the
Parties did not reasonably anticipate would be necessary at the time of the execution of this
Contract and was not included in the Scope of Services. Extra Work, if any, shall be reimbursed
at the same hourly rate as identified in Section 3.17.3. CONTRACTOR shall not perform, nor
be compensated for Extra Work without obtaining authorization in the form of a written Extra
Work Order issued by SAFE's Representative. For instance, Construction FSP services as it
relates to construction activity can be considered Extra Work. In the event an Extra Work Order
is not issued and signed by SAFE's Representative, CONTRACTOR shall not provide such
Extra Work. However, no compensation or reimbursement for Extra Work shall be paid if it is
not authorized by SAFE and if the cumulative total of such Extra Work under the Contract
exceeds $25,000. All Extra Work in a cumulative total in excess of $25,000 must be approved
in advance by amendment to this Contract.
3.17.13.1 Extra Work Cancellation Policy. If a tow operator is
scheduled for Extra Work and they are notified of a cancellation with LESS than a 24 hour
notice — then the tow operator will be reimbursed for three (3) hours of the agreed upon
contract hourly rate. Note: The minimum of the three (3) hours should cover eight hours of the
drivers' hourly wage. Starting with "Less than a 24 hour cancellation notice" up to the time the
tow operator is on the assigned Extra Work Beat, the "three contract hour cancellation rate"
remains the same. Once the tow operator is on the Extra Work Beat, the cancellation policy
changes.
If a tow operator begins the Extra Work (the truck is on the Beat) and is then notified that Extra
Work has been cancelled, the FSP operator will be paid for the entire shift period up to a
maximum of eight (8) hours. A shift period for this policy is defined as: the time period of the
actual Extra Work shift assigned or for a maximum of eight (8) contract hours, whichever is less.
The supervising FSP CHP Officer for the Extra Work shift will make the final determination as
to whether or not the tow operator will continue to work the Extra Work shift. Regardless, the
tow operator will be reimbursed for the original shift period or a maximum or eight (8) hours,
whichever is less.
3.17.14 Most Favored Customer. CONTRACTOR agrees that, throughout
the term of this Contract, it shall not enter into any FSP services agreement with any
government agency with whom it has either existing contractual relationship or has no
contractual relationship that predates this Contract, pursuant to which CONTRACTOR agrees
to charge FSP services fees less than those as indicated in this Contract for substantially the
same level of FSP services contemplated by this Contract. Should SAFE establish that such
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lower fees have been agreed to by CONTRACTOR with another government agency,
CONTRACTOR agrees to renegotiate the fees or to refund SAFE an amount equal to the
difference between the fees indicated in this Contract and the fees charged to other government
agency customer.
3.17.15 Mobilization Costs Payment. Upon issuance of a limited
Notice to Proceed, a mobilization costs payment in the amount of $ (amount) will be
made to CONTRACTOR to help offset pre -start -date costs ("Mobilization Payment").
CONTRACTOR shall pay back the Mobilization Payment in twelve (12) equal monthly
installments to be deducted from CONTRACTOR's monthly invoice.
In the event of early termination, any unpaid portion of the Mobilization Payment will be withheld
from final payment to the CONTRACTOR.
3.18 Delay in Performance.
3.18.1 Excusable Delays. Neither Party shall be considered in default in
the performance of its obligations to the extent that the performance of any such obligation is
prevented or delayed by an Excusable Delay. Should CONTRACTOR be delayed or prevented
from the timely performance of any act or Services required by the terms of the Contract by an
Excusable Delay, Contractor's schedule for completion of tasks affected by such delay may be
extended as set forth in Section 3.18.2. But in every case, CONTRACTOR's failure to perform
must be reasonably beyond the control, and without the fault or negligence of the
CONTRACTOR. Excusable Delays are acts of God or of the public enemy, acts or omissions
of SAFE or other governmental agencies in either their sovereign or contractual capacities,
fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe
weather.
3.18.2 Written Notice. If CONTRACTOR believes it is entitled to an
extension of time due to conditions set forth in subsection 3.18.1, CONTRACTOR shall provide
written notice to the SAFE within seven (7) working days from the time CONTRACTOR knows,
or reasonably should have known, that performance of the Services will be delayed due to such
conditions. Failure of CONTRACTOR to provide such timely notice shall constitute a waiver by
CONTRACTOR of any right to an excusable delay in time of performance.
3.18.3 Mutual Contract. Performance of any Services under this Contract
may be delayed upon mutual agreement of the Parties. Upon such agreement,
CONTRACTOR's Schedule of Services (as defined in their Proposal) shall be extended as
necessary by SAFE. CONTRACTOR shall take all reasonable steps to minimize delay in
completion, and additional costs, resulting from any such extension.
3.19 Status of CONTRACTOR/Subcontractors.
3.19.1 Independent Contractor. The Services shall be performed by
CONTRACTOR or under its supervision. CONTRACTOR will determine the means, methods
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and details of performing the Services subject to the requirements of this Contract. SAFE
retains CONTRACTOR on an independent contractor basis and not as an employee, agent or
representative of the SAFE. CONTRACTOR retains the right to perform similar or different
services for others during the term of this Contract. Any additional personnel performing the
Services under this Contract on behalf of CONTRACTOR 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 and
as required by law. CONTRACTOR 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.
3.19.2 Assignment or Transfer. CONTRACTOR shall not assign,
hypothecate, or transfer, either directly or by operation of law, this Contract or any interest
herein, without the prior written consent of SAFE. 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. Notwithstanding the foregoing, SAFE
may transfer or assign any and all of its rights and obligations under this Contract, including,
without limitation the rights to terminate this Contract, as assigned, pursuant to Section 3.15
hereof.
3.19.3 Subcontracting. CONTRACTOR shall not subcontract any portion
of the work or Services required by this Contract, except as expressly stated herein, including
the Scope of Services, without prior written approval of the SAFE. Subcontracts, if any, shall
contain a provision making them subject to all provisions stipulated in this Contract. SAFE shall
have no liability to any subconsultant(s) for payment for services under this Contract or other
work performed for CONTRACTOR, and any subcontract entered into by CONTRACTOR
pursuant to the conduct of services under this Contract shall duly note that the responsibility for
payment for the technical services or any other work performed shall be the sole responsibility
of CONTRACTOR.
3.20 CONTRACTOR will maintain an inventory of all non -expendable
equipment, defined as having a useful life of at least two years and an acquisition cost of $500
or more, paid for with funds provided pursuant to this Contract.
3.21 Ownership of Materials and Confidentiality.
3.21.1 Documents & Data; Licensing of Intellectual Property. All 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, spreadsheets, or data magnetically or otherwise recorded on computer diskettes,
prepared by or on behalf of CONTRACTOR under this Contract ("Documents and Data"), shall
be made available to SAFE at all times during this Contract and shall become the property of
SAFE upon the completion of the term of this Contract, except that CONTRACTOR shall have
the right to retain copies of all such Documents and Data for its records. Should
CONTRACTOR, either during or following termination of this Contract, desire to use any
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Documents and Data, it shall first obtain the written approval of SAFE. This Contract creates a
no -cost, nonexclusive, and perpetual license for SAFE to copy, use, modify, reuse, or
sublicense any and all copyrights, designs, and other intellectual property embodied in the
Documents and Data which are prepared or caused to be prepared by CONTRACTOR under
this Contract ("Intellectual Property"). CONTRACTOR shall require all subcontractors to agree
in writing that SAFE is granted a no -cost, nonexclusive, and perpetual license for any
Intellectual Property the subcontractor prepares under this Contract. CONTRACTOR
represents and warrants that CONTRACTOR has the legal right to license any and all
Intellectual Property prepared or caused to be prepared by CONTRACTOR under this Contract.
SAFE shall not be limited in any way in its use of the Intellectual Property at any time, provided
that any such use not within the purposes intended by this Contract shall be at SAFE's sole
risk.
3.21.2 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 CONTRACTOR in
connection with the performance of this Contract shall be held confidential by CONTRACTOR
to the extent permitted by law, including, without limitation, the California Public Records Act,
Government Code section 6250 et seq. Such materials shall not, without the prior written
consent of SAFE, be used by CONTRACTOR for any purposes other than the performance of
the Services as provided herein. Nor shall such materials be disclosed to any person or entity
not connected with the performance of the Services, except as provided herein. Nothing
furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is generally
known, or becomes known, to the related industry shall be deemed confidential.
CONTRACTOR shall not use SAFE's name or insignia, photographs, or any publicity pertaining
to the Services in any magazine, trade paper, newspaper, television or radio production, or
other similar medium without the prior written consent of SAFE.
3.22 Indemnification. CONTRACTOR shall indemnify and hold SAFE,
COMMISSION, CHP, Caltrans and their directors, officials, officers, agents, contractors,
consultants, employees, and volunteers free and harmless from any and all claims, demands,
causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to
property or persons, including wrongful death, in any manner arising out of, or incident to, any
acts, omissions, or willful misconduct of the CONTRACTOR, its officials, officers, employees,
agents, consultants, and contractors arising out of or in connection with the performance of the
Services or this Contract, including without limitation, the payment of all consequential damages
and other related costs and expenses. CONTRACTOR shall defend, at CONTRACTOR'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 SAFE, COMMISSION, CHP, Caltrans or
their directors, officials, officers, agents, contractors, consultants, employees, and volunteers.
CONTRACTOR shall pay and satisfy any judgment, award, or decree that may be rendered
against SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, agents,
consultants, employees, and volunteers, in any such suit, action, or other legal proceeding.
CONTRACTOR shall reimburse SAFE, COMMISSION, CHP, Caltrans and their directors,
officials, officers, agents, consultants, employees, and volunteers, for any and all legal
expenses and costs incurred by each of them in connection therewith or in enforcing the
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indemnity herein provided. CONTRACTOR's obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by the CONTRACTOR, SAFE, COMMISSION, CHP,
Caltrans or their directors, officials, officers, agents, consultants, employees, and volunteers.
3.23 Insurance.
3.23.1 Time for Compliance. CONTRACTOR shall not commence work
under this Agreement until it has provided evidence satisfactory to SAFE that it has secured all
insurance required under this section, in a form and with insurance companies acceptable to
SAFE. In addition, CONTRACTOR shall not allow any subcontractor to commence work on
any subcontract until it has secured all insurance required under this section.
3.23.2 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:
(i) General Liability:
Per occurrence:
Project Specific Aggregate:
Products/Completed Operations:
Personal Injury Limit:
$2,000,000
$4,000,000
$1,000,000
$1,000,000
(ii) Automobile Liability: $1,000,000 per accident for bodily injury and
property damage; and
(iii) 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.
3.23.3 On -Hook Insurance & Garage Keepers Liability Coverage.
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(A) CONTRACTOR shall maintain a policy of On -Hook Towing
Insurance to include the care, custody or control exposure present while vehicles are being
serviced roadside, on -hook, or in a storage yard for not less than one hundred thousand dollars
($100,000).
(B) CONTRACTOR shall maintain a policy of Garage Keepers Liability
Insurance which shall include coverage for vehicles in the care, custody and control of the
CONTRACTOR with limits of liability not less than $500,000 per occurrence for property
damage.
3.23.4 Insurance Endorsements. The insurance policies shall contain the
following provisions, or CONTRACTOR shall provide endorsements on forms approved by
SAFE 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 SAFE, COMMISSION, CHP, 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 SAFE, COMMISSION, CHP, 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) SAFE, COMMISSION, CHP, 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 CONTRACTOR or for which the CONTRACTOR is responsible; and (2) the
insurance coverage shall be primary insurance as respects SAFE, COMMISSION, CHP,
Caltrans and their 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 SAFE, COMMISSION, CHP,
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Caltrans or their 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
SAFE, 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)
hereunder.
Defense costs shall be payable in addition to the limits set forth
(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 SAFE, 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 SAFE, COMMISSION, CHP,
and Caltrans (if agreed to in a written contract or agreement) before SAFE, COMMISSION,
CHP 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) CONTRACTOR shall provide SAFE 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 SAFE at least
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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 SAFE,
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, SAFE has the right but not the duty to obtain the insurance it deems
necessary and any premium paid by SAFE will be promptly reimbursed by CONTRACTOR or
SAFE will withhold amounts sufficient to pay premium from CONTRACTOR payments. In the
alternative, SAFE may cancel this Agreement. SAFE may require the CONTRACTOR to
provide complete copies of all insurance policies in effect for the duration of the Project.
(viii) Neither SAFE, COMMISSION, CHP, Caltrans nor any of their
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:
3.23.5 Deductibles and Self -Insurance Retentions. Any deductibles or
self -insured retentions must be declared to and approved by SAFE. If SAFE does not approve
the deductibles or self -insured retentions as presented, CONTRACTOR shall guarantee that,
at the option of SAFE, either: (1) the insurer shall reduce or eliminate such deductibles or self -
insured retentions as respects SAFE, 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.
3.23.6 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 SAFE.
471
3.23.7 Verification of Coverage. CONTRACTOR shall furnish SAFE with
original certificates of insurance and endorsements effecting coverage required by this
Agreement on forms satisfactory to SAFE. 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 SAFE before work
commences. SAFE reserves the right to require complete, certified copies of all required
insurance policies, at any time.
3.23.8 Subcontractor Insurance Requirements. CONTRACTOR shall not
allow any subcontractors to commence work on any subcontract until they have provided
evidence satisfactory to SAFE 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 SAFE, COMMISSION, CHP and Caltrans as
additional insureds using ISO form CG 20 38 04 13 or an endorsement providing the exact
same coverage. If requested by CONTRACTOR, SAFE may approve different scopes or
minimum limits of insurance for particular subcontractors or subcontractors.
3.23.9 Review of Coverage. SAFE retains the right at any time to review
the coverage, form and amount of insurance required herein and may require CONTRACTOR
to obtain additional insurance reasonably sufficient in coverage, form, amount to provide
adequate protection against the kind and extent of risk which exists at the time of change in
insurance required.
3.23.10 Safety. CONTRACTOR shall execute and maintain its work so as
to avoid injury or damage to any person or property. In carrying out its Services, the
CONTRACTOR shall at all times be in compliance with all applicable local, state and federal
laws, rules and regulations, and shall exercise all necessary precautions for the safety of
employees appropriate to the nature of the work and the conditions under which the work is to
be performed. Safety precautions as applicable shall include, but shall not be limited to: (A)
adequate life protection and life saving equipment and procedures; (B) instructions in accident
prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall
protection ladders, bridges, gang planks, confined space procedures, trenching and shoring,
equipment and other safety devices, equipment, and wearing apparel as are necessary or
lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper
inspection and maintenance of all safety measures.
3.24 Prohibited Interests.
3.24.1 Solicitation. 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 Contract. 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, percentage, brokerage fee, gift, or other
consideration contingent upon or resulting from the award or making of this Contract. For
breach or violation of this warranty, SAFE shall have the right to rescind this Contract without
liability.
472
3.24.2 Conflict of Interest. For the term of this Contract, no member, officer
or employee of SAFE, during the term of his or her service with SAFE, shall have any direct
interest in this Contract, or obtain any present or anticipated material benefit arising therefrom.
3.24.3 Conflict of Employment. Employment by the CONTRACTOR of
personnel currently on the payroll of SAFE shall not be permitted in the performance of this
Contract, 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
CONTRACTOR of personnel who have been on SAFE payroll within one year prior to the date
of execution of this Contract, where this employment is caused by, and or dependent upon, the
CONTRACTOR securing this or related Contracts with SAFE, is prohibited.
3.25 Nondiscrimination; Equal Opportunity Employment. CONTRACTOR shall
not deny any benefits of this Contract 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 CONTRACTOR unlawfully discriminate, harass, or allow harassment
against any subcontractor, 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.
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. Employment and Housing Act (Gov. Code Section 12900 et seq.) and
the applicable regulations promulgated thereunder (Cal. Admin. Code, Tit. 2, Section 7285.0 et
seq.): The applicable regulations of the Fair Employment and Housing Commission
implementing Government Code, Sec 12900, set forth in Chapter 5 of Division 4 of Title 2 of
the California Administrative Code, Sec 12900, set forth in Chapter 5 of Division 4 of Title 2 of
the California Administrative Code are incorporated into this Contract by reference and made a
part hereof as if set forth in full. CONTRACTOR shall include the provisions of this Section in
all of CONTRACTOR's subcontracts with respect to work under this Agreement, unless
exempted by the Regulations. CONTRACTOR shall also comply with all relevant provisions of
SAFE's Minority Business Enterprise program, Affirmative Action Plan, or other related SAFE
programs or guidelines currently in effect or hereinafter enacted.
3.26 Right to Employ Other CONTRACTORs. SAFE reserves the right to
employ other CONTRACTORs in connection with the Services.
3.27 Governing Law. The validity of this Contract and of any of its terms or
provisions, as well as the rights and duties of the parties hereunder, shall be governed by and
construed with the laws of the State of California.
3.28 Venue. The Parties acknowledge and agree that this Contract was entered
into and intended to be performed in Riverside County, California. The Parties agree that the
473
venue for any action or claim brought by any Party will be the Central District of Riverside
County. Each Party hereby waives any law or rule of court which would allow them to request
or demand a change of venue. If any action or claim concerning this Contract is brought by any
third party, the Parties agree to use their best efforts to obtain a change of venue to the Central
District of Riverside County.
3.29 Time of Essence. Time is of the essence for each and every provision of
this Contract.
3.30 Headings. Article and section headings, paragraph captions, or marginal
headings contained in this Contract are for convenience only and shall have no effect in the
construction or interpretation of any provision herein.
3.31 Notices. All notices hereunder and communications regarding
interpretation of the terms of this Contract or changes thereto shall be given to the respective
Parties at the following addresses, or at such other addresses as the respective Parties may
provide in writing for this purpose:
CONTRACTOR:
Royal Coaches Auto
Body and Towing
14827 Ramona Blvd
Baldwin Park, CA 91706
Attn: William Salazar
SAFE:
Riverside County Service Authority
for Freeway Emergencies
FSP Program
P.O. Box 12008
Riverside, CA
92502-2208
Attn: Brian Cunanan
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48)
hours after deposit in the U.S. mail, first class postage prepaid, and addressed to the Party at
its applicable address. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
3.32 Electronic Delivery of Agreement. 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 the
Agreement for all purposes.
3.33 Amendment or Modification. No supplement, modification, or amendment
of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.34 Entire Contract. This Agreement contains the entire Agreement of the
Parties relating to the subject matter hereof and supersedes all prior negotiations, contracts or
understandings.
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3.35 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.
3.36 No Waiver. Failure of CONTRACTOR 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.
3.37 Eight -Hour Law. Pursuant to the provisions of the California Labor Code,
eight hours of labor shall constitute a legal day's work, and the time of service of any worker
employed on the work shall be limited and restricted to eight hours during any one calendar
day, and forty hours in any one calendar week, except when payment for overtime is made at
not less than one and one-half the basic rate for all hours worked in excess of eight hours per
day ("Eight -Hour Law"), unless CONTRACTOR or the Services are not subject to the Eight -
Hour Law. CONTRACTOR shall forfeit to SAFE 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 CONTRACTOR or the
Services are not subject to the Eight -Hour Law.
3.38 Subpoenas or Court Orders. Should CONTRACTOR receive a subpoena or
court order related to this Agreement, the Services or the Project, CONTRACTOR shall
immediately provide written notice of the subpoena or court order to the SAFE. CONTRACTOR
shall not respond to any such subpoena or court order until notice to the SAFE is provided as
required herein and shall cooperate with the SAFE in responding to the subpoena or court
order.
3.39 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, and the obligations related to receipt of
subpoenas or court orders, shall survive any such expiration or termination.
3.40 Counterparts. This Agreement may be signed in one or more counterparts,
any one of which shall be effective as an original document.
3.41 Incorporation of Recitals. The recitals set forth above are true and correct
and are incorporated into this Agreement as though fully set forth herein.
3.42 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.
475
In the event the standards set forth in this Agreement conflict with the standards set forth in any
exhibit hereto, the higher standard shall govern.
3.43 Attorneys' Fees and Costs. If any legal action is instituted to enforce or
declare any Party's rights hereunder, each Party, including the prevailing Party, must bear its
own costs and attorneys' fees. This paragraph shall not apply to those costs and attorneys'
fees directly arising from any third party legal action against a Party hereto and payable under
Section 3.21, Indemnification.
3.44 Consent. Whenever consent or approval of any Party is required under
this Contract, that Party shall not unreasonably withhold nor delay such consent or approval.
3.45 No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
[Signatures on following page]
476
SIGNATURE PAGE
TO AGREEMENT 22-45-073-00
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first
herein written above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
ACTING AS THE
RIVERSIDE COUNTY SERVICE
AUTHORITY FOR FREEWAY
EMERGENCIES
ROYAL COACHES AUTO BODY
AND TOWING
By: By:
RCTC Chair
Name
Title
APPROVED AS TO FORM: Attest:
By: By:
Best Best & Krieger LLP,
Counsel to the Riverside County Its: Secretary
Service Authority for
Freeway Emergencies
477
EXHIBIT "A"
Scope of Services
478
1.0 GENERAL INFORMATION
1.1 Background & Introduction
In 1986, the Commission established itself as the Riverside County Service Authority for
Freeway Emergencies (RC SAFE) after the enactment of SB 1199 in 1985. The purpose of
the formation of SAFEs in California was to provide call box services and, with excess funds,
provide additional motorist aid services. Funding for RC SAFE is derived from a one dollar
per vehicle registration fee on vehicles registered in Riverside County. Initially, these funds
were used only for the call box program. As additional motorist aid services were
developed, SAFE funds were also used to provide Freeway Service Patrol (FSP) and the
Inland Empire 511 traveler information services as part of a comprehensive motorist aid
system in Riverside County.
In 1990, Proposition C was passed to fund transportation improvements and to help reduce
traffic congestion in California. From this, the FSP program was created by Caltrans, which
developed the corresponding Local Funding Allocation Plan to distribute funds to
participating jurisdictions. In addition to funding received from Caltrans, agencies are
required to contribute a 25 percent local match. For the Commission, SAFE revenues are
used to meet this match requirement.
The Commission, acting in its capacity as the SAFE, is the principal agency in Riverside
County, in partnership with Caltrans and the California Highway Patrol (CHP), managing the
FSP program. The purpose of the FSP program is to provide a continuously roving tow
services patrol along designated freeway segments (referred to as beats) to relieve freeway
congestion and facilitate the rapid removal of disabled vehicles and those involved in minor
accidents on local freeways. Contracts to provide FSP tow service are competitively bid as
needed for each beat.
1.2 Project Description
The purpose of the FSP program is to provide a continuous roving patrol for the rapid
removal of disabled vehicles and those involved in minor accidents from the freeway.
Where traffic conditions permit, safe removal of small debris will be required. Vehicle
operators shall be responsible for clearing the freeway of automobiles, small trucks, and
small debris. When and where conditions warrant, service may be executed on the freeway
shoulders. Where conditions do not warrant, vehicle operators will remove the vehicles
from the freeway to provide service. FSP vehicles shall continuously patrol their assigned
beat, respond to CHP calls for Services, use the designated turnaround locations, and use
the CHP identified designated drop locations.
FSP vehicle operators may be required to perform minor services such as change flat tires,
provide "jump" starts, provide one gallon of gasoline or diesel fuel, temporarily tape cooling
system hoses, and refill radiators in a safe and efficient manner. Vehicle operators may
spend a maximum of ten (10) minutes per disablement in attempting to mobilize a vehicle.
479
If a disabled vehicle cannot be mobilized within the ten-minute (10) time limit, it shall be
towed to a designated drop location identified by the CHP. The motorist can request the
FSP vehicle operator to call the CHP Communications Center to request a CHP rotational
tow or other services. FSP vehicle operators shall not be allowed to tow as an independent
contractor from an incident that occurred during the FSP shift unless called as a rotation
tow by CHP after the FSP shift has ended. If called as a rotation tow after a FSP shift, the
vehicle operator must remove all FSP markings such as vests, uniforms, and magnetic
vehicle signage.
There may be some instances where FSP operators may be requested to provide assistance
to CHP officers. FSP operators shall follow the instructions of the CHP officer at the scene
of any incident within the scope of the FSP program.
All FSP services shall be provided at no cost to the motorist. FSP vehicle operators shall not
accept gratuities, perform secondary towing services, recommend secondary tows, or
recommend repair/body shop businesses.
Freeway Service Patrol hours of operation are 5:30 a.m. to 8:30 a.m. and 2:30 p.m. to 6:30
p.m., Monday through Thursday; and 5:30 a.m. to 8:30 a.m. and 12:30 p.m. to 6:30 p.m. on
Friday. Select beat(s) may also have weekend (10:00 a.m. to 6:00 p.m.) and/or weekday
mid -day service (time between AM/PM shifts) schedules. Contractor vehicles shall be
exclusively dedicated to the service during FSP service hours. All vehicle maintenance
activities shall be conducted during non -service hours.
The FSP operates on selected freeway segments referred to as "Beats". Each Beat has
specific turnaround locations and designated drop locations identified by the California
Highway Patrol (CHP). The Scope of Services (Section 2.0) hereunder identifies the specific
limits, number of tow trucks, number of back-up trucks, hours of operation, and tentative
holidays on which the cost of each beat shall be based. RCTC reserves the right to add or
delete holidays to the work schedule. Travel time to and from the Beat will be at the expense
of the Contractor.
To be awarded a contract, a Contractor must have a tow facility within close
proximity to the service area, have been in business as a tow service operator for a
minimum of five (5) years, and have a minimum of one (1) full year experience
working under contract/agreement and in good standing within the last three (3)
years with any type of law enforcement agency.
A Contractor with no prior FSP experience shall be considered NEW and may only be
awarded one FSP beat. A Contractor that has been terminated for cause from any FSP
contract within the state shall not be eligible to participate in the Riverside County FSP
program. A NEW Contractor, who remains in good standing, as determined by FSP
management, may be considered for additional beat awards in future procurements. An
existing Contractor that is not in good standing as determined by information received by
the FSP management staff at the time of their proposal may, at the discretion of FSP
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management, be limited to the number of beats the Contractor is awarded, including not
being awarded any beats.
FSP Management Staff reserves the right to limit the number of beats awarded to one
Contractor.
At any time during the contract's term, RCTC reserves the right to adjust Beat specifications
and Beat hours to better accommodate demand for the service, or the availability of funding.
These changes can occur during the course of the contract through written change orders.
If warranted during the service hours of operation, the Contractor may be requested to
temporarily reassign his/her FSP operators/trucks to locations outside its assigned Beat.
Tow Operators may be permitted to do this only upon CHP and/or RCTC approval. FSP
vehicle operators shall follow the instructions of the CHP officer at the scene of any incident
within the scope of the FSP program.
The contract start date for Beats 1 & 2, 18 & 19 is December 1, 2022 The first day of
FSP service is Thursday, December 1, 2022. These are 5 -year contracts that expire
on November 30, 2027.
If awarded a contract, the Contractor shall have one hundred fifty-five (155) calendar days
for Beats 1 & 2 and 18 & 19, after the notice of award (notice of award tentatively expected
on or around June 8, 2022), in which to acquire the required equipment and hire and train
vehicle operators. The Contractor shall have the appropriate number of primary and back-
up trucks ready for equipment installation and CHP inspection no later than November 10,
2022. Any company that cannot meet the above -mentioned requirements shall not be
awarded the contract(s).
2.0 Beat Description/Summary
FSP operates on selected freeway segments referred to as "beats". Each beat has specific
turnaround locations and designated drop locations identified by the CHP. The specific
limits, number of tow trucks, number of back-up trucks and hours of operation, including
the holiday schedule, are detailed below. SAFE reserves the right to add or delete holidays
to the work schedule, provided that SAFE provides CONTRACTOR seven (7) days advanced
notice of such addition or deletion. Travel time to and from the beat will be at the expense
of the CONTRACTOR.
At any time, SAFE reserves the right to adjust beat specifications to better accommodate
demand for the Services, or availability of funding. These changes can occur during the
course of this Contract through written change orders. If warranted and during the hours
of operation of the Services, the CONTRACTOR may be requested to temporarily reassign
his/her FSP operators/trucks to locations outside the assigned beat.
481
FSP
Contract
Beat #
Beat Description
One -Way
Length in
Miles
# Primary
FSP Trucks
in both AM
and PM
#
Backup
FSP
Trucks
1 & 2
Beat 1: SR -91 from Orange
County line to Lincoln Ave.
Beat 2: SR -91 from Lincoln Ave.
to Magnolia Ave. and 1-15 from
Hidden Valley Parkway to
Magnolia Ave.
5.4
8.2
3 for
weekday
AM/PM
service
(1 for
weekday
mid -day and
1 for
weekend
service)
1
18 & 19
Beat 18: 1-215 from Riverside
County line to Central Ave.
Beat 19: 1-215 from Alessandro
to SR -74/W 4th St.
5.8
10.2
3
1
2.1 Hours of Operation:
Monday through Thursday: 5:30 a.m. to 8:30 a.m., and from 2:30 p.m. to 6:30 p.m.
Friday: 5:30 a.m. to 8:30 a.m., and from 12:30 p.m. to 6:30 p.m.
Each Beat requires at least one backup truck available at all times. RCTC reserves
the right to change Beat hours and operational requirements during the
course of the contract.
a. Total estimated service hours per vehicle/per year: 1,950
Note: Add additional 1,500 hours for mid -day service and 850 hours for
weekend service per year.
b. In addition to the above service hours, at the discretion of RCTC and CHP,
additional service may be requested on certain "high traffic days" on/or
following certain holidays (e.g. July 4th, Labor Day, and Memorial Day).
Contractor will be notified at least one week prior to when this service is to
be provided.
During FSP shifts that require a 30 -minute meal period break to be provided pursuant to
Labor Code section 512, the Contractor shall either make arrangements for another
certified FSP driver to provide the contracted FSP coverage during those breaks or not be
compensated for each 30 -minute meal period break during which FSP service is not
482
provided. In no case shall the Contractor be entitled to compensation from RCTC for time
during which its FSP driver is taking a 30 -minute meal period break, unless the Contractor
has provided another driver to cover this 30 -minute meal period break.
2.2 Holiday Schedule
Proposer shall submit its cost proposal for provision of the required FSP tow services
five days each week, Monday through Friday, of each year during the contract term,
except for the following ten (10) holidays:
1. Martin Luther King, Jr. Day (Monday)
2. Presidents' Day (Monday)
3. Memorial Day (Monday)
4. Independence Day (July 4 - varies)
5. Labor Day (Monday)
6. Veterans Day (varies)
7. Thanksgiving Day (Thursday)
8. Day after Thanksgiving (Friday)
9. Christmas Day (December 25 - varies)
10. New Year's Day (January 1 - varies)
3.0 FSP Management and Representatives
RCTC has entered into a Memorandum of Understanding with the California Department of
Transportation (Caltrans) and CHP, in order to provide peak hour freeway service patrols
on selected freeway segments for traffic mitigation, as well as air quality improvement
within Riverside County. RCTC, Caltrans, and CHP will jointly oversee the service. RCTC
serves as the contract administrator and funding partner; Caltrans provides oversight; and
CHP is responsible for the daily operations and field supervision of the program.
Authority for FSP derives from (a) Section 21718 (A) of the California Vehicle Code, which
allows FSP trucks supervised by the CHP to stop on freeways for the purpose of rapid
removal of impediments to traffic, and (b) Article 3, Section 91, of the Streets and Highways
Code, which states that Caltrans is responsible for traffic management and removing
impediments from the highways, as well as improving and maintaining the state highways.
3.1 Standard Operating Procedures
The guidelines and policies of the FSP program, which promote a safe work environment
and maintain a level of professionalism, are contained in the Standard Operating
Procedures (SOP) manual developed by the CHP. The SOP and any updates to it are
incorporated into the contract with RCTC, therefore, the Contractor and their vehicle
operators are responsible to operate and adhere to the most recent version of the SOP at all
times.
483
Contractor shall be held responsible for maintaining an updated SOP (latest version issued
with the RFP), which is incorporated herein by reference. SOP revisions and updates shall
be unilaterally issued by RCTC or CHP, as deemed necessary by CHP or the FSP Technical
Advisory Committee, and all changes, revisions and updates to the SOP, if any, shall
supersede all previous or existing SOPs. A copy of the SOP is included as part of the original
RFP package and additional hard or soft copies can be provided to all interested parties
upon request.
Vehicle operators or trucks found not to be in compliance with FSP procedures
defined in the SOP may be penalized, suspended, and/or terminated from the FSP
program and the company may also be assessed liquidated damages amounts for said
violations as described herein. Liquidated damages are inclusive of other remedies
at law and/or those described under the terms of the contract.
Refer to Proposal Pricing Form for further details on violations and penalties.
4.0 Vehicles
4.1 Tow Truck Requirements
Primary and back-up FSP tow trucks shall be exclusively dedicated to the FSP program
during FSP service hours of operation. They are not required to be exclusive during non-
FSP hours. All vehicle maintenance activities shall be conducted during non -Service
hours. When conducting the Services on a FSP shift, the CONTRACTOR's vehicle shall
display all FSP markings and the vehicle operator shall wear a FSP uniform.
The FSP will utilize, at a minimum, Class A tow trucks with a minimum gross vehicle weight
rating of 14,000 pounds, dual wheel chassis, and a four (4) ton recovery equipment rating.
All trucks proposed for use in the FSP Program must be less than one (1) year old with a
maximum of 50,000 miles on the chassis and working parts of the truck at the onset of the
contract, free of any mechanical defects or physical damage and have a clear (non -salvage)
title. Extenuating circumstances dictating departure from this specification should be at the
consensus of the local FSP partners. The CHP, in conjunction with Caltrans or the regional
transportation agency, should verify the original purchase dates to ensure compliance.
Lastly the truck shall have seating capabilities for five (5) adults.
All FSP tow trucks must be Department of Transportation (DOT) compliant, as well as
California Air Resources Board (CARB) compliant. This includes an engine that has been
certified by CARB, as required by law in the State of California. Any tow truck that is utilized
for the FSP Program must comply with emission standards set forth by DOT and CARB, as
well as all local, state, and federal laws associated with that truck and as outlined in the RFP.
Each tow truck shall be equipped in accordance with the CHP's Freeway Service Patrol
Manual and Standard Operating Procedures Manual and, at a minimum, shall include the
following:
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a. Equipment & Supplies (Required)
1. Wheel lift towing equipment, with a minimum lift rating of 4,000 pounds, with
wheel lift extended. All tow equipment shall include proper safety straps.
2. Boom with a minimum static rating of 8,000 pounds.
3. Winch Cable - 8,000 pound rating on the first layer of cable.
4. Wire rope - 100ft., 3/8 inch diameter, 6 x19 or OEM specifications.
5. Two (2) Tow chains 3/8" alloy or OEM specs., J/T hook assembly.
6. Rubber faced push bumper.
7. Mounted spotlight capable of directing a beam both front and rear.
8. Amber warning lights with front and rear directional flashing capability, with
on/off switch in cab.
9. Public address system.
10. Power outlets ("hot boxes"), front and rear mounted, with outlets compatible to
12 -volt booster cables.
11. Heavy duty, 60+ amp battery.
12. Radios with the ability to communicate with the Contractor's base office
(Verizon).
13. Programmable scanners capable of scanning between the 39 and 48 MHz used
by the CHP. Scanners need to be capable of scanning CHP Police frequencies,
and must be mounted for safety concerns.
14. Suitable cab lighting.
15. Trailer hitch capable of handling a 1 7/8 -inch ball and 2 inch ball.
16. One (1) 1 7/8 -inch ball and one (1) 2 inch ball.
17. Rear work lights. (4)
18. Safety chain D -ring or eyelet mounted on rear of truck.
19. Motorcycle straps. (2)
20. Diesel fuel in plastic jerry cans. (5 gallons)
21. Unleaded gasoline in plastic jerry cans. (5 gallons)
22. Safety chains min. 5ft. min. 5/16" Alloy or OEM Spec. (2)
23. First aid kit (small 5" x 9"). (1)
24. Fire extinguisher aggregate rating of at least 4 B -C units. (1)
25. Pry bar - 36" or longer. (1)
26. Radiator water in plastic container. (5 gallons)
27. 4" x 4" x 48" wooden cross beam. (1)
28. 4" x 4" x 60" wooden cross beam. (1)
29. 24" wide street broom. (1)
30. Square point shovel. (1)
31. Highway flares 360 minutes min.
32. Cones 18" height, reflectorized with tape.
33. Hydraulic Floor Jack: 2 -ton AND
34. 2 -ton jack stand
35. Wheel chock
36. Four-way lug wrench (1 std.). (1)
37. Four-way lug wrench (1 metric). (1)
38. Rechargeable compressor or refillable air bottle, hoses and (1)
485
fittings to fit tire valve stems, 100 psi capacity.
39. Flashlight and spare batteries. (1)
40. Flashlight and spare batteries or charger (1)
41. Tail lamps/stop lamps, portable remote with extension cord. (1 set)
42. Booster cables, 25 ft. long minimum, 3 -gauge copper wire (1 set)
with heavy-duty clamps and one end adapted to truck's
power outlets.
43. Funnel, multi -purpose, flexible spout. (1)
44. Pop -Up dolly (with tow straps), minimum rating of (1)
3,900 pounds portable for removing otherwise un-towable
vehicles.
45. Dolly steel pry bar (1)
46. 5 -gallon can with lid filled with clean absorb -all. (1)
47. Empty trash can with lid (5 gallon). (1)
48. Lock out set. (1)
49. Safety glasses.
b. Equipment & Supplies (Recommended)
50. Towing slings rated at 3,000 pounds minimum. RECOMMENDED
51. Sling crossbar spacer blocks. RECOMMENDED (2)
c. Tools (Required)
Each FSP truck will be required to have a toolbox with the following minimum number of
tools/supplies. A tool kit for small equipment items is required. The list may be
supplemented at the Contractor's option and expense.
52. Screwdrivers--
i. Standard -1/8", 3/16", 1/4", 5/16" (1 each, min).
ii. Phillips head - #1 and #2 (1 each, min).
53. Needle nose pliers (1)
54. Adjustable rib joint pliers, 2" min. capacity (1)
55. Crescent wrench - 8" (1)
56. Crescent wrench - 12" (1)
57. 41b. hammer (1)
58. Rubber mallet (1)
59. Electrical tape, roll (1)
60. Duct tape, 20 yard roll (1)
61. Tire pressure gauge (1)
62. Mechanic's wire (roll) (1)
63. Bolt cutters (1)
4.2 Tow Truck Appearance
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FSP vehicles bearing the FSP title, logo, and vehicle identification number shall be painted
white (includes the hood, fenders, doors, boom, and bed area - the entire truck is to be
painted white). No trim is allowed. Lettering shall be in a blocked bold style parallel to the
ground and shall be no less than 2 inches by 2 inches and no greater than 4 inches in height.
Lettering can only be black in color (no other colors will be permitted). Letters shall be
placed on the lower body of the truck toward the cab. Contractor's name on the boom is
prohibited. The overall look of the truck must be approved by CHP prior to service
implementation; therefore, any questions regarding this policy may be discussed with CHP
prior to implementing, as truck compliance with current state FSP standards is required.
No other accessory equipment, signage, or advertisements (mud flaps, stickers,
employment advertisement, and so forth) shall be mounted or installed without prior CHP
approval. This includes, but is not limited to: bras or window tint.
It shall be the vehicle operator's responsibility to place detachable FSP markings on each
vehicle during FSP service hours and to remove the detachable markings immediately upon
completion of each shift. RCTC will supply each Contractor with the appropriate number of
detachable markings for each Beat(s). If a marking is lost or damaged, the Contractor shall
be responsible for the cost of the replacement markings. All FSP markings shall be returned
at the termination of the contract. The cost of any RCTC and/or Caltrans/CHP supplied item
and/or equipment not returned shall be deducted from the Contractor's final payment.
FSP markings, as well as vehicle numbers, shall be required on both sides of all trucks. The
detachable markings (magnetic FSP signage) provided by RCTC, must be placed on the
center of the driver and passenger doors of the vehicle. The vehicle operator shall be
required to keep the title and logos clean, straight, and in readable condition throughout the
FSP shift. The operator is also required to keep the magnetic signage flat (do not bend in
any way), clean, and out of direct sunlight while being stored during non-FSP operational
hours.
4.3 Vehicle Inspections
Prior to commencement of service, the CHP will inspect each vehicle designated for the FSP
to ensure that it meets the vehicle specifications and to ensure that it meets or exceeds
safety requirements. These inspections will occur prior to the start of service. Succeeding
inspections will occur periodically as determined by the CHP. Documentation of the vehicle
identification number and successful completion of the inspection will be kept on file at the
CHP office and Contractor's base office.
Any unsafe, poorly maintained, or improperly equipped vehicle(s) shall be removed from
service, and if discovered to be in such a condition during the shift said vehicle(s) shall be
removed from service or repaired as directed by the CHP, and the Contractor shall be
fined three (3) times the hourly contract rate in one (1) minute increments for the
remainder of that shift, plus the loss of revenue for the down time. Spare vehicles, also
known as "back-ups", will be required to complete the shifts of vehicles removed from
service. The Contractor will be required to have a spare FSP vehicle available for service for
the duration of each and every FSP shift.
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The vehicle operator shall be required to complete a pre -operation shift inspection log of
the vehicle as well as inventory the required equipment prior to the start of each and every
shift. The vehicle operator shall be required to complete a driver log, which is used to track
the mileage. A shift inspection/inventory log shall be completed by the vehicle operator
prior to the start of each shift and be available for inspection. Any item missing must be
replaced prior to the start of the shift. All equipment stored on top of the truck shall be
secured to the truck.
4.4 Spare/Back-Up Vehicles
The Contractor shall be required to have one FSP Certified Back -Up tow truck available per
Beat during FSP service hours that is in full compliance with the agreement, unless
otherwise authorized by RCTC and CHP in writing. During FSP service hours, the spare
vehicle shall be kept at the Contractor's yard or staged adjacent to the assigned beat. The
FSP Certified Back -Up tow truck should be used when a Certified Primary FSP tow truck is
unavailable. The FSP Certified Back -Up tow truck shall meet the same requirements for
equipment, set-up, and color as the Certified Primary FSP tow truck. It shall meet all the
vehicle equipment specifications. Refer to Attachment H for further details on violations
and penalties.
4.5 Vehicle Breakdown and Other Missed Service
The spare vehicle must be in service on the Beat within 45 minutes of the time a
permanently dedicated vehicle is taken out of service for any reason. The Contractor shall
not be paid for the time period that the contractually required trucks are not in service. If
a vehicle is not made available within the required 45 -minute time period, the
Contractor shall be fined three (3) times the hourly contract rate in one (1) minute
increments for every minute that exceeds the 45 minute replacement period until a
certified FSP compliant spare/back-up vehicle is provided. If a truck is not ready due
to breakdown at the start of a shift, the fine time will be calculated from the start of
the shift until a replacement is placed into service. If the entire shift is missed,
Contractor shall be fined for the entire shift at three (3) times the hourly rate times
the total minutes for the affected shift.
Vehicle maintenance shall be performed during non-FSP service hours. In addition,
not having a certified FSP "spare or back-up" vehicle operator available is not an
allowable excuse for not having a spare (back-up) vehicle on the beat within the 45 -
minute time period. If the Contractor does not have a dedicated or spare truck on the
Beat because a certified FSP vehicle operator is not available, the Contractor shall be
fined three (3) times the hourly contract rate in one (1) minute increments until a
certified FSP replacement vehicle operator is provided. If the entire shift is missed
because a vehicle operator was not available, the Contractor shall be fined for the
entire shift at three (3) times the hourly rate times the total minutes for the affected
shift.
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5.0 Communications Equipment and Computers
5.1 Communications Equipment
Each FSP vehicle shall be equipped with various communication devices that will enable the
vehicle operator to communicate with the CHP Communications Center. All vehicles shall
be equipped with an Automatic Vehicle Location (AVL) system, radios, and Data Collection
Devices (DCD). The AVL system, radio, and DCD equipment shall be purchased, owned, and
supplied by RCTC. RCTC shall select the equipment installation vendor.
The Contractor shall be responsible for maintaining the security of the vehicle
communication equipment provided by RCTC. The Contractor shall be liable for any
damage to the RCTC-owned communication equipment. The Contractor shall also be liable
for the full replacement value of the communication equipment installed in the trucks while
in the care, custody, and control of the equipment. RCTC will deduct repair fees as well as
the full replacement cost of any RCTC equipment due to improper use or negligence by the
Contractor, from any payment due to the Contractor. RCTC-supplied vehicle
communications equipment shall be returned in full working condition upon contract
termination. The cost of any equipment not returned within a reasonable time period shall
be deducted from the Contractor's final payment.
Programmable scanners capable of scanning between the 39 and 48 MHz used by CHP shall
be supplied by the Contractor and shall be installed (mounted) in all vehicles.
The Contractor is also required to use Verizon wireless cell phones with push -to -talk -plus
capability, or equivalent, for communications with the CHP Communications Center and
the CHP Field Supervisor. Wireless cell phones shall be purchased and maintained by the
Contractor. The Contractor will also be responsible for all operating costs as well. In
addition, tow operators are not permitted to take pictures, video, or capture any other
images while performing FSP duties during FSP operational hours. These actions will not
be tolerated and a vehicle operator may be terminated if it is discovered they are doing so.
In addition, any input of data into the DCD shall not be allowed while the vehicle is being
operated/driven. Use of other devices while driving/operating a vehicle such as cell phones
is prohibited by California State Law.
The FSP vehicles shall be equipped with a public address system. The public address system
shall have the capability for the driver of the disabled vehicle to hear instructions
transmitted from the cab of the FSP vehicle when the FSP vehicle is directly to the rear of
the disabled vehicle.
5.2 Computer Equipment
The Contractor must have and maintain a desktop computer workstation with high-speed
internet access and email to communicate with RCTC staff.
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The Contractor must ensure that the DCD equipment is inspected and cleaned on a quarterly
basis, or more frequently if needed. All DCD equipment should have the exterior protective
case cleaned (protective outside case) and screen protector shall be inspected for
functionality and serviceability. Worn items shall be immediately reported to RCTC.
All DCD equipment must be kept in a secure location. During non-FSP operational hours,
DCD equipment shall not be left in a tow vehicle or go home with a vehicle operator
or anyone else. All DCD equipment must be in a designated charging area at the tow
operator's facility during non-FSP operational hours. The DCD equipment shall always have
enough charge to complete each shift. In order to reduce instances of technology glitches.
the DCD equipment shall be turned off/turned on at least once per week. DCD equipment
is to be with the vehicle operator in their FSP truck during FSP operational hours. Any other
location shall not be permitted.
The Contractor shall immediately report any issues with the workstation or the DCD
equipment to the RCTC FSP Program Manager or one of the FSP CHP Officers. Contractor is
directly responsible to ensure their computer workstation is operating and has internet
access at all times - this is a contract requirement.
The Contractor shall provide access to the DCD equipment for RCTC staff, or their
designated designee, at any time during the course of the Contract. In addition, the
Contractor shall also make the workstation available to RCTC, or its designee, 30
calendar days prior to the start of the new service.
The Contractor shall provide an annual inspection report to RCTC indicating the status of
all equipment. RCTC will provide the submittal form. Tow operators should consider the
accurate completion and timely return of this form as part of their contract requirements.
5.3 Equipment Tampering
Tampering with FSP communication/tracking equipment so that it does not function
properly to RCTC's specifications, and/or is disconnected or moved (without FSP
Management authorization) from its original installed location is strictly prohibited. This
includes but is not limited to: breaking evidence tape/connection sealer on equipment
connections, cutting wires or cables, moving mounted equipment (speakers, microphones,
antennas, etc.), rerouting any wiring, disconnecting any connectors,
Contractor/subcontractor unintentionally altering equipment or connections to equipment
during vehicle maintenance or repair, or interfering with the operations of the equipment.
If tampering is suspected, FSP Management may conduct an inspection of the equipment on
the Beat or the vehicle may be sent to a designated location determined by FSP
Management.
1. If tampering is found while the vehicle is used during FSP operational hours, the
vehicle operator and vehicle will be immediately taken out of service and the
Contractor shall be fined in one (1) minute increments at three (3) times their
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hourly rate, until such time that the back-up truck is deployed. Please note that if
tampering is discovered, the penalties (three times the hourly rate in one minute
increments) shall begin immediately upon the discovery of the tampering. The
normal 45 -minute back-up truck time allowance will not be considered "non -
penalty" time under these circumstances. The penalties shall begin immediately
upon the tampering being discovered.
2. If the vehicle is suspected to have equipment that has been tampered with, it may
be sent to a designated location determined by FSP Management and CHP for an
inspection. If tampering is found, the Contractor will be retroactively fined three
(3) times the hourly rate in one (1) minute increments from the time the tampering
was first suspected. The penalties will continue until a certified FSP back-up truck
is deployed. The normal 45 -minute back-up truck time allowance will not be
considered "non -penalty" under these circumstances.
Tampering Repairs
If tampering is discovered during FSP operational hours, the vehicle will be taken out of
service and will remain out of service until the repair and the documentation can be
completed by the FSP Program designated technician. FSP Management determines the
designated technician. The transportation, labor, and repair costs will be the responsibility
of the Contractor. Costs incurred to repair and document the equipment will be deducted
from the Contractor monthly invoice.
Tampering Penalties
The Contractor will also be assessed a $250 fine (whether the tampering is discovered while
on the Beat, or if it was suspected and later confirmed) per incidence on their monthly
invoice. If it is determined that the vehicle operator tampered with the equipment, the
vehicle operator will be suspended for a minimum of 30 days for the initial tampering
offense and subject to termination from the FSP Program for any subsequent tampering
violations.
6.0 Contractor Responsibilities
6.1 Appearance at Hearings
If and when required by SAFE, Contractor shall render assistance at public hearings or other
meetings related to the performance of the Services.
6.2 Damage Complaints
Upon receiving a damage complaint from a motorist assisted by the Contractor, that the
Contractor damaged their vehicle while lending assistance, the Contractor shall notify CHP
immediately regarding the nature of the damage complaint and its disposition. The
Contractor shall reply to the motorist by telephone within twenty-four (24) hours of
receiving the damage complaint notification from CHP. If necessary, the Contractor shall
send either his or her authorized representative or his or her insurance company
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representative to inspect the vehicle and complete an incident report within forty-eight
(48) hours after receiving the damage complaint. If the investigation shows that damage to
the vehicle could have been caused by the Contractor, the Contractor shall negotiate in good
faith to try and resolve the issue and shall report to CHP the result of the negotiations. All
complaints shall be resolved within a reasonable time -period after being received.
6.3 Complaint Review Committee
The FSP Technical Advisory Committee ("FSP TAC") is composed of voting members from
CHP, SAFE, and Caltrans. Voting members of the FSP TAC are hereby designated as the
members of the Damage Complaint Review Committee ("DCRC"). If the DCRC finds that
justifiable complaints are not resolved within a reasonable timeframe, it can recommend
that payment to the Contractor in the amount of the damage claim may be deducted from
the Contractor monthly invoice.
6.4 Trend Meetings
Contractor shall attend, or send a designated management -level representative, to all trend
meetings (i.e. required FSP TAC meeting which meets every other month). These trend
meetings will encompass focused and informal discussions concerning, but not limited to:
scope, Services, schedule, current progress of Services, relevant cost issues, and future
objectives. Contractor shall be responsible for having a representative attend all meetings
(i.e. FSP TAC meetings) that has the ability to make management -level decisions on the
behalf of the Contractor. If the Contractor cannot have a management -level representative
at a meeting, Contractor shall notify SAFE and CHP prior to the meeting. Management -level
attendance at these meetings shall be considered part of the Contractor's contractual
responsibility. Meetings are scheduled, and Contractor will be notified of such schedule, no
later than three (3) working days prior to the meeting.
7.0 Vehicle Operators
7.1 Operator Qualifications and Performance
All potential vehicle operators shall be required to have a safe driving record and, at a
minimum, a valid Class C driver's license. All vehicle operators shall be 18 years of age or
older at the time of background check. Potential vehicle operators shall be subject to driving
record and criminal background checks through the California Highway Patrol. Potential
vehicle operators shall be sufficiently experienced in the tasks of tow truck operations and
proficient with all required Freeway Service Patrol equipment to provide safe and proper
service. Any certified vehicle operator from other FSP areas will be evaluated on a case -by -
case basis. All potential vehicle operators must be capable of demonstrating their tow
operating abilities prior to formal CHP training, also known as proficiency testing.
Additionally, the vehicle operators will be required to exercise good, sound judgment in
carrying out their duties. Vehicle operators shall be required to inform the CHP
Communications Center any time they leave the assigned Beat. This includes breaks and
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replenishing expendable items, such as: gasoline, fire extinguisher, etc. The vehicle
operator shall be required to immediately notify the CHP Communications Center upon a
tow truck breakdown.
FSP vehicle operators will be responsible for accurately entering the required data into DCD
equipment every shift. Each FSP vehicle operator shall complete an inspection worksheet
prior to the commencement of driving the tow truck and a mileage log prior to beginning
service on the Beat. The FSP vehicle operator shall be required to complete an assist record
for each incident. Each assist record should be accurate. Contractors or Operators providing
false or misleading information to FSP Management shall be subject to disciplinary action
and will be handled on a case -by -case basis.
FSP vehicle operators shall always complete the required procedures per the SOP when
handling required forms. No duplicate survey numbers should be entered into the DCD
equipment at any time. Vehicle operators are required to complete in their entirety the
Release of Liability form and Damage Release form when applicable. These completed
forms should be handed in to RCTC at a minimum every 60 days. If it is discovered that a
vehicle operator has entered duplicate survey numbers, not properly completed the release
forms, or not turned the release forms in timely, the Contractor may be subject to penalties
as outlined in Proposal Pricing Form.
CHP, Caltrans, and RCTC maintain strict drug and alcohol policies. Contractors shall have
an alcohol and drug program that includes at a minimum, a drug and alcohol free workplace
policy and an employee alcohol/drug-testing program. Any FSP vehicle operator found
working under the influence of drugs or alcohol shall be immediately removed from the FSP
program by the Contractor. The Contractor shall be responsible for providing a certified
replacement vehicle operator for that vehicle.
The Contractor shall be an active participant in the DMV Pull Notice Program.
If a vehicle operator is convicted of a crime involving a stolen vehicle, stolen property,
violence, drugs, or moral turpitude, fraud related to the towing business, or misdemeanor
or felony driving while under the influence of alcohol or a drug, the Contractor shall
permanently remove that vehicle operator from duties under the FSP program. If a vehicle
operator is charged with any of the above crimes, the Contractor shall immediately suspend
that vehicle operator from duties under this program pending the outcome of the criminal
case. If the vehicle operator is not convicted, or is ultimately convicted of a lesser crime not
described above, RCTC retains the right to have the Contractor remove that vehicle operator
from the duties under the FSP program.
7.2 Operator Training
At the Contractor's expense, all company owners, FSP vehicle operators, and back-up
vehicle operators shall be required to present a certificate of completion of a SHRP 2/TIMS
training course and to complete the CHP two-day training program which costs
approximately $50.00 per vehicle operator (fee is for the DL64 Tow Truck Driver Certificate
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and fingerprinting). Contractors shall pay all FSP operators and back-up vehicle operators
for attending the training. No vehicle operator will be allowed to begin patrolling without
meeting the requirements set forth in the SOP. Any vehicle operator who is found on patrol
not meeting the requirements may be prohibited from further FSP service and the
Contractor's contract may be terminated immediately.
Mandatory CHP refresher training classes shall be attended. A minimum of four (4) hours
refresher training per year shall be required (at Contractor's expense). Contractors shall
pay all FSP vehicle operators and back-up vehicle operators for attending the
required training.
Vehicle operators will be required to utilize DCD equipment to input information about
mileage, inspection, and each assist, which will include: location, vehicle make, model,
license number, type of assistance provided, etc. Vehicle operators will be trained on using
DCD equipment to enter data.
7.3 Operator Driving Record and Criminal History Check
As required by California Vehicle Code Section 2340, all applicants and owners are required
to have a driver's license and criminal history check. Only after a completed CHP 234F is
received and accepted by CHP, a driver's license and preliminary criminal history check will
be performed.
The driver's license check will consist of confirming that the applicant has a valid driver's
license and the applicant's point count is within standards set forth in this SOP (refer to
Chapter 11, Annex A).
The preliminary criminal history check will consist of a preliminary background check to
determine if the applicant meets the criteria for a California Tow Truck Driver Certificate as
outlined in California Public Resources Code Section 5164, California Vehicle Code Section
13377 and the FSP Contract. In addition, RCTC or the CHP may, in its sole discretion, require
an Employer to replace any vehicle operator or reject a potential vehicle operator who it
determines is not suitable to represent the FSP Program with the public. If the applicant
passes the preliminary criminal history check, the applicant shall submit to fingerprinting.
Driver's license and preliminary criminal history checks will be completed by CHP within
ten (10) working days of the acceptance of a CHP 234F.
7.4 Vehicle Operator Uniform
It shall be the responsibility of the Contractor to provide the vehicle operator with specified
uniforms, black protective toe boots, nameplate, gloves and other equipment. The
equipment includes navy blue coveralls or navy blue shirts and pants. If coveralls are worn,
they shall have a collar with a zip front. Optionally, drivers may wear a standard navy blue
(long -sleeve only) uniform shirt, with a fluorescent orange (must be only 2.5" wide) trim,
with a 1/2" silver reflective tape down the middle. This allowed reflective tape must be on
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both sleeves. All uniforms shall be clean, properly maintained, and replaced whenever
excessively worn.
Sleeves and pant legs shall be moderately tapered to avoid excessive fullness.
A safety vest with reflective stripes shall be worn and supplied by RCTC. RCTC will supply
vests with the FSP logo patches already sewn on per CHP's required patch placement
locations. A FSP logo patch is not required to be sewn on the navy blue FSP vehicle operator
uniform.
A detachable brass or gold nameplate shall be worn with the first initial of the first name
and full last name. Letters shall not exceed 1/z" tall. The nameplate shall be worn above the
right chest pocket on the safety vest. The Contractor is responsible for obtaining FSP CHP
approval of the driver nameplates, and the Contractor is responsible for the purchase and
replacement of the FSP vehicle operator nameplate.
All FSP vehicle operators shall wear general duty black work boots with protective (steel or
composite) toe.
During cold weather, a navy blue sweater or sweatshirt may be worn under the uniform
shirt/coveralls. As an option, a navy blue jacket may also be worn, if it meets all the uniform
specifications and is worn under the safety vest. Rain gear, if worn, shall be waterproofed
material and navy blue or yellow in color.
Hats, if worn, shall be baseball -type caps and navy blue in color. An "FSP" logo patch may
be sewn on the hat above the brim. No other logos/names shall be accepted. A beanie may
also be worn which must be navy blue in color and worn only with a jacket or long sleeve
shirt under the vest.
Contractor should refer to the most current SOP to ensure they are following the most
recent requirements. SOP revisions and updates shall be unilaterally issued by RCTC, as
deemed necessary by RCTC management, and all changes, revisions and updates to the SOP,
if any, shall supersede all previous or existing SOPs. A copy of the SOP is included as part of
the original RFP package.
7.5 Local Office
The Contractor shall provide a local office for contract administration purposes. This office
shall be staffed by either the Contractor or a person who has the authority to conduct
business and make decisions on behalf of the Contractor. The office shall have business
hours coinciding with Contractor's Beat(s) hours of operation. Through the Proposal
document shown in the Contractor Representative Form, the Contractor shall designate
representatives who will be available at the office during hours of operation to make
decisions on behalf of the Contractor. The office shall be established within close proximity
to the Contractor's Beat(s) and the County of Riverside. Also note in the Scope of Services,
Section 4.4, a backup vehicle and a certified FSP vehicle operator must be available
within a 45 -minute request of the Beat area.
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This requirement may also determine if the local office is close enough to satisfy the
requirements under this section.
The Contractor shall also provide telephone and email through which he/she, or a
responsible representative who has the authority to conduct business and make decisions
on behalf of the Contractor, can be contacted during the non -service hours of operation for
the length of the contract. During non -business hours, an answering machine provided at
the Contractor's expense, shall be available to log calls, take complaints, etc. An email
address that is monitored daily shall be provided for notification purposes during
operational and non -service hours. The Contractor will be responsible for having a
company representative monitor and review messages/notices on a daily basis.
7.6 Remedies and Liquidated Damages
RCTC has a need to deal contractually with a range of failures by Contractors to meet
contractual standards and requirements short of suspension or termination. Failure to
meet contractual standards and requirements constitute a default under the contract and is
subject to the various remedies provided in the contract, up to and including termination of
the contract.
It is clear that any default that is related to service or contractor's readiness for service will
either degrade service or lead to the degradation of service. The failure to meet contractual
standards and requirements, therefore, causes damages to the FSP program and its
participants (RCTC, CHP and Caltrans) and to the public being served by the FSP program.
Because of the public service nature of the mission of the FSP, described generally in the
Standard Operating Procedures (SOP), to keep traffic and commerce flowing on the regional
freeways, the damages arising from contractor's failure to meet the contractual standards
and requirements are impractical or extremely difficult to ascertain on an individual basis.
The contract has therefore established a series of remedies to attempt to deal with a range
of defaults. The most egregious default will result in suspension or termination. Lesser
defaults will result in the assessment of liquidated damages. These lesser remedies have
been described in the SOP as fines, violations or penalties. This is not a correct
characterization of the intent of the remedies. The remedies arise because the contractor is
in default and the FSP and the public it serves is damaged by that default. The remedies are
to compensate FSP for its damages and to encourage compliance with performance
requirements of the contract.
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EXHIBIT "B"
Compensation and Payment
r
AGENDA ITEM 11
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE:
May 23, 2022
TO:
Western Riverside County Programs and Projects Committee
FROM:
Brian Cunanan, Commuter & Motorist Assistance Manager
THROUGH:
David Knudsen, Interim External Affairs Director
SUBJECT:
Funding Agreement with the California Highway Patrol for Freeway Service
Patrol Supervision
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Approve Agreement No. 22-45-079-00 with the California Highway Patrol (CHP) to
provide supervision and operation of the Freeway Service Patrol (FSP) program in
Riverside County for a three-year term in an amount not to exceed $2,167,546;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreement on behalf of the Commission; and
3) Forward to the Commission for final action.
BACKGROUND INFORMATION:
The Riverside County FSP program is operated as a joint venture between the California
Department of Transportation (Caltrans), CHP, and the Commission in its capacity as the Service
Authority for Freeway Emergencies (SAFE). The Riverside County SAFE is responsible for
administering the program, and the CHP provides daily field supervision to ensure service
performance during FSP operating hours (below).
The CHP has supplemental agreements with various SAFEs statewide for overtime and/or
additional personnel. Since 2001, the Commission has executed agreements with CHP due to the
limited personnel and nature of the FSP program. In addition to field supervision during FSP
operating hours which start as early as 5:00am and end at 8:00pm on weekdays and start as early
as 10:00am and end at 7:00pm on weekends, there are services performed between operating
hours that support the program, therefore requiring CHP Officers to work overtime. Below is a
sample of the services performed by FSP CHP Officers:
In -field Supervisory Services Provided During FSP Operating Hours (not exhaustive):
• Provide in -field, on scene, program supervision;
• Provide on -the -spot decisions regarding incidents occurring in the field;
• Enforce program rules and guidelines through in -field supervision;
Agenda Item 11
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• Conduct all investigations with regard to equipment, personnel, damage, and complaints;
• Inspect tow trucks for regulatory compliance;
• Serve as a FSP liaison between agencies, such as with other CHP personnel, Caltrans,
cities, counties, etc.; and
• Be available to the public for FSP concerns, questions, comments, complaints.
Administrative Supervisory Services Provided During Non-FSP Hours (not exhaustive):
• Initiate background checks and conduct testing, fingerprinting, and certifications for new
FSP drivers;
• Prepare training class materials (binders and maps);
• Conduct training classes;
• Track extra truck time, fines, penalties, and certificates (driver license, DL64, medical
cards, and motor carrier permits);
• Prepare monthly billing;
• Maintain the standard operating procedures manual;
• Maintain drop point maps to include changing local regulations;
• Monitor the automatic vehicle locator system, tablets, radios, and other electronic FSP
equipment;
• Maintain required field -ready equipment such as backup tablets, radios, safety vests, and
magnetic signs;
• Participate in the request for proposal process for new contractors;
• Maintain driver files and records for all FSP drivers;
• Track FSP drivers' tenure and performance with regard to driver recognition and awards;
and
• Attend and occasionally host various FSP-related required meetings and trainings
(Technical Advisory Committee and quarterly drivers' meetings).
CHP jurisdictional boundaries govern oversight authority, and, in total, there are six dedicated
FSP Officers, across two CHP divisions supporting Riverside County FSP operations. Four FSP
Officers, based out of Inland CHP Division (Inland), support both Riverside and San Bernardino
County FSP operations, and two Officers, based out of Border CHP Division (Border), oversee the
south County service areas. CHP is provided an allocation by the state and does absorb some of
the baseline personnel costs with that allocation — two Officers and one Dispatcher for Inland
and one Officer for Border; however, supplemental agreements are needed to cover overtime,
dispatch, and/or additional personnel.
DISCUSSION
The current agreement expires on June 30, 2022, and staff seeks approval for a new agreement
with CHP for another three-year term. This new agreement will support overtime, dispatch, and
additional personnel, as needed for Regular, Express Lanes, and Construction FSP services.
Agenda Item 11
499
Staff coordinated with the CHP headquarters and local CHP division units (Border and Inland) to
develop an estimate for the incremental CHP time and corresponding costs needed to support
the aforementioned elements. For Riverside County FSP, CHP absorbs two FTE Officers and one
Dispatcher for Inland and one half an FTE Officer and one Dispatcher for Border. As such, one half
FTE Officer for Border is funded by this agreement. In addition to the baseline personnel, the
draft agreement provides for a maximum amount of overtime hours for Officers and Dispatchers
(as shown below) for each fiscal year at a statewide rate determined each fiscal year by CHP
headquarters. The current rates are $93.59 per hour for Officers and $48.18 per hour for
Dispatchers. CHP advised staff to apply the following rates for Fiscal Year 2022/23 - $105.91 per
hour for Officers and $54.52 per hour for Dispatchers and estimate up to a 6 percent increase
annually. The total amount of the three-year agreement shall not exceed $2,167,546. In the
event CHP headquarters grants a rate increase, the Commission is required to reimburse the CHP
at the new hourly rate, but in no event shall the total amount exceed the maximum contract
amount. Below is a breakdown of the preliminary cost estimates and hours by fiscal year.
FY 2023 FY 2024 FY 2025
Officer Hours 3,840 3,840 3,840
Dispatch Hours 2,620 2,620 2,620
FY 2023 FY 2024 FY 2025
Regular/Exp FSP $437,236 $463,470 $491,278
Construction FSP $112,301 $119,039 $126,181
$549,537 $582,509 $617,460
Border CHP 0.5 FTE $131,310 $139,189 $147,540
$1,749,505 OT Subtotal
418,040 FTE Subtotal
$680,847 $721,698 $765,000 $2,167,546 Total CHP Contract
Hours (Officer and Dispatch) are consistent across the term of the contract and monetary
increases from year to year primarily reflect the potential annual rate and salary increases.
Should any construction projects be identified at a later date or service schedule changes that
result in expanded hours, staff may return to the Commission to seek an amendment to this
agreement.
The funding agreement provides for the reimbursement from the Commission to the CHP of
those reasonable overtime expenses necessary to support the FSP program. The Commission
only pays for actual supervision and dispatch time incurred, while the contract provides for both
known and unforeseen FSP needs throughout the county. Both an Inland and Border CHP
Lieutenant Commander provide direct supervision of the dedicated FSP Officers and reviews and
approves Officer reimbursed overtime expenses. Auditing of these reimbursable expenses is
performed both at the local CHP division level and at the state level by the FSP liaison contracts
unit. Additionally, Commission staff compares invoices to historical and internal data.
Agenda Item 11
500
FISCAL IMPACT
Sufficient funding, consisting of Caltrans, SAFE, and toll revenues, for CHP supervision services is
included in the proposed FY 2022/23 budget.
Financial Information
In Fiscal Year Budget:
Yes
N/A
Year:
FY 2022/23
FY 2023/24+
Amount:
$680,848
$1,486,698
Source of Funds:
State allocations (including SB1), SAFE,
and toll revenues (1-15 and SR -91)
Budget Adjustment:
No
N/A
GL/Project Accounting No.:
002173 81016 00000 0000 20145 81002
009199 81014 00000 0000 591 3181002
001599 81014 00000 0000 515 3181002
Fiscal Procedures Approved:
Date:
05/13/2022
Attachment: Draft Agreement No. 22-45-079-00
Agenda Item 11
501
State of California —Transportation Agency
GAVIN NEWSOM, Governor
DEPARTMENT OF CALIFORNIA HIGHWAY PATROL
Business Services Section
Contract Services Unit
601 N. 7th Street
Sacramento, CA 95811
(916) 843-3610
(800) 735-2929 (TT/TDD)
(800) 735-2922 (Voice)
March 28, 2022
Sent Via Email to bcunanan@RCTC.org
Riverside County Transportation Commission
P.O. Box 12008
Riverside, CA 92502
Subject: Agreement Number 22R061000-0
Congratulations, you have been awarded the agreement. Please complete the following marked item(s) and
return to the above address within ten (10) business days:
STD. 213, Standard Agreement with attached exhibits. Sign the first page of the STD. 213, sign the
additional single STD. 213, and return both copies.
STD. 213A, Standard Agreement Amendment. Sign the first page of the STD. 213A, sign the additional
single STD. 213A, and return both copies.
STD. 210, Short Form Contract. Sign and return both copies.
STD. 204, Payee Data Record. Complete and return.
CCC, Contractor Certification Clauses. Complete and return.
Obtain and forward the liability insurance certificate required by the terms of the Agreement.
le Resolution, motion, order, or ordinance from the local governing body authorizing this Agreement.
STD. 807, Payment Bond. Complete and return one copy.
CHP 28, Voluntary Statistical Data. Complete and return.
CHP 78V, Conflict of Interest & CHP 116, Darfur Certification
Letter of Agreement. Sign and return both copies.
Contract status.
The enclosed agreement is signed on behalf of the Department of California Highway Patrol. Process and
when approved, return an original to this office.
The enclosed approved agreement is for your records. You are now authorized to provide services.
.5'4. W. 4CLI ru
SRIDHARAN KRISHNAMURTHY
Contract Analyst
Enclosures
Safety, Service, and Security
010))1
502
An Internationally Accredited Agency
Cover Letter_0119.xft
SCO ID: 2720-228061000
STATE OF CALIFORNIA - DEPARTMENT OF GENERAL SERVICES
STANDARD AGREEMENT
STD 213 (Rev. 04/2020)
AGREEMENT NUMBER
22R061000
PURCHASING AUTHORITY NUMBER (If Applicable)
1. This Agreement is entered into between the Contracting Agency and the Contractor named below:
CONTRACTING AGENCY NAME
Department of California Highway Patrol
CONTRACTOR NAME
Riverside County Transportation Commission
2. The term of this Agreement is:
START DATE
07/01/2022
THROUGH END DATE
06/30/2025
3. The maximum amount of this Agreement is:
$2,167,545.40 ( Two Million One Hundred Sixty -Seven Thousand Five Hundred Forty -Five Dollars and Forty Cents)
4. The parties agree to comply with the terms and conditions of the following exhibits, which are by this reference made a part of the Agreement.
Exhibits
Title
Pages
Exhibit A
Scope of Work
11
Exhibit C
General Terms and Conditions
5
-+
Items shown with an asterisk (*), are hereby incorporated by reference and made part of this agreement as if attached hereto.
These documents can be viewed athttps://www.dgs.ca.gov/OLS/Resources
IN WITNESS WHEREOF, THIS AGREEMENT HAS BEEN EXECUTED BY THE PARTIES HERETO.
CONTRACTOR
CONTRACTOR NAME (if other than an individual, state whether a corporation, partnership, etc.)
Riverside County Transportation Commission
CONTRACTOR BUSINESS ADDRESS
P.O. Box 12008
CITY
Riverside
STATE
CA
ZIP
92502
PRINTED NAME OF PERSON SIGNING
V. Manuel Perez
TITLE
Chair
CONTRACTOR AUTHORIZED SIGNATURE
See Exhibit A, Page 11 for Signatures
DATE SIGNED
STATE OF CALIFORNIA
CONTRACTING AGENCY NAME
Department of California Highway Patrol
CONTRACTING AGENCY ADDRESS
601 N. 7th Street
CITY
Sacramento
STATE
CA
ZIP
95811
PRINTED NAME OF PERSON SIGNING
J. D. SACCANI
TITLE
Assistant Chief, Administrative Services Division
CONTRACTING AGENCY AUTHORIZED SIGNATURE
See Exhibit A, Page 11 for Signatures
DATE SIGNED
CALIFORNIA DEPARTMENT OF GENERAL SERVICES APPROVAL
EXEMPTION (If Applicable)
503
Page1 of 1
RCTC Agreement #xxxxxxxxx
CHP #22R061000
Exhibit A, Page 1 of 11
EXHIBIT A
AGREEMENT BETWEEN
STATE OF CALIFORNIA
DEPARTMENT OF CALIFORNIA HIGHWAY PATROL
AND
RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES
FOR FREEWAY SERVICE PATROL
THIS AGREEMENT is between the State of California acting by and through Department of
California Highway Patrol (hereinafter referred to as CHP) P.O. Box 942898, Sacramento,
California 94298-001 and Riverside County Transportation Commission, acting in its capacity
as the Riverside County Service Authority for Freeway Emergencies (hereinafter referred to
as RCTC) P.O. Box 12008, Riverside, CA 92502-2208. Collectively, CHP and RCTC may be
referred to as the "Parties."
ARTICLE 1. GENERAL INFORMATION
A. This Agreement provides for CHP dispatch services and overtime oversight assistance
in connection with the Freeway Service Patrol (FSP) program in Riverside County.
Streets and Highways Code Section 2561, subdivision (c) defines "freeway service
patrol" as a "program managed by the Department of the California Highway Patrol, the
[California Department of Transportation] and a regional or local entity which provides
emergency roadside assistance on a freeway in an urban area."
B. Section 2401 of the California Vehicle Code (CVC) states that the Commissioner of
CHP shall make adequate provisions for patrol of the highways at all times of the day
and night.
C. RCTC has the ability to provide local matching funds as required by the State Budget
Change Proposal (BCP) for FSPs on freeways within Riverside County, which has
qualified the county to participate in the State FSP program. Riverside County FSP will
assist in transportation system management efforts, provide traffic congestions relief,
and expedite the removal of freeway impediments, all of which will have the added
benefit of improving air quality.
504
RCTC Agreement #xxxxxxxx
CHP #22R061000
Exhibit A, Page 2 of 11
ARTICLE 2. TERMS AND CONDITIONS
A. Riverside County's FSP program is intended to be funded with revenues derived from
Service Authority for Freeway Emergencies (SAFE), State Budget Change Proposal
funds, known as BCP, and Senate Bill 1 (SB 1) funds for the day-to-day contractor
operation. RCTC is currently only provided two and one half officers (two Inland Division
officers and one half time Border Division officer) to provide oversight for the program
within their jurisdiction in accordance with funding available for the statewide FSP
program. With ongoing additions and turnover of FSP program drivers, the provision of
additional driver training and required certification classes by CHP are a necessity in
order for RCTC's tow contractors to maintain their contractual obligation of having only
certified FSP drivers perform FSP services. With only two and one half officers, it is
difficult to provide classes as well as all other duties the officers are responsible for
within regular duty hours. Therefore, it is necessary to fund an additional half time officer
position for the Border Division and CHP overtime across both Border and Inland CHP
Divisions for FSP program oversight assistance, incident investigations, administrative
duties, and other field duties as required to maintain operational safety and code
compliance.
B. Should this Agreement be terminated under paragraph D, RCTC agrees to provide
funding to reimburse CHP for those reasonable and allowable costs incurred and
associated with the program overtime and administrative duties as defined in this
Agreement up to the point of termination.
C. The term of this Agreement shall be effective July 1, 2022 through June 30, 2025.
D. The CHP and RCTC mutually agree that either party may terminate this Agreement
upon sixty (60) days prior written notice to the other party.
E. The CHP and RCTC agree that this Agreement may be amended by mutual written
consent of both parties hereto.
505
RCTC Agreement #xxxxxxxx
CHP #22R061000
Exhibit A, Page 3 of 11
F. RCTC agrees to reimburse CHP for actual costs incurred for FSP related duties
performed by CHP officers ("Officers"), in accordance with the following schedule:
i. For Regular FSP Program and Express Lanes (Inland Division):
1) Approximately 2,000 hours of available Officer overtime during fiscal year
2022/2023, reimbursed at an estimated rate of $105.91 per hour for an annual
estimated amount of $211,820.00.
2) Approximately 2,000 hours of available Officer overtime during fiscal year
2023/2024, reimbursed at an estimated rate of $112.26 per hour for an annual
estimated amount of $224,529.20.
3) Approximately 2,000 hours of available Officer overtime during fiscal year
2024/2025, reimbursed at an estimated rate of $119.00 per hour for an annual
estimated amount of $238,000.95
ii. For Regular FSP Program and Express Lanes Dispatch (Inland Division):
1) Approximately 1,920 hours of available Dispatcher overtime during fiscal year
2022/2023, reimbursed at an estimated rate of $54.52 per hour for an annual
estimated amount of $104,678.40.
2) Approximately 1,920 hours of available Dispatcher overtime during fiscal year
2023/2024, reimbursed at an estimated rate of $57.79 per hour for an annual
estimated amount of $110,959.10.
3) Approximately 1,920 hours of available Dispatcher overtime during fiscal year
2024/2025, reimbursed at an estimated rate of $61.26 per hour for an annual
estimated amount of $117,616.65.
iii. For FSP Construction (Inland Division):
(1) Approximately 350 hours of available Officer overtime during fiscal year
2022/2023, reimbursed at an estimated rate of $105.91 per hour for an annual
estimated amount of $37,068.50.
(2) Approximately 350 hours of available Officer overtime during fiscal year
2023/2024, reimbursed at an estimated rate of $112.26 per hour for an annual
506
RCTC Agreement #xxxxxxxx
CHP #22R061000
Exhibit A, Page 4 of 11
estimated amount of $39,292.61.
(3) Approximately 350 hours of available Officer overtime during fiscal year
2024/2025, reimbursed at an estimated rate of $119.00 per hour for an annual
estimated amount of $41,650.17,
iv. For FSP Construction Dispatch (Inland Division):
(1) Approximately 350 hours of available Dispatcher overtime during fiscal year
2022/2023, reimbursed at an estimated rate of $54.52 per hour for an annual
estimated amount of $19,082.00.
(2) Approximately 350 hours of available Dispatcher overtime during fiscal year
2023/2024, reimbursed at an estimated rate of $57.79 per hour for an annual
estimated amount of $20,226.92.
(3) Approximately 350 hours of available Dispatcher overtime during fiscal year
2024/2025, reimbursed at an estimated rate of $61.26 per hour for an annual
estimated amount of $21,440.54.
v. For Regular FSP Program (Border Division):
1) Approximately 1,140 hours of available Officer overtime during fiscal year
2022/2023, reimbursed at an estimated rate of $105.91 per hour for an annual
estimated amount of $120,737.40.
2) Approximately 1,140 hours of available Officer overtime during fiscal year
2023/2024, reimbursed at an estimated rate of $112.26 per hour for an annual
estimated amount of $127,981.64.
3) Approximately 1,140 hours of available Officer overtime during fiscal year
2024/2025, reimbursed at an estimated rate of $119.00 per hour for an annual
estimated amount of $135,660.54.
vi. For FSP Construction (Border Division):
(1) Approximately 350 hours of available Officer overtime during fiscal year
2022/2023, reimbursed at an estimated rate of $105.91 per hour for an annual
estimated amount of 37,068.50.
507
RCTC Agreement #xxxxxxxx
CHP #22R061000
Exhibit A, Page 5 of 11
(2) Approximately 350 hours of available Officer overtime during fiscal year
2023/2024, reimbursed at an estimated rate of $112.26 per hour for an annual
estimated amount of $39,292.61.
(3) Approximately 350 hours of available Officer overtime during fiscal year
2024/2025, reimbursed at an estimated rate of $119.00 per hour for an annual
estimated amount of $41,650.17.
vii. For FSP Construction Dispatch (Border Division):
(1) Approximately 350 hours of available Dispatcher overtime during fiscal year
2022/2023, reimbursed at an estimated rate of $54.52 per hour for an annual
estimated amount of $19,082.00.
(2) Approximately 350 hours of available Dispatcher overtime during fiscal year
2023/2024, reimbursed at an estimated rate of $57.79 per hour for an annual
estimated amount of $20,226.92.
(3) Approximately 350 hours of available Dispatcher overtime during fiscal year
2024/2025, reimbursed at an estimated rate of $61.26 per hour for an annual
estimated amount of 21,440.54.
viii. RCTC Funding of 1 half-time CHP Officer (Border Division):
(1) RCTC agrees to reimburse CHP for one additional half- time Officer position for
the Agreement term at estimated annual amounts of $131,310.48 for fiscal year
2022/2023, $139,189.11 for fiscal Year 2023/2024 and $147,540.46 for fiscal
year 2024/2025.
ix. Use of Funds; Total Not to Exceed Contract Value.
Amounts Payable to the CHP by RCTC for costs incurred pursuant to this Agreement
may be utilized over several fiscal years and need not be utilized in a single fiscal
year by the CHP, so long as the total amount payable under this Agreement is not
exceeded.
It is understood by both parties that rate increases in salary and benefits are
508
RCTC Agreement #xxxxxxxx
CHP #22R061000
Exhibit A, Page 6 of 11
governed by collective bargaining agreements and/or statute and that no advance
written notification is necessary prior to implementing the increased rates. In the
event CHP is granted a rate increase, RCTC agrees to reimburse CHP at the new
hourly rate, but in no event shall the total amount to be reimbursed by RCTC under
this Agreement, for any of the services described herein, exceed the maximum
contract amount of $2,167,545.40.
Fiscal Year begins July 1 and ends on June 30.
G. The CHP shall invoice monthly. RCTC agrees to pay CHP within thirty (30) days after
the invoice is received. The CHP and RCTC agree that any notice required under this
Agreement shall be delivered or mailed to the persons designated below:
To CHP:
California Highway Patrol
Research and Planning Section
P.O. Box 942898
Sacramento, CA 94298-0001
ATTENTION: Denise Tapia
Statewide FSP Manager
(916) 843-3353
To COMMISSION:
Riverside County Transportation Commission
P.O. Box 12008
Riverside, CA 92502-2208
ATTENTION: Brian Cunanan
Program Manager
(951) 787-7141
ARTICLE 3. COMMISSION RESPONSIBILITIES
A. RCTC shall reimburse CHP for those reasonable overtime expenses necessary to
support the Riverside County FSP operations as outlined under Article 2, Terms and
Conditions, Paragraph F.
B. It is agreed that in the event State FSP funds do not become available to RCTC for this
Agreement, RCTC may immediately terminate this Agreement with written notice, but
shall pay the CHP from other sources any amounts required to cover CHP's cost to the
date of Agreement termination.
509
RCTC Agreement #xxxxxxxx
CHP #22R061000
Exhibit A, Page 7 of 11
ARTICLE 4. CHP RESPONSIBILITIES
A. The CHP has already assigned and staffed, for the dedicated purpose of operating the
Riverside County FSP, two and one half (2.5) full-time officers for the dedicated purpose
of assisting with Riverside County FSP operations. If the CHP cannot provide the
Agreement's specified staffing level, CHP agrees to notify RCTC within thirty (30) days.
B. All personnel providing services shall be State employees under the sole discretion,
supervision, and regulation of CHP. Said personnel shall work out of the appropriate
CHP facilities as designated by CHP. At no time shall any State employee assigned to
the Riverside County FSP program be considered employees, agents, officials, or
volunteers of RCTC.
ARTICLE 5. CHP OVERTIME
CHP overtime duties may include, but not be limited to:
A. Investigating complaints from the public regarding a Riverside County FSP contractor
or driver.
B. Performing all necessary driver license and background checks on all Riverside
County FSP operators.
C. Inspecting all Riverside County FSP contractor tow trucks on a periodic basis.
D. Performing necessary daily FSP oversight and program management and oversight
of the contractors' compliance with statutory and regulatory requirements.
E. Providing training to all Riverside County FSP contractors and operators.
F. Assisting RCTC with verifying contractor billing.
G. Provide representation for Riverside County FSP Technical Committee.
510
RCTC Agreement #xxxxxxxx
CHP #22R061000
Exhibit A, Page 8 of 11
ARTICLE 6. INDEMNIFICATION
A. To the extent permitted by law, RCTC shall defend, indemnify, and save harmless CHP
and all of CHP's appointees, officers, and employees from and against any and all
claims, suits, or actions for "injury" (as defined by Government Code section 810.8)
caused by the negligent or intentional acts or omissions of RCTC, or RCTC's officers,
directors, and employees, arising out of the performance of this Agreement.
B. To the extent permitted by law, CHP shall defend, indemnify, and save harmless RCTC
and all of RCTC's officers, directors, and employees from and against any and all claims,
suits, or actions for "injury" (as defined by Government Code section 810.8) caused by
the negligent or intentional acts or omissions of CHP, or CHP's appointees, officers, or
employees, arising out of the performance of this Agreement.
C. Neither termination of this Agreement nor completion of the acts to be performed under
this Agreement shall release any party from its obligation to indemnify as to any claims
or cause of action asserted so long as the event(s) upon which such claim or cause of
action is predicated shall have occurred subsequent to the effective date of this
Agreement and prior to the effective date of Termination or completion.
ARTICLE 7. AUDITS
The contracting parties hereto shall be subject to the examination and audit of the State for a
period of three (3) years after final payment under the contract. In addition, RCTC and CHP
may be subject to the examination and audit by representatives of either party. The
examination and audit shall be confined to those matters connected with the performance of
the contract including, but not limited to the costs of administering the contract. RCTC and
CHP agree to allow the auditor(s) access to such records during normal business hours and to
allow interviews of any employees who might reasonably have information related to such
records (Gov. Code Sect. 8546.7, Pub. Contract Code Sect. 10115 et seq., CCR Title 2, Section
1896). RCTC and CHP agree to maintain such records for possible audit for a minimum of
three (3) years after final payment.
511
RCTC Agreement #xxxxxxxx
CHP #22R061000
Exhibit A, Page 9 of 11
ARTICLE 8. DISPUTES
Except as otherwise provided in this Agreement, any dispute concerning a question of fact
arising under this Agreement which is not disposed of by mutual agreement of the parties
may be submitted to an independent arbitrator mutually agreed upon by the CHP and RCTC.
The arbitrator's decisions shall be non -binding and advisory only, and nothing herein shall
preclude either party, at any time, from pursuing any other legally available course of action,
including the filing of a lawsuit. Pending a final decision of a dispute hereunder, both parties
shall proceed diligently with the performance of their duties under this Agreement, and such
continued performance of their duties under this Agreement shall not constitute a waiver of
any rights, legal or equitable, of either party relating to the dispute.
ARTICLE 9. RESOLUTION
RCTC agrees to provide CHP with a resolution, motion, order or ordinance of the governing
body, approving execution of agreements with CHP, and identifying the individual who is
authorized to sign the Agreement on behalf of RCTC.
ARTICLE 10. OTHER TERMS AND CONDITIONS
A. By and in consideration of the covenants and conditions contained herein, CHP and
RCTC do hereby agree as follows:
i. This Agreement, and any attachments or documents incorporated herein by
inclusion or reference, constitutes the complete and entire Agreement between CHP
and RCTC and supersedes any prior representations, understandings,
communications, commitments, Agreements or proposals, oral or written.
ii. This Agreement shall not become effective until:
1) Duly signed by both parties and approved by the Department of General
Services Office of Legal Services, if applicable.
2) RCTC has submitted to CHP a copy of the resolution, policy, order, motion, or
ordinance from RCTC approving execution of the Agreement and identifying
the individual authorized to sign on behalf of RCTC.
512
RCTC Agreement #xxxxxxxx
CHP #22R061000
Exhibit A, Page 10 of 11
This space is intentionally left blank.
RCTC Agreement #xxxxxxxx
CHP #22R061000
Exhibit A, Page 11 of 11
This Agreement is entered into by the parties listed below and shall be effective upon approval
by the Department of General Services Office of Legal Services, if applicable. By executing
this Agreement, the representatives of CHP and RCTC warrant that they have viewed and
fully understand all provisions of this Agreement and are authorized to bind their respective
agencies to all terms of the Agreement's provisions.
STATE OF CALIFORNIA
Department of California Highway
Patrol
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
J. D. Saccani, Assistant Chief V. Manuel Perez Chair
Administrative Services Division
Date Date
APPROVED AS TO FORM:
Best, Best & Krieger LLP
General Counsel
Date
514
RCTC Agreement #XXXXXXXX
CHP #22R061000
Page 1 of 5
EXHIBIT C
GENERAL TERMS AND CONDITIONS
1. APPROVAL: This Agreement is of no force or effect until signed by both parties and
approved by the Department of General Services, if required. Contractor may not
commence performance until such approval has been obtained.
2. AMENDMENT: No amendment or variation of the terms of this Agreement shall be
valid unless made in writing, signed by the parties and approved as required. No oral
understanding or Agreement not incorporated in the Agreement is binding on any of the
parties.
3. ASSIGNMENT: This Agreement is not assignable by the Contractor, either in whole
or in part, without the consent of the State in the form of a formal written amendment.
4. AUDIT: Contractor agrees that the awarding department, the Department of General
s„bcontract related to performance n�-Agreement. ( Gov. Co §85 6.7 bb.
vu,�zc�rrrracrrcrarc ." f.. c rTvmTcmc rc
Contract Code §10115 et seq., CCR Title 2, Section 1896. (SEE EXHBIT A, PAGE 8
OF 11, ARTICLE 7. AUDITS).
5. INDEMNIFICATION: Contractor agrees to indemnify defend and save harmless the
losses accruing or resulting to any person, firm or corporation who may be injured or
damaged by Contractor in the performance of this Agreement.(SEE EXHBIT A, PAGE 8
OF 11, ARTICLE 6. INDEMNIFICATION).
6. DISPUTES: Contractor shall continue with the responsibilities under this Agreement
during any dispute. (SEE EXHBIT A, PAGE 9 OF 11, ARTICLE 8. DISPUTES).
515
RCTC Agreement #XXXXXXXX
CHP #22R061000
Page 2 of 5
7. TERMINATION FOR CAUSE: The State may terminate this Agreement and be
Agreement at the time and in the manner herein provided. In the event of such
termination the State may proceed with the work in any manner deemed proper by the
State. All costs to the State shall be deducted from any sum due the Contractor under
(DELETED).
8. INDEPENDENT CONTRACTOR: Contractor, and the agents and employees of
Contractor, in the performance of this Agreement, shall act in an independent capacity
and not as officers or employees or agents of the State.
9. RECYCLING CERTIFICATION: The Contractor shall certify in writing under penalty
of perjury, the minimum, if not exact, percentage of post consumer material as defined
ijTr Public ContractGede-Sectio , cts,�}-a-teri-als, goods, n unnos
offered or sold to the State regardless of whether the product meets the requirements of
Public Contract Code Section 12209. With respect to printer or duplication cartridges
that comply with the requirements of Section 12156(e), the certification required by this
subdivision shall specific that the cartridges so comply (Pub Contract Code §12205).
(DELETED).
10. NON-DISCRIMINATION CLAUSE: During the performance of this Agreement,
Contractor and its subcontractors shall not deny the contract'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 discriminate unlawfully 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. Contractor shall insure that the evaluation and treatment of employees
and applicants for employment are free of such discrimination. Contractor and
subcontractors shall comply with the provisions of the Fair Employment and Housing
Act (Gov. Code §12900 et seq.), the regulations promulgated thereunder (Cal. Code
Regs., tit. 2, §11000 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3,
Title 2 of the Government Code (Gov. Code §§11135-11139.5), and the regulations or
standards adopted by the awarding state agency to implement such article. Contractor
shall permit access by representatives of the Department of Fair Employment and
Housing and the awarding state agency upon reasonable notice at any time during the
normal business hours, but in no case less than 24 hours' notice, to such of its books,
records, accounts, and all other sources of information and its facilities as said
Department or Agency shall require to ascertain compliance with this clause.
516
RCTC Agreement #XXXXXXXX
CHP #22R061000
Page 3 of 5
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. (See Cal. Code Regs., tit. 2, §11105.)
Contractor shall include the nondiscrimination and compliance provisions of this clause
in all subcontracts to perform work under the Agreement.
11. CERTIFICATION CLAUSES: The CONTRACTOR CERTIFICATION CLAUSES
merle a part of this /Agreement by this reference as if attached hereto. (DELETED).
12. TIMELINESS: Time is of the essence in this Agreement.
13. COMPENSATION: The consideration to be paid Contractor, as provided herein,
shall be in compensation for all of Contractor's expenses incurred in the performance
(DELETED).
14. GOVERNING LAW: This contract is governed by and shall be interpreted in
accordance with the laws of the State of California.
15. ANTITRUST CLAIMS: The Contractor by signing this agreement hereby certifies
that if these services or goods are obtained by means of a competitive bid, the
Contractor shall comply with the requirements of the Government Codes Sections set
out below.
a. The Government Code Chapter on Antitrust claims contains the following definitions:
1) "Public purchase" means a purchase by means of competitive bids of goods,
services, or materials by the State or any of its political subdivisions or public agencies
on whose behalf the Attorney General may bring an action pursuant to subdivision (c) of
Section 16750 of the Business and Professions Code.
2) "Public purchasing body" means the State or the subdivision or agency making a
public purchase. Government Code Section 4550.
b. In submitting a bid to a public purchasing body, the bidder offers and agrees that if
the bid is accepted, it will assign to the purchasing body all rights, title, and interest in
and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C.
Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of
Part 2 of Division 7 of the Business and Professions Code), arising from purchases of
goods, materials, or services by the bidder for sale to the purchasing body pursuant to
the bid. Such assignment shall be made and become effective at the time the
purchasing body tenders final payment to the bidder. Government Code Section 4552.
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c. If an awarding body or public purchasing body receives, either through judgment or
settlement, a monetary recovery for a cause of action assigned under this chapter, the
assignor shall be entitled to receive reimbursement for actual legal costs incurred and
may, upon demand, recover from the public body any portion of the recovery, including
treble damages, attributable to overcharges that were paid by the assignor but were not
paid by the public body as part of the bid price, less the expenses incurred in obtaining
that portion of the recovery. Government Code Section 4553.
d. Upon demand in writing by the assignor, the assignee shall, within one year from
such demand, reassign the cause of action assigned under this part if the assignor has
been or may have been injured by the violation of law for which the cause of action
arose and (a) the assignee has not been injured thereby, or (b) the assignee declines to
file a court action for the cause of action. See Government Code Section 4554.
16. CHILD SUPPORT COMPLIANCE ACT: For any Agreement in excess of $100,000,
the contractor acknowledges in accordance with Public Contract Code 7110, that:
a. The contractor recognizes the importance of child and family support obligations and
shall fully comply with all applicable state and federal laws relating to child and family
support enforcement, including, but not limited to, disclosure of information and
compliance with earnings assignment orders, as provided in Chapter 8 (commencing
with section 5200) of Part 5 of Division 9 of the Family Code; and
b. The contractor, to the best of its knowledge is fully complying with the earnings
assignment orders of all employees and is providing the names of all new employees to
the New Hire Registry maintained by the California Employment Development
Department.
17. UNENFORCEABLE PROVISION: In the event that any provision of this Agreement
is unenforceable or held to be unenforceable, then the parties agree that all other
provisions of this Agreement have force and effect and shall not be affected thereby.
18. PRIORITY HIRING CONSIDERATIONS: If this Contract includes services in excess
of $200,000, the Contractor shall give priority consideration in filling vacancies in
positions funded by the Contract to qualified recipients of aid under Welfare and
Institutions Code Section 11200 in accordance with Pub. Contract Code §10353.
19. SMALL BUSINESS PARTICIPATION AND DVBE PARTICIPATION REPORTING
REQUIREMENTS:
a. If for this Contract Contractor made a commitment to achieve small business
participation, then Contractor must within 60 days of receiving final payment under this
Contract (or within such other time period as may be specified elsewhere in this
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CHP #22R061000
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Contract) report to the awarding department the actual percentage of small business
participation that was achieved. (Govt. Code § 14841.)
b. If for this Contract Contractor made a commitment to achieve disabled veteran
business enterprise (DVBE) participation, then Contractor must within 60 days of
receiving final payment under this Contract (or within such other time period as may be
specified elsewhere in this Contract) certify in a report to the awarding department: (1)
the total amount the prime Contractor received under the Contract; (2) the name and
address of the DVBE(s) that participated in the performance of the Contract; (3) the
amount each DVBE received from the prime Contractor; (4) that all payments under the
Contract have been made to the DVBE; and (5) the actual percentage of DVBE
participation that was achieved. A person or entity that knowingly provides false
information shall be subject to a civil penalty for each violation. (Mil. & Vets. Code §
999.5(d); Govt. Code § 14841.)
20. LOSS LEADER:
If this contract involves the furnishing of equipment, materials, or supplies then the
following statement is incorporated: It is unlawful for any person engaged in business
within this state to sell or use any article or product as a "loss leader" as defined in
Section 17030 of the Business and Professions Code. (PCC 10344(e).).
519
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE SIGN -IN SHEET
MAY 23, 2022
NAME
AGENCY
E_MAIL ADDRESS
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TO: Riverside County Transportation Commission
FROM: Lisa Mobley, Clerk of the Board
DATE: May 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. 7 - Agreement for Preparation of the Project Approval and Environmental
Document for the Interstate-10/Highland Springs Avenue Interchange Improvements
Consultant(s): Mark Thomas & Company, Inc.
Darin Johnson, Associate Principal
10630 Towne Center Drive, Suite 117
Rancho Cucamonga, CA 91730
Agenda Item No. 8 - Agreements for On-Call Geotechnical Investigation – Laboratory and Field
Testing of Materials
Consultant(s): Group Delta Consultants, Inc.
Shah Ghanbari, President
32 Mauchly, Suite B
Irvine, CA 92618
Ninyo & Moore Geotechnical and Environmental Sciences Consultants
Kurt S. Yoshii, PE, GE
7888 Cherry Avenue, Unit I
Fontana, CA 92336
RCTC Potential Conflicts of Interest
May 18, 2022
Page 2
Kleinfelder, Inc.
Dany Hanna, Contract Manager/Vice President
2280 Market Street, Suite 300
Riverside, CA 92501
Agenda Item No. 9 - Agreements for On-Call Right of Way Support Services
Consultant(s): Epic Land Solutions, Inc.
Karen Starr, President
3850 Vine Street, Suite 200
Riverside, CA 92507
Monument ROW, Inc.
Amber Costello, President
200 Spectrum Center, Suite 300
Irvine, CA 92618
Overland, Pacific, and Cutler, LLC
Brian Everett, Chief Executive Officer
2280 Market Street, Suite 200
Riverside, CA 92501
Agenda Item No.10 - Agreement for Freeway Service Patrol Tow Truck Service
Consultant(s): Royal Coaches Auto Body & Towing
William Salazar, President & CEO
14827 Ramona Boulevard
Baldwin Park, CA 91706