HomeMy Public PortalAbout11 November 28, 2022 Western Riverside County Programs and Projects
MEETING AGENDA
Western Riverside County Programs and Projects Committee
Time: 1:30 p.m.
Date: November 28, 2022
Location: This meeting is being conducted virtually in accordance with AB 361 due to state or local officials
recommending measures to promote social distancing.
COMMITTEE MEMBERS
Ben J. Benoit, Chair/Joseph Morabito, City of Wildomar
Brian Berkson, Vice Chair/Guillermo Silva, City of Jurupa 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
Aaron Hake, Deputy Executive Director
AREAS OF RESPONSIBILITY
Air Quality, Capital Projects, Communications and
Outreach Programs, Intermodal Programs, Motorist
Services, New Corridors, Regional Agencies/Regional
Planning, Regional Transportation Improvement Program
(RTIP), Specific Transit Projects, State Transportation
Improvement Program (STIP)
Transportation Uniform Mitigation Fee (TUMF)
Program, and Provide Policy Direction on
Transportation Programs and Projects related to
Western Riverside County and other areas as
may be prescribed by the Commission.
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE
www.rctc.org
AGENDA*
*Actions may be taken on any item listed on the agenda
1:30 p.m.
Monday, November 28, 2022
This meeting is being conducted virtually in accordance with AB 361 due to state or local officials
recommending measures to promote social distancing.
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For members of the public wishing to submit comment in connection with the Western Riverside
County Programs and Projects Committee Meeting please email written comments to the Clerk of
the Board at lmobley@rctc.org and your comments will be made part of the official record of the
proceedings as long as the comment is received before the end of the meeting’s public comment
period. Members of the public may also make public comments through their telephone or Zoom
connection when recognized by the Chair.
In compliance with the Brown Act and Government Code Section 54957.5, agenda materials
distributed 72 hours prior to the meeting, which are public records relating to open session agenda
items, will be available for inspection by members of the public prior to the meeting on the
Commission’s website, www.rctc.org.
In compliance with the Americans with Disabilities Act, Government Code Section 54954.2, Executive
Order N-29-20, and the Federal Transit Administration Title VI, please contact the Clerk of the Board
at (951) 787-7141 if special assistance is needed to participate in a Committee meeting, including
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
Western Riverside County Programs and Projects Committee
November 28, 2022
Page 2
3.PLEDGE OF ALLEGIANCE
4.PUBLIC COMMENTS – Under the Brown Act, the Board should not take action on or discuss
matters raised during public comment portion of the agenda which are not listed on the
agenda. Board members may refer such matters to staff for factual information or to be
placed on the subsequent agenda for consideration. Each individual speaker is limited to speak
three (3) continuous minutes or less.
5.ADDITIONS/REVISIONS (The Committee may add an item to the Agenda after making a
finding that there is a need to take immediate action on the item and that the item came to
the attention of the Committee subsequent to the posting of the agenda. An action adding an
item to the agenda requires 2/3 vote of the Committee. If there are less than 2/3 of the
Committee members present, adding an item to the agenda requires a unanimous vote.
Added items will be placed for discussion at the end of the agenda.)
6.CONSENT CALENDAR - All matters on the Consent Calendar will be approved in a single motion
unless a Commissioner(s) requests separate action on specific item(s). Items pulled from the
Consent Calendar will be placed for discussion at the end of the agenda.
6A. APPROVAL OF MINUTES – OCTOBER 24, 2022
Page 1
7.AGREEMENTS FOR ON-CALL ENVIRONMENTAL CONSULTING SERVICES
Page 7
Overview
This item is for the Committee to recommend the Commission take the following action(s):
1)Award the following agreements to provide on-call environmental consulting services
for a three-year term, and one, two-year option to extend the agreements, in an
amount not to exceed an aggregate value of $3,000,000;
a)Agreement No. 22-31-092-00 to GPA Consulting;
b)Agreement No. 22-31-103-00 to HNTB Corporation;
c)Agreement No. 22-31-104-00 to ICF Jones & Stokes, Inc.; and
d)Agreement No. 22-31-105-00 to Stantec Consulting Services, Inc.;
2)Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreements, including option years, on behalf of the Commission; and
3)Authorize the Executive Director, or designee, to execute task orders awarded to the
consultants under the terms of the agreements.
8. EXECUTIVE DIRECTOR REPORT
Western Riverside County Programs and Projects Committee
November 28, 2022
Page 3
9. COMMISSIONER COMMENTS
Overview
This item provides the opportunity for brief announcements or comments on items or matters
of general interest.
10. ADJOURNMENT
The next Western Riverside County Programs and Projects Committee meeting is scheduled
to be held at 1:30 p.m., Monday, January 23, 2023.
AGENDA ITEM 6A
MINUTES
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE
Monday, October 24, 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: 892 6274 4151.
This meeting was conducted virtually in accordance with AB 361 due to state or local
officials recommending measures to promote social distancing.
2.ROLL CALL
Members/Alternates Present Members Absent
Ben Benoit Brian Berkson
Edward Delgado Clint Lorimore
Jeff Hewitt
Ted Hoffman
Kevin Jeffries
Linda Krupa
Wes Speake
Karen Spiegel
Michael Vargas
Bill Zimmerman
3.PLEDGE OF ALLEGIANCE
Commissioner Bill Zimmerman led the Western Riverside County Programs and Projects
Committee in a flag salute.
4.PUBLIC COMMENTS
There were no requests to speak from the public.
5. ADDITIONS/REVISIONS
There were no additions or revisions to the agenda.
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M/S/C (Hewitt/Vargas) to approve the minutes as submitted.
6. APPROVAL OF MINUTES – AUGUST 22, 2022
At this time, Chair Benoit suggested to combine this committee approval with Agenda
Item 7.
Lisa Mobley, Administrative Services Director/Clerk of the Board, stated if that is the
desire of the committee, they can do that.
7. AGREEMENT FOR CONSTRUCTION MANAGEMENT SERVICES, MATERIALS TESTING, AND
CONSTRUCTION SURVEYING FOR THE INTERSTATE 15 SMART FREEWAY
IMPROVEMENTS PROJECT
Bryce Johnston, Senior Capital Projects Manager, presented the agreement award for
construction management for the Interstate 15 SMART Freeway Project, highlighting the
following:
• Project overview
8-miles of northbound I-15, County Line to 15/215 “Split”
• Project scope
Coordinated Adaptive Ramp Metering at 3 on-ramps
o Temecula Parkway
o Rancho California Road
o Winchester Road
• Project Schedule
95 percent design currently under review by Caltrans
• Construction Management Agreement with Anser Advisory Management
• Schedule
Commissioner Karen Spiegel clarified about staff’s recommendations and asked how the
Commissioners can authorize the Chair or Executive Director, pursuant to legal counsel
review, to finalize and execute the agreement on behalf of the Commission, yet they are
forwarding this agreement for final action to the Commission.
Bryce Johnston replied he was following RCTC’s agenda item templates for construction
management awards.
Lisa Mobley replied when staff are doing approvals for the staff recommendations at the
committee level this is what the committee is recommending that the Commission
approve. There are no final actions other than the minutes at the committee level, but
this is the recommendations that staff is asking the committee to authorize to move
forward to the Commission and then the Commission will take final action on these
recommendations.
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Commissioner Spiegel asked why the first part of the recommendation to finalize and
execute the agreement the Chair or Executive Director and then approve the contingency
is the Chair or Designee.
Lisa Mobley replied this is based on the recommendations that staff wants the full
Commission to do, so they are asking the Commission to forward the contingency would
just be to authorize the Executive Director to approve the contingency work.
Commissioner Spiegel clarified during the project once it is working then the approval of
the contingency, but the Chair does not have to get out there and look at the work to
approve it. Lisa Mobley replied correct. Commissioner Spiegel stated now it makes sense
and she moved the item for 6A and 7.
Chair Benoit clarified if the committee wanted to go onto Agenda Item 8 as well, but he
wanted to make sure there were no concerns or any questions. He requested to go onto
Agenda Item 8 and then they can take a motion for all three items.
M/S/C (Hewitt/Vargas) to:
1) Award Agreement No. 22-31-098-00 to Anser Advisory Management, LLC
dba Anser Advisory (Anser) for construction management services,
materials testing, and construction surveying for the Interstate 15
SMART Freeway Improvements Project in the amount of $2,072,210, plus
a contingency amount of $207,221, for a total amount not to exceed
$2,279,431;
2) Authorize the Chair or Executive Director, pursuant to legal counsel
review, to finalize and execute the agreement, on behalf of the
Commission;
3) Authorize the Executive Director, or designee, to approve contingency
work up to the total not to exceed amount as required for these services;
and
4) Forward to the Commission for final action.
8. AMENDMENT TO CITY OF BANNING’S FISCAL YEAR 2022/23 SHORT RANGE TRANSIT
PLAN
Eric DeHate, Transit Manager, presented the amendment to the city of Banning’s
Fiscal Year 2022/23 Short Range Transit Plan (SRTP), highlighting the following areas:
• Background information
FY 2022/23 SRTP State Transit Assistance (STA) Bus Replacement Request
$550,000 original request
Two buses and two relief vehicles
STA is typically for capital purposes
• City staff began the pursuing its replacement
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Supply chain issues, chassis availability, and increases in procurement lead
times
• City is requesting is requesting to advance $550,000 for another bus purchase in
FY 2022/23
Commissioner Jeff Hewitt stated this is a lot of what they are running into with replacing
fire engines and stuff like that as the lead time is getting longer especially on these
specialized vehicles like a bus and he clarified they need the money up front to even get
going in the procurement system so they are thinking ahead so that they will not have
any delays for this next one.
Eric DeHate replied that is correct. He stated there are a lot of the operators starting to
run into these same issues and they have to provide some money up front just to get into
the queue to be able to purchase a vehicle.
Commissioner Hewitt stated unless there are other questions he will make that motion
for all three items, 6A, “Approval of Minutes – August 22, 2022”, Agenda Item 7,
“Agreement for Construction Management Services, Materials Testing, and Construction
Surveying for the Interstate 15 SMART Freeway Improvements Project”, and Agenda Item
8, “Amendment to City of Banning’s Fiscal Year 2022/23 Short Range Transit Plan”.
M/S/C (Hewitt/Vargas) to:
1) Approve a $550,000 increase in the Fiscal Year 2022/23 State Transit
Assistance (STA) funding allocation for the city of Banning (City);
2) Amend the City’s FY 2022/23 Short Range Transit Plan (SRTP) to increase
the STA allocation in the amount of $550,000 for Project No. 23-01 “Bus
Replacement;” and
3) Forward to the Commission for final action.
9. EXECUTIVE DIRECTOR REPORT
Aaron Hake announced:
• There was a full 55-hour closure of State Route 91 over the weekend in the
eastbound direction for the 91 Refresh Project. RCTC’s crews did an outstanding
job and finished the job 13 hours ahead of schedule. He thanked the public as
well as the crews as RCTC is aware these closures are not convenient to the public.
This one had greater impacts on Corona residents due to the closure being further
west then the previous two closures. He noted that David Thomas, Toll Project
Delivery Director, and himself were out there observing the situation and David
Thomas was in contact with the Corona Traffic Operations Center throughout the
weekend to make adjustments as needed. He also thanked the city of Corona
team for their help throughout the weekend. There are no additional eastbound
91 full weekend closures planned at this point, but they will have some westbound
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work coming up so stay tuned for that in November and December 2022 and in
January 2023 RCTC will need a westbound closure to take the false work down
from the 15/91 connector. Staff will keep the Commissioners and the public
informed.
Commissioner Wes Speake stated this was particularly hard as there were some
issues that did not get communicated very well. One was that the Lincoln Bridge
was going to be closed as he could not find that information at any location. Also,
Orange County Transportation Authority (OCTA) was doing maintenance with the
toll lanes going into the westbound direction and it created all kinds of havoc. He
suggested to coordinate between the two and if they have other closures that are
off the freeway that RCTC communicate them very clearly. He expressed they had
people that were stuck and then there was work going on at First Street in Norco.
He is aware they do not control anyone else’s closures and is concerned there are
three more closures, but he understands why. RCTC needs to do a better job of
catching what everybody else’s closures are at the time so they can tell people.
The traveling public has been resilient in managing how to get around, but this
made it a little harder. He reiterated the soonest they get those closure dates and
try to communicate them the better and they need to find a way to make it as
least impactful as possible.
10. COMMISSIONER COMMENTS
10A. Commissioner Hewitt reported that they had a meeting last week down in Corona
with Congressman Ken Calvert and Congressman Bruce Westerman, Aaron Hake
and Commissioner Speake were also there. They had some good conversations,
they are aware of Riverside County’s needs, and they had retired Major General
R. Mark Toy that was head of the Los Angeles U.S. Army Corps of Engineers, and
it was a very interesting meeting because it was going over all the licensing. They
had heard some good information from Commissioner Speake and Dr. Rand who
are in the business of these type of reports and hopefully they will see some things
going forward. He noted a lot of these things they are going to have funds for, but
it is just gummed up in bureaucracy so they will be reaching out to the
Commissioners for supportive letters as they go on and get some of these specific
projects that need Commissioner’s help.
Commissioner Speake expressed that Vice Chair Bob Magee did an exceptional job
of highlighting the challenges and the things that are needed to help this agency,
so he did this agency quite well.
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11. ADJOURNMENT
There being no further business for consideration by the Western Riverside County
Programs and Projects Committee, the meeting was adjourned at 1:49 p.m.
Respectfully submitted,
Lisa Mobley
Administrative Services Director/
Clerk of the Board
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AGENDA ITEM 7
Agenda Item 7
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: November 28, 2022
TO: Western Riverside County Programs and Projects Committee
FROM: David Lewis, Capital Projects Manager
THROUGH: Erik Galloway, Project Delivery Director
SUBJECT: Agreements for On-Call Environmental Consulting Services
STAFF RECOMMENDATION:
This item is for the Committee to recommend the Commission to take the following action(s):
1) Award the following agreements to provide on-call environmental consulting services for
a three-year term, and one, two-year option to extend the agreements, in an amount not
to exceed an aggregate value of $3,000,000;
a) Agreement No. 22-31-092-00 to GPA Consulting;
b) Agreement No. 22-31-103-00 to HNTB Corporation;
c) Agreement No. 22-31-104-00 to ICF Jones & Stokes, Inc.; and
d) Agreement No. 22-31-105-00 to Stantec Consulting Services, Inc.;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreements, including option years, on behalf of the Commission; and
3) Authorize the Executive Director, or designee, to execute task orders awarded to the
consultants under the terms of the agreements.
BACKGROUND INFORMATION:
The Commission requires comprehensive on-call consulting services related to various
environmental and archaeological services. These services include, but are not limited to,
coordination with resources agencies, Caltrans and local jurisdictions; review of National
Environmental Policy Act and California Environmental Quality Act documents; permitting
preparation; monitoring and documentation of environmental commitments; and support of the
Western Riverside County Multi-Species Habitat Conservation Plan projects.
While the Commission typically has most of the environmental-related consulting services
described above accomplished through contracts for the preliminary engineering/environmental
phase of a project, there are occasions in which these services will be needed outside the
environmental phase. Examples of this include the need for permitting prior to construction,
construction monitoring, or mitigation.
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Agenda Item 7
The purpose of this procurement is to provide the Commission with these comprehensive on-call
professional environmental consulting services for a variety of Commission capital projects with
Caltrans, Federal Highway Administration, and/or Federal Transit Administration funding
projects.
In November 2018, the Commission approved similar contracts with three firms for up to
five-year terms; these contracts have been used successfully to deliver projects and react to new
and changing conditions rapidly. The total authorized amount on those contracts was
$1.5 million, of which $1.5 million was expended.
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
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. 22-31-092-00 for on-call environmental consulting services was released by staff on
June 2, 2022. The RFQ was posted on the Commission’s Planet Bids website, which is accessible
through the Commission’s website. Through Planet Bids, 81 firms downloaded the RFQ; 9 of
these firms are located in Riverside County. A pre-submittal meeting was held on June 21, 2022
and attended by 10 firms. Staff responded to all questions submitted by potential proposers
prior to the July 1, 2022, clarification deadline. Six firms – GPA Consulting (El Segundo);
HNTB Corporation (Ontario); ICF Jones & Stokes, Inc. (Irvine); Jennings Environmental, LLC
(Yucaipa); Stantec Consulting Services, Inc. (Los Angeles); and UltraSystems Environmental, Inc.
(Irvine) – submitted responsive and responsible statements of qualifications prior to the
2:00 p.m. submittal deadline on July 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,
Caltrans and Bechtel staff.
As a result of the evaluation committee’s assessment of the written statements of qualifications,
the evaluation committee determined four firms – GPA Consulting, HNTB Corporation, ICF Jones
& Stokes, and Stantec Consulting Services, Inc. – to be the most qualified firms to provide on-call
environmental consulting services. The evaluation committee recommends contracts for these
four firms for a three-year term, and one, two-year option to extend the agreements, in the
aggregate amount of $3,000,000, 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
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Agenda Item 7
information contained in their proposals and/or competitive fee proposals for the specific tasks.
Services will be provided through the Commission’s issuance of contract task orders to the
consultants on an as-needed basis.
The Commission’s model on-call professional services agreement will be entered into with each
consultant firm, subject to any changes approved by the Executive Director, pursuant to legal
counsel review. Staff oversight of the contracts and task orders will maximize the effectiveness
of the consultants and minimize costs to the Commission.
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: Yes Year: FY 2022/23
FY 2023/24+ Amount: $300,000
$2,700,000
Source of Funds: Measure A and various local, state, and
federal sources. Budget Adjustment: No
GL/Project Accounting No.: 00623999 65520 00000 0000 262 31 65520
00654199 65520 00000 0000 265 33 65520
Fiscal Procedures Approved:
Date: 11/09/2022
Attachments:
1) Draft On-Call Professional Services Agreement No. 22-31-092-00 with GPA Consulting
2) Draft On-Call Professional Services Agreement No. 22-31-103-00 with HNTB Corporation
3) Draft On-Call Professional Services Agreement No. 22-31-104-00 with ICF Jones & Stokes
4) Draft On-Call Professional Services Agreement No. 22-31-105-00 with Stantec Consulting
Services
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Agreement No. 22-31-092-00
PROFESSIONAL SERVICES AGREEMENT
WITH PROPOSITION 1B, FTA AND FHWA FUNDING ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
GPA CONSULTING
FOR ON-CALL ENVIRONMENTAL CONSULTING 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 GPA CONSULTING ("Consultant"), S-Corporation. The Commission
and Consultant are sometimes referred to herein individually as “Party”, and collectively as
the “Parties”.
Recitals.
A.On November 8, 1988 the Voters of Riverside County approved Measure A
authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax (the
"tax") to fund transportation programs and improvements within the County of Riverside,
and adopting the Riverside County Transportation Improvement Plan (the "Plan").
B.Pursuant to Public Utility Code Sections 240000 et seq., the Commission is
authorized to allocate the proceeds of the Tax in furtherance of the Plan.
C.On November 5, 2002, the voters of Riverside County approved an extension
of the Measure A tax for an additional thirty (30) years for the continued funding of
transportation and improvements within the County of Riverside.
D.A source of funding for payment for on-call professional 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 environmental consulting 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.
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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 environmental consulting 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 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.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
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
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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 on the date first set forth above,
contingent upon approval by Commission, and Consultant shall commence work after
notification to proceed by Commission’s Contract Administrator. This Agreement shall end
three years from the date set forth above, unless extended by contract amendment. The
Commission shall have the option to extend the term for one, two-year option. In no case
shall the term of this Agreement exceed five (5) years. All Task Order work should be
completed within the term.
5.2 Consultant is advised that any recommendation for contract award is
not binding on Commission until this Agreement is fully executed and approved by the
Commission.
5.3 This Agreement shall remain in effect until the date set forth above,
unless earlier terminated as provided herein. Consultant shall complete the Services
within the term of this Agreement, and shall meet any other established schedules and
deadlines. All applicable indemnification provisions of this Agreement shall remain in
effect following the termination of this Agreement.
6. Commission's Contract Administrator. The Commission hereby designates
the Commission's Executive Director, or his or her designee, to act as its Contract
Administrator for the performance of this Agreement ("Commission’s Contract
Administrator"). Commission’s Contract Administrator shall have the authority to act on
behalf of the Commission for all purposes under this Agreement. Commission’s Contract
Administrator shall also review and give approval, as needed, to the details of Consultant's
work as it progresses. Consultant shall not accept direction or orders from any person
other than the Commission’s Contract Administrator or his or her designee.
7. Consultant's Representative. Consultant hereby designates Richard Galvin
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
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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: Laura Comstock, Richard Galvin, Ryan Todaro,
Jennifer Johnson, and Jenna Kachour, or as otherwise identified in the Task Order.
9. Standard of Care; Licenses. Consultant represents and maintains that it is
skilled in the professional calling necessary to perform all Services, duties and obligations
required by this Agreement to fully and adequately complete the Project. Consultant shall
perform the Services and duties in conformance to and consistent with the standards
generally recognized as being employed by professionals in the same discipline in the
State of California. Consultant warrants that all employees and subcontractors shall have
sufficient skill and experience to perform the Services assigned to them. Consultant further
represents and warrants to the Commission that its employees and subcontractors have all
licenses, permits, qualifications and approvals of whatever nature that are legally required
to perform the Services, and that such licenses and approvals shall be maintained
throughout the term of this Agreement. Consultant shall perform, at its own cost and
expense and without reimbursement from the Commission, any services necessary to
correct errors or omissions which are caused by the Consultant’s failure to comply with the
standard of care provided for herein, and shall be fully responsible to the Commission for
all damages and other liabilities provided for in the indemnification provisions of this
Agreement arising from the Consultant’s errors and omissions. Any employee of
Consultant or its sub-consultants who is determined by the Commission to be
uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a
threat to the safety of persons or property, or any employee who fails or refuses to perform
the Services in a manner acceptable to the Commission, shall be promptly removed from
the Project by the Consultant and shall not be re-employed to perform any of the Services
or to work on the Project.
10. Independent Contractor. The Services shall be performed by Consultant or
under its supervision. Consultant will determine the means, methods and details of
performing the Services subject to the requirements of this Agreement. Commission
retains Consultant on an independent contractor basis and not as an employee, agent or
representative of the Commission. Consultant retains the right to perform similar or
different services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Consultant shall at all times be
under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries
and other amounts due such personnel in connection with their performance of Services
and as required by law. Consultant shall be responsible for all reports and obligations
respecting such personnel, including but not limited to, social security taxes, income tax
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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. 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 expeditiously, within the term of this
Agreement, and in accordance with any schedule of Services set forth in a Task Order
(“Schedule”). Consultant represents that it has the professional and technical personnel to
perform the Services in conformance with such conditions. In order to facilitate
Consultant's conformance with the Schedule, the Commission shall respond to Consultant's
submittals in a timely manner. Upon request of Commission’s Contract Administrator,
Consultant shall provide a more detailed schedule of anticipated performance to meet the
Schedule of Services.
11.1 Modification of the Schedule. Consultant shall regularly report to the
Commission, through correspondence or progress reports, its progress in providing
required Services within the scheduled time periods. Commission shall be promptly
informed of all anticipated delays. In the event that Consultant determines that a schedule
modification is necessary, Consultant shall promptly submit a revised Schedule of Services
for approval by Commission’s Contract Administrator.
11.2 Trend Meetings. Consultant shall conduct trend meetings with the
Commission’s Contract Administrator and other interested parties, as requested by the
Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a
standard day and time. These trend meetings will encompass focused and informal
discussions concerning scope, schedule, and current progress of Services, relevant cost
issues, and future Project objectives. Consultant shall be responsible for the preparation
and distribution of meeting agendas to be received by the Commission and other
attendees no later than three (3) working days prior to the meeting.
11.3 Progress Reports. As part of its monthly invoice, Consultant shall
submit a progress report, in a form determined by the Commission, which will indicate the
progress achieved during the previous month in relation to the Schedule of Services.
Submission of such progress report by Consultant shall be a condition precedent to receipt
of payment from the Commission for each monthly invoice submitted.
12. Delay in Performance.
12.1 Excusable Delays. Should Consultant be delayed or prevented from
the timely performance of any act or Services required by the terms of the Agreement by
reason of acts of God or of the public enemy, acts or omissions of the Commission or
other governmental agencies in either their sovereign or contractual capacities, fires,
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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 timely notice shall constitute a
waiver by Consultant of any right to an excusable delay in time of performance.
12.3 Mutual Agreement. Performance of any Services under this
Agreement may be delayed upon mutual agreement of the Parties. Upon such
agreement, Consultant's Schedule of Services shall be extended as necessary by the
Commission. Consultant shall take all reasonable steps to minimize delay in completion,
and additional costs, resulting from any such extension.
13. Preliminary Review of Work. All reports, working papers, and similar work
products prepared for submission in the course of providing Services under this Agreement
shall be submitted to the Commission’s Contract Administrator in draft form, and the
Commission may require revisions of such drafts prior to formal submission and approval.
In the event plans and designs are to be developed as part of the Project, final detailed
plans and designs shall be contingent upon obtaining environmental clearance as may be
required in connection with Federal funding. In the event that Commission’s Contract
Administrator, in his or her sole discretion, determines the formally submitted work product
to be not in accordance with the standard of care established under this Agreement,
Commission’s Contract Administrator may require Consultant to revise and resubmit the
work at no cost to the Commission.
14. Appearance at Hearings. If and when required by the Commission,
Consultant shall render assistance at public hearings or other meetings related to the
Project or necessary to the performance of the Services. However, Consultant shall not be
required to, and will not, render any decision, interpretation or recommendation regarding
questions of a legal nature or which may be construed as constituting a legal opinion.
15. Opportunity to Cure; Inspection of Work. Commission may provide
Consultant an opportunity to cure, at Consultant's expense, all errors and omissions 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.
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
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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 personnel services under this
Agreement.
16.3 Services of the Consultant’s personnel and other support staff in
connection with Contractor claims will be performed pursuant to a written contract
amendment, if necessary, extending the termination date of this Agreement in order to
finally resolve the claims.
16.4 Nothing contained in this Section shall be construed to in any way limit
Consultant’s indemnification obligations contained in Section 29. In the case of any
conflict between this Section and Section 29, Section 29 shall govern. This Section is not
intended to obligate the Commission to reimburse Consultant for time spent by its
personnel related to Contractor claims for which Consultant is required to indemnify and
defend the Commission pursuant to Section 29 of this Agreement.
17. Final Acceptance. Upon determination by the Commission that Consultant
has satisfactorily completed the Services required under this Agreement and within the
term set forth herein the Commission shall give Consultant a written Notice of Final
Acceptance. Upon receipt of such notice, Consultant shall incur no further costs
hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may
request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily
completed all Services required under the terms of this Agreement. In the event copyrights
are permitted under this Agreement, then in connection with Federal funding, it is hereby
acknowledged and agreed that the United States Department of Transportation shall have
the royalty-free non-exclusive and irrevocable right to reproduce, publish, or otherwise use,
and to authorize others to use, the work for governmental purposes.
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
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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 this Agreement will be based on actual
cost plus a fixed fee. Commission shall reimburse Consultant for actual costs (including
labor costs, employee benefits, travel, equipment rental costs, overhead and other direct
costs) incurred by Consultant in performance of the Services. Consultant shall not be
reimbursed for actual costs that exceed the estimated wage rates, employee benefits,
travel, equipment rental, overhead, and other estimated costs set forth in the approved
Consultant cost proposal attached hereto as Exhibit “B” and incorporated herein by
reference, or any cost proposal included as part of a Task Order (“Cost Proposal”) unless
additional reimbursement is provided for by written amendment. The overhead rates
included in the attached Exhibit “B” shall be fixed for the term of the Master Agreement,
and shall not be subject to adjustment, unless required by the applicable funding source.
In In no event, shall Consultant be reimbursed for overhead costs at a rate that exceeds
Commission’s approved overhead rate set forth in the Cost Proposal. In the event that
Commission determines that a change to the Services from that specified in the Cost
Proposal, this Agreement or any Task Order is required, the Agreement time or actual
costs reimbursable by Commission shall be adjusted by written amendment to
accommodate the changed work. The maximum total cost as specified in Section 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
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
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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 approval of any Services, nor for
any Services performed prior to approval of this Agreement.
19.7 Consultant shall be reimbursed, as promptly as fiscal procedures will
permit upon receipt by Commission’s Contract Administrator of itemized invoices in
triplicate. Invoices shall be submitted no later than 45 calendar days after the performance
of work for which Consultant is billing. Invoices shall detail the work performed on each
milestone and each project as applicable. Invoices shall follow the format stipulated for the
approved Cost Proposal and shall reference this Agreement number and project title. Final
invoice must contain the final cost and all credits due Commission including any
equipment purchased under the Equipment Purchase provisions of this Agreement. The
final invoice should be submitted within 60 calendar days after completion of Consultant’s
work. Invoices shall be mailed to Commission’s Contract Administrator at the following
address:
Riverside County Transportation Commission
Attention: Accounts Payable
P.O. 12008
Riverside, CA 92502
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 Commission has or will enter into four (4) task order contracts for
performance of the Scope of Services identified in Exhibit “A”, including this Agreement
(“Environmental Services Task Order Contracts”). The other Environmental Services Task
Order Contracts are HNTB Corporation, ICF Jones & Stokes, Inc., and Stantec Consulting
Services, Inc. The total amount payable by Commission for the Environmental Services
Task Order Contracts shall not exceed a cumulative maximum total value of Three Million
Dollars ($3,000,000) (“NTE Sum”). It is understood and agreed that there is no guarantee,
either expressed or implied that this dollar amount will be authorized under the
Environmental Services Task Order Contracts through Task Orders. Each time a Task
Order is awarded under any of the Environmental Services Task Order Contracts,
Commission must send written notification to Consultant and each of the other consultants
entering into the Environmental Services Task Order Contracts. The notice must identify
the total funds allocated under issued Task Orders, and the remaining unencumbered
amount of the NTE Sum. Consultant acknowledges and agrees that Commission must not
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pay any amount under this Agreement that would exceed the NTE Sum, and Consultant
must not enter into a Task Order that exceeds the NTE Sum.
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 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 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.
21.1 Commission reserves the right to terminate this Agreement upon thirty
(30) calendar days written notice to Consultant, for any or no reason, with the reasons for
termination stated in the notice. Commission may terminate Services under a Task Order,
at any time, for any or no reason, with the effective date of termination to be specified in
the notice of termination of Task Order.
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
Services in any manner deemed proper by Commission. If Commission terminates this
Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant
under this Agreement for Services completed and accepted prior to termination, unless the
cost of completion to Commission exceeds the funds remaining in the Agreement. In such
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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.
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
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 allowability of individual items.
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.
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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,
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 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.
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)
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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.
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 “B” may set forth the rates at which each subconsultant shall
bill the Consultant for Services and that are subject to reimbursement by the Commission
to Consultant. Additional Direct Costs, as defined in Exhibit “B” shall be the same for both
the Consultant and all subconsultants, unless otherwise identified in Exhibit “B” or in a
Task Order. The subconsultant rate schedules and cost proposals contained herein are for
accounting purposes only.
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 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
the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s
Contract Administrator is required. Three competitive quotations must be submitted with
the request for such purchase, or the absence of bidding must be adequately justified.
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
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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.
26.4 All subcontracts in excess $25,000 shall contain the above provisions.
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 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 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. Since the Services are being performed as part of
an applicable “public works” or “maintenance” project, then pursuant to Labor Code
Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered
with the Department of Industrial Relations. Consultant shall maintain registration for the
duration of the Project and require the same of any subconsultants. This Project may also
be subject to compliance monitoring and enforcement by the Department of Industrial
Relations. It shall be Consultant’s sole responsibility to comply with all applicable
registration and labor compliance requirements.
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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 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 the Services, Consultant and any
subcontractor hereunder who employs workers in any apprenticeable craft or trade shall
apply to the joint apprenticeship council administering applicable standards for a certificate
approving Consultant or any sub-consultant for the employment and training of apprentices.
Upon issuance of this certificate, Consultant and any sub-consultant shall employ the
number of apprentices provided for therein, as well as contribute to the fund to administer
the apprenticeship program in each craft or trade in the area of the work hereunder.
The parties expressly understand that the responsibility for compliance with
provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California
Labor Code in regard to all apprenticeable occupations lies with Consultant
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, 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”).
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Consultant shall require all subcontractors to agree in writing that
Commission is granted an exclusive and perpetual license for any Documents & Data the
subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal right
to grant the exclusive and perpetual license for all such Documents & Data. Consultant
makes no such representation and warranty in regard to Documents & Data which were
prepared by design professionals other than Consultant or provided to Consultant by the
Commission.
Commission shall not be limited in any way in its use of the Documents
& Data at any time, provided that any such use not within the purposes intended by this
Agreement shall be at Commission’s sole risk.
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 this Agreement.
The Commission shall have and retain all right, title and interest in
Intellectual Property developed or modified under this Agreement whether or not paid for
wholly or in part by Commission, whether or not developed in conjunction with Consultant,
and whether or not developed by Consultant. Consultant will execute separate written
assignments of any and all rights to the above referenced Intellectual Property upon
request of Commission.
Consultant shall also be responsible to obtain in writing separate
written assignments from any subcontractors or agents of Consultant of any and all right to
the above referenced Intellectual Property. Should Consultant, either during or following
termination of this Agreement, desire to use any of the above-referenced Intellectual
Property, it shall first obtain the written approval of the Commission.
All materials and documents which were developed or prepared by the
Consultant for general use prior to the execution of this Agreement and which are not the
copyright of any other party or publicly available and any other computer applications, shall
continue to be the property of the Consultant. However, unless otherwise identified and
stated prior to execution of this Agreement, Consultant represents and warrants that it has
the right to grant the exclusive and perpetual license for all such Intellectual Property as
provided herein.
Commission further is granted by Consultant a non-exclusive and
perpetual license to copy, use, modify or sub-license any and all Intellectual Property
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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, 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 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 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 shall reimburse Commission, Caltrans and their directors, officials,
officers, employees, consultants, agents, and/or volunteers, for any and all legal expenses
and costs, including reasonable attorney’s fees, incurred by each of them in connection
therewith or in enforcing the indemnity herein provided. Consultant's obligation to
indemnify shall not be restricted to insurance proceeds, if any, received by Commission,
Caltrans, their directors, officials officers, employees, consultants, agents, or volunteers.
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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, 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
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 shall reimburse Commission,
Caltrans and their directors, officials, officers, employees, consultants, agents, and/or
volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees,
incurred by each of them in connection therewith or in enforcing the indemnity herein
provided. Consultant's obligation to indemnify shall not be restricted to insurance
proceeds, if any, received by Commission, Caltrans or their directors, officials officers,
employees, consultants, agents, or volunteers. Notwithstanding the foregoing, to the extent
Consultant’s Services are subject to Civil Code Section 2782.8, the above indemnity shall
be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of,
pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
Consultant’s obligations as set forth in this Section 29 shall survive expiration or
termination of this Agreement.
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31. Insurance.
31.1 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.
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,
code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation insurance as required by the State of California and
Employer’s Liability Insurance.
(b) Minimum Limits of Insurance. Consultant shall maintain limits
no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form with
general aggregate limit is used, either the general aggregate limit shall apply separately to
this Agreement/location or the general aggregate limit shall be twice the required
occurrence limit. Limits may be achieved by any combination of primary and excess or
umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily
injury and property damage. Limits may be achieved by any combination of primary and
excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation limits as required by the Labor Code of the State of
California. Employer’s Practices Liability limits of $1,000,000 per accident.
31.3 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
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shall obtain such insurance in an amount not less than $2,000,000 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.
31.4 Aircraft Liability Insurance. Prior to conducting any Services requiring
use of aircraft, Consultant shall procure and maintain, or cause to be procured and
maintained, aircraft liability insurance or equivalent form, with a single limit as shall be
required by the Commission. Such insurance shall include coverage for owned, hired and
non-owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, Caltrans and their directors, officials, officers, employees and agents as
additional insureds with respect to the Services or operations performed by or on behalf of
the Consultant.
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:
(a) General Liability.
(i) Commercial General Liability Insurance must include
coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury;
(3) premises/operations liability; (4) products/completed operations liability; (5) aggregate
limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion
deleted; (7) contractual liability with respect to this Agreement; (8) broad form property
damage; and (9) independent consultants coverage.
(ii) The policy shall contain no endorsements or provisions
limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by
one insured against another; or (3) contain any other exclusion contrary to this Agreement.
(iii) The policy shall give the Commission, its directors,
officials, officers, employees, and agents insured status using ISO endorsement forms 20
10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the policy shall be
“primary and non-contributory” and will not seek contribution from the Commission’s or
Caltrans’ insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or
endorsements providing the exact same coverage.
(b) Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) the Commission, Caltrans and their directors, officials, officers,
employees and agents shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned, leased,
hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the
insurance coverage shall be primary insurance as respects the Commission, Caltrans and
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their directors, officials, officers, employees and agents, or if excess, shall stand in an
unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage.
Any insurance or self-insurance maintained by the Commission, Caltrans and their
directors, officials, officers, employees and agents shall be excess of the Consultant’s
insurance and shall not be called upon to contribute with it in any way.
(c) Workers’ Compensation and Employers Liability Coverage.
(i) Consultant certifies that he/she is aware of the provisions
of Section 3700 of the California Labor Code which requires every employer to be insured
against liability for workers’ compensation or to undertake self-insurance in accordance with
the provisions of that code, and he/she will comply with such provisions before
commencing work under this Agreement.
(ii) The insurer shall agree to waive all rights of subrogation
against the Commission, its directors, officials, officers, employees and agents for losses
paid under the terms of the insurance policy which arise from work performed by the
Consultant.
(d) All Coverages.
(i) Defense costs shall be payable in addition to the limits
set forth hereunder.
(ii) Requirements of specific coverage or limits contained in
this Section are not intended as a limitation on coverage, limits, or other requirement, or a
waiver of any coverage normally provided by any insurance. It shall be a requirement
under this Agreement that any available insurance proceeds broader than or in excess of
the specified minimum insurance coverage requirements and/or limits set forth herein shall
be available to the Commission, Caltrans and their directors, officials, officers, employees
and agents as additional insureds under said policies. Furthermore, the requirements for
coverage and limits shall be (1) the minimum coverage and limits specified in this
Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance
policy or proceeds available to the named insured; whichever is greater.
(iii) The limits of insurance required in this Agreement may
be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or
excess insurance shall contain or be endorsed to contain a provision that such coverage
shall also apply on a primary and non-contributory basis for the benefit of the Commission
(if agreed to in a written contract or agreement) before the Commission’s own insurance or
self-insurance shall be called upon to protect it as a named insured. The umbrella/excess
policy shall be provided on a “following form” basis with coverage at least as broad as
provided on the underlying policy(ies).
(iv) Consultant shall provide the Commission at least thirty
(30) days prior written notice of cancellation of any policy required by this Agreement,
except that the Consultant shall provide at least ten (10) days prior written notice of
cancellation of any such policy due to non-payment of premium. If any of the required
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coverage is cancelled or expires during the term of this Agreement, the Consultant shall
deliver renewal certificate(s) including the General Liability Additional Insured Endorsement
to the Commission at least ten (10) days prior to the effective date of cancellation or
expiration.
(v) The retroactive date (if any) of each policy is to be no
later than the effective date of this Agreement. Consultant shall maintain such coverage
continuously for a period of at least three years after the completion of the work under this
Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the
retroactive date is advanced past the effective date of this Agreement; B) if the policy is
cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with
a retroactive date subsequent to the effective date of this Agreement.
(vi) The foregoing requirements as to the types and limits of
insurance coverage to be maintained by Consultant, and any approval of said insurance by
the Commission, is not intended to and shall not in any manner limit or qualify the liabilities
and obligations otherwise assumed by the Consultant pursuant to this Agreement, including
but not limited to, the provisions concerning indemnification.
(vii) If at any time during the life of the Agreement, any policy
of insurance required under this Agreement does not comply with these specifications or is
canceled and not replaced, Commission has the right but not the duty to obtain the
insurance it deems necessary and any premium paid by Commission will be promptly
reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium
from Consultant payments. In the alternative, Commission may cancel this Agreement.
The Commission may require the Consultant to provide complete copies of all insurance
policies in effect for the duration of the Project.
(viii) Neither the Commission nor any of its directors, officials,
officers, employees or agents shall be personally responsible for any liability arising under
or by virtue of this Agreement.
31.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the Commission. If the
Commission does not approve the deductibles or self-insured retentions as presented,
Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer
shall reduce or eliminate such deductibles or self-insured retentions as respects the
Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant
shall procure a bond guaranteeing payment of losses and related investigation costs,
claims and administrative and defense expense.
31.7 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.
31.8 Verification of Coverage. Consultant shall furnish Commission with
original certificates of insurance and endorsements effecting coverage required by this
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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.
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
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 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.
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.
33. 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,
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other than a Cardinal Change. For purposes of this Agreement, a Cardinal Change is a
change which is “outside the scope” of the Agreement; in other words, work which should
not be regarded as having been fairly and reasonably within the contemplation of the
parties when the Agreement was entered into. An example of a change which is not a
Cardinal Change would be where, in a contract to construct a building there are many
changes in the materials used, but the size and layout of the building remains the same.
Cardinal Changes are not within the authority of this provision to order, and shall be
processed by the Commission as “sole source” procurements according to applicable law,
including the requirements of FTA Circular 4220.1D, paragraph 9(f).
(a) In addition to the changes authorized above, a
modification which is signed by Consultant and the Commission’s Executive Director, other
than a Cardinal Change, may be made in order to: (1) make a negotiated equitable
adjustment to the Agreement price, delivery schedule and other terms resulting from the
issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other
agreements of the parties modifying the terms of this Agreement (“Bilateral Contract
Modification”).
(b) Consultant shall not perform, nor be compensated for any
change, without written authorization from the Commission’s Executive Director as set forth
herein. In the event such a change authorization is not issued and signed by the
Commission’s Executive Director, Consultant shall not provide such change.
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 Commission shall have the right
to rescind this Agreement without liability.
34.2 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.
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(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 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.
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, 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.
34.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant
warrants that this Agreement was not obtained or secured through rebates kickbacks or
other unlawful consideration, either promised or paid to any Commission employee. For
breach or violation of this warranty, Commission shall have the right in its discretion; to
terminate this Agreement without liability; to pay only for the value of the work actually
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performed; or to deduct from the Agreement price; or otherwise recover the full amount of
such rebate, kickback or other unlawful consideration.
34.7 Covenant Against Expenditure of Commission, State or Federal
Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and
belief no state, federal or local agency appropriated funds have been paid, or will be paid
by or on behalf of the Consultant to any person for the purpose of influencing or attempting
to influence an officer or employee of any state or federal agency; a Member of the State
Legislature or United States Congress; an officer or employee of the Legislature or
Congress; or any employee of a Member of the Legislature or Congress, in connection
with the award of any state or federal contract, grant, loan, or cooperative agreement, or
the extension, continuation, renewal, amendment, or modification of any state or federal
contract, grant, loan, or cooperative agreement.
(a) If any funds other than federal appropriated funds have been
paid, or will be paid to any person for the purpose of influencing or attempting to influence
an officer or employee of any federal agency; a Member of Congress; an officer or
employee of Congress, or an employee of a Member of Congress; in connection with this
Agreement, the Consultant shall complete and submit the attached Exhibit "G", 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 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 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.
35. 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.
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36. Right to Employ Other Consultants. Commission reserves the right to employ
other consultants in connection with the Project.
37. Governing Law. This Agreement shall be governed by and construed with the
laws of the State of California. Venue shall be in Riverside County.
38. Disputes; Attorneys' Fees.
38.1 Prior to commencing any action hereunder, the Parties shall attempt
in good faith to resolve any dispute arising between them. The pendency of a dispute
shall not excuse Consultant from full and timely performance of the Services.
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.
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: COMMISSION:
GPA Consulting Riverside County
Transportation Commission
840 Apollo Street, Suite 312 4080 Lemon Street, 3rd Floor
El Segundo, CA 90245 Riverside, CA 92501
Attn: Richard Galvin 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
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Parties and the interpretation of the Parties' understanding concerning the performance of
the Services.
43. Amendment or Modification. No supplement, modification, or amendment of
this Agreement shall be binding unless 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
“C” (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
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’ 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.
50. Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original.
51. Attorney Client Privilege. The Parties recognize that, during the Project, the
Commission and its attorneys will engage in communication that gives rise to an attorney
client privilege of confidentiality (“Confidential Communication”). Given the nature of the
work done by Consultant for the Commission, it may be necessary for the Consultant to
participate in Confidential Communications. To the extent that (i) the Consultant is a party
to any Confidential Communication, and (ii) a third party seeks discovery of such
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communications, then the Consultant shall be deemed to be an agent of the Commission
solely for purposes of preserving any attorney client privilege in the relevant Confidential
Communication. Any such attorney client privilege shall be held by the Commission and
the Consultant is not authorized to waive that privilege or, otherwise, disclose such
Confidential Communication except as set forth below. This Section is intended to maintain
the privilege in any privileged Confidential Communications that are (1) between and
among Commission, Consultant, and Commission’s attorneys; (2) between Consultant (on
behalf of the Commission) and 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
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.
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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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SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH PROPOSITION 1B, FTA AND FHWA FUNDING ASSISTANCE FOR
ENVIRONMENTAL CONSULTING SERVICES
IN WITNESS WHEREOF, this Agreement was executed on the date first written
above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
Anne Mayer
Approved as to Form:
By:
Best, Best & Krieger LLP
General Counsel
CONSULTANT
GPA CONSULTING
By:
Signature
Name
Title
ATTEST:
By:
Its: ___________________________
* A corporation requires the signatures of two corporate officers.
One signature shall be that of the chairman of board, the president or any vice president and the second
signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or
any assistant treasurer of such corporation.
If the above persons are not the intended signators, evidence of signature authority shall be provided to
RCTC.
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Exhibit A
17336.00603\31171937.1
EXHIBIT "A" - SCOPE OF SERVICES
ON-CALL ENVIRONMENTAL CONSULTING
SERVICES
1.0 DESCRIPTION OF WORK
1.1 Consultant Responsibilities shall include, but will not be limited to the
following:
1.1.1 Review and evaluate project-specific environmental documents to
assess current compliance/validity under California Environmental Quality Act (CEQA)
and National Environmental Policy Act (NEPA) due to changes in project design,
environmental requirements, elapsed time, etc. Prepare appropriate written
documentation and supplemental materials (e.g., environmental
revalidation/reevaluation, CEQA addendum, update technical reports and studies, etc.) to
support the assessment.
1.1.2 Review and provide written input on project-specific environmental
documents, technical reports, and studies as requested by Commission staff (e.g., air
quality, water quality, noise, cultural resources, paleontology, biology, MSHCP studies,
and Sections 4[f] and 6[f]).
1.1.3 Permitting services including preparation of permit packages(s) and
submittal to permitting agency(ies); coordination with permitting agency(ies); and
shepherding permits(s) through their respective approval process(es).
1.1.4 Implementing, monitoring, and documenting the progress and
success of environmental commitments during construction and post-construction (e.g.,
environmentally sensitive area [ESA] fencing, permit conditions, habitat restoration,
revegetation, special environmental provisions, etc.).
1.1.5 Support of project compliance with Western Riverside County
Multispecies Habitat Conservation Plan (MSHCP) including preparation of documentation
needed to support consistency determination process.
1.1.6 Coordination with regulatory and resources agencies as needed, on
specific issues.
1.1.7 Other environmental services as requested by Commission staff.
1.1.8 In addition to meeting with and coordinating efforts with Commission
staff, Consultant may also be required to interact with Commission legal counsel, other
consultants, Caltrans, Federal Transit Administration, Federal Highway Administration, et
al.
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Exhibit A
17336.00603\31171937.1
1.1.9 If any legal issues exist during the course of work authorized under
this scope of work, Consultant shall inform Commission. All legal opinions shall be
rendered by Commission’s legal counsel.
1.1.10 If hazardous materials or wastes are discovered during the course of
work authorized under this scope of work, Consultant shall inform Commission and seek
further direction from the Commission.
1.2 Materials to be Furnished by Commission
1.2.1 All software, data, reports, surveys, drawings, and other documents
furnished to the Offeror by Commission for the Offeror’s use in the performance of
services shall be made available only for use in performing the assignment and shall
remain the property of Commission. All such materials shall be returned to Commission
upon completion of services, termination of the agreement, or other such time as
Commission may determine.
1.3 Personnel Qualifications and Responsibilities
1.3.1 The quantity and qualifications of personnel to be assigned will be
determined by the scope of the Task Order request and the degree of difficulty of required
tasks to be performed. All personnel and personnel assignments shall be subject to
approval by Commission.
1.4 Third Party Relationships
1.4.1 This Contract is intended to provide on-call environmental services
for Commission projects. In the development of the Commission projects, Commission
has worked closely with various professional offerors, agencies, and others in the
development of the project documents and other project related materials. Commission,
however, is solely responsible for and will be the sole point of contact for all contractual
matters related to the Task Orders. Offeror shall take direction only from Commission and
shall regularly inform only Commission of Task Order progress, outstanding issues, and
all related matters.
1.4.2 During the course of the contract, Offeror may find occasion to meet
with resource agencies, local jurisdictions, or Caltrans representatives, the design
engineer, or other third parties who have assisted with the various Plan projects. These
entities may, from time to time, offer suggestions and/or recommendations regarding the
Commission project or elements of the project. While the Commission enjoys a close
relationship with and has considerable confidence in the capabilities of these other parties,
Offeror shall not act on any suggestions, solicited or unsolicited, without obtaining specific
direction from Commission. All oral and written communication with outside agencies or
Offerors related to the project shall be directed only to Commission. Distribution of project
related communications and information shall be at the sole discretion of Commission
representatives.
2.0 TASK ORDER PROCEDURES
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Exhibit A
17336.00603\31171937.1
2.1 Definitions
2.1.1 The term Consultant shall refer to the firm or firms that are awarded
the contract for environmental consulting services.
2.1.2 A Task Order is utilized by the parties to establish, outline, and
authorize a particular job or task.
2.2 Initiating Task Orders
2.2.1 The Commission’s project manager will issue Task Orders to the
Consultant.
2.2.2 The Commission’s request for task order submittals. Upon a request
for a Task Order Proposal by the designated Commission project manager, contractor
shall develop a plan and submit a task order proposal for the requested services. The
Task Order shall include a time schedule, number of labor hours, and labor
classification(s) to provide the requested services.
2.3 Review and Award of Task Orders
2.3.1 The Commission’s designated project manager will review the
submitted Task Order (TO) to ensure that the submittal is complete, consistent with the
Commission’s written or oral request for services, the personnel assigned are acceptable,
the schedule is acceptable, that all costs proposed are appropriate, and that the item is in
compliance with contractual requirements. The project manager will award the Task
Order if it is determined to be fair and reasonable. If required, the Commission’s project
manager will conduct negotiations to address exceptions and clarify costs. The fully
executed Task Order will serve as the record of negotiations.
2.4 Completion Schedule
2.4.1 The contractors’ performance of services shall commence under
each Task Order only upon written authorization by the Commission’s designated project
manager.
2.4.2 Contractor shall complete the services within the time frame
specified on a particular Task Order.
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Exhibit B-1
17336.00603\31171937.1
EXHIBIT "B"- COMPENSATION AND PAYMENT
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FIRM PROJECT TASKS/ROLE COST
GPA Consulting On-Call Environmental Consulting Services 3,000,000.00$
Galvin Preservation Associates NEPA/CEQA Lead TBD
Ambient Air Quality & Noise Consulting Noise and Vibration TBD
Cereus Environmental Biology Support TBD
Duke Cultural Resources Management Archaeology and Paleontology TBD
Environmental Review Partners Air Quality, Greenhouse Gas, Climate & Energy
Resources TBD
Geocon West, inc.Geology and Soils TBD
Natural Resources Assessment, Inc.Biology Support TBD
Statistical Resource Incorporated Archaeology and Paleontology TBD
3,000,000.00$ TOTAL COSTS
1 Commission authorization pertains to total contract award amount. Compensation adjustments between consultants may occur; however,
the maximum total compensation authorized may not be exceeded.
EXHIBIT "B"
Prime Consultant:
Sub Consultants:
COMPENSATION SUMMARY1
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Exhibit C-1
17336.00603\31171937.1
EXHIBIT "C"
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 creed, national origin, physical
disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age
(over 40), marital status, and denial of family care leave. Consultant and subconsultants
shall insure that the evaluation and treatment of their employees and applicants for
employment are free from such discrimination and harassment. Consultant and
subconsultants shall comply with the provisions of the Fair Employment and Housing Act
(Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated there under
(California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations
of the Fair Employment and Housing Commission implementing Government Code Section
12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of
Regulations, are incorporated into this Agreement by reference and made a part hereof as
if set forth in full. 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.
C. 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.
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,
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Exhibit C-2
17336.00603\31171937.1
including employment practices when the Agreement covers a program whose goal is
employment.
2. DEBARMENT AND SUSPENSION CERTIFICATION
CONSULTANT’s signature affixed herein, shall constitute a certification under penalty of
perjury under the laws of the State of California, that CONSULTANT has complied with Title
2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and
Suspension (nonprocurement)”, which certifies that he/she or any person associated
therewith in the capacity of owner, partner, director, officer, or manager, is not currently
under suspension, debarment, voluntary exclusion, or determination of ineligibility by any
federal agency; has not been suspended, debarred, voluntarily excluded, or determined
ineligible by any federal agency within the past three (3) years; does not have a proposed
debarment pending; and has not been indicted, convicted, or had a civil judgment rendered
against it by a court of competent jurisdiction in any matter involving fraud or official
misconduct within the past three (3) years. Any exceptions to this certification must be
disclosed to COMMISSION.
B. Exceptions will not necessarily result in denial of recommendation for award, but will be
considered in determining CONSULTANT responsibility. Disclosures must indicate to whom
exceptions apply, initiating agency, and dates of action.
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
The Commission shall not discriminate on the basis of race, color, national origin, or sex in
the award and performance of any DOT-assisted contract or in the implementation of the
Caltrans DBE program or the requirements of 49 CFR Part 26. The Commission shall take
all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in
the award and administration of DOT-assisted contracts.
Consultant or subcontractor shall not discriminate on the basis of race, color, national
origin, of sex in the performance of this Agreement. Consultant or subcontractor shall carry
out applicable requirements of 49 CFR Part 26 and the Caltrans DBE program in the award
and administration of DOT-assisted contracts, as further set forth below. Failure by the
Consultant or subcontractor to carry out these requirements is a material breach of this
Agreement, which may result in the termination of this Agreement or such other remedy, as
the Commission deems appropriate.
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
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Exhibit C-3
17336.00603\31171937.1
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
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 performance, or noncompliance by a
subconsultant. This provision applies to both DBE and non-DBE prime consultants and
subconsultants.
6. LEGAL REMEDIES
In addition to those contract remedies set forth under relevant provisions of California law,
either Party to this Agreement may, where applicable, seek legal redress for violations of
this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the
relevant federal or state statutory provisions governing civil rights violations, and to the
relevant federal and state provisions governing false claims or “whistleblower” actions, as
well as any and all other applicable federal and state provisions of law.
The Consultant shall include a provision to this effect in each of its agreements with its
subcontractors.
7. DBE PARTICIPATION
Caltrans has developed a statewide DBE program pursuant to 49 C.F.R. Part 26. The
requirements and procedures, as applicable, of the Caltrans DBE program are hereby
incorporated by reference into this Agreement. Even if no DBE participation will be
reported, Consultant shall complete Exhibits "D" 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.
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Exhibit C-4
17336.00603\31171937.1
B. This Agreement has established a 17% DBE goal. 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. 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 Agreement shall contain all of the
provisions of this section.
E. A DBE may be terminated only with prior written approval from the Commission and
only for the reasons specified in 49 CFR 26.53(f). Prior to requesting Commission consent
for the termination, the prime consultant must meet the procedural requirements specified
in 49 CFR 26.53(f).
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 8 below.
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Exhibit C-5
17336.00603\31171937.1
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 materials and supplies used on the
Agreement, for negotiating price, determining quality and quantity, ordering the material,
and installing (where applicable) and paying for the material itself. To determine whether a
DBE is performing a commercially useful function, evaluate the amount of work
subcontracted, industry practices; whether the amount the firm is to be paid under the
Agreement is commensurate with the work it is actually performing, and other relevant
factors.
B. A DBE does not perform a commercially useful function if its role is limited to that of
an extra participant in a transaction, Agreement, or project through which funds are passed
in order to obtain the appearance of DBE participation. In determining whether a DBE is
such an extra participant, examine similar transactions, particularly those in which DBEs do
not participate.
C. If a DBE does not perform or exercise responsibility for at least thirty percent of the
total cost of its Agreement with its own work force, or the DBE subcontracts a greater
portion of the work of the Agreement than would be expected on the basis of normal
industry practice for the type of work involved, it will be presumed that it is not performing a
commercially useful function.
10. DBE CERTIFICATION AND DE-CERTIFICATION STATUS
If a DBE subcontractor is decertified 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
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Exhibit C-6
17336.00603\31171937.1
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 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-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
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Exhibit C-7
17336.00603\31171937.1
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 for the total value of the transportation services it provides
on the Agreement using trucks it 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
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Exhibit C-8
17336.00603\31171937.1
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 issued in compliance with the Energy Policy and
Conservation Act (Pub. L. 94-163, 89 Stat. 871).
16. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code Section 10296, and by signing this Agreement,
Consultant certifies under penalty of perjury that no more than one final unappealable
finding of contempt of court by a federal court has been issued against Consultant within
the immediately preceding two-year period, because of Consultant’s failure to comply with
an order of a federal court that orders Consultant to comply with an order of the National
Labor Relations Board.
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Exhibit D-1
17336.00603\31171937.1
EXHIBIT "D"
CONSULTANT DBE COMMITMENT
Consultant to Complete this Section
1. Local Agency Name: _Riverside County Transportation Commission
2. Project Location: _Riverside County___________________________
3. Project Description: On-Call Environmental Consulting Services_____
4. Consultant Name: __________________________________________________________________________________________
5. Contract DBE Goal %: _17%_______________
DBE Commitment Information
6. Description of Services to be Provided 7. DBE Firm
Contact Information 8. DBE Cert.
Number 9. DBE %
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Exhibit E-1
17336.00603\31171937.1
EXHIBIT "E" - FTA PROVISIONS
FTA FUNDING REQUIREMENTS (Non-construction/maintenance work)
As used herein, “RCTC” shall have the same meaning as the “Commission.” The term “contract” or
“Contract” shall have the same meaning as the “Agreement.”
1. No Obligation by the Federal Government
a. RCTC and Consultant acknowledge and agree that, notwithstanding any concurrence by the
Federal Government in or approval of the solicitation or award of the underlying contract, absent the
express written consent by the Federal Government, the Federal Government is not a party to this
contract and shall not be subject to any obligations or liabilities to the Purchaser, Consultant, or any
other party (whether or not a party to that contract) pertaining to any matter resulting from the
underlying contract.
b. The Consultant agrees to include the above clause in each subcontract financed in whole or in
part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified,
except to identify the subconsultant who will be subject to its provisions.
2. Program Fraud and False or Fraudulent Statements or Related Acts
a. The Consultant acknowledges that the provisions of the Program Fraud Civil Remedies Act of
1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, "Program Fraud Civil
Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the
underlying contract, the Consultant certifies or affirms the truthfulness and accuracy of any statement
it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the
FTA assisted project for which this contract work is being performed. In addition to other penalties
that may be applicable, the Consultant further acknowledges that if it makes, or causes to be made, a
false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government
reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the
Consultant to the extent the Federal Government deems appropriate.
b. The Consultant also acknowledges that if it makes, or causes to be made, a false, fictitious, or
fraudulent claim, statement, submission, or certification to the Federal Government under a contract
connected with a project that is financed in whole or in part with Federal assistance originally awarded
by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the
penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Consultant, to the extent the Federal
Government deems appropriate.
c. The Consultant agrees to include the above two clauses in each subcontract financed in whole
or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be
modified, except to identify the subconsultant who will be subject to the provisions.
3. Access to Records
The Consultant agrees to the following access to records requirements:
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Exhibit E-2
17336.00603\31171937.1
a. To provide RCTC, the FTA Administrator, the Comptroller General of the United States or any
of their authorized representatives access to any books, documents, papers and records of the
Consultant which are directly pertinent to this contract for the purposes of making audits,
examinations, excerpts and transcriptions. Consultant also agrees, pursuant to 49 C. F. R. 633.17 to
provide the FTA Administrator or his authorized representatives including any PMO Consultant access
to Consultant's records and construction sites pertaining to a major capital project, defined at 49 U.S.C.
5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C.
5307, 5309 or 5311.
b. To make available in the case of a contract for a capital project or improvement, as defined
above and awarded by other than competitive bidding in accordance with 49 U.S.C. 5325(a), records
related to the contract to RCTC, the Secretary of Transportation and the Comptroller General or any
authorized officer or employee of any of them for the purposes of conducting an audit and inspection.
c. To maintain all books, records, accounts and reports required under this contract for a period of
not less than three years after the date of termination or expiration of this contract, except in the event
of litigation or settlement of claims arising from the performance of this contract, in which case
Consultant agrees to maintain same until RCTC, the FTA Administrator, the Comptroller General, or
any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or
exceptions related thereto. Reference 49 CFR 18.39(i)(11).
d. To permit any of the foregoing parties to reproduce by any means whatsoever or to copy
excerpts and transcriptions as reasonably needed.
4. Federal Changes
The Consultant shall at all times comply with all applicable FTA regulations, policies, procedures and
directives, including without limitation those listed directly or by reference in the Master Agreement
between RCTC and FTA, as they may be amended or promulgated from time to time during the term
of this contract. Consultant's failure to so comply shall constitute a material breach of this contract.
5. Civil Rights
The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. §
2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202
of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C.
§ 5332 and 49 CFR part 21, the Consultant agrees that it will not discriminate against any employee or
applicant for employment because of race, color, creed,
national origin, sex, age, or disability. In addition, the Consultant agrees to comply with applicable
Federal implementing regulations and other implementing requirements FTA may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity requirements apply
to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights
Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Consultant
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Exhibit E-3
17336.00603\31171937.1
agrees to comply with all applicable equal employment opportunity requirements of U.S. Department
of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq ., (which implement
Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No.
11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. §
2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal
policies that may in the future affect construction activities undertaken in the course of the Project.
The Consultant agrees to take affirmative action to ensure that applicants are employed, and that
employees are treated during employment, without regard to their race, color, creed, national origin,
sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading,
demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or
other forms of compensation; and selection for training, including apprenticeship. In addition, the
Consultant agrees to comply with any implementing requirements FTA may issue.
(b) Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. § § 623, Federal transit law at 49 U.S.C. § 5332, the Equal Employment
Opportunity Commission (U.S. EEOC) regulations, “Age Discrimination in Employment Act,” 29
C.F.R. part 1625, the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S.
Health and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or
Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, the Consultant agrees to refrain
from discrimination against present and prospective employees for reason of age. In addition, the
Consultant agrees to comply with any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 504 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq.,
the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., and Federal transit law at
49 U.S.C. § 5332, the Consultant agrees that it will not discriminate against individuals on the basis of
disability, and that it will comply with the requirements of U.S. Equal Employment Opportunity
Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with
Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In
addition, the Consultant agrees to comply with any implementing requirements FTA may issue.
(3) The Consultant also agrees to include these requirements in each subcontract financed in whole
or in part with Federal assistance provided by FTA, modified only if necessary to identify the
affected parties.
6. FTA Disadvantaged Business Enterprise (DBE) Requirements
A. General DBE Requirements: In accordance with Federal financial assistance agreements with
the U.S. Department of Transportation (U.S. DOT), Commission has adopted a Disadvantaged
Business Enterprise (DBE) Policy and Program, in conformance with Title 49 CFR Part 26,
“Participation by Disadvantaged Business Enterprises in Department of Transportation Programs” (the
“Regulations”). This RFP is subject to these stipulated regulations. In order to ensure that Commission
achieves its overall DBE Program goals and objectives, Commission encourages the participation of
DBEs as defined in 49 CFR 26 in the performance of contracts financed in whole or in part with U.S.
DOT funds.
It is the policy of the Commission to:
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Exhibit E-4
17336.00603\31171937.1
1. Ensure nondiscrimination in the award and administration of DOT-assisted contracts;
2. Create a level playing field on which DBE’s can compete fairly for DOT-assisted contracts;
3. Ensure that the DBE program is narrowly tailored in accordance with applicable law;
4. Ensure that only firms that fully meet 49 C.F.R. part 26 eligibility standards are permitted to
participate as DBE’s;
5. Help remove barriers to the participation of DBEs in DOT assisted contracts;
6. To promote the use of DBEs in all types of federally assisted contracts and procurement activities;
and
7. Assist in the development of firms that can compete successfully in the marketplace outside the
DBE program.
B. Discrimination: Consultant shall not discriminate on the basis of race, color, national origin, or
sex in the award and performance of subcontracts. Any terms used herein that are defined in 49 CFR
Part 26, or elsewhere in the Regulations, shall have the meaning set forth in the Regulations.
C. Commission’s Race-Neutral DBE Program: A Race-Neutral DBE Program is one that, while
benefiting DBEs, is not solely focused on DBE firms. Therefore, under a Race-Neutral DBE Program,
Commission does not establish numeric race-conscious DBE participation goals on its DOT-assisted
contracts. There is no FTA DBE goal on this Project.
Consultant shall not be required to achieve a specific level of DBE participation as a condition of
contract compliance in the performance of this DOT-assisted contract. However, Consultant
shall adhere to race-neutral DBE participation commitment(s) made at the time of award.
D. Race-Neutral DBE Submissions and Ongoing Reporting Requirements (Post-Award):
At termination of the Contract, the successful Consultant shall complete and submit to Commission a
“DBE Race-Neutral Participation Listing” in the form provided by Commission. In the event DBE(s)
are utilized in the performance of the Agreement, Consultant shall comply with applicable reporting
requirements.
E. Performance of DBE Subconsultants: DBE subconsultants listed by Consultant in its “DBE
Race-Neutral Participation Listing” submitted at the time of proposal shall perform the work and
supply the materials for which they are listed, unless Consultant has received prior written
authorization from Commission to perform the work with other forces or to obtain the materials from
other sources. Consultant shall provide written notification to Commission in a timely manner of any
changes to its anticipated DBE participation. This notice should be provided prior to the
commencement of that portion of the work.
F. DBE Certification Status: If a listed DBE subconsultant is decertified during the life of this
Agreement, the decertified subconsultant shall notify Consultant in writing with the date of
decertification. If a non-DBE subconsultant becomes a certified DBE during the life of this Agreement,
the DBE subconsultant shall notify Consultant in writing with the date of certification. Consultant shall
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Exhibit E-5
17336.00603\31171937.1
furnish the written documentation to Commission in a timely manner. Consultant shall include this
requirement in all subcontracts.
G. Consultant’s Assurance Clause Regarding Non-Discrimination: In compliance with State and
Federal anti-discrimination laws, Consultant shall affirm that it will not exclude or discriminate on the
basis of race, color, national origin, or sex in consideration of contract award opportunities. Further,
Consultant shall affirm that they will consider, and utilize subconsultants and vendors, in a manner
consistent with non-discrimination objectives.
H. Violations: Failure by the selected Consultant(s) to carry out these requirements shall be a material
breach of the contract to be awarded pursuant to this RFP, which may result in the termination of the
contract or such other remedy as the recipient deems appropriate, which may include, but is not limited
to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the Consultant from future bidding as non-responsible. 49 C.F.R. § 26.13(b).
I. Prompt Payment: Consultant shall pay its subconsultants for satisfactory performance of their
contracts no later than 30 days from receipt of each payment Commission makes to the Consultant. 49
C.F.R. § 26.29(a), unless a shorter period is provided in the contract.
J. Compliance with DBE Requirements Contained in FTA Provisions: Consultant shall comply with all
DBE reporting and other requirements contained in this Agreement.
7. Incorporation of Federal Transit Administration (FTA) Terms
The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT,
whether or not expressly set forth in the preceding contract provisions. All contractual provisions
required by DOT, as set forth in FTA Circular 4220.1F are hereby incorporated by reference. Anything
to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event
of a conflict with other provisions contained in this Agreement. The Consultant shall not perform any
act, fail to perform any act, or refuse to comply with any RCTC requests which would cause RCTC to
be in violation of the FTA terms and conditions.
8. Debarment and Suspension.
The Consultant agrees to the following:
(1) It will comply with the following requirements of 2 CFR Part 180, subpart C, as adopted and
supplemented by U.S. DOT regulations at 2 CFR Part 1200.
(2) It will not enter into any “covered transaction” (as that phrase is defined at 2 CFR §§ 180.220 and
1200.220) with any subconsultant whose principal is, suspended, debarred, or otherwise excluded from
participating in covered transactions, except as authorized by— (i) U.S. DOT regulations,
“Nonprocurement Suspension and Debarment,” 2 CFR Part 1200; (ii) U.S. OMB regulatory guidance,
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Exhibit E-6
17336.00603\31171937.1
“Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement),” 2 CFR
Part 180; and (iii) Other applicable federal laws, regulations, or requirements regarding participation
with debarred or suspended recipients or third party participants.
(3) It will review the U.S. GSA “System for Award Management – Lists of Parties Excluded from
Federal Procurement and Nonprocurement Programs,” if required by U.S. DOT regulations, 2 CFR
Part 1200.
9. ADA Access Requirements
The Consultant shall comply with all applicable requirements of the Americans with Disabilities Act of
1990 (ADA), 42 USC Section 12101 et seq; Section 504 of the Rehabilitation Act of 1973, as
amended, 29 USC Section 794; 49 USC Section 5301(d).
10. Fly America .
To the extent applicable to the Services, the Consultant agrees to comply with 49 U.S.C. 40118 (the
"Fly America" Act) in accordance with the General Services Administration's regulations at 41 CFR
Part 301-10, which provide that recipients and sub recipients of Federal funds and their consultants are
required to use U.S. Flag air carriers for U.S. Government-financed international air travel and
transportation of their personal effects or property, to the extent such service is available, unless travel
by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Consultant shall
submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately
explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a
foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America
requirements. The Consultant agrees to include the requirements of this section in all subcontracts that
may involve international air transportation.
11. Cargo Preference - Use of United States-Flag Vessels
To the extent applicable to the Services, the Consultant agrees:
1. To use privately owned United States-Flag commercial vessels to ship at least 50 percent of
the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers)
involved, whenever shipping any equipment, material, or commodities pursuant to the
underlying contract to the extent such vessels are available at fair and reasonable rates for
United States-Flag commercial vessels;
2. To furnish within 20 working days following the date of loading for shipments originating
within the United States or within 30 working days following the date of leading for
shipments originating outside the United States, a legible copy of a rated, "on-board"
commercial ocean bill-of -lading in English for each shipment of cargo described in the
preceding paragraph to the Division of National Cargo, Office of Market Development,
Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the
Consultant in the case of a subconsultant's bill-of-lading.)
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Exhibit E-7
17336.00603\31171937.1
3. To include these requirements in all subcontracts issued pursuant to this contract when the
subcontract may involve the transport of equipment, material, or commodities by ocean
vessel.
11. Buy America – Not applicable.
12. Employment Provisions
To the extent applicable to the Services, Consultant shall comply with the following:
A. Equal Employment Opportunity — Not applicable.
B. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c) — Not applicable.
C. Contact Work Hours and Safety Standards Act (40 U.S.C. 327–333) —Not applicable.
D. Release of Retainage
No retainage will be withheld by the RCTC from progress payments due Consultant. Retainage by
Consultant or subconsultants is prohibited, and no retainage will be held by the prime consultant from
progress due subconsultants. Any violation of this provision shall subject the violating Consultant or
subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the
California Business and Professions Code. This requirement shall not be construed to limit or impair
any contractual, administrative, or judicial remedies, otherwise available to Consultant or
subconsultant in the event of a dispute involving late payment or nonpayment by Consultant or
deficient subconsultant performance, or noncompliance by a subconsultant.
13. Termination for Convenience
RCTC may terminate the Agreement for convenience in accordance with the terms of the Agreement.
After such termination, the Consultant shall submit a final termination settlement proposal to RCTC as
directed. If the Consultant fails to submit a proposal within the time allowed, RCTC may determine, on
the basis of information available, the amount, if any due the Consultant because of the termination and
shall pay the amount determined. After the Consultant’s proposal is received, RCTC and Consultant
shall negotiate a fair and equitable settlement and the contract will be modified to reflect the negotiated
agreement. If agreement cannot be reached, RCTC may issue a final determination and pay the amount
determined. If the Consultant does not agree with this final determination or the determination resulting
from the lack of timely submission of a proposal, the Consultant may appeal under the Disputes clause.
14. Administrative and Contractual Remedies on Breach; Termination for Cause
a. The Consultant may be declared in breach of this Agreement (“Breach”) if the Consultant
fails to make delivery of the supplies or to perform the services within the time specified herein or any
extension thereof; or if the Consultant fails to perform any of the other provisions of the contract, or so
fails to make progress as to endanger performance of this contract in accordance with its terms. In case
of any of the foregoing, RCTC shall notify the Consultant of the Breach, and the Consultant shall have
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Exhibit E-8
17336.00603\31171937.1
a period of ten (10) days (or such longer period as RCTC may authorize in writing) after receipt of
notice from RCTC to cure the Breach.
b. RCTC may, by written notice of termination to the Consultant specifying the effective date
thereof, terminate the whole or any part of this contract, in the case of a Breach that is not cured within
the timeframe set forth in (a) above (“Uncured Breach”).
c. If the contract is terminated in whole or in part for an Uncured Breach, RCTC may procure
upon such terms and in such manner as RCTC may deem appropriate, supplies or services similar to
those so terminated, or may complete the services with its own forces. The Consultant shall be liable
to RCTC for any excess costs for such similar supplies or services, and for any other costs incurred by
RCTC as a result of the Uncured Breach. The Consultant shall continue the performance of this
contract to the extent not terminated under the provisions of this clause.
d. Except with respect to defaults of Subconsultants, the Consultant shall not be liable for any
excess costs if the failure to perform the contract arises out of causes beyond the control and without
the fault or negligence of the Consultant. If the failure to perform is caused by the default of a
Subconsultant, and if such default arises out of causes beyond the control of both the Consultant and
the Subconsultant, and without the fault or negligence of either of them, the Consultant shall not be
liable for any excess costs for failure to perform, unless the supplies or services to be furnished by the
Subconsultant were obtainable from other sources in sufficient time to permit the Consultant to meet
the required project completion schedule.
e. Payment for completed services or supplies delivered to and accepted by RCTC shall be at the
contract price. RCTC may withhold from amounts otherwise due the Consultant for such completed
services or supplies such sum as RCTC determines to be necessary to protect RCTC against loss
because of outstanding liens of claims of former lien holders, or to reimburse RCTC for any other costs
related to the Uncured Breach.
f. If, after notice of termination of this contract for cause, it is determined for any reason that an
Uncured Breach did not exist, the rights and obligations of the parties shall be the same as if the notice
of termination had been issued pursuant to the provisions for termination for convenience of RCTC.
g. The rights and remedies of RCTC provided in this clause shall not be exclusive and are in
addition to any other rights and remedies provided by law, equity or under this contract including, but
not limited to, the right to specific performance.
h. Notwithstanding the above, RCTC may, without providing an opportunity to cure, terminate the
contract in accordance with the timeframe set forth in Section 17 of the contract, if RCTC determines
such action is in its best interest based on the nature of the Breach. Such actions shall not limit any of
RCTC’s remedies set forth above.
16. Disputes
a. Except as otherwise provided in this Agreement, any dispute concerning a question of fact
arising under this Agreement which is not disposed of by supplemental agreement shall be
decided by RCTC’s Deputy Executive Director, who shall reduce the decision to writing and mail or
otherwise furnish a copy thereof to the Consultant. The decision of the RCTC Deputy Executive
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Exhibit E-9
17336.00603\31171937.1
Director shall be final and conclusive unless, within thirty (30) days from the date of receipt of such
copy, Consultant mails or otherwise furnishes to the RCTC Deputy Executive Director a written appeal
addressed to RCTC's Executive Director. The decision of RCTC Executive Director or duly authorized
representative for the determination of such appeals shall be final and conclusive.
b. The provisions of this Paragraph shall not be pleaded in any suit involving a question of fact
arising under this Agreement as limiting judicial review of any such decision to cases where fraud by
such official or his representative or board is alleged, provided, however, that any such decision shall
be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous
as necessarily to imply bad faith or is not supported by substantial evidence. In connection with any
appeal proceeding under this Paragraph, the Consultant shall be afforded an opportunity to be heard
and to offer evidence in support of its appeal.
c. Pending final decision of a dispute hereunder, Consultant shall proceed diligently with the
performance of this Agreement and in accordance with the decision of RCTC's Deputy Executive
Director. This "Disputes" clause does not preclude consideration of questions of law in connection with
decisions provided for above. Nothing in this Agreement, however, shall be construed as making final
the decision of any RCTC official or representative on a question of law, which questions shall be
settled in accordance with the laws of the State of California.
17. Lobbying
See the Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure
Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Consultants who apply or bid
for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New
Restrictions on Lobbying.” Each tier certifies to the tier above that it will not and has not used Federal
appropriated funds to pay any person or organization for influencing or attempting to influence an
officer or employee of any agency, a member of Congress, officer or employee of Congress, or an
employee of a member of Congress in connection with obtaining any Federal contract, grant or any
other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under
the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal
funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such
disclosures are forwarded from tier to tier up to the recipient. The Offeror shall complete and submit
with its bid/proposal the attached Certification Regarding Lobbying, and if applicable, the Standard
Form-LLL, “Disclosure Form to Report Lobbying.”
18. Energy Conservation
The Consultant agrees to comply with mandatory standards and policies relating to energy efficiency
which are contained in the state energy conservation plan issued in compliance with the Energy Policy
and Conservation Act.
19. Clean Water
a. The Consultant agrees to comply with all applicable standards, orders or regulations issued
pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. The
Consultant agrees to report each violation to RCTC and understands and agrees that RCTC will, in
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Exhibit E-10
17336.00603\31171937.1
turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional
Office.
d. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List of Violating
Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as amended, (42
U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as amended, (33 U.S.C. §§
1251-1387).
The Consultant also agrees to include these requirements in each subcontract exceeding $150,000
financed in whole or in part with Federal assistance provided by FTA.
20. Clean Air
a. The Consultant agrees to comply with all applicable standards, orders or regulations issued
pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Consultant agrees to report
each violation to RCTC and understands and agrees that RCTC will, in turn, report each violation as
required to assure notification to FTA and the appropriate EPA Regional Office.
b. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List of Violating
Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as amended, (42
U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as amended, (33 U.S.C. §§
1251-1387).
c. The Consultant also agrees to include these requirements in each subcontract exceeding
$150,000 financed in whole or in part with Federal assistance provided by FTA.
21. Recycled Products
Recovered Materials - The Consultant agrees to comply with all the requirements of Section
6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962),
including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order
12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part
247.
21. SPECIAL PROVISION FOR PROMOTING COVID-19 SAFETY
Section 49. Centers for Disease Control and Prevention Order on Requirements for Persons
to Wear Masks While on Conveyances and at Transportation Hubs.
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Exhibit E-11
17336.00603\31171937.1
(a) Compliance with CDC Mask Order. The Centers for Disease Control and Prevention (“CDC”)
Order of January 29, 2021, titled Requirement for Persons to Wear Masks While on Conveyances and
at Transportation Hubs (“CDC Mask Order”), applies to this Agreement. One of the objectives of the
CDC Mask Order is “[m]aintaining a safe and operating transportation system.” Consultant agrees that
it will comply, and will require all subconsultants to comply, with the CDC Mask Order, to the extent
the CDC Mask Order remains in effect.
(b) Enforcement for non-compliance. Consultant agrees that FTA and RCTC may take enforcement
action for non-compliance with the CDC Mask Order, to the extent the CDC Mask Order remains in
effect, including: (1) enforcement actions authorized by 49 U.S.C. § 5329(g); (2) referring Consultant
to the CDC or other Federal authority for enforcement action; (3) enforcement actions authorized by 2
CFR §§ 200.339 – .340; and (4) any other enforcement action authorized by Federal law or regulation.
22. Safe Operation of Motor Vehicles
Pursuant to Federal Executive Order No. 13043, “Increasing Seat Belt Use in the United States,” April
16, 1997, 23 U.S.C. Section 402 note, FTA encourages each third party consultant to adopt and
promote on-the-job seat belt use policies and programs for its employees and other personnel that
operate company owned, rented, or personally operated vehicles, and to include this provision in each
third party subcontract involving the project.
a. The Consultant is encouraged to adopt and promote on-the-job seat belt use policies and programs
for its employees and other personnel that operate company-owned vehicles, company-rented vehicles,
or personally operated vehicles. The terms “company-owned” and “company-leased” refer to vehicles
owned or leased either by the Consultant or RCTC.
b. The Consultant agrees to adopt and enforce workplace safety policies to decrease crashes
caused by distracted drivers, including policies to ban text messaging while using an electronic device
supplied by an employer, and driving a vehicle the driver owns or rents, a vehicle Contactor owns,
leases, or rents, or a privately-owned vehicle when on official business in connection with the work
performed under this contract.
23. Notification to FTA.
a. If a current or prospective legal matter that may affect the Federal Government emerges, the Consultant
must promptly notify the FTA Chief Counsel and FTA Regional Counsel for the Region in which this
Agreement is being performed. The types of legal matters that require notification include, but are not limited to,
a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal
disagreement in any forum for any reason.
b. Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s
interests in the Award, the accompanying Underlying Agreement, and any Amendments thereto, or the Federal
Government’s administration or enforcement of federal laws, regulations, and requirements.
c. Additional Notice to U.S. DOT Inspector General. The Consultant must promptly notify the U.S. DOT
Inspector General in addition to the FTA Chief Counsel or Regional Counsel for the Region in which the
Commission located, if Consultant has knowledge of potential fraud, waste, or abuse occurring on a Project
receiving assistance from FTA. The notification provision applies if a person has or may have submitted a false
claim under the False Claims Act, 31 U.S.C. § 3729, et seq., or has or may have committed a criminal or civil
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Exhibit E-12
17336.00603\31171937.1
violation of law pertaining to such matters as fraud, conflict of interest, bid rigging, misappropriation or
embezzlement, bribery, gratuity, or similar misconduct involving federal assistance. Knowledge, as used in this
paragraph, includes, but is not limited to, knowledge of a criminal or civil investigation by a Federal, state, or
local law enforcement or other investigative agency, a criminal indictment or civil complaint, or probable cause
that could support a criminal indictment, or any other credible information in the possession of the Consultant.
In this paragraph, “promptly” means to refer information without delay and without change.
24. Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment
Consultant shall not contract (or extend or renew a contract) to procure or obtain equipment, services, or systems
that uses covered telecommunications equipment or services as a substantial or essential component of any
system, or as critical technology as part of any system funded under this Contract. As described in Public Law
115–232, section 889, covered telecommunications equipment is telecommunications equipment produced by
Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
a. For the purpose of public safety, security of government facilities, physical security surveillance of critical
infrastructure, and other national security purposes, video surveillance and telecommunications equipment
produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or
Dahua Technology Company (or any subsidiary or affiliate of such entities).
b. Telecommunications or video surveillance services provided by such entities or using such equipment.
c. Telecommunications or video surveillance equipment or services produced or provided by an entity that the
Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal
Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to,
the government of a covered foreign country.
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Exhibit F-1
17336.00603\31171937.1
EXHIBIT “F” – LOBBYING ACTIVITIES DISCLOSURE
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GPA CONSULTING | 53RCTC | ON-CALL ENVIRONMENTAL CONSULTING SERVICES
Local Assistance Procedures Manual EXHBIT 10-Q
Disclosure of Lobbying Activities
Page 1
LPP 13-01 May 8, 2013
EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES
COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVITIES PURSUANT TO 31 U.S.C. 1352
1. Type of Federal Action: 2. Status of Federal Action: 3. Report Type:
a. contract
a. bid/offer/application
a. initial
b. grant b. initial award b. material change
c. cooperative agreement c. post-award
d. loan For Material Change Only:
e. loan guarantee year ____ quarter _________
f. loan insurance date of last report __________
4. Name and Address of Reporting Entity 5. If Reporting Entity in No. 4 is Subawardee,
Enter Name and Address of Prime:
Prime Subawardee
Tier _______ , if known
Congressional District, if known Congressional District, if known
6. Federal Department/Agency: 7. Federal Program Name/Description:
CFDA Number, if applicable ____________________
8. Federal Action Number, if known: 9. Award Amount, if known:
10. Name and Address of Lobby Entity 11. Individuals Performing Services
(If individual, last name, first name, MI) (including address if different from No. 10)
(last name, first name, MI)
(attach Continuation Sheet(s) if necessary)
12. Amount of Payment (check all that apply) 14. Type of Payment (check all that apply)
$ _____________ actual planned a. retainer
b. one-time fee
13. Form of Payment (check all that apply): c. commission
a. cash d. contingent fee
b. in-kind; specify: nature _______________ e deferred
Value _____________ f. other, specify _________________________
15. Brief Description of Services Performed or to be performed and Date(s) of Service, including
officer(s), employee(s), or member(s) contacted, for Payment Indicated in Item 12:
(attach Continuation Sheet(s) if necessary)
16. Continuation Sheet(s) attached: Yes No
17. Information requested through this form is authorized by Title
31 U.S.C. Section 1352. This disclosure of lobbying reliance
was placed by the tier above when his transaction was made or
entered into. This disclosure is required pursuant to 31 U.S.C.
1352. This information will be reported to Congress
semiannually and will be available for public inspection. Any
person who fails to file the required disclosure shall be subject
to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Signature: ________________________________________
Print Name: _______________________________________
Title: ____________________________________________
Telephone No.: ____________________ Date: ___________
Authorized for Local Reproduction
Federal Use Only: Standard Form - LLL
Standard Form LLL Rev. 04-28-06
Distribution: Orig- Local Agency Project Files
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Agreement No. 22-31-103-00
PROFESSIONAL SERVICES AGREEMENT
WITH PROPOSITION 1B, FTA AND FHWA FUNDING ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
HNTB CORPORATION
FOR ON-CALL ENVIRONMENTAL CONSULTING 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 HNTB CORPORATION ("Consultant"), a Corporation. The Commission
and Consultant are sometimes referred to herein individually as “Party”, and collectively as
the “Parties”.
Recitals.
A.On November 8, 1988 the Voters of Riverside County approved Measure A
authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax (the
"tax") to fund transportation programs and improvements within the County of Riverside,
and adopting the Riverside County Transportation Improvement Plan (the "Plan").
B.Pursuant to Public Utility Code Sections 240000 et seq., the Commission is
authorized to allocate the proceeds of the Tax in furtherance of the Plan.
C.On November 5, 2002, the voters of Riverside County approved an extension
of the Measure A tax for an additional thirty (30) years for the continued funding of
transportation and improvements within the County of Riverside.
D.A source of funding for payment for on-call professional 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 environmental consulting 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.
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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 environmental consulting 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 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. 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
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
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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 on the date first set forth above,
contingent upon approval by Commission, and Consultant shall commence work after
notification to proceed by Commission’s Contract Administrator. This Agreement shall end
three years from the date set forth above, unless extended by contract amendment. The
Commission shall have the option to extend the term for one, two-year option. In no case
shall the term of this Agreement exceed five (5) years. All Task Order work should be
completed within the term.
5.2 Consultant is advised that any recommendation for contract award is
not binding on Commission until this Agreement is fully executed and approved by the
Commission.
5.3 This Agreement shall remain in effect until the date set forth above,
unless earlier terminated as provided herein. Consultant shall complete the Services
within the term of this Agreement, and shall meet any other established schedules and
deadlines. All applicable indemnification provisions of this Agreement shall remain in
effect following the termination of this Agreement.
6. Commission's Contract Administrator. The Commission hereby designates
the Commission's Executive Director, or his or her designee, to act as its Contract
Administrator for the performance of this Agreement ("Commission’s Contract
Administrator"). Commission’s Contract Administrator shall have the authority to act on
behalf of the Commission for all purposes under this Agreement. Commission’s Contract
Administrator shall also review and give approval, as needed, to the details of Consultant's
work as it progresses. Consultant shall not accept direction or orders from any person
other than the Commission’s Contract Administrator or his or her designee.
7. Consultant's Representative. Consultant hereby designates Elizabeth Suh 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
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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: Elizabeth Suh, Kelly Lumen, James Santos, and
Tami Podesta, or as otherwise identified in the Task Order.
9. Standard of Care; Licenses. Consultant represents and maintains that it is
skilled in the professional calling necessary to perform all Services, duties and obligations
required by this Agreement to fully and adequately complete the Project. Consultant shall
perform the Services and duties in conformance to and consistent with the standards
generally recognized as being employed by professionals in the same discipline in the
State of California. Consultant warrants that all employees and subcontractors shall have
sufficient skill and experience to perform the Services assigned to them. Consultant further
represents and warrants to the Commission that its employees and subcontractors have all
licenses, permits, qualifications and approvals of whatever nature that are legally required
to perform the Services, and that such licenses and approvals shall be maintained
throughout the term of this Agreement. Consultant shall perform, at its own cost and
expense and without reimbursement from the Commission, any services necessary to
correct errors or omissions which are caused by the Consultant’s failure to comply with the
standard of care provided for herein, and shall be fully responsible to the Commission for
all damages and other liabilities provided for in the indemnification provisions of this
Agreement arising from the Consultant’s errors and omissions. Any employee of
Consultant or its sub-consultants who is determined by the Commission to be
uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a
threat to the safety of persons or property, or any employee who fails or refuses to perform
the Services in a manner acceptable to the Commission, shall be promptly removed from
the Project by the Consultant and shall not be re-employed to perform any of the Services
or to work on the Project.
10. Independent Contractor. The Services shall be performed by Consultant or
under its supervision. Consultant will determine the means, methods and details of
performing the Services subject to the requirements of this Agreement. Commission
retains Consultant on an independent contractor basis and not as an employee, agent or
representative of the Commission. Consultant retains the right to perform similar or
different services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Consultant shall at all times be
under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries
and other amounts due such personnel in connection with their performance of Services
and as required by law. Consultant shall be responsible for all reports and obligations
respecting such personnel, including but not limited to, social security taxes, income tax
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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. 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 expeditiously, within the term of this
Agreement, and in accordance with any schedule of Services set forth in a Task Order
(“Schedule”). Consultant represents that it has the professional and technical personnel to
perform the Services in conformance with such conditions. In order to facilitate
Consultant's conformance with the Schedule, the Commission shall respond to Consultant's
submittals in a timely manner. Upon request of Commission’s Contract Administrator,
Consultant shall provide a more detailed schedule of anticipated performance to meet the
Schedule of Services.
11.1 Modification of the Schedule. Consultant shall regularly report to the
Commission, through correspondence or progress reports, its progress in providing
required Services within the scheduled time periods. Commission shall be promptly
informed of all anticipated delays. In the event that Consultant determines that a schedule
modification is necessary, Consultant shall promptly submit a revised Schedule of Services
for approval by Commission’s Contract Administrator.
11.2 Trend Meetings. Consultant shall conduct trend meetings with the
Commission’s Contract Administrator and other interested parties, as requested by the
Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a
standard day and time. These trend meetings will encompass focused and informal
discussions concerning scope, schedule, and current progress of Services, relevant cost
issues, and future Project objectives. Consultant shall be responsible for the preparation
and distribution of meeting agendas to be received by the Commission and other
attendees no later than three (3) working days prior to the meeting.
11.3 Progress Reports. As part of its monthly invoice, Consultant shall
submit a progress report, in a form determined by the Commission, which will indicate the
progress achieved during the previous month in relation to the Schedule of Services.
Submission of such progress report by Consultant shall be a condition precedent to receipt
of payment from the Commission for each monthly invoice submitted.
12. Delay in Performance.
12.1 Excusable Delays. Should Consultant be delayed or prevented from
the timely performance of any act or Services required by the terms of the Agreement by
reason of acts of God or of the public enemy, acts or omissions of the Commission or
other governmental agencies in either their sovereign or contractual capacities, fires,
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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 timely notice shall constitute a
waiver by Consultant of any right to an excusable delay in time of performance.
12.3 Mutual Agreement. Performance of any Services under this
Agreement may be delayed upon mutual agreement of the Parties. Upon such
agreement, Consultant's Schedule of Services shall be extended as necessary by the
Commission. Consultant shall take all reasonable steps to minimize delay in completion,
and additional costs, resulting from any such extension.
13. Preliminary Review of Work. All reports, working papers, and similar work
products prepared for submission in the course of providing Services under this Agreement
shall be submitted to the Commission’s Contract Administrator in draft form, and the
Commission may require revisions of such drafts prior to formal submission and approval.
In the event plans and designs are to be developed as part of the Project, final detailed
plans and designs shall be contingent upon obtaining environmental clearance as may be
required in connection with Federal funding. In the event that Commission’s Contract
Administrator, in his or her sole discretion, determines the formally submitted work product
to be not in accordance with the standard of care established under this Agreement,
Commission’s Contract Administrator may require Consultant to revise and resubmit the
work at no cost to the Commission.
14. Appearance at Hearings. If and when required by the Commission,
Consultant shall render assistance at public hearings or other meetings related to the
Project or necessary to the performance of the Services. However, Consultant shall not be
required to, and will not, render any decision, interpretation or recommendation regarding
questions of a legal nature or which may be construed as constituting a legal opinion.
15. Opportunity to Cure; Inspection of Work. Commission may provide
Consultant an opportunity to cure, at Consultant's expense, all errors and omissions 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.
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
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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 personnel services under this
Agreement.
16.3 Services of the Consultant’s personnel and other support staff in
connection with Contractor claims will be performed pursuant to a written contract
amendment, if necessary, extending the termination date of this Agreement in order to
finally resolve the claims.
16.4 Nothing contained in this Section shall be construed to in any way limit
Consultant’s indemnification obligations contained in Section 29. In the case of any
conflict between this Section and Section 29, Section 29 shall govern. This Section is not
intended to obligate the Commission to reimburse Consultant for time spent by its
personnel related to Contractor claims for which Consultant is required to indemnify and
defend the Commission pursuant to Section 29 of this Agreement.
17. Final Acceptance. Upon determination by the Commission that Consultant
has satisfactorily completed the Services required under this Agreement and within the
term set forth herein the Commission shall give Consultant a written Notice of Final
Acceptance. Upon receipt of such notice, Consultant shall incur no further costs
hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may
request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily
completed all Services required under the terms of this Agreement. In the event copyrights
are permitted under this Agreement, then in connection with Federal funding, it is hereby
acknowledged and agreed that the United States Department of Transportation shall have
the royalty-free non-exclusive and irrevocable right to reproduce, publish, or otherwise use,
and to authorize others to use, the work for governmental purposes.
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
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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 this Agreement will be based on actual
cost plus a fixed fee. Commission shall reimburse Consultant for actual costs (including
labor costs, employee benefits, travel, equipment rental costs, overhead and other direct
costs) incurred by Consultant in performance of the Services. Consultant shall not be
reimbursed for actual costs that exceed the estimated wage rates, employee benefits,
travel, equipment rental, overhead, and other estimated costs set forth in the approved
Consultant cost proposal attached hereto as Exhibit “B” and incorporated herein by
reference, or any cost proposal included as part of a Task Order (“Cost Proposal”) unless
additional reimbursement is provided for by written amendment. The overhead rates
included in the attached Exhibit “B” shall be fixed for the term of the Master Agreement,
and shall not be subject to adjustment, unless required by the applicable funding source.
In In no event, shall Consultant be reimbursed for overhead costs at a rate that exceeds
Commission’s approved overhead rate set forth in the Cost Proposal. In the event that
Commission determines that a change to the Services from that specified in the Cost
Proposal, this Agreement or any Task Order is required, the Agreement time or actual
costs reimbursable by Commission shall be adjusted by written amendment to
accommodate the changed work. The maximum total cost as specified in Section 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
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
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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 approval of any Services, nor for
any Services performed prior to approval of this Agreement.
19.7 Consultant shall be reimbursed, as promptly as fiscal procedures will
permit upon receipt by Commission’s Contract Administrator of itemized invoices in
triplicate. Invoices shall be submitted no later than 45 calendar days after the performance
of work for which Consultant is billing. Invoices shall detail the work performed on each
milestone and each project as applicable. Invoices shall follow the format stipulated for the
approved Cost Proposal and shall reference this Agreement number and project title. Final
invoice must contain the final cost and all credits due Commission including any
equipment purchased under the Equipment Purchase provisions of this Agreement. The
final invoice should be submitted within 60 calendar days after completion of Consultant’s
work. Invoices shall be mailed to Commission’s Contract Administrator at the following
address:
Riverside County Transportation Commission
Attention: Accounts Payable
P.O. 12008
Riverside, CA 92502
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 Commission has or will enter into four (4) task order contracts for
performance of the Scope of Services identified in Exhibit “A”, including this Agreement
(“Environmental Services Task Order Contracts”). The other Environmental Services Task
Order Contracts are GPA Consulting, ICF Jones & Stokes, Inc., and Stantec Consulting
Services, Inc. The total amount payable by Commission for the Environmental Services
Task Order Contracts shall not exceed a cumulative maximum total value of Three Million
Dollars ($3,000,000) (“NTE Sum”). It is understood and agreed that there is no guarantee,
either expressed or implied that this dollar amount will be authorized under the
Environmental Services Task Order Contracts through Task Orders. Each time a Task
Order is awarded under any of the Environmental Services Task Order Contracts,
Commission must send written notification to Consultant and each of the other consultants
entering into the Environmental Services Task Order Contracts. The notice must identify
the total funds allocated under issued Task Orders, and the remaining unencumbered
amount of the NTE Sum. Consultant acknowledges and agrees that Commission must not
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pay any amount under this Agreement that would exceed the NTE Sum, and Consultant
must not enter into a Task Order that exceeds the NTE Sum.
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 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 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.
21.1 Commission reserves the right to terminate this Agreement upon thirty
(30) calendar days written notice to Consultant, for any or no reason, with the reasons for
termination stated in the notice. Commission may terminate Services under a Task Order,
at any time, for any or no reason, with the effective date of termination to be specified in
the notice of termination of Task Order.
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
Services in any manner deemed proper by Commission. If Commission terminates this
Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant
under this Agreement for Services completed and accepted prior to termination, unless the
cost of completion to Commission exceeds the funds remaining in the Agreement. In such
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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.
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
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 allowability of individual items.
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.
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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,
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 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.
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)
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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.
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 “B” may set forth the rates at which each subconsultant shall
bill the Consultant for Services and that are subject to reimbursement by the Commission
to Consultant. Additional Direct Costs, as defined in Exhibit “B” shall be the same for both
the Consultant and all subconsultants, unless otherwise identified in Exhibit “B” or in a
Task Order. The subconsultant rate schedules and cost proposals contained herein are for
accounting purposes only.
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 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
the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s
Contract Administrator is required. Three competitive quotations must be submitted with
the request for such purchase, or the absence of bidding must be adequately justified.
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
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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.
26.4 All subcontracts in excess $25,000 shall contain the above provisions.
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 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 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. Since the Services are being performed as part of
an applicable “public works” or “maintenance” project, then pursuant to Labor Code
Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered
with the Department of Industrial Relations. Consultant shall maintain registration for the
duration of the Project and require the same of any subconsultants. This Project may also
be subject to compliance monitoring and enforcement by the Department of Industrial
Relations. It shall be Consultant’s sole responsibility to comply with all applicable
registration and labor compliance requirements.
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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 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 the Services, Consultant and any
subcontractor hereunder who employs workers in any apprenticeable craft or trade shall
apply to the joint apprenticeship council administering applicable standards for a certificate
approving Consultant or any sub-consultant for the employment and training of apprentices.
Upon issuance of this certificate, Consultant and any sub-consultant shall employ the
number of apprentices provided for therein, as well as contribute to the fund to administer
the apprenticeship program in each craft or trade in the area of the work hereunder.
The parties expressly understand that the responsibility for compliance with
provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California
Labor Code in regard to all apprenticeable occupations lies with Consultant
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, 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”).
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Consultant shall require all subcontractors to agree in writing that
Commission is granted an exclusive and perpetual license for any Documents & Data the
subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal right
to grant the exclusive and perpetual license for all such Documents & Data. Consultant
makes no such representation and warranty in regard to Documents & Data which were
prepared by design professionals other than Consultant or provided to Consultant by the
Commission.
Commission shall not be limited in any way in its use of the Documents
& Data at any time, provided that any such use not within the purposes intended by this
Agreement shall be at Commission’s sole risk.
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 this Agreement.
The Commission shall have and retain all right, title and interest in
Intellectual Property developed or modified under this Agreement whether or not paid for
wholly or in part by Commission, whether or not developed in conjunction with Consultant,
and whether or not developed by Consultant. Consultant will execute separate written
assignments of any and all rights to the above referenced Intellectual Property upon
request of Commission.
Consultant shall also be responsible to obtain in writing separate
written assignments from any subcontractors or agents of Consultant of any and all right to
the above referenced Intellectual Property. Should Consultant, either during or following
termination of this Agreement, desire to use any of the above-referenced Intellectual
Property, it shall first obtain the written approval of the Commission.
All materials and documents which were developed or prepared by the
Consultant for general use prior to the execution of this Agreement and which are not the
copyright of any other party or publicly available and any other computer applications, shall
continue to be the property of the Consultant. However, unless otherwise identified and
stated prior to execution of this Agreement, Consultant represents and warrants that it has
the right to grant the exclusive and perpetual license for all such Intellectual Property as
provided herein.
Commission further is granted by Consultant a non-exclusive and
perpetual license to copy, use, modify or sub-license any and all Intellectual Property
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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, 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 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 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 shall reimburse Commission, Caltrans and their directors, officials,
officers, employees, consultants, agents, and/or volunteers, for any and all legal expenses
and costs, including reasonable attorney’s fees, incurred by each of them in connection
therewith or in enforcing the indemnity herein provided. Consultant's obligation to
indemnify shall not be restricted to insurance proceeds, if any, received by Commission,
Caltrans, their directors, officials officers, employees, consultants, agents, or volunteers.
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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, 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
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 shall reimburse Commission,
Caltrans and their directors, officials, officers, employees, consultants, agents, and/or
volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees,
incurred by each of them in connection therewith or in enforcing the indemnity herein
provided. Consultant's obligation to indemnify shall not be restricted to insurance
proceeds, if any, received by Commission, Caltrans or their directors, officials officers,
employees, consultants, agents, or volunteers. Notwithstanding the foregoing, to the extent
Consultant’s Services are subject to Civil Code Section 2782.8, the above indemnity shall
be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of,
pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
Consultant’s obligations as set forth in this Section 29 shall survive expiration or
termination of this Agreement.
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31. Insurance.
31.1 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.
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,
code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation insurance as required by the State of California and
Employer’s Liability Insurance.
(b) Minimum Limits of Insurance. Consultant shall maintain limits
no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form with
general aggregate limit is used, either the general aggregate limit shall apply separately to
this Agreement/location or the general aggregate limit shall be twice the required
occurrence limit. Limits may be achieved by any combination of primary and excess or
umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily
injury and property damage. Limits may be achieved by any combination of primary and
excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation limits as required by the Labor Code of the State of
California. Employer’s Practices Liability limits of $1,000,000 per accident.
31.3 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
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shall obtain such insurance in an amount not less than $2,000,000 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.
31.4 Aircraft Liability Insurance. Prior to conducting any Services requiring
use of aircraft, Consultant shall procure and maintain, or cause to be procured and
maintained, aircraft liability insurance or equivalent form, with a single limit as shall be
required by the Commission. Such insurance shall include coverage for owned, hired and
non-owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, Caltrans and their directors, officials, officers, employees and agents as
additional insureds with respect to the Services or operations performed by or on behalf of
the Consultant.
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:
(a) General Liability.
(i) Commercial General Liability Insurance must include
coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury;
(3) premises/operations liability; (4) products/completed operations liability; (5) aggregate
limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion
deleted; (7) contractual liability with respect to this Agreement; (8) broad form property
damage; and (9) independent consultants coverage.
(ii) The policy shall contain no endorsements or provisions
limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by
one insured against another; or (3) contain any other exclusion contrary to this Agreement.
(iii) The policy shall give the Commission, its directors,
officials, officers, employees, and agents insured status using ISO endorsement forms 20
10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the policy shall be
“primary and non-contributory” and will not seek contribution from the Commission’s or
Caltrans’ insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or
endorsements providing the exact same coverage.
(b) Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) the Commission, Caltrans and their directors, officials, officers,
employees and agents shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned, leased,
hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the
insurance coverage shall be primary insurance as respects the Commission, Caltrans and
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their directors, officials, officers, employees and agents, or if excess, shall stand in an
unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage.
Any insurance or self-insurance maintained by the Commission, Caltrans and their
directors, officials, officers, employees and agents shall be excess of the Consultant’s
insurance and shall not be called upon to contribute with it in any way.
(c) Workers’ Compensation and Employers Liability Coverage.
(i) Consultant certifies that he/she is aware of the provisions
of Section 3700 of the California Labor Code which requires every employer to be insured
against liability for workers’ compensation or to undertake self-insurance in accordance with
the provisions of that code, and he/she will comply with such provisions before
commencing work under this Agreement.
(ii) The insurer shall agree to waive all rights of subrogation
against the Commission, its directors, officials, officers, employees and agents for losses
paid under the terms of the insurance policy which arise from work performed by the
Consultant.
(d) All Coverages.
(i) Defense costs shall be payable in addition to the limits
set forth hereunder.
(ii) Requirements of specific coverage or limits contained in
this Section are not intended as a limitation on coverage, limits, or other requirement, or a
waiver of any coverage normally provided by any insurance. It shall be a requirement
under this Agreement that any available insurance proceeds broader than or in excess of
the specified minimum insurance coverage requirements and/or limits set forth herein shall
be available to the Commission, Caltrans and their directors, officials, officers, employees
and agents as additional insureds under said policies. Furthermore, the requirements for
coverage and limits shall be (1) the minimum coverage and limits specified in this
Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance
policy or proceeds available to the named insured; whichever is greater.
(iii) The limits of insurance required in this Agreement may
be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or
excess insurance shall contain or be endorsed to contain a provision that such coverage
shall also apply on a primary and non-contributory basis for the benefit of the Commission
(if agreed to in a written contract or agreement) before the Commission’s own insurance or
self-insurance shall be called upon to protect it as a named insured. The umbrella/excess
policy shall be provided on a “following form” basis with coverage at least as broad as
provided on the underlying policy(ies).
(iv) Consultant shall provide the Commission at least thirty
(30) days prior written notice of cancellation of any policy required by this Agreement,
except that the Consultant shall provide at least ten (10) days prior written notice of
cancellation of any such policy due to non-payment of premium. If any of the required
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coverage is cancelled or expires during the term of this Agreement, the Consultant shall
deliver renewal certificate(s) including the General Liability Additional Insured Endorsement
to the Commission at least ten (10) days prior to the effective date of cancellation or
expiration.
(v) The retroactive date (if any) of each policy is to be no
later than the effective date of this Agreement. Consultant shall maintain such coverage
continuously for a period of at least three years after the completion of the work under this
Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the
retroactive date is advanced past the effective date of this Agreement; B) if the policy is
cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with
a retroactive date subsequent to the effective date of this Agreement.
(vi) The foregoing requirements as to the types and limits of
insurance coverage to be maintained by Consultant, and any approval of said insurance by
the Commission, is not intended to and shall not in any manner limit or qualify the liabilities
and obligations otherwise assumed by the Consultant pursuant to this Agreement, including
but not limited to, the provisions concerning indemnification.
(vii) If at any time during the life of the Agreement, any policy
of insurance required under this Agreement does not comply with these specifications or is
canceled and not replaced, Commission has the right but not the duty to obtain the
insurance it deems necessary and any premium paid by Commission will be promptly
reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium
from Consultant payments. In the alternative, Commission may cancel this Agreement.
The Commission may require the Consultant to provide complete copies of all insurance
policies in effect for the duration of the Project.
(viii) Neither the Commission nor any of its directors, officials,
officers, employees or agents shall be personally responsible for any liability arising under
or by virtue of this Agreement.
31.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the Commission. If the
Commission does not approve the deductibles or self-insured retentions as presented,
Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer
shall reduce or eliminate such deductibles or self-insured retentions as respects the
Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant
shall procure a bond guaranteeing payment of losses and related investigation costs,
claims and administrative and defense expense.
31.7 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.
31.8 Verification of Coverage. Consultant shall furnish Commission with
original certificates of insurance and endorsements effecting coverage required by this
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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.
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
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 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.
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.
33. 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,
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other than a Cardinal Change. For purposes of this Agreement, a Cardinal Change is a
change which is “outside the scope” of the Agreement; in other words, work which should
not be regarded as having been fairly and reasonably within the contemplation of the
parties when the Agreement was entered into. An example of a change which is not a
Cardinal Change would be where, in a contract to construct a building there are many
changes in the materials used, but the size and layout of the building remains the same.
Cardinal Changes are not within the authority of this provision to order, and shall be
processed by the Commission as “sole source” procurements according to applicable law,
including the requirements of FTA Circular 4220.1D, paragraph 9(f).
(a) In addition to the changes authorized above, a
modification which is signed by Consultant and the Commission’s Executive Director, other
than a Cardinal Change, may be made in order to: (1) make a negotiated equitable
adjustment to the Agreement price, delivery schedule and other terms resulting from the
issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other
agreements of the parties modifying the terms of this Agreement (“Bilateral Contract
Modification”).
(b) Consultant shall not perform, nor be compensated for any
change, without written authorization from the Commission’s Executive Director as set forth
herein. In the event such a change authorization is not issued and signed by the
Commission’s Executive Director, Consultant shall not provide such change.
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 Commission shall have the right
to rescind this Agreement without liability.
34.2 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.
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(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 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.
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, 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.
34.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant
warrants that this Agreement was not obtained or secured through rebates kickbacks or
other unlawful consideration, either promised or paid to any Commission employee. For
breach or violation of this warranty, Commission shall have the right in its discretion; to
terminate this Agreement without liability; to pay only for the value of the work actually
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performed; or to deduct from the Agreement price; or otherwise recover the full amount of
such rebate, kickback or other unlawful consideration.
34.7 Covenant Against Expenditure of Commission, State or Federal
Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and
belief no state, federal or local agency appropriated funds have been paid, or will be paid
by or on behalf of the Consultant to any person for the purpose of influencing or attempting
to influence an officer or employee of any state or federal agency; a Member of the State
Legislature or United States Congress; an officer or employee of the Legislature or
Congress; or any employee of a Member of the Legislature or Congress, in connection
with the award of any state or federal contract, grant, loan, or cooperative agreement, or
the extension, continuation, renewal, amendment, or modification of any state or federal
contract, grant, loan, or cooperative agreement.
(a) If any funds other than federal appropriated funds have been
paid, or will be paid to any person for the purpose of influencing or attempting to influence
an officer or employee of any federal agency; a Member of Congress; an officer or
employee of Congress, or an employee of a Member of Congress; in connection with this
Agreement, the Consultant shall complete and submit the attached Exhibit "G", 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 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 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.
35. 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.
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36. Right to Employ Other Consultants. Commission reserves the right to employ
other consultants in connection with the Project.
37. Governing Law. This Agreement shall be governed by and construed with the
laws of the State of California. Venue shall be in Riverside County.
38. Disputes; Attorneys' Fees.
38.1 Prior to commencing any action hereunder, the Parties shall attempt
in good faith to resolve any dispute arising between them. The pendency of a dispute
shall not excuse Consultant from full and timely performance of the Services.
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.
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: COMMISSION:
HNTB Corporation Riverside County
3633 Inland Empire Blvd Transportation Commission
Suite 750 4080 Lemon Street, 3rd Floor
Ontario, CA 91764 Riverside, CA 92501
Attn: Elisabeth Suh 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
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Parties and the interpretation of the Parties' understanding concerning the performance of
the Services.
43. Amendment or Modification. No supplement, modification, or amendment of
this Agreement shall be binding unless 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
“C” (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
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’ 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.
50. Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original.
51. Attorney Client Privilege. The Parties recognize that, during the Project, the
Commission and its attorneys will engage in communication that gives rise to an attorney
client privilege of confidentiality (“Confidential Communication”). Given the nature of the
work done by Consultant for the Commission, it may be necessary for the Consultant to
participate in Confidential Communications. To the extent that (i) the Consultant is a party
to any Confidential Communication, and (ii) a third party seeks discovery of such
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communications, then the Consultant shall be deemed to be an agent of the Commission
solely for purposes of preserving any attorney client privilege in the relevant Confidential
Communication. Any such attorney client privilege shall be held by the Commission and
the Consultant is not authorized to waive that privilege or, otherwise, disclose such
Confidential Communication except as set forth below. This Section is intended to maintain
the privilege in any privileged Confidential Communications that are (1) between and
among Commission, Consultant, and Commission’s attorneys; (2) between Consultant (on
behalf of the Commission) and 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
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.
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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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SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH PROPOSITION 1B, FTA AND FHWA FUNDING ASSISTANCE FOR
ENVIRONMENTAL CONSULTING SERVICES
IN WITNESS WHEREOF, this Agreement was executed on the date first written
above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
Anne Mayer
Approved as to Form:
By:
Best, Best & Krieger LLP
General Counsel
CONSULTANT
HNTB CORPORATION
By:
Signature
Name
Title
ATTEST:
By:
Its: ___________________________
* A corporation requires the signatures of two corporate officers.
One signature shall be that of the chairman of board, the president or any vice president and the second
signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or
any assistant treasurer of such corporation.
If the above persons are not the intended signators, evidence of signature authority shall be provided to
RCTC.
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Exhibit A
17336.00603\31171937.1
EXHIBIT "A" - SCOPE OF SERVICES
ON-CALL ENVIRONMENTAL CONSULTING
SERVICES
1.0 DESCRIPTION OF WORK
1.1 Consultant Responsibilities shall include, but will not be limited to the
following:
1.1.1 Review and evaluate project-specific environmental documents to
assess current compliance/validity under California Environmental Quality Act (CEQA)
and National Environmental Policy Act (NEPA) due to changes in project design,
environmental requirements, elapsed time, etc. Prepare appropriate written
documentation and supplemental materials (e.g., environmental
revalidation/reevaluation, CEQA addendum, update technical reports and studies, etc.) to
support the assessment.
1.1.2 Review and provide written input on project-specific environmental
documents, technical reports, and studies as requested by Commission staff (e.g., air
quality, water quality, noise, cultural resources, paleontology, biology, MSHCP studies,
and Sections 4[f] and 6[f]).
1.1.3 Permitting services including preparation of permit packages(s) and
submittal to permitting agency(ies); coordination with permitting agency(ies); and
shepherding permits(s) through their respective approval process(es).
1.1.4 Implementing, monitoring, and documenting the progress and
success of environmental commitments during construction and post-construction (e.g.,
environmentally sensitive area [ESA] fencing, permit conditions, habitat restoration,
revegetation, special environmental provisions, etc.).
1.1.5 Support of project compliance with Western Riverside County
Multispecies Habitat Conservation Plan (MSHCP) including preparation of documentation
needed to support consistency determination process.
1.1.6 Coordination with regulatory and resources agencies as needed, on
specific issues.
1.1.7 Other environmental services as requested by Commission staff.
1.1.8 In addition to meeting with and coordinating efforts with Commission
staff, Consultant may also be required to interact with Commission legal counsel, other
consultants, Caltrans, Federal Transit Administration, Federal Highway Administration, et
al.
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Exhibit A
17336.00603\31171937.1
1.1.9 If any legal issues exist during the course of work authorized under
this scope of work, Consultant shall inform Commission. All legal opinions shall be
rendered by Commission’s legal counsel.
1.1.10 If hazardous materials or wastes are discovered during the course of
work authorized under this scope of work, Consultant shall inform Commission and seek
further direction from the Commission.
1.2 Materials to be Furnished by Commission
1.2.1 All software, data, reports, surveys, drawings, and other documents
furnished to the Offeror by Commission for the Offeror’s use in the performance of
services shall be made available only for use in performing the assignment and shall
remain the property of Commission. All such materials shall be returned to Commission
upon completion of services, termination of the agreement, or other such time as
Commission may determine.
1.3 Personnel Qualifications and Responsibilities
1.3.1 The quantity and qualifications of personnel to be assigned will be
determined by the scope of the Task Order request and the degree of difficulty of required
tasks to be performed. All personnel and personnel assignments shall be subject to
approval by Commission.
1.4 Third Party Relationships
1.4.1 This Contract is intended to provide on-call environmental services
for Commission projects. In the development of the Commission projects, Commission
has worked closely with various professional offerors, agencies, and others in the
development of the project documents and other project related materials. Commission,
however, is solely responsible for and will be the sole point of contact for all contractual
matters related to the Task Orders. Offeror shall take direction only from Commission and
shall regularly inform only Commission of Task Order progress, outstanding issues, and
all related matters.
1.4.2 During the course of the contract, Offeror may find occasion to meet
with resource agencies, local jurisdictions, or Caltrans representatives, the design
engineer, or other third parties who have assisted with the various Plan projects. These
entities may, from time to time, offer suggestions and/or recommendations regarding the
Commission project or elements of the project. While the Commission enjoys a close
relationship with and has considerable confidence in the capabilities of these other parties,
Offeror shall not act on any suggestions, solicited or unsolicited, without obtaining specific
direction from Commission. All oral and written communication with outside agencies or
Offerors related to the project shall be directed only to Commission. Distribution of project
related communications and information shall be at the sole discretion of Commission
representatives.
2.0 TASK ORDER PROCEDURES
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Exhibit A
17336.00603\31171937.1
2.1 Definitions
2.1.1 The term Consultant shall refer to the firm or firms that are awarded
the contract for environmental consulting services.
2.1.2 A Task Order is utilized by the parties to establish, outline, and
authorize a particular job or task.
2.2 Initiating Task Orders
2.2.1 The Commission’s project manager will issue Task Orders to the
Consultant.
2.2.2 The Commission’s request for task order submittals. Upon a request
for a Task Order Proposal by the designated Commission project manager, contractor
shall develop a plan and submit a task order proposal for the requested services. The
Task Order shall include a time schedule, number of labor hours, and labor
classification(s) to provide the requested services.
2.3 Review and Award of Task Orders
2.3.1 The Commission’s designated project manager will review the
submitted Task Order (TO) to ensure that the submittal is complete, consistent with the
Commission’s written or oral request for services, the personnel assigned are acceptable,
the schedule is acceptable, that all costs proposed are appropriate, and that the item is in
compliance with contractual requirements. The project manager will award the Task
Order if it is determined to be fair and reasonable. If required, the Commission’s project
manager will conduct negotiations to address exceptions and clarify costs. The fully
executed Task Order will serve as the record of negotiations.
2.4 Completion Schedule
2.4.1 The contractors’ performance of services shall commence under
each Task Order only upon written authorization by the Commission’s designated project
manager.
2.4.2 Contractor shall complete the services within the time frame
specified on a particular Task Order.
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Exhibit B-1
17336.00603\31171937.1
EXHIBIT "B"- COMPENSATION AND PAYMENT
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FIRM PROJECT TASKS/ROLE COST
HNTB Corporation On-Call Environmental Consulting Services 3,000,000.00$
Applied Earthworks Cultural and Paleontology TBD
Duke Cultural Resources Management Paleontology and Cultural TBD
ECORP Consulting CEQA/NEPA Biological, Cultural, Architectural
History TBD
Epic Land Solutions Right of Way TBD
Environmental Review Partners Air Quality Analysis TBD
Environmental Science Associates CEQA/NEPA Biological Resources TBD
Pacific Restoration Group, Inc.Habitat Resoration TBD
Rincon Consultant, Inc.Biological Resources TBD
Terry A. Hayes Associates Air Quality Analysis, Greenhouse Gases, Climate
Change/Energy, and Noise/Vibration Services TBD
Tatsumi & Partners Aesthetics/Visual/Landscape TBD
3,000,000.00$ TOTAL COSTS
1 Commission authorization pertains to total contract award amount. Compensation adjustments between consultants may occur;
however, the maximum total compensation authorized may not be exceeded.
EXHIBIT "B"
Prime Consultant:
Sub Consultants:
COMPENSATION SUMMARY1
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Exhibit C-1
17336.00603\31171937.1
EXHIBIT "C"
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 creed, national origin, physical
disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age
(over 40), marital status, and denial of family care leave. Consultant and subconsultants
shall insure that the evaluation and treatment of their employees and applicants for
employment are free from such discrimination and harassment. Consultant and
subconsultants shall comply with the provisions of the Fair Employment and Housing Act
(Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated there under
(California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations
of the Fair Employment and Housing Commission implementing Government Code Section
12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of
Regulations, are incorporated into this Agreement by reference and made a part hereof as
if set forth in full. 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.
C. 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.
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,
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Exhibit C-2
17336.00603\31171937.1
including employment practices when the Agreement covers a program whose goal is
employment.
2. DEBARMENT AND SUSPENSION CERTIFICATION
CONSULTANT’s signature affixed herein, shall constitute a certification under penalty of
perjury under the laws of the State of California, that CONSULTANT has complied with Title
2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and
Suspension (nonprocurement)”, which certifies that he/she or any person associated
therewith in the capacity of owner, partner, director, officer, or manager, is not currently
under suspension, debarment, voluntary exclusion, or determination of ineligibility by any
federal agency; has not been suspended, debarred, voluntarily excluded, or determined
ineligible by any federal agency within the past three (3) years; does not have a proposed
debarment pending; and has not been indicted, convicted, or had a civil judgment rendered
against it by a court of competent jurisdiction in any matter involving fraud or official
misconduct within the past three (3) years. Any exceptions to this certification must be
disclosed to COMMISSION.
B. Exceptions will not necessarily result in denial of recommendation for award, but will be
considered in determining CONSULTANT responsibility. Disclosures must indicate to whom
exceptions apply, initiating agency, and dates of action.
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
The Commission shall not discriminate on the basis of race, color, national origin, or sex in
the award and performance of any DOT-assisted contract or in the implementation of the
Caltrans DBE program or the requirements of 49 CFR Part 26. The Commission shall take
all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in
the award and administration of DOT-assisted contracts.
Consultant or subcontractor shall not discriminate on the basis of race, color, national
origin, of sex in the performance of this Agreement. Consultant or subcontractor shall carry
out applicable requirements of 49 CFR Part 26 and the Caltrans DBE program in the award
and administration of DOT-assisted contracts, as further set forth below. Failure by the
Consultant or subcontractor to carry out these requirements is a material breach of this
Agreement, which may result in the termination of this Agreement or such other remedy, as
the Commission deems appropriate.
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
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Exhibit C-3
17336.00603\31171937.1
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
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 performance, or noncompliance by a
subconsultant. This provision applies to both DBE and non-DBE prime consultants and
subconsultants.
6. LEGAL REMEDIES
In addition to those contract remedies set forth under relevant provisions of California law,
either Party to this Agreement may, where applicable, seek legal redress for violations of
this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the
relevant federal or state statutory provisions governing civil rights violations, and to the
relevant federal and state provisions governing false claims or “whistleblower” actions, as
well as any and all other applicable federal and state provisions of law.
The Consultant shall include a provision to this effect in each of its agreements with its
subcontractors.
7. DBE PARTICIPATION
Caltrans has developed a statewide DBE program pursuant to 49 C.F.R. Part 26. The
requirements and procedures, as applicable, of the Caltrans DBE program are hereby
incorporated by reference into this Agreement. Even if no DBE participation will be
reported, Consultant shall complete Exhibits "D" 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.
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Exhibit C-4
17336.00603\31171937.1
B. This Agreement has established a 17% DBE goal. 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. 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 Agreement shall contain all of the
provisions of this section.
E. A DBE may be terminated only with prior written approval from the Commission and
only for the reasons specified in 49 CFR 26.53(f). Prior to requesting Commission consent
for the termination, the prime consultant must meet the procedural requirements specified
in 49 CFR 26.53(f).
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 8 below.
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Exhibit C-5
17336.00603\31171937.1
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 materials and supplies used on the
Agreement, for negotiating price, determining quality and quantity, ordering the material,
and installing (where applicable) and paying for the material itself. To determine whether a
DBE is performing a commercially useful function, evaluate the amount of work
subcontracted, industry practices; whether the amount the firm is to be paid under the
Agreement is commensurate with the work it is actually performing, and other relevant
factors.
B. A DBE does not perform a commercially useful function if its role is limited to that of
an extra participant in a transaction, Agreement, or project through which funds are passed
in order to obtain the appearance of DBE participation. In determining whether a DBE is
such an extra participant, examine similar transactions, particularly those in which DBEs do
not participate.
C. If a DBE does not perform or exercise responsibility for at least thirty percent of the
total cost of its Agreement with its own work force, or the DBE subcontracts a greater
portion of the work of the Agreement than would be expected on the basis of normal
industry practice for the type of work involved, it will be presumed that it is not performing a
commercially useful function.
10. DBE CERTIFICATION AND DE-CERTIFICATION STATUS
If a DBE subcontractor is decertified 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
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Exhibit C-6
17336.00603\31171937.1
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 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-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
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Exhibit C-7
17336.00603\31171937.1
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 for the total value of the transportation services it provides
on the Agreement using trucks it 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
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Exhibit C-8
17336.00603\31171937.1
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 issued in compliance with the Energy Policy and
Conservation Act (Pub. L. 94-163, 89 Stat. 871).
16. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code Section 10296, and by signing this Agreement,
Consultant certifies under penalty of perjury that no more than one final unappealable
finding of contempt of court by a federal court has been issued against Consultant within
the immediately preceding two-year period, because of Consultant’s failure to comply with
an order of a federal court that orders Consultant to comply with an order of the National
Labor Relations Board.
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Exhibit D-1
17336.00603\31171937.1
EXHIBIT "D"
CONSULTANT DBE COMMITMENT
Consultant to Complete this Section
1. Local Agency Name: _Riverside County Transportation Commission
2. Project Location: _Riverside County___________________________
3. Project Description: On-Call Environmental Consulting Services_____
4. Consultant Name: __________________________________________________________________________________________
5. Contract DBE Goal %: _17%_______________
DBE Commitment Information
6. Description of Services to be Provided 7. DBE Firm
Contact Information 8. DBE Cert.
Number 9. DBE %
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Exhibit E-1
17336.00603\31171937.1
EXHIBIT "E" - FTA PROVISIONS
FTA FUNDING REQUIREMENTS (Non-construction/maintenance work)
As used herein, “RCTC” shall have the same meaning as the “Commission.” The term “contract” or
“Contract” shall have the same meaning as the “Agreement.”
1. No Obligation by the Federal Government
a. RCTC and Consultant acknowledge and agree that, notwithstanding any concurrence by the
Federal Government in or approval of the solicitation or award of the underlying contract, absent the
express written consent by the Federal Government, the Federal Government is not a party to this
contract and shall not be subject to any obligations or liabilities to the Purchaser, Consultant, or any
other party (whether or not a party to that contract) pertaining to any matter resulting from the
underlying contract.
b. The Consultant agrees to include the above clause in each subcontract financed in whole or in
part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified,
except to identify the subconsultant who will be subject to its provisions.
2. Program Fraud and False or Fraudulent Statements or Related Acts
a. The Consultant acknowledges that the provisions of the Program Fraud Civil Remedies Act of
1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, "Program Fraud Civil
Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the
underlying contract, the Consultant certifies or affirms the truthfulness and accuracy of any statement
it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the
FTA assisted project for which this contract work is being performed. In addition to other penalties
that may be applicable, the Consultant further acknowledges that if it makes, or causes to be made, a
false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government
reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the
Consultant to the extent the Federal Government deems appropriate.
b. The Consultant also acknowledges that if it makes, or causes to be made, a false, fictitious, or
fraudulent claim, statement, submission, or certification to the Federal Government under a contract
connected with a project that is financed in whole or in part with Federal assistance originally awarded
by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the
penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Consultant, to the extent the Federal
Government deems appropriate.
c. The Consultant agrees to include the above two clauses in each subcontract financed in whole
or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be
modified, except to identify the subconsultant who will be subject to the provisions.
3. Access to Records
The Consultant agrees to the following access to records requirements:
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Exhibit E-2
17336.00603\31171937.1
a. To provide RCTC, the FTA Administrator, the Comptroller General of the United States or any
of their authorized representatives access to any books, documents, papers and records of the
Consultant which are directly pertinent to this contract for the purposes of making audits,
examinations, excerpts and transcriptions. Consultant also agrees, pursuant to 49 C. F. R. 633.17 to
provide the FTA Administrator or his authorized representatives including any PMO Consultant access
to Consultant's records and construction sites pertaining to a major capital project, defined at 49 U.S.C.
5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C.
5307, 5309 or 5311.
b. To make available in the case of a contract for a capital project or improvement, as defined
above and awarded by other than competitive bidding in accordance with 49 U.S.C. 5325(a), records
related to the contract to RCTC, the Secretary of Transportation and the Comptroller General or any
authorized officer or employee of any of them for the purposes of conducting an audit and inspection.
c. To maintain all books, records, accounts and reports required under this contract for a period of
not less than three years after the date of termination or expiration of this contract, except in the event
of litigation or settlement of claims arising from the performance of this contract, in which case
Consultant agrees to maintain same until RCTC, the FTA Administrator, the Comptroller General, or
any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or
exceptions related thereto. Reference 49 CFR 18.39(i)(11).
d. To permit any of the foregoing parties to reproduce by any means whatsoever or to copy
excerpts and transcriptions as reasonably needed.
4. Federal Changes
The Consultant shall at all times comply with all applicable FTA regulations, policies, procedures and
directives, including without limitation those listed directly or by reference in the Master Agreement
between RCTC and FTA, as they may be amended or promulgated from time to time during the term
of this contract. Consultant's failure to so comply shall constitute a material breach of this contract.
5. Civil Rights
The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. §
2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202
of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C.
§ 5332 and 49 CFR part 21, the Consultant agrees that it will not discriminate against any employee or
applicant for employment because of race, color, creed,
national origin, sex, age, or disability. In addition, the Consultant agrees to comply with applicable
Federal implementing regulations and other implementing requirements FTA may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity requirements apply
to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights
Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Consultant
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agrees to comply with all applicable equal employment opportunity requirements of U.S. Department
of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq ., (which implement
Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No.
11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. §
2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal
policies that may in the future affect construction activities undertaken in the course of the Project.
The Consultant agrees to take affirmative action to ensure that applicants are employed, and that
employees are treated during employment, without regard to their race, color, creed, national origin,
sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading,
demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or
other forms of compensation; and selection for training, including apprenticeship. In addition, the
Consultant agrees to comply with any implementing requirements FTA may issue.
(b) Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. § § 623, Federal transit law at 49 U.S.C. § 5332, the Equal Employment
Opportunity Commission (U.S. EEOC) regulations, “Age Discrimination in Employment Act,” 29
C.F.R. part 1625, the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S.
Health and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or
Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, the Consultant agrees to refrain
from discrimination against present and prospective employees for reason of age. In addition, the
Consultant agrees to comply with any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 504 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq.,
the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., and Federal transit law at
49 U.S.C. § 5332, the Consultant agrees that it will not discriminate against individuals on the basis of
disability, and that it will comply with the requirements of U.S. Equal Employment Opportunity
Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with
Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In
addition, the Consultant agrees to comply with any implementing requirements FTA may issue.
(3) The Consultant also agrees to include these requirements in each subcontract financed in whole
or in part with Federal assistance provided by FTA, modified only if necessary to identify the
affected parties.
6. FTA Disadvantaged Business Enterprise (DBE) Requirements
A. General DBE Requirements: In accordance with Federal financial assistance agreements with
the U.S. Department of Transportation (U.S. DOT), Commission has adopted a Disadvantaged
Business Enterprise (DBE) Policy and Program, in conformance with Title 49 CFR Part 26,
“Participation by Disadvantaged Business Enterprises in Department of Transportation Programs” (the
“Regulations”). This RFP is subject to these stipulated regulations. In order to ensure that Commission
achieves its overall DBE Program goals and objectives, Commission encourages the participation of
DBEs as defined in 49 CFR 26 in the performance of contracts financed in whole or in part with U.S.
DOT funds.
It is the policy of the Commission to:
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1. Ensure nondiscrimination in the award and administration of DOT-assisted contracts;
2. Create a level playing field on which DBE’s can compete fairly for DOT-assisted contracts;
3. Ensure that the DBE program is narrowly tailored in accordance with applicable law;
4. Ensure that only firms that fully meet 49 C.F.R. part 26 eligibility standards are permitted to
participate as DBE’s;
5. Help remove barriers to the participation of DBEs in DOT assisted contracts;
6. To promote the use of DBEs in all types of federally assisted contracts and procurement activities;
and
7. Assist in the development of firms that can compete successfully in the marketplace outside the
DBE program.
B. Discrimination: Consultant shall not discriminate on the basis of race, color, national origin, or
sex in the award and performance of subcontracts. Any terms used herein that are defined in 49 CFR
Part 26, or elsewhere in the Regulations, shall have the meaning set forth in the Regulations.
C. Commission’s Race-Neutral DBE Program: A Race-Neutral DBE Program is one that, while
benefiting DBEs, is not solely focused on DBE firms. Therefore, under a Race-Neutral DBE Program,
Commission does not establish numeric race-conscious DBE participation goals on its DOT-assisted
contracts. There is no FTA DBE goal on this Project.
Consultant shall not be required to achieve a specific level of DBE participation as a condition of
contract compliance in the performance of this DOT-assisted contract. However, Consultant
shall adhere to race-neutral DBE participation commitment(s) made at the time of award.
D. Race-Neutral DBE Submissions and Ongoing Reporting Requirements (Post-Award):
At termination of the Contract, the successful Consultant shall complete and submit to Commission a
“DBE Race-Neutral Participation Listing” in the form provided by Commission. In the event DBE(s)
are utilized in the performance of the Agreement, Consultant shall comply with applicable reporting
requirements.
E. Performance of DBE Subconsultants: DBE subconsultants listed by Consultant in its “DBE
Race-Neutral Participation Listing” submitted at the time of proposal shall perform the work and
supply the materials for which they are listed, unless Consultant has received prior written
authorization from Commission to perform the work with other forces or to obtain the materials from
other sources. Consultant shall provide written notification to Commission in a timely manner of any
changes to its anticipated DBE participation. This notice should be provided prior to the
commencement of that portion of the work.
F. DBE Certification Status: If a listed DBE subconsultant is decertified during the life of this
Agreement, the decertified subconsultant shall notify Consultant in writing with the date of
decertification. If a non-DBE subconsultant becomes a certified DBE during the life of this Agreement,
the DBE subconsultant shall notify Consultant in writing with the date of certification. Consultant shall
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furnish the written documentation to Commission in a timely manner. Consultant shall include this
requirement in all subcontracts.
G. Consultant’s Assurance Clause Regarding Non-Discrimination: In compliance with State and
Federal anti-discrimination laws, Consultant shall affirm that it will not exclude or discriminate on the
basis of race, color, national origin, or sex in consideration of contract award opportunities. Further,
Consultant shall affirm that they will consider, and utilize subconsultants and vendors, in a manner
consistent with non-discrimination objectives.
H. Violations: Failure by the selected Consultant(s) to carry out these requirements shall be a material
breach of the contract to be awarded pursuant to this RFP, which may result in the termination of the
contract or such other remedy as the recipient deems appropriate, which may include, but is not limited
to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the Consultant from future bidding as non-responsible. 49 C.F.R. § 26.13(b).
I. Prompt Payment: Consultant shall pay its subconsultants for satisfactory performance of their
contracts no later than 30 days from receipt of each payment Commission makes to the Consultant. 49
C.F.R. § 26.29(a), unless a shorter period is provided in the contract.
J. Compliance with DBE Requirements Contained in FTA Provisions: Consultant shall comply with all
DBE reporting and other requirements contained in this Agreement.
7. Incorporation of Federal Transit Administration (FTA) Terms
The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT,
whether or not expressly set forth in the preceding contract provisions. All contractual provisions
required by DOT, as set forth in FTA Circular 4220.1F are hereby incorporated by reference. Anything
to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event
of a conflict with other provisions contained in this Agreement. The Consultant shall not perform any
act, fail to perform any act, or refuse to comply with any RCTC requests which would cause RCTC to
be in violation of the FTA terms and conditions.
8. Debarment and Suspension.
The Consultant agrees to the following:
(1) It will comply with the following requirements of 2 CFR Part 180, subpart C, as adopted and
supplemented by U.S. DOT regulations at 2 CFR Part 1200.
(2) It will not enter into any “covered transaction” (as that phrase is defined at 2 CFR §§ 180.220 and
1200.220) with any subconsultant whose principal is, suspended, debarred, or otherwise excluded from
participating in covered transactions, except as authorized by— (i) U.S. DOT regulations,
“Nonprocurement Suspension and Debarment,” 2 CFR Part 1200; (ii) U.S. OMB regulatory guidance,
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“Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement),” 2 CFR
Part 180; and (iii) Other applicable federal laws, regulations, or requirements regarding participation
with debarred or suspended recipients or third party participants.
(3) It will review the U.S. GSA “System for Award Management – Lists of Parties Excluded from
Federal Procurement and Nonprocurement Programs,” if required by U.S. DOT regulations, 2 CFR
Part 1200.
9. ADA Access Requirements
The Consultant shall comply with all applicable requirements of the Americans with Disabilities Act of
1990 (ADA), 42 USC Section 12101 et seq; Section 504 of the Rehabilitation Act of 1973, as
amended, 29 USC Section 794; 49 USC Section 5301(d).
10. Fly America .
To the extent applicable to the Services, the Consultant agrees to comply with 49 U.S.C. 40118 (the
"Fly America" Act) in accordance with the General Services Administration's regulations at 41 CFR
Part 301-10, which provide that recipients and sub recipients of Federal funds and their consultants are
required to use U.S. Flag air carriers for U.S. Government-financed international air travel and
transportation of their personal effects or property, to the extent such service is available, unless travel
by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Consultant shall
submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately
explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a
foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America
requirements. The Consultant agrees to include the requirements of this section in all subcontracts that
may involve international air transportation.
11. Cargo Preference - Use of United States-Flag Vessels
To the extent applicable to the Services, the Consultant agrees:
1. To use privately owned United States-Flag commercial vessels to ship at least 50 percent of
the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers)
involved, whenever shipping any equipment, material, or commodities pursuant to the
underlying contract to the extent such vessels are available at fair and reasonable rates for
United States-Flag commercial vessels;
2. To furnish within 20 working days following the date of loading for shipments originating
within the United States or within 30 working days following the date of leading for
shipments originating outside the United States, a legible copy of a rated, "on-board"
commercial ocean bill-of -lading in English for each shipment of cargo described in the
preceding paragraph to the Division of National Cargo, Office of Market Development,
Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the
Consultant in the case of a subconsultant's bill-of-lading.)
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3. To include these requirements in all subcontracts issued pursuant to this contract when the
subcontract may involve the transport of equipment, material, or commodities by ocean
vessel.
11. Buy America – Not applicable.
12. Employment Provisions
To the extent applicable to the Services, Consultant shall comply with the following:
A. Equal Employment Opportunity — Not applicable.
B. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c) — Not applicable.
C. Contact Work Hours and Safety Standards Act (40 U.S.C. 327–333) —Not applicable.
D. Release of Retainage
No retainage will be withheld by the RCTC from progress payments due Consultant. Retainage by
Consultant or subconsultants is prohibited, and no retainage will be held by the prime consultant from
progress due subconsultants. Any violation of this provision shall subject the violating Consultant or
subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the
California Business and Professions Code. This requirement shall not be construed to limit or impair
any contractual, administrative, or judicial remedies, otherwise available to Consultant or
subconsultant in the event of a dispute involving late payment or nonpayment by Consultant or
deficient subconsultant performance, or noncompliance by a subconsultant.
13. Termination for Convenience
RCTC may terminate the Agreement for convenience in accordance with the terms of the Agreement.
After such termination, the Consultant shall submit a final termination settlement proposal to RCTC as
directed. If the Consultant fails to submit a proposal within the time allowed, RCTC may determine, on
the basis of information available, the amount, if any due the Consultant because of the termination and
shall pay the amount determined. After the Consultant’s proposal is received, RCTC and Consultant
shall negotiate a fair and equitable settlement and the contract will be modified to reflect the negotiated
agreement. If agreement cannot be reached, RCTC may issue a final determination and pay the amount
determined. If the Consultant does not agree with this final determination or the determination resulting
from the lack of timely submission of a proposal, the Consultant may appeal under the Disputes clause.
14. Administrative and Contractual Remedies on Breach; Termination for Cause
a. The Consultant may be declared in breach of this Agreement (“Breach”) if the Consultant
fails to make delivery of the supplies or to perform the services within the time specified herein or any
extension thereof; or if the Consultant fails to perform any of the other provisions of the contract, or so
fails to make progress as to endanger performance of this contract in accordance with its terms. In case
of any of the foregoing, RCTC shall notify the Consultant of the Breach, and the Consultant shall have
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a period of ten (10) days (or such longer period as RCTC may authorize in writing) after receipt of
notice from RCTC to cure the Breach.
b. RCTC may, by written notice of termination to the Consultant specifying the effective date
thereof, terminate the whole or any part of this contract, in the case of a Breach that is not cured within
the timeframe set forth in (a) above (“Uncured Breach”).
c. If the contract is terminated in whole or in part for an Uncured Breach, RCTC may procure
upon such terms and in such manner as RCTC may deem appropriate, supplies or services similar to
those so terminated, or may complete the services with its own forces. The Consultant shall be liable
to RCTC for any excess costs for such similar supplies or services, and for any other costs incurred by
RCTC as a result of the Uncured Breach. The Consultant shall continue the performance of this
contract to the extent not terminated under the provisions of this clause.
d. Except with respect to defaults of Subconsultants, the Consultant shall not be liable for any
excess costs if the failure to perform the contract arises out of causes beyond the control and without
the fault or negligence of the Consultant. If the failure to perform is caused by the default of a
Subconsultant, and if such default arises out of causes beyond the control of both the Consultant and
the Subconsultant, and without the fault or negligence of either of them, the Consultant shall not be
liable for any excess costs for failure to perform, unless the supplies or services to be furnished by the
Subconsultant were obtainable from other sources in sufficient time to permit the Consultant to meet
the required project completion schedule.
e. Payment for completed services or supplies delivered to and accepted by RCTC shall be at the
contract price. RCTC may withhold from amounts otherwise due the Consultant for such completed
services or supplies such sum as RCTC determines to be necessary to protect RCTC against loss
because of outstanding liens of claims of former lien holders, or to reimburse RCTC for any other costs
related to the Uncured Breach.
f. If, after notice of termination of this contract for cause, it is determined for any reason that an
Uncured Breach did not exist, the rights and obligations of the parties shall be the same as if the notice
of termination had been issued pursuant to the provisions for termination for convenience of RCTC.
g. The rights and remedies of RCTC provided in this clause shall not be exclusive and are in
addition to any other rights and remedies provided by law, equity or under this contract including, but
not limited to, the right to specific performance.
h. Notwithstanding the above, RCTC may, without providing an opportunity to cure, terminate the
contract in accordance with the timeframe set forth in Section 17 of the contract, if RCTC determines
such action is in its best interest based on the nature of the Breach. Such actions shall not limit any of
RCTC’s remedies set forth above.
16. Disputes
a. Except as otherwise provided in this Agreement, any dispute concerning a question of fact
arising under this Agreement which is not disposed of by supplemental agreement shall be
decided by RCTC’s Deputy Executive Director, who shall reduce the decision to writing and mail or
otherwise furnish a copy thereof to the Consultant. The decision of the RCTC Deputy Executive
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Director shall be final and conclusive unless, within thirty (30) days from the date of receipt of such
copy, Consultant mails or otherwise furnishes to the RCTC Deputy Executive Director a written appeal
addressed to RCTC's Executive Director. The decision of RCTC Executive Director or duly authorized
representative for the determination of such appeals shall be final and conclusive.
b. The provisions of this Paragraph shall not be pleaded in any suit involving a question of fact
arising under this Agreement as limiting judicial review of any such decision to cases where fraud by
such official or his representative or board is alleged, provided, however, that any such decision shall
be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous
as necessarily to imply bad faith or is not supported by substantial evidence. In connection with any
appeal proceeding under this Paragraph, the Consultant shall be afforded an opportunity to be heard
and to offer evidence in support of its appeal.
c. Pending final decision of a dispute hereunder, Consultant shall proceed diligently with the
performance of this Agreement and in accordance with the decision of RCTC's Deputy Executive
Director. This "Disputes" clause does not preclude consideration of questions of law in connection with
decisions provided for above. Nothing in this Agreement, however, shall be construed as making final
the decision of any RCTC official or representative on a question of law, which questions shall be
settled in accordance with the laws of the State of California.
17. Lobbying
See the Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure
Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Consultants who apply or bid
for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New
Restrictions on Lobbying.” Each tier certifies to the tier above that it will not and has not used Federal
appropriated funds to pay any person or organization for influencing or attempting to influence an
officer or employee of any agency, a member of Congress, officer or employee of Congress, or an
employee of a member of Congress in connection with obtaining any Federal contract, grant or any
other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under
the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal
funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such
disclosures are forwarded from tier to tier up to the recipient. The Offeror shall complete and submit
with its bid/proposal the attached Certification Regarding Lobbying, and if applicable, the Standard
Form-LLL, “Disclosure Form to Report Lobbying.”
18. Energy Conservation
The Consultant agrees to comply with mandatory standards and policies relating to energy efficiency
which are contained in the state energy conservation plan issued in compliance with the Energy Policy
and Conservation Act.
19. Clean Water
a. The Consultant agrees to comply with all applicable standards, orders or regulations issued
pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. The
Consultant agrees to report each violation to RCTC and understands and agrees that RCTC will, in
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turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional
Office.
d. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List of Violating
Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as amended, (42
U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as amended, (33 U.S.C. §§
1251-1387).
The Consultant also agrees to include these requirements in each subcontract exceeding $150,000
financed in whole or in part with Federal assistance provided by FTA.
20. Clean Air
a. The Consultant agrees to comply with all applicable standards, orders or regulations issued
pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Consultant agrees to report
each violation to RCTC and understands and agrees that RCTC will, in turn, report each violation as
required to assure notification to FTA and the appropriate EPA Regional Office.
b. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List of Violating
Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as amended, (42
U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as amended, (33 U.S.C. §§
1251-1387).
c. The Consultant also agrees to include these requirements in each subcontract exceeding
$150,000 financed in whole or in part with Federal assistance provided by FTA.
21. Recycled Products
Recovered Materials - The Consultant agrees to comply with all the requirements of Section
6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962),
including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order
12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part
247.
21. SPECIAL PROVISION FOR PROMOTING COVID-19 SAFETY
Section 49. Centers for Disease Control and Prevention Order on Requirements for Persons
to Wear Masks While on Conveyances and at Transportation Hubs.
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(a) Compliance with CDC Mask Order. The Centers for Disease Control and Prevention (“CDC”)
Order of January 29, 2021, titled Requirement for Persons to Wear Masks While on Conveyances and
at Transportation Hubs (“CDC Mask Order”), applies to this Agreement. One of the objectives of the
CDC Mask Order is “[m]aintaining a safe and operating transportation system.” Consultant agrees that
it will comply, and will require all subconsultants to comply, with the CDC Mask Order, to the extent
the CDC Mask Order remains in effect.
(b) Enforcement for non-compliance. Consultant agrees that FTA and RCTC may take enforcement
action for non-compliance with the CDC Mask Order, to the extent the CDC Mask Order remains in
effect, including: (1) enforcement actions authorized by 49 U.S.C. § 5329(g); (2) referring Consultant
to the CDC or other Federal authority for enforcement action; (3) enforcement actions authorized by 2
CFR §§ 200.339 – .340; and (4) any other enforcement action authorized by Federal law or regulation.
22. Safe Operation of Motor Vehicles
Pursuant to Federal Executive Order No. 13043, “Increasing Seat Belt Use in the United States,” April
16, 1997, 23 U.S.C. Section 402 note, FTA encourages each third party consultant to adopt and
promote on-the-job seat belt use policies and programs for its employees and other personnel that
operate company owned, rented, or personally operated vehicles, and to include this provision in each
third party subcontract involving the project.
a. The Consultant is encouraged to adopt and promote on-the-job seat belt use policies and programs
for its employees and other personnel that operate company-owned vehicles, company-rented vehicles,
or personally operated vehicles. The terms “company-owned” and “company-leased” refer to vehicles
owned or leased either by the Consultant or RCTC.
b. The Consultant agrees to adopt and enforce workplace safety policies to decrease crashes
caused by distracted drivers, including policies to ban text messaging while using an electronic device
supplied by an employer, and driving a vehicle the driver owns or rents, a vehicle Contactor owns,
leases, or rents, or a privately-owned vehicle when on official business in connection with the work
performed under this contract.
23. Notification to FTA.
a. If a current or prospective legal matter that may affect the Federal Government emerges, the Consultant
must promptly notify the FTA Chief Counsel and FTA Regional Counsel for the Region in which this
Agreement is being performed. The types of legal matters that require notification include, but are not limited to,
a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal
disagreement in any forum for any reason.
b. Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s
interests in the Award, the accompanying Underlying Agreement, and any Amendments thereto, or the Federal
Government’s administration or enforcement of federal laws, regulations, and requirements.
c. Additional Notice to U.S. DOT Inspector General. The Consultant must promptly notify the U.S. DOT
Inspector General in addition to the FTA Chief Counsel or Regional Counsel for the Region in which the
Commission located, if Consultant has knowledge of potential fraud, waste, or abuse occurring on a Project
receiving assistance from FTA. The notification provision applies if a person has or may have submitted a false
claim under the False Claims Act, 31 U.S.C. § 3729, et seq., or has or may have committed a criminal or civil
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violation of law pertaining to such matters as fraud, conflict of interest, bid rigging, misappropriation or
embezzlement, bribery, gratuity, or similar misconduct involving federal assistance. Knowledge, as used in this
paragraph, includes, but is not limited to, knowledge of a criminal or civil investigation by a Federal, state, or
local law enforcement or other investigative agency, a criminal indictment or civil complaint, or probable cause
that could support a criminal indictment, or any other credible information in the possession of the Consultant.
In this paragraph, “promptly” means to refer information without delay and without change.
24. Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment
Consultant shall not contract (or extend or renew a contract) to procure or obtain equipment, services, or systems
that uses covered telecommunications equipment or services as a substantial or essential component of any
system, or as critical technology as part of any system funded under this Contract. As described in Public Law
115–232, section 889, covered telecommunications equipment is telecommunications equipment produced by
Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
a. For the purpose of public safety, security of government facilities, physical security surveillance of critical
infrastructure, and other national security purposes, video surveillance and telecommunications equipment
produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or
Dahua Technology Company (or any subsidiary or affiliate of such entities).
b. Telecommunications or video surveillance services provided by such entities or using such equipment.
c. Telecommunications or video surveillance equipment or services produced or provided by an entity that the
Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal
Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to,
the government of a covered foreign country.
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Exhibit F-1
17336.00603\31171937.1
EXHIBIT “F” – LOBBYING ACTIVITIES DISCLOSURE
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Local Assistance Procedures Manual EXHBIT 10-Q
Disclosure of Lobbying Activities
Page 1
LPP 13-01 May 8, 2013
EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES
COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVITIES PURSUANT TO 31 U.S.C. 1352
1.Type of Federal Action:2.Status of Federal Action:3.Report Type:
a. contract a. bid/offer/application a. initial
b. grant b. initial award b. material change
c. cooperative agreement c. post-award
d. loan For Material Change Only:
e. loan guarantee year ____ quarter _________
f. loan insurance date of last report __________
4.Name and Address of Reporting Entity 5.If Reporting Entity in No. 4 is Subawardee,
Enter Name and Address of Prime:
Prime Subawardee
Tier _______ , if known
Congressional District, if known Congressional District, if known
6.Federal Department/Agency:7.Federal Program Name/Description:
CFDA Number, if applicable ____________________
8.Federal Action Number, if known:9.Award Amount, if known:
10.Name and Address of Lobby Entity 11.Individuals Performing Services
(If individual, last name, first name, MI) (including address if different from No. 10)
(last name, first name, MI)
(attach Continuation Sheet(s) if necessary)
12.Amount of Payment (check all that apply)14.Type of Payment (check all that apply)
$ _____________ actual planned a. retainer
b. one-time fee
13.Form of Payment (check all that apply):c. commission
a. cash d. contingent fee
b. in-kind; specify: nature _______________e deferred
Value _____________ f. other, specify _________________________
15.Brief Description of Services Performed or to be performed and Date(s) of Service, including
officer(s), employee(s), or member(s) contacted, for Payment Indicated in Item 12:
(attach Continuation Sheet(s) if necessary)
16.Continuation Sheet(s) attached: Yes No
17.Information requested through this form is authorized by Title
31 U.S.C. Section 1352. This disclosure of lobbying reliance
was placed by the tier above when his transaction was made or
entered into. This disclosure is required pursuant to 31 U.S.C.
1352. This information will be reported to Congress
semiannually and will be available for public inspection. Any
person who fails to file the required disclosure shall be subject
to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Signature: ________________________________________
Print Name: _______________________________________
Title: ____________________________________________
Telephone No.: ____________________ Date: ___________
Authorized for Local Reproduction
Federal Use Only: Standard Form - LLL
Standard Form LLL Rev. 04-28-06
Distribution: Orig- Local Agency Project Files
Not Applicable
C. Yoga Chandran, PhD, PE, GE
Vice President
(213) 337-2144 07/14/2022
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Agreement No. 22-31-104-00
PROFESSIONAL SERVICES AGREEMENT
WITH PROPOSITION 1B, FTA AND FHWA FUNDING ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
ICF JONES & STOKES, INC.
FOR ON-CALL ENVIRONMENTAL CONSULTING 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 ICF JONES & STOKES, INC. ("Consultant"), a Corporation. The
Commission and Consultant are sometimes referred to herein individually as “Party”, and
collectively as the “Parties”.
Recitals.
A.On November 8, 1988 the Voters of Riverside County approved Measure A
authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax (the
"tax") to fund transportation programs and improvements within the County of Riverside,
and adopting the Riverside County Transportation Improvement Plan (the "Plan").
B.Pursuant to Public Utility Code Sections 240000 et seq., the Commission is
authorized to allocate the proceeds of the Tax in furtherance of the Plan.
C.On November 5, 2002, the voters of Riverside County approved an extension
of the Measure A tax for an additional thirty (30) years for the continued funding of
transportation and improvements within the County of Riverside.
D.A source of funding for payment for on-call professional 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 environmental consulting 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.
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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 environmental consulting 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 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. 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
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
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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 on the date first set forth above,
contingent upon approval by Commission, and Consultant shall commence work after
notification to proceed by Commission’s Contract Administrator. This Agreement shall end
three years from the date set forth above, unless extended by contract amendment. The
Commission shall have the option to extend the term for one, two-year option. In no case
shall the term of this Agreement exceed five (5) years. All Task Order work should be
completed within the term.
5.2 Consultant is advised that any recommendation for contract award is
not binding on Commission until this Agreement is fully executed and approved by the
Commission.
5.3 This Agreement shall remain in effect until the date set forth above,
unless earlier terminated as provided herein. Consultant shall complete the Services
within the term of this Agreement, and shall meet any other established schedules and
deadlines. All applicable indemnification provisions of this Agreement shall remain in
effect following the termination of this Agreement.
6. Commission's Contract Administrator. The Commission hereby designates
the Commission's Executive Director, or his or her designee, to act as its Contract
Administrator for the performance of this Agreement ("Commission’s Contract
Administrator"). Commission’s Contract Administrator shall have the authority to act on
behalf of the Commission for all purposes under this Agreement. Commission’s Contract
Administrator shall also review and give approval, as needed, to the details of Consultant's
work as it progresses. Consultant shall not accept direction or orders from any person
other than the Commission’s Contract Administrator or his or her designee.
7. Consultant's Representative. Consultant hereby designates Court Morgan 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
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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: Court Morgan, Emily Czaban, Monica Corpuz,
Peter Hardie, Greg Hoisington, Megan Jameson, and Keith Lay, or as otherwise
identified in the Task Order.
9. Standard of Care; Licenses. Consultant represents and maintains that it is
skilled in the professional calling necessary to perform all Services, duties and obligations
required by this Agreement to fully and adequately complete the Project. Consultant shall
perform the Services and duties in conformance to and consistent with the standards
generally recognized as being employed by professionals in the same discipline in the
State of California. Consultant warrants that all employees and subcontractors shall have
sufficient skill and experience to perform the Services assigned to them. Consultant further
represents and warrants to the Commission that its employees and subcontractors have all
licenses, permits, qualifications and approvals of whatever nature that are legally required
to perform the Services, and that such licenses and approvals shall be maintained
throughout the term of this Agreement. Consultant shall perform, at its own cost and
expense and without reimbursement from the Commission, any services necessary to
correct errors or omissions which are caused by the Consultant’s failure to comply with the
standard of care provided for herein, and shall be fully responsible to the Commission for
all damages and other liabilities provided for in the indemnification provisions of this
Agreement arising from the Consultant’s errors and omissions. Any employee of
Consultant or its sub-consultants who is determined by the Commission to be
uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a
threat to the safety of persons or property, or any employee who fails or refuses to perform
the Services in a manner acceptable to the Commission, shall be promptly removed from
the Project by the Consultant and shall not be re-employed to perform any of the Services
or to work on the Project.
10. Independent Contractor. The Services shall be performed by Consultant or
under its supervision. Consultant will determine the means, methods and details of
performing the Services subject to the requirements of this Agreement. Commission
retains Consultant on an independent contractor basis and not as an employee, agent or
representative of the Commission. Consultant retains the right to perform similar or
different services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Consultant shall at all times be
under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries
and other amounts due such personnel in connection with their performance of Services
and as required by law. Consultant shall be responsible for all reports and obligations
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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. 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 expeditiously, within the term of this
Agreement, and in accordance with any schedule of Services set forth in a Task Order
(“Schedule”). Consultant represents that it has the professional and technical personnel to
perform the Services in conformance with such conditions. In order to facilitate
Consultant's conformance with the Schedule, the Commission shall respond to Consultant's
submittals in a timely manner. Upon request of Commission’s Contract Administrator,
Consultant shall provide a more detailed schedule of anticipated performance to meet the
Schedule of Services.
11.1 Modification of the Schedule. Consultant shall regularly report to the
Commission, through correspondence or progress reports, its progress in providing
required Services within the scheduled time periods. Commission shall be promptly
informed of all anticipated delays. In the event that Consultant determines that a schedule
modification is necessary, Consultant shall promptly submit a revised Schedule of Services
for approval by Commission’s Contract Administrator.
11.2 Trend Meetings. Consultant shall conduct trend meetings with the
Commission’s Contract Administrator and other interested parties, as requested by the
Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a
standard day and time. These trend meetings will encompass focused and informal
discussions concerning scope, schedule, and current progress of Services, relevant cost
issues, and future Project objectives. Consultant shall be responsible for the preparation
and distribution of meeting agendas to be received by the Commission and other
attendees no later than three (3) working days prior to the meeting.
11.3 Progress Reports. As part of its monthly invoice, Consultant shall
submit a progress report, in a form determined by the Commission, which will indicate the
progress achieved during the previous month in relation to the Schedule of Services.
Submission of such progress report by Consultant shall be a condition precedent to receipt
of payment from the Commission for each monthly invoice submitted.
12. Delay in Performance.
12.1 Excusable Delays. Should Consultant be delayed or prevented from
the timely performance of any act or Services required by the terms of the Agreement by
reason of acts of God or of the public enemy, acts or omissions of the Commission or
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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 timely notice shall constitute a
waiver by Consultant of any right to an excusable delay in time of performance.
12.3 Mutual Agreement. Performance of any Services under this
Agreement may be delayed upon mutual agreement of the Parties. Upon such
agreement, Consultant's Schedule of Services shall be extended as necessary by the
Commission. Consultant shall take all reasonable steps to minimize delay in completion,
and additional costs, resulting from any such extension.
13. Preliminary Review of Work. All reports, working papers, and similar work
products prepared for submission in the course of providing Services under this Agreement
shall be submitted to the Commission’s Contract Administrator in draft form, and the
Commission may require revisions of such drafts prior to formal submission and approval.
In the event plans and designs are to be developed as part of the Project, final detailed
plans and designs shall be contingent upon obtaining environmental clearance as may be
required in connection with Federal funding. In the event that Commission’s Contract
Administrator, in his or her sole discretion, determines the formally submitted work product
to be not in accordance with the standard of care established under this Agreement,
Commission’s Contract Administrator may require Consultant to revise and resubmit the
work at no cost to the Commission.
14. Appearance at Hearings. If and when required by the Commission,
Consultant shall render assistance at public hearings or other meetings related to the
Project or necessary to the performance of the Services. However, Consultant shall not be
required to, and will not, render any decision, interpretation or recommendation regarding
questions of a legal nature or which may be construed as constituting a legal opinion.
15. Opportunity to Cure; Inspection of Work. Commission may provide
Consultant an opportunity to cure, at Consultant's expense, all errors and omissions 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.
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
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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 personnel services under this
Agreement.
16.3 Services of the Consultant’s personnel and other support staff in
connection with Contractor claims will be performed pursuant to a written contract
amendment, if necessary, extending the termination date of this Agreement in order to
finally resolve the claims.
16.4 Nothing contained in this Section shall be construed to in any way limit
Consultant’s indemnification obligations contained in Section 29. In the case of any
conflict between this Section and Section 29, Section 29 shall govern. This Section is not
intended to obligate the Commission to reimburse Consultant for time spent by its
personnel related to Contractor claims for which Consultant is required to indemnify and
defend the Commission pursuant to Section 29 of this Agreement.
17. Final Acceptance. Upon determination by the Commission that Consultant
has satisfactorily completed the Services required under this Agreement and within the
term set forth herein the Commission shall give Consultant a written Notice of Final
Acceptance. Upon receipt of such notice, Consultant shall incur no further costs
hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may
request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily
completed all Services required under the terms of this Agreement. In the event copyrights
are permitted under this Agreement, then in connection with Federal funding, it is hereby
acknowledged and agreed that the United States Department of Transportation shall have
the royalty-free non-exclusive and irrevocable right to reproduce, publish, or otherwise use,
and to authorize others to use, the work for governmental purposes.
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
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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 this Agreement will be based on actual
cost plus a fixed fee. Commission shall reimburse Consultant for actual costs (including
labor costs, employee benefits, travel, equipment rental costs, overhead and other direct
costs) incurred by Consultant in performance of the Services. Consultant shall not be
reimbursed for actual costs that exceed the estimated wage rates, employee benefits,
travel, equipment rental, overhead, and other estimated costs set forth in the approved
Consultant cost proposal attached hereto as Exhibit “B” and incorporated herein by
reference, or any cost proposal included as part of a Task Order (“Cost Proposal”) unless
additional reimbursement is provided for by written amendment. The overhead rates
included in the attached Exhibit “B” shall be fixed for the term of the Master Agreement,
and shall not be subject to adjustment, unless required by the applicable funding source.
In In no event, shall Consultant be reimbursed for overhead costs at a rate that exceeds
Commission’s approved overhead rate set forth in the Cost Proposal. In the event that
Commission determines that a change to the Services from that specified in the Cost
Proposal, this Agreement or any Task Order is required, the Agreement time or actual
costs reimbursable by Commission shall be adjusted by written amendment to
accommodate the changed work. The maximum total cost as specified in Section 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
Consultant is responsible for the cost difference and any overpayments shall be
reimbursed to the Commission on demand.
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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 approval of any Services, nor for
any Services performed prior to approval of this Agreement.
19.7 Consultant shall be reimbursed, as promptly as fiscal procedures will
permit upon receipt by Commission’s Contract Administrator of itemized invoices in
triplicate. Invoices shall be submitted no later than 45 calendar days after the performance
of work for which Consultant is billing. Invoices shall detail the work performed on each
milestone and each project as applicable. Invoices shall follow the format stipulated for the
approved Cost Proposal and shall reference this Agreement number and project title. Final
invoice must contain the final cost and all credits due Commission including any
equipment purchased under the Equipment Purchase provisions of this Agreement. The
final invoice should be submitted within 60 calendar days after completion of Consultant’s
work. Invoices shall be mailed to Commission’s Contract Administrator at the following
address:
Riverside County Transportation Commission
Attention: Accounts Payable
P.O. 12008
Riverside, CA 92502
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 Commission has or will enter into four (4) task order contracts for
performance of the Scope of Services identified in Exhibit “A”, including this Agreement
(“Environmental Services Task Order Contracts”). The other Environmental Services Task
Order Contracts are GPA Consulting, HNTB Corporation, and Stantec Consulting
Services, Inc. The total amount payable by Commission for the Environmental Services
Task Order Contracts shall not exceed a cumulative maximum total value of Three Million
Dollars ($3,000,000) (“NTE Sum”). It is understood and agreed that there is no guarantee,
either expressed or implied that this dollar amount will be authorized under the
Environmental Services Task Order Contracts through Task Orders. Each time a Task
Order is awarded under any of the Environmental Services Task Order Contracts,
Commission must send written notification to Consultant and each of the other consultants
entering into the Environmental Services Task Order Contracts. The notice must identify
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the total funds allocated under issued Task Orders, and the remaining unencumbered
amount of the NTE Sum. Consultant acknowledges and agrees that Commission must not
pay any amount under this Agreement that would exceed the NTE Sum, and Consultant
must not enter into a Task Order that exceeds the NTE Sum.
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 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 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.
21.1 Commission reserves the right to terminate this Agreement upon thirty
(30) calendar days written notice to Consultant, for any or no reason, with the reasons for
termination stated in the notice. Commission may terminate Services under a Task Order,
at any time, for any or no reason, with the effective date of termination to be specified in
the notice of termination of Task Order.
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
Services in any manner deemed proper by Commission. If Commission terminates this
Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant
under this Agreement for Services completed and accepted prior to termination, unless the
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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.
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
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 allowability of individual items.
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.
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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,
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 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.
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)
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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.
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 “B” may set forth the rates at which each subconsultant shall
bill the Consultant for Services and that are subject to reimbursement by the Commission
to Consultant. Additional Direct Costs, as defined in Exhibit “B” shall be the same for both
the Consultant and all subconsultants, unless otherwise identified in Exhibit “B” or in a
Task Order. The subconsultant rate schedules and cost proposals contained herein are for
accounting purposes only.
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 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
the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s
Contract Administrator is required. Three competitive quotations must be submitted with
the request for such purchase, or the absence of bidding must be adequately justified.
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
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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.
26.4 All subcontracts in excess $25,000 shall contain the above provisions.
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 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 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. Since the Services are being performed as part of
an applicable “public works” or “maintenance” project, then pursuant to Labor Code
Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered
with the Department of Industrial Relations. Consultant shall maintain registration for the
duration of the Project and require the same of any subconsultants. This Project may also
be subject to compliance monitoring and enforcement by the Department of Industrial
Relations. It shall be Consultant’s sole responsibility to comply with all applicable
registration and labor compliance requirements.
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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 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 the Services, Consultant and any
subcontractor hereunder who employs workers in any apprenticeable craft or trade shall
apply to the joint apprenticeship council administering applicable standards for a certificate
approving Consultant or any sub-consultant for the employment and training of apprentices.
Upon issuance of this certificate, Consultant and any sub-consultant shall employ the
number of apprentices provided for therein, as well as contribute to the fund to administer
the apprenticeship program in each craft or trade in the area of the work hereunder.
The parties expressly understand that the responsibility for compliance with
provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California
Labor Code in regard to all apprenticeable occupations lies with Consultant
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, 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”).
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Consultant shall require all subcontractors to agree in writing that
Commission is granted an exclusive and perpetual license for any Documents & Data the
subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal right
to grant the exclusive and perpetual license for all such Documents & Data. Consultant
makes no such representation and warranty in regard to Documents & Data which were
prepared by design professionals other than Consultant or provided to Consultant by the
Commission.
Commission shall not be limited in any way in its use of the Documents
& Data at any time, provided that any such use not within the purposes intended by this
Agreement shall be at Commission’s sole risk.
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 this Agreement.
The Commission shall have and retain all right, title and interest in
Intellectual Property developed or modified under this Agreement whether or not paid for
wholly or in part by Commission, whether or not developed in conjunction with Consultant,
and whether or not developed by Consultant. Consultant will execute separate written
assignments of any and all rights to the above referenced Intellectual Property upon
request of Commission.
Consultant shall also be responsible to obtain in writing separate
written assignments from any subcontractors or agents of Consultant of any and all right to
the above referenced Intellectual Property. Should Consultant, either during or following
termination of this Agreement, desire to use any of the above-referenced Intellectual
Property, it shall first obtain the written approval of the Commission.
All materials and documents which were developed or prepared by the
Consultant for general use prior to the execution of this Agreement and which are not the
copyright of any other party or publicly available and any other computer applications, shall
continue to be the property of the Consultant. However, unless otherwise identified and
stated prior to execution of this Agreement, Consultant represents and warrants that it has
the right to grant the exclusive and perpetual license for all such Intellectual Property as
provided herein.
Commission further is granted by Consultant a non-exclusive and
perpetual license to copy, use, modify or sub-license any and all Intellectual Property
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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, 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 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 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 shall reimburse Commission, Caltrans and their directors, officials,
officers, employees, consultants, agents, and/or volunteers, for any and all legal expenses
and costs, including reasonable attorney’s fees, incurred by each of them in connection
therewith or in enforcing the indemnity herein provided. Consultant's obligation to
indemnify shall not be restricted to insurance proceeds, if any, received by Commission,
Caltrans, their directors, officials officers, employees, consultants, agents, or volunteers.
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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, 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
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 shall reimburse Commission,
Caltrans and their directors, officials, officers, employees, consultants, agents, and/or
volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees,
incurred by each of them in connection therewith or in enforcing the indemnity herein
provided. Consultant's obligation to indemnify shall not be restricted to insurance
proceeds, if any, received by Commission, Caltrans or their directors, officials officers,
employees, consultants, agents, or volunteers. Notwithstanding the foregoing, to the extent
Consultant’s Services are subject to Civil Code Section 2782.8, the above indemnity shall
be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of,
pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
Consultant’s obligations as set forth in this Section 29 shall survive expiration or
termination of this Agreement.
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31. Insurance.
31.1 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.
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,
code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation insurance as required by the State of California and
Employer’s Liability Insurance.
(b) Minimum Limits of Insurance. Consultant shall maintain limits
no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form with
general aggregate limit is used, either the general aggregate limit shall apply separately to
this Agreement/location or the general aggregate limit shall be twice the required
occurrence limit. Limits may be achieved by any combination of primary and excess or
umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily
injury and property damage. Limits may be achieved by any combination of primary and
excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation limits as required by the Labor Code of the State of
California. Employer’s Practices Liability limits of $1,000,000 per accident.
31.3 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
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shall obtain such insurance in an amount not less than $2,000,000 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.
31.4 Aircraft Liability Insurance. Prior to conducting any Services requiring
use of aircraft, Consultant shall procure and maintain, or cause to be procured and
maintained, aircraft liability insurance or equivalent form, with a single limit as shall be
required by the Commission. Such insurance shall include coverage for owned, hired and
non-owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, Caltrans and their directors, officials, officers, employees and agents as
additional insureds with respect to the Services or operations performed by or on behalf of
the Consultant.
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:
(a) General Liability.
(i) Commercial General Liability Insurance must include
coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury;
(3) premises/operations liability; (4) products/completed operations liability; (5) aggregate
limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion
deleted; (7) contractual liability with respect to this Agreement; (8) broad form property
damage; and (9) independent consultants coverage.
(ii) The policy shall contain no endorsements or provisions
limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by
one insured against another; or (3) contain any other exclusion contrary to this Agreement.
(iii) The policy shall give the Commission, its directors,
officials, officers, employees, and agents insured status using ISO endorsement forms 20
10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the policy shall be
“primary and non-contributory” and will not seek contribution from the Commission’s or
Caltrans’ insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or
endorsements providing the exact same coverage.
(b) Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) the Commission, Caltrans and their directors, officials, officers,
employees and agents shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned, leased,
hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the
insurance coverage shall be primary insurance as respects the Commission, Caltrans and
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their directors, officials, officers, employees and agents, or if excess, shall stand in an
unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage.
Any insurance or self-insurance maintained by the Commission, Caltrans and their
directors, officials, officers, employees and agents shall be excess of the Consultant’s
insurance and shall not be called upon to contribute with it in any way.
(c) Workers’ Compensation and Employers Liability Coverage.
(i) Consultant certifies that he/she is aware of the provisions
of Section 3700 of the California Labor Code which requires every employer to be insured
against liability for workers’ compensation or to undertake self-insurance in accordance with
the provisions of that code, and he/she will comply with such provisions before
commencing work under this Agreement.
(ii) The insurer shall agree to waive all rights of subrogation
against the Commission, its directors, officials, officers, employees and agents for losses
paid under the terms of the insurance policy which arise from work performed by the
Consultant.
(d) All Coverages.
(i) Defense costs shall be payable in addition to the limits
set forth hereunder.
(ii) Requirements of specific coverage or limits contained in
this Section are not intended as a limitation on coverage, limits, or other requirement, or a
waiver of any coverage normally provided by any insurance. It shall be a requirement
under this Agreement that any available insurance proceeds broader than or in excess of
the specified minimum insurance coverage requirements and/or limits set forth herein shall
be available to the Commission, Caltrans and their directors, officials, officers, employees
and agents as additional insureds under said policies. Furthermore, the requirements for
coverage and limits shall be (1) the minimum coverage and limits specified in this
Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance
policy or proceeds available to the named insured; whichever is greater.
(iii) The limits of insurance required in this Agreement may
be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or
excess insurance shall contain or be endorsed to contain a provision that such coverage
shall also apply on a primary and non-contributory basis for the benefit of the Commission
(if agreed to in a written contract or agreement) before the Commission’s own insurance or
self-insurance shall be called upon to protect it as a named insured. The umbrella/excess
policy shall be provided on a “following form” basis with coverage at least as broad as
provided on the underlying policy(ies).
(iv) Consultant shall provide the Commission at least thirty
(30) days prior written notice of cancellation of any policy required by this Agreement,
except that the Consultant shall provide at least ten (10) days prior written notice of
cancellation of any such policy due to non-payment of premium. If any of the required
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coverage is cancelled or expires during the term of this Agreement, the Consultant shall
deliver renewal certificate(s) including the General Liability Additional Insured Endorsement
to the Commission at least ten (10) days prior to the effective date of cancellation or
expiration.
(v) The retroactive date (if any) of each policy is to be no
later than the effective date of this Agreement. Consultant shall maintain such coverage
continuously for a period of at least three years after the completion of the work under this
Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the
retroactive date is advanced past the effective date of this Agreement; B) if the policy is
cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with
a retroactive date subsequent to the effective date of this Agreement.
(vi) The foregoing requirements as to the types and limits of
insurance coverage to be maintained by Consultant, and any approval of said insurance by
the Commission, is not intended to and shall not in any manner limit or qualify the liabilities
and obligations otherwise assumed by the Consultant pursuant to this Agreement, including
but not limited to, the provisions concerning indemnification.
(vii) If at any time during the life of the Agreement, any policy
of insurance required under this Agreement does not comply with these specifications or is
canceled and not replaced, Commission has the right but not the duty to obtain the
insurance it deems necessary and any premium paid by Commission will be promptly
reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium
from Consultant payments. In the alternative, Commission may cancel this Agreement.
The Commission may require the Consultant to provide complete copies of all insurance
policies in effect for the duration of the Project.
(viii) Neither the Commission nor any of its directors, officials,
officers, employees or agents shall be personally responsible for any liability arising under
or by virtue of this Agreement.
31.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the Commission. If the
Commission does not approve the deductibles or self-insured retentions as presented,
Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer
shall reduce or eliminate such deductibles or self-insured retentions as respects the
Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant
shall procure a bond guaranteeing payment of losses and related investigation costs,
claims and administrative and defense expense.
31.7 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.
31.8 Verification of Coverage. Consultant shall furnish Commission with
original certificates of insurance and endorsements effecting coverage required by this
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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.
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
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 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.
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.
33. 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,
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other than a Cardinal Change. For purposes of this Agreement, a Cardinal Change is a
change which is “outside the scope” of the Agreement; in other words, work which should
not be regarded as having been fairly and reasonably within the contemplation of the
parties when the Agreement was entered into. An example of a change which is not a
Cardinal Change would be where, in a contract to construct a building there are many
changes in the materials used, but the size and layout of the building remains the same.
Cardinal Changes are not within the authority of this provision to order, and shall be
processed by the Commission as “sole source” procurements according to applicable law,
including the requirements of FTA Circular 4220.1D, paragraph 9(f).
(a) In addition to the changes authorized above, a
modification which is signed by Consultant and the Commission’s Executive Director, other
than a Cardinal Change, may be made in order to: (1) make a negotiated equitable
adjustment to the Agreement price, delivery schedule and other terms resulting from the
issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other
agreements of the parties modifying the terms of this Agreement (“Bilateral Contract
Modification”).
(b) Consultant shall not perform, nor be compensated for any
change, without written authorization from the Commission’s Executive Director as set forth
herein. In the event such a change authorization is not issued and signed by the
Commission’s Executive Director, Consultant shall not provide such change.
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 Commission shall have the right
to rescind this Agreement without liability.
34.2 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.
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(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 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.
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, 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.
34.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant
warrants that this Agreement was not obtained or secured through rebates kickbacks or
other unlawful consideration, either promised or paid to any Commission employee. For
breach or violation of this warranty, Commission shall have the right in its discretion; to
terminate this Agreement without liability; to pay only for the value of the work actually
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performed; or to deduct from the Agreement price; or otherwise recover the full amount of
such rebate, kickback or other unlawful consideration.
34.7 Covenant Against Expenditure of Commission, State or Federal
Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and
belief no state, federal or local agency appropriated funds have been paid, or will be paid
by or on behalf of the Consultant to any person for the purpose of influencing or attempting
to influence an officer or employee of any state or federal agency; a Member of the State
Legislature or United States Congress; an officer or employee of the Legislature or
Congress; or any employee of a Member of the Legislature or Congress, in connection
with the award of any state or federal contract, grant, loan, or cooperative agreement, or
the extension, continuation, renewal, amendment, or modification of any state or federal
contract, grant, loan, or cooperative agreement.
(a) If any funds other than federal appropriated funds have been
paid, or will be paid to any person for the purpose of influencing or attempting to influence
an officer or employee of any federal agency; a Member of Congress; an officer or
employee of Congress, or an employee of a Member of Congress; in connection with this
Agreement, the Consultant shall complete and submit the attached Exhibit "G", 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 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 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.
35. 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.
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36. Right to Employ Other Consultants. Commission reserves the right to employ
other consultants in connection with the Project.
37. Governing Law. This Agreement shall be governed by and construed with the
laws of the State of California. Venue shall be in Riverside County.
38. Disputes; Attorneys' Fees.
38.1 Prior to commencing any action hereunder, the Parties shall attempt
in good faith to resolve any dispute arising between them. The pendency of a dispute
shall not excuse Consultant from full and timely performance of the Services.
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.
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: COMMISSION:
ICF Jones & Stokes, Inc. Riverside County
Transportation Commission
9300 Lee Highway 4080 Lemon Street, 3rd Floor
Fairfax, VA 22031 Riverside, CA 92501
Attn: Court Morgan 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
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Parties and the interpretation of the Parties' understanding concerning the performance of
the Services.
43. Amendment or Modification. No supplement, modification, or amendment of
this Agreement shall be binding unless 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
“C” (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
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’ 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.
50. Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original.
51. Attorney Client Privilege. The Parties recognize that, during the Project, the
Commission and its attorneys will engage in communication that gives rise to an attorney
client privilege of confidentiality (“Confidential Communication”). Given the nature of the
work done by Consultant for the Commission, it may be necessary for the Consultant to
participate in Confidential Communications. To the extent that (i) the Consultant is a party
to any Confidential Communication, and (ii) a third party seeks discovery of such
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communications, then the Consultant shall be deemed to be an agent of the Commission
solely for purposes of preserving any attorney client privilege in the relevant Confidential
Communication. Any such attorney client privilege shall be held by the Commission and
the Consultant is not authorized to waive that privilege or, otherwise, disclose such
Confidential Communication except as set forth below. This Section is intended to maintain
the privilege in any privileged Confidential Communications that are (1) between and
among Commission, Consultant, and Commission’s attorneys; (2) between Consultant (on
behalf of the Commission) and 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
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.
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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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SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH PROPOSITION 1B, FTA AND FHWA FUNDING ASSISTANCE FOR
ENVIRONMENTAL CONSULTING SERVICES
IN WITNESS WHEREOF, this Agreement was executed on the date first written
above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
Anne Mayer
Approved as to Form:
By:
Best, Best & Krieger LLP
General Counsel
CONSULTANT
ICF JONES & STOKES, INC.
By:
Signature
Name
Title
ATTEST:
By:
Its: ___________________________
* A corporation requires the signatures of two corporate officers.
One signature shall be that of the chairman of board, the president or any vice president and the second
signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or
any assistant treasurer of such corporation.
If the above persons are not the intended signators, evidence of signature authority shall be provided to
RCTC.
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Exhibit A
17336.00603\31171937.1
EXHIBIT "A" - SCOPE OF SERVICES
ON-CALL ENVIRONMENTAL CONSULTING
SERVICES
1.0 DESCRIPTION OF WORK
1.1 Consultant Responsibilities shall include, but will not be limited to the
following:
1.1.1 Review and evaluate project-specific environmental documents to
assess current compliance/validity under California Environmental Quality Act (CEQA)
and National Environmental Policy Act (NEPA) due to changes in project design,
environmental requirements, elapsed time, etc. Prepare appropriate written
documentation and supplemental materials (e.g., environmental
revalidation/reevaluation, CEQA addendum, update technical reports and studies, etc.) to
support the assessment.
1.1.2 Review and provide written input on project-specific environmental
documents, technical reports, and studies as requested by Commission staff (e.g., air
quality, water quality, noise, cultural resources, paleontology, biology, MSHCP studies,
and Sections 4[f] and 6[f]).
1.1.3 Permitting services including preparation of permit packages(s) and
submittal to permitting agency(ies); coordination with permitting agency(ies); and
shepherding permits(s) through their respective approval process(es).
1.1.4 Implementing, monitoring, and documenting the progress and
success of environmental commitments during construction and post-construction (e.g.,
environmentally sensitive area [ESA] fencing, permit conditions, habitat restoration,
revegetation, special environmental provisions, etc.).
1.1.5 Support of project compliance with Western Riverside County
Multispecies Habitat Conservation Plan (MSHCP) including preparation of documentation
needed to support consistency determination process.
1.1.6 Coordination with regulatory and resources agencies as needed, on
specific issues.
1.1.7 Other environmental services as requested by Commission staff.
1.1.8 In addition to meeting with and coordinating efforts with Commission
staff, Consultant may also be required to interact with Commission legal counsel, other
consultants, Caltrans, Federal Transit Administration, Federal Highway Administration, et
al.
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Exhibit A
17336.00603\31171937.1
1.1.9 If any legal issues exist during the course of work authorized under
this scope of work, Consultant shall inform Commission. All legal opinions shall be
rendered by Commission’s legal counsel.
1.1.10 If hazardous materials or wastes are discovered during the course of
work authorized under this scope of work, Consultant shall inform Commission and seek
further direction from the Commission.
1.2 Materials to be Furnished by Commission
1.2.1 All software, data, reports, surveys, drawings, and other documents
furnished to the Offeror by Commission for the Offeror’s use in the performance of
services shall be made available only for use in performing the assignment and shall
remain the property of Commission. All such materials shall be returned to Commission
upon completion of services, termination of the agreement, or other such time as
Commission may determine.
1.3 Personnel Qualifications and Responsibilities
1.3.1 The quantity and qualifications of personnel to be assigned will be
determined by the scope of the Task Order request and the degree of difficulty of required
tasks to be performed. All personnel and personnel assignments shall be subject to
approval by Commission.
1.4 Third Party Relationships
1.4.1 This Contract is intended to provide on-call environmental services
for Commission projects. In the development of the Commission projects, Commission
has worked closely with various professional offerors, agencies, and others in the
development of the project documents and other project related materials. Commission,
however, is solely responsible for and will be the sole point of contact for all contractual
matters related to the Task Orders. Offeror shall take direction only from Commission and
shall regularly inform only Commission of Task Order progress, outstanding issues, and
all related matters.
1.4.2 During the course of the contract, Offeror may find occasion to meet
with resource agencies, local jurisdictions, or Caltrans representatives, the design
engineer, or other third parties who have assisted with the various Plan projects. These
entities may, from time to time, offer suggestions and/or recommendations regarding the
Commission project or elements of the project. While the Commission enjoys a close
relationship with and has considerable confidence in the capabilities of these other parties,
Offeror shall not act on any suggestions, solicited or unsolicited, without obtaining specific
direction from Commission. All oral and written communication with outside agencies or
Offerors related to the project shall be directed only to Commission. Distribution of project
related communications and information shall be at the sole discretion of Commission
representatives.
2.0 TASK ORDER PROCEDURES
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Exhibit A
17336.00603\31171937.1
2.1 Definitions
2.1.1 The term Consultant shall refer to the firm or firms that are awarded
the contract for environmental consulting services.
2.1.2 A Task Order is utilized by the parties to establish, outline, and
authorize a particular job or task.
2.2 Initiating Task Orders
2.2.1 The Commission’s project manager will issue Task Orders to the
Consultant.
2.2.2 The Commission’s request for task order submittals. Upon a request
for a Task Order Proposal by the designated Commission project manager, contractor
shall develop a plan and submit a task order proposal for the requested services. The
Task Order shall include a time schedule, number of labor hours, and labor
classification(s) to provide the requested services.
2.3 Review and Award of Task Orders
2.3.1 The Commission’s designated project manager will review the
submitted Task Order (TO) to ensure that the submittal is complete, consistent with the
Commission’s written or oral request for services, the personnel assigned are acceptable,
the schedule is acceptable, that all costs proposed are appropriate, and that the item is in
compliance with contractual requirements. The project manager will award the Task
Order if it is determined to be fair and reasonable. If required, the Commission’s project
manager will conduct negotiations to address exceptions and clarify costs. The fully
executed Task Order will serve as the record of negotiations.
2.4 Completion Schedule
2.4.1 The contractors’ performance of services shall commence under
each Task Order only upon written authorization by the Commission’s designated project
manager.
2.4.2 Contractor shall complete the services within the time frame
specified on a particular Task Order.
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Exhibit B-1
17336.00603\31171937.1
EXHIBIT "B"- COMPENSATION AND PAYMENT
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FIRM PROJECT TASKS/ROLE COST
ICF Jones & Stokes On-Call Environmental Consulting Services 3,000,000.00$
Advanced Civil Technologies Transportation Engineering TBD
Arellano Assocites Public Outreach TBD
Bargas Consulting Paleontology and Biology TBD
Fehr & Peers Traffic Impact Assessment TBD
Group Delta Consultants Geotechnical TBD
HDR CEQA/NEPA, Biology, Regulatory Permitting,
Visual Resoures, Monitoring TBD
Monument ROW Right of Way TBD
Tatsumi and Partners Landscape Architecture TBD
Translutions, Inc.Traffic Modeling and Forecasting TBD
TBD
3,000,000.00$ TOTAL COSTS
1 Commission authorization pertains to total contract award amount. Compensation adjustments between consultants may occur;
however, the maximum total compensation authorized may not be exceeded.
EXHIBIT "B"
Prime Consultant:
Sub Consultants:
COMPENSATION SUMMARY1
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Exhibit C-1
17336.00603\31171937.1
EXHIBIT "C"
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 creed, national origin, physical
disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age
(over 40), marital status, and denial of family care leave. Consultant and subconsultants
shall insure that the evaluation and treatment of their employees and applicants for
employment are free from such discrimination and harassment. Consultant and
subconsultants shall comply with the provisions of the Fair Employment and Housing Act
(Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated there under
(California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations
of the Fair Employment and Housing Commission implementing Government Code Section
12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of
Regulations, are incorporated into this Agreement by reference and made a part hereof as
if set forth in full. 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.
C. 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.
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,
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Exhibit C-2
17336.00603\31171937.1
including employment practices when the Agreement covers a program whose goal is
employment.
2. DEBARMENT AND SUSPENSION CERTIFICATION
CONSULTANT’s signature affixed herein, shall constitute a certification under penalty of
perjury under the laws of the State of California, that CONSULTANT has complied with Title
2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and
Suspension (nonprocurement)”, which certifies that he/she or any person associated
therewith in the capacity of owner, partner, director, officer, or manager, is not currently
under suspension, debarment, voluntary exclusion, or determination of ineligibility by any
federal agency; has not been suspended, debarred, voluntarily excluded, or determined
ineligible by any federal agency within the past three (3) years; does not have a proposed
debarment pending; and has not been indicted, convicted, or had a civil judgment rendered
against it by a court of competent jurisdiction in any matter involving fraud or official
misconduct within the past three (3) years. Any exceptions to this certification must be
disclosed to COMMISSION.
B. Exceptions will not necessarily result in denial of recommendation for award, but will be
considered in determining CONSULTANT responsibility. Disclosures must indicate to whom
exceptions apply, initiating agency, and dates of action.
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
The Commission shall not discriminate on the basis of race, color, national origin, or sex in
the award and performance of any DOT-assisted contract or in the implementation of the
Caltrans DBE program or the requirements of 49 CFR Part 26. The Commission shall take
all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in
the award and administration of DOT-assisted contracts.
Consultant or subcontractor shall not discriminate on the basis of race, color, national
origin, of sex in the performance of this Agreement. Consultant or subcontractor shall carry
out applicable requirements of 49 CFR Part 26 and the Caltrans DBE program in the award
and administration of DOT-assisted contracts, as further set forth below. Failure by the
Consultant or subcontractor to carry out these requirements is a material breach of this
Agreement, which may result in the termination of this Agreement or such other remedy, as
the Commission deems appropriate.
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
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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
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 performance, or noncompliance by a
subconsultant. This provision applies to both DBE and non-DBE prime consultants and
subconsultants.
6. LEGAL REMEDIES
In addition to those contract remedies set forth under relevant provisions of California law,
either Party to this Agreement may, where applicable, seek legal redress for violations of
this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the
relevant federal or state statutory provisions governing civil rights violations, and to the
relevant federal and state provisions governing false claims or “whistleblower” actions, as
well as any and all other applicable federal and state provisions of law.
The Consultant shall include a provision to this effect in each of its agreements with its
subcontractors.
7. DBE PARTICIPATION
Caltrans has developed a statewide DBE program pursuant to 49 C.F.R. Part 26. The
requirements and procedures, as applicable, of the Caltrans DBE program are hereby
incorporated by reference into this Agreement. Even if no DBE participation will be
reported, Consultant shall complete Exhibits "D" 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.
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Exhibit C-4
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B. This Agreement has established a 17% DBE goal. 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. 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 Agreement shall contain all of the
provisions of this section.
E. A DBE may be terminated only with prior written approval from the Commission and
only for the reasons specified in 49 CFR 26.53(f). Prior to requesting Commission consent
for the termination, the prime consultant must meet the procedural requirements specified
in 49 CFR 26.53(f).
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 8 below.
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Exhibit C-5
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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 materials and supplies used on the
Agreement, for negotiating price, determining quality and quantity, ordering the material,
and installing (where applicable) and paying for the material itself. To determine whether a
DBE is performing a commercially useful function, evaluate the amount of work
subcontracted, industry practices; whether the amount the firm is to be paid under the
Agreement is commensurate with the work it is actually performing, and other relevant
factors.
B. A DBE does not perform a commercially useful function if its role is limited to that of
an extra participant in a transaction, Agreement, or project through which funds are passed
in order to obtain the appearance of DBE participation. In determining whether a DBE is
such an extra participant, examine similar transactions, particularly those in which DBEs do
not participate.
C. If a DBE does not perform or exercise responsibility for at least thirty percent of the
total cost of its Agreement with its own work force, or the DBE subcontracts a greater
portion of the work of the Agreement than would be expected on the basis of normal
industry practice for the type of work involved, it will be presumed that it is not performing a
commercially useful function.
10. DBE CERTIFICATION AND DE-CERTIFICATION STATUS
If a DBE subcontractor is decertified 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
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Exhibit C-6
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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 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-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
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Exhibit C-7
17336.00603\31171937.1
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 for the total value of the transportation services it provides
on the Agreement using trucks it 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
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Exhibit C-8
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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 issued in compliance with the Energy Policy and
Conservation Act (Pub. L. 94-163, 89 Stat. 871).
16. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code Section 10296, and by signing this Agreement,
Consultant certifies under penalty of perjury that no more than one final unappealable
finding of contempt of court by a federal court has been issued against Consultant within
the immediately preceding two-year period, because of Consultant’s failure to comply with
an order of a federal court that orders Consultant to comply with an order of the National
Labor Relations Board.
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Exhibit D-1
17336.00603\31171937.1
EXHIBIT "D"
CONSULTANT DBE COMMITMENT
Consultant to Complete this Section
1. Local Agency Name: _Riverside County Transportation Commission
2. Project Location: _Riverside County___________________________
3. Project Description: On-Call Environmental Consulting Services_____
4. Consultant Name: __________________________________________________________________________________________
5. Contract DBE Goal %: _17%_______________
DBE Commitment Information
6. Description of Services to be Provided 7. DBE Firm
Contact Information 8. DBE Cert.
Number 9. DBE %
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Exhibit E-1
17336.00603\31171937.1
EXHIBIT "E" - FTA PROVISIONS
FTA FUNDING REQUIREMENTS (Non-construction/maintenance work)
As used herein, “RCTC” shall have the same meaning as the “Commission.” The term “contract” or
“Contract” shall have the same meaning as the “Agreement.”
1. No Obligation by the Federal Government
a. RCTC and Consultant acknowledge and agree that, notwithstanding any concurrence by the
Federal Government in or approval of the solicitation or award of the underlying contract, absent the
express written consent by the Federal Government, the Federal Government is not a party to this
contract and shall not be subject to any obligations or liabilities to the Purchaser, Consultant, or any
other party (whether or not a party to that contract) pertaining to any matter resulting from the
underlying contract.
b. The Consultant agrees to include the above clause in each subcontract financed in whole or in
part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified,
except to identify the subconsultant who will be subject to its provisions.
2. Program Fraud and False or Fraudulent Statements or Related Acts
a. The Consultant acknowledges that the provisions of the Program Fraud Civil Remedies Act of
1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, "Program Fraud Civil
Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the
underlying contract, the Consultant certifies or affirms the truthfulness and accuracy of any statement
it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the
FTA assisted project for which this contract work is being performed. In addition to other penalties
that may be applicable, the Consultant further acknowledges that if it makes, or causes to be made, a
false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government
reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the
Consultant to the extent the Federal Government deems appropriate.
b. The Consultant also acknowledges that if it makes, or causes to be made, a false, fictitious, or
fraudulent claim, statement, submission, or certification to the Federal Government under a contract
connected with a project that is financed in whole or in part with Federal assistance originally awarded
by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the
penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Consultant, to the extent the Federal
Government deems appropriate.
c. The Consultant agrees to include the above two clauses in each subcontract financed in whole
or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be
modified, except to identify the subconsultant who will be subject to the provisions.
3. Access to Records
The Consultant agrees to the following access to records requirements:
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Exhibit E-2
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a. To provide RCTC, the FTA Administrator, the Comptroller General of the United States or any
of their authorized representatives access to any books, documents, papers and records of the
Consultant which are directly pertinent to this contract for the purposes of making audits,
examinations, excerpts and transcriptions. Consultant also agrees, pursuant to 49 C. F. R. 633.17 to
provide the FTA Administrator or his authorized representatives including any PMO Consultant access
to Consultant's records and construction sites pertaining to a major capital project, defined at 49 U.S.C.
5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C.
5307, 5309 or 5311.
b. To make available in the case of a contract for a capital project or improvement, as defined
above and awarded by other than competitive bidding in accordance with 49 U.S.C. 5325(a), records
related to the contract to RCTC, the Secretary of Transportation and the Comptroller General or any
authorized officer or employee of any of them for the purposes of conducting an audit and inspection.
c. To maintain all books, records, accounts and reports required under this contract for a period of
not less than three years after the date of termination or expiration of this contract, except in the event
of litigation or settlement of claims arising from the performance of this contract, in which case
Consultant agrees to maintain same until RCTC, the FTA Administrator, the Comptroller General, or
any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or
exceptions related thereto. Reference 49 CFR 18.39(i)(11).
d. To permit any of the foregoing parties to reproduce by any means whatsoever or to copy
excerpts and transcriptions as reasonably needed.
4. Federal Changes
The Consultant shall at all times comply with all applicable FTA regulations, policies, procedures and
directives, including without limitation those listed directly or by reference in the Master Agreement
between RCTC and FTA, as they may be amended or promulgated from time to time during the term
of this contract. Consultant's failure to so comply shall constitute a material breach of this contract.
5. Civil Rights
The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. §
2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202
of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C.
§ 5332 and 49 CFR part 21, the Consultant agrees that it will not discriminate against any employee or
applicant for employment because of race, color, creed,
national origin, sex, age, or disability. In addition, the Consultant agrees to comply with applicable
Federal implementing regulations and other implementing requirements FTA may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity requirements apply
to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights
Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Consultant
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Exhibit E-3
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agrees to comply with all applicable equal employment opportunity requirements of U.S. Department
of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq ., (which implement
Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No.
11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. §
2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal
policies that may in the future affect construction activities undertaken in the course of the Project.
The Consultant agrees to take affirmative action to ensure that applicants are employed, and that
employees are treated during employment, without regard to their race, color, creed, national origin,
sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading,
demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or
other forms of compensation; and selection for training, including apprenticeship. In addition, the
Consultant agrees to comply with any implementing requirements FTA may issue.
(b) Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. § § 623, Federal transit law at 49 U.S.C. § 5332, the Equal Employment
Opportunity Commission (U.S. EEOC) regulations, “Age Discrimination in Employment Act,” 29
C.F.R. part 1625, the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S.
Health and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or
Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, the Consultant agrees to refrain
from discrimination against present and prospective employees for reason of age. In addition, the
Consultant agrees to comply with any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 504 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq.,
the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., and Federal transit law at
49 U.S.C. § 5332, the Consultant agrees that it will not discriminate against individuals on the basis of
disability, and that it will comply with the requirements of U.S. Equal Employment Opportunity
Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with
Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In
addition, the Consultant agrees to comply with any implementing requirements FTA may issue.
(3) The Consultant also agrees to include these requirements in each subcontract financed in whole
or in part with Federal assistance provided by FTA, modified only if necessary to identify the
affected parties.
6. FTA Disadvantaged Business Enterprise (DBE) Requirements
A. General DBE Requirements: In accordance with Federal financial assistance agreements with
the U.S. Department of Transportation (U.S. DOT), Commission has adopted a Disadvantaged
Business Enterprise (DBE) Policy and Program, in conformance with Title 49 CFR Part 26,
“Participation by Disadvantaged Business Enterprises in Department of Transportation Programs” (the
“Regulations”). This RFP is subject to these stipulated regulations. In order to ensure that Commission
achieves its overall DBE Program goals and objectives, Commission encourages the participation of
DBEs as defined in 49 CFR 26 in the performance of contracts financed in whole or in part with U.S.
DOT funds.
It is the policy of the Commission to:
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Exhibit E-4
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1. Ensure nondiscrimination in the award and administration of DOT-assisted contracts;
2. Create a level playing field on which DBE’s can compete fairly for DOT-assisted contracts;
3. Ensure that the DBE program is narrowly tailored in accordance with applicable law;
4. Ensure that only firms that fully meet 49 C.F.R. part 26 eligibility standards are permitted to
participate as DBE’s;
5. Help remove barriers to the participation of DBEs in DOT assisted contracts;
6. To promote the use of DBEs in all types of federally assisted contracts and procurement activities;
and
7. Assist in the development of firms that can compete successfully in the marketplace outside the
DBE program.
B. Discrimination: Consultant shall not discriminate on the basis of race, color, national origin, or
sex in the award and performance of subcontracts. Any terms used herein that are defined in 49 CFR
Part 26, or elsewhere in the Regulations, shall have the meaning set forth in the Regulations.
C. Commission’s Race-Neutral DBE Program: A Race-Neutral DBE Program is one that, while
benefiting DBEs, is not solely focused on DBE firms. Therefore, under a Race-Neutral DBE Program,
Commission does not establish numeric race-conscious DBE participation goals on its DOT-assisted
contracts. There is no FTA DBE goal on this Project.
Consultant shall not be required to achieve a specific level of DBE participation as a condition of
contract compliance in the performance of this DOT-assisted contract. However, Consultant
shall adhere to race-neutral DBE participation commitment(s) made at the time of award.
D. Race-Neutral DBE Submissions and Ongoing Reporting Requirements (Post-Award):
At termination of the Contract, the successful Consultant shall complete and submit to Commission a
“DBE Race-Neutral Participation Listing” in the form provided by Commission. In the event DBE(s)
are utilized in the performance of the Agreement, Consultant shall comply with applicable reporting
requirements.
E. Performance of DBE Subconsultants: DBE subconsultants listed by Consultant in its “DBE
Race-Neutral Participation Listing” submitted at the time of proposal shall perform the work and
supply the materials for which they are listed, unless Consultant has received prior written
authorization from Commission to perform the work with other forces or to obtain the materials from
other sources. Consultant shall provide written notification to Commission in a timely manner of any
changes to its anticipated DBE participation. This notice should be provided prior to the
commencement of that portion of the work.
F. DBE Certification Status: If a listed DBE subconsultant is decertified during the life of this
Agreement, the decertified subconsultant shall notify Consultant in writing with the date of
decertification. If a non-DBE subconsultant becomes a certified DBE during the life of this Agreement,
the DBE subconsultant shall notify Consultant in writing with the date of certification. Consultant shall
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Exhibit E-5
17336.00603\31171937.1
furnish the written documentation to Commission in a timely manner. Consultant shall include this
requirement in all subcontracts.
G. Consultant’s Assurance Clause Regarding Non-Discrimination: In compliance with State and
Federal anti-discrimination laws, Consultant shall affirm that it will not exclude or discriminate on the
basis of race, color, national origin, or sex in consideration of contract award opportunities. Further,
Consultant shall affirm that they will consider, and utilize subconsultants and vendors, in a manner
consistent with non-discrimination objectives.
H. Violations: Failure by the selected Consultant(s) to carry out these requirements shall be a material
breach of the contract to be awarded pursuant to this RFP, which may result in the termination of the
contract or such other remedy as the recipient deems appropriate, which may include, but is not limited
to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the Consultant from future bidding as non-responsible. 49 C.F.R. § 26.13(b).
I. Prompt Payment: Consultant shall pay its subconsultants for satisfactory performance of their
contracts no later than 30 days from receipt of each payment Commission makes to the Consultant. 49
C.F.R. § 26.29(a), unless a shorter period is provided in the contract.
J. Compliance with DBE Requirements Contained in FTA Provisions: Consultant shall comply with all
DBE reporting and other requirements contained in this Agreement.
7. Incorporation of Federal Transit Administration (FTA) Terms
The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT,
whether or not expressly set forth in the preceding contract provisions. All contractual provisions
required by DOT, as set forth in FTA Circular 4220.1F are hereby incorporated by reference. Anything
to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event
of a conflict with other provisions contained in this Agreement. The Consultant shall not perform any
act, fail to perform any act, or refuse to comply with any RCTC requests which would cause RCTC to
be in violation of the FTA terms and conditions.
8. Debarment and Suspension.
The Consultant agrees to the following:
(1) It will comply with the following requirements of 2 CFR Part 180, subpart C, as adopted and
supplemented by U.S. DOT regulations at 2 CFR Part 1200.
(2) It will not enter into any “covered transaction” (as that phrase is defined at 2 CFR §§ 180.220 and
1200.220) with any subconsultant whose principal is, suspended, debarred, or otherwise excluded from
participating in covered transactions, except as authorized by— (i) U.S. DOT regulations,
“Nonprocurement Suspension and Debarment,” 2 CFR Part 1200; (ii) U.S. OMB regulatory guidance,
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“Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement),” 2 CFR
Part 180; and (iii) Other applicable federal laws, regulations, or requirements regarding participation
with debarred or suspended recipients or third party participants.
(3) It will review the U.S. GSA “System for Award Management – Lists of Parties Excluded from
Federal Procurement and Nonprocurement Programs,” if required by U.S. DOT regulations, 2 CFR
Part 1200.
9. ADA Access Requirements
The Consultant shall comply with all applicable requirements of the Americans with Disabilities Act of
1990 (ADA), 42 USC Section 12101 et seq; Section 504 of the Rehabilitation Act of 1973, as
amended, 29 USC Section 794; 49 USC Section 5301(d).
10. Fly America .
To the extent applicable to the Services, the Consultant agrees to comply with 49 U.S.C. 40118 (the
"Fly America" Act) in accordance with the General Services Administration's regulations at 41 CFR
Part 301-10, which provide that recipients and sub recipients of Federal funds and their consultants are
required to use U.S. Flag air carriers for U.S. Government-financed international air travel and
transportation of their personal effects or property, to the extent such service is available, unless travel
by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Consultant shall
submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately
explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a
foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America
requirements. The Consultant agrees to include the requirements of this section in all subcontracts that
may involve international air transportation.
11. Cargo Preference - Use of United States-Flag Vessels
To the extent applicable to the Services, the Consultant agrees:
1. To use privately owned United States-Flag commercial vessels to ship at least 50 percent of
the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers)
involved, whenever shipping any equipment, material, or commodities pursuant to the
underlying contract to the extent such vessels are available at fair and reasonable rates for
United States-Flag commercial vessels;
2. To furnish within 20 working days following the date of loading for shipments originating
within the United States or within 30 working days following the date of leading for
shipments originating outside the United States, a legible copy of a rated, "on-board"
commercial ocean bill-of -lading in English for each shipment of cargo described in the
preceding paragraph to the Division of National Cargo, Office of Market Development,
Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the
Consultant in the case of a subconsultant's bill-of-lading.)
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3. To include these requirements in all subcontracts issued pursuant to this contract when the
subcontract may involve the transport of equipment, material, or commodities by ocean
vessel.
11. Buy America – Not applicable.
12. Employment Provisions
To the extent applicable to the Services, Consultant shall comply with the following:
A. Equal Employment Opportunity — Not applicable.
B. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c) — Not applicable.
C. Contact Work Hours and Safety Standards Act (40 U.S.C. 327–333) —Not applicable.
D. Release of Retainage
No retainage will be withheld by the RCTC from progress payments due Consultant. Retainage by
Consultant or subconsultants is prohibited, and no retainage will be held by the prime consultant from
progress due subconsultants. Any violation of this provision shall subject the violating Consultant or
subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the
California Business and Professions Code. This requirement shall not be construed to limit or impair
any contractual, administrative, or judicial remedies, otherwise available to Consultant or
subconsultant in the event of a dispute involving late payment or nonpayment by Consultant or
deficient subconsultant performance, or noncompliance by a subconsultant.
13. Termination for Convenience
RCTC may terminate the Agreement for convenience in accordance with the terms of the Agreement.
After such termination, the Consultant shall submit a final termination settlement proposal to RCTC as
directed. If the Consultant fails to submit a proposal within the time allowed, RCTC may determine, on
the basis of information available, the amount, if any due the Consultant because of the termination and
shall pay the amount determined. After the Consultant’s proposal is received, RCTC and Consultant
shall negotiate a fair and equitable settlement and the contract will be modified to reflect the negotiated
agreement. If agreement cannot be reached, RCTC may issue a final determination and pay the amount
determined. If the Consultant does not agree with this final determination or the determination resulting
from the lack of timely submission of a proposal, the Consultant may appeal under the Disputes clause.
14. Administrative and Contractual Remedies on Breach; Termination for Cause
a. The Consultant may be declared in breach of this Agreement (“Breach”) if the Consultant
fails to make delivery of the supplies or to perform the services within the time specified herein or any
extension thereof; or if the Consultant fails to perform any of the other provisions of the contract, or so
fails to make progress as to endanger performance of this contract in accordance with its terms. In case
of any of the foregoing, RCTC shall notify the Consultant of the Breach, and the Consultant shall have
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Exhibit E-8
17336.00603\31171937.1
a period of ten (10) days (or such longer period as RCTC may authorize in writing) after receipt of
notice from RCTC to cure the Breach.
b. RCTC may, by written notice of termination to the Consultant specifying the effective date
thereof, terminate the whole or any part of this contract, in the case of a Breach that is not cured within
the timeframe set forth in (a) above (“Uncured Breach”).
c. If the contract is terminated in whole or in part for an Uncured Breach, RCTC may procure
upon such terms and in such manner as RCTC may deem appropriate, supplies or services similar to
those so terminated, or may complete the services with its own forces. The Consultant shall be liable
to RCTC for any excess costs for such similar supplies or services, and for any other costs incurred by
RCTC as a result of the Uncured Breach. The Consultant shall continue the performance of this
contract to the extent not terminated under the provisions of this clause.
d. Except with respect to defaults of Subconsultants, the Consultant shall not be liable for any
excess costs if the failure to perform the contract arises out of causes beyond the control and without
the fault or negligence of the Consultant. If the failure to perform is caused by the default of a
Subconsultant, and if such default arises out of causes beyond the control of both the Consultant and
the Subconsultant, and without the fault or negligence of either of them, the Consultant shall not be
liable for any excess costs for failure to perform, unless the supplies or services to be furnished by the
Subconsultant were obtainable from other sources in sufficient time to permit the Consultant to meet
the required project completion schedule.
e. Payment for completed services or supplies delivered to and accepted by RCTC shall be at the
contract price. RCTC may withhold from amounts otherwise due the Consultant for such completed
services or supplies such sum as RCTC determines to be necessary to protect RCTC against loss
because of outstanding liens of claims of former lien holders, or to reimburse RCTC for any other costs
related to the Uncured Breach.
f. If, after notice of termination of this contract for cause, it is determined for any reason that an
Uncured Breach did not exist, the rights and obligations of the parties shall be the same as if the notice
of termination had been issued pursuant to the provisions for termination for convenience of RCTC.
g. The rights and remedies of RCTC provided in this clause shall not be exclusive and are in
addition to any other rights and remedies provided by law, equity or under this contract including, but
not limited to, the right to specific performance.
h. Notwithstanding the above, RCTC may, without providing an opportunity to cure, terminate the
contract in accordance with the timeframe set forth in Section 17 of the contract, if RCTC determines
such action is in its best interest based on the nature of the Breach. Such actions shall not limit any of
RCTC’s remedies set forth above.
16. Disputes
a. Except as otherwise provided in this Agreement, any dispute concerning a question of fact
arising under this Agreement which is not disposed of by supplemental agreement shall be
decided by RCTC’s Deputy Executive Director, who shall reduce the decision to writing and mail or
otherwise furnish a copy thereof to the Consultant. The decision of the RCTC Deputy Executive
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Director shall be final and conclusive unless, within thirty (30) days from the date of receipt of such
copy, Consultant mails or otherwise furnishes to the RCTC Deputy Executive Director a written appeal
addressed to RCTC's Executive Director. The decision of RCTC Executive Director or duly authorized
representative for the determination of such appeals shall be final and conclusive.
b. The provisions of this Paragraph shall not be pleaded in any suit involving a question of fact
arising under this Agreement as limiting judicial review of any such decision to cases where fraud by
such official or his representative or board is alleged, provided, however, that any such decision shall
be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous
as necessarily to imply bad faith or is not supported by substantial evidence. In connection with any
appeal proceeding under this Paragraph, the Consultant shall be afforded an opportunity to be heard
and to offer evidence in support of its appeal.
c. Pending final decision of a dispute hereunder, Consultant shall proceed diligently with the
performance of this Agreement and in accordance with the decision of RCTC's Deputy Executive
Director. This "Disputes" clause does not preclude consideration of questions of law in connection with
decisions provided for above. Nothing in this Agreement, however, shall be construed as making final
the decision of any RCTC official or representative on a question of law, which questions shall be
settled in accordance with the laws of the State of California.
17. Lobbying
See the Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure
Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Consultants who apply or bid
for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New
Restrictions on Lobbying.” Each tier certifies to the tier above that it will not and has not used Federal
appropriated funds to pay any person or organization for influencing or attempting to influence an
officer or employee of any agency, a member of Congress, officer or employee of Congress, or an
employee of a member of Congress in connection with obtaining any Federal contract, grant or any
other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under
the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal
funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such
disclosures are forwarded from tier to tier up to the recipient. The Offeror shall complete and submit
with its bid/proposal the attached Certification Regarding Lobbying, and if applicable, the Standard
Form-LLL, “Disclosure Form to Report Lobbying.”
18. Energy Conservation
The Consultant agrees to comply with mandatory standards and policies relating to energy efficiency
which are contained in the state energy conservation plan issued in compliance with the Energy Policy
and Conservation Act.
19. Clean Water
a. The Consultant agrees to comply with all applicable standards, orders or regulations issued
pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. The
Consultant agrees to report each violation to RCTC and understands and agrees that RCTC will, in
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Exhibit E-10
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turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional
Office.
d. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List of Violating
Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as amended, (42
U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as amended, (33 U.S.C. §§
1251-1387).
The Consultant also agrees to include these requirements in each subcontract exceeding $150,000
financed in whole or in part with Federal assistance provided by FTA.
20. Clean Air
a. The Consultant agrees to comply with all applicable standards, orders or regulations issued
pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Consultant agrees to report
each violation to RCTC and understands and agrees that RCTC will, in turn, report each violation as
required to assure notification to FTA and the appropriate EPA Regional Office.
b. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List of Violating
Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as amended, (42
U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as amended, (33 U.S.C. §§
1251-1387).
c. The Consultant also agrees to include these requirements in each subcontract exceeding
$150,000 financed in whole or in part with Federal assistance provided by FTA.
21. Recycled Products
Recovered Materials - The Consultant agrees to comply with all the requirements of Section
6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962),
including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order
12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part
247.
21. SPECIAL PROVISION FOR PROMOTING COVID-19 SAFETY
Section 49. Centers for Disease Control and Prevention Order on Requirements for Persons
to Wear Masks While on Conveyances and at Transportation Hubs.
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(a) Compliance with CDC Mask Order. The Centers for Disease Control and Prevention (“CDC”)
Order of January 29, 2021, titled Requirement for Persons to Wear Masks While on Conveyances and
at Transportation Hubs (“CDC Mask Order”), applies to this Agreement. One of the objectives of the
CDC Mask Order is “[m]aintaining a safe and operating transportation system.” Consultant agrees that
it will comply, and will require all subconsultants to comply, with the CDC Mask Order, to the extent
the CDC Mask Order remains in effect.
(b) Enforcement for non-compliance. Consultant agrees that FTA and RCTC may take enforcement
action for non-compliance with the CDC Mask Order, to the extent the CDC Mask Order remains in
effect, including: (1) enforcement actions authorized by 49 U.S.C. § 5329(g); (2) referring Consultant
to the CDC or other Federal authority for enforcement action; (3) enforcement actions authorized by 2
CFR §§ 200.339 – .340; and (4) any other enforcement action authorized by Federal law or regulation.
22. Safe Operation of Motor Vehicles
Pursuant to Federal Executive Order No. 13043, “Increasing Seat Belt Use in the United States,” April
16, 1997, 23 U.S.C. Section 402 note, FTA encourages each third party consultant to adopt and
promote on-the-job seat belt use policies and programs for its employees and other personnel that
operate company owned, rented, or personally operated vehicles, and to include this provision in each
third party subcontract involving the project.
a. The Consultant is encouraged to adopt and promote on-the-job seat belt use policies and programs
for its employees and other personnel that operate company-owned vehicles, company-rented vehicles,
or personally operated vehicles. The terms “company-owned” and “company-leased” refer to vehicles
owned or leased either by the Consultant or RCTC.
b. The Consultant agrees to adopt and enforce workplace safety policies to decrease crashes
caused by distracted drivers, including policies to ban text messaging while using an electronic device
supplied by an employer, and driving a vehicle the driver owns or rents, a vehicle Contactor owns,
leases, or rents, or a privately-owned vehicle when on official business in connection with the work
performed under this contract.
23. Notification to FTA.
a. If a current or prospective legal matter that may affect the Federal Government emerges, the Consultant
must promptly notify the FTA Chief Counsel and FTA Regional Counsel for the Region in which this
Agreement is being performed. The types of legal matters that require notification include, but are not limited to,
a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal
disagreement in any forum for any reason.
b. Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s
interests in the Award, the accompanying Underlying Agreement, and any Amendments thereto, or the Federal
Government’s administration or enforcement of federal laws, regulations, and requirements.
c. Additional Notice to U.S. DOT Inspector General. The Consultant must promptly notify the U.S. DOT
Inspector General in addition to the FTA Chief Counsel or Regional Counsel for the Region in which the
Commission located, if Consultant has knowledge of potential fraud, waste, or abuse occurring on a Project
receiving assistance from FTA. The notification provision applies if a person has or may have submitted a false
claim under the False Claims Act, 31 U.S.C. § 3729, et seq., or has or may have committed a criminal or civil
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Exhibit E-12
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violation of law pertaining to such matters as fraud, conflict of interest, bid rigging, misappropriation or
embezzlement, bribery, gratuity, or similar misconduct involving federal assistance. Knowledge, as used in this
paragraph, includes, but is not limited to, knowledge of a criminal or civil investigation by a Federal, state, or
local law enforcement or other investigative agency, a criminal indictment or civil complaint, or probable cause
that could support a criminal indictment, or any other credible information in the possession of the Consultant.
In this paragraph, “promptly” means to refer information without delay and without change.
24. Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment
Consultant shall not contract (or extend or renew a contract) to procure or obtain equipment, services, or systems
that uses covered telecommunications equipment or services as a substantial or essential component of any
system, or as critical technology as part of any system funded under this Contract. As described in Public Law
115–232, section 889, covered telecommunications equipment is telecommunications equipment produced by
Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
a. For the purpose of public safety, security of government facilities, physical security surveillance of critical
infrastructure, and other national security purposes, video surveillance and telecommunications equipment
produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or
Dahua Technology Company (or any subsidiary or affiliate of such entities).
b. Telecommunications or video surveillance services provided by such entities or using such equipment.
c. Telecommunications or video surveillance equipment or services produced or provided by an entity that the
Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal
Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to,
the government of a covered foreign country.
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Exhibit F-1
17336.00603\31171937.1
EXHIBIT “F” – LOBBYING ACTIVITIES DISCLOSURE
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Local Assistance Procedures Manual EXHBIT 10-Q
Disclosure of Lobbying Activities
Page 1
LPP 13-01 May 8, 2013
EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES
COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVITIES PURSUANT TO 31 U.S.C. 1352
1.Type of Federal Action:2.Status of Federal Action:3.Report Type:
a. contract a. bid/offer/application a. initial
b. grant b. initial award b. material change
c. cooperative agreement c. post-award
d. loan For Material Change Only:
e. loan guarantee year ____ quarter _________
f. loan insurance date of last report __________
4.Name and Address of Reporting Entity 5.If Reporting Entity in No. 4 is Subawardee,
Enter Name and Address of Prime:
Prime Subawardee
Tier _______ , if known
Congressional District, if known Congressional District, if known
6.Federal Department/Agency:7.Federal Program Name/Description:
CFDA Number, if applicable ____________________
8.Federal Action Number, if known:9.Award Amount, if known:
10.Name and Address of Lobby Entity 11.Individuals Performing Services
(If individual, last name, first name, MI) (including address if different from No. 10)
(last name, first name, MI)
(attach Continuation Sheet(s) if necessary)
12.Amount of Payment (check all that apply)14.Type of Payment (check all that apply)
$ _____________ actual planned a. retainer
b. one-time fee
13.Form of Payment (check all that apply):c. commission
a. cash d. contingent fee
b. in-kind; specify: nature _______________e deferred
Value _____________ f. other, specify _________________________
15.Brief Description of Services Performed or to be performed and Date(s) of Service, including
officer(s), employee(s), or member(s) contacted, for Payment Indicated in Item 12:
(attach Continuation Sheet(s) if necessary)
16.Continuation Sheet(s) attached: Yes No
17.Information requested through this form is authorized by Title
31 U.S.C. Section 1352. This disclosure of lobbying reliance
was placed by the tier above when his transaction was made or
entered into. This disclosure is required pursuant to 31 U.S.C.
1352. This information will be reported to Congress
semiannually and will be available for public inspection. Any
person who fails to file the required disclosure shall be subject
to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Signature: ________________________________________
Print Name: _______________________________________
Title: ____________________________________________
Telephone No.: ____________________ Date: ___________
Authorized for Local Reproduction
Federal Use Only: Standard Form - LLL
Standard Form LLL Rev. 04-28-06
Distribution: Orig- Local Agency Project Files
Hawani Tessema
Senior Manager, Contracts
7/13/2022+1 703-462-6915
Not
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Agreement No. 22-31-105-00
PROFESSIONAL SERVICES AGREEMENT
WITH PROPOSITION 1B, FTA AND FHWA FUNDING ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
STANTEC CONSULTING SERVICES, INC.
FOR ON-CALL ENVIRONMENTAL CONSULTING 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 STANTEC CONSULTING SERVICES, INC. ("Consultant"), a
Corporation. The Commission and Consultant are sometimes referred to herein individually
as “Party”, and collectively as the “Parties”.
Recitals.
A.On November 8, 1988 the Voters of Riverside County approved Measure A
authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax (the
"tax") to fund transportation programs and improvements within the County of Riverside,
and adopting the Riverside County Transportation Improvement Plan (the "Plan").
B.Pursuant to Public Utility Code Sections 240000 et seq., the Commission is
authorized to allocate the proceeds of the Tax in furtherance of the Plan.
C.On November 5, 2002, the voters of Riverside County approved an extension
of the Measure A tax for an additional thirty (30) years for the continued funding of
transportation and improvements within the County of Riverside.
D.A source of funding for payment for on-call professional 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 environmental consulting 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.
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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 environmental consulting 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 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. 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
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
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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 on the date first set forth above,
contingent upon approval by Commission, and Consultant shall commence work after
notification to proceed by Commission’s Contract Administrator. This Agreement shall end
three years from the date set forth above, unless extended by contract amendment. The
Commission shall have the option to extend the term for one, two-year option. In no case
shall the term of this Agreement exceed five (5) years. All Task Order work should be
completed within the term.
5.2 Consultant is advised that any recommendation for contract award is
not binding on Commission until this Agreement is fully executed and approved by the
Commission.
5.3 This Agreement shall remain in effect until the date set forth above,
unless earlier terminated as provided herein. Consultant shall complete the Services
within the term of this Agreement, and shall meet any other established schedules and
deadlines. All applicable indemnification provisions of this Agreement shall remain in
effect following the termination of this Agreement.
6. Commission's Contract Administrator. The Commission hereby designates
the Commission's Executive Director, or his or her designee, to act as its Contract
Administrator for the performance of this Agreement ("Commission’s Contract
Administrator"). Commission’s Contract Administrator shall have the authority to act on
behalf of the Commission for all purposes under this Agreement. Commission’s Contract
Administrator shall also review and give approval, as needed, to the details of Consultant's
work as it progresses. Consultant shall not accept direction or orders from any person
other than the Commission’s Contract Administrator or his or her designee.
7. Consultant's Representative. Consultant hereby designates Gilberto Ruiz 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
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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: Gilberto Ruiz, Robert Prohaska, Michael Weber,
Jared Varonin, Christine Abraham, Caitlin Schroeder, and Daryl Zerfass, or as
otherwise identified in the Task Order.
9. Standard of Care; Licenses. Consultant represents and maintains that it is
skilled in the professional calling necessary to perform all Services, duties and obligations
required by this Agreement to fully and adequately complete the Project. Consultant shall
perform the Services and duties in conformance to and consistent with the standards
generally recognized as being employed by professionals in the same discipline in the
State of California. Consultant warrants that all employees and subcontractors shall have
sufficient skill and experience to perform the Services assigned to them. Consultant further
represents and warrants to the Commission that its employees and subcontractors have all
licenses, permits, qualifications and approvals of whatever nature that are legally required
to perform the Services, and that such licenses and approvals shall be maintained
throughout the term of this Agreement. Consultant shall perform, at its own cost and
expense and without reimbursement from the Commission, any services necessary to
correct errors or omissions which are caused by the Consultant’s failure to comply with the
standard of care provided for herein, and shall be fully responsible to the Commission for
all damages and other liabilities provided for in the indemnification provisions of this
Agreement arising from the Consultant’s errors and omissions. Any employee of
Consultant or its sub-consultants who is determined by the Commission to be
uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a
threat to the safety of persons or property, or any employee who fails or refuses to perform
the Services in a manner acceptable to the Commission, shall be promptly removed from
the Project by the Consultant and shall not be re-employed to perform any of the Services
or to work on the Project.
10. Independent Contractor. The Services shall be performed by Consultant or
under its supervision. Consultant will determine the means, methods and details of
performing the Services subject to the requirements of this Agreement. Commission
retains Consultant on an independent contractor basis and not as an employee, agent or
representative of the Commission. Consultant retains the right to perform similar or
different services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Consultant shall at all times be
under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries
and other amounts due such personnel in connection with their performance of Services
and as required by law. Consultant shall be responsible for all reports and obligations
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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. 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 expeditiously, within the term of this
Agreement, and in accordance with any schedule of Services set forth in a Task Order
(“Schedule”). Consultant represents that it has the professional and technical personnel to
perform the Services in conformance with such conditions. In order to facilitate
Consultant's conformance with the Schedule, the Commission shall respond to Consultant's
submittals in a timely manner. Upon request of Commission’s Contract Administrator,
Consultant shall provide a more detailed schedule of anticipated performance to meet the
Schedule of Services.
11.1 Modification of the Schedule. Consultant shall regularly report to the
Commission, through correspondence or progress reports, its progress in providing
required Services within the scheduled time periods. Commission shall be promptly
informed of all anticipated delays. In the event that Consultant determines that a schedule
modification is necessary, Consultant shall promptly submit a revised Schedule of Services
for approval by Commission’s Contract Administrator.
11.2 Trend Meetings. Consultant shall conduct trend meetings with the
Commission’s Contract Administrator and other interested parties, as requested by the
Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a
standard day and time. These trend meetings will encompass focused and informal
discussions concerning scope, schedule, and current progress of Services, relevant cost
issues, and future Project objectives. Consultant shall be responsible for the preparation
and distribution of meeting agendas to be received by the Commission and other
attendees no later than three (3) working days prior to the meeting.
11.3 Progress Reports. As part of its monthly invoice, Consultant shall
submit a progress report, in a form determined by the Commission, which will indicate the
progress achieved during the previous month in relation to the Schedule of Services.
Submission of such progress report by Consultant shall be a condition precedent to receipt
of payment from the Commission for each monthly invoice submitted.
12. Delay in Performance.
12.1 Excusable Delays. Should Consultant be delayed or prevented from
the timely performance of any act or Services required by the terms of the Agreement by
reason of acts of God or of the public enemy, acts or omissions of the Commission or
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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 timely notice shall constitute a
waiver by Consultant of any right to an excusable delay in time of performance.
12.3 Mutual Agreement. Performance of any Services under this
Agreement may be delayed upon mutual agreement of the Parties. Upon such
agreement, Consultant's Schedule of Services shall be extended as necessary by the
Commission. Consultant shall take all reasonable steps to minimize delay in completion,
and additional costs, resulting from any such extension.
13. Preliminary Review of Work. All reports, working papers, and similar work
products prepared for submission in the course of providing Services under this Agreement
shall be submitted to the Commission’s Contract Administrator in draft form, and the
Commission may require revisions of such drafts prior to formal submission and approval.
In the event plans and designs are to be developed as part of the Project, final detailed
plans and designs shall be contingent upon obtaining environmental clearance as may be
required in connection with Federal funding. In the event that Commission’s Contract
Administrator, in his or her sole discretion, determines the formally submitted work product
to be not in accordance with the standard of care established under this Agreement,
Commission’s Contract Administrator may require Consultant to revise and resubmit the
work at no cost to the Commission.
14. Appearance at Hearings. If and when required by the Commission,
Consultant shall render assistance at public hearings or other meetings related to the
Project or necessary to the performance of the Services. However, Consultant shall not be
required to, and will not, render any decision, interpretation or recommendation regarding
questions of a legal nature or which may be construed as constituting a legal opinion.
15. Opportunity to Cure; Inspection of Work. Commission may provide
Consultant an opportunity to cure, at Consultant's expense, all errors and omissions 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.
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
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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 personnel services under this
Agreement.
16.3 Services of the Consultant’s personnel and other support staff in
connection with Contractor claims will be performed pursuant to a written contract
amendment, if necessary, extending the termination date of this Agreement in order to
finally resolve the claims.
16.4 Nothing contained in this Section shall be construed to in any way limit
Consultant’s indemnification obligations contained in Section 29. In the case of any
conflict between this Section and Section 29, Section 29 shall govern. This Section is not
intended to obligate the Commission to reimburse Consultant for time spent by its
personnel related to Contractor claims for which Consultant is required to indemnify and
defend the Commission pursuant to Section 29 of this Agreement.
17. Final Acceptance. Upon determination by the Commission that Consultant
has satisfactorily completed the Services required under this Agreement and within the
term set forth herein the Commission shall give Consultant a written Notice of Final
Acceptance. Upon receipt of such notice, Consultant shall incur no further costs
hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may
request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily
completed all Services required under the terms of this Agreement. In the event copyrights
are permitted under this Agreement, then in connection with Federal funding, it is hereby
acknowledged and agreed that the United States Department of Transportation shall have
the royalty-free non-exclusive and irrevocable right to reproduce, publish, or otherwise use,
and to authorize others to use, the work for governmental purposes.
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
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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 this Agreement will be based on actual
cost plus a fixed fee. Commission shall reimburse Consultant for actual costs (including
labor costs, employee benefits, travel, equipment rental costs, overhead and other direct
costs) incurred by Consultant in performance of the Services. Consultant shall not be
reimbursed for actual costs that exceed the estimated wage rates, employee benefits,
travel, equipment rental, overhead, and other estimated costs set forth in the approved
Consultant cost proposal attached hereto as Exhibit “B” and incorporated herein by
reference, or any cost proposal included as part of a Task Order (“Cost Proposal”) unless
additional reimbursement is provided for by written amendment. The overhead rates
included in the attached Exhibit “B” shall be fixed for the term of the Master Agreement,
and shall not be subject to adjustment, unless required by the applicable funding source.
In In no event, shall Consultant be reimbursed for overhead costs at a rate that exceeds
Commission’s approved overhead rate set forth in the Cost Proposal. In the event that
Commission determines that a change to the Services from that specified in the Cost
Proposal, this Agreement or any Task Order is required, the Agreement time or actual
costs reimbursable by Commission shall be adjusted by written amendment to
accommodate the changed work. The maximum total cost as specified in Section 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
Consultant is responsible for the cost difference and any overpayments shall be
reimbursed to the Commission on demand.
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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 approval of any Services, nor for
any Services performed prior to approval of this Agreement.
19.7 Consultant shall be reimbursed, as promptly as fiscal procedures will
permit upon receipt by Commission’s Contract Administrator of itemized invoices in
triplicate. Invoices shall be submitted no later than 45 calendar days after the performance
of work for which Consultant is billing. Invoices shall detail the work performed on each
milestone and each project as applicable. Invoices shall follow the format stipulated for the
approved Cost Proposal and shall reference this Agreement number and project title. Final
invoice must contain the final cost and all credits due Commission including any
equipment purchased under the Equipment Purchase provisions of this Agreement. The
final invoice should be submitted within 60 calendar days after completion of Consultant’s
work. Invoices shall be mailed to Commission’s Contract Administrator at the following
address:
Riverside County Transportation Commission
Attention: Accounts Payable
P.O. 12008
Riverside, CA 92502
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 Commission has or will enter into four (4) task order contracts for
performance of the Scope of Services identified in Exhibit “A”, including this Agreement
(“Environmental Services Task Order Contracts”). The other Environmental Services Task
Order Contracts are GPA Consulting, HNTB Corporation, and ICF Jones & Stokes. The
total amount payable by Commission for the Environmental Services Task Order Contracts
shall not exceed a cumulative maximum total value of Three Million Dollars ($3,000,000)
(“NTE Sum”). It is understood and agreed that there is no guarantee, either expressed or
implied that this dollar amount will be authorized under the Environmental Services Task
Order Contracts through Task Orders. Each time a Task Order is awarded under any of
the Environmental Services Task Order Contracts, Commission must send written
notification to Consultant and each of the other consultants entering into the
Environmental Services Task Order Contracts. The notice must identify the total funds
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allocated under issued Task Orders, and the remaining unencumbered amount of the NTE
Sum. Consultant acknowledges and agrees that Commission must not pay any amount
under this Agreement that would exceed the NTE Sum, and Consultant must not enter into
a Task Order that exceeds the NTE Sum.
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 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 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.
21.1 Commission reserves the right to terminate this Agreement upon thirty
(30) calendar days written notice to Consultant, for any or no reason, with the reasons for
termination stated in the notice. Commission may terminate Services under a Task Order,
at any time, for any or no reason, with the effective date of termination to be specified in
the notice of termination of Task Order.
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
Services in any manner deemed proper by Commission. If Commission terminates this
Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant
under this Agreement for Services completed and accepted prior to termination, unless the
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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.
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
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 allowability of individual items.
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.
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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,
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 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.
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)
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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.
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 “B” may set forth the rates at which each subconsultant shall
bill the Consultant for Services and that are subject to reimbursement by the Commission
to Consultant. Additional Direct Costs, as defined in Exhibit “B” shall be the same for both
the Consultant and all subconsultants, unless otherwise identified in Exhibit “B” or in a
Task Order. The subconsultant rate schedules and cost proposals contained herein are for
accounting purposes only.
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 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
the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s
Contract Administrator is required. Three competitive quotations must be submitted with
the request for such purchase, or the absence of bidding must be adequately justified.
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
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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.
26.4 All subcontracts in excess $25,000 shall contain the above provisions.
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 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 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. Since the Services are being performed as part of
an applicable “public works” or “maintenance” project, then pursuant to Labor Code
Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered
with the Department of Industrial Relations. Consultant shall maintain registration for the
duration of the Project and require the same of any subconsultants. This Project may also
be subject to compliance monitoring and enforcement by the Department of Industrial
Relations. It shall be Consultant’s sole responsibility to comply with all applicable
registration and labor compliance requirements.
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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 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 the Services, Consultant and any
subcontractor hereunder who employs workers in any apprenticeable craft or trade shall
apply to the joint apprenticeship council administering applicable standards for a certificate
approving Consultant or any sub-consultant for the employment and training of apprentices.
Upon issuance of this certificate, Consultant and any sub-consultant shall employ the
number of apprentices provided for therein, as well as contribute to the fund to administer
the apprenticeship program in each craft or trade in the area of the work hereunder.
The parties expressly understand that the responsibility for compliance with
provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California
Labor Code in regard to all apprenticeable occupations lies with Consultant
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, 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”).
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Consultant shall require all subcontractors to agree in writing that
Commission is granted an exclusive and perpetual license for any Documents & Data the
subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal right
to grant the exclusive and perpetual license for all such Documents & Data. Consultant
makes no such representation and warranty in regard to Documents & Data which were
prepared by design professionals other than Consultant or provided to Consultant by the
Commission.
Commission shall not be limited in any way in its use of the Documents
& Data at any time, provided that any such use not within the purposes intended by this
Agreement shall be at Commission’s sole risk.
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 this Agreement.
The Commission shall have and retain all right, title and interest in
Intellectual Property developed or modified under this Agreement whether or not paid for
wholly or in part by Commission, whether or not developed in conjunction with Consultant,
and whether or not developed by Consultant. Consultant will execute separate written
assignments of any and all rights to the above referenced Intellectual Property upon
request of Commission.
Consultant shall also be responsible to obtain in writing separate
written assignments from any subcontractors or agents of Consultant of any and all right to
the above referenced Intellectual Property. Should Consultant, either during or following
termination of this Agreement, desire to use any of the above-referenced Intellectual
Property, it shall first obtain the written approval of the Commission.
All materials and documents which were developed or prepared by the
Consultant for general use prior to the execution of this Agreement and which are not the
copyright of any other party or publicly available and any other computer applications, shall
continue to be the property of the Consultant. However, unless otherwise identified and
stated prior to execution of this Agreement, Consultant represents and warrants that it has
the right to grant the exclusive and perpetual license for all such Intellectual Property as
provided herein.
Commission further is granted by Consultant a non-exclusive and
perpetual license to copy, use, modify or sub-license any and all Intellectual Property
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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, 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 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 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 shall reimburse Commission, Caltrans and their directors, officials,
officers, employees, consultants, agents, and/or volunteers, for any and all legal expenses
and costs, including reasonable attorney’s fees, incurred by each of them in connection
therewith or in enforcing the indemnity herein provided. Consultant's obligation to
indemnify shall not be restricted to insurance proceeds, if any, received by Commission,
Caltrans, their directors, officials officers, employees, consultants, agents, or volunteers.
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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, 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
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 shall reimburse Commission,
Caltrans and their directors, officials, officers, employees, consultants, agents, and/or
volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees,
incurred by each of them in connection therewith or in enforcing the indemnity herein
provided. Consultant's obligation to indemnify shall not be restricted to insurance
proceeds, if any, received by Commission, Caltrans or their directors, officials officers,
employees, consultants, agents, or volunteers. Notwithstanding the foregoing, to the extent
Consultant’s Services are subject to Civil Code Section 2782.8, the above indemnity shall
be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of,
pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
Consultant’s obligations as set forth in this Section 29 shall survive expiration or
termination of this Agreement.
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31. Insurance.
31.1 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.
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,
code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation insurance as required by the State of California and
Employer’s Liability Insurance.
(b) Minimum Limits of Insurance. Consultant shall maintain limits
no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form with
general aggregate limit is used, either the general aggregate limit shall apply separately to
this Agreement/location or the general aggregate limit shall be twice the required
occurrence limit. Limits may be achieved by any combination of primary and excess or
umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily
injury and property damage. Limits may be achieved by any combination of primary and
excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation limits as required by the Labor Code of the State of
California. Employer’s Practices Liability limits of $1,000,000 per accident.
31.3 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
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shall obtain such insurance in an amount not less than $2,000,000 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.
31.4 Aircraft Liability Insurance. Prior to conducting any Services requiring
use of aircraft, Consultant shall procure and maintain, or cause to be procured and
maintained, aircraft liability insurance or equivalent form, with a single limit as shall be
required by the Commission. Such insurance shall include coverage for owned, hired and
non-owned aircraft and passengers, and shall name, or be endorsed to name, the
Commission, Caltrans and their directors, officials, officers, employees and agents as
additional insureds with respect to the Services or operations performed by or on behalf of
the Consultant.
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:
(a) General Liability.
(i) Commercial General Liability Insurance must include
coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury;
(3) premises/operations liability; (4) products/completed operations liability; (5) aggregate
limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion
deleted; (7) contractual liability with respect to this Agreement; (8) broad form property
damage; and (9) independent consultants coverage.
(ii) The policy shall contain no endorsements or provisions
limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by
one insured against another; or (3) contain any other exclusion contrary to this Agreement.
(iii) The policy shall give the Commission, its directors,
officials, officers, employees, and agents insured status using ISO endorsement forms 20
10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the policy shall be
“primary and non-contributory” and will not seek contribution from the Commission’s or
Caltrans’ insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or
endorsements providing the exact same coverage.
(b) Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) the Commission, Caltrans and their directors, officials, officers,
employees and agents shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned, leased,
hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the
insurance coverage shall be primary insurance as respects the Commission, Caltrans and
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their directors, officials, officers, employees and agents, or if excess, shall stand in an
unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage.
Any insurance or self-insurance maintained by the Commission, Caltrans and their
directors, officials, officers, employees and agents shall be excess of the Consultant’s
insurance and shall not be called upon to contribute with it in any way.
(c) Workers’ Compensation and Employers Liability Coverage.
(i) Consultant certifies that he/she is aware of the provisions
of Section 3700 of the California Labor Code which requires every employer to be insured
against liability for workers’ compensation or to undertake self-insurance in accordance with
the provisions of that code, and he/she will comply with such provisions before
commencing work under this Agreement.
(ii) The insurer shall agree to waive all rights of subrogation
against the Commission, its directors, officials, officers, employees and agents for losses
paid under the terms of the insurance policy which arise from work performed by the
Consultant.
(d) All Coverages.
(i) Defense costs shall be payable in addition to the limits
set forth hereunder.
(ii) Requirements of specific coverage or limits contained in
this Section are not intended as a limitation on coverage, limits, or other requirement, or a
waiver of any coverage normally provided by any insurance. It shall be a requirement
under this Agreement that any available insurance proceeds broader than or in excess of
the specified minimum insurance coverage requirements and/or limits set forth herein shall
be available to the Commission, Caltrans and their directors, officials, officers, employees
and agents as additional insureds under said policies. Furthermore, the requirements for
coverage and limits shall be (1) the minimum coverage and limits specified in this
Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance
policy or proceeds available to the named insured; whichever is greater.
(iii) The limits of insurance required in this Agreement may
be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or
excess insurance shall contain or be endorsed to contain a provision that such coverage
shall also apply on a primary and non-contributory basis for the benefit of the Commission
(if agreed to in a written contract or agreement) before the Commission’s own insurance or
self-insurance shall be called upon to protect it as a named insured. The umbrella/excess
policy shall be provided on a “following form” basis with coverage at least as broad as
provided on the underlying policy(ies).
(iv) Consultant shall provide the Commission at least thirty
(30) days prior written notice of cancellation of any policy required by this Agreement,
except that the Consultant shall provide at least ten (10) days prior written notice of
cancellation of any such policy due to non-payment of premium. If any of the required
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coverage is cancelled or expires during the term of this Agreement, the Consultant shall
deliver renewal certificate(s) including the General Liability Additional Insured Endorsement
to the Commission at least ten (10) days prior to the effective date of cancellation or
expiration.
(v) The retroactive date (if any) of each policy is to be no
later than the effective date of this Agreement. Consultant shall maintain such coverage
continuously for a period of at least three years after the completion of the work under this
Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the
retroactive date is advanced past the effective date of this Agreement; B) if the policy is
cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with
a retroactive date subsequent to the effective date of this Agreement.
(vi) The foregoing requirements as to the types and limits of
insurance coverage to be maintained by Consultant, and any approval of said insurance by
the Commission, is not intended to and shall not in any manner limit or qualify the liabilities
and obligations otherwise assumed by the Consultant pursuant to this Agreement, including
but not limited to, the provisions concerning indemnification.
(vii) If at any time during the life of the Agreement, any policy
of insurance required under this Agreement does not comply with these specifications or is
canceled and not replaced, Commission has the right but not the duty to obtain the
insurance it deems necessary and any premium paid by Commission will be promptly
reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium
from Consultant payments. In the alternative, Commission may cancel this Agreement.
The Commission may require the Consultant to provide complete copies of all insurance
policies in effect for the duration of the Project.
(viii) Neither the Commission nor any of its directors, officials,
officers, employees or agents shall be personally responsible for any liability arising under
or by virtue of this Agreement.
31.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the Commission. If the
Commission does not approve the deductibles or self-insured retentions as presented,
Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer
shall reduce or eliminate such deductibles or self-insured retentions as respects the
Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant
shall procure a bond guaranteeing payment of losses and related investigation costs,
claims and administrative and defense expense.
31.7 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.
31.8 Verification of Coverage. Consultant shall furnish Commission with
original certificates of insurance and endorsements effecting coverage required by this
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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.
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
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 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.
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.
33. 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,
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other than a Cardinal Change. For purposes of this Agreement, a Cardinal Change is a
change which is “outside the scope” of the Agreement; in other words, work which should
not be regarded as having been fairly and reasonably within the contemplation of the
parties when the Agreement was entered into. An example of a change which is not a
Cardinal Change would be where, in a contract to construct a building there are many
changes in the materials used, but the size and layout of the building remains the same.
Cardinal Changes are not within the authority of this provision to order, and shall be
processed by the Commission as “sole source” procurements according to applicable law,
including the requirements of FTA Circular 4220.1D, paragraph 9(f).
(a) In addition to the changes authorized above, a
modification which is signed by Consultant and the Commission’s Executive Director, other
than a Cardinal Change, may be made in order to: (1) make a negotiated equitable
adjustment to the Agreement price, delivery schedule and other terms resulting from the
issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other
agreements of the parties modifying the terms of this Agreement (“Bilateral Contract
Modification”).
(b) Consultant shall not perform, nor be compensated for any
change, without written authorization from the Commission’s Executive Director as set forth
herein. In the event such a change authorization is not issued and signed by the
Commission’s Executive Director, Consultant shall not provide such change.
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 Commission shall have the right
to rescind this Agreement without liability.
34.2 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.
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(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 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.
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, 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.
34.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant
warrants that this Agreement was not obtained or secured through rebates kickbacks or
other unlawful consideration, either promised or paid to any Commission employee. For
breach or violation of this warranty, Commission shall have the right in its discretion; to
terminate this Agreement without liability; to pay only for the value of the work actually
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performed; or to deduct from the Agreement price; or otherwise recover the full amount of
such rebate, kickback or other unlawful consideration.
34.7 Covenant Against Expenditure of Commission, State or Federal
Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and
belief no state, federal or local agency appropriated funds have been paid, or will be paid
by or on behalf of the Consultant to any person for the purpose of influencing or attempting
to influence an officer or employee of any state or federal agency; a Member of the State
Legislature or United States Congress; an officer or employee of the Legislature or
Congress; or any employee of a Member of the Legislature or Congress, in connection
with the award of any state or federal contract, grant, loan, or cooperative agreement, or
the extension, continuation, renewal, amendment, or modification of any state or federal
contract, grant, loan, or cooperative agreement.
(a) If any funds other than federal appropriated funds have been
paid, or will be paid to any person for the purpose of influencing or attempting to influence
an officer or employee of any federal agency; a Member of Congress; an officer or
employee of Congress, or an employee of a Member of Congress; in connection with this
Agreement, the Consultant shall complete and submit the attached Exhibit "G", 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 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 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.
35. 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.
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36. Right to Employ Other Consultants. Commission reserves the right to employ
other consultants in connection with the Project.
37. Governing Law. This Agreement shall be governed by and construed with the
laws of the State of California. Venue shall be in Riverside County.
38. Disputes; Attorneys' Fees.
38.1 Prior to commencing any action hereunder, the Parties shall attempt
in good faith to resolve any dispute arising between them. The pendency of a dispute
shall not excuse Consultant from full and timely performance of the Services.
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.
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: COMMISSION:
Stantec Consulting Services, Inc. Riverside County
523 West 6th Street Transportation Commission
Suite 1200 4080 Lemon Street, 3rd Floor
Los Angeles, CA 90014 Riverside, CA 92501
Attn: Gilberto Ruiz 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
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Parties and the interpretation of the Parties' understanding concerning the performance of
the Services.
43. Amendment or Modification. No supplement, modification, or amendment of
this Agreement shall be binding unless 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
“C” (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
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’ 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.
50. Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original.
51. Attorney Client Privilege. The Parties recognize that, during the Project, the
Commission and its attorneys will engage in communication that gives rise to an attorney
client privilege of confidentiality (“Confidential Communication”). Given the nature of the
work done by Consultant for the Commission, it may be necessary for the Consultant to
participate in Confidential Communications. To the extent that (i) the Consultant is a party
to any Confidential Communication, and (ii) a third party seeks discovery of such
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communications, then the Consultant shall be deemed to be an agent of the Commission
solely for purposes of preserving any attorney client privilege in the relevant Confidential
Communication. Any such attorney client privilege shall be held by the Commission and
the Consultant is not authorized to waive that privilege or, otherwise, disclose such
Confidential Communication except as set forth below. This Section is intended to maintain
the privilege in any privileged Confidential Communications that are (1) between and
among Commission, Consultant, and Commission’s attorneys; (2) between Consultant (on
behalf of the Commission) and 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
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.
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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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SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH PROPOSITION 1B, FTA AND FHWA FUNDING ASSISTANCE FOR
ENVIRONMENTAL CONSULTING SERVICES
IN WITNESS WHEREOF, this Agreement was executed on the date first written
above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
Anne Mayer
Approved as to Form:
By:
Best, Best & Krieger LLP
General Counsel
CONSULTANT
STANTEC CONSULTING SERVICES,
INC.
By:
Signature
Name
Title
ATTEST:
By:
Its: ___________________________
* A corporation requires the signatures of two corporate officers.
One signature shall be that of the chairman of board, the president or any vice president and the second
signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or
any assistant treasurer of such corporation.
If the above persons are not the intended signators, evidence of signature authority shall be provided to
RCTC.
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Exhibit A
17336.00603\31171937.1
EXHIBIT "A" - SCOPE OF SERVICES
ON-CALL ENVIRONMENTAL CONSULTING
SERVICES
1.0 DESCRIPTION OF WORK
1.1 Consultant Responsibilities shall include, but will not be limited to the
following:
1.1.1 Review and evaluate project-specific environmental documents to
assess current compliance/validity under California Environmental Quality Act (CEQA)
and National Environmental Policy Act (NEPA) due to changes in project design,
environmental requirements, elapsed time, etc. Prepare appropriate written
documentation and supplemental materials (e.g., environmental
revalidation/reevaluation, CEQA addendum, update technical reports and studies, etc.) to
support the assessment.
1.1.2 Review and provide written input on project-specific environmental
documents, technical reports, and studies as requested by Commission staff (e.g., air
quality, water quality, noise, cultural resources, paleontology, biology, MSHCP studies,
and Sections 4[f] and 6[f]).
1.1.3 Permitting services including preparation of permit packages(s) and
submittal to permitting agency(ies); coordination with permitting agency(ies); and
shepherding permits(s) through their respective approval process(es).
1.1.4 Implementing, monitoring, and documenting the progress and
success of environmental commitments during construction and post-construction (e.g.,
environmentally sensitive area [ESA] fencing, permit conditions, habitat restoration,
revegetation, special environmental provisions, etc.).
1.1.5 Support of project compliance with Western Riverside County
Multispecies Habitat Conservation Plan (MSHCP) including preparation of documentation
needed to support consistency determination process.
1.1.6 Coordination with regulatory and resources agencies as needed, on
specific issues.
1.1.7 Other environmental services as requested by Commission staff.
1.1.8 In addition to meeting with and coordinating efforts with Commission
staff, Consultant may also be required to interact with Commission legal counsel, other
consultants, Caltrans, Federal Transit Administration, Federal Highway Administration, et
al.
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Exhibit A
17336.00603\31171937.1
1.1.9 If any legal issues exist during the course of work authorized under
this scope of work, Consultant shall inform Commission. All legal opinions shall be
rendered by Commission’s legal counsel.
1.1.10 If hazardous materials or wastes are discovered during the course of
work authorized under this scope of work, Consultant shall inform Commission and seek
further direction from the Commission.
1.2 Materials to be Furnished by Commission
1.2.1 All software, data, reports, surveys, drawings, and other documents
furnished to the Offeror by Commission for the Offeror’s use in the performance of
services shall be made available only for use in performing the assignment and shall
remain the property of Commission. All such materials shall be returned to Commission
upon completion of services, termination of the agreement, or other such time as
Commission may determine.
1.3 Personnel Qualifications and Responsibilities
1.3.1 The quantity and qualifications of personnel to be assigned will be
determined by the scope of the Task Order request and the degree of difficulty of required
tasks to be performed. All personnel and personnel assignments shall be subject to
approval by Commission.
1.4 Third Party Relationships
1.4.1 This Contract is intended to provide on-call environmental services
for Commission projects. In the development of the Commission projects, Commission
has worked closely with various professional offerors, agencies, and others in the
development of the project documents and other project related materials. Commission,
however, is solely responsible for and will be the sole point of contact for all contractual
matters related to the Task Orders. Offeror shall take direction only from Commission and
shall regularly inform only Commission of Task Order progress, outstanding issues, and
all related matters.
1.4.2 During the course of the contract, Offeror may find occasion to meet
with resource agencies, local jurisdictions, or Caltrans representatives, the design
engineer, or other third parties who have assisted with the various Plan projects. These
entities may, from time to time, offer suggestions and/or recommendations regarding the
Commission project or elements of the project. While the Commission enjoys a close
relationship with and has considerable confidence in the capabilities of these other parties,
Offeror shall not act on any suggestions, solicited or unsolicited, without obtaining specific
direction from Commission. All oral and written communication with outside agencies or
Offerors related to the project shall be directed only to Commission. Distribution of project
related communications and information shall be at the sole discretion of Commission
representatives.
2.0 TASK ORDER PROCEDURES
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Exhibit A
17336.00603\31171937.1
2.1 Definitions
2.1.1 The term Consultant shall refer to the firm or firms that are awarded
the contract for environmental consulting services.
2.1.2 A Task Order is utilized by the parties to establish, outline, and
authorize a particular job or task.
2.2 Initiating Task Orders
2.2.1 The Commission’s project manager will issue Task Orders to the
Consultant.
2.2.2 The Commission’s request for task order submittals. Upon a request
for a Task Order Proposal by the designated Commission project manager, contractor
shall develop a plan and submit a task order proposal for the requested services. The
Task Order shall include a time schedule, number of labor hours, and labor
classification(s) to provide the requested services.
2.3 Review and Award of Task Orders
2.3.1 The Commission’s designated project manager will review the
submitted Task Order (TO) to ensure that the submittal is complete, consistent with the
Commission’s written or oral request for services, the personnel assigned are acceptable,
the schedule is acceptable, that all costs proposed are appropriate, and that the item is in
compliance with contractual requirements. The project manager will award the Task
Order if it is determined to be fair and reasonable. If required, the Commission’s project
manager will conduct negotiations to address exceptions and clarify costs. The fully
executed Task Order will serve as the record of negotiations.
2.4 Completion Schedule
2.4.1 The contractors’ performance of services shall commence under
each Task Order only upon written authorization by the Commission’s designated project
manager.
2.4.2 Contractor shall complete the services within the time frame
specified on a particular Task Order.
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Exhibit B-1
17336.00603\31171937.1
EXHIBIT "B"- COMPENSATION AND PAYMENT
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FIRM PROJECT TASKS/ROLE COST
Stantec Consulting Services On-Call Environmental Consulting Services 3,000,000.00$
ECORP Threatened and Endangered Species Surveys,
Wetlands and Waters Delineations, and habitat
restoration services and monitoring TBD
Environmental Review Partners Air Quality, Greenhouse Gases, noise and
vibration TBD
Hernandez Environmental Services Threatened and Endangered Species Surveys,
wetlands and Waters Delineations, and Western
Riverside and Coachella Valley Multiple Species
Habitat Conservation Plan Support TBD
Leatherman BioConsulting, Inc.Threatened and Endangered Species Surveys,
Wetlands and Waters Delineations TBD
Pacific Restoration Group, Inc.Habitat Restoration and monitoring TBD
Pax Environmental Threatened and Endangered Species Surveys TBD
TBD
TBD
TBD
TBD
3,000,000.00$ TOTAL COSTS
1 Commission authorization pertains to total contract award amount. Compensation adjustments between consultants may occur;
however, the maximum total compensation authorized may not be exceeded.
EXHIBIT "B"
Prime Consultant:
Sub Consultants:
COMPENSATION SUMMARY1
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Exhibit C-1
17336.00603\31171937.1
EXHIBIT "C"
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 creed, national origin, physical
disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age
(over 40), marital status, and denial of family care leave. Consultant and subconsultants
shall insure that the evaluation and treatment of their employees and applicants for
employment are free from such discrimination and harassment. Consultant and
subconsultants shall comply with the provisions of the Fair Employment and Housing Act
(Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated there under
(California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations
of the Fair Employment and Housing Commission implementing Government Code Section
12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of
Regulations, are incorporated into this Agreement by reference and made a part hereof as
if set forth in full. 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.
C. 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.
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,
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Exhibit C-2
17336.00603\31171937.1
including employment practices when the Agreement covers a program whose goal is
employment.
2. DEBARMENT AND SUSPENSION CERTIFICATION
CONSULTANT’s signature affixed herein, shall constitute a certification under penalty of
perjury under the laws of the State of California, that CONSULTANT has complied with Title
2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and
Suspension (nonprocurement)”, which certifies that he/she or any person associated
therewith in the capacity of owner, partner, director, officer, or manager, is not currently
under suspension, debarment, voluntary exclusion, or determination of ineligibility by any
federal agency; has not been suspended, debarred, voluntarily excluded, or determined
ineligible by any federal agency within the past three (3) years; does not have a proposed
debarment pending; and has not been indicted, convicted, or had a civil judgment rendered
against it by a court of competent jurisdiction in any matter involving fraud or official
misconduct within the past three (3) years. Any exceptions to this certification must be
disclosed to COMMISSION.
B. Exceptions will not necessarily result in denial of recommendation for award, but will be
considered in determining CONSULTANT responsibility. Disclosures must indicate to whom
exceptions apply, initiating agency, and dates of action.
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
The Commission shall not discriminate on the basis of race, color, national origin, or sex in
the award and performance of any DOT-assisted contract or in the implementation of the
Caltrans DBE program or the requirements of 49 CFR Part 26. The Commission shall take
all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in
the award and administration of DOT-assisted contracts.
Consultant or subcontractor shall not discriminate on the basis of race, color, national
origin, of sex in the performance of this Agreement. Consultant or subcontractor shall carry
out applicable requirements of 49 CFR Part 26 and the Caltrans DBE program in the award
and administration of DOT-assisted contracts, as further set forth below. Failure by the
Consultant or subcontractor to carry out these requirements is a material breach of this
Agreement, which may result in the termination of this Agreement or such other remedy, as
the Commission deems appropriate.
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
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Exhibit C-3
17336.00603\31171937.1
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
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 performance, or noncompliance by a
subconsultant. This provision applies to both DBE and non-DBE prime consultants and
subconsultants.
6. LEGAL REMEDIES
In addition to those contract remedies set forth under relevant provisions of California law,
either Party to this Agreement may, where applicable, seek legal redress for violations of
this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the
relevant federal or state statutory provisions governing civil rights violations, and to the
relevant federal and state provisions governing false claims or “whistleblower” actions, as
well as any and all other applicable federal and state provisions of law.
The Consultant shall include a provision to this effect in each of its agreements with its
subcontractors.
7. DBE PARTICIPATION
Caltrans has developed a statewide DBE program pursuant to 49 C.F.R. Part 26. The
requirements and procedures, as applicable, of the Caltrans DBE program are hereby
incorporated by reference into this Agreement. Even if no DBE participation will be
reported, Consultant shall complete Exhibits "D" 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.
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Exhibit C-4
17336.00603\31171937.1
B. This Agreement has established a 17% DBE goal. 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. 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 Agreement shall contain all of the
provisions of this section.
E. A DBE may be terminated only with prior written approval from the Commission and
only for the reasons specified in 49 CFR 26.53(f). Prior to requesting Commission consent
for the termination, the prime consultant must meet the procedural requirements specified
in 49 CFR 26.53(f).
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 8 below.
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Exhibit C-5
17336.00603\31171937.1
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 materials and supplies used on the
Agreement, for negotiating price, determining quality and quantity, ordering the material,
and installing (where applicable) and paying for the material itself. To determine whether a
DBE is performing a commercially useful function, evaluate the amount of work
subcontracted, industry practices; whether the amount the firm is to be paid under the
Agreement is commensurate with the work it is actually performing, and other relevant
factors.
B. A DBE does not perform a commercially useful function if its role is limited to that of
an extra participant in a transaction, Agreement, or project through which funds are passed
in order to obtain the appearance of DBE participation. In determining whether a DBE is
such an extra participant, examine similar transactions, particularly those in which DBEs do
not participate.
C. If a DBE does not perform or exercise responsibility for at least thirty percent of the
total cost of its Agreement with its own work force, or the DBE subcontracts a greater
portion of the work of the Agreement than would be expected on the basis of normal
industry practice for the type of work involved, it will be presumed that it is not performing a
commercially useful function.
10. DBE CERTIFICATION AND DE-CERTIFICATION STATUS
If a DBE subcontractor is decertified 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
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Exhibit C-6
17336.00603\31171937.1
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 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-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
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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 for the total value of the transportation services it provides
on the Agreement using trucks it 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
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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 issued in compliance with the Energy Policy and
Conservation Act (Pub. L. 94-163, 89 Stat. 871).
16. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code Section 10296, and by signing this Agreement,
Consultant certifies under penalty of perjury that no more than one final unappealable
finding of contempt of court by a federal court has been issued against Consultant within
the immediately preceding two-year period, because of Consultant’s failure to comply with
an order of a federal court that orders Consultant to comply with an order of the National
Labor Relations Board.
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Exhibit D-1
17336.00603\31171937.1
EXHIBIT "D"
CONSULTANT DBE COMMITMENT
Consultant to Complete this Section
1. Local Agency Name: _Riverside County Transportation Commission
2. Project Location: _Riverside County___________________________
3. Project Description: On-Call Environmental Consulting Services_____
4. Consultant Name: __________________________________________________________________________________________
5. Contract DBE Goal %: _17%_______________
DBE Commitment Information
6. Description of Services to be Provided 7. DBE Firm
Contact Information 8. DBE Cert.
Number 9. DBE %
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Exhibit E-1
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EXHIBIT "E" - FTA PROVISIONS
FTA FUNDING REQUIREMENTS (Non-construction/maintenance work)
As used herein, “RCTC” shall have the same meaning as the “Commission.” The term “contract” or
“Contract” shall have the same meaning as the “Agreement.”
1. No Obligation by the Federal Government
a. RCTC and Consultant acknowledge and agree that, notwithstanding any concurrence by the
Federal Government in or approval of the solicitation or award of the underlying contract, absent the
express written consent by the Federal Government, the Federal Government is not a party to this
contract and shall not be subject to any obligations or liabilities to the Purchaser, Consultant, or any
other party (whether or not a party to that contract) pertaining to any matter resulting from the
underlying contract.
b. The Consultant agrees to include the above clause in each subcontract financed in whole or in
part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified,
except to identify the subconsultant who will be subject to its provisions.
2. Program Fraud and False or Fraudulent Statements or Related Acts
a. The Consultant acknowledges that the provisions of the Program Fraud Civil Remedies Act of
1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, "Program Fraud Civil
Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the
underlying contract, the Consultant certifies or affirms the truthfulness and accuracy of any statement
it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the
FTA assisted project for which this contract work is being performed. In addition to other penalties
that may be applicable, the Consultant further acknowledges that if it makes, or causes to be made, a
false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government
reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the
Consultant to the extent the Federal Government deems appropriate.
b. The Consultant also acknowledges that if it makes, or causes to be made, a false, fictitious, or
fraudulent claim, statement, submission, or certification to the Federal Government under a contract
connected with a project that is financed in whole or in part with Federal assistance originally awarded
by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the
penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Consultant, to the extent the Federal
Government deems appropriate.
c. The Consultant agrees to include the above two clauses in each subcontract financed in whole
or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be
modified, except to identify the subconsultant who will be subject to the provisions.
3. Access to Records
The Consultant agrees to the following access to records requirements:
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a. To provide RCTC, the FTA Administrator, the Comptroller General of the United States or any
of their authorized representatives access to any books, documents, papers and records of the
Consultant which are directly pertinent to this contract for the purposes of making audits,
examinations, excerpts and transcriptions. Consultant also agrees, pursuant to 49 C. F. R. 633.17 to
provide the FTA Administrator or his authorized representatives including any PMO Consultant access
to Consultant's records and construction sites pertaining to a major capital project, defined at 49 U.S.C.
5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C.
5307, 5309 or 5311.
b. To make available in the case of a contract for a capital project or improvement, as defined
above and awarded by other than competitive bidding in accordance with 49 U.S.C. 5325(a), records
related to the contract to RCTC, the Secretary of Transportation and the Comptroller General or any
authorized officer or employee of any of them for the purposes of conducting an audit and inspection.
c. To maintain all books, records, accounts and reports required under this contract for a period of
not less than three years after the date of termination or expiration of this contract, except in the event
of litigation or settlement of claims arising from the performance of this contract, in which case
Consultant agrees to maintain same until RCTC, the FTA Administrator, the Comptroller General, or
any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or
exceptions related thereto. Reference 49 CFR 18.39(i)(11).
d. To permit any of the foregoing parties to reproduce by any means whatsoever or to copy
excerpts and transcriptions as reasonably needed.
4. Federal Changes
The Consultant shall at all times comply with all applicable FTA regulations, policies, procedures and
directives, including without limitation those listed directly or by reference in the Master Agreement
between RCTC and FTA, as they may be amended or promulgated from time to time during the term
of this contract. Consultant's failure to so comply shall constitute a material breach of this contract.
5. Civil Rights
The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. §
2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202
of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C.
§ 5332 and 49 CFR part 21, the Consultant agrees that it will not discriminate against any employee or
applicant for employment because of race, color, creed,
national origin, sex, age, or disability. In addition, the Consultant agrees to comply with applicable
Federal implementing regulations and other implementing requirements FTA may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity requirements apply
to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights
Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Consultant
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Exhibit E-3
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agrees to comply with all applicable equal employment opportunity requirements of U.S. Department
of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq ., (which implement
Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No.
11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. §
2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal
policies that may in the future affect construction activities undertaken in the course of the Project.
The Consultant agrees to take affirmative action to ensure that applicants are employed, and that
employees are treated during employment, without regard to their race, color, creed, national origin,
sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading,
demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or
other forms of compensation; and selection for training, including apprenticeship. In addition, the
Consultant agrees to comply with any implementing requirements FTA may issue.
(b) Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. § § 623, Federal transit law at 49 U.S.C. § 5332, the Equal Employment
Opportunity Commission (U.S. EEOC) regulations, “Age Discrimination in Employment Act,” 29
C.F.R. part 1625, the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S.
Health and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or
Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, the Consultant agrees to refrain
from discrimination against present and prospective employees for reason of age. In addition, the
Consultant agrees to comply with any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 504 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq.,
the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., and Federal transit law at
49 U.S.C. § 5332, the Consultant agrees that it will not discriminate against individuals on the basis of
disability, and that it will comply with the requirements of U.S. Equal Employment Opportunity
Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with
Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In
addition, the Consultant agrees to comply with any implementing requirements FTA may issue.
(3) The Consultant also agrees to include these requirements in each subcontract financed in whole
or in part with Federal assistance provided by FTA, modified only if necessary to identify the
affected parties.
6. FTA Disadvantaged Business Enterprise (DBE) Requirements
A. General DBE Requirements: In accordance with Federal financial assistance agreements with
the U.S. Department of Transportation (U.S. DOT), Commission has adopted a Disadvantaged
Business Enterprise (DBE) Policy and Program, in conformance with Title 49 CFR Part 26,
“Participation by Disadvantaged Business Enterprises in Department of Transportation Programs” (the
“Regulations”). This RFP is subject to these stipulated regulations. In order to ensure that Commission
achieves its overall DBE Program goals and objectives, Commission encourages the participation of
DBEs as defined in 49 CFR 26 in the performance of contracts financed in whole or in part with U.S.
DOT funds.
It is the policy of the Commission to:
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1. Ensure nondiscrimination in the award and administration of DOT-assisted contracts;
2. Create a level playing field on which DBE’s can compete fairly for DOT-assisted contracts;
3. Ensure that the DBE program is narrowly tailored in accordance with applicable law;
4. Ensure that only firms that fully meet 49 C.F.R. part 26 eligibility standards are permitted to
participate as DBE’s;
5. Help remove barriers to the participation of DBEs in DOT assisted contracts;
6. To promote the use of DBEs in all types of federally assisted contracts and procurement activities;
and
7. Assist in the development of firms that can compete successfully in the marketplace outside the
DBE program.
B. Discrimination: Consultant shall not discriminate on the basis of race, color, national origin, or
sex in the award and performance of subcontracts. Any terms used herein that are defined in 49 CFR
Part 26, or elsewhere in the Regulations, shall have the meaning set forth in the Regulations.
C. Commission’s Race-Neutral DBE Program: A Race-Neutral DBE Program is one that, while
benefiting DBEs, is not solely focused on DBE firms. Therefore, under a Race-Neutral DBE Program,
Commission does not establish numeric race-conscious DBE participation goals on its DOT-assisted
contracts. There is no FTA DBE goal on this Project.
Consultant shall not be required to achieve a specific level of DBE participation as a condition of
contract compliance in the performance of this DOT-assisted contract. However, Consultant
shall adhere to race-neutral DBE participation commitment(s) made at the time of award.
D. Race-Neutral DBE Submissions and Ongoing Reporting Requirements (Post-Award):
At termination of the Contract, the successful Consultant shall complete and submit to Commission a
“DBE Race-Neutral Participation Listing” in the form provided by Commission. In the event DBE(s)
are utilized in the performance of the Agreement, Consultant shall comply with applicable reporting
requirements.
E. Performance of DBE Subconsultants: DBE subconsultants listed by Consultant in its “DBE
Race-Neutral Participation Listing” submitted at the time of proposal shall perform the work and
supply the materials for which they are listed, unless Consultant has received prior written
authorization from Commission to perform the work with other forces or to obtain the materials from
other sources. Consultant shall provide written notification to Commission in a timely manner of any
changes to its anticipated DBE participation. This notice should be provided prior to the
commencement of that portion of the work.
F. DBE Certification Status: If a listed DBE subconsultant is decertified during the life of this
Agreement, the decertified subconsultant shall notify Consultant in writing with the date of
decertification. If a non-DBE subconsultant becomes a certified DBE during the life of this Agreement,
the DBE subconsultant shall notify Consultant in writing with the date of certification. Consultant shall
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Exhibit E-5
17336.00603\31171937.1
furnish the written documentation to Commission in a timely manner. Consultant shall include this
requirement in all subcontracts.
G. Consultant’s Assurance Clause Regarding Non-Discrimination: In compliance with State and
Federal anti-discrimination laws, Consultant shall affirm that it will not exclude or discriminate on the
basis of race, color, national origin, or sex in consideration of contract award opportunities. Further,
Consultant shall affirm that they will consider, and utilize subconsultants and vendors, in a manner
consistent with non-discrimination objectives.
H. Violations: Failure by the selected Consultant(s) to carry out these requirements shall be a material
breach of the contract to be awarded pursuant to this RFP, which may result in the termination of the
contract or such other remedy as the recipient deems appropriate, which may include, but is not limited
to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the Consultant from future bidding as non-responsible. 49 C.F.R. § 26.13(b).
I. Prompt Payment: Consultant shall pay its subconsultants for satisfactory performance of their
contracts no later than 30 days from receipt of each payment Commission makes to the Consultant. 49
C.F.R. § 26.29(a), unless a shorter period is provided in the contract.
J. Compliance with DBE Requirements Contained in FTA Provisions: Consultant shall comply with all
DBE reporting and other requirements contained in this Agreement.
7. Incorporation of Federal Transit Administration (FTA) Terms
The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT,
whether or not expressly set forth in the preceding contract provisions. All contractual provisions
required by DOT, as set forth in FTA Circular 4220.1F are hereby incorporated by reference. Anything
to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event
of a conflict with other provisions contained in this Agreement. The Consultant shall not perform any
act, fail to perform any act, or refuse to comply with any RCTC requests which would cause RCTC to
be in violation of the FTA terms and conditions.
8. Debarment and Suspension.
The Consultant agrees to the following:
(1) It will comply with the following requirements of 2 CFR Part 180, subpart C, as adopted and
supplemented by U.S. DOT regulations at 2 CFR Part 1200.
(2) It will not enter into any “covered transaction” (as that phrase is defined at 2 CFR §§ 180.220 and
1200.220) with any subconsultant whose principal is, suspended, debarred, or otherwise excluded from
participating in covered transactions, except as authorized by— (i) U.S. DOT regulations,
“Nonprocurement Suspension and Debarment,” 2 CFR Part 1200; (ii) U.S. OMB regulatory guidance,
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“Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement),” 2 CFR
Part 180; and (iii) Other applicable federal laws, regulations, or requirements regarding participation
with debarred or suspended recipients or third party participants.
(3) It will review the U.S. GSA “System for Award Management – Lists of Parties Excluded from
Federal Procurement and Nonprocurement Programs,” if required by U.S. DOT regulations, 2 CFR
Part 1200.
9. ADA Access Requirements
The Consultant shall comply with all applicable requirements of the Americans with Disabilities Act of
1990 (ADA), 42 USC Section 12101 et seq; Section 504 of the Rehabilitation Act of 1973, as
amended, 29 USC Section 794; 49 USC Section 5301(d).
10. Fly America .
To the extent applicable to the Services, the Consultant agrees to comply with 49 U.S.C. 40118 (the
"Fly America" Act) in accordance with the General Services Administration's regulations at 41 CFR
Part 301-10, which provide that recipients and sub recipients of Federal funds and their consultants are
required to use U.S. Flag air carriers for U.S. Government-financed international air travel and
transportation of their personal effects or property, to the extent such service is available, unless travel
by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Consultant shall
submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately
explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a
foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America
requirements. The Consultant agrees to include the requirements of this section in all subcontracts that
may involve international air transportation.
11. Cargo Preference - Use of United States-Flag Vessels
To the extent applicable to the Services, the Consultant agrees:
1. To use privately owned United States-Flag commercial vessels to ship at least 50 percent of
the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers)
involved, whenever shipping any equipment, material, or commodities pursuant to the
underlying contract to the extent such vessels are available at fair and reasonable rates for
United States-Flag commercial vessels;
2. To furnish within 20 working days following the date of loading for shipments originating
within the United States or within 30 working days following the date of leading for
shipments originating outside the United States, a legible copy of a rated, "on-board"
commercial ocean bill-of -lading in English for each shipment of cargo described in the
preceding paragraph to the Division of National Cargo, Office of Market Development,
Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the
Consultant in the case of a subconsultant's bill-of-lading.)
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3. To include these requirements in all subcontracts issued pursuant to this contract when the
subcontract may involve the transport of equipment, material, or commodities by ocean
vessel.
11. Buy America – Not applicable.
12. Employment Provisions
To the extent applicable to the Services, Consultant shall comply with the following:
A. Equal Employment Opportunity — Not applicable.
B. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c) — Not applicable.
C. Contact Work Hours and Safety Standards Act (40 U.S.C. 327–333) —Not applicable.
D. Release of Retainage
No retainage will be withheld by the RCTC from progress payments due Consultant. Retainage by
Consultant or subconsultants is prohibited, and no retainage will be held by the prime consultant from
progress due subconsultants. Any violation of this provision shall subject the violating Consultant or
subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the
California Business and Professions Code. This requirement shall not be construed to limit or impair
any contractual, administrative, or judicial remedies, otherwise available to Consultant or
subconsultant in the event of a dispute involving late payment or nonpayment by Consultant or
deficient subconsultant performance, or noncompliance by a subconsultant.
13. Termination for Convenience
RCTC may terminate the Agreement for convenience in accordance with the terms of the Agreement.
After such termination, the Consultant shall submit a final termination settlement proposal to RCTC as
directed. If the Consultant fails to submit a proposal within the time allowed, RCTC may determine, on
the basis of information available, the amount, if any due the Consultant because of the termination and
shall pay the amount determined. After the Consultant’s proposal is received, RCTC and Consultant
shall negotiate a fair and equitable settlement and the contract will be modified to reflect the negotiated
agreement. If agreement cannot be reached, RCTC may issue a final determination and pay the amount
determined. If the Consultant does not agree with this final determination or the determination resulting
from the lack of timely submission of a proposal, the Consultant may appeal under the Disputes clause.
14. Administrative and Contractual Remedies on Breach; Termination for Cause
a. The Consultant may be declared in breach of this Agreement (“Breach”) if the Consultant
fails to make delivery of the supplies or to perform the services within the time specified herein or any
extension thereof; or if the Consultant fails to perform any of the other provisions of the contract, or so
fails to make progress as to endanger performance of this contract in accordance with its terms. In case
of any of the foregoing, RCTC shall notify the Consultant of the Breach, and the Consultant shall have
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a period of ten (10) days (or such longer period as RCTC may authorize in writing) after receipt of
notice from RCTC to cure the Breach.
b. RCTC may, by written notice of termination to the Consultant specifying the effective date
thereof, terminate the whole or any part of this contract, in the case of a Breach that is not cured within
the timeframe set forth in (a) above (“Uncured Breach”).
c. If the contract is terminated in whole or in part for an Uncured Breach, RCTC may procure
upon such terms and in such manner as RCTC may deem appropriate, supplies or services similar to
those so terminated, or may complete the services with its own forces. The Consultant shall be liable
to RCTC for any excess costs for such similar supplies or services, and for any other costs incurred by
RCTC as a result of the Uncured Breach. The Consultant shall continue the performance of this
contract to the extent not terminated under the provisions of this clause.
d. Except with respect to defaults of Subconsultants, the Consultant shall not be liable for any
excess costs if the failure to perform the contract arises out of causes beyond the control and without
the fault or negligence of the Consultant. If the failure to perform is caused by the default of a
Subconsultant, and if such default arises out of causes beyond the control of both the Consultant and
the Subconsultant, and without the fault or negligence of either of them, the Consultant shall not be
liable for any excess costs for failure to perform, unless the supplies or services to be furnished by the
Subconsultant were obtainable from other sources in sufficient time to permit the Consultant to meet
the required project completion schedule.
e. Payment for completed services or supplies delivered to and accepted by RCTC shall be at the
contract price. RCTC may withhold from amounts otherwise due the Consultant for such completed
services or supplies such sum as RCTC determines to be necessary to protect RCTC against loss
because of outstanding liens of claims of former lien holders, or to reimburse RCTC for any other costs
related to the Uncured Breach.
f. If, after notice of termination of this contract for cause, it is determined for any reason that an
Uncured Breach did not exist, the rights and obligations of the parties shall be the same as if the notice
of termination had been issued pursuant to the provisions for termination for convenience of RCTC.
g. The rights and remedies of RCTC provided in this clause shall not be exclusive and are in
addition to any other rights and remedies provided by law, equity or under this contract including, but
not limited to, the right to specific performance.
h. Notwithstanding the above, RCTC may, without providing an opportunity to cure, terminate the
contract in accordance with the timeframe set forth in Section 17 of the contract, if RCTC determines
such action is in its best interest based on the nature of the Breach. Such actions shall not limit any of
RCTC’s remedies set forth above.
16. Disputes
a. Except as otherwise provided in this Agreement, any dispute concerning a question of fact
arising under this Agreement which is not disposed of by supplemental agreement shall be
decided by RCTC’s Deputy Executive Director, who shall reduce the decision to writing and mail or
otherwise furnish a copy thereof to the Consultant. The decision of the RCTC Deputy Executive
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Director shall be final and conclusive unless, within thirty (30) days from the date of receipt of such
copy, Consultant mails or otherwise furnishes to the RCTC Deputy Executive Director a written appeal
addressed to RCTC's Executive Director. The decision of RCTC Executive Director or duly authorized
representative for the determination of such appeals shall be final and conclusive.
b. The provisions of this Paragraph shall not be pleaded in any suit involving a question of fact
arising under this Agreement as limiting judicial review of any such decision to cases where fraud by
such official or his representative or board is alleged, provided, however, that any such decision shall
be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous
as necessarily to imply bad faith or is not supported by substantial evidence. In connection with any
appeal proceeding under this Paragraph, the Consultant shall be afforded an opportunity to be heard
and to offer evidence in support of its appeal.
c. Pending final decision of a dispute hereunder, Consultant shall proceed diligently with the
performance of this Agreement and in accordance with the decision of RCTC's Deputy Executive
Director. This "Disputes" clause does not preclude consideration of questions of law in connection with
decisions provided for above. Nothing in this Agreement, however, shall be construed as making final
the decision of any RCTC official or representative on a question of law, which questions shall be
settled in accordance with the laws of the State of California.
17. Lobbying
See the Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure
Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Consultants who apply or bid
for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New
Restrictions on Lobbying.” Each tier certifies to the tier above that it will not and has not used Federal
appropriated funds to pay any person or organization for influencing or attempting to influence an
officer or employee of any agency, a member of Congress, officer or employee of Congress, or an
employee of a member of Congress in connection with obtaining any Federal contract, grant or any
other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under
the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal
funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such
disclosures are forwarded from tier to tier up to the recipient. The Offeror shall complete and submit
with its bid/proposal the attached Certification Regarding Lobbying, and if applicable, the Standard
Form-LLL, “Disclosure Form to Report Lobbying.”
18. Energy Conservation
The Consultant agrees to comply with mandatory standards and policies relating to energy efficiency
which are contained in the state energy conservation plan issued in compliance with the Energy Policy
and Conservation Act.
19. Clean Water
a. The Consultant agrees to comply with all applicable standards, orders or regulations issued
pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. The
Consultant agrees to report each violation to RCTC and understands and agrees that RCTC will, in
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turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional
Office.
d. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List of Violating
Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as amended, (42
U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as amended, (33 U.S.C. §§
1251-1387).
The Consultant also agrees to include these requirements in each subcontract exceeding $150,000
financed in whole or in part with Federal assistance provided by FTA.
20. Clean Air
a. The Consultant agrees to comply with all applicable standards, orders or regulations issued
pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Consultant agrees to report
each violation to RCTC and understands and agrees that RCTC will, in turn, report each violation as
required to assure notification to FTA and the appropriate EPA Regional Office.
b. The Consultant further agrees that:
(1) It will not use any violating facilities;
(2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List of Violating
Facilities;”
(3) It will report violations of use of prohibited facilities to FTA; and
(4) It will comply with the inspection and other requirements of the Clean Air Act, as amended, (42
U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as amended, (33 U.S.C. §§
1251-1387).
c. The Consultant also agrees to include these requirements in each subcontract exceeding
$150,000 financed in whole or in part with Federal assistance provided by FTA.
21. Recycled Products
Recovered Materials - The Consultant agrees to comply with all the requirements of Section
6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962),
including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order
12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part
247.
21. SPECIAL PROVISION FOR PROMOTING COVID-19 SAFETY
Section 49. Centers for Disease Control and Prevention Order on Requirements for Persons
to Wear Masks While on Conveyances and at Transportation Hubs.
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(a) Compliance with CDC Mask Order. The Centers for Disease Control and Prevention (“CDC”)
Order of January 29, 2021, titled Requirement for Persons to Wear Masks While on Conveyances and
at Transportation Hubs (“CDC Mask Order”), applies to this Agreement. One of the objectives of the
CDC Mask Order is “[m]aintaining a safe and operating transportation system.” Consultant agrees that
it will comply, and will require all subconsultants to comply, with the CDC Mask Order, to the extent
the CDC Mask Order remains in effect.
(b) Enforcement for non-compliance. Consultant agrees that FTA and RCTC may take enforcement
action for non-compliance with the CDC Mask Order, to the extent the CDC Mask Order remains in
effect, including: (1) enforcement actions authorized by 49 U.S.C. § 5329(g); (2) referring Consultant
to the CDC or other Federal authority for enforcement action; (3) enforcement actions authorized by 2
CFR §§ 200.339 – .340; and (4) any other enforcement action authorized by Federal law or regulation.
22. Safe Operation of Motor Vehicles
Pursuant to Federal Executive Order No. 13043, “Increasing Seat Belt Use in the United States,” April
16, 1997, 23 U.S.C. Section 402 note, FTA encourages each third party consultant to adopt and
promote on-the-job seat belt use policies and programs for its employees and other personnel that
operate company owned, rented, or personally operated vehicles, and to include this provision in each
third party subcontract involving the project.
a. The Consultant is encouraged to adopt and promote on-the-job seat belt use policies and programs
for its employees and other personnel that operate company-owned vehicles, company-rented vehicles,
or personally operated vehicles. The terms “company-owned” and “company-leased” refer to vehicles
owned or leased either by the Consultant or RCTC.
b. The Consultant agrees to adopt and enforce workplace safety policies to decrease crashes
caused by distracted drivers, including policies to ban text messaging while using an electronic device
supplied by an employer, and driving a vehicle the driver owns or rents, a vehicle Contactor owns,
leases, or rents, or a privately-owned vehicle when on official business in connection with the work
performed under this contract.
23. Notification to FTA.
a. If a current or prospective legal matter that may affect the Federal Government emerges, the Consultant
must promptly notify the FTA Chief Counsel and FTA Regional Counsel for the Region in which this
Agreement is being performed. The types of legal matters that require notification include, but are not limited to,
a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal
disagreement in any forum for any reason.
b. Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s
interests in the Award, the accompanying Underlying Agreement, and any Amendments thereto, or the Federal
Government’s administration or enforcement of federal laws, regulations, and requirements.
c. Additional Notice to U.S. DOT Inspector General. The Consultant must promptly notify the U.S. DOT
Inspector General in addition to the FTA Chief Counsel or Regional Counsel for the Region in which the
Commission located, if Consultant has knowledge of potential fraud, waste, or abuse occurring on a Project
receiving assistance from FTA. The notification provision applies if a person has or may have submitted a false
claim under the False Claims Act, 31 U.S.C. § 3729, et seq., or has or may have committed a criminal or civil
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violation of law pertaining to such matters as fraud, conflict of interest, bid rigging, misappropriation or
embezzlement, bribery, gratuity, or similar misconduct involving federal assistance. Knowledge, as used in this
paragraph, includes, but is not limited to, knowledge of a criminal or civil investigation by a Federal, state, or
local law enforcement or other investigative agency, a criminal indictment or civil complaint, or probable cause
that could support a criminal indictment, or any other credible information in the possession of the Consultant.
In this paragraph, “promptly” means to refer information without delay and without change.
24. Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment
Consultant shall not contract (or extend or renew a contract) to procure or obtain equipment, services, or systems
that uses covered telecommunications equipment or services as a substantial or essential component of any
system, or as critical technology as part of any system funded under this Contract. As described in Public Law
115–232, section 889, covered telecommunications equipment is telecommunications equipment produced by
Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
a. For the purpose of public safety, security of government facilities, physical security surveillance of critical
infrastructure, and other national security purposes, video surveillance and telecommunications equipment
produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or
Dahua Technology Company (or any subsidiary or affiliate of such entities).
b. Telecommunications or video surveillance services provided by such entities or using such equipment.
c. Telecommunications or video surveillance equipment or services produced or provided by an entity that the
Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal
Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to,
the government of a covered foreign country.
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Exhibit F-1
17336.00603\31171937.1
EXHIBIT “F” – LOBBYING ACTIVITIES DISCLOSURE
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Local Assistance Procedures Manual EXHBIT 10-Q
Disclosure of Lobbying Activities
Page 1
LPP 13-01 May 8, 2013
EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES
COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVITIES PURSUANT TO 31 U.S.C. 1352
1. Type of Federal Action: 2. Status of Federal Action: 3. Report Type:
a. contract
a. bid/offer/application
a. initial
b. grant b. initial award b. material change
c. cooperative agreement c. post-award
d. loan For Material Change Only:
e. loan guarantee year ____ quarter _________
f. loan insurance date of last report __________
4. Name and Address of Reporting Entity 5. If Reporting Entity in No. 4 is Subawardee,
Enter Name and Address of Prime:
Prime Subawardee
Tier _______ , if known
Congressional District, if known Congressional District, if known
6. Federal Department/Agency: 7. Federal Program Name/Description:
CFDA Number, if applicable ____________________
8. Federal Action Number, if known: 9. Award Amount, if known:
10. Name and Address of Lobby Entity 11. Individuals Performing Services
(If individual, last name, first name, MI) (including address if different from No. 10)
(last name, first name, MI)
(attach Continuation Sheet(s) if necessary)
12. Amount of Payment (check all that apply) 14. Type of Payment (check all that apply)
$ _____________ actual planned a. retainer
b. one-time fee
13. Form of Payment (check all that apply): c. commission
a. cash d. contingent fee
b. in-kind; specify: nature _______________ e deferred
Value _____________ f. other, specify _________________________
15. Brief Description of Services Performed or to be performed and Date(s) of Service, including
officer(s), employee(s), or member(s) contacted, for Payment Indicated in Item 12:
(attach Continuation Sheet(s) if necessary)
16. Continuation Sheet(s) attached: Yes No
17. Information requested through this form is authorized by Title
31 U.S.C. Section 1352. This disclosure of lobbying reliance
was placed by the tier above when his transaction was made or
entered into. This disclosure is required pursuant to 31 U.S.C.
1352. This information will be reported to Congress
semiannually and will be available for public inspection. Any
person who fails to file the required disclosure shall be subject
to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Signature: ________________________________________
Print Name: _______________________________________
Title: ____________________________________________
Telephone No.: ____________________ Date: ___________
Authorized for Local Reproduction
Federal Use Only: Standard Form - LLL
Standard Form LLL Rev. 04-28-06
Distribution: Orig- Local Agency Project Files
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Gilberto Ruiz
Principal Environmental Planner
(213) 269-4200 7/14/22
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ENVIRONMENTAL CONSULTING SERVICES
ON-CALL AGREEMENTS
Western Riverside County Programs and Projects Committee
November 28, 2022
David Lewis, Capital Projects Manager
1
Background
2
•Most environmental services are part of larger consultant
contract
•Streamlines process when environmental tasks are needed
•Comprehensive environmental services for a variety of
projects/tasks outside the environmental phase
•Fund type depends on project:eligible for State/Federal
funding
Procurement Process
3
•Request for Qualifications (RFQ)was released on
June 2,2022
•6 firms submitted responsive and responsible
statements of qualifications
•4 firms were selected as most qualified -GPA
Consulting,HNTB,Stantec and ICF
Task Order Process
4
•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:$3,000,000 over 3 years +2 one-year
extensions
QUESTIONS
5
TO: Riverside County Transportation Commission
FROM: Lisa Mobley, Clerk of the Board
DATE: November 22, 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 - Agreements for On-Call Environmental Consulting Services
Consultant(s): GPA Consulting
Richard Galvin, Vice President/CFO
840 Apollo Street, Suite 312
El Segundo, CA 90245
HNTB Corporation
C. Yoga Chandran, Vice President
3633 Inland Empire Blvd., Suite 750
Ontario, CA 91764
ICF Jones & Stokes, Inc.
Hawani Tessema, Senior Manager, Contracts
9300 Lee Highway
Fairfax, VA 22031
Stantec Consulting Services, Inc.
Gilberto Ruiz, Principal Environmental Planner
523 West 6th Street, Suite 1200
Los Angeles, CA 90014-1218
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS
COMMITTEE
ROLL CALL
NOVEMBER 28, 2022
Present Absent
County of Riverside, District I X
County of Riverside, District II X
County of Riverside, District V X
City of Corona X
City of Eastvale X
City of Hemet X
City of Jurupa Valley X
City of Menifee X
City of Moreno Valley X
City of Norco X
City of Perris X
City of Wildomar X
From:Tara Byerly
To:Tara Byerly
Cc:Lisa Mobley
Subject:CTC Meeting Agenda for December 7-8, 2022 in Riverside
Date:Monday, November 28, 2022 2:26:00 PM
Attachments:000-ETA.pdf
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Good Afternoon Commissioners,
Please see the attached or click on the link below to view the meeting materials for the
upcoming California Transportation Commission meeting on Wednesday and Thursday,
December 7-8, 2022 in Riverside.
Estimated Timed Agenda with book Items linked: https://catc.ca.gov/-/media/ctc-
media/documents/ctc-meetings/2022/2022-12/000-ETA.pdf (To access individual files,
hover over the item on the agenda and click)
Respectfully,
Tara
Tara Byerly
Deputy Clerk of the Board
Riverside County Transportation Commission
951.787.7141 W |951.787.7906 F
4080 Lemon St. 3rd Fl.| P.O. Box 12008 Riverside, CA 92502
rctc.org
NEXT REGULARLY SCHEDULED CTC MEETING (Subject to Change):
CTC Meeting – January 25-26, 2023 in Roseville, CA
AGENDA
CALIFORNIA TRANSPORTATION COMMISSION
www.catc.ca.gov
December 7-8, 2022
Riverside, CA
Wednesday, December 7, 2022
1:00 PM Commission Meeting
Riverside County Administration Building
Board Chambers, 1st Floor
4080 Lemon Street
Riverside, CA 92501
5:30 PM Mobility 21 Reception
Riverside County Administration Building
Atrium
4080 Lemon Street
Riverside, CA 92501
7:00 PM Commission Dinner
Mission Inn
3649 Mission Inn Avenue
Riverside, CA 92501
Thursday, December 8, 2022
9:00 AM Commission Meeting
Riverside County Administration Building
Board Chambers, 1st Floor
4080 Lemon Street
Riverside, CA 92501
To participate on Day 1 of the meeting via computer:
Please visit: https://attendee.gotowebinar.com/register/1913125370551896589
There, you will be provided dial in information, instructions for participation, an access code, and
audio pin to join the meeting.
If you wish to only listen to day 1 of the meeting:
Phone Number: 415-655-0052, Access Code: 821-194-465
To participate on Day 2 of the meeting via computer:
Please visit: https://attendee.gotowebinar.com/register/3125656898058608912
There, you will be provided dial in information, instructions for participation, an access code, and
audio pin to join the meeting.
If you wish to only listen to day 2 of the meeting:
Phone Number: 631-992-3221, Access Code: 493-732-579
CTC MEETING AGENDA December 7-8, 2022
Page 2
NOTICE: Times identified on the following agenda are estimates only. The Commission has the
discretion to take up agenda items out of sequence and on either day of the two-day meeting, except
for those agenda items bearing the notation “TIMED ITEM.” TIMED ITEMS which may not be heard
prior to the time scheduled but may be heard at, or any time after the time scheduled. The Commission
may adjourn earlier than estimated on either day.
Unless otherwise noticed in the specified book item, a copy of this meeting notice, agenda, and related
book items will be posted 10 calendar days prior to the meeting on the California Transportation
Commission (Commission) Website: www.catc.ca.gov. Questions or inquiries about this meeting may
be directed to the Commission staff at (916) 654-4245, 1120 N Street (MS-52), Sacramento, CA 95814.
The Commission will provide assistive services including translation and interpretation in multiple
languages, large print, digital recordings, as well as Commission meeting materials in an accessible
format for the visually impaired. To obtain services or copies in one of these alternate formats or
languages, please contact us at (916) 654-4245 or ctc@catc.ca.gov. Arrangements should be made
as soon as possible but no later than at least five working days prior to the scheduled meeting.” (Las
solicitudes de acomodación especial o servicios de interpretación deben hacerse tan pronto como sea
posible o por lo menos cinco días antes de la reunión programada)
Improper comments and disorderly conduct are not permitted. In the event that the meeting conducted
by the Commission is willfully interrupted or disrupted by a person or by a group so as to render the
orderly conduct of the meeting infeasible, the Chair may order the removal of those individuals who are
willfully disrupting the meeting.
*“A” denotes an “Action” item; “I” denotes an “Information” item; “C” denotes a “Commission” item; “D”
denotes a “Department” item; “F” denotes a “U.S. Department of Transportation” item; “R” denotes a
Regional or other Agency item; and “T” denotes a California State Transportation Agency (CalSTA)
item.
For a glossary of frequently used terms and acronyms please visit the Commission website at:
https://catc.ca.gov/-/media/ctc-media/documents/about_ctc/acronyms-11-04-21-a11y.pdf
CTC MEETING AGENDA December 7-8, 2022
Page 3
GENERAL BUSINESS
Tab Item Description Ref# Presenter Type* Agency*
1 Roll Call 1.1 Doug Remedios I C
2 Welcome to the Region 1.12 Anne Mayer
Robert Magee
I R
3 Approval of Commission Meeting Minutes:
• October 3, 2022
• October 17-18, 2022
1.2 Doug Remedios A C
4 Commissioner Meetings for Compensation 1.5 Doug Remedios A C
REPORTS
Tab Item Description Ref# Presenter Type* Agency*
5 Commission Executive Director 1.3 Mitch Weiss A C
6 Commissioner Reports 1.4 Lee Ann Eager A C
7 CalSTA Secretary 1.6 Toks Omishakin I T
8 Caltrans Director 1.7 Tony Tavares I D
9 High Speed Rail Update 1.15 Brian Kelly I R
10 FHWA California Division Administrator 1.11 Vincent Mammano I F
11 Regional Agencies Moderator 1.8 Ryan Niblock I R
12 Rural Counties Task Force Chair 1.9 Nephele Barrett I R
13 Self-Help Counties Coalition Executive Director 1.10 Keith Dunn I R
14 Transit Operators Update 1.14 Michael Pimentel I R
POLICY MATTERS
Tab Item Description Ref# Presenter Type* Agency*
15 State and Federal Legislative Matters
• 2022 Annual Report to the Legislature
4.1 Paul Golaszewski A C
16 Budget and Allocation Capacity 4.2 Paul Golaszewski
Keith Duncan
I D
17 TIMED ITEM: 2:30PM
Hearing on the 2023 Active Transportation Program –
Statewide and Small Urban and Rural Components
4.5 Laurie Waters I C
18 Adoption of the 2023 Active Transportation Program –
Statewide and Small Urban and Rural Components
Resolution G-22-70
4.6 Laurie Waters A C
19 Update on the State Bicycle and Pedestrian Plan Draft
Progress Report
3.12 Brigitte Driller
Marlon Flournoy
I D
20 Update from California Governor’s Office of Emergency
Services – Evacuation Planning and the Transportation
System
4.14 Hannah Walter
Ron Quigley
I C
21 Overview of National Electric Vehicle Infrastructure
Program Implementation
4.10 Hannah Walter
Jimmy O’Dea
I D
22 Implementing a Micro-mobility Ecosystem: South Bay
Local Travel Network
4.3 Brigitte Driller
Jacki Bacharach
I C
INFORMATION CALENDAR
Tab Item Description Ref# Presenter Type* Agency*
23 STIP Amendment for Notice:
The Department and the Plumas County Transportation
Commission proposes to program $150,000 increase in
construction capital and an increase in the post miles to
the STIP Arlington Left Turn Lane project, in Plumas
County. (PPNO 3561)
STIP Amendment 22S-05
2.1b.(1) I D
CTC MEETING AGENDA December 7-8, 2022
Page 4
Tab Item Description Ref# Presenter Type* Agency*
24 STIP Amendment for Notice:
The Kern Council of Government proposes to rescind
$25,593,000 of Regional Improvement Program (RIP)
funding from the Construction phase of the Extend
Hageman Road Easterly Across SR 99 and connect to
SR 204 in Bakersfield project (PPNO 3525) and
program $24,093,000 of the RIP funds to the
Construction phase of the new Centennial Corridor EB
58 to NB 99 Loop Connector project (PPNO 8029), in
Kern County.
STIP Amendment 22S-06
2.1b.(2) I D
25 Informational Reports on Allocations Under Delegated
Authority:
-- Emergency G-11 Allocations (2.5f.(1)): $54,474,000
for 16 projects.
--SHOPP Safety Sub-Allocations (2.5f.(3)):$11,100,000
for four projects.
-- Minor G-19-05a Allocations (2.5f.(4)): $3,283,000 for
four projects.
2.5f. I D
Monthly Reports on the Status of Contract Award for:
Tab Item Description Ref# Presenter Type* Agency*
26 State Highway Projects, per Resolution G-06-08 3.2a. I D
27 Local Assistance STIP Projects, per Resolution G-13-07 3.2b. I D
28 Local Assistance ATP Projects, per Resolution G-15-04 3.2c. I D
29 Pre-Construction SHOPP Support Allocations, per
Resolution G-06-08
3.3 I D
Quarterly Reports – FY 2022-23 – First Quarter
Tab Item Description Ref# Presenter Type* Agency*
30 Aeronautics – Acquisition and Development and Airport
Improvement Program
3.4 I D
31 Caltrans Finance Report 3.5 I D
32 Report on Fiscal Year 2022-23 Right of Way Annual
Allocation
3.6 I D
33 Quarterly Report – Local Assistance Annual Allocation
for the Period Ending September 30, 2022
3.9
I D
Other Reports
Tab Item Description Ref# Presenter Type* Agency*
34 Update on the Minor B project list under the 2022-23
SHOPP Minor Construction Program.
3.1 I D
35 Fourth Quarter - Balance Report on AB 1012 “Use It or
Lose It” Provision for Federal Fiscal Year 2020
Unobligated Regional Surface Transportation Program
(RSTP) and Congestion Mitigation and Air Quality
(CMAQ) Funds
3.10
I D
36 Notification of AB 1012 “Use It or Lose It” Provision for
FFY 2021 Unobligated CMAQ and RSTP Funds
3.11
I D
37 Status of the 2020 SHOPP Complete Streets
Reservation
4.18 I D
38 Transit and Intercity Rail Capital Program (TIRCP) –
Program Update
4.30 I D
CTC MEETING AGENDA December 7-8, 2022
Page 5
BEGIN CONSENT CALENDAR
Tab Item Description Ref# Presenter Type* Agency*
39 STIP Amendment for Action:
The Department proposes to program $5,000,000 of
Infrastructure Investment and Jobs Act Surface
Transportation Block Grant Program – Coordinated
Border Infrastructure Program funds to the new
Interstate 5/State Route 15/Harbor Drive 2.0 project in
San Diego County. (PPNO 1447)
STIP Amendment 22S-03
2.1a.(2) A D
40 STIP Amendment for Action:
Request to add the STIP Bus Chargers/Infrastructure
(x100 ZEBs-Proj#2-Tier II) project with COVID funds, in
Los Angeles County. (PPNO 5962)
STIP Amendment 22S-04
2.1a.(3) A D
41 Approval of Projects for Future Consideration of Funding:
04-Mrn-37, PM R11.2/14.6
Marin County State Route 37 Capital Preventive
Maintenance (CAPM) Pavement Project
Resurfacing and repairing the existing asphalt-concrete
pavement on State Route 37 in Marin County.
(ND) (PPNO 1452B) (SHOPP)
Resolution E-22-90
(Related Item under Ref. 2.5b.(2))
04-SM-1, PM 27.5/34.8
04-SM-92, PM 0.2
State Route 1 Multi-asset Roadway Rehabilitation
Project
Repaving and improving existing traffic facilities and
installing complete street elements on State Routes 1
and 92. (ND) (PPNO 2022C) (SHOPP)
Resolution E-22-91
(Related Item under Ref. 2.5b.(2))
04-SM-84, PM 7.8
State Route 84 Storm Damage Permanent Restoration
Project
Build a new soldier pile and timber lagging wall,
reconstruct and repave, along San Gregoria Creek on
State Route 84. (MND) (PPNO 2032A) (SHOPP)
Resolution E-22-92
05-SLO-101, PM 7.8/16.5
San Luis Obispo County U.S. Route 101 (US 101)
SLO County Asset Management Improvements Project
Improve assets in poor condition to ensure long-term
serviceability of U.S. 101 in San Luis Obispo County.
(MND) (PPNO 2778)(SHOPP)
Resolution E-22-93
(Related Item under Ref. 2.5b.(2))
06-Ker-166, PM 0.0/10.2
Maricopa 166 Culvert and Roadway Rehabilitation
Project Repair failing drainage systems by replacing
and extending 26 deteriorated culverts at 22 locations
on State Route166 in Kern County.
(MND) (PPNO 6896) (SHOPP)
Resolution E-22-95
(Related Item under Ref. 2.5b.(2))
2.2c.(1) A D
CTC MEETING AGENDA December 7-8, 2022
Page 6
Tab Item Description Ref# Presenter Type* Agency*
06-Ker-43, PM 15.6/16.0
Santa Fe Roundabout Project
Construct a single-lane roundabout to improve safety
and reduce accidents at the intersection of Los Angeles
Avenue, Santa Fe Way and Beech Avenue, in the City
of Shafter, on State Route 43 in Kern County.
(MND) (PPNO 7044) (SHOPP)
Resolution E-22-96
(Related Item under Ref. 2.5b.(2))
10-Alp-4, PM Var
10-Alp-88, PM Var
10-Alp-89, PM Var
State Route 4 Culvert Replacement Project
Rehabilitate or replace deteriorated culverts on State
Routes 4, 88, and 89, at various post miles, in Alpine
County. (MND) (PPNO 3488) (SHOPP)
Resolution E-22-97
10-Cal-12, PM 9.9/10.3
Valley Oaks Intersection Project
Adding intersection control improvements on State
Route 12, at the Valley Oaks Shopping Center
entrance/exit in Calaveras County.
(MND) (PPNO 3476) (SHOPP)
Resolution E-22-98
(Related Item under Ref. 2.5b.(2))
10-Cal-Var, PM Var
10-Tou-Var, PM Var
State Route 120 Tuolumne Drainage System Project
Install or rehabilitate existing culverts and storm drains
on State Routes 26 and 12 in Calaveras County, and on
State Routes 108 and 120 in Tuolumne County.
(MND) (PPNO 3411) (SHOPP)
Resolution E-22-99
(Related Item under Ref. 2.5b.(2))
10-Mer-59, PM 13.4/13.8
Valley Oaks Intersection Project
Safety intersection improvements from 0.2 mile south
(post mile 13.4) to 0.2 mile north (post mile 13.8) of the
intersection of State Route 59 and Gerard Avenue in
Merced County. (ND) (PPNO 3466) (SHOPP)
Resolution E-22-100
(Related Item under Ref. 2.5b.(2))
11-SD-75, PM R20.1/R22.3
11-SD-5, PM R13.8/R14.3
San Diego-Coronado Bay Bridge Suicide Deterrent
Project
Install a physical suicide deterrent on the San Diego-
Coronado Bay Bridge and install minor improvements at
the Interstate 5/State Route 75 interchange, in
San Diego County. (MND) (PPNO 1352) (SHOPP)
Resolution E-22-101
42 Approval of Project for Future Consideration of Funding:
12– Orange County
Western Extension of Tracks – Brea Rail Trail Project
Construct a Class I multi-use path.
(MND) (PPNO 1303) (ATP)
Resolution E-22-103
2.2c.(3) A C
CTC MEETING AGENDA December 7-8, 2022
Page 7
Tab Item Description Ref# Presenter Type* Agency*
43 Approval of Project for Future Consideration of Funding:
05– Santa Barbara County
San Jose Creek Multipurpose Path Project
Construct a multipurpose path and other improvements.
(MND) (PPNO 2995) (ATP)
Resolution E-22-102
(Related Item under Ref. 2.5w.(1))
2.2c.(2) A C
44 Approval of Project for Future Consideration of Funding:
01-Men-162, PM 8.2
South Eel River Bridge Seismic Project
Replace the existing bridge with a new bridge to the
south on State Route 162 in Mendocino County.
(MND Addendum) (PPNO 4692) (SHOPP)
Resolution E-22-107
(Related Item under Ref. 2.5d.(1))
04-Ala-680, PM R10.6/R21.9
04-CC-680, PM R0.0/1.1
Interstate 680 Express Lanes from State Route 84 to
Alcosta Boulevard Project
Construct High Occupancy Vehicle lanes on northbound
and southbound Interstate 680 in Alameda and Contra
Costa Counties.
(ND Addendum) (PPNO 2905F) (STIP) (LPP)
Resolution E-22-108
(Related Items under Ref. 2.5s.(11)/2.5v.(3) and 2.5s.(12))
04-SCl-9, PM 4.75/4.9
Saratoga Creek Bridge Project
Road deck will be widened eight feet to meet design
standards of bridge safety on State Route 9 in Santa
Clara County.
(FEIR Addendum) (PPNO 0386F) (SHOPP)
Resolution E-22-109
(Related Item under Ref. 2.5b.(2))
04-SM-1, PM 14.0
Pescadero Creek Bridge Railing Project
Replace bridge railing and approach slabs on
Pescadero Creek Bridge on State Route 1 in San Mateo
County. (ND Addendum) (PPNO 1494G) (SHOPP)
Resolution E-22-110
(Related Item under Ref. 2.5b.(1))
05-SLO-46, PM 32.2/56.3
Route 46 Corridor Improvement Project – Wye Section
Realign and widen from two lanes to four lanes on State
Route 46 in San Luis Obispo County.
(FEIR Addendum) (PPNO 0226K) (STIP)
Resolution E-22-111
(Related Item under Ref. 2.5d.(2))
2.2c.(8) A D
45 Two Relinquishment Resolutions:
04-Son-101-PM 12.6
Right of way along United States Highway 101 on
Saint Joseph Way, in the city of Cotati.
Resolution R-4094
06-Kin-198-PM 10.04
Right of way along State Route 198 on Vine Street, in
the city of Lemoore.
Resolution R-4095
2.3c. A D
CTC MEETING AGENDA December 7-8, 2022
Page 8
Tab Item Description Ref# Presenter Type* Agency*
46 Four Resolutions of Necessity
Resolutions C-22216 through C-22219
2.4b. A D
47 Director’s Deeds
Items 1 through 5
Excess Lands - Return to State $11,100
2.4d. A D
48 Multi-Funded LPP (Formulaic and Competitive) STIP –
Allocation Amendment
Request to amend the State-Administered multi-funded
LPP (Formulaic and Competitive)/STIP Interstate 680
Southbound Express Lane from State Route 84 to
Alcosta Blvd project, in Alameda County, to shift funds
from Construction Engineering to Construction, split out
the Landscape project and revise the contributions from
other sources. There is no change to the original
allocation amount. (PPNO 2905F)
Resolution LPP-A-2223-14,
Amending Resolution LPP-A-2122-14
Resolution FP-22-27,
Amending Resolution FP-21-45
(Related Items under Ref. 2.2c.(8) and 2.5s.(12))
2.5s.(11)
/
2.5v.(3)
A D
49 LPP (Formulaic) – Allocation Amendment
Request to amend the State-Administered LPP
(Formulaic) Santa Monica Road and Via Real
Intersection Improvements project, in Santa Barbara
County, to de-allocate $531,000 to reflect project cost
savings. (PPNO 2985)
Resolution LPP-A-2223-15
Amending Resolution LPP-A-1819-27
(Related Items under Ref. 4.16)
2.5s.(10) A D
50 LPP (Formulaic) – Allocation Amendment
Request to amend the State-Administered LPP
(Formulaic) Interstate 680 Southbound Express Lane
from State Route 84 to Alcosta Blvd project, in Alameda
County to update the implementing agency. There is no
change to the original allocation amount. (PPNO 2905F)
Resolution LPP-A-2223-16
Amending Resolution LPP-A-2223-03
(Related Items under Ref. 2.2c.(8) and 2.5s.(11)/2.5v.(3))
2.5s.(12) A D
51 LPP (Formulaic) – Allocation Amendment
Request to rescind $305,000 for the locally-
administered LPP (Formulaic) Scaroni Road
Improvements project, in Imperial County. (PPNO 1376)
Resolution LPP-A-2223-17
Amending Resolution LPP-A-1920-16
2.5s.(15) A D
52 SCCP – Allocation Amendment
Request to amend three locally-administered SCCP
Central Corridor Improvement projects, in Orange
County, to include the original request to extend the
period of project completion beyond 36 months to 48
months which was inadvertently omitted at the time of
the original allocations. There is no change to the
original allocation amounts.
Resolution SCCP-A-2223-04,
Amending Resolution SCCP-A-1920-04
2.5s.(9) A D
CTC MEETING AGENDA December 7-8, 2022
Page 9
53 TIRCP – Allocation Amendment
Request to amend the TIRCP (2018:19) Valley Rail
(Natomas Station and Layover Facility) component, in
Sacramento County, to correct the Greenhouse Gas
Relief Fund programmed amount. There is no change
to the original allocation amount. (PPNO CP035B)
Resolution TIRCP-2223-31,
Amending Resolution TIRCP-2223-17
2.6g.(2) A D
54 TIRCP – Allocation Amendment
Request to amend the TIRCP (2018:19) Valley Rail
(Pollock to South Sacramento Year Extension)
component, in Sacramento County, to correct the Public
Transportation Account programmed amount. There is
no change to the original allocation amount.
(PPNO CP035I)
Resolution TIRCP-2223-32,
Amending Resolution TIRCP-2223-21
2.6g.(3) A D
55 TIRCP – Allocation Amendment
Request to amend the TIRCP (2018:19) Valley Rail
(BNSF Track Improvements) component, in
San Joaquin County, to change the component name to
(2nd Main Track, CP Escalon to CP Merced) and the
PPNO to CP035V. There is no change to the original
allocation amount.
Resolution TIRCP-2223-34,
Amending Resolution TIRCP-2021-24
2.6g.(5) A D
56 LPP (Formulaic) Transit – Allocation Amendment
Request to amend the LPP (Formulaic) Purchase of
Zero-Emission Forklifts Transit project, in Alameda
County, to approve a minor scope change that amends
the project description and outputs. There is no change
to the original allocation amount. (PPNO 0090A)
Resolution LPP-A-2223-23
Amending Resolution LPP-A-2122-28
(Related Item under Ref. 2.8b.(11))
2.6s.(3) A D
57 Approval of eight State Highway Operation and
Protection Program (SHOPP) Baseline Agreements
Resolution SHOPP-P-2223-03B
4.11 A C
58 SB 1 Baseline Agreements:
Approval of the 2019 Active Transportation Program
Baseline Agreement for the City of Goleta’s San Jose
Creek Multipurpose Path Project.
Resolution ATP-P-2223-01B
(Related Item under Ref. 2.5w.(1))
4.12 A C
END OF CONSENT CALENDAR
ENVIRONMENTAL MATTERS
Tab Item Description Ref# Presenter Type* Agency*
59 Approval of Project for Future Consideration of Funding:
03– El Dorado County
Latrobe Road/El Dorado Hills Boulevard Interchange
Improvement Phase 2B Project
Construct on-ramp and auxiliary lane improvements.
(FEIR) (PPNO 5606) (STIP)
Resolution E-22-104
(Related Item under Ref. 2.5c.(2)/2.5v.(1))
2.2c.(4) Jose Oseguera A C
CTC MEETING AGENDA December 7-8, 2022
Page 10
60 Approval of Project for Future Consideration of Funding:
03– Sacramento County
Railyards Specific Plan
Construct street improvements to provide efficient bus
circulation. (FEIR) (PPNO CP094) (TIRCP)
Resolution E-22-105
(Related Item under Ref. 2.6g.(1))
2.2c.(5) Jose Oseguera A C
61 Approval of Project for Future Consideration of Funding:
03– Sacramento County
Two Rivers Trail Phase II Project
Construct a Class I Path and other improvements.
(FEIR) (PPNO 1768) (ATP)
Resolution E-22-106
(Related Item under Ref. 2.5w.(2))
2.2c.(6) Jose Oseguera A C
62 Approval of Project for Future Consideration of Funding:
05-SLO-101, PM 16.0/R22.5
San Luis Obispo County U.S. Route 101 (US 101)
Pismo Congestion Relief Pilot Project
Widen the inside shoulder of U.S. 101 through Pismo
Beach to provide a part-time travel lane in San Luis
Obispo County. (FEIR) (PPNO 2653)(STIP)
Resolution E-22-94
2.2c.(7) Jose Oseguera
Jeremiah Ketchum
A D
POLICY MATTERS
Tab Item Description Ref# Presenter Type* Agency*
63 Justice40 in California 4.13 C. Sequoia Erasmus
Avital Barnea
I C
64 Update on Applications Received for SB 1 Programs 4.9 Matthew Yosgott I C
65 Senate Bill 1 Semi-Annual Report 3.7 Matthew Yosgott
Angel Pyle
I D
66 Amendment to Resolution G-19-12 Delegation of
Authority to Adjust Project Allocations and Modify
Project Descriptions
Resolution G-22-12,
Amending Resolution G-19-12
4.15 Jon Pray A C
PROGRAM UPDATES
Tab Item Description Ref# Presenter Type* Agency*
67 Fourth Quarter – Project Delivery Report – Fiscal Year
2021-22
3.8 Tim Sobelman
Jeffrey N. Wiley
I D
ALLOCATIONS AND SUPPLEMENTAL FUNDS REQUEST
Projects with costs that exceed the Programmed Amount by More than 20 Percent
Tab Item Description Ref# Presenter Type* Agency*
68 Request for $155,870,000 (59.4 percent increase)
allocation in Construction Capital and $15,550,000 (16.0
percent increase) allocation in Construction Support, for
the STIP Roadway Widening project on State Route 46,
in San Luis Obispo County. (EA 3307C, PPNO 0226K)
Resolution FP-22-29
(Related Item under Ref. 2.2c.(8))
2.5d.(2) Teresa Favila
Tim Gubbins
A D
69 Request for $16,920,000 (112.2 percent increase)
allocation in Construction Capital and $4,158,000
(4.5 percent increase) for the SHOPP Bridge Seismic
Restoration project on State Route 162, in Mendocino
County. (EA 0A131, PPNO 4692)
Resolution FP-22-28
(Related Item under Ref. 2.2c.(8))
2.5d.(1) Tim Sobelman
Matthew Brady
A D
CTC MEETING AGENDA December 7-8, 2022
Page 11
Tab Item Description Ref# Presenter Type* Agency*
70 Request for $8,235,000 (115.4 percent increase)
allocation in Construction Capital and $1,600,000
(136.0 percent increase) allocation in Construction
Support, for the SHOPP Sustainability and Complete
Streets project on Interstate 5, in San Diego County.
(EA 42650, PPNO 1218)
Resolution FP-22-30
2.5d.(3) Tim Sobelman
Gustavo Dallarda
A D
Capital Outlay Support (COS) Supplemental Funds Allocations
Tab Item Description Ref# Presenter Type* Agency*
71 Request for an additional $67,000 (1.6 percent increase)
in Pre-Construction Support, Plans, Specifications, and
Estimate (PS&E) phase, for the SHOPP Bridge
Rehabilitation project on U.S. 101, in Del Norte County.
(EA 43640, PPNO 0100V)
Resolution FA-22-28
2.5e.(2) Tim Sobelman
Matthew Brady
A D
72 Request for an additional $500,000 (19.1 percent
increase) in Pre-Construction Support, Plans,
Specifications, and Estimate phase, for the SHOPP
Roadway Rehabilitation project on State Route 70, in
Plumas County. (EA 1H580, PPNO 3619)
Resolution FA-22-29
2.5e.(3) Tim Sobelman
Dave Moore
A D
73 Request for an additional $1,800,000 (45.0 percent
increase) in Pre-Construction Support, Project Approval
and Environmental Document (PA&ED) phase, for the
SHOPP Roadway Rehabilitation project on Interstate 80,
in Placer County. (EA 3H590, PPNO 5131)
Resolution FA-22-30
2.5e.(5) Tim Sobelman
Amarjeet Benipal
A D
74 Request for an additional $5,800,000 (29.0 percent
increase) in Pre-Construction Support, Project Approval
and Environmental Document phase, for the SHOPP
Roadway Rehabilitation project on State Route 99, in
Fresno County. (EA 0W800, PPNO 6949)
Resolution FA-22-31
2.5e.(9) Tim Sobelman
Diana Gomez
A D
75 Request for an additional $130,000 (21.1 percent
increase) in Pre-Construction Support, Plans,
Specifications, and Estimate phase, for the SHOPP
Roadside Safety Improvements project on Interstate 8
and State Route 111, in Imperial County.
(EA 41200, PPNO 1252)
Resolution FA-22-32
2.5e.(11) Tim Sobelman
Gustavo Dallarda
A D
Capital – Supplemental Funds Allocations (Re-Advertise)
Tab Item Description Ref# Presenter Type* Agency*
76 Request for an additional $1,560,000 (60.6 percent
increase) in Construction Capital for the SHOPP
Americans with Disability Act Curb Ramps project on
Interstate 8, in San Diego County.
(EA 42710, PPNO 1227)
Resolution FA-22-33
(Related Item under Ref. 2.8b.(1))
2.5e.(12) Tim Sobelman
Gustavo Dallarda
A D
Capital – Supplemental Funds Allocations (Award)
Tab Item Description Ref# Presenter Type* Agency*
77 Request for an additional $531,000 (25.9 percent
increase) in Construction Capital for the SHOPP Safety
Improvements project on U.S. 50, Interstate 80, and
State Route 20, in Sacramento and Sutter Counties.
(EA 0J923, PPNO 6257C)
Resolution FA-22-34
2.5e.(4) Tim Sobelman
Amarjeet Benipal
A D
CTC MEETING AGENDA December 7-8, 2022
Page 12
Tab Item Description Ref# Presenter Type* Agency*
78 Request for an additional $1,875,000 (34.2 percent
increase) in Construction Capital for the SHOPP Collision
Severity Reduction project on various locations, in
Santa Clara County. (EA 2J950, PPNO 1486A)
Resolution FA-22-35
(Related Item under Ref. 2.8b.(1))
2.5e.(7) Tim Sobelman
Dina El-Tawansy
A D
Capital – Supplemental Funds Allocations (Complete Construction)
Tab Item Description Ref# Presenter Type* Agency*
79 Request for an additional $300,000 (4.8 percent
increase) in Construction Support for the SHOPP
Pavement Rehabilitation project on U.S. 101, in
Monterey County. (EA 1C890, PPNO 2474)
Resolution FA-22-37
2.5e.(8) Tim Sobelman
Tim Gubbins
A D
80 Request for an additional $1,200,000 (9.4 percent
increase) in Construction Capital for the STIP
Bicycle/Pedestrian Facility project on Interstate 80, in
Alameda County. (EA 0A771, PPNO 2323A)
Resolution FA-22-36
2.5e.(6) Teresa Favila
Dina El-Tawansy
A D
Transit and Intercity Rail Capital Program Supplemental
Tab Item Description Ref# Presenter Type* Agency*
81 Request for an additional $8,267,000 (56.6 percent
increase) for the Construction phase of the (2018:27)
Southern California Optimized Rail Expansion (SCORE)
Project (Supplemental Fleet Refurbishment) component,
in Los Angeles County. (PPNO CP033)
Resolution TIRCP-2223-35S
2.6g.(6) Monica Torres
Kyle Gradinger
A D
PROGRAM UPDATES
State Highway Operation and Protection Program (SHOPP)
Tab Item Description Ref# Presenter Type* Agency*
82 SHOPP Amendments for Approval:
Request to:
--Add 15 new projects into the 2022 SHOPP. (2.1a.(1a))
--Develop 1 Long Lead project (2.1a.(1c))
--Revise 34 projects currently programmed in the 2022
SHOPP. (2.1a.(1d))
SHOPP Amendment 22H-005
(Related Items under Ref. 2.5b.(1) and 2.5b.(2))
2.1a.(1) Jon Pray
James R. Anderson
A D
Local Partnership Program (LPP)
Tab Item Description Ref# Presenter Type* Agency*
83 Local Partnership Formulaic Program Amendment:
• Add the Yerba Buena Island West Side Bridges
Project in San Francisco County and program
$9,056,000 in fiscal year 2022-23.
• Deprogram project cost savings of $531,000 from the
Route 101 Santa Monica Road/Via Real Intersection
Improvements project in Santa Barbara County,
leaving the funding available for programming and
allocation until December 30, 2023.
Resolution LPP-P-2223-05,
Amending Resolution LPP-P-2223-04
(Related Items under Ref. 2.5s.(3) and 2.5s.(10))
4.16 Leishara Ward A C
CTC MEETING AGENDA December 7-8, 2022
Page 13
Traffic Congestion Relief Program (TCRP)
Tab Item Description Ref# Presenter Type* Agency*
84 Transportation Agency for Monterey County Request
to Transfer Property Purchased with Traffic Congestion
Relief Program Funds to the City of Salinas.
Resolution G-22-72
4.4 Beverley Newman-
Burckhard
A C
Proposition 116
Tab Item Description Ref# Presenter Type* Agency*
85 Retention of proceeds from the disposition of light rail
vehicles purchased with Proposition 116 funds.
Resolution G-22-71
4.8 Kacey Ruggiero A C
ALLOCATIONS
Coronavirus Response and Relief Supplemental Appropriation Act (CRRSAA) Allocations
Tab Item Description Ref# Presenter Type* Agency*
86 Allocation of Project List for CRRSAA Program Funds.
Resolution CRSA-A-2223-03
2.5k. Kacey Ruggiero
Dee Lam
A D
STIP Allocations
Tab Item Description Ref# Presenter Type* Agency*
87 Request of $874,000 for the locally-administered STIP
Latrobe Road/El Dorado Hills Blvd Interchange
Improvements Phase 2B project, on the State Highway
System, in El Dorado County. (PPNO 5606)
Resolution FP-22-34
(Related Item under Ref. 2.2c.(4))
2.5c.(2)
/
2.5v.(1)
Kacey Ruggiero
James R. Anderson
A D
88 Request of $4,451,000 for seven locally-administered
STIP and Planning, Programming, and Monitoring (PPM)
projects, off the State Highway System.
Resolution FP-22-35
2.5c.(3) Kacey Ruggiero
Dee Lam
A D
89 Request of 335,000 for one locally-administered STIP
PPM project, off the State Highway System, in
Stanislaus County. (PPNO 9953)
Resolution FP-22-36
2.5c.(4)
/
2.5v.(4)
Kacey Ruggiero
Dee Lam
A D
Proposition 1B Local Bridge Seismic Retrofit Program (LBSRP) Annual Allocation
Tab Item Description Ref# Presenter Type* Agency*
90 Request of $13,906,000 in Proposition 1B Local Bridge
Seismic Retrofit Program Bond Program funds for the
annual allocation for Fiscal Year 2022-23.
Resolution LSB1B-A-2223-01
2.5g.(4) Jaeden Gales
Dee Lam
A D
SHOPP Minor Program Allocations
Tab Item Description Ref# Presenter Type* Agency*
91 Request of $1,240,000 for one District Minor project, in
Tuolumne County.
Resolution FP-22-31
2.5a. Gurtej Bhattal
James R. Anderson
A D
SHOPP Allocations
Tab Item Description Ref# Presenter Type* Agency*
92 Request $57,752,000 for nine SHOPP projects.
Resolution FP-22-32
(Related Items under Ref. 2.1a.(1) and 2.2c.(8))
2.5b.(1) Jon Pray
James R. Anderson
A D
93 Request of $38,088,000 for 41 2022 SHOPP
preconstruction project phases for environmental,
design and R/W support.
Resolution FP-22-33
(Related Items under Ref. 2.1a.(1), 2.2c.(1) and 2.2c.(8))
2.5b.(2) Jon Pray
James R. Anderson
A D
CTC MEETING AGENDA December 7-8, 2022
Page 14
Tab Item Description Ref# Presenter Type* Agency*
94 Request of $4,615,000 for the SHOPP Rehabilitation
Pavement project Near Lost Hills, from 1.0 mile west of
Brown Material Road to 0.2 miles east of Pavilion Way, in
Kern County. (PPNO 8012)
Resolution FP-22-39
(Related Item under Ref. 2.5s.(6))
2.5b.(3) Jon Pray
James R. Anderson
A D
Local Partnership Program (LPP) Allocations
Tab Item Description Ref# Presenter Type* Agency*
95 Request of $2,302,000 for the locally-administered LPP
(Formulaic) University Avenue/Highway 101
Interchange Improvements Project, on the State
Highway System, in San Mateo County. (PPNO 0090L)
Resolution LPP-A-2223-18
2.5s.(2) Kayla Giese
James R. Anderson
A D
96 Request of $9,056,000 for the locally-administered LPP
(Formulaic) Yerba Buena Island West Side Bridges
Seismic Retrofit Project, off the State Highway System,
in San Francisco County. (PPNO 2351A)
Resolution LPP-A-2223-19
(Related Items under Ref. 4.16)
2.5s.(3) Kayla Giese
Dee Lam
A D
Multi-Funded LPP/STIP Allocations
Tab Item Description Ref# Presenter Type* Agency*
97 Request of $762,000 for the locally-administered
multi-funded LPP (Formulaic)/STIP Fort Bragg – Street
Rehabilitation 2022, Various Streets project, off the
State Highway System, in Mendocino County.
(PPNO 4758)
Resolution LPP-A-2223-21
Resolution FP-22-37
2.5s.(7)
/
2.5v.(2)
Kayla Giese
Dee Lam
A D
Multi-Funded LPP/ATP Allocations
Tab Item Description Ref# Presenter Type* Agency*
98 Request of $10,554,000 for the locally-administered
multi-funded LPP (Formulaic)/ATP Inland Rail Trail-City
of Vista Segment project, off the State Highway System,
in San Diego County. (PPNO 1328)
Resolution LPP-A-2223-22
Resolution FATP-2223-13
2.5s.(4) Kayla Giese
Dee Lam
A D
LPP Transit Allocations
Tab Item Description Ref# Presenter Type* Agency*
99 Request of $1,928,000 for the locally-administered
LPP (Formulaic) BART Clipper C2 Upgrade Program
Integration Transit Project, in Alameda County.
(PPNO 0090M)
Resolution LPP-A-2223-20
2.6s.(2) Kayla Giese
Kyle Gradinger
A D
Solutions for Congested Corridors (SCCP) Allocations
Tab Item Description Ref# Presenter Type* Agency*
100 Request of $16,463,000 for the locally-administered
SCCP Soquel Drive Buffered Bike Lane and
Congestion Mitigation Project (SCCP/LPP Cycle 2,
Contract #3) project, off the State Highway System, in
Santa Cruz County. (PPNO 3046)
Resolution SCCP-A-2223-05
2.5s.(5) Naveen Habib
Dee Lam
A D
CTC MEETING AGENDA December 7-8, 2022
Page 15
Trade Corridor Enhancement Program (TCEP) Allocations
Tab Item Description Ref# Presenter Type* Agency*
101 Request of $175,000,000 for the locally-administered
TCEP 7th Street Grade Separation (East) project, off
the State Highway System, in Alameda County.
(PPNO 2103D)
Resolution TCEP-A-2223-06
2.5s.(8) Kenneth Lopez
Dee Lam
A D
Multi-Funded TCEP/STIP Allocations
Tab Item Description Ref# Presenter Type* Agency*
102 Request of $18,545,000 for the State-Administered
multi-funded TCEP/STIP Route 46 Expressway
Segment 4C project, on the State Highway System, in
Kern County. (PPNO 3386E)
Resolution TCEP-A-2223-07
Resolution FP-22-38
(Related Item under Ref. 2.5b.(3))
2.5s.(6) Kenneth Lopez
James R. Anderson
A D
Multi-Funded TCEP/TCIF Rail Project
Tab Item Description Ref# Presenter Type* Agency*
103 Request of $67,851,000 for the locally-administered
multi-funded TCEP/Proposition 1B TCIF Montebello
Boulevard Grade Separation Rail project, in Los Angeles
County. (PPNO T0008)
Resolution TCEP-A-2223-08
Resolution TCIF-A-2223-01
2.6s.(1)
/
2.5g.(5)
Kenneth Lopez
Kyle Gradinger
A D
Active Transportation Program (ATP) Allocations
Tab Item Description Ref# Presenter Type* Agency*
104 Request of $9,261,000 for eight locally-administered
ATP projects, off the State Highway System.
Resolution FATP-2223-10
(Related Items under Ref. 2.2c.(2) and 4.12)
2.5w.(1) Beverley Newman-
Burckhard
Dee Lam
A D
105 Request of $3,554,000 for two locally-administered ATP
projects, off the State Highway System.
Resolution FATP-2223-11
(Related Item under Ref. 2.2c.(6))
2.5w.(2) Beverley Newman-
Burckhard
Dee Lam
A D
106 Request of $2,103,000 for the locally-administered ATP
Pedestrian and Bike Safety Improvements: Ojai Avenue
(State Route 150) and Maricopa Highway (State
Route 33) project, on the State Highway System, in
Ventura County. (PPNO 5144)
Resolution FATP-2223-12
2.5w.(3) Beverley Newman-
Burckhard
Dee Lam
A D
Transit and Intercity Rail Capital Projects (TIRCP) Allocations
Tab Item Description Ref# Presenter Type* Agency*
107 Request of $11,411,000 for 11 TIRCP projects.
Resolution TIRCP-2223-36
(Related Item under Ref. 2.2c.(5))
2.6g.(1) Monica Torres
Kyle Gradinger
A D
108 Request of $152,000,000 for the TIRCP San Dieguito to
Sorrento Valley Double Track and Realignment project,
in San Diego County. (PPNO CP084)
Resolution TIRCP-2223-37
2.6g.(7) Monica Torres
Kyle Gradinger
A D
TIME EXTENSION REQUESTS
SHOPP Time Extensions
Tab Item Description Ref# Presenter Type* Agency*
109 Request to extend the period of contract award for 12
SHOPP projects, per SHOPP Guidelines.
Waiver 22-168
(Related Items under Ref. 2.8d.(2), 2.5e(12),and 2.5e.(7))
2.8b.(1) Jaeden Gales
James R. Anderson
A D
CTC MEETING AGENDA December 7-8, 2022
Page 16
Tab Item Description Ref# Presenter Type* Agency*
110 Request to extend the period of project completion for
the nine SHOPP projects, per SHOPP Guidelines.
Waiver 22-169
2.8c.(1) Jaeden Gales
James R. Anderson
A D
111 Request to extend the period of project development
expenditure for six SHOPP projects, per SHOPP
Guidelines.
Waiver 22-170
2.8d.(1) Jaeden Gales
James R. Anderson
A D
112 Request to amend the period of project development
expenditure for three SHOPP projects as an exception
to the SHOPP Guidelines.
Waiver 22-171,
Amending Waivers 21-84 and 21-125
(Related Items under Ref. 2.8b.(1) and 2.8a.(1))
2.8d.(2) Jaeden Gales
James R. Anderson
A D
113 Request to amend the period of project allocation for
the SHOPP Bridge Rail Upgrade project, in Mendocino
County, as an exception to the SHOPP Guidelines.
(PPNO 4588B).
Waiver 22-172, Amending Waiver 21-59
(Related Item under Ref. 2.8d.(2))
2.8a.(1) Jaeden Gales
James R. Anderson
A D
STIP Time Extensions
Tab Item Description Ref# Presenter Type* Agency*
114 Request to extend the period of contract award for the
locally-administer STIP Bollinger Canyon Road Iron
Horse Trail Bike and Pedestrian Overcrossing Project,
in Contra Costa County, per STIP Guidelines.
(PPNO 0242M)
Waiver 22-173
2.8b.(2) Kacey Ruggiero
Dee Lam
A D
ATP Time Extensions
Tab Item Description Ref# Presenter Type* Agency*
115 Request to extend the period of contract award for ten
locally-administered ATP projects, per ATP Guidelines.
Waiver 22-175
2.8b.(3) Elika Changizi
Dee Lam
A D
116 Request to extend the period of project completion for
three locally-administered ATP projects, per ATP
Guidelines.
Waiver 22-176
2.8c.(3) Elika Changizi
Dee Lam
A D
LPP Time Extensions
Tab Item Description Ref# Presenter Type* Agency*
117 Request to extend the period of contract award for the
LPP (Formulaic) Purchase of Zero-Emission Forklifts
Transit project, in Alameda County, per LPP Guidelines.
(PPNO 0090A)
Waiver 22-184
(Related Item under Ref. 2.6s.(3))
2.8b.(11) Kayla Giese
Kyle Gradinger
A D
SCCP Time Extensions
Tab Item Description Ref# Presenter Type* Agency*
118 Request to extend the period of contract award for the
State-Administered SCCP PSGC Phase 1 I-80 Transit
Reliability project, in Placer County, per SCCP
Guidelines. (PPNO 5101)
Waiver 22-177
(Related Item under Ref. 2.8b.(7))
2.8b.(4) Naveen Habib
James R. Anderson
A D
CTC MEETING AGENDA December 7-8, 2022
Page 17
TCEP Time Extensions
Tab Item Description Ref# Presenter Type* Agency*
119 Request to extend the period of contract award for two
locally-administered TCEP projects, per TCEP
Guidelines.
Waiver 22-178
2.8b.(5) Cherry Zamora
James R. Anderson
A D
120 Request to extend the period of contract award for the
State-Administered TCEP Capital Region Freight - I-5
project, in Sacramento County, per TCEP Guidelines.
(PPNO 5876)
Waiver 22-179
2.8b.(6) Cherry Zamora
James R. Anderson
A D
121 Request to extend the period of contract award for the
State-Administered multi-funded SB 1 TCEP/STIP
Capital Region Freight I-80 project, in Placer County, per
TCEP and STIP Guidelines. (PPNO 5101A)
Waiver 22-180
(Related Item under Ref. 2.8b.(4))
2.8b.(7) Cherry Zamora
James R. Anderson
A D
TIRCP Time Extensions
Tab Item Description Ref# Presenter Type* Agency*
122 Request to extend the period of contract award for two
TIRCP projects, in San Diego County, per TIRCP
Allocation Policy.
Waiver 22-181
2.8b.(8) Monica Torres
Kyle Gradinger
A D
OTHER MATTERS
Tab Item Description Ref# Presenter Type* Agency*
Public Comment 6 Lee Ann Eager I C
ADJOURN
Highway and Mass Transportation Financial Matters
Program Current Meeting
Proposed Allocations
(December 7-8, 2022)
FY 2022-2023
Year to Date Total
(Through November 30, 2022)
SHOPP Allocations $386,648,000 $3,112,824,000
STIP Allocations $14,367,000 $79,080,000
Senate Bill 1 Allocations $269,800,000 $40,964,000
Proposition 1B Allocations $32,757,000
ATP Allocations $20,021,000 $49,836,000
TIRCP Allocations $171,678,000 $27,489,000
Aeronautics Allocations $2,500,000
Local Assistance Annual Allocation $2,326,284,000
Waterborne Ferry Program Allocation $3,446,000
Grand Total: $895,271,000 $5,642,423,000
Total Jobs Created: 9,848 62,067
Total De-Allocations: $836,000