2 1. SERVICES TO BE PROVIDED BY CONSULTANT
1.1 In complianc e with all of the terms and conditions of this Agreement, CONSULTANT shall provide to ANAHEIM all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional consulting services necessary for the Project ("Services"). The Services are more particularly described in the CONSULTANT’s Proposal dated July 29, 2022 , attached hereto as Exhibit “A” and incorporated herein and in the Request for Proposal (“RFP”) issued by ANAHEIM, a copy of which is available in the Department of Public Works upon request and are both incorporated herein by this reference ("Scope of Services").
In the event of conflicting provisions, the provisions shall govern in the following order: (1) this Agreement, (2) the RFP, and (3) the Proposal.
1.2 Non-Exclusive Agreement . CONSULTANT acknowledges that ANAHEIM may enter into agreements similar to this Agreement with other consultants. It is understood and agreed that any Services to be performed pursuant to this Agreement will be awarded to the CONSULTANT that ANAHEIM determines, in its sole discretion, to be most qualified to provide such Services to ANAHEIM.
1.3 Progress Reports. A. CONSULTANT shall submit progress reports at least once a month. The repo rt should be sufficiently detailed for the Contract Administrator to determine, if CONSULTANT is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.
CONSULTANT’s Project Manager shall meet with ANAHEIM’s Contract Administrator, as needed, to discuss progress on the contract.
2. TERM
The term of this Agreement shall commence on the Effective Date of this Agreement as set forth in Section 55 herein, and shall terminate upon the completion of the Services described herein, unless terminated earlier as set forth in Section 25 herein ("Term").
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of th is Agreement and the Services shall be performed to completion in a diligent and timely manner. The failure by CONSULTANT to perform the Services in a diligent and timely manner may result in termination of this Agreement by ANAHEIM.
3.2 The time period(s) specified for performance of the Services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of CONSULTANT, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes,
3 floods, pestilence, and other natural catastrophes, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, civil disturbance or disobedience, sabotage, restraint by court order or public authority and action or non -action by or inability to obtain the necessary authorization or approvals from any governmental agency or authority, and/or acts of any governmental agency, including A NAHEIM, which by the exercise of due diligence such Party could not reasonably have been expected to avoid and which by exercise of due diligence has been unable to overcome, if CONSULTANT shall within ten (10) days of the commencement of such delay notify the Project Administrator in writing of the causes of the delay. The Project Administrator shall ascertain the facts and the extent of delay, and may extend the time for performing the Services for the period of the enforced delay if, in the judgment of the Project Administrator, such delay is justified. The Project Administrator's determination shall be final and conclusive upon the Parties to this Agreement. In the event of delay, however caused, CONSULTANT's sole remedy shall be an extension of th is Agreement pursuant to this Section and CONSULTANT shall not be entitled to recover damages against ANAHEIM.
4. COMPENSATION
4.1 ANAHEIM shall pay CONSULTANT for the Services rendered, pursuant to this Agreement, in the amount of Two Hundred Seventy-One Thousand, Ninety-Six Dollars and No/100 Cents ($271,096.00) (“Contract Amount”) pursuant to the fee proposal set forth in Exhibit A and incorporated herein by reference (“Schedule of Compensation"). CONSULTANT and ANAHEIM agree that no changes to the fee proposal set forth in Exhibit A shall be made during the term of this Agreement without the prior written approval of ANAHEIM.
4.2 Extra Work. The Director of Public Works is authorized to approve additional expenditures to be paid to CONSULTANT, pursuant to this Agreement, for Extra Work not included in the Scop e of Services, in the amount up to ten percent (10%) of the Contract Amount, if the Director of Public Works determines, in her sole discretion, that the additional Extra Work is necessary for the successful completion of the Services. .01 In no event shall CONSULTANT render Extra Work beyond the scope of this Agreement without the written authorization of the Director of Public Works. .02 All Extra Work approved in writing by the Director of Public Works shall be billed at either the rates set forth in the Schedule of Compensation or at a fixed price, at ANAHEIM’s sole discretion. If billed at a fixed price, CONSULTANT shall provide ANAHEIM with general description of the Extra Work to be performed with a proposed price. At such time as the Director of Public Works has approved the Extra Work, has agreed to a fixed price for the services, and has notified CONSULTANT of such approval and agreement in writing, CONSULTANT shall perform the Extra Work.
.03 Except as specifically provided herein, no additional Services or Extra Work beyond the scope of this Agreement shall be rendered by CONSULTANT unless previously authorized in writing by the City Manager.
4 .04 As used herein, “E xtra Work” means any work that is determined by ANAHEIM to be necessary for the proper completion of the Services, but which is not included within the Scope of Services and which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
4.3 It is understood by and agreed between the Parties to this Agreement that full and complete payment for all Services provided in accordance with this Agreement, including, but not limited to, all Extra Work, reimbursable expenses and subconsultant fees, if any, shall not exceed the fixed fee of Two Hundred Ninety -Eight Thousand, Two Hundred Five Dollars and 60/100 Cents ($298,205.60).
4.4. CONSULTANT shall submit monthly invoices to ANAHEIM describing the work performed the preceding month. CONSULTANT’s bills shall include the name of the person who performed the work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. ANAHEIM shall pay CONSULTANT no later than thirty (30) days after approval of the monthly invoice by ANAHEIM staff.
4.5 All Parties recognize that the continuation of this Agreement after the close of any fiscal year of ANAHEIM, which fiscal year ends on June 30 of each year, shall be subject to budget approval providing for or covering such contract items as an expenditure in said budget.
ANAHEIM does not represent that said budget item will be actually adopted, said determination being the determination of the City Council at the time of the adoption of the budget herein. No penalty shall accrue to ANAHEIM in the event this provision shal l be exercised. Should termination be accomplished in accordance with this Section, a settlement shall be negotiated by the Parties based on items delivered, services provided, monies paid and monies due.
4.6 CONSULTANT agrees that the Contract Cost Princ iples and Procedur es, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items. CONSULTANT also agrees to comply with federal procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. Any costs for which payment has been made to CONSULTANT that are determined by subsequent audit to be unallowable under 49 CFR, Part 18 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by CONSULTANT to ANAHEIM.
4.7 It is mutually understood between the parties that this contract may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the contract were executed after that determination was made.
4.8 This contract is valid an d enforceable only, if sufficient funds are made available to ANAHEIM for the purpose of this contract. In addition, this contract is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or ANAHEIM governing board that may affect the provisions, terms, or funding of this contract in any manner.
5 4.9 It is mutually agreed that if sufficient funds are not appropriated, this contract may be amended to reflect any reduction in funds.
4.10 ANAHEIM has the option to void the contract under the 30-day termination clause pursuant to Section 25, or by mutual agreement to amend the contract to reflect any reduction of funds.
4.11 The method of payment for this contract will be based on actual cost plus a fixed fee. ANAHEIM will 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 work. CONSULTANT will not be reimb ursed 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’S Cost Proposal, unless additional reimbursement is provided for by contract amendment.
In no event, will CONSULTANT be reimbursed for overhead costs at a rate that exceeds ANAHEIM’s approved overhead rate set forth in the Cost Proposal. In the event, that ANAHEIM determines that a change to the work from that specified in the Cost Proposal and contract is required, the contract time or actual costs reimbursable by ANAHEIM shall be adjusted by contract amendment to accommodate the changed work. The maximum total cost as specified in Paragraph “H” shall not be exceeded, unless authorized by contract amendment.
4.12 Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal.
4.13 When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate.
4.14 Progress payments will be made monthly in arrears based on services provided and allowable incurred costs. A pro rata portion of CONSULTANT’s fixed fee will be included in the monthly progress payments. If CONSULTANT fails to submit the required deliverable items according to the schedule set forth in the Statement of Work, ANAHEIM shall have the right to delay payment or terminate this Contract in accordance with the provisions of Article VI Termination.
4.15 No payment will be made prior to approval of any work, nor for any work performed prior to approval of this contract.
4.16 CONSULTANT will be reimbursed, as promptly as fiscal procedures will permit upon receipt by ANAHEIM’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 contract number and project title. Final invoice must contain the final cost and all credits due ANAHEIM including any equipment purchased under the provisions of Equipment Purchase of this Agreement. The final invoice should be submitted within 60 calendar
6 days after completion of CONSULTANT’s work. Invoices shall be mailed to ANAHEIM’s Contract Administrator at the following address:
City of Anaheim
Department of Public Works, Contract Administrator
200 S. Anaheim Blvd., 2nd Floor,
Anaheim, CA 92805
4.17 Salary increases will be reimbursable if the new salary is within the salary range identified in the approved Cost Proposal and is approved by ANAHEIM’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.
5. PROJECT MANAGER
5.1 CONSULTANT shall designate a Project Manager, who shall coordinate the Services. This Project Manager shall be available to ANAHEIM at all reasonable times during the Term of this Agreement. CONSULTANT has designated Matt Stepien to be its Project Manager. It is expressly understood that the experience, knowledge, capabili ty and reputation of the foregoing Project Manager is a substantial inducement for ANAHEIM to enter into this Agreement. Therefore, the foregoing Project Manger shall be responsible during the Term of this Agreement for directing all activities of CONSULTANT and devoting sufficient time to personally supervise the provision of Services hereunder. The foregoing Project Manager may not be changed by CONSULTANT and no other personnel may be assigned to supervise the Services to be provided hereunder without the express written consent of ANAHEIM.
5.2 Any personnel or subconsultant, if any, who fail or refuse to perform the Services in a manner acceptable to ANAHEIM, or who are determined by ANAHEIM, in its sole discretion, to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, or a threat to the safety of persons or property, shall be promptly removed from the Project by CONSULTANT at the request of ANAHEIM. CONSULTANT warrants that it will continuously furnish the nece ssary personnel to complete the Services on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. The employees of the Public Works Department shall be authorized to take the following actions pursuant to this Agreement:
(i) The Director of Public W orks is authorized to take any and all actions on behalf of ANAHEIM as set forth herein and to terminate services in accordance with Section 25 of this Agreement.
7 (ii) The Project Administrator is authorized to take those specific acti ons set forth herein and review and approve all Services performed by CONSULTANT under this Agreement. The Project Administrator shall not be authorized to approve Extra Work, change billing rates or terminate Services under this Agreement.
7. STANDARD OF CARE
7.1 CONSULTANT shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. CONSULTANT represents and maintains that it is skilled in the professional calling necessary to perform the Services. CONSULTANT warrants that all employees and subconsultants, if any, shall have sufficient skill and experience to perform the Services assigned to them. By delivery of completed work, CONSULTANT certifies that the work conforms to the requirements of this Agreement; all applicable federal, state and local laws; and the professional standard of care.
7.2 CONSULTANT represents and warrants to ANAHEIM that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoeve r nature that is legally required of CONSULTANT to practice its profession. CONSULTANT shall maintain a City of Anaheim business license during the term of this Agreement.
8. FAMILIARITY WITH WORK
By executing this Agreement, CONSULTANT represents and war rants that CONSULTANT: (i) has thoroughly investigated and considered the Services to be performed; (ii) has carefully considered how the Services should be provided; and (iii) fully understands the facilities, difficulties and restrictions attending the provision of the Services under this Agreement.
Should CONSULTANT discover any latent or unknown conditions materially differing from those inherent in the provision of such Services or as represented by ANAHEIM, CONSULTANT shall immediately inform ANAHEIM of such fact and shall not proceed except at CONSULTANT's risk until written instructions are received from ANAHEIM.
9. INDEPENDENT CONTRACTOR
9.1 Neither ANAHEIM nor any of its employees shall have any control over the manner, mode or means by which CONS ULTANT, its agents or employees, perform the services required herein, except as otherwise set forth herein. Except as expressly provided herein, ANAHEIM shall have no voice in the selection, discharge, supervision or control of CONSULTANT's employees, se rvants, representatives or agents, or in fixing their number, compensation or hours of service. CONSULTANT shall perform all services required herein as an independent contractor of ANAHEIM and shall remain at all times as to ANAHEIM a wholly independent contractor with only such obligations as are consistent with that role. CONSULTANT shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of ANAHEIM. ANAHEIM shall not in any way or for any purpose become or be deemed to be a partner of CONSULTANT in its business or otherwise or a joint venture or a member of any joint enterprise with CONSULTANT.
8 9.2 In consideration for the compensation paid to CONSULTANT by ANAHEIM, CONSULTANT agrees that ANAHEIM shall not be liable or responsible for any benefits, including, but not limited to, worker's compensation, disability, retirement, life, unemployment, health or any other benefits and CONSULTANT agrees that it shall not sue or file a claim, petition or app lication therefore against ANAHEIM or any of its officers, employees, agents, representatives or sureties.
10. INSURANCE
10.1 Without limiting ANAHEIM's right to indemnification, it is agreed that CONSULTANT shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, insurance coverage as follows:
.01 Workers' Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence. .02 Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, and Independent CONSULTANT’ S Liability, in an amount not less than $2,0 00,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form. Such insurance shall be written on a primary basis, but may include a deductible of not more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to ANAHEIM, in writing, at the inception of this Agreement. (This coverage written with a Self -Insured Retention must be submitted for approval by the Risk Manager prior to the inception of the final Agreement.)
.03 Comprehensive Automobile Liability Coverage including -as applicable-owned, non -owned, and hired auto s, in an amount not less than $2 ,000,000 per occurrence, combined single limit, as required by California law. .04 Professional Liability Insuran ce in an amount not less than $2,000,000 per occurrence, and CONSULTANT shall maintain such coverage for at least two (2) years from the termination of this Agreement. Such insurance shall be written on a primary basis (i.e., without a self-insured retention), but may include a deductible of not more than $10,000 per occurrence, provided that such deductible is disclosed to ANAHEIM, in writing, at the inception of this Agreement.
10.2 Each insurance policy required by this Agreement shall contain the following clause or shall otherwise provide for the following conditions: "This insurance shall not be cancelled, or limited in scope or coverage, until after thirty (30) days prior written notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 9 2805, except in the event of cancellation for non -payment of premium which shall provide for not less than ten (10) days notice."
10.3 Each insurance policy required by this Agreement, excepting policies for Professional Liability and Workers' Compensati on, shall contain the following clauses or shall otherwise provide for the following conditions:
9 .01 "It is agreed that any insurance maintained by CONSULTANT pursuant to this Agreement shall be primary to, and not contribute with, any insurance or self - insurance maintained by the City of Anaheim."
.02 "The City of Anaheim, its officers, agents, employees, representatives and ANAHEIM-designated volunteers are added as additional insureds as respects the acts, omissions, operations and activities of, or on b ehalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim."
10.4 Prior to commencing any work under this Agreement and one month prior to expiration of insurance, CONSULTANT shall deliver to ANAHEIM insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, CONSULTANT shall provide ANAHEIM: (i) endorsements to the insurance policies which add to these policies the applicable clauses referenced above; or (ii) in lieu of said endorsements, documentation acceptable to ANAHEIM evidencing that the coverage, terms, and conditions set forth in the above -referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with insurers: (i) admitted to write insurance in California; (ii) possessing an A. M. Best's rating of A VII or higher; or (iii) otherwise acceptable to ANAHEIM, with prior written permission from ANAHEIM. In the event that a claim or other legal action is filed against ANAHEIM, and if ANAHEIM, in its good faith opinion, believes it may have coverage under any of th e insurance required herein, then ANAHEIM has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the Parties agree that CONSULTANT shall fully defend, hold harmless, and indemnify ANAHEIM against any such claim or other legal action.
10.5 In addition to other remedies ANAHEIM may have if CONSULTANT fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, ANAHEIM may, at its sole option:
.01 Order CONSULTANT to stop work under this Agreement and/or withhold any payment(s) which become due to CONSULTANT hereunder until CONSULTANT demonstrates compliance with the requirements hereof; or .02 Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies ANAHEIM may have and is not the exclusive remedy for CONSULTANT's failure to maintain insurance or secure appropriate endorsements.
10.6 Nothing herein contained shall be construed as limiting in any way the extent to which CONSULTANT may be held responsible for payments of damages to persons or property resulting from CONSULTANT's, (or CONSULTANT's contracto rs/subcontractor, if any) performance of the work covered under this Agreement.
10.7 In the event CONSULTANT hires other persons or firms to perform some of the work related to this Agreement, CONSULTANT shall ensure, and certify to ANAHEIM in
10 writing that: ( i) the acts or omissions of such persons or firms are covered under the above - referenced liability insurance; or (ii) such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of CONSULTANT under this Agreement (except for firms which are not performing professional services-such firms shall not be required to carry the above -referenced professional liability insurance); and in either instance, CONSULTANT shall provide, or caus e to be provided, evidence of such insurance coverage, reasonably acceptable to ANAHEIM.
10.8 ANAHEIM’s Risk Manager is hereby authorized to amend the requirements set forth herein in the event that such amendment is in ANAHEIM’s best interest based on the scope of services and nature of the project.
11. INDEMNIFICATION
11.1 As respects acts, errors or omissions in the performance of professional services, CONSULTANT agrees to indemnify and hold harmless ANAHEIM, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, to the extent arising directly out of CONSULTANT's (or CONSULTANT's contractors' or subcontractors', if any) negligent acts, errors or omissions in the performance of professional services under this Agreement.
11.2 As respects all acts, errors or omissions which do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically cover ed by ISO -based general and automobile liability insurance coverage, CONSULTANT agrees to indemnify, defend (at ANAHEIM's option), and hold harmless ANAHEIM, its officials, officers, employees, agents, and representatives from and against any and all claim s, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as "Claims"), arising out of or in connection with CONSULTANT's (or CONSULTANT's contractors' or subcontractors', if any) acts, errors, omissions, or work, relative to this Agreement; except for those Claims which arise out of the sole negligence or willful misconduct of ANAHEIM.
11.3 The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not ANAHEIM, CONSULTANT, or any other person maintains, or fails to maintain, insurance coverage, or a self -insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement.
12. PREVAILING WAGES
12.1 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 work.
12.2 Any subcontract entered into as a result of this contract, 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 Article, unless the awarding agency has an approved labor compliance program by the Director of Industrial Relations.
11 12.3 When prevailing wages apply to the services described in the scope of work, transportation and subsistence costs shall be reimbursed at the minimum ra tes set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination. See http://www.dir.ca.gov.
13. PROGRESS
CONSULTANT is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Services, activities performed and planned, and any meetings that have been scheduled or are desired.
14. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
The Parties recognize that a substantial inducement to ANAHEIM for entering into this Agreement is the professional reputation, experience and competence of CONSULTANT.
Neither the whole nor any interest in, nor any of the rights or privileges gr anted under this Agreement shall be assigned, transferred or encumbered in any way without the prior written consent of ANAHEIM. Any such purported assignment, transfer, encumbrance, pledge, subuse, or permission given without such consent shall be void as to ANAHEIM. If ANAHEIM approves an assignment or transfer, this Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the permitted successors and assigns of CONSULTANT.
15. SUBCONTRACTING
15.1 Nothing contained in this contract or otherwise, shall create any contractual relation between ANAHEIM and any subconsultant(s), and no subcontract shall relieve CONSULTANT of its responsibilities and obligations hereunder. CONSULTANT agrees to be as fully responsible to ANAHEIM for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by CONSULTANT. CONSULTANT’s obligation to pay its subconsultant(s) is an independent obligation from ANAHEIM's obligation to make payments to the CONSULTANT.
15.2 CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work pertinent to this contract shall be subcontracted without written authorization by ANAHEIM's Contract Administrator, except that, which is expressly identified in the approved Cost Proposal.
15.3 CONSULTANT shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to CONSULTANT by ANAHEIM.
15.4 All subcontracts entered into as a result of this contract shall contain all the provisions stipulated in this contract to be applicable to subconsultants.
15.5 Any substituti on of subconsultant(s) must be approved in writing by ANAHEIM's Contract Administrator prior to the start of work by the subconsultant(s).
12 16. USE AND OWNERSHIP OF DOCUMENTS AND DATA
16.1 Upon completion of all work under this contract, ownership and tit le to all reports, documents, plans, specifications, and estimates produce as part of this contract will automatically be vested in ANAHEIM; and no further agreement will be necessary to transfer ownership to ANAHEIM. CONSULTANT shall furnish ANAHEIM all necessary copies of data needed to complete the review and approval process.
16.2 It is understood and agreed that all calculations, drawings and specifications, whether in hard copy or machine -readable form, are intended for one -time use in the construction of the project for which this contract has been entered into.
16.3 CONSULTANT is not liable for claims, liabilities, or losses arising out of, or connected with the modification, or misuse by ANAHEIM of the machine-readable information and data provided by CONSULTANT under this contract; further, CONSULTANT is not liable for claims, liabilities, or losses arising out of, or connected with any use by ANAHEIM of the project documentation on other projects for additions to this project, or for t he completion of this project by others, except only such use as many be authorized in writing by CONSULTANT.
16.4 Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27, Subpart 27 .3 - Patent Rights under Government Contracts for federal-aid contracts).
16.5 ANAHEIM may permit copyrighting reports or other agreement products.
If copyrights are permitted; the agreement shall provide that the FHWA shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.
17. CONFIDENTIALITY
17.1 All financial, statistical, personal, technical, or other data and information relative to ANA HEIM's operations, which are designated confidential by ANAHEIM and made available to CONSULTANT in order to carry out this contract, shall be protected by CONSULTANT from unauthorized use and disclosure.
17.2. Permission to disclose information on one occasion, or public hearing held by ANAHEIM relating to the contract, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.
17.3. CONSULTANT shall not comment publicly to the press or any other media regarding the contract or ANAHEIM's actions on the same, except to ANAHEIM’s staff, CONSULTANT’s own personnel involved in the performance of this contract, at public hearings or in response to questions from a Legislative committee.
17.4 CONSULTANT shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this contract without prior review of the contents thereof by ANAHEIM, and receipt of ANAHEIM’S written permission.
13 17.5. Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article.
17.6 All information related to the construction estimate is confidential, and shall not be disclosed by CONSULTANT to any entity other than ANAHEIM.
18. INTELLECTUAL PROPERTY INDEMNITY
CONSULTANT shall defend and indemnify ANAHEIM, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by CONSULTANT to ANAHEIM pursuant to this Agreement.
19. RECORDS
CONSULTANT shall keep records and invoices in connection with the work to be performed under this Agreement. CONSULTANT shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to ANAHEIM, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to CONSULTANT under this Agreement.
All such records and invoices shall be clearly identifiable. CONSULTANT shall allow a representative of ANAHEIM to examine, audit and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours.
CONSULTANT shall allow inspection of all work, data, Documents, proceedings and activities related to this Agreement for a period of three (3) years f rom the date of final payment to CONSULTANT under this Agreement.
For the purpose of determining compliance with Public Contract Code 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other m atters connected with the performance of the contract pursuant to Government Code 8546.7; CONSULTANT, subconsultants, and ANAHEIM shall maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of the contract, including but not limited to, the costs of administering the contract. All parties shall make such materials available at their respective offices at all reasonable times during the contract period and for three years from the date of final payment under the contract. The state, State Auditor, ANAHEIM, FHWA, or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of CONSULTANT and it’s certified public acco untants (CPA) work papers that are pertinent to the contract and indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested.
20. WITHHOLDINGS
ANAHEIM may withhold payment to CONSULTANT of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. CONSULTANT shall not discontinue work as a result of such withholding. CONSULTANT shall have an immediate right
14 to appeal to the City Manager or his Designee with respect to such disputed sums and his/her decision shall be final. CONSULTANT shall be entitled to receive interest on any withheld sums at the rate of return that ANAHEIM earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld.
21. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or profes sional inexperience of CONSULTANT which result in expense to ANAHEIM greater than what would have resulted if there were not errors or omissions in the work accomplished by CONSULTANT, the additional cost and expense shall be borne by CONSULTANT. Nothing i n this paragraph is intended to limit ANAHEIM's rights under the law or any other sections of this Agreement.
22. ANAHEIM'S RIGHT TO EMPLOY OTHER CONSULTANTS
CONSULTANT acknowledges and agrees that this Agreement and the provision of services hereunder ar e nonexclusive and that ANAHEIM may enter into similar agreements with other entities for the provision of similar services.
23. CONFLICTS OF INTEREST
The CONSULTANT or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which: (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement; and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest.
If subject to the Act, CONSULTANT shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by ANAHEIM. CONSULTANT shall indemnify and hold harmless ANAHEIM for any and all claims for damages resulting from CONSULTANT’s violation of this Section.
CONSULTANT shall disclose any financial, business, or other relationship with ANAHEIM that may have an impact upon the outcome of this contract, or any ensuing ANAHEIM construction project. CONSULTANT shall also list current clients who may have a financial interest in the outcome of this contract, or any ensuing ANAHEIM construction project, which will follow.
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 contract.
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.
15 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.
24. NOTICES
All notices, demands or other writings to be made, given or sent hereunder, or which may be so given or made or sent by either ANAHEIM or CONSULTANT to the other shall be deemed to have been given when in writing and personally delivered or if mailed on the third (3rd) day after being deposited in the United States mail, certified or registered, postage pre paid, and addressed to the respective Parties at the following addresses:
If to ANAHEIM: City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-4105
With copies to: Director of Public Works
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-5225
To CONSULTANT: KOA Corporation
Attn: Matt Stepien
2141 W. Orangewood Avenue
Orange, California 92868
Phone: (949) 370-3164
25. ENFORCEMENT OF AGREEMENT
25.1 Events of Default.
.01 For purposes of this Section 25, the word "Default" shall mean the failure of CONSULTANT to perform any of CONSULTANT's duties or obligations or the breach by CONSULTANT of any of the terms and conditions set forth in this Agree ment. In addition, CONSULTANT shall be deemed to be in Default upon CONSULTANT's (i) application for, consent to, or suffering of, the appointment of a receiver, trustee or liquidator for all or a substantial portion of its assets; (ii) making a general a ssignment for the benefit of creditors; (iii) being adjudged bankrupt; (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing); or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution
16 or seizure of all or a substantial portion of CONSULTANT's a ssets or of CONSULTANT's interests hereunder.
.02 ANAHEIM shall not be deemed to be in Default in the performance of any obligation required to be performed by ANAHEIM hereunder unless and until ANAHEIM has failed to perform such obligation for a period of thirty (30) days after receipt of written notice from CONSULTANT specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of ANAHEIM's obligation is such that more than thirty (30) days are required for its performance, then ANAHEIM shall not be deemed to be in Default if ANAHEIM shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion.
25.2 ANAHEIM reserves the right to term inate this contract upon thirty (30) calendar days written notice to CONSULTANT with the reasons for termination stated in the notice.
25.3 ANAHEIM may terminate this contract 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, ANAHEIM may proceed with the work in any manner deemed proper by ANAHEIM. If ANAHEIM terminates this contract with CONSULTANT, ANAHEIM shall pay CONSULTANT the sum due to C ONSULTANT under this contract prior to termination, unless the cost of completion to ANAHEIM exceeds the funds remaining in the contract. In which case the overage shall be deducted from any sum due CONSULTANT under this contract and the balance, if any, shall be paid to CONSULTANT upon demand.
26. COMPLIANCE WITH ALL LAWS
CONSULTANT shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by CONSULTANT shall conform to applicable local, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator.
27. WAIVER
A waiver by either Party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character.
28. INTEGRATED CONTRACT
This Agreement and the exhibits hereto contain the entire agreement of ANAHEIM and CONSULTANT with respect to the matters covered hereby, and no agreement, statement or promise made by either ANA HEIM or CONSULTANT which is not contained herein, shall be valid or binding. No prior agreement, understanding or representation pertaining to any such matter shall be effective for any purpose.
17 29. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits or any other attachments attached hereto, the terms of this Agreement shall govern.
30. INTERPRETATION
Each Party acknowledges that he / she / it has had the benefit of advice of competent legal counsel with respect to its decision to enter this Agreement. The provisions of this Agreement shall be interpreted to give effect to their fair meaning and shall be construed as prepared by both Parties.
31. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by both CONSULTANT and ANAHEIM and approved as to form by the City Attorney.
CONSULTANT shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by ANAHEIM's Contract Administrator.
There shall be no change in CONSULTANT’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is a part of this contract without prior written approval by ANAHEIM's Contract Administrator.
32. SEVERABILITY
If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of its terms and provisions to persons and circumstances other than those to which it has been held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
33. REMEDIES CUMULATIVE
The remedies given to ANAHEIM and CONSULTANT herein shall be cumulative and are given without impairing any other rights given ANAHEIM or CONSULTANT by statute or law now existing or hereafter e nacted and the exercise on any one (1) remedy by ANAHEIM or CONSULTANT shall not exclude the exercise of any other remedy.
34. NO THIRD PARTY BENEFICIARIES
The Parties intend that no rights nor remedies be granted to any third party as a beneficiary of thi s Agreement or of any covenant, duty, obligation or undertaking established herein.
18 35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agree ment shall be adjudicated in a court of competent jurisdiction in the County of Orange.
36. DISCRIMINATION
CONSULTANT agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry, national origin or other prohibited basis in its provision of Services or hiring of subcontractors or employees. To the extent this Agreement provides that CONSULTANT offer accommodations or services to the public, such accommodations or services shall be offered by CONSULTANT to the public on fair and reasonable terms.
37. AUTHORITY
Each individual executing this Agreement on behalf of a corporation, nonprofit corporation, partnership or other entity or organization, represents and war rants the he or she is duly authorized to execute and deliver this Agreement on behalf of such entity or organization and that this Agreement is binding upon the same in accordance with its terms. CONSULTANT shall, at ANAHEIM's request, deliver a certifie d copy of it governing board's resolution or certificate authorizing or evidencing such execution.
38. FEDERAL REGULATIONS
38.1 Compliance with Regulations. CONSULTANT shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement. In addition, CONSULTANT shall comply with the provisions provided in FHWA-1273, attached hereto as Exhibit B and incorporated herein.
38.2 Nondiscrimination.
A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification und er penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.
B. During the performance of this AGREEMENT, CONSULTANT a nd its subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, nat ional origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual
19 orientation, or military and veteran status. CONSULTANT and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.
C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by ANAHEIM to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100 -8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.
D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and ANAHEIM upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of inf ormation and its facilities as said Department or ANAHEIM shall require to ascertain compliance with this clause.
E. CONSULTANT and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they h ave a collective bargaining or other Agreement.
F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.
G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States 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.
H. The CONSULTANT shall comply with regulations relative to non - discrimination in federally-assisted programs of the U.S. Department of Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
I. CONSULTANT, subreci pient or subconsultant will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, co lor, sex, or national origin. In administering ANAHEIM components of the DBE Program Plan, CONSULTANT, subrecipient or subconsultant will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of
20 defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.
38.3 Solicitations for Sub-agreements, Including Procurements of Materials and Equipment. In all solicitations either by competitive bidding or negotiation made by CONSULTANT for work to be performed under a Sub -agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by CONSULTANT of the CONSULTANT's obligations under this Agreement and the REGULATIONS relative to nondiscrimination on the grounds of race, color, or national origin.
38.4 Information and Reports. CONSULTANT shall provide all information and reports required by the REGULATIONS, or directives issued pursuant thereto, and s hall permit access to CONSULTANT's books, records, accounts, other sources of information, and its facilities as may be determined by STATE or FHWA to be pertinent to ascertain compliance with such REGULATIONS or directives. Where any information required of CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, CONSULTANT shall so certify to ANAHEIM, STATE or the FHWA as appropriate, and shall set forth what efforts CONSULTANT has made to obtain the information.
38.5 Sanctions for Noncompliance . In the event of CONSULTANT's noncompliance with the nondiscrimination provisions of this agreement, ANAHEIM and the STATE shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
(a) withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or (b) cancellation, termination or suspension of the Agreement, in whole or in part.
38.6 Incorporation of Provisions: CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub -agreement, including procurements of materials and leases of equipment, unless exempt by the REGULATIONS, or directives iss ued pursuant thereto. CONSULTANT shall take such action with respect to any sub -agreement or procurement as STATE or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes involved in, or is threatened with, litigation with a sub -applicant or supplier as a result of such direction, CONSULTANT may request STATE enter into such litigation to protect the interests of STATE, and, in addition, CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States.
39. AUDIT REVIEW PROCEDURES
39.1 Any dispute concerning a question of fact arising under an interim or post audit of this contract tha t is not disposed of by agreement, shall be reviewed by ANAHEIM’S Director of Finance.
21 39.2 Not later than 30 days after issuance of the final audit report, CONSULTANT may request a review by ANAHEIM’S Director of Finance of unresolved audit issues. The request for review will be submitted in writing.
39.3 Neither the pendency of a dispute nor its consideration by ANAHEIM will excuse CONSULTANT from full and timely performance, in accordance with the terms of this contract.
39.4 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 ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the contract, 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. The contract, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by ANAHEIM 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 the contract by this reference if directed by ANAHEIM 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 contract terms and cause for termination of the contract and disallowance of prior reimbursed costs.
40. EQUIPMENT PURCHASE
40.1 Prior authorization in writing, by ANAHEIM’s Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding $5,000 for supplies, equipment, or CONSULTANT servic es.
CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.
40.2 For purchase of any item, service or consulting work not covered in CONSULTANT’s Cost Proposal and exceeding $5,000 prior authorization by ANAHEIM’s Contract Administrator; three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified.
40.3 Any equipment purchased as a result of this contract is subject to the following: “CONSULTANT shall main tain 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, ANAHEIM shall receive a proper refund or credit at the conclusion of the contract, or if the contract is terminated, CONSULTANT may either keep the equipment and credit ANAHEIM in an amount equal to its fair market value, or sell such equipment at the best price obtain able at a public or private sale, in accordance with established ANAHEIM procedures; and credit ANAHEIM in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually
22 agreeable to by ANAHEIM and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by ANAHEIM.” 49 CFR, Part 18 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000 is credited to the project.
41. REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION
CONSULTANT warrants that this contract was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any ANAHEIM employee.
For breach or violation of this warranty, ANAHEIM shall have the right in its discretion; to terminate the contract without liability; to pay only for the value of the work actually performed; or to deduct from the contract price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
42. PROHIBITION OF EXPENDING ANAHEIM STATE OR FEDERAL FUNDS
FOR LOBBYING
42.1 CONSULTANT certifies to the best of his or her knowledge and belief that:
A. No state, federal or local agency appropriated funds have been paid, or will be paid by -or-on behalf of CONSULTANT to any person f or 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 awarding of any state or federal contract; the making of any state or federal grant; the making of any state or federal loan; the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement.
B. If any funds other than federal appropriated funds have been paid, or will be paid to any person for influencing or attempting to influence an officer o r 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 federal contract, grant, loan, or cooperative agreement; CONSULTANT shall complete and submit Standa rd Form -LLL, “Disclosure Form to Report Lobbying”, in accordance with its instructions.49 c
42.2 This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this cer tification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S.
Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
42.3 CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower -tier subcontracts, which exceed $100,000 and that all such sub recipients shall certify and disclose accordingly.
23 43. STATEMENT OF COMPLIANCE
43.1 CONSULTANT’s signature affixed herein, and dated, 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.
43.2 . During the performance of this Contract, 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 5applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 72 85 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 Contra ct 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.
43.3 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.
43.4 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 s election and retention of Subconsultants, including procurement of materials and leases of equipment. The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT’s Regulations, including employment practices when the Agreement covers a program whose goal is employment.
44. DEBARMENT AND SUSPENSION CERTIFICATION
44.1 CONSULTANT’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the S tate 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
24 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 miscon duct within the past three (3) years.
Any exceptions to this certification must be disclosed to ANAHEIM.
44.2 Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining CONSULTANT responsibility. Di sclosures must indicate to whom exceptions apply, initiating agency, and dates of action.
44.3 Exceptions to the Federal Government Excluded Parties List System maintained by the General Services Administration are to be determined by the Federal highway Administration.
45. DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION A. CONSULTANT, subrecipient (ANAHEIM), or subconsultant shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contract (49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR 26.5, ANAHEIM shows a contract goal for DBEs. CONSULTANT shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers.
CONSULTANT shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate good faith efforts to meet this goal. It is CONSULTANT’s responsibility to verify that the DBE firm is certified as DBE at date of proposal opening and document the record by printing out the California Unified Certification Program (CUCP) data for each DBE firm. A list of DBEs certified by the CUCP can be found here.
All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies CONSULTANT purchases from DBEs counts towards the goal in the following manner:
• 100 percent counts if the materials or supplies are obtained from a DBE manufacturer.
• 60 percent counts i f the materials or supplies are purchased from a DBE regular dealer.
Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49CFR26.55 defines "manufacturer" and "regular dealer." This AGREEMENT is subject to 49 CFR Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. CONSULTANTs who enter into a federally-funded agreement will assist ANAHEIM in a good faith effort to achieve California's statewide overall DBE goal.
25 B. The goal for DBE participation for this Agreement is _______ % Participation by DBE CONSULTANT or subconsultants shall be in acco rdance with information contained in Exhibit 10-02: Consultant Contract DBE Commitment attached hereto and incorporated as part of the Agreement. If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: DBE Information –Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
D. Contract Assurance
Under 49 CFR 26.13(b):
CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal -aid contracts.
Failure by the CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying CONSULTANT from future proposing as non-responsible E. Termination and Substitution of DBE Subconsultants
CONSULTANT shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless CONSULTANT or DBE subconsultant obtains ANAHEIM’s written consent. CONSULTANT shall not terminate or substitute a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from ANAHEIM. Unless ANAHEIM’s consent is provided, the CONSULTANT shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-02 Consultant Contract DBE Commitment form, included in the Bid.
ANAHEIM authorizes a request to use other forces or sources of materials if CONSULTA NT shows any of the following justifications:
26 1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.
2. ANAHEIM stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet ANAHEIM’s bond requirements.
3. Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the pr oject because of suspension or debarment.
7. Listed DBE becomes bankrupt or insolvent.
8. Listed DBE voluntarily withdraws with written notice from the Contract
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE own er dies or becomes disabled resulting in the inability to perform the work on the Contract.
11. ANAHEIM determines other documented good cause.
CONSULTANT shall notify the original DBE of the intent to use other forces or material sources and provide the r easons and provide the DBE with 5 days to respond to the notice and advise CONSULTANT and ANAHEIM of the reasons why the use of other forces or sources of materials should not occur.
CONSULTANT’s request to use other forces or material sources must include:
1. One or more of the reasons listed in the preceding paragraph.
2. Notices from CONSULTANT to the DBE regarding the request.
3. Notices from the DBEs to CONSULTANT regarding the request.
If a listed DBE is terminated or substituted, CONSULTANT must make good faith efforts to find another DBE to substitute for the original DBE. The substitute DBE must perform at least the same amount of work as the original DBE under the contract to the extent needed to meet or exceed the DBE goal.
F. Commitment and Utilization
27 ANAHEIM’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization.
ANAHEIM shall request CONSULTANT to:
1. Notify ANAHEIM’s contract administrator or designated representative of any changes to its anticipated DBE participation
2. Provide this notification before starting the affected work
3. Maintain records including:
• Name and business address of each 1st-tier subconsultant • Name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier
• Date of payment and total amount paid to each business (see Exhibit 9 -F Monthly Disadvantaged Business Enterprise Payment)
If CONSULTANT is a DBE CONSULTANT, they shall include the date of work performed by their own forces and the corresponding value of the work.
If a DBE is decertified before completing its work, the DBE must notify CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its wor k, the business must notify CONSULTANT in writing of the certification date. CONSULTANT shall submit the notifications to ANAHEIM. On work completion, CONSULTANT shall complete a Disadvantaged Business Enterprises (DBE) Certification Status Change, Exhibit 17-O, form and submit the form to ANAHEIM within 30 days of contract acceptance.
Upon work completion, CONSULTANT shall complete Exhibit 17-F Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and submit it to ANAHEIM within 90 days of contract acceptance. ANAHEIM will withhold $10,000 until the form is submitted. ANAHEIM will release the withhold upon submission of the completed form.
In ANAHEIM’s reports of DBE participation to Caltrans, ANAHEIM must display both commitments and attainments.
G. A DBE is only eligible to be counted toward the AGREEMENT goal if it performs a commercially useful function (CUF) on the AGREEMENT. CUF must be evaluated on an agreement by agreement basis. A DBE performs a Commerc ially Useful Function (CUF) 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 CUF, 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
28 for the material itself. To determine whether a DBE is performing a CUF, 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.
H. A DBE does not perform a CUF if its ro le 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 transac tions, particularly those in which DBEs do not participate.
I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of t he 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 CUF.
J. CONSULTANT shall maintain records of materials purchased 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 DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
If a DBE subconsultant is decertified during the life of the AGREEMENT, the decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the AGREEMENT, the subconsultant shall notify CONSULTANT in writing with the date of certification. Any c hanges should be reported to ANAHEIM’s Contract Administrator within thirty (30) calendar days.
L. After submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consu ltant shall complete and email the Exhibit 9 - F: Disadvantaged Business Enterprise Running Tally of Payments to [email protected] with a copy to the Agency.
M. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.
46. CONTINGENT FEE
CONSULTANT warrants, by execution of this contract that no person or selling agency has been employed, or retained, to solicit or secure this contract upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by CONSULTANT for the purpose of securing business. For breach or violation of this warranty, ANAHEIM has the right to annul this contract without liability; pay only for the value of the work
29 actually performed, or in its discretion to deduct from the contract price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
47. DISPUTES
47.1 Any dispute, other than audit, concerning a question of fact arising under this contract that is not disposed of by agreement shall be decided by a committee consisting of ANAHEIM's Contract Administrator and Director of Public Works, who may consider written or verbal information submitted by CONSULTANT.
47.2 Not later than 30 days after completion of all deliverables necessary to complete the plans, specifications and estimate, CONSULTANT may request review by ANAHEIM Director of Public Works, of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
48. SAFETY
48.1 CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions issued by ANAHEIM Safety Officer and other ANAHEIM representatives. CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site.
48.2 Pursuant to the authority contained in Section 591 of the Vehicle Code, ANAHEIM has determined that such areas are within the limits of the project and 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.
48.3 Any subcontract entered into as a result of this contract, shall contain all of the provisions of this Article.
49. CLAIMS FILED BY CONSTRUCTION CONTRACTOR
49.1 If claims are filed by ANAHEIM's construction contractor relating to work performed by CONSULTANT’s personnel, and additional information or assistance from CONSULTANT’s personnel is required in order to evaluate or defend against such claims; CONSULTANT agre es to make its personnel available for consultation with ANAHEIM's construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
49.2. CONSULTANT’s personnel that ANAHEIM consi ders essential to assist in defending against construction contractor claims will be made available on reasonable notice from ANAHEIM. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for CONSULTANT’s personnel services under this contract.
30 49.3 Services of CONSULTANT’s personnel in connection with ANAHEIM's construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of thi s contract in order to resolve the construction claims.
50. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code Section 10296, CONSULTANT hereby states 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.
51. EVALUATION OF CONSULTANT
CONSULTANT’s performance will be evaluated by ANAHEIM. A copy of the evaluation will be sent to CONSULTANT for comments. The evaluation together with the comments shall be retained as part of the contract record.
52. RETENTION OF FUNDS
52.1 Any subcontract entered into as a result of this Contract shall contain all of the provisions of this section.
52.2. ANAHEIM may hold retainage from CONSULANTS and shall make prompt and regular incremental acceptances of portions, as determined by ANAHEIM, of the contract work, and pay retainage to CONSULTANT based on these acceptances. ANAHEIM shall designate one of the methods below in the contract to ensure prompt and full payment of any retainage kept by CONSULTANT or subconsultant to a subconsultant. (Choose either Method 1, Method 2, or Method 3 below and delete the other two.)
No retainage will be held by ANAHEIM from progress payments due to CONSULTANT. CONSULTANTS and subconsultants are prohibited fr om holding retainage from subconsultants. Any delay or postponement of payment may take place only for good cause and with ANAHEIM’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the pe nalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non-DBE subconsultants.
53. INSPECTION OF WORK
CONSULTANT and any subconsultant shall permit ANAHEIM, the state, and the FHWA if federal participating funds are used in this contract; to review and inspect the project activities and files at all reasonable times during the performance period of this contract including review and inspection on a daily basis.
31 54. PROMPT PAYMENT FROM ANAHEIM TO CONSULTANT
ANAHEIM shall make any progress payment within 30 days after receipt of an undisputed and properly submitted payment request from CONSULTANT on a professional service contract. If ANAHEIM fails to pay promptly, ANAHEIM shall pay interest to the contractor, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied. Upon receipt of a payment request, ANAHEIM shall act in accordance with both of the following:
(1) Each payment request shall be reviewed by ANAHEIM as soon as practicable after receipt for the purpose of determining that the payment request is a proper payment request. (2) Any payment request determined not to be a proper payment request suitable for payment shall be returned to CONSULTANT as soon as practicable, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall be accompanied by a document setting forth in writing the reasons why the payment request is not proper.
55. EFFECTIVE DATE
This Agreement shall be effective on the date on which this Agreement is executed by ANAHEIM ("Effective Date").
[SIGNATURES ON FOLLOWING PAGE]
1 EXHIBIT A
STARTS AFTER THIS PAGE
PROPOSAL
CITYWIDE SAFE ROUTES
TO SCHOOL SIDEWALK
GAP CLOSURE PROJECT
CITY OF ANAHEIM
JULY 29, 2022
REVISED
SECTION 1
Statement of
Qualifications
1 2141 W. Orangewood Avenue, Orange, CA 92868
T: (714) 573-0317 | F: (714) 573-9534 | www.koacorp.com
MONTEREY PARK ORANGE ONTARIO SAN DIEGO LA QUINTA CULVER CITY USA
NOV 2021-NOV 2022
Dear Ms. Hajimomen:
KOA Corporation appreciates the opportunity to submit a proposal to provide Civil Engineering Design Services for the Citywide Safe Route to Schools Sidewalk Gap Closure Project. Our team has substantial experience with the design of Southern California sidewalk improvement projects. As reflected in our proposal, the KOA team understands the issues that will be important on this project. KOA has assembled a highly qualified team which has reviewed the RFP, studied the project site, and recommended a thorough approach, including several additional services.
These ideas are further elaborated in the Understanding of Need and Scope of Services sections of our proposal.
Amongst our other related experience, note that KOA has completed the design of over 20 Safe Route to School design projects, including several for the City.
OUR PROJECT MANAGER AND POINT OF CONTACT
KOA’s civil engineering design team is led by Matt Stepien, PE, Senior Project Manager. He will be the primary point of contact and will manage the contracted work. Matt brings more than 30 years of experience with significant sidewalk design experience and has been designing roadway projects for Anaheim for over 25 years. As a handicapped engineer, he takes ADA-compliance seriously. Additionally, he has built a strong reputation for creating value for cities by always looking for ways to reduce construction costs and providing designs that are focused on providing practical solutions.
UNDERSTANDING OF ISSUES
One of KOA’s discriminating factors is our desire to understand the project issues at the proposal level, so that we can provide the most appropriate personnel and level of effort. This helps eliminate or minimize surprises during the design process. For this specific proposal, our effort has included the following:
• Review of AP maps from the County
• Significant field review of existing conditions and constraints • Discussions amongst the team regarding proposed sidewalks and development impacts
• Discussions amongst the team regarding alternative sidewalk layouts on Santa Ana Canyon, including clear recovery zone criteria and safety issues
DATE
July 29, 2022
TO
Ms. Megan Hajimomen
Associate Civil Engineer
City of Anaheim
Public Works Department
200 S. Anaheim Blvd;
MS #276
Anaheim, CA 92807
FROM AUTHORIZED
PRINCIPAL
Ms. Min Zhou
CEO/President
(323) 260-4703
[email protected]
PROPOSED
PROJECT MANAGER
Mr. Matt Stepien
Project Manager
T (949) 370-3164
[email protected]
RFP
Citywide Safe Routes
to School Sidewalk
Gap Closure Project:
Engineering Services
Federally Funded Project
– Active Transportation
Programs (Cycle 4)
BUSINESS ENTITY
California S Corporation
2141 W Orangewood Ave
Orange, CA 92868
SECTION 1 | STATEMENT OF QUALIFICATIONS | 1A. COVER LETTER 2 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) 2141 W. Orangewood Avenue, Orange, CA 92868
T: (714) 573-0317 | F: (714) 573-9534 | www.koacorp.com
MONTEREY PARK ORANGE ONTARIO SAN DIEGO LA QUINTA CULVER CITY Based on our field and data reviews, we have identified the following observations:
• Existing ponded water along the existing AC curb should be eliminated. • Ensure that private runoff drains to the street and that no on-site sumps are created. • A significant amount of landscaping and trees will be impacted. • There will be significant impacts to existing utilities. • Due to existing slopes, retaining curbs and/or significant regrading will be required. • Several private signs and associated lighting will be impacted. • Several drainage culverts and headwalls will be impacted. • Clear recovery zone will be a major safety issue.
It will be important to develop proposed designs for each property (on a case-by-case basis) that can remedy the issues and constraints identified above. For all segments, SAFETY AND ADA-COMPLIANCE WILL BE PRIORITY ONE. All utility impacts must be addressed, especially on the La Palma segments and on Santa Ana Canyon, where extensive relocations will be required as identified above. In addition to franchise utilities, this will entail close coordination with the City’s water and electric departments. Through our previous experience with the APUD, KOA staff is well versed with their staff and their requirements. Upon the start of the 50% plans, we will have several meetings with the electric and water departments to determine the necessary requirements associated with the adjustment and relocation of the numerous facilities involved. We will continue this coordination throughout the various submittals.
Realizing that the timing on right-of-way acquisition is impossible to estimate, our schedule includes a strategy to expedite the design for the parcels that will require acquisition.
PROJECT TEAM
The assembled KOA team members have an average of over 20 years of experience in their respective areas of expertise – roadway, striping, drainage, landscaping, survey, and potholing. In addition to their specific industry experience, the KOA team has extensive experience working together on numerous similar roadway projects, including projects for Anaheim. This experience will enable the City to have a quality end product that proceeds on-schedule, is designed within budget at a reasonable cost, and is constructed without problems.
We look forward to serving the City of Anaheim on this important improvement project. Please feel free to contact Matt Stepien at (949) 370-3164 or [email protected] if you have any questions about the specifics of this proposal. We look forward to continuing our long and successful history with the City and hope you find our enclosed proposal comprehensive and responsive to your RFP.
Sincerely,
KOA Corporation
Min Zhou, PE | CEO/President
3 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) 1B. AGREEMENT STATEMENT
No changes to the agreement are required by KOA.
REVISED
4 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4)
FIRM BACKGROUND
Founded in 1987, KOA is a leading provider in civil engineering, traffic engineering, transportation planning, and construction management services for public agencies and private sector clients. We offer our clients technical knowledge, innovative solutions and responsive services.
The hallmark of our success is our dedication to each and every project and our desire to leave a legacy of extraordinary contributions to our communities. Our staff includes certified transportation planners, registered civil and traffic engineers, project/construction managers, and construction inspectors. With six offices located in Southern California, KOA has provided engineering services for some of the largest public works and transportation planning projects throughout California.
SUBCONSULTANTS
The KOA team includes the following subconsultants, all recognized as leaders in the industry, with current relevant experience on similar sidewalk improvement projects in Southern California. KOA has worked with all of these firms on several projects, and will therefore be able to provide a seamless work product to the City.
CL Surveying &
Mapping
Survey & Right-of-
Way
CL Surveying & Mapping is a Certified DBE,
MBE and SBE Land Surveying Firm with 3
licensed Professional Land Surveyors. Their
Principals are all experienced, licensed land
surveyors; they are signatory to the labor
agreement with the Operating Engineers Local
12, allowing them to access a large pool of
experienced surveyors to staff any size project.
Boudreau Pipeline
Corporation (BPC)
Potholing
BPC is a SUE provider and subsurface utility
engineering company specializing in wet utility
contracting, BPC truly understands the value
of gathering good underground utility data prior
to construction. BPC strives to increase safety
and reduce economic loss in all aspects of
project planning and the construction phase.
Cornerstone
Studios, Inc. (CSI)
Landscape &
Irrigation
CSI specializes in landscape architecture, park
planning, urban design, and resource analysis.
It is a Minority, Disadvantaged, Underutilized,
Small, and Community Business Enterprise
(MBE, DBE, UDBE, SBE, CBE) certified
by various public agencies. CSI’s projects
emphasize outdoor improvements that include
transportation facilities and streetscapes,
among other types of facilities.
TYPES OF SERVICES
Civil Engineering
Traffic Engineering
Transportation Planning
Active Transportation
Highway & Transportation
Design
Program Management
Construction Management
LOCATION OF OFFICES &
FIRM SIZE
Monterey Park | Orange
Ontario | San Diego
La Quinta | Culver City
105 Employees
PROJECT MANAGER/
PRINCIPAL AGENT
Matt Stepien, PE
Senior Engineer
(949) 370-3164
[email protected]
ASSOCIATE-IN-CHARGE
Manuel Barrios, PE
Senior Associate Engineer
(714) 923-6272
[email protected]
DIR REGISTRATION
1000018374
YEAR FOUNDED
1987
PROJECT OFFICE
LOCATION
2141 W Orangewood Ave
Orange, CA 92868
Tel: (714) 573-0317
1C. FIRM AND TEAM EXPERIENCE
5 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) 1C. FIRM AND TEAM EXPERIENCE
ORGANIZATION CHART
A breakdown of our proposed staff is presented in the organization chart below.
PRINCIPAL-AGENT
PROJECT MANAGER
TRAFFIC ENGINEERING
UTILITIES
PROJECT ENGINEERING DRAINAGE
Anastasia Sanchez, PE (25%) Jose Luis Hernandez (40%)Matt Stepien (30%)Manuel Barrios, PE (40%) Matt Stepien, PE (30%)
Min Zhou, PE (20%)
KOA
CL Surveying & Mapping
BPC
CSI
LEGEND:
QA/QC MANAGER
Chuck Stephan, PE (25%)
SURVEY & R/W
POTHOLING
LANDSCAPE & IRRIGATION
Lam Le, PLS (45%) Jim Mihld (15%) Jeff Kim, PLA, ASLA (35%) ##% Percent Available
6 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) 1C. FIRM AND TEAM EXPERIENCE
RECORD OF SUCCESS ON WORK PREVIOUSLY
PERFORMED
PROJECT MANAGER, MATT STEPIEN, PE AND THE KOA TEAM
The City’s primary point of contact and the KOA Team Project Manager is Matt Stepien, PE. Matt and the KOA Team have extensive experience with preparing ADA-compliant sidewalk projects and roadway improvements for Southern California cities, including Long Beach, Anaheim, Laguna Beach, Santa Monica, Downey and Burbank, as well as the County of Los Angeles. Since the late-1990s, Matt has led significant design engineering efforts for the Citiy of Anaheim in particular. In conjunction with these assignments, he has served as project manager for more than four miles of roadway projects for the City of Anaheim.
KOA’S TEAM DEMONSTRATED RECORD OF SUCCESS
Specific roadway rehabilitation experience where Matt served as Project Manager/Engineer includes:
• Firestone Boulevard Improvements (Downey)
• Florence Avenue Rehabilitation (Santa Fe Springs)
• Temple Hills Sidewalk (Laguna Beach)
• Broadway Safety Improvements (Laguna Beach))
• Laguna Beach High School Sidewalk (Laguna Beach)
• La Palma / Kraemer Improvements (Anaheim)
• Old River School Ped Improvements (Downey)
• Citywide Sidewalk Evaluation (Santa Fe Springs)
• Los Coyotes Diagonal Rehabilitation (Long Beach)
• Richmond Street Ped and Roadway (El Segundo)
• Main Street Improvements (Orange)
• Adams/Pinecreek Improvements (Costa Mesa)
• Carson Street Rehabilitation (Long Beach)
• 18th Street Rehabilitation (Costa Mesa)
• Citywide Pavement Rehabilitation (Covina for County of Los Angeles)
• Workman Mill Road improvements (County of Los Angeles) • La Palma / Tustin Improvements (Anaheim)
• Atlantic/PCH Intersection Improvements, City of Long Beach • Atlantic Avenue Rehabilitation – City of Long Beach
RESUMES
Resumes of the proposed key staff, including the Project Manager and Associate-In-Charge begin on the following page.
7 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) 1C. FIRM AND TEAM EXPERIENCE | RESUMES
MIN ZHOU, PE
PRINCIPAL AGENT | PRINCIPAL
Min Zhou has 30 years of transportation engineering and planning experience with both private consulting firms and the public sector. Prior to her current position as CEO/President, Min was the leading force in promoting active transportation modes for KOA’s practice. She has managed several large-scale projects involving multiple stakeholder groups and has a reputation of delivering projects on-time and under budget.
RELEVANT EXPERIENCE
• City of Long Beach, Orange Avenue Bikeway Complete Streets Improvements
• City of Upland, Arrow Highway Pavement Rehabilitation and Utility Improvements
• City of Lake Elsinore, HSIP Cycle 9
• City of Long Beach, Multiple Traffic Signal Synchronization Projects
• City of Los Angeles, ATP Cycle 4 Grant Applications
• City of Moreno Valley, Aqueduct Multi-Use Trail System ATP Grant Funding
EDUCATION
MS, Civil Engineering,
Michigan State University, East
Lansing, MI
MURP, School of Architecture,
Tsinghua University, Beijing,
China
BS, Urban Planning, School of
Architecture, Tongji University,
Shanghai, China
REGISTRATIONS/
CERTIFICATIONS
Professional Engineer (PE),
Civil, CA #66448
MATT STEPIEN, PE
PROJECT MANAGER | SENIOR ENGINEER
Matt Stepien has over 30 years of experience working on civil engineering projects, almost exclusively focused on public works infrastructue projects for local municipalities. He has had significant roles providing management, coordination and detailed design, and as verifiable by contacting our references, Matt has established a strong and consistent reputation for providing design documents that are thorough and complete. Matt provides a quality end-product that proceeds on a predictable schedule, is designed within budget and does not have problems during construction.
RELEVANT EXPERIENCE
• SBCTA Metrolink ATP Phase II
• City of Downey Safe Routes To School and PS&E
• City of Long Beach The Market Street Pedestrian and Streetscape Enhancements
• City of Santa Fe Springs Citywide Sidewalk Evaluation and Analyses
• City of Laguna Beach High Sidewalk Improvements
• City of Laguna Beach Temple Hills Drive Sidewalk
• City of Manhattan Beach Second Street Sidewalk Improvements
EDUCATION
BS,Civil Engineering, California
State Polytechnic University,
Pomona
REGISTRATIONS/
CERTIFICATIONS
Professional Engineer (PE),
Civil, CA #35500
8 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) 1C. FIRM AND TEAM EXPERIENCE | RESUMES
MANUEL BARRIOS, PE
PROJECT ENGINEER | SENIOR ASSOCIATE ENGINEER
KOA
Serving as a lead engineer, Manuel Barrios has worked on a variety of public agency projects involving roadway design and plan preparation and a wide range of public works, capital improvement projects for various cities throughout Los Angeles and Orange Counties. Manuel has extensive experience and knowledge of Orange County and Los Angeles County Public Works Standard Plans as well as Greenbook Standard Specifications for Public Works Construction. Manuel has a consistent track record of successful project completion well within time and budget constraints.
RELEVANT EXPERIENCE
• City of Long Beach Citywide Curb Ramps
• City of Long Beach Market Street Pedestrian Project
• City of Santa Monica Safe Routes to Schools (SRTS) Pedestrian Improvements
• City of Laguna Beach Temple Hills Drive Sidewalk
• City of El Segundo Richmond Street Pedestrian and Road Improvements
• City of Costa Mesa Adams Pinecreek Intersection Improvements • City of Costa Mesa Newport Boulevard Complete Streets
EDUCATION
BS, Civil Engineering,
University of California, Irvine
REGISTRATIONS/
CERTIFICATIONS
Professional Engineer (PE),
Civil, CA #92491
CHUCK STEPHAN, PE
QA/QC MANAGER | PRINCIPAL
KOA
Chuck Stephan has 40 years of experience in civil engineering design and project management on projects for many municipalities and private firms.
He has diverse project experience in the planning, design, management, and construction of transportation, educational, institutional, municipal, and other projects. Chuck works in multiple capacities as Principal- In-Charge, project manager, project engineer, lead engineer, design engineer, and construction engineer in both the civil and construction management disciplines. He specializes in project management, civil engineering design, and construction management for municipal Capital Improvement Projects, including pavement design and rehabilitation; ADA improvements; water pipelines; storm drain and sanitary sewers; medians and landscaping; parking lots; site improvements; plan checking; NPDES requirements. He manages various local, state, and federal-aid projects.
RELEVANT EXPERIENCE
• City of El Segundo El Segundo W. Mariposa Ave and W. Pine Ave Sidewalk Construction, PW 21-07
• City of Placentia ADA Ramp Improvement
• City of San Fernando Construction Management & Inspections Glenoaks Blvd.
EDUCATION
BS, Agricultural Engineering,
California Polytechnic State
University, San Luis Obispo
REGISTRATIONS/
CERTIFICATIONS
Professional Engineer (PE), CA
Civil, CA #50481
9 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) 1C. FIRM AND TEAM EXPERIENCE | RESUMES
JOSE LUIS HERNANDEZ
UTILITIES COORDINATOR | ASSOCIATE ENGINEER
KOA
Jose Luis Hernandez is an Associate Engineer at KOA. He prepares plans, specifications and estimates for projects of various sizes. He has performed engineering site design including grading, stormwater management, water distribution and sanitary sewer plans. Jose utilizes his AutoCAD skills to revise and update drawings for various projects.
RELEVANT EXPERIENCE
• City of Menifee McCall Blvd. Widening Project
• City of Menifee Menifee Rd Improvement Design Services • City of Costa Mesa Adams Ave & Pinecreek Dr Intersection • City of Costa Mesa Newport Blvd Rd Frontage Rehab
• City of Placentia 21/22 Road Rehabilitation
• City of Downey Cherokee/Brookshire CIP 21-07 Roundabout Implementation Project
• SBCTA Metrolink ATP Phase II
• City of Long Beach Wardlow Pavement Rehab
• City of Long Beach 4th St Pavement Rehab
• City of Long Beach Temple Ave Pavement Rehab
EDUCATION
BS, Civil Engineering,
California State University,
Fullerton
ANASTASIA SANCHEZ, PE
TRAFFIC ENGINEER | SENIOR ASSOCIATE ENGINEER
KOA
Anastasia Sanchez’s expertise includes the preparation, design and management of PS&E for public works projects. She has successfully completed multiple projects from concept to construction for agencies throughout Southern California. She has experience in street improvement design, traffic signal design, street lighting, signing & striping and traffic control design. In early 2021, Ana returned to KOA from the City of Anaheim as a project manager there. In this capacity she managed the traffic engineering CIP projects, prepared traffic calming (neighborhood) plans, reviewed traffic control plans, prepared grant applications, completed permit reviews and issuance, amongst many other duties. She is also familiar with preparing presentations, presenting to stakeholders, and the politics, policies and procedures of public agencies.
RELEVANT EXPERIENCE
• City of Pico Rivera Traffic Safety Improvement Citywide, CIP No. 21305, Federal Project No. HSIPL-5351 (030)
• City of Placentia FY 2020/2021Citywide Street Rehabilitation • City of Carson Bike Lanes PS&E
• City of Santa Monica Stewart & Pennsylvania Improvement Project • SBCTA Metrolink ATP Phase II
EDUCATION
BS, Civil Engineering,
University of California, Irvine
REGISTRATIONS/
CERTIFICATIONS
Professional Engineer (PE),
Civil, CA #86541
10 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) 1C. FIRM AND TEAM EXPERIENCE | RESUMES
LAM LE, PLS
PROJECT SURVEYOR | PRESIDENT
Subconsultant - CL Surveying and Mapping, Inc.
Lam Le has more than 20 years of experience as a project manager, project surveyor and CADD operator. He is familiar with various programs associated with CAD. Lam has experience in creating DTMs for earthwork quantities, road profiling, and creating coordinate geometry figures for boundary analysis. Lam has provided multiple legal descriptions for easements, lot line adjustments and property descriptions and has done extensive title analysis for property establishment and ALTA Surveys.
RELEVANT EXPERIENCE
• City of Costa Mesa Newport Boulevard Widening Improvements • City of Santa Ana 4th and Main Topographic Survey
• City of Fullerton Valencia Drive and Basque Area Reconstruction
EDUCATION
Aerospace Engineering,
California State Polytechnic
University Pomona
REGISTRATIONS/
CERTIFICATIONS
Professional Land Surveyor, #
8231
JIM MIHLD
POTHOLING LEAD | SR. PROJECT MANAGER
Subconsultant - Boudreau
Jim Mihld has 34 years of experience in underground utility location.
Mr. Mihld provides project management and estimates for subsurface utility engineering projects for Boudreau Pipeline Corporation. During his career he has served as Gas Technician, Vac Rig Foreman, General Foreman, and Field Superintendent.
RELEVANT EXPERIENCE
• City of Anaheim Lincoln Avenue (East to Evergreen) Improvement/ Widening
• City of Torrance Hawthorne Boulevard and Residential Area Water Main Replacement
• Westgate Buildings 2 and 3 Utility Design
REGISTRATIONS/
CERTIFICATIONS
OSHA’s 19CFR 1910.146
permit required confined space
compliance
JEFF WOO KIM, PLA, ASLA
LANDSCAPE AND IRRIGATION LEAD | PRINCIPAL
Subconsultant - CSI
Jeff W. Kim has over twenty years of experience with Cornerstone Studios. With extensive experience working with numerous government agencies, he excels in projects at the city, county, or federal level and possesses a good understanding of the requirements needed to complete the project.
RELEVANT EXPERIENCE
• City of Inglewood Century Boulevard Streetscape Improvements • OCTA/City of Santa Ana OC Streetcar
• City of Long Beach Daisy Bike Boulevard
• Metro Purple Line 2, Los Angeles
• City of Anaheim Canyon Metrolink Street Improvement Project
EDUCATION
BS, Landscape Architecture,
California Polytechnic
University, Pomona
REGISTRATIONS/
CERTIFICATIONS
Professional Landscape
Architect (PLA), CA #6082
11 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) 1D. UNDERSTANDING OF NEED
KOA understands the City of Anaheim is seeking a
consultant to provide engineering services for the
Citywide SRTS Gap Closure Project on La Palma
Avenue, Frontera Street, and Santa Ana Canyon Road.
FIELD REVIEW OBSERVATIONS AND KEY
ISSUES
FIELD REVIEW
One of KOA’s discriminating factors is our desire
to understand the project issues at the proposal
level. This allows us to provide the most appropriate
personnel and level of effort, so that surprises are
eliminated or minimized during the design process. To
that end, we have identified the following observations:
LA PALMA AVENUE (E/O WHITTIER)
• Ponded water along the existing AC curb should
be eliminated.
• An interfering portion of wooden fence between
two properties needs to be removed.
• Ensure that private runoff drains to street and
there are no on-site sumps created.
FRONTERA STREET
• Although no permanent right-of-way (R/W) will
be required, the existing property owner has
significant encroachment into the public
R/W. The construction of a wall at the back of the
sidewalk will help to minimize impacts to private
property.
• A significant amount of landscaping and trees
will be impacted.
LA PALMA AVENUE (W/O KELLOG)
• There could be significant impacts to existing
utilities (backflow, cabinets, FDCs, vaults, air
vacs, electric MHs, etc.), which will involve
extensive coordination.
• Due to existing slopes on turf, retaining curbs
and/or regrading will be required.
LA PALMA AVENUE (E/O BRASHER)
• There could be significant impacts to existing
utilities (backflow, cabinets, FDCs, vaults, air
vacs, electric MHs, etc.), which will involve
extensive coordination.
• Due to existing slopes on turf, retaining curbs
and/or regrading will be required.
• Several private signs and associated
lighting will be impacted.
SANTA ANA CANYON ROAD
• There are significant existing slopes relatively
close to the edge of the existing bike lane.
• Several drainage culverts and headwalls will
be impacted.
• The clear recovery zone will be a major
safety issue.
KEY ISSUES
SAFETY AND ADA-COMPLIANCE
Safety is the number one priority on this project,
especially along Santa Ana Canyon Road (as further
discussed below). It will be important to provide ADA-
compliant sidewalks, including across driveways and
at curb ramps.
CLEAR RECOVERY ZONE (CRZ)
Clear recovery zone criteria must be met for the
proposed sidewalk on Santa Ana Canyon to keep
pedestrians safe from errant vehicles. Per typical
section J-J shown on the conceptual plans in the RFP,
there is no proposed curb and gutter; the distance from the southerly edge of the bike lane to the proposed
north edge of the sidewalk varies. According to the
Caltrans design manual, the CRZ minimum width is 20
feet from the south edge of the bike lane when there is no curb and gutter. However, the existing terrain gets
steeper the further south you go on the public R/W. In
order to avoid the 20-foot CRZ width and significant
regrading, minimize impacts to the existing trees and
landscaping, and minimize or avoid retaining walls, a
curb and gutter should be considered.
To maintain the proposed sidewalk as it is currently
shown, an elevated sidewalk would be an option,
although lighting for the sidewalk would be minimal,
especially given the slope that would exist north of the sidewalk.
Since there are several possibilities for the horizontal and vertical alignment on Santa Ana Canyon that are
12 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) 1D. UNDERSTANDING OF NEED
affected by the CRZ criteria, as a part of the precise
alignment process, we propose to develop up to
three alternative alignments for review with the City.
The evaluation will include cost-effectiveness, visual
impacts, impacts to existing appurtenances (trees,
utilities – especially drainage structures), visibility and especially safety.
CASE-BY-CASE RESOLUTION OF PRIVATE
PROPERTY IMPACTS
A detailed design is required for each impacted
parcel on a case-by-case basis to account for
drainage, utilities, grading, lighting, sign relocations, walls, landscaping and irrigation modification, and
driveway joins.
UTILITY RELOCATIONS
All utility impacts must be addressed, especially on
the La Palma segments and on Santa Ana Canyon,
where extensive relocations will be required as
identified above. In addition to franchise utilities, this will entail close coordination with the Anaheim Public
Utilities Department (APUD).
Through our previous experience with the APUD,
KOA staff is well versed with their staff and their
requirements. Upon the start of the 50% plans, we will
have several meetings with the electric and water staff to determine the necessary requirements associated
with the adjustment and relocation of the numerous
facilities involved. We will continue this coordination throughout the various submittals.
SCHEDULE INVOLVING R/W ACQUISITION
As has been seen on recent street widening projects
that KOA staff has completed for the City (La Palma/
Tustin Widening, Lincoln East Widening), the timing can vary widely for the right-of-way acquisition process. In order to minimize impacts on the schedule, we are
proposing to expedite the design and review of the
parcels involving R/W acquisition in order to start
the process as soon as possible.
DRAINAGE
We will remedy ponded runoff along the existing AC
curb on La Palma at Whittier, making sure that private
property runoff drains to the street and addresses the
impacts to existing culverts on Santa Ana Canyon,
which will require special attention and details during the design process.
FEDERAL REQUIREMENTS
KOA is one of the leaders in Southern California in
preparing PS&E involving federal funds, in particular
for SRTS projects. Listed below are some of the
projects that we have completed.
Agency Project
City of Anaheim Riverdale & Sunkist SR2S
TES
City of Burbank SRTS Planning and PS&E
City of Coachella
SRTS Cycle 3 - City Project
ST-66
Design for SR2S Cycle 2
City of Desert Hot
Springs
SR2S Cycle 8 Improvements
SR2S State Cycle 9 & Fed
Cycle 2
City of Downey Safe Routes to School
City of Fontana Kathy Binks Elementary SRTS
SRTS Gap Closure
City of Malibu Point Dume SR2S Walkways
City of Rialto SRTS @ Merle Casey
Elementary School
City of San Diego
Engineering &
Capital Projects
Willow Elementary SR2S
Central Elementary SR2S
City of South Gate
SR2S Cycle 8&9 Engineering
Design/Construction
Management
City of Thousand
Oaks SRTS Traffic Calming
City of Thousand
Oaks - PWD SRTS As-Builts
City of Twentynine
Palms
SRTS Infrastructure
Implementation
LADOT SRTS Top 50 Plans
SRTS PS&E
13 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4)
CITY OF DOWNEY SAFE ROUTES TO SCHOOL
AND PS&E
DOWNEY, CA | 07/2019-05/2021
KOA prepared a Safe Routes to School study and engineering plans for five schools located in the southern part of Downey. The project also involved conducting safety education programming at each school. This involved student-oriented safety workshops, parent workshops, and promoting a culture of safety around these schools. KOA conducted engagement, field review, walk audits, and developed safety infrastructure improvements for each school. KOA also developed full construction plans for sidewalk and curb ramp improvements around each school.
CITY OF DOWNEY
Edwin Norris PE
Deputy Director of Public Works
(562) 904-7110
[email protected]
1E. RELEVANT PROJECT EXPERIENCE
CITY OF SANTA MONICA
Joseph SanClemente, PE, AICP
(now with City of Hermosa Beach)
Public Works Director
(310) 318-0214
[email protected]
CITY OF SANTA MONICA PICO BOULEVARD
PEDESTRIAN SAFETY IMPROVEMENT
PROJECT
SANTA MONICA, CA | 07/2019-03/2021
KOA provided civil and traffic engineering design services for improvements at five locations along the corridor. Our work entailed alternatives analysis, public outreach, preparation of PS&E for pedestrian improvements, and construction support. The project included the alternatives and final design of a bikeway linkage along Pico Boulevard between 16th Street and 17th Street. With an already limited right-of-way, we were able to accommodate this with the use of bicycle turning pockets and a protected intersection.
SBCTA
Juan Lizarde
Project Manager
(909) 884-8276
[email protected]
SBCTA METROLINK ATP PHASE II
SAN BERNARDINO COUNTY, CA | 01/2021-IN PROGRESS
KOA is providing professional services for the preparation of plans, studies and reports necessary for development of the Plans, Specifications and Estimate (PS&E) for the Metrolink Active Transportation Program, Phase II at five Metrolink Facilities in San Bernardino County. This project will improve pedestrian and bicycle accessibility at five Metrolink Stations by extending bike trails and lanes, improving sidewalks and crosswalks, providing bike lockers and racks, and adding way-finding signage.
14 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) 1E. RELEVANT PROJECT EXPERIENCE
LADOT
Margot Ocañas
Project Manager
(213) 928-9707
[email protected]
LADOT SAFE ROUTES TO SCHOOL (SRTS)
CHARLES WHITE ELEMENTARY SCHOOL PS&E
LOS ANGELES, CA | 02/2017 - 03/2022
KOA provided engineering services for the City of Los Angeles Department of Transportation (LADOT) Safe Routes To School (SRTS) Project. The engineering services included preparation of plans and quantity estimates for the design of CRALA funded improvements at Charles White Elementary School. Improvements included the City’s first raised crosswalk, as well as curb ramps, curb extensions, and signing and striping along Carondelet Street between 6th Street and Wilshire Boulevard.
LADOT
Margot Ocañas
Project Manager
(213) 928-9707
[email protected]
LADOT SAFE ROUTES TO SCHOOL (SRTS)
ESPERANZA ELEMENTARY SCHOOL PS&E
LOS ANGELES, CA | 03/2017-06/2020
KOA provided engineering services for the City of Los Angeles Department of Transportation (LADOT) Safe Routes to School (SRTS) Project. The engineering services included preparation of plans and quantity estimates for the design of CRALA funded improvements at Esperanza Elementary School. KOA worked with LADOT and Streets LA Design Build section to design several improvements.
Improvements included a two-way to one-way street conversion, safety valet, median improvements, new traffic signal, rectangular rapid flashing beacons, curb ramps, and temporary curb extensions.
CITY OF BURBANK SAFE ROUTES TO SCHOOL
PLANNING AND PS&E
BURBANK, CA | 02/2018-12/2019
KOA provided safe routes to school planning and engineering services for three schools in the City of Burbank. KOA led walk and bicycle audits of the surrounding street conditions and administered travel surveys. KOA conducted school and community outreach to address safety deficiencies. KOA prepared PS&E for the design of safety elements at each school including high visibility crosswalks at 18 intersections), advanced warning school signage and pavement markings, 32 curb ramps, and curb extensions at the intersections of Winona Avenue/Lincoln Street and 6th Street/Cambridge Drive.
CITY OF BURBANK
Roy Choi
Senior Planner
(818) 238-5250
[email protected]
15 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) 1F. QUALITY CONTROL/QUALITY ASSURANCE
QUALITY CONTROL/QUALITY ASSURANCE (QA/QC)
KOA is also committed to generating quality work products and strives to producing error-free plans. We have staff experienced in traffic engineering, and we are particularly strong in producing high quality improvement plans.
A key factor to project success is accountability. KOA’s assigned PM will be accountable to the City to deliver on what is outlined in each proposal. We fully understand this principle, and utilize our internal Quality Assurance and Quality Control (QA/QC) procedure to support our efforts throughout the life of each task order. Our QA/QC involves having deliverables go through a minimum of two stages of internal review before allowing plans to be submitted to an agency for review and approval. The first stage of internal review involves a peer review by an experienced engineer/planner. The second stage of internal review involves another round of reviews by one or more senior-level staff, each individually with over fifteen years of engineering experience. Each reviewer confirms that deliverable reflect the appropriate improvement scope and conform to the approving agency’s design standards and format. The reviewers also verify that all comments have been properly addressed on revisions we prepare. For infrastructure projects, we will perform a constructability review at the 95% PS&E phase, which entails going out to the project site with the plans and having a detailed walkthrough of anticipated construction activities. The goal of this exercise is to view the project from contractors prospective and identify potential construction change orders. We will then make necessary adjustments to the plans to limit any issues during construction.
For design plans, we utilize Bluebeam Revu Software for all QA/QC activities. This software allows for paperless review, simultaneous commenting, cloud based record keeping, and clean response to comments.
We have found this tool to be very helpful and streamline review, response, and submittals.
This QA/QC approach has led to a high level of quality in our engineering plans, and we believe our firm has established a strong reputation with a number of agencies for producing high quality work products. A QA/QC Manager will be assigned to the project and will take the lead to ensure KOA’s QA/QC process is followed and the City is receiving high quality submittals.
1G. PROJECT CONTROLS
Equally important to producing high quality deliverables is maintaining the project budget and schedule. KOA’s project managers conduct weekly internal workload meeting with all staff to discuss project status, deadlines, action items, pending questions, and any other pertinent information to determine if the project is on-track or additional resources are needed. KOA’s project managers are also equipped with Deltek Vision accounting software. This provides real-time project budgets, expenses, reimbursable, hours spent, and reaming funds for each project task. We closely monitor the financial status of the project to make sure we are on budget. These tools allow us to maintain momentum on project and minimize unwarranted delays and contract amendments.
SECTION 2
Scope of Services
& Schedule
16 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) SECTION 2 | SCOPE OF SERVICES & SCHEDULE
SCOPE OF WORK
TASK 1 – PROJECT MANAGEMENT AND
COORDINATION
The project management task is directed at the
organization, planning and control of the project
team. Activities include scheduling and monitoring
the project team, cost control and an active quality
control program. Quality control will be an ongoing
task throughout the duration of the project.
KOA will set up and attend an initial/kickoff meeting
with the City to introduce project team members,
formalize project communication, discuss the project
schedule, review the scope of work, and request
available data, reports, documents, and plans from
the City that are relevant to the Project. An additional purpose of the meeting will be to review the project
criteria and identify pertinent issues and concerns.
KOA’s Project Manager has been managing roadway
and sidewalk projects since the 1990s for the City
of Anaheim. He understands the importance of
communication with the City. KOA’s Project Manager
will communicate regularly with the City’s Project
Manager regarding progress, potential issues and
schedule. Furthermore, KOA will prepare and submit
monthly progress reports to the City.
In addition to coordinating with the City, the KOA
team will coordinate closely with the pertinent utility companies and the City’s Public Utilities Department
regarding relocations.
We have NOT assumed the need for any public
meetings since this project only involves one property
owner.
Regularly scheduled meetings are a key to keeping
projects on schedule, avoiding pitfalls, and keeping
the lines of communication open with the City so
that surprises do not occur during the final stages
of the project. We have assumed attending a kickoff
meeting and monthly status meetings.
TASK 2 – PRELIMINARY DATA ACQUISITION
RECORDS RESEARCH, UTILITIES AND
POTHOLING
A thorough search of the available records will be
conducted to acquire relevant data to assist in the
design of the project. A spreadsheet will be created
to log and track communications with the utility
agencies. The information accumulated will include
as-built drawings, utility information, and horizontal
and vertical control data.
The project team will review the project in the field
and take photographs of potential problem areas or
items that need special attention, focusing on the
existing utilities and private property improvements
that could be impacted. The photographs will be filed
in photo albums with a written description of each
picture. The albums serve as a constant reference
during design and are invaluable when discussing
issues at meetings. As a part of the field review, all
of the existing surface topographical features per the
survey data will be verified. Any discrepancies will be noted and resolved with the surveyors.
Information will be collected from all of the utility
companies and added as a part of the base mapping.
We will obtain a list of utilities within the project area from Underground Service Alert. Coordination with
the utilities will continue throughout the design of the project. A copy of the utility file will be provided to the City. Special attention will be paid to coordinating with the numerous at-grade and above-grade utilities that
will need to be relocated and adjusted to grade, in
particular on La Palma and Santa Ana Canyon.
Coordination with the utilities will continue throughout the design of the project. Utility coordination meetings will be conducted with all affected utilities on the
Project to identify and discuss schedules and
necessary adjustments/relocations.
We have assumed potholing of up to 15 utilities as an
optional task.
REVISED
17 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) SECTION 2 | SCOPE OF SERVICES & SCHEDULE
TASK 3 – SURVEY (SANTA ANA CANYON
ONLY)
The field measurements necessary to re-trace the
centerlines and rights-of-way will be conducted within
the project limits. This effort does not constitute a full and complete boundary survey of the adjacent land
parcels. Survey monuments located and indicated
on the survey shall be limited to existing, centerline
monuments found to be present along the streets and
all associated ties as indicated.
Twenty-scale aerial topographic mapping will be
provided with one-foot contour intervals, for the
length of the street.
A field supplemental topographic survey will be
performed to document existing site topography and
planimetrics. Substantial visible improvements will
be located south of the existing eastbound bike lane
within the street R/W, including utilities, manholes,
valve covers, utility vaults and covers, utility poles, traffic signal poles, cross gutters, local depressions, catch basins, driveway openings, sidewalks, corner
access ramps, fire hydrants, parkway drains, etc.
Visible indications of surface utilities lying within the project limits will be located, as will accurate lid/rim and invert elevations for drainage structures.
TASK 4 – TECHNICAL STUDY REPORTS
DRAINAGE MEMO
KOA will prepare a drainage memo for the various
portions of the project. The purpose of the report is
to quantify any increases in runoff and show that their impact on the existing drainage system is minimal.
A narrative will be included to show compliance
with the Water Quality Management Plan (WQMP)
requirements. A full WQMP is not included as part of
the scope. The Drainage Memo will quantify runoff for
the various locations where existing drainage inlets
are being modified (Santa Ana Canyon), estimated
at 5 locations based on preliminary field findings.
Hydraulic calculations will be included for the new
drainage inlets so that they can be sized properly for
the required storm event.
TASK 5 – PROJECT PRECISE ALIGNMENT
Based on the conceptual plans provided in the RFP,
the proposed sidewalk/roadway improvements will
result in ADA-compliant sidewalk improvements
for the three segments of La Palma, Frontera and
Santa Ana Canyon. A color precise alignment
will be prepared for all five projects, showing the
geometric alignment and typical sections, proposed
improvements, existing and proposed R/W, APNs,
street addresses, and appropriate legend.
Although many of the segments are fairly straight-
forward regarding the horizontal location of the
proposed sidewalk, as shown on the concept plans
in the RFP, alternatives will be developed for certain
segments, especially on Santa Ana Canyon.
The project design will involve the development and
analysis of the ultimate sidewalk/curb alignment
based on the R/W requirements that are most cost-
effective and minimize impacts to the properties.
Exhibits will be prepared, which provides an
evaluation of the following:
• Proposed sidewalk configuration
• Wall/Fence relocation
• Right-of-way/TCE requirements
• Property information (APNs, owners’ names)
The project design will be submitted for City review
and input. KOA will modify the design based on City
input until an alignment is accepted by the City for
final design.
TASK 6 – FINAL PLANS, SPECIFICATIONS AND
ESTIMATE (PS&E)
Plans and cost estimates will be prepared and
submitted to the City for review at the 50%, 90%,
and 100% levels. Special provisions will be prepared
based on the Standard Specifications for Public
Works Construction and the City’s boilerplate,
supplemented with Caltrans specifications. Pertinent
collected utility data and pothole results will also be provided to the City.
18 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) SECTION 2 | SCOPE OF SERVICES & SCHEDULE
Based on feedback from the review and continual
input from the City staff, final construction plans will be prepared.
Final plans, specifications and cost estimates will
be prepared and submitted to the City after all City
comments have been addressed. All deliverables
including the master set of specifications and all
digital files will also be provided to the City.
Cost estimates will be prepared and submitted to the
City for review at the 50%, 90%, and 100% levels.
KOA will provide the City with a CD of our cost
estimate spreadsheet, which can be added to by the
City in preparing a bid summary after the Contractor’s
bids are received. A value engineering analysis will
be conducted for the proposed project to identify
potential cost-saving measures.
ROADWAY AND SIDEWALK
Sidewalk improvement plans (20-scale) will be
prepared using the aerial topographic survey data to
create base sheets. The improvements will be based
on providing the sidewalk alignment as agreed to with
the City during the preliminary design phase.
Plan-view-only plans are assumed for the segments
where the curb and gutter is already in the ultimate
location – La Palma (Brasher and Kellogg segments).
For the La Palma/Whittier segment, Frontera,
and Santa Ana Canyon, plan and profile drawings
are assumed. For each segment, one of the key
issues will be to minimize the impacts to existing
development by attempting to join the existing grades
at the proposed right-of-way line as closely as
possible. Design cross-sections will be critical to the design, including ensuring that all sidewalk, driveways and curb ramps are ADA-compliant. In accordance
with the RFP, we have assumed preparing curb ramp
details. Significant regrading is assumed for most of
Santa Ana Canyon
OFF-SITE IMPROVEMENTS
Although the final alignment is not known at this time, we know off-site improvement reconstruction will be
required, including, but not limited to the following:
• Low height retaining walls/curbs at some of the
properties
• Landscaping and irrigation relocation
• Wall/fence reconstruction (and potentially a new
wall on Frontera)
• Driveway reconstruction
• Sign relocation (several impacted on La Palma/
Brasher segment including the “PRE OWNED”
sign at theCanyon Commerce Center)
• Private lighting relocation
• Potential significant regrading on La Palma and
Santa Ana Canyon
The off-site improvements will be detailed on
separate plans as necessary to properly convey the
intended improvements for construction.
STRIPING AND SIGNING
KOA will prepare striping and signing plan at a scale
of 1”=40’ and will be based on the approved project
design. All existing signs, striping, and pavement
markings will be located in the field and shown on the
plans. Signs in good condition which meet current
CA MUTCD guidelines will be relocated within the
new curb setbacks as applicable. Existing striping
not obliterated by new paving will be called out to be
removed or joined as needed. The plans will contain
all necessary details and notes as preferred by the
City Traffic Engineering division. We have assumed
plans only for Frontera.
DRAINAGE
According to information gathered during the
proposal preparation and field-verified, there are
five existing drainage inlets on Santa Ana Canyon
that will have to be relocated, dependent on the
approved sidewalk alignment. Plans will include
removal of existing facilities, extension of existing
laterals, construction of new curb inlets, or other
inlets as appropriate. Profiles of lateral extensions
will be included. Details of the connections to existing facilities will be included along with details for
drainage inlets and local depressions.
LANDSCAPE AND IRRIGATION
A landscape concept plan will be prepared for
the proposed parkways adjacent to the proposed
19 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) SECTION 2 | SCOPE OF SERVICES & SCHEDULE
sidewalk for the La Palma and Frontera segments
only. Landscape and irrigation for Sana Ana Canyon
is an optional design task. Based on the approved
concept plan, CSI will provide landscape and
irrigation plans. If applicable, proposed trees will
be selected from the City of Anaheim Master Street
Tree Plan list upon available grow space within
the proposed parkways. Property owners will be
responsible for maintaining the parkways (except
for trees). The selection of plant species will comply
with current City water conservation requirements.
Irrigation connections will be addressed with irrigation notes.
The anticipated number of sheets for the project is as
follows:
Plan Description # of Sheets
Title Sheet 1
Typical Sections 1
Drainage and Curb Ramp Details 4
Sidewalk Plan-view only 5
Sidewalk P&P 9
Off-site Improvements (La Palma and
Frontera only) 6
Landscape and Irrigation 10
Traffic Control 0
Signing and Striping (Frontera only) 1
Erosion Control 4
Total Sheets
(Does not include cross-section
sheets used for design purposes or
optional tasks)
41 TASK 7 – RIGHT-OF-WAY
The scope for the R/W work is as follows. It is based
on acquiring three partial takes and the preparation of three temporary construction easements (TCEs):
• Record R/W Calculations: Based on the title
reports as provided by the City, the KOA team
will calculate the record R/W location of the
impacted parcels for use in R/W engineering as
described below.
• Partial Take R/W Acquisition Legal
Descriptions: Prepare legal descriptions and
exhibits for three “partial take” properties for
R/W acquisition and for three TCEs. We have
assumed R/W entry only will be required for all
other parcels.
TASK 8 – 50% DESIGN WORKSHOP
A 50% design workshop will be conducted by
KOA via a PowerPoint presentation to discuss the
project background and scope of work (preliminary
design, alternatives, preferred design, R/W impacts),
technical information (utilities, permitting, operations, traffic), schedule, and construction costs.
TASK 9 – BID PHASE
The KOA team will provide ongoing support as
necessary during the bid/award phase for answering
questions/clarifications from the Contractor and for
any revisions due to unforeseen conditions.
TASK 10 – CONSTRUCTION PHASE
The KOA team will provide ongoing support as
necessary during the construction phase for
answering questions/clarifications.
OPTIONAL SERVICES
ARBORIST
We recommend any existing trees impacted by this
project construction be evaluated by an arborist for
direction and input. If pruning is required, it should be performed under the supervision of the arborist.
WALL DESIGN
The addition of the sidewalk and trail on Santa Ana
Canyon will involve regrading the existing unimproved
area south of the existing roadway. This will result in the proposed back of trail being lower (sometimes
significantly) than existing conditions. Where
regrading will impact existing trees or other features, walls will be constructed at the back of trail. The
proposed walls are anticipated to be block material
and will have to be designed. KOA will prepare the
necessary structural calculations and design details
required.
REVISED
20 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) SECTION 2 | SCOPE OF SERVICES & SCHEDULE
SCHEDULE
Activity Dates
Notice to Proceed 10/03/2022
Records Research 10/03/22 - 10/17/22
Field Surveys/Aerial Topography 10/10/22 – 11/07/22
60% P&E Submittal for sidewalks involving R/W take 10/24/22 90% P&E Submittal for sidewalks involving R/W take 12/05/22 100% P&E Submittal for sidewalks involving R/W take 1/09/23 Precise Alignments 10/31/22 – 12/05/22
60% P&E Submittal 12/05/22 – 2/27/23
City Review 2/27/23 – 3/20/23
90% PS&E Submittal 3/20/23 – 5/22/23
City Review 5/22/23 – 6/12/23
100% PS&E Submittal 6/12/23 – 6/30/23
RESOURCE HOUR ALLOCATION TABLE
Tasks
Staff Subconsultants
M. Stepien
C. Stephan
M. Barrios
A. Sanchez
J. Hernandez
Support Staff
CL Surveying &
Mapping
BPC*
CSI
1. Project Management and Coordination 36
2. Preliminary Data Acquisition 18 30 40 18
3. Survey (Santa Ana Canyon Only) 2 4 80
4. Technical Study Reports 8 1 8 16
5. Project Precise Alignment 12 4 20 32
6. Final Plans, Specifications and Estimate (PS&E) 72 36 152 6 296 24 235
7. Right-of-Way 1 4 46
8. 50% Design Workshop 6 8 4
9. Bid Phase 4 4
10. Construction Phase 4 4 4 8
Meetings 20 20 4
*BPC’s fee structure is not hourly-based, so hours are not provided.
APPENDIX
Required Forms
21 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) EXHIBIT 10-O1 CONSULTANT PROPOSAL DBE COMMITMENT
A Caltrans DBE Commitment form is included subsequently.
EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES
A Caltrans Disclosure of Lobbying Activities is included subsequently.
CONFLICT OF INTEREST FORM FOR CONSULTANTS
A Conflict of Interest Form is included subsequently.
DESIGNATION OF SUB-CONTRACTORS
A Designation of Sub-Contractors Form is included subsequently.
APPENDIX | REQUIRED FORMS
22 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) APPENDIX | REQUIRED FORMS
23 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) APPENDIX | REQUIRED FORMS
24 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) APPENDIX | REQUIRED FORMS
25 CITY OF ANAHEIM
CITYWIDE SAFE ROUTES TO SCHOOL SIDEWALK GAP CLOSURE PROJECT: ENGINEERING SERVICES FEDERALLY FUNDED PROJECT – ACTIVE TRANSPORTATION PROGRAMS (CYCLE 4) APPENDIX | REQUIRED FORMS
www.koacorp.com
LOS ANGELES | CORPORATE OFFICE
1100 Corporate Center Drive, Suite 201
Monterey Park, CA 91754
(323) 260-4703
ORANGE COUNTY OFFICE
2141 W. Orangewood Avenue
Orange, CA 92868
(714) 573-0317
INLAND EMPIRE OFFICE
3190 Shelby Street, Bldg C.
Ontario, CA 91764
(909) 890-9693
SAN DIEGO OFFICE
5095 Murphy Canyon Road, Suite 330
San Diego, CA 92123
(619) 683-2933
COACHELLA VALLEY OFFICE
78-405 Via Caliente
La Quinta, CA 92253
(760) 694-1716
WESTSIDE OFFICE
300 Corporate Pointe, Suite 470
Culver City, CA 90230
(310) 473-6508
USA
NOV 2021-NOV 2022
MC23063
PROPOSAL
CITYWIDE SAFE ROUTES
TO SCHOOL SIDEWALK
GAP CLOSURE PROJECT
CITY OF ANAHEIM
JU LY 29, 2022
REVISED
CITY OF ANAHEIM
CITYWIDE SRTS SIDEWALK GAP CLOSURE
FEE PROPOSAL
1 Project Management and Coordination I 36 I I $9,917 I II $9,917 2 Records Research, Utilities;Potholing
Records Research 2 4 16 $2,777 $2,777
Field Review 6 16 16 $6,172 $6,172
Uility Coordination and Meetings 8 8 24 $6,222 $6,222
Potholing (15) 2 2 $896 $16,650 2 $17,546
3 Survey 2 4 $1,241 $16,830 1
$18,071
4 Drainage Memo 8 8 16 1 $5,603 $5,603
5 Precise Alignment 12 20 32 4 $11,316 $11,316
6 Final PS&E
Roadway and Sidewalk (16) 24 72 160 28 $43,918 $43,918
Off-site (6) 8 16 36 4 $9,964 $9,964
Signing and Striping (1) 6 12 $2,029 $2,029
Drainage and Erosion Control (8) 24 48 80 2 $24,207 $24,207 Landscape and Irrigation (10) 8 8 $3,584 $19,452 3 $23,036 Specs and Estimate 8 8 20 12 2 $7,456 $7,456
7 Right of Way (3) 1 4 $966 $6,988
1 $7,954
8 50% Design Workshop 6 8 4 $3,473 $3,473
9 Bid Phase 4 4 $1,792 $1,792
10 Construction Phase 4 4 4 8 $3,000 $3,000
11 Meetings 20 20 4 $9,544 $9,544
12 Reimbursables $1,500 $5,600 1 $7,100
1 Cl Survey and Mapping 2 Boudreau (potholing) 3 Cornerstone Studios (landscape & irr
SEE NEXT PAGE FOR
OPTIONAL TASK FEES
PM SE II (civil) SE I (traf) AE II AE I QA / QC
$275 $173 $146 $110 $96 $261
1 Project Management and Coordination $0 $0
2 Records Research, Utilities, Potholing
Records Research $0 $0
Field Review $0 $0
Uility Coordination and Meetings $0 $0
Potholing (15) $0
$16,650 2 $16,650
3 Survey $0 $0
4 Drainage Memo $0 $0
5 Precise Alignment $0 $0
6 Final PS&E
Roadway and Sidewalk (16) $0 $0
Off-site (6) $0 $0
Signing and Striping (1) $0 $0
Retaining Walls 2
4 8 $2,120 $5,400 $7,520
Landscape and Irrigation (10) 8 8 $3,584 $14,112 3 $17,696 Specs and Estimate 4 4 4 $2,232 $2,232
7 Right of Way (3) $0 $0
8 50% Design Workshop $0 $0
9 Bid Phase $0 $0
10 Construction Phase $0 $0
11 Meetings $0 $0
12 Arborist 2 4 $1,500 $3,500 $5,000
Manhour Totals 16 20 0 12 0 0
Fee Totals $4,408 $3,450 $0 $1,319 $0 $0 $10,677 $39,662 $50,339 1 DSC (structural) 2 Boudreau (potholing) 3 Cornerstone Studios (landscape & irrigation) Subconsultants
CITY OF ANAHEIM
CITYWIDE SRTS SIDEWALK GAP CLOSURE (OPTIONAL TASKS)
FEE PROPOSAL (revised)
TASK
KOA
KOA
Subtotal TOTAL
REVISED
1 EXHIBIT B
STARTS AFTER THIS PAGE
1 FHWA-1273 -- Revised July 5, 2022
RE
QUIRED CONTRACT PROVISIONS
FEDERAL-AID CONSTRUCTION CONTRACTS
I.
General
II.
Nondiscrimination
III.
Non-segregated Facilities
IV. Davis-Bacon and Related Act Provisions
V. Contract Work Hours and Safety Standards Act
P
rovisions
VI. S
ubletting or Assigning the Contract
VII. S
afety: Accident Prevention
VIII.
False Statements Concerning Highway Projects
IX. Implementation of Clean Air Act and Federal Water
Pollution Control Act
X.
Certification Regarding Debarment, Suspension,
Inel
igibility and Voluntary Exclusion
XI.
Certification Regarding Use of Contract Funds for
Lobbyi
ng
XII. Us
e of United States-Flag Vessels:
A
TTACHMENTS
A. E
mployment and Materials Preference for Appalachian
Dev
elopment Highway System or Appalachian Local Access
Road Contracts (included in Appalachian contracts only) I. G
ENERAL
1. Form FHWA-1273 must be physically incorporated in each c
onstruction contract funded under title 23, United States Code, as required in 23 CFR 633.102(b) (excluding
em
ergency contracts solely intended for debris removal). The c
ontractor (or subcontractor) must insert this form in each s
ubcontract and further require its inclusion in all lower tier s
ubcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services). 23 CFR 633.102
(e).
T
he applicable requirements of Form FHWA-1273 are
incorporated by reference for work done under any purchase order, rental agreement or agreement for other services. The prime contractor shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider. 23 CFR 633.102(e).
F
orm FHWA-1273 must be included in all Federal-aid design- build contracts, in all subcontracts and in lower tier
subcontracts (excluding subcontracts for design services, purchase orders, rental agreements and other agreements for supplies or services) in accordance with 23 CFR 633.102. The design-builder shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider.
Contr
acting agencies may reference Form FHWA-1273 in
solicitation-for-bids or request-for-proposals documents, however, the Form FHWA-1273 must be physically
incorporated (not referenced) in all contracts, subcontracts and lower-tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services related to a construction contract). 23 CFR 633.102(b).
2. S
ubject to the applicability criteria noted in the following s
ections, these contract provisions shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers under the contractor's immediate superintendence and to all work performed on the contract by piecework, station work, or by subcontract. 23 CFR 633.102(d).
3. A
breach of any of the stipulations contained in these
Requi
red Contract Provisions may be sufficient grounds for
withholding of progress payments, withholding of final
payment, termination of the contract, suspension / debarm ent
or
any other action determined to be appropriate by the
c
ontracting agency and FHWA.
4. S
election of Labor: During the performance of this contract, the c
ontractor shall not use convict labor for any purpose
wi
thin the limits of a construction project on a Federal-aid hi
ghway unless it is labor performed by convicts who are on par
ole, supervised release, or probation. 23 U.S.C. 114(b).
T
he term Federal-aid highway does not include roadways
functionally classified as local roads or rural minor collectors. 23 U.S
.C. 101(a).
II. NO
NDISCRIMINATION (23 CFR 230.107(a); 23 CFR Part
230, S
ubpart A, Appendix A; EO 11246)
T
he provisions of this section related to 23 CFR Part 230, Subpart A, Appendix A are applicable to all Federal-aid construction contracts and to all related construction
subcontracts of $10,000 or more. The provisions of 23 CFR Part 230 are not applicable to material supply, engineering, or architectural service contracts.
In addi
tion, the contractor and all subcontractors must comply with the following policies: Executive Order 11246, 41 CFR Part 60, 29 CFR Parts 1625-1627, 23 U.S.C. 140, Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations including 49 CFR Parts 21, 26, and 27; and 23 CFR Parts 200, 230, and 633.
T
he contractor and all subcontractors must comply with: the requirements of the Equal Opportunity Clause in 41 CFR 60-
1.4(b) and, for all construction contracts exceeding $10,000, the Standard Federal Equal Employment Opportunity
Construction Contract Specifications in 41 CFR 60-4.3.
Note: T
he U.S. Department of Labor has exclusive authority to
determine compliance with Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR Part 60, and 29 CFR Parts 1625-1627. The contracting agency and the FHWA have the authority and the responsibility to ensure compliance with 23 U.S.C. 140, Section 504 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations including 49 CFR Parts 21, 26, and 27; and 23 CFR Parts 200, 230, and 633.
The fol
lowing provision is adopted from 23 CFR Part 230,
Subpart A, Appendix A, with appropriate revisions to conform to the U.S. Department of Labor (US DOL) and FHWA
requirements.
2 1. Equal Employment Opportunity: Equal Employment
Opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (see 28 CFR Part 35, 29 CFR Part 1630, 29 CFR Parts 1625-1627, 41 CFR Part 60 and 49 CFR Part 27) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140, shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this contract. The provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR Part 35 and 29 CFR Part 1630 are incorporated by reference in this contract. In the execution of this contract, the contractor agrees to comply with the following minimum specific requirement activities of EEO:
a. The contractor will work with the contracting agency and the Federal Government to ensure that it has made every good faith effort to provide equal opportunity with respect to all of its terms and conditions of employment and in their review of activities under the contract. 23 CFR 230.409 (g)(4) & (5).
b. The contractor will accept as its operating policy the following statement:
"It is the policy of this Company to assure that applicants are employed, and that employees are treated during
employment, without regard to their race, religion, sex, sexual orientation, gender identity, color, national origin, age or disability. Such action shall include: 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, pre-apprenticeship, and/or on-the-job
training."
2. EEO Officer: The contractor will designate and make known to the contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active EEO program and who must be assigned adequate authority and responsibility to do so.
3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action or are substantially involved in such action, will be made fully cognizant of and will implement the contractor's EEO policy and contractual responsibilities to provide EEO in each grade and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a minimum:
a. Periodic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less often than once every six months, at which time the contractor's EEO policy and its implementation will be
reviewed and explained. The meetings will be conducted by the EEO Officer or other knowledgeable company official.
b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor.
c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the contractor's procedures for locating and hiring minorities and women.
d. Notices and posters setting forth the contractor's EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees.
e. The contractor's EEO policy and the procedures to
implement such policy will be brought to the attention of employees by means of meetings, employee handbooks, or
other appropriate means.
4. Recruitment: When advertising for employees, the
contractor will include in all advertisements for employees the notation: "An Equal Opportunity Employer." All such
advertisements will be placed in publications having a large circulation among minorities and women in the area from which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid
bargaining agreement, conduct systematic and direct
recruitment through public and private employee referral sources likely to yield qualified minorities and women. To meet this requirement, the contractor will identify sources of potential minority group employees and establish with such identified sources procedures whereby minority and women applicants may be referred to the contractor for employment consideration.
b. In the event the contractor has a valid bargaining
agreement providing for exclusive hiring hall referrals, the contractor is expected to observe the provisions of that agreement to the extent that the system meets the contractor's compliance with EEO contract provisions. Where
implementation of such an agreement has the effect of
discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Federal nondiscrimination provisions.
c. The contractor will encourage its present employees to refer minorities and women as applicants for employment.
Information and procedures with regard to referring such applicants will be discussed with employees.
5. Personnel Actions: Wages, working conditions, and
employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, age or disability.
The following procedures shall be followed:
a. The contractor will conduct periodic inspections of project sites to ensure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel.
b. The contractor will periodically evaluate the spread of wages paid within each classification to determine any
evidence of discriminatory wage practices.
c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of discrimination. Where evidence is found, the contractor will promptly take corrective action. If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons.
d. The contractor will promptly investigate all complaints of alleged discrimination made to the contractor in connection with its obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action
3 within a reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of their avenues of appeal.
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and increasing the skills of minorities and women who are
applicants for employment or current employees. Such efforts should be aimed at developing full journey level status employees in the type of trade or job classification involved.
b. Consistent with the contractor's work force requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs (i.e., apprenticeship and on-the-job training programs for the geographical area of contract performance). In the event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special provision. The contracting agency may reserve
training positions for persons who receive welfare assistance in accordance with 23 U.S.C. 140(a).
c. The contractor will advise employees and applicants for employment of available training programs and entrance
requirements for each.
d. The contractor will periodically review the training and promotion potential of employees who are minorities and women and will encourage eligible employees to apply for such training and promotion.
7. Unions: If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use good faith efforts to obtain the cooperation of such unions to increase opportunities for minorities and women. 23 CFR 230.409. Actions by the contractor, either directly or through a contractor's association acting as agent, will include the procedures set forth below:
a. The contractor will use good faith efforts to develop, in cooperation with the unions, joint training programs aimed toward qualifying more minorities and women for membership in the unions and increasing the skills of minorities and women so that they may qualify for higher paying employment.
b. The contractor will use good faith efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability.
c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so certify to the contracting agency and shall set forth what efforts have been made to obtain such information.
d. In the event the union is unable to provide the contractor with a reasonable flow of referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability; making full efforts to obtain qualified and/or qualifiable minorities and women. The failure of a union to provide sufficient referrals (even though it is obligated to provide exclusive referrals under the terms of a collective bargaining agreement) does not relieve the contractor from the
requirements of this paragraph. In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the contracting agency.
8. Reasonable Accommodation for Applicants /
Employees with Disabilities: The contractor must be familiar with the requirements for and comply with the Americans with Disabilities Act and all rules and regulations established thereunder. Employers must provide reasonable
accommodation in all employment activities unless to do so would cause an undue hardship.
9. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not
discriminate on the grounds of race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The
contractor shall take all necessary and reasonable steps to ensure nondiscrimination in the administration of this contract.
a. The contractor shall notify all potential subcontractors, suppliers, and lessors of their EEO obligations under this contract.
b. The contractor will use good faith efforts to ensure subcontractor compliance with their EEO obligations.
10. Assurances Required :
a. The requirements of 49 CFR Part 26 and the State
DOT’s FHWA-approved Disadvantaged Business Enterprise
(DBE) program are incorporated by reference.
b.
The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems
appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non- responsible.
c. The Title VI and nondiscrimination provisions of U.S.
DOT Order 1050.2A at Appendixes A and E are incorporated by reference. 49 CFR Part 21.
11. Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following the date of the final payment to the contractor for all contract work and shall be available at reasonable times and places for inspection by authorized representatives of the contracting agency and the FHWA.
a. The records kept by the contractor shall document the following:
4 (1) The number and work hours of minority and non-
minority group members and women employed in each work
classification on the project;
(2) The progress and efforts being made in cooperation
with unions, when applicable, to increase employment
opportunities for minorities and women; and
(3) The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minorities and women.
b. The contractors and subcontractors will submit an annual report to the contracting agency each July for the duration of the project indicating the number of minority, women, and non- minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391. The staffing data should represent the project work force on board in all or any part of the last payroll period preceding the end of July. If on-the-job training is being required by special provision, the contractor will be required to collect and report training data. The employment data should reflect the work force on board during all or any part of the last payroll period preceding the end of July.
III. NONSEGREGATED FACILITIES
This provision is applicable to all Federal-aid construction contracts and to all related construction subcontracts of more than $10,000. 41 CFR 60-1.5.
As prescribed by 41 CFR 60-1.8, the contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensure that its employees are not assigned to perform their services at any location under the contractor's control where the facilities are segregated. The term "facilities" includes waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, washrooms, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas,
transportation, and housing provided for employees. The contractor shall provide separate or single-user restrooms and necessary dressing or sleeping areas to assure privacy
between sexes.
IV. DAVIS-BACON AND RELATED ACT PROVISIONS
This section is applicable to all Federal-aid construction projects exceeding $2,000 and to all related subcontracts and lower-tier subcontracts (regardless of subcontract size), in accordance with 29 CFR 5.5. The requirements apply to all projects located within the right-of-way of a roadway that is functionally classified as Federal-aid highway. 23 U.S.C. 113.
This excludes roadways functionally classified as local roads or rural minor collectors, which are exempt. 23 U.S.C. 101.
Where applicable law requires that projects be treated as a project on a Federal-aid highway, the provisions of this subpart will apply regardless of the location of the project. Examples include: Surface Transportation Block Grant Program projects funded under 23 U.S.C. 133 [excluding recreational trails projects], the Nationally Significant Freight and Highway Projects funded under 23 U.S.C. 117, and National Highway Freight Program projects funded under 23 U.S.C. 167.
The following provisions are from the U.S. Department of Labor regulations in 29 CFR 5.5 “Contract provisions and related matters” with minor revisions to conform to the FHWA- 1273 format and FHWA program requirements.
1. Minimum wages (29 CFR 5.5)
a. All laborers and mechanics employed or working upon the site of the work, will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the
Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph 1.d. of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period.
Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each
classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed.
The wage determination (including any additional classification and wage rates conformed under paragraph 1.b. of this
section) and the Davis-Bacon poster (WH–1321) shall be
posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.
b. (1) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:
(i) The work to be performed by the classification
requested is not performed by a classification in the wage determination; and
(ii) The classification is utilized in the area by the
construction industry; and
5 (iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.
(2) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their
representatives, and the contracting officer agree on the classification and wage rate (including the amount
designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, U.S.
Department of Labor, Washington, DC 20210. The
Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(3) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount
designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination.
The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(4) The wage rate (including fringe benefits where
appropriate) determined pursuant to paragraphs 1.b.(2) or
1.b.(3) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.
c. Whenever the minimum wage rate prescribed in the
contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
d. If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.
2. Withholding (29 CFR 5.5)
The contracting agency shall upon its own action or upon written request of an authorized representative of the
Department of Labor, withhold or cause to be withheld from the contractor under this contract, or any other Federal contract with the same prime contractor, or any other federally- assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be
considered necessary to pay laborers and mechanics,
including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the contracting agency may, after written notice to the contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.
3. Payrolls and basic records (29 CFR 5.5)
a. Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the
Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis- Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.
b. (1) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the contracting agency. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH–347 is
available for this purpose from the Wage and Hour Division Web site. The prime contractor is responsible for the
submission of copies of payrolls by all subcontractors.
Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the contracting agency for transmission to the State DOT, the FHWA or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the contracting agency. (2) Each payroll submitted shall be accompanied by a
“Statement of Compliance,” signed by the contractor or
6 subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:
(i) That the payroll for the payroll period contains the information required to be provided under 29 CFR
5.5(a)(3)(ii), the appropriate information is being
maintained under 29 CFR 5.5(a)(3)(i), and that such
information is correct and complete;
(ii) That each laborer or mechanic (including each
helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than
permissible deductions as set forth in 29 CFR part 3;
(iii) That each laborer or mechanic has been paid not
less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination
incorporated into the contract.
(3) The weekly submission of a properly executed
certification set forth on the reverse side of Optional Form WH–347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph 3.b.(2) of this section.
(4) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 231.
c. The contractor or subcontractor shall make the records required under paragraph 3.a. of this section available for inspection, copying, or transcription by authorized
representatives of the contracting agency, the State DOT, the FHWA, or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the FHWA may, after written notice to the contractor, the contracting agency or the State DOT, take such action as may be necessary to
cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.
4. Apprentices and trainees (29 CFR 5.5)
a. Apprentices (programs of the USDOL).
Apprentices will be permitted to work at less than the
predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship
program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship
Training, Employer and Labor Services or a State
Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice.
The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the
classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is
performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed.
Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination.
Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the
apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable
classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination.
In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency
recognized by the Office, withdraws approval of an
apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.
b. Trainees (programs of the USDOL).
Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S.
Department of Labor, Employment and Training
Administration.
The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the
Employment and Training Administration.
Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the
Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the
7 corresponding journeyman wage rate on the wage
determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed.
In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed.
In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.
c. Equal employment opportunity. The utilization of
apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity
requirements of Executive Order 11246, as amended, and 29 CFR part 30.
d. Apprentices and Trainees (programs of the U.S. DOT).
Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal-aid highway construction programs are not
subject to the requirements of paragraph 4 of this Section IV. 23 CFR 230.111(e)(2). The straight time hourly wage rates for apprentices and trainees under such programs will be
established by the particular programs. The ratio of
apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program.
5. Compliance with Copeland Act requirements. The
contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract as provided in 29 CFR 5.5.
6. Subcontracts. The contractor or subcontractor shall insert Form FHWA-1273 in any subcontracts and also require the subcontractors to include Form FHWA-1273 in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5.
7. Contract termination: debarment. A breach of the
contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12.
8. Compliance with Davis-Bacon and Related Act
requirements. All rulings and interpretations of the Davis- Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract as provided in 29 CFR 5.5.
9. Disputes concerning labor standards. As provided in 29 CFR 5.5, disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their
representatives.
10. Certification of eligibility (29 CFR 5.5)
a. By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
b. No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). c. The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
V. CONTRACT WORK HOURS AND SAFETY STANDARDS
ACT
Pursuant to 29 CFR 5.5(b), the following clauses apply to any Federal-aid construction contract in an amount in excess of $100,000 and subject to the overtime provisions of the
Contract Work Hours and Safety Standards Act. These
clauses shall be inserted in addition to the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As used in this paragraph, the terms laborers and mechanics include watchmen and guards.
1. Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any
workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. 29 CFR
5.5. 2. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph 1 of this section, the contractor and any
subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and
guards, employed in violation of the clause set forth in paragraph 1 of this section, in the sum currently provided in 29 CFR 5.5(b)(2)* for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph 1 of this section. 29 CFR 5.5.
* $27 as of January 23, 2019 (See 84 FR 213-01, 218) as may be adjusted annually by the Department of Labor; pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990).
8 3. Withholding for unpaid wages and liquidated damages.
The FHWA or the contacting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the
contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be
necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph 2 of this section. 29 CFR 5.5.
4. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs 1 through 4 of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs 1 through 4 of this section. 29 CFR 5.5.
VI. SUBLETTING OR ASSIGNING THE CONTRACT
This provision is applicable to all Federal-aid construction contracts on the National Highway System pursuant to 23 CFR 635.116.
1. The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the contracting agency. Specialty items may be performed by subcontract and the amount of any such
specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635.116).
a. The term “perform work with its own organization” in paragraph 1 of Section VI refers to workers employed or leased by the prime contractor, and equipment owned or
rented by the prime contractor, with or without operators.
Such term does not include employees or equipment of a
subcontractor or lower tier subcontractor, agents of the prime contractor, or any other assignees. The term may include payments for the costs of hiring leased employees from an employee leasing firm meeting all relevant Federal and State regulatory requirements. Leased employees may only be
included in this term if the prime contractor meets all of the following conditions: (based on longstanding interpretation)
(1) the prime contractor maintains control over the
supervision of the day-to-day activities of the leased
employees;
(2) the prime contractor remains responsible for the quality of the work of the leased employees;
(3) the prime contractor retains all power to accept or exclude individual employees from work on the project; and (4) the prime contractor remains ultimately responsible for the payment of predetermined minimum wages, the
submission of payrolls, statements of compliance and all other Federal regulatory requirements.
b. "Specialty Items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid or propose on the contract as a whole and in general are to be limited to minor components of the overall contract. 23 CFR 635.102.
2. Pursuant to 23 CFR 635.116(a), the contract amount upon which the requirements set forth in paragraph (1) of Section VI is computed includes the cost of material and manufactured products which are to be purchased or produced by the
contractor under the contract provisions.
3. Pursuant to 23 CFR 635.116(c), the contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the contracting officer determines is necessary to assure the performance of the contract.
4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the contracting agency has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. (based on long- standing interpretation of 23 CFR 635.116).
5. The 30-percent self-performance requirement of paragraph (1) is not applicable to design-build contracts; however, contracting agencies may establish their own self-performance requirements. 23 CFR 635.116(d).
VII. SAFETY: ACCIDENT PREVENTION
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.
1. In the performance of this contract the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR Part 635).
The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the contracting officer may determine, to be reasonably necessary to protect the life and health of
employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 23 CFR 635.108.
2. It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any
subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR Part 1926) promulgated by the
Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704). 29 CFR 1926.10.
3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance
9 with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704).
VIII. FALSE STATEMENTS CONCERNING HIGHWAY
PROJECTS
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.
In order to assure high quality and durable construction in conformity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppliers, and workers on Federal- aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any
misunderstanding regarding the seriousness of these and similar acts, Form FHWA-1022 shall be posted on each
Federal-aid highway project (23 CFR Part 635) in one or more places where it is readily available to all persons concerned with the project:
18 U.S.C. 1020 reads as follows:
"Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement, false representation, or false report as to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or
Whoever knowingly makes any false statement, false
representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false
representation as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal-aid Roads Act approved July 11, 1916, (39 Stat. 355), as
amended and supplemented;
Shall be fined under this title or imprisoned not more than 5 years or both."
IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
WATER POLLUTION CONTROL ACT (42 U.S.C. 7606; 2
CFR 200.88; EO 11738)
This provision is applicable to all Federal-aid construction contracts in excess of $150,000 and to all related
subcontracts. 48 CFR 2.101; 2 CFR 200.326.
By submission of this bid/proposal or the execution of this contract or subcontract, as appropriate, the bidder, proposer, Federal-aid construction contractor, subcontractor, supplier, or vendor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal Highway Administration and the Regional Office of the Environmental Protection Agency. 2 CFR Part 200, Appendix II.
The contractor agrees to include or cause to be included the requirements of this Section in every subcontract, and further agrees to take such action as the contracting agency may direct as a means of enforcing such requirements. 2 CFR 200.326.
X. CERTIFICATION REGARDING DEBARMENT,
SUSPENSION, INELIGIBILITY AND VOLUNTARY
EXCLUSION
This provision is applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, consultant contracts or any other covered transaction requiring FHWA approval or that is estimated to cost $25,000 or more – as defined in 2 CFR Parts 180 and 1200. 2 CFR 180.220 and 1200.220.
1. Instructions for Certification – First Tier Participants:
a. By signing and submitting this proposal, the prospective first tier participant is providing the certification set out below.
b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective first tier participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective first tier participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. 2 CFR 180.320.
c. The certification in this clause is a material representation of fact upon which reliance was placed when the contracting agency determined to enter into this transaction. If it is later determined that the prospective participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the contracting agency may terminate this transaction for cause of default. 2 CFR 180.325.
d. The prospective first tier participant shall provide immediate written notice to the contracting agency to whom this proposal is submitted if any time the prospective first tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed
circumstances. 2 CFR 180.345 and 180.350.
e. The terms "covered transaction," "debarred,"
"suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180, Subpart I, 180.900-180.1020, and 1200. “First Tier Covered Transactions” refers to any covered transaction between a recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant
10 who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as
subcontractors and suppliers).
f. The prospective first tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred,
suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction. 2 CFR 180.330.
g. The prospective first tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions," provided by the department or contracting agency, entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. 2 CFR 180.220 and 180.300.
h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. 2 CFR 180.300; 180.320, and 180.325. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. 2 CFR 180.335. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website (https://www.sam.gov/). 2 CFR 180.300, 180.320, and 180.325.
i. Nothing contained in the foregoing shall be construed to require the establishment of a system of records in order to render in good faith the certification required by this clause.
The knowledge and information of the prospective participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
j. Except for transactions authorized under paragraph (f) of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. 2 CFR 180.325.
* * * * *
2. Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion – First Tier
Participants:
a. The prospective first tier participant certifies to the best of its knowledge and belief, that it and its principals:
(1) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal
department or agency, 2 CFR 180.335;.
(2) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property, 2 CFR 180.800;
(3) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (a)(2) of this certification, 2 CFR 180.700 and 180.800; and
(4) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. 2 CFR 180.335(d).
(5) Are not a corporation that has been convicted of a felony violation under any Federal law
within the two-year period
preceding this proposal (USDOT Order 4200.6 implementing appropriations act requirements); and
(6) Are not a corporation with any unpaid Federal tax liability that has been assessed, for which all judicial and
administrative remedies have been exhausted, or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability (USDOT Order 4200.6 implementing appropriations act requirements).
b. Where the prospective participant is unable to certify to any of the statements in this certification, such prospective participant should attach an explanation to this proposal. 2 CFR 180.335 and 180.340.
3. Instructions for Certification - Lower Tier Participants:
(Applicable to all subcontracts, purchase orders, and other lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and 1200). 2 CFR 180.220 and 1200.220.
a. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below.
b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous
certification, in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
c. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. 2 CFR 180.365.
d. The terms "covered transaction," "debarred,"
"suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180, Subpart I, 180.900 – 180.1020, and 1200.
You may contact the person to which this proposal is
11 submitted for assistance in obtaining a copy of those regulations. “First Tier Covered Transactions” refers to any covered transaction between a recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).
e. The prospective lower tier participant agrees by
submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this
transaction originated. 2 CFR 1200.220 and 1200.332.
f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. 2 CFR 180.220 and 1200.220.
g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website (https://www.sam.gov/), which is compiled by the General Services Administration. 2 CFR 180.300, 180.320, 180.330, and 180.335.
h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
i. Except for transactions authorized under paragraph e of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 2 CFR 180.325.
* * * * *
Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion--Lower Tier
Participants:
1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals:
(a) is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency, 2 CFR 180.355;
(b) is a corporation that has been convicted of a felony violation under any Federal law within the two-year period preceding this proposal (USDOT Order 4200.6 implementing appropriations act requirements); and
(c) is a corporation with any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted, or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability. (USDOT Order 4200.6 implementing appropriations act
requirements)
2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant should attach an explanation to this proposal.
* * * * *
XI. CERTIFICATION REGARDING USE OF CONTRACT
FUNDS FOR LOBBYING
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts which exceed
$100,000. 49 CFR Part 20, App. A.
1. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for 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 the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or
cooperative agreement.
b. If any funds other than Federal appropriated funds have been paid or will be paid to any person for 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 Federal contract, grant, loan, or
cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
2. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
3. The prospective participant also agrees by submitting its bid or proposal that the participant shall require that the language of this certification be included in all lower tier
12 subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly.
XII. USE OF UNITED STATES-FLAG VESSELS:
This provision is applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, or any other covered transaction. 46 CFR Part 381.
This requirement applies to material or equipment that is acquired for a specific Federal-aid highway project. 46 CFR 381.7. It is not applicable to goods or materials that come into inventories independent of an FHWA funded-contract.
When oceanic shipments (or shipments across the Great
Lakes) are necessary for materials or equipment acquired for a specific Federal-aid construction project, the bidder, proposer, contractor, subcontractor, or vendor agrees:
1. To utilize 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 this contract, to the extent such vessels are available at fair and reasonable rates for United States-flag commercial vessels. 46 CFR 381.7.
2. To furnish within 20 days following the date of loading for shipments originating within the United States or within 30 working days following the date of loading 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 paragraph (b)(1) of this section to both the Contracting Officer (through the prime contractor in the case of subcontractor bills-of-lading) and to the Office of Cargo and Commercial Sealift (MAR-620), Maritime
Administration, Washington, DC 20590. (MARAD requires
copies of the ocean carrier's (master) bills of lading, certified onboard, dated, with rates and charges. These bills of lading may contain business sensitive information and therefore may be submitted directly to MARAD by the Ocean Transportation Intermediary on behalf of the contractor). 46 CFR 381.7.
13 ATTACHMENT A - EMPLOYMENT AND MATERIALS
PREFERENCE FOR APPALACHIAN DEVELOPMENT
HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS
ROAD CONTRACTS (23 CFR 633, Subpart B, Appendix B)
This provision is applicable to all Federal-aid projects funded under the Appalachian Regional Development Act of 1965.
1. During the performance of this contract, the contractor undertaking to do work which is, or reasonably may be, done as on-site work, shall give preference to qualified persons who regularly reside in the labor area as designated by the DOL wherein the contract work is situated, or the subregion, or the Appalachian counties of the State wherein the contract work is situated, except:
a. To the extent that qualified persons regularly residing in the area are not available.
b. For the reasonable needs of the contractor to employ supervisory or specially experienced personnel necessary to assure an efficient execution of the contract work.
c. For the obligation of the contractor to offer employment to present or former employees as the result of a lawful collective bargaining contract, provided that the number of nonresident persons employed under this subparagraph (1c) shall not exceed 20 percent of the total number of employees employed by the contractor on the contract work, except as provided in subparagraph (4) below.
2. The contractor shall place a job order with the State Employment Service indicating (a) the classifications of the laborers, mechanics and other employees required to perform the contract work, (b) the number of employees required in each classification, (c) the date on which the participant estimates such employees will be required, and (d) any other pertinent information required by the State Employment
Service to complete the job order form. The job order may be placed with the State Employment Service in writing or by telephone. If during the course of the contract work, the information submitted by the contractor in the original job order is substantially modified, the participant shall promptly notify the State Employment Service.
3. The contractor shall give full consideration to all qualified job applicants referred to him by the State Employment
Service. The contractor is not required to grant employment to any job applicants who, in his opinion, are not qualified to perform the classification of work required.
4. If, within one week following the placing of a job order by the contractor with the State Employment Service, the State Employment Service is unable to refer any qualified job applicants to the contractor, or less than the number
requested, the State Employment Service will forward a
certificate to the contractor indicating the unavailability of applicants. Such certificate shall be made a part of the contractor's permanent project records. Upon receipt of this certificate, the contractor may employ persons who do not normally reside in the labor area to fill positions covered by the certificate, notwithstanding the provisions of subparagraph (1c) above.
5. The provisions of 23 CFR 633.207(e) allow the
contracting agency to provide a contractual preference for the use of mineral resource materials native to the Appalachian region.
6. The contractor shall include the provisions of Sections 1 through 4 of this Attachment A in every subcontract for work which is, or reasonably may be, done as on-site work.