2 1. SERVICES TO BE PROVIDED BY CONSULTANT
1.1 In compliance 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 CONSULTAN T’s Proposal dated July 29, 2022 (and revised September 19 , 2022), attached hereto as Exhibit “A” and incorporated herein and in the Requ est 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 shal l 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 a greed 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 report 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
3 restricted to, acts o f God or of the public enemy, unusually severe weather, fires, earthquakes, floods, pestilence, and other natural catastrophes, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, civil disturbance or disobedience, sabo tage, 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 ANAHEIM, which by th e 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 Admini strator 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 Sixty-Three Thousand, Fifteen Dollars and 26 /100 Cents ($63,015.26) (“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 sha ll 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 bi lled 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, “Extra 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 Sixty-Nine Thousand, Three Hundred Sixteen Dollars and 79/100 Cents ($69,316.79).
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 o n 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 shall 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 Principles 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 and 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 reimburs e 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 reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved CONSULTANT’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 Roy Guinaldo 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 s ame 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 whatsoever natu re 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 warrants 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 su ch 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 CONSULTANT , 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, servants , 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 becom e 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 applicati on 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 $2,000,000 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 92805, 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' Compensation, 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 behalf 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 fort h 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 the insuranc e 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 contractors/subcont ractor, 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 CONSUL TANT 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 cause to be pr ovided, 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 agains t 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 covered 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 claims, 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, r elative 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 title 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 the co mpletion 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 ANAHEIM'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
13 prior review of the contents thereof by ANAHEIM, and receipt of ANAHEIM’S written permission.
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 from t he 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 matter s 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 accountan ts (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.
14 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 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 re turn 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 professio nal 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 in t his 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 are 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.
15 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.
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 prepai d, 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: Overland, Pacific & Cutler, LLC
Attn: Roy Guinaldo
5000 Airport Plaza Drive, Suite 250
Long Beach, California 90815
Phone: (562) 304-2000
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 con ditions set forth in this Agreement. 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 assignment for the benefit of creditors; (iii) being
16 adjudged bankrupt; (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization or insolvency law (unless in the c ase 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 or seizure of all or a substa ntial portion of CONSULTANT's assets 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 terminate 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 perf orm 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 sha ll pay CONSULTANT the sum due to CONSULTANT 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
17 promise made by either ANAHEIM 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.
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 o f 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 existin g or hereafter enacted 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 this 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 Agreement 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 warrants 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 certified 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 a ssisted 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 under 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, CONS ULTANT and its subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual
19 orientation, or military and veteran status. CONSULTANT and subcons ultants 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 A ct (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 represen tatives 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 source s of information 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 whic h they have 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 performe d 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 th e 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, subrecipient 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, color, 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 shall 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 issued 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 thre atened 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 en ter 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 that is not disposed of by agreement, shall be revie wed 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 ap plicable, 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 authorizati on 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 services.
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 quotat ions 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 maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, ANAHEIM shall receive a proper refund or credit at the conclus ion 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 obtainable at a public or private sale, in accordance w ith 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 th e 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 for 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 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; CONSULTANT shall complete and submit Standard 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 certification is a prerequisite for making or enteri ng 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 req uirements 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 selection and retention of Subconsultants, includin g 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 State of California, that CONSULTANT has complied w ith 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 misconduct 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. Disclosures 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 if the materials or supplies are purchased from a DBE regular dealer.
Only fees, commissions, and charges for assistance in the proc urement 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 accordance 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 effor ts 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 CONSULTANT 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 u nsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the project because of suspension or debarment.
7. Listed DBE becomes bankrupt or insolvent.
8. Listed DBE voluntarily withdraws with written notice from the Contract
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.
11. 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 reasons 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 origina l 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 work, 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 Commercially Useful Function (CUF) when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually perf orming, 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 instal ling (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 role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
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 the work of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a 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 changes 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/consultant 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 employe d, 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 pric e 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 ag reement 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 n ecessary 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 proj ect 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 agrees t o 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 considers 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 this co ntract 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 acce ptances 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 from h olding 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 penalt ies, 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 cont ract. 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]
33 146796
1 EXHIBIT A
STARTS AFTER THIS PAGE
Due: July 29, 2022 by 5:00 PM
Valid: For a minimum of 120 days
overland pacific & cutler, llc
Roy Guinaldo, RWA, RWP
Senior Project Manager
Main : 562.304.2000
Direct : 562.354.2446
E : [email protected]
www.OPCservices.com
OPC Contact:Presented to:
RIGHT-OF-WAY
ACQUISITION
SERVICES
FOR THE CITYWIDE SAFE
ROUTES TO SCHOOL
SIDEWALK GAP
CLOSURE PROJECT IN
THE CITY OF ANAHEIM
City of Anaheim
Public Works Department
200 S. Anaheim Blvd.
MS #276
Anaheim, CA 92805
Megan Hajimomen
Associate Civil Engineer
Technical
Proposal
Revised: September 19, 2022
Enhancing Lives Through Infrastructure
o p c s e r v i c e s . c o m
PAGE IICity of Anaheim Right-of-Way Acquisition Services for Citywide SRTS Sidewalk Gap Closure Project
OPC
Table of Contents
Page Section
1 i. Cover Letter
1 ii. Agreement Statement
A. Statement of Qualifications
2 iii. Firm and Team Experience
5 iv. Understanding of Need
6 v. Relevant Project Experience
7 vi. QA/QC
7 vii. Project Controls
B Scope of Services and Schedule
8 Scope of Services
13 Resource Allocation
14 Resumes
C Fee Proposal (Separate)
D Federal
Requirements
Table of Contents
Enhancing Lives Through Infrastructure
o p c s e r v i c e s . c o m
Statement of
Qualifications
A
SECTION
a. Statement of Qualifications
5000 Airport Plaza Drive, Suite 250, Long Beach, CA 90815 ph 562.304.2000 | fx 562.304.2020 | opcservices.com
September 19, 2022
Megan Hajimomen, Associate Civil Engineer
City of Anaheim Public Works Department
200 S. Anaheim Blvd., MS #276
Anaheim, CA 92805
Re: Right-of-Way Acquisition Services for the Citywide Safe Routes to School Sidewalk Gap Closure Project in the City of Anaheim - Active Transportation Programs (Cycle 4) Dear Ms. Hajimomen:
As part of a citywide Safe Routes to Schools (SRTS) sidewalk gap closure initiative funded through the federal Active Transportation Program Cycle 4 (ATP-4), the City of Anaheim (City) will need to acquire temporary construction easements (TCEs) and permanent easements from an estimated four (4) property owners (Project). To keep construction of sidewalk improvements on track, the City will need a trustworthy right-of-way (R/W) firm that understands the local community and impacts such as access and parking to best present the City’s objectives for timely negotiation and settlement.
Overland, Pacific & Cutler, LLC, (OPC) brings to the City our trusted local knowledge, comprehensive expertise, and proven win-win negotiation approach to working with residential, commercial, and industrial tenants and landowners. Our local team is familiar with the neighborhoods impacted by the Project, and we have carefully reviewed Project issues such as limited parking, existing encroachments, and personal property relocation that may affect the timing of easement acquisition.
For 42 years, OPC has worked on R/W acquisitions on similar street and sidewalk improvement projects for agencies like the City of Anaheim. We are the best choice for the City to keep all aspects of the Project in compliance with Federal funding requirements and Caltrans guidelines. Our depth of local knowledge and technical expertise gained from on similar projects sets our team apart.
Entity name: Overland, Pacific & Cutler, LLC
Address: 5000 Airport Plaza Drive, Suite 250, Long Beach, CA 90815 Telephone: 562.304.2000
Email address: [email protected]
Type of business entity: Limited Liability Corporation
Agreement Statement: In preparing this proposal, OPC has reviewed the sample agreement included in Appendix 4 of the Request for Proposal (RFP). OPC is prepared to agree with any and all provisions as contained in the sample agreement. OPC has also reviewed the RFP in detail along with all questions and responses related to the RFP on PlanetBids. No addenda have been received.
This proposal is signed by an authorized representative of OPC who can make legally binding commitments for the entity. This proposal is a binding offer to contract with the City according to the requirements of the RFP and is valid for a minimum of 120 days from the proposal due date.
The entire OPC team looks forward to working with the City again. We are committed to successfully providing the City with R/W excellence. Mr. Roy Guinaldo, RWA, RWP and will act as the primary contacts for the City. He can be reached at the address above, via telephone directly at 562.354.2446, or via email at [email protected].
Sincerely,
Brian Everett
Chief Executive Officer
OPC
Cover Letter &
Agreement Statement
Enhancing Lives Through Infrastructure
o p c s e r v i c e s . c o m
PAGE 2City of Anaheim Right-of-Way Acquisition Services for Citywide SRTS Sidewalk Gap Closure Project
OPC
Firm & Team
Experience
Since starting in Southern California in 1980,
Overland, Pacific & Cutler, LLC (OPC) has
had an exclusive focus on right-of-way (R/W)
consultant services for public agencies. As
a turnkey R/W services company, OPC has the
full ability to perform all of the specific tasks
outlined in the RFP. All services are performed in
accordance with the regulations and standards of
the County and the Uniform Relocation Assistance
and Real Property Acquisition Policies Act of
1970, as amended (URA or Uniform Act), along
with the URA regulations that became effective in
February 2005. OPC’s DIR registration number is
1000004746.
OPC’s comprehensive business lines include:
Demonstrated Record of Success : With 42 years serving the right-of-way needs of Southern California government agencies, OPC is proud to have worked with the City and numerous Orange County municipal clients on similar acquisition projects. a. Statement of Qualifications
100+
QUALIFIED STAFF
42 TURNKEY
REAL ESTATE
SERVICES
YEARS
OF EXCELLENCE
30%
BILINGUAL STAFF
LOCATED
in STATES
10 5
MORE THAN
10,000
completed
projects
60,000
RELOCATIONS
ACQUISITION OF
parcels
AUDIT
FINDINGS
50,000
+
+
-0-
¡Hola!
Community Equity
Utility Coordination
Staff Augmentation
Market Analysis
Appraisal
SPECIALTY
Services
OFFICES
Property
Management
Brokerage
Services
Staff
Augmentation
Feasibility &
Cost Studies
Title Research
Valuation
Acquisition
Relocation
Utility
Coordination
• City of Anaheim
• City of Buena Park
• City of Garden Grove
• City of Irvine
• City of La Habra
• City of Laguna Beach
• City of Laguna Hills
• City of Laguna Niguel
• City of Mission Viejo
• City of Santa Ana
• City of Stanton
• City of Tustin
• City of Yorba Linda
• South Coast Water
District
• Yorba Linda Water
District
• Orange County
Public Works
• Orange County
Transportation
Authority (OCTA)
• The Tollroads
(Transportation
Corridor Agencies )
Knowledgeable, responsive
and work to make sure the
client has what they need
and are satisfied with their
services. Understanding what
the client needs and if there
is some difference, they work
through it in a professional and
polite manner.
Mary Torres, Property Services
Officer, City of Long Beach
Enhancing Lives Through Infrastructure
o p c s e r v i c e s . c o m
PAGE 3City of Anaheim Right-of-Way Acquisition Services for Citywide SRTS Sidewalk Gap Closure Project
OPC
OPC is a State of California Corporate Real Estate Broker, and Broker Roy Guinaldo, RWA, RWP will oversee all acquisition work. All OPC acquisition agents are licensed brokers or salespersons working under the direct supervision of a broker.
Trusted Subconsultants: We have assembled a team of in-house experts and trusted subconsultants to provide effective, objective, consultative services to the City for timely and community-focused acquisition for the Project.
Commonwealth Land Title - Title Services
Commonwealth Land Title Company (CLTC) was founded in 1876, with a title unit solely focused on government agencies and R/W projects created in 2001. OPC has depended on CLTC for virtually all of our title reports and title insurances in Southern California. With 83 title professionals in just their local Los Angeles and Orange County offices and over 5,000 employees across the country, CLTC can handle all title and escrow needs expeditiously.
Hennessey & Hennessey - Appraisal
Based in Tustin, Hennessey & Hennessey provides real
estate appraisal and valuation consulting services for
government agencies and private entities throughout
California including the City of Anaheim. Founded in
1979 as an independent appraisal firm, Hennessey
& Hennessey transitioned from an association of
real estate appraisers to a California Limited Liability Company in 1999. Hennessey & Hennessey is an
Underutilized Disadvantaged Business Enterprise
(UDBE) certified by the California Unified Certification Program (CUCP) and a Small Business certified by
the California Department of General Services. With
over 30 years of teaming experience between OPC
and Hennessey & Hennessey, our firms have recently
teamed together on similar R/W acquisition projects
such as City of Montclair Monte Vista Grade Separation, City of Torrance Pacific Coast Highway & Hawthorne
Blvd., San Bernardino County Transportation Authority
I-10 HOV Lanes, California High Speed Rail, City of
Rialto Metrolink Parking Lot Expansion, and Riverside
County Transportation Commission SR-91 Corridor
Improvement Program.
Santolucito Doré Group, Inc. - Appraisal Review
As a woman-owned DBE founded in 2015, Santolucito
Doré Group, Inc. (SD Group) specializes in real
estate appraisal services for public agencies. They
perform appraisal services in accordance with the
requirements of the USPAP, Uniform USFLA appraisal
related portions of the Code of Civil Procedures and
Title VI of the Civil Rights Act. As such, SD Group has extensive experience in ensuring compliance with
state, federal and local public agency requirements
for timely project delivery and the preservation of
funding sources.
Sharon has been a trusted
appraisal team member to OPC for decades.
An Orange County resident herself, Sharon
has appraised properties for R/W projects
for the cities of Anaheim, Lake Forest,
and Santa Ana, along with OCTA. Also,
she is qualified as an expert witness in
the Superior Court of Orange County.
She holds MAI and AI-GRS designations
from the Appraisal Institute and the SR/
WA designation from the IRWA. She is a
California Certified General Real Estate
Appraiser #AG003323.
Sharon Hennessey, MAI,
SR/WA, AI-GRS
PRINCIPAL APPRAISER
Lance is a Principal of Santolucito
Doré who holds the MAI designation
through the Appraisal Institute. He also
holds the FRICS (Fellow of Royal Institute
of Chartered Surveyors). Over the last 37
years, Lance has performed hundreds of
full and partial acquisition appraisals and
appraised and reviewed thousands of real
estate projects. Projects include numerous
sidewalk and roadway improvements
throughout Southern California. He is a
California Certified General Real Estate
Appraiser, #AG002464.
Lance W. Doré, MAI, FRICS
MAI REVIEW APPRAISER
a. Statement of Qualifications
Enhancing Lives Through Infrastructure
o p c s e r v i c e s . c o m
PAGE 4City of Anaheim Right-of-Way Acquisition Services for Citywide SRTS Sidewalk Gap Closure ProjectOPC
a. Statement of Qualifications
Plats &
Legals Appraisal
Project Controls
and Support
Skip Carleton,
Jr., PLS
- Survey
Manager
Sharon Hennessey, MAI, SR/WA,
AI-GRS – Principal Appraiser
Lance W. Doré, MAI, FRICS - MAI
Appraisal Reviewer
Mia Garcia, Project
Controls Manager
OPC Project
Controls Analysts
BROKER / SENIOR PROJECT MANAGER
Roy Guinaldo, RWA, RWP
Resumes for the below
key staff are included
starting on page 14.
• Roy Guinaldo, RWA, RWP
Additional resumes are
available upon request.
Roy is the broker overseeing the acquisitions for
the Project. He brings over 30 years of real estate
experience and is knowledgeable of municipal, Caltrans, and Federal procedures and regulations. Roy is bilingual in English and Spanish. He is a certified member of the International Right-of-Way Association (IRWA) and a
licensed California Real Estate Broker, #00986344.
Right-of-Way Acquisition
Katie Quick, Senior Agent
Alex Flores, Agent
Ariel Corral, Agent
Inez Garcia, Escrow Coordinator
Name Role
% Time Needed
on This Project
%
Available
Roy Guinaldo, RWA, RWP Broker / Senior Project Manager 20% 50% Katie Quick Senior Agent 30% 50%
Alex Flores Agent 25% 60%
Ariel Corral Agent 25% 60%
Inez Garcia Escrow Coordinator 25% 50%
Skip Carleton, Jr., PLS Survey Manager 30% 65%
Sharon Hennessey, MAI,
SR/WA, AI-GRS Principal Appraiser 25% 50%
Lance W. Doré, MAI, FRICS MAI Appraisal Reviewer 20% 45%20% located in Northern CaliforniaOPC real estate staff OPC knows importance of
ensuring continuity to our
municipal clients. Mr. Roy
Guinaldo will be supported by
Vicky Cook as alternate contacts
if needed.
100+
in Southern California
60%
Team Organization, Qualifications of Key Personnel, and Amount of Time
DIRECTOR QA/QC DIRECTOR
Vicky Cook Jamie Lupo
CONTRACT OVERSIGHT
Enhancing Lives Through Infrastructure
o p c s e r v i c e s . c o m
PAGE 5City of Anaheim Right-of-Way Acquisition Services for Citywide SRTS Sidewalk Gap Closure ProjectOPC
In order to meet the goals of the SRTS Project, the OPC team understands that the following rights will be needed from the properties below.
# APN Description Owner Notes
1 268-331-02
(also APN
268-331-06)
Fast Great Nursery
and Landscape
2930 E Frontera St
Frontera LLC • TCE rights needed
• Significant encroachment into existing City
R/W of personal property and business
equipment
• Possibility of environmental liability
• Potential impacts to parking and access
for what may be multiple businesses
2 073-333-23 1041 North Acacia Yorba Oaks
LLC, c/o Michael
Robles
• Permanent & TCE rights needed
• Possibly tenant occupied single family
residence (SFR)
3 083-013-13 2230 East La
Palma
Edgar Montañez • Permanent & TCE rights needed
• Possibly owner occupied SFR
• Potential impacts to parking and access
4 083-013-14 2238 East La
Palma
Lawrence
Molesky
• Permanent & TCE rights needed
• Possibly owner occupied SFR
• Potential impacts to parking and access
Specific Methods and Techniques: OPC will follow an integrated approach emphasizing proactive coordination with City staff, engineering consultants, and legal counsel during all tasks. An outline of our integrated approach is shown at the lower right. OPC will look to the City for timely access to required engineering documents needed for appraisal and acquisition as well as coordination of right-of-way schedules, cost estimates, and budgets. OPC will conform its internal milestone schedule to the master schedule, which is expected to be available. OPC will also need timely decisions on the amount of just compensation from the City to conform to the agreed-upon schedule. Likewise, the City will have final approval of any recommended administrative settlements and Possession and Use Agreements. The City will approve all acquisition forms used by OPC.
Understanding of Need
a. Statement of Qualifications
Familiarity with State, Federal, and Local Requirements: OPC has extensive experience working on SRTS projects, ATP grant programs, and roadway, sidewalk, curb, and gutter improvements funded by Federal, State, and local monies. We have many current projects funded by the Federal Highway Administration (FHWA), US Housing and Urban Development (HUD), US Department of Treasury American Rescue Plan (ARP), and other Federal agencies along with Caltrans and other State projects.
All services under this contract will be performed in accordance with the regulations and standards of the acquiring agency and the Uniform Act.
The OPC team will adhere to all professional standards and ethics, and all other applicable laws and regulations. Our staff of licensed and credentialed personnel have an excellent working knowledge of Title 49 Code of Federal Regulations (CFR) Part 24, State of California Eminent Domain Law, Uniform Standards of Professional Appraisal Practice (USPAP), Caltrans R/W Manual Acquisition guidelines, and other applicable guidelines, policies, and procedures. The entire OPC team has up-to-date, working knowledge of Title 49 CFR Part 24, State of California eminent domain law, USPAP, and the Caltrans R/W Manual.
Voluntary Acquisition
Avoid Condemnation
Factually
Supported
Offer
Well
Planned
Appraisal
Accurate Legal
Descriptions
and Plats
Negotiation with
Respect and
Integrity
Enhancing Lives Through Infrastructure
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PAGE 6City of Anaheim Right-of-Way Acquisition Services for Citywide SRTS Sidewalk Gap Closure ProjectOPC
a. Statement of Qualifications
Project Experience
Project
Name Description Year Client Contact
Telephone /
Email
Pedestrian
Gap Closure
Improvements
Project
This Federally funded project is part of a
comprehensive effort to promote active
transportation within the City of Lancaster,
including street widening, curb ramps, grading,
and installation of curb, gutter, and sidewalks.
Supervised by Roy Guinaldo, RWA, RWP and
his OPC team submitted Caltrans R/W Data
Sheets; provided R/W engineering documents;
investigated title issues; determined MVE per
the Uniform Act; negotiated to obtain consent
for dedications; cleared escrow; and prepared
Caltrans R/W Certification Forms. The project
involved 29 properties that ranged in zoning
from vacant land to residential and commercial
properties.
2019-
2020
City of
Lancaster
Edith Witte
Engineer
– Capital
Programs
or
Mike
Livingston,
Senior
Construction
Manager
661.945.6866
EWitte@
cityoflancasterca.
org
or
661.723.6227
MLivingston@
cityoflancasterca.
org
Warner
Avenue
Widening
Project
The corridor will increase to six lanes from four
lanes and include ADA compliant pedestrian
improvements and dedicated bike lanes. OPC,
led by Roy Guinaldo, RWA, RWP is responsible
for right-of-way acquisition and relocation during
Phase I for 23 parcels and 32 households and
businesses. OPC developed the right-of-way
acquisition and relocation cost estimates, followed
by relocation planning and acquisition and
relocation.
2017-
2022
City of
Santa
Ana
Kenny
Nguyen, PE
Senior Civil
Engineer
714.647.5663
KNguyen@
santaana.org
La Quinta
Village
Complete
Streets Project
This project was funded by a $7.313 million ATP
Cycle 3 Grant. It includes five new roundabouts
in the La Quinta Village for safer and more
accessible roadways for pedestrians and
bicyclists. OPC provided R/W services for three
permanent partial acquisitions and two TCEs.
The services included early planning, preparing
R/W cost estimates, Caltrans R/W data sheets,
appraisal coordination, negotiations for part
takes and permits to enter, and Caltrans R/W
certifications.
2018-
2019
City of La
Quinta
Bryan
McKinney
Public Works
Director / City
Engineer
760.777.7045
BMcKinney@
laquinta.gov
West and
Citron Street
Sidewalk
Gap Closure
Acquisition -
Contract Task
Order
OPC worked with the City of Anaheim to acquire
permanent and temporary easement rights to
support sidewalk improvements along Citron
Street using non-federal funds. OPC coordinated
PTRs and ROW certifications. OPC also provided
a Minimum Value Estimate and right-of-way
acquisition services for one parcel for the 845
Citron Project.
2019-
2020
City of
Anaheim
Cesar
Carrillo, PE,
Principal Civil
Engineer
714.765.5175
CCarrillo@
anaheim.net
At OPC, satisfaction of our clients is our top priority. Please contact the following references to hear about how OPC helped agencies with needs similar to the City achieve their project goals.
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PAGE 7City of Anaheim Right-of-Way Acquisition Services for Citywide SRTS Sidewalk Gap Closure ProjectOPC
a. Statement of Qualifications
Quality Control/Quality Assurance
With our QA/QC team featuring former
Caltrans Central Region Right-of-Way Chief
Ms. Jamie Lupo, the OPC team will adhere to
all professional standards and ethics to keep
R/W acquisition projects in full compliance
of all applicable laws and regulations.
OPC has an internal QA/QC procedure
that will be used on the City’s Project. Our
policy states that each work product is an
independent step in the process and shall
be conducted in a manner which provides
for a complete check before the work
product is distributed. Compliance with the
City’s R/W policies and procedures and all
applicable regulations of federal, state, and
local agencies will be adhered to at all times.
OPC will perform all work that is necessary
or advisable in a manner that adheres to all
professional standards and ethics, and all
applicable laws and regulations, including
the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970
(Uniform Act or URA) or Title 25, California
Code of Regulations, and its amendments.
We have an exceptional working knowledge
of Title 49 CFR Part 24, State of California
eminent domain law, Uniform Standards of
Professional Appraisal Practice (USPAP),
and the Caltrans R/W Manual.
QA/QC and Project Controls
Project Controls to Keep the City’s Project On-Time and within Budget OPC has a dedicated Project Controls team and state-of-the-art project management platform that will to ensure document control, timely work, and accurate invoices. As part of our internal control measures, all subcontractor work must be issued through a purchase order by OPC’s Project Controls team, and OPC’s Senior Project Manager Roy Guinaldo, RWA, RWP will review all time billed and invoices submitted.
Roy Guinaldo, RWA, RWP will also develop comprehensive initial project planning, including acquisition policy development and budget analysis for review by OPC Program Director Victoria Cook. This plan will help the OPC team monitor and stay within budget and schedule so that our work is delivered within the City’s proposed time frames. ProjectOne® is OPC’s dedicated online R/W project management and monitoring system, created to specifically address the unique needs of the R/W industry. It allows for Project standardization for regulatory and jurisdictional consistencies with forecasting and monitoring applications.
SENIOR DIRECTOR - QA/QC
With 33 years of R/W experience, Jamie
will ensure quality of our team’s services. Prior
to joining OPC, Jamie was the Right-of-Way Chief for
Caltrans’ Central Region Division. Under her leadership, over 2,500 Caltrans projects were delivered in her
region involving local, state, and federal funds. She
brings extensive expertise in all facets of R/W acquisition, relocation, and property management, and condemnation.
Jamie Lupo
The QA/QC program begins with the preparation of a detailed plan, communicating OPC’s approach and project objectives to the City. The approved plan is thoroughly communicated to all of the Project staff to be implemented into every action, calculation, payment, approval, and record. The plan is used throughout the Project to ensure compliance. Any exceptions are promptly corrected as events occur. In addition to assuring quality work product, following the plan keeps the team on schedule, which in turn keeps the project on-time and within budget.
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B
SECTION
Scope of Services
and Schedule
b. Scope of Services and Schedule
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PAGE 8City of Anaheim Right-of-Way Acquisition Services for Citywide SRTS Sidewalk Gap Closure Project
OPC
b. Scope of Services and Schedule
Drawing upon our 42 years of company experience as the preferred R/W acquisition firm for California cities, counties, and transportation authorities, OPC has developed the following approach to the proposed scope of services:
TASK 1: PROJECT MANAGEMENT. Led by Project Manager and primary City contact Roy Guinaldo, RWA, RWP, OPC will provide:
1. Comprehensive initial project planning, including policy and budget analysis.
2. Kickoff meeting with City staff and engineering consultants.
3. Tracking and managing all budgetary-related aspects of the proposed scope of services.
4. Assisting with the development of administrative policies, procedures, and forms necessary to carry out the initial program.
5. Ongoing general consultation and project coordination with the City, governmental entities, stakeholder groups, and project team members.
6. Representation of the City at public meetings and hearings.
7. Preparation of tracking reports that monitor the completion of milestones of the various disciplines involved on the Project.
8. Preparation and presentation of a monthly status report based on the agreed-upon guidelines on information to be provided. Confer with the City verbally on general status, problem areas, and progress.
9. Coordinate with oversight agencies.
10. Manage subcontracts.
Deliverables:
• Meeting agendas three days prior to scheduled date. • Kickoff meeting.
• Attendance at up to two (2) meetings as well as the kickoff meeting with the City and Project team. • Monthly status reports and schedule updates.
• Timely, accurate invoices and deliverables.
Additionally, OPC’s responsive project management team will be available to answer questions from the City and keep the City informed on our progress.
Throughout the entire scope
of our engagement, OPC will
maintain all acquisition files,
including acquisition logs,
accurate and current records
of all pertinent information,
and contacts concerning the
property owners in a dedicated
OPC ProjectOne ® project site.
Scope of Services
A c t u a l s c r e e n s h o t s o f
O P C ’s P r o j e c t O n e ®
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PAGE 9City of Anaheim Right-of-Way Acquisition Services for Citywide SRTS Sidewalk Gap Closure ProjectOPC
b. Scope of Services and Schedule
TASK 2: PLATS, LEGALS & TITLE INVESTIGATION. Upon Notice to Proceed, OPC will order applicable title work from Commonwealth Land Title Insurance for all impacted parcels, including City-owned parcels, and review it to make sure there are not any encumbrances that cannot be removed administratively by the title company. Any parcels with items that cannot be removed by the title company may have to be prioritized for condemnation to receive clear title.
OPC’s in-house licensed California Professional Land Surveyor Skip Carleton, Jr., PLS will develop legal descriptions and plats for the Project. As OPC’s R/W Engineering and Land Surveying Manager, Mr.
Carleton brings to the City nearly 50 years of experience in the surveying field, focused on right-of-way.
OPC will request from the City a fully reconciled Land Net Map, establishing the datum, depicting controlling survey monumentation and the existing rights of way (in AutoCAD Civil 3D format) prepared by the Land Surveyor of Record. OPC will also request R/W Requirements Maps (in AutoCAD Civil 3D format) to be provided by the City’s civil design engineer for the Project. The Project is “off system” and will not require a R/W Record Map. Should circumstances trigger the requirement for items such as the preparation and filing of a Record of Survey, that work is considered to be outside of OPC’s scope of work and will require an amendment to the contract. Using the right-of-way maps and exhibit documents provided by the City, OPC will prepare and deliver legal descriptions and plats (8½” x 11”) prepared by a California licensed Professional Land Surveyor for up to three permanent easements and four TCEs required by the proposed construction of missing sidewalks for the Project.
Deliverables:
• Preliminary title reports for four parcels,
• Legal descriptions and plats for up to four TCEs and three permanent easements, TASK 3: APPRAISAL.
Task 3A: Appraisal Reports. OPC has selected Hennessey & Hennessey for appraisal of the four parcels. Upon receipt and review of legal descriptions and plats, appraisal work will begin. All appraisal and appraisal review will be completed by a Member of the Appraisal Institute (MAI) following the general steps below.
1. OPC will mail a notification letter and acquisition policies brochure to the property owner requesting permission to conduct an on-site inspection of the property, advising them of their right to accompany the appraiser at the time of the inspection and requesting information regarding the property appraised which could influence the appraised value.
2. Hennessey & Hennessey will review title information pertaining to respective ownerships and will review drawings and other pertinent information relative to the parcel.
3. Hennessey & Hennessey will inspect each property personally with the owner (if possible) and document the inspection with photographs for use in the report.
4. Hennessey & Hennessey will inventory all improvements affected by the proposed taking including notes on their manner of disposition (i.e., pay-for and remove vs. move back).
5. Hennessey & Hennessey will perform market research to support the selected appraisal methodologies and will document and confirm comparable sales information.
6. Hennessey & Hennessey will prepare a narrative appraisal report that conforms to USPAP. The appraisal study and report are intended to serve as an acquisition appraisal and will be prepared in a summary format consistent with the specifications for narrative appraisal reports.
7. OPC will receive and analyze the completed appraisal reports and will reconcile the real estate conclusions as necessary.
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PAGE 10City of Anaheim Right-of-Way Acquisition Services for Citywide SRTS Sidewalk Gap Closure ProjectOPC
b. Scope of Services and Schedule
Task 3B: Appraisal Reviews. SD Group will conduct a review of the appraisal reports under the requirements of the USPAP and the Code of Ethics of the Appraisal Institute. Appraisal review will be done by Lance Doré, MAI, FRICS, a Member of the Appraisal Institute.
Deliverables:
• Four appraisal reports with review certifications recommending the estimate of just compensation.
TASK 4: ACQUISITION. The most important aspect of acquiring private property under the threat of eminent domain is to establish and maintain a good, respectful and trusting relationship with the property owner. These relationships go a long way to ensure a timely, cost-efficient and fair outcome both for the successful completion of the project as well as the continued support and satisfaction of the communities it serves. Our goal is always to achieve a win-win result for all R/W acquisition activities.
OPC has noted that the Frontera nursery operations currently encroach on City right-of-way, and to acquire a TCE, the landowner and occupants will likely need to relocate personal property. OPC plans to negotiate with the owner to move personal property as part of acquisition with documentation as part of the acquisition agreement. We note that the City’s construction contractor may be able to support moving.
Acquisition of the parcels will be supervised by California licensed broker Roy Guinaldo, RWA, RWP. All services are performed in accordance with the regulations and standards of the acquiring agency and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, the URA regulations that became effective in February 2005, and the Caltrans R/W Manual.
OPC’s licensed acquisition agents will diligently pursue and negotiate with each property owner, prepare, and submit recommended settlement justifications to the City, if necessary, for review and approval; review any independent appraisal secured by property owner; and coordinate reimbursement of appraisal fees with the City. Ongoing negotiations and settlement discussions will continue after the initial offer until a settlement or impasse is reached and clearly documented with a minimum of three negotiation attempts within 30 days after the first written offer.
When a settlement is reached with the property owner, OPC will prepare and assemble acquisition contracts, deeds, and related documents required for the acquisition of necessary property interests and transmit executed acquisition documents to the City. Each transmittal package shall include a fully executed and properly notarized deeds, fully executed acquisition contract with attachments, and a brief settlement memorandum which summarizes the pertinent data relative to the transaction. For easement acquisition, OPC agents will:
1. Establish and maintain complete and current ownership files in a form acceptable to the City.
2. Receive and analyze title information, approved appraisal reports, and legal descriptions in sufficient detail to negotiate with property owners and other parties.
3. Prepare all offer letters, summary statements, and lists of compensable items of fixtures and equipment, in accordance with State or Federal regulations and approval of the City.
4. Present written purchase offers to owners or their representatives in person, when possible. Secure receipt of delivery of offer as practical and present and secure tenant information statements, as applicable.
5. Follow-up and negotiate with each property owner, as necessary; prepare and submit recommended settlement justifications to the City for review and approval; review any independent appraisal secured by property owner; and coordinate reimbursement of appraisal fees (up to $5,000) with the City.
Ongoing negotiations and settlement discussions will continue for a period determined by the City Enhancing Lives Through Infrastructure
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PAGE 11City of Anaheim Right-of-Way Acquisition Services for Citywide SRTS Sidewalk Gap Closure ProjectOPC
b. Scope of Services and Schedule
after the initial offer or if settlement or impasse is reached sooner.
6. Prepare and assemble acquisition contracts, deeds, and related acquisition documents required for the acquisition of necessary property interests.
7. Maintain a diary report of all contacts made with property owners or representatives and a summary of the status of negotiations indicating attitude of owners, problem areas, and other pertinent information. Copies of all applicable written correspondence will be maintained in files.
8. Prepare an impasse letter for any parcel where, after diligent attempts to settle by negotiation, it appears eminent domain will be needed or prudent to acquire the needed interest.
9. Transmit executed acquisition documents to the City. Each transmittal package shall include a fully executed and properly notarized deed(s), fully executed acquisition contract with attachments and a brief settlement memorandum which summarizes the pertinent data relative to the transaction, if needed.
OPC’s in-house escrow team, led by Inez Garcia, will assist the escrow/title company:
1. Open escrow and coordinate execution of closing instructions providing for title insurance coverage at the settlement amount.
2. Provide escrow officer with fully executed acquisition contract and notarized deed(s).
3. Review settlement statement for accuracy.
4. Coordinate deposit of acquisition price, estimated closing costs and request title insurance policy with escrow.
5. After the closing, review the title insurance policy for accuracy and submit to the City.
6. If an impasse is reached and condemnation is needed, OPC will assist City eminent domain counsel to:
• Prepare a letter for the client signature, to eminent domain counsel requesting proceeding to condemnation. • Provide eminent domain counsel with available right of way maps and legal descriptions, preliminary title reports and title review documents, and information on how to contact each owner or interest holder. • Provide eminent domain counsel with a duplicate copy of the parcel file, together with a copy of the appraisal, offer to purchase, correspondence, acquisition contract, and deed as presented. • Convert preliminary title reports to litigation guarantees for eminent domain counsels’ use. Title company fees (based on the value of the interest required) are additional.
Deliverables:
• Offer letters, acquisitions agreements and conveyance deeds utilizing City standard formats. • Executed acquisition agreements and conveyance deeds to be submitted to the City for acceptance. • Project parcel database, status reports, and tracking reports. • Acquisition files.
• Impasse letters, if necessary.
TASK 5: CERTIFICATION. For Caltrans right-of-way certification, OPC will:
1. Attend certification planning meeting with the Local Assistance Coordinator and City Project team.
2. Ensure R/W maps and legal descriptions are all properly identified and prepared in conformance with approved numbering system.
3. Ensure that all interests necessary for the project have been secured have been performed in compliance with applicable law and regulations.
4. Prepare certification forms in coordination with the City to include the compilation of all necessary back- up documents required including; deed, final order of condemnation, access easements, cooperative agreements, permits, right of entries, utility relocation documents, etc.
5. Attend pre and post-audit submittal meetings as needed.
Deliverables:
• Appropriate R/W certification forms with all necessary back-up documentation.
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PAGE 12City of Anaheim Right-of-Way Acquisition Services for Citywide SRTS Sidewalk Gap Closure ProjectOPC
REVISED The chart below outlines our proposed schedule for completing the scope as described, assuming a start date of October 1, 2022.
LEGEND
1. City
2. OPC
3. Hennessey
TASK 5: CERTIFICATION
Jan Feb Mar Apr
OPC will prepare the appropriate R/W
certification forms in coordination with
the City and its design team to include
the compilation of all necessary back-up
documents required, including: deed, final
order of condemnation, access easements,
utility relocation documents, etc.
2. OPC; 1. City 2. OPC; 1. City 2. OPC; 1. City 2. OPC; 1. City
2. OPC
2. OPC
2. OPC; 1. City
TASK 2: PLATS/LEGALSTASK 1: PROJECT
MANAGEMENT TASK 3: APPRAISAL
TASK 4: ACQUISITION
Oct2. Nov Dec
PROJECT MGMT
MONTH
PLATS, LEGALS,
TITLE REVIEW
OFFER LETTERS
A. APPRAISAL
NEGOTIATIONS
B. APPRAISAL
REVIEW
ESCROW
Upon Notice to Proceed, OPC will review
applicable title reports, which will be
provided by Commonwealth within one
week of ordering. We will develop legal
descriptions and plats based on maps
provided by the City to make sure there
are not any encumbrances that cannot
be removed administratively by the title
company.
While appraisal is being reviewed and completed, OPC will begin to draft offer packages and applicable R/W agreements/documentation for submittal to the City.
The City will have a minimum of 14 days for review so that the Project schedule can stay on track. Upon the City Council’s approval of just compensation, OPC will present the City’s written purchase offer to the parcel owner and/or owner’s representative. OPC will continue to negotiate with the property owner for 30 days and handle escrow and closing.
Our appraisers at Hennessey & Hennessey
will prepare narrative appraisal reports that
conform to the USPAP. The appraisal study
will be completed in approximately four (4)
weeks. The reports will be reviewed by a
certified Member of the Appraisal Institute
at SD Group.
OPC; 1. City 2. OPC; 1. City 2. OPC; 1. City
2. OPC 1. City
3. Hennessey
4. SD Group
Mr. Roy Guinaldo, RWA, RWP will
oversee all acquisition activities. He will
coordinate meetings and prepare updates
to the status reports and schedule on a
predetermined time frame. In addition
to the day-to-day coordination with the
City and the project team, he will also
interface with any other stakeholders.
4.SD Group
b. Scope of Services and Schedule
POTENTIAL
SCHEDULE
ISSUES: OPC
recognizes
that timing may
be impacted
by relocation
of personal
property
encroaching on
CIty right-of-way
at 2930 East
Frontera.
May
Jun
2. OPC; 1. City
Aug
CERTIFICA TION
CONDEMNATION
(IF NEEDED)
Jul
2. OPC
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PAGE 13City of Anaheim Right-of-Way Acquisition Services for Citywide SRTS Sidewalk Gap Closure ProjectOPC
b. Scope of Services and Schedule
Resource Allocation
42 Years of
Experience
Proven Project
Management
Methods
All Required
Licenses Held
by Team
Insurance &
Contract
Can Meet and Accept
Terms
In House Right
of Way and Real
Estate Services
Please refer to the resource hours by task listed below. As shown in our separate Fee Proposal, costs for appraisal, appraisal review, and title reports will be provided as fixed fees.
To accomodate contingency for the extended timeline until construction and ongoing consultation with the City, additional project management hours have been added. Optional items not included in our costs that can be provided at the City’s request:
• FF&E Appraisals
• Tenant Acquisition
• Additional Assistance for Personal Property Relocation • Field Surveys
For the OPC team, the success of the City’s Project is our top priority. Regardless of other commitments, our team has the resources and depth of staff to maintain the Project schedule. In selecting OPC, the City of Anaheim gets piece of mind through:
Hours by Task
Victoria Cook
Program Director
Roy Guinaldo, RWA, RWP
Senior Program Director
Skip Carleton, Jr., PLS
Survey Manager
Katie Quick
Senior Agent
Acquisition Agents
Inez Garcia
Escrow Coordinator
Senior Project Controls
Analyst
Total
Hours
Task 1: Project Management 5 34 10 49
Task 2: Plats, Legals, and Title
Review 1 64 4 69
Task 3: Appraisal (subconsultant
work provided as fixed fees) 8 8
Task 4: Acquisition 1 82 40 52 175
Task 5: Certification 0.5 6 6.5
TOTAL HOURS 5 36.5 64 82 40 62 18 307.5
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APPENDIX
Staff
Resumes
A p p e n d i x - S t a f f R e s u m e s
Roy Guinaldo, RWA, RWP - Broker / Senior Project Manager Enhancing Lives Through Infrastructure
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PAGE 14City of Anaheim Right-of-Way Acquisition Services for Citywide SRTS Sidewalk Gap Closure ProjectOPC
A p p e n d i x - S t a f f R e s u m e s Enhancing Lives Through Infrastructure opcservices.com
OPC RESUME
Roy Guinaldo RWA, BROKER / SR. PROJECT MANAGER
As a Senior Project Manager, Mr.
Guinaldo is a team leader with over 30
years of real estate experience. He is knowledgeable of municipal and governmental procedures and regulations
relating to property acquisition (full- and part-takes) and excess land dispositions. He is responsible for both
residential and commercial acquisitions in public and private sector client acquisition pro jects and is knowledgeable of the relocation procedures for b oth residential owners and tenants. Mr. Guinaldo provides t raining to OPC staff. He is bilingual in English/Spanish.
PROJECT EXPERIENCE
OVERVIEW Education
License
Affiliations/Certifications
Years of Experience
Coursework, Cerritos Community College
Associated coursework for Real Estate
Initial Year in Industry: 1988
Initial Year with OPC: 2002
Real Estate Broker, California, No.
00986344City of Palmdale
Avenue S-8 and 40
th Street East Roundabout Project, Palmdale, CA. Project Manager overseeing appraisal, appraisal review, full take acquisition, and right-o f-way certifications of 11 parcels. This Federally funded project will convert an existing two-way stop to a roundabout at the intersection of Avenue S-8 and 40th St. East.
City of Anaheim
Brookhurst Street Widening Remnant Parcels. Senior Project Manager over title review, acquisition, escrow services, residential relocation planning, and residenti al relocation services for three (3) impacted residential properties.
City of Irvine
Culver Drive Sound Wall, Irvine, CA . Responsible for the acquisition of temporary construction easements to widen a portion of Culver Drive from a two-lane undivided roadway to a four-lane divided roadway. OPC developed and implemented the City's right of way acquisition and sound attenuation program in conjunction with the widening and realignment of Culver Drive.
City of Lancaster / Kimley Horn
Pedestrian Gap Closures, Lancaster, CA. As a Project Manager, responsibilities include overseeing coordination of title documents, legals/plats/maps, cost estima ting, Minimum Value Estimates (MVE), the negotiation process for dedication of land, eminent domain support, and escrow for 26 parcels to construct city improvements such as street widening, ADA complaint curb ramps, and the instillation of curb, gutter, and sidewalks to promote active transportation. Federally funded project.
Long Beach Water District
West Cameron Project, Long Beach, CA . Senior Project Manager over title review, acquisition, escrow services, residential relocation planning, and residenti al relocation services for three (3) impacted residential properties.
City of Artesia
A.J. Padelford Park Expansion, Artesia, CA. Senior Project Manager overseeing appraisal, voluntary acquisitions and relocation of ten residential parcels to expand the A.J. Paddleford Park.
Member, IRWA. RWA Certification. RWP
Certification pending.
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D
SECTION
Federal
Requirements
Exhibit 10-Q – Disclosure of Lobbying Activities
Exhibit 10-O1 – Consultant Proposal DBE Commitment
Designation of Subcontractors
Conflicts of Interest
Local Assistance Procedures Manual EXHBIT 10-Q
Disclosure of Lobbying Activities
EXHIBIT 10-Q D ISCLOSURE OF LOBBYING ACTIVITIES
COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVITIES PURSUANT TO 31 U.S.C. 1352
1. Type of Federal Action: 2. Status of Federal Action: 3. Report Type:
a. contract a. bid/offer/application a. initial
b. grant b. initial award b. material change
c. cooperative agreement c. post -award
d. loan For Material Change Only:
e. loan guarantee year ____ quarter _________
f. loan insurance date of last report __________
4. Name and Address of Reporting Entity 5. If Reporting Entity in No. 4 is Subawardee, Enter Name and Address of Prime:
Prime Subawardee
Tier _______ , if known
Congressional District, if known Congressional District, if known
6. Federal Department/Agency: 7. Federal Program Name/Description:
CFDA Number, if applicable ____________________
8. Federal Action Number, if known: 9. Award Amount, if known:
10. Name and Address of Lobby Entity 11. Individuals Performing Services (If individual, last name, first name, MI) (including address if different from No. 10) (last name, first name, MI)
(attach Continuation Sheet(s) if necessary)
12. Amount of Payment (check all that apply) 14. Type of Payment (check all that apply) $ _____________ actual planned a. retainer
b. one -time fee
13. Form of Payment (check all that apply): c. commission a. cash d. contingent fee
b. in -kind; specify: nature _______________ e deferred Value _____________ f. other, specify _________________________
15. Brief Description of Services Performed or to be performed and Date(s) of Service, including officer(s), employee(s), or member(s) contacted, for Payment Indicated in Item 12:
(attach Continuation Sheet(s) if necessary)
16. Continuation Sheet(s) attached: Yes No
17. Information requested through this form is authorized by Title 31 U.S.C. Section 1352. This disclosure of lobbying reliance was placed by the tier above when his transaction was made or entered into. This disclosure is required pursuant to 31 U.S.C. 1352. This information will be reported to Congress
semiannually and will be available for public inspection. Any person who fails to file the required disclosure shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
Signature: ________________________________ ________
Print Name: ________________________________ _______
Title: ________________________________ ____________
Telephone No.: ____________________ Date:___________
Authorized for Local Reproduction
Federal Use Only: Standard Form - LLL
Standard Form LLL Rev. 04-28-06
Distribution: Orig- Local Agency Project Files
LPP 13-01 May 8, 2013
Brian Everett
X
CEO
562.304.2000 7/28/2022
X
5000 Airport Plaza Drive, Suite 250, Long Beach, CA 90815 CA-47
N/A
N/A
Local Assistance Procedures Manual EXHBIT 10-Q
Disclosure of Lobbying Activities
EXHIBIT 10-Q D ISCLOSURE OF LOBBYING ACTIVITIES
COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVITIES PURSUANT TO 31 U.S.C. 1352
1. Type of Federal Action: 2. Status of Federal Action: 3. Report Type:
a. contract a. bid/offer/application a. initial
b. grant b. initial award b. material change
c. cooperative agreement c. post -award
d. loan For Material Change Only:
e. loan guarantee year ____ quarter _________
f. loan insurance date of last report __________
4. Name and Address of Reporting Entity 5. If Reporting Entity in No. 4 is Subawardee, Enter Name and Address of Prime:
Prime Subawardee
Tier _______ , if known
Congressional District, if known Congressional District, if known
6. Federal Department/Agency: 7. Federal Program Name/Description:
CFDA Number, if applicable ____________________
8. Federal Action Number, if known: 9. Award Amount, if known:
10. Name and Address of Lobby Entity 11. Individuals Performing Services (If individual, last name, first name, MI) (including address if different from No. 10) (last name, first name, MI)
(attach Continuation Sheet(s) if necessary)
12. Amount of Payment (check all that apply) 14. Type of Payment (check all that apply) $ _____________ actual planned a. retainer
b. one -time fee
13. Form of Payment (check all that apply): c. commission a. cash d. contingent fee
b. in -kind; specify: nature _______________ e deferred Value _____________ f. other, specify _________________________
15. Brief Description of Services Performed or to be performed and Date(s) of Service, including officer(s), employee(s), or member(s) contacted, for Payment Indicated in Item 12:
(attach Continuation Sheet(s) if necessary)
16. Continuation Sheet(s) attached: Yes No
17. Information requested through this form is authorized by Title 31 U.S.C. Section 1352. This disclosure of lobbying reliance was placed by the tier above when his transaction was made or entered into. This disclosure is required pursuant to 31 U.S.C. 1352. This information will be reported to Congress
semiannually and will be available for public inspection. Any person who fails to file the required disclosure shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
Signature: ________________________________ ________
Print Name: ________________________________ _______
Title: ________________________________ ____________
Telephone No.: ____________________ Date:___________
Authorized for Local Reproduction
Federal Use Only: Standard Form - LLL
Standard Form LLL Rev. 04-28-06
Distribution: Orig- Local Agency Project Files
LPP 13-01 May 8, 2013
NONE
None
Christine Santolucito
President
951-225-3500 07/21/2022
Local Assistance Procedures Manual Exhibit 10-O1
Consultant Proposal DBE Commitment
EXHIBIT 10-O1 CONSULTANT PROPOSAL DBE COMMITMENT
1. Local Agency: 2. Contract DBE Goal:
3. Project Description:
4. Project Location:
5. Consultant's Name: 6. Prime Certified DBE:
7. Description of Work, Service, or Materials
Supplied
8. DBE
Certification
Number
Local Agency to Complete this Section
17. Local Agency Contract Number:
18. Federal-Aid Project Number:
19. Proposed Contract Execution Date:
20. 21. Local Agency Representative's Signature 22. Date
23. Local Agency Representative's Name 24. Phone
25. Local Agency Representative's Title
Consultant’s Ranking after Evaluation: __________________________ Local Agency certifies that all DBE certifications are valid and information on this form is complete and accurate.
9. DBE Contact Information
11. TOTAL CLAIMED DBE PARTICIPATION
10. DBE %
%
IMPORTANT: Identify all DBE firms being claimed for credit, regardless of tier. Written confirmation of each listed DBE is required.
12. Preparer's Signature 13. Date
14. Preparer's Name 15. Phone
16. Preparer's Title
DISTRIBUTION: Original – Included with consultant’s proposal to local agency.
ADA Notice: For individuals with sensory disabilities, this document is available in alternate formats. For information call (916) 654-6410 or TDD (916) 654- 3880 or write Records and Forms Management, 1120 N Street, MS-89, Sacramento, CA 95814.
LPP 18-01 Page 1 of 2
January 2019
Reset Form
Citywide SRTS Sidewalk Gap Closure Project
10%City of Anaheim
Various location throughout the City: Acacia St, La Palma Ave, Frontera St, & Santa Ana Canyon Rd.
Overland, Pacific & Cutler, LLC
Appraisal Reports
Appraisal Review
38014
43345
ATPSB1L5055 (194)
Hennessey & Hennessey, 17602 17TH STREET, SUITE
102 - 246, TUSTIN, CA 92780, [email protected]
SD GROUP, 31600 RAILROAD CANYON ROAD, SUITE 100-L,
CANYON LAKE, CA 92587, [email protected]
25.87 10.66
36.53 09/19/2022
562.684.8918Erica Waddell
Business Development Manager
Digitally signed by Erica
Waddell
Date: 2022.07.28
14:29:30 -07'00'
Overland, Pacific & Cutler, LLC
Revised 10/19/16
DESIGNATION OF SUB-CONTRACTORS
Submit with Proposal
In compliance with the Provisions of Section 4100-4107 of the Code of the State of California, Labor Code Section 1771.1 and any Amendments thereto, the undersigned certifies that he has used the sub- proposals of the following listed sub-contractors in making up his proposal, and that the sub-contractors listed will be used for the work for which they proposed, subject to approval of the Engineer, and in accordance with the applicable provisions of the Request for Proposals. If the proposer does not submit the names and addresses of sub-contractors, he shall be required to do the work with his forces.
If no sub-contractors are listed, all insurance shall be written in the name of the general contractor only, and any liabilities arising through the operation of a sub-contractor shall not be covered by the insurance.
General contractor, contractor, sub-contractor shall be as defined in the Request for Proposals and per State of California Labor Code Section 1777.1.
Print clearly and complete ALL lines.
1. Sub-Contractor’s
Name
Item of Work
Complete Street Address
Phone No.
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
2. Sub-Contractor’s
Name
Item of Work
Complete Street Address
Phone No.
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
3. Sub-Contractor’s
Name
Item of Work
Complete Street Address
Phone No.
Email (for DIR input)
License No. Exp. Date
DIR Registration No. Exp. Date
No sub-contractor may be listed on a proposal unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5.
Proposers may be considered NON-RESPONSIVE
if all information is not completely filled in.
_____________________________________ ___________________________________
PROPOSER'S NAME AUTHORIZED SIGNATURE
Basis of Award shall be as specified in the Request for Proposals All firms are subconsultants instead of subcontractors per DIR.
Hennessey &
Hennessey
LLC
17602 17TH STREET, SUITE 102 - 246
TUSTIN, CA 92780
714-730-0744
[email protected]
31600 RAILROAD CANYON ROAD, SUITE 100-L,
CANYON LAKE, CA 92587
951-225-3500
SD GROUP
[email protected]
Commonwealth
Land Title Company
4100 Newport Place Dr. Suite 120
Newport Beach, CA 92660
714.749.0036
[email protected]
n/a
n/a for contractor’s license n/a
n/a
n/a
n/a for contractor’s license n/a
n/a
n/a
n/a for contractor’s license n/a
n/a
Citywide Safe Routes to School Sidewalk Gap Closure Project Appendix 7
APPENDIX 7
CONFLICT OF INTEREST
Conflict of Interest Form for Consultants
(Consultant to complete, sign and submit with the RFP Submittals)
The Political Reform Act (Government Code Sections 81000-91014) and Government Code Section 1090 prohibit any Anaheim public official , officer, or employee from involvement in a governmental decision or contract in which he or she has a financial interest. It is the responsibility of the consultant, consultant's employees, and subconsultants who perform work under the consultant agreement to evaluate any pot ential conflict of interests and follow the provisions of the conflict of interest requirements as set forth in Section 22 of the consultant agreement. Be advised that a prohibited conflict of interest may void any award where it exists.
I, the undersigne d, hereby certify that I have reviewed and understand the above paragraph, and in furtherance of the foregoing, I have evaluated and caused my company's employees and subconsultants to evaluate any potential conflict of interests. Based on this evaluation, I hereby further certify that no such conflict of interests exists.
SIGNATURE OF AUTHORIZED SIGNATORY
_____________________________________ Date: ________________
Print Name: ___________________________
Title: _________________________________
Consultant Name: ___________________
July 28, 2022
Brian Everett
CEO
Overland, Pacific & Cutler, LLC
Citywide Safe Routes to School Sidewalk Gap Closure Project Appendix 7
APPENDIX 7
CONFLICT OF INTEREST
Print Name: ___________________________
Title: _________________________________
Consultant Name: ___________________
Conflict of Interest Form for Consultants
(Consultant to complete, sign and submit with the RFP Submittals) The Political Reform Act (Government Code Sections 81000-91014) and Government Code Section 1090 prohibit any Anaheim public official, officer, or employee from involvement in a governmental decision or contract in which he or she has a financial interest. It is the responsibility of the consultant, consultant's employees, and subconsultants who perform work under the consultant agreement to evaluate any potential conflict of interests and follow the provisions of the conflict of interest requirements as set forth in Section 22 of the consultant agreement. Be advised that a prohibited conflict of interest may void any award where it exists.
I, the undersigned, hereby certify that I have reviewed and understand the above paragraph, and in furtherance of the foregoing, I have evaluated and caused my company's employees and subconsultants to evaluate any potential conflict of interests. Based on this evaluation, I hereby further certify that no such conflict of interests exists.
SIGNATURE OF AUTHORIZED SIGNATORY
_____________________________________ Date: ____07/21/2022____________ Christine Santolucito
President
Santolucito Dore Group, Inc.
Overland, Pacific & Cutler, LLC (OPC)
City of Anaheim - Contact Information
Didar Khandker, PE
City of Redondo Beach
Engineering Services Division
OPC is way above its competitors in the
industry. I have a very positive experience
and feelings about OPC and its staff. I
would recommend OPC to our colleagues
if asked for my opinion.
Overland, Pacific & Cutler, LLC
5000 Airport Plaza Drive,
Suite 250
Long Beach, CA 90815
Roy Guinaldo, RWA, RWP
Senior Project Manager
Direct : 562.354.2446
Office : 562.304.2000
Email : [email protected]
www.OPCservices.com
Due: July 29, 2022 by 5:00 PM
Valid: For a minimum of 120 days
overland pacific & cutler, llc
Roy Guinaldo, RWA, RWP
Senior Project Manager
Main : 562.304.2000
Direct : 562.354.2446
E : [email protected]
www.OPCservices.com
OPC Contact:
Fee
Proposal
RIGHT-OF-WAY
ACQUISITION
SERVICES
FOR THE CITYWIDE SAFE
ROUTES TO SCHOOL
SIDEWALK GAP
CLOSURE PROJECT IN
THE CITY OF ANAHEIM
City of Anaheim
Public Works Department
200 S. Anaheim Blvd.
MS #276
Anaheim, CA 92805
Megan Hajimomen
Associate Civil Engineer
Revised: September 19, 2022
Enhancing Lives Through Infrastructure
o p c s e r v i c e s . c o m
C
SECTION
Fee
Proposal
c . F e e P r o p o s a l
Fee Proposal
Exhibit 10-H1 – Cost Proposal
Exhibit 10-H2 – Rates
Exhibit 10-O1 – Consultant Proposal DBE Commitment
Exhibit 15-H – DBE Information
Exhibit 10-O2 – Consultant Proposal DBE Commitment
Enhancing Lives Through Infrastructure
o p c s e r v i c e s . c o m
PAGE 1City of Anaheim Right-of-Way Acquisition Services for Citywide SRTS Sidewalk Gap Closure ProjectOPC
c . F e e P r o p o s a l
Fee Proposal
OPC has provided the best team for the City’s Project at the not-to-exceed fee below.
As shown in our below, costs for appraisal, appraisal review, and title reports will be provided as fixed fees.
To accomodate contingency for the extended timeline until construction and ongoing consultation with the City, additional project management hours have been added. Optional items not included in our costs that can be provided at the City’s request:
• FF&E Appraisals
• Tenant Acquisition
• Additional Assistance for Personal Property Relocation • Field Surveys
LABOR
Victoria Cook
Program Director
Roy Guinaldo, RWA, RWP
Broker / Senior Project
Manager
Skip Carleton, Jr., PLS
Survey Manager
Katie Quick
Senior Agent
Acquisition Agents
Inez Garcia
Escrow Coordinator
Senior Project Controls
Analyst
Total
Hours Total Fees
Hourly Rates $212.53 $168.77 $195.00 $100.01 $81.26 $78.01 $78.01 Task 1: Project
Management 5 34 10 49 $ 7,580.82
Task 2: Plats,
Legals, and Title
Review
1 64 4 69 $ 12,961.07
Task 3: Appraisal 8 8 $ 624.10
Task 4: Acquisition 1 82 40 52 175 $ 15,676.82
Task 5: Certification 0.5 6 6.5 $ 552.46
TOTAL LABOR 5 36.5 64 82 40 62 18 307.5 $ 37,395.26
Other Direct Costs:
Preliminary Title Reports: Commonwealth $ 2,600.00
Appraisal Reports: Hennessey & Hennessey $ 16,300.00
Appraisal Reviews: Santolucito Doré $ 6,720.00
TOTAL OTHER DIRECT COSTS $ 25,620.00
TOTAL COST $ 63,015.26
TOTAL NOT TO EXCEED $ 63,015.26
Local Assistance Procedures Manual EXHIBIT 10-H1
Cost Proposal
January 2020
EXHIBIT 10-H1 COST PROPOSAL Page 1 of 3
COST-PLUS-FIXED FEE OR LUMP SUM OR FIRM FIXED PRICE CONTRACTS (DESIGN, ENGINEERING AND ENVIRONMENTAL STUDIES)
Note: Mark-ups are Not Allowed ☒ Prime Consultant ☐ Subconsultant ☐ 2nd Tier Subconsultant
Consultant ____Overland, Pacific & Cutler, LLC____________________________________________________
Project No. __ATPSB1L5055(194)______ Contract No. ____________________ Date __9/19/2022__
DIRECT LABOR
Classification/Title Name Hours Actual Hourly Rate Total Director* Vicky Cook* 5.0 $ 81.73 $ 408.65 Broker/Senior Project
Manager* Roy Guinaldo, RWA, RWP* 36.5 $ 64.90 $ 2,368.85 Senior Agent 82.0 $ 38.46 $ 3,153.72 Agent 40.0 $ 31.25 $ 1,250.00 Survey Manager* Skip Carleton, Jr., PLS* 64.0 $ 74.99 $ 4,799.36 Escrow Coordinator 62.0 $ 30.00 $ 1,860.00 Senior Analyst 18.0 $ 30.00 $ 540.00
LABOR COSTS
a) Subtotal Direct Labor Costs $ ____ 14,380.58__
b) Anticipated Salary Increases ( see page 2 for calculation) $ _________0.00__
c) TOTAL DIRECT LABOR COSTS [(a) + (b)] $ ______14,380.58
INDIRECT COSTS
d) Fringe Benefits (Rate: 38.20%) e) Total Fringe Benefits [(c) x (d)] $ _______5,493.38 f) Overhead (Rate: 98.20%) g) Overhead [(c) x (f)] $ ______14,1 21.73
h) General and Administrative (R ate: 0.00%) i) Gen & Admin [(c) x (h)] $ ______ 0.00
j) TOTAL INDIRECT COSTS [(e) + (g) + (i)] $ _____19,615.11
FIXED FEE k) TOTAL FIXED FEE [(c) + (j)] x fixed fee _10.00%] $ ______3,399.57
l) CONSULTANT’S OTHER DIRECT COSTS (ODC) – ITEMIZE (Add additional pages if necessary) Description of Item Quantity Unit Unit Cost Total
Preliminary Title Reports (PTRs) - Commonwealth
Land Title Insurance
4 PTRs $650.00 $ 2,600.00
l) TOTAL OTHER DIRECT COSTS $ 2,600.00
m) SUBCONSULTANTS’ COSTS (Add additional pages if necessary) Subconsultant 1: Hennessey & Hennessey - Appraisal Reports $ 16,300.00 Subconsultant 2: Santolucito Dore - Appraisal Reviews $ 6,720.00 m) TOTAL SUBCONSULTANTS’ COSTS $ 23,020.00
n) TOTAL OTHER DIRECT COSTS INCLUDING SUBCONSULTANTS [(l)+(m)] $ ___________25,620.00
TOTAL COST [(c) + (j) + (k) + (n)] $ ____________ 63,015.26 NOTES:
1. Key personnel must be marked with an asterisk (*) and employees that are subject to prevailing wage requirements must be marked with two asterisks (**). All costs must comply with the Federal cost principles. Subconsultants will provide their own cost proposals.
2. The cost proposal format shall not be amended. Indirect cost rates shall be updated on an annual basis in accordance with the consultant’s annual accounting period and established by a cognizant agency or accepted by Caltrans.
3. Anticipated salary increases calculation (page 2) must accompany.
Local Assistance Procedures Manual EXHIBIT 10-H1
Cost Proposal
January 2020
EXHIBIT 10-H1 COST PROPOSAL Page 2 of 3
COST-PLUS-FIXED FEE OR LUMP SUM OR FIRM FIXED PRICE CONTRACTS (CALCULATIONS FOR ANTICIPATED SALARY INCREASES)
1. Calculate Average Hourly Rate for 1st year of the contract (Direct Labor Subtotal divided by total hours)
Direct Labor
Subtotal per Cost
Proposal
Total Hours per
Cost Proposal
Avg
Hourly
Rate
5 Year
Contract
Duration
$14,380.58 307.5 = $46.77 Year 1 Avg
Hourly Rate
2. Calculate hourly rate for all years (Increase the Average Hourly Rate for a year by proposed escalation %)
Avg Hourly Rate Proposed Escalation
Year 1 $46.77 + 3% = $48.17 Year 2 Avg Hourly Rate
Year 2 $48.17 + 3% = $49.61 Year 3 Avg Hourly Rate
Year 3 $49.61 + 3% = $51.10 Year 4 Avg Hourly Rate
Year 4 $51.10 + 3% = $52.64 Year 5 Avg Hourly Rate
3. Calculate estimated hours per year (Multiply estimate % each year by total hours)
Estimated % Completed
Each Yea
r
Total Hours per Cost
Proposal
Total Hours per
Year
Year 1 100.00% * 307.5 = 307.5 Estimated Hours Year 1
Year 2 0.00% * 307.5 = 0.0 Estimated Hours Year 2
Year 3 0.00% * 307.5 = 0.0 Estimated Hours Year 3
Year 4 0.00% * 307.5 = 0.0 Estimated Hours Year 4
Year 5 0.00% * 307.5 = 0.0 Estimated Hours Year 5
Total 100% Total = 307.5
4. Calculate Total Costs including Escalation (Multiply Average Hourly Rate by the number of hours)
Avg Hourly Rate
(calculated above)
Estimated hours
(calculated above)
Cost per
Yea
r
Year 1 $46.77 * 307.5 = $14,643.94 Estimated Hours Year 1 Year 2 $48.17 * 0 = $0.00 Estimat ed Hours Year 2 Year 3 $49.61 * 0 = $0.00 Estimated Hours Year 3
Year 4 $51.10 * 0 = $0.00 Estimated Hours Year 4
Year 5 $52.64 * 0 = $0.00 Estimated Hours Year 5
Total Direct Labor Cost with Escalation = $14,643.94
Direct Labor Subtotal before Escalation = $14,643.94
Estimated total of Direct Labor Salary
Increase
=
$0.00
Transfer to Page 1
NOTES:
1. This is not the only way to estimate salary increases. Other methods will be accepted if they clearly indicate the % increase, the # of years of the contract, and a breakdown of the labor to be performed each year.
2. An estimation that is based on direct labor multiplied by salary increase % multiplied by the # of years is not acceptable. (i.e. $250,000 x 2% x 5 yrs = $25,000 is not an acceptable methodology)
3. This assumes that one year will be worked at the rate on the cost proposal before salary increases are granted.
4. Calculations for anticipated salary escalation must be provided.
Local Assistance Procedures Manual EXHIBIT 10-H1
Cost Proposal
January 2020
EXHIBIT 10-H1 COST PROPOSAL Page 3 of 3
Certification of Direct Costs:
I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost proposal(s) in this contract are actual, reasonable, allowable, and allocable to the contract in accordance with the contract terms and the following requirements:
1. Generally Accepted Accounting Principles (GAAP)
2. Terms and conditions of the contract
3. Title 23 United States Code Section 112 - Letting of Contracts
4. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures
5. 23 Code of Federal Regulations Part 172 - Procurement, Management, and Administration of Engineering and Design Related Service
6. 48 Code of Federal Regulations Part 9904 - Cost Accounting Standards Board (when applicable)
All costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements. Costs that are noncompliant with the federal and state requirements are not eligible for reimbursement.
Local governments are responsible for applying only cognizant agency approved or Caltrans accepted Indirect Cost Rate(s).
Prime Consultant or Subconsultant Certifying:
Name: Brian Everett Title *: Chief Executive Officer
Signature :
Date of Certification (mm/dd/yyyy): 9/19/2022
Email: [email protected] Phone Numbe
r:562.304.2000
Address: 5000 Airport Plaza Drive, Suite 250, Long Beach, CA 90815
*An individual executive or financial officer of the consultant’s or subconsultant’s organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract.
List services the consultant is providing under the proposed contract:
Right-of-way acquisition, project management, legals and plats, and certification
_
Local Assistance Procedures Manual EXHIBIT 10-H1
Cost Proposal
EXHIBIT 10-H 1 COST PROPOSAL Page 3 of 3
Certification of Direct Costs:
I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost proposal{s) in this contract are actual, reasonable, allowable, and allocable to the contract in accordance with the contract terms and the following requirements:
1. Generally Accepted Accounting Principles {GAAP)
2. Terms and conditions of the contract
3. Title 23 United States Code Section 112 - Letting of Contracts
4. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures
5. 23 Code of Federal Regulations Part 172 - Procurement, Management, and Administration of Engineering and Design Related Service
6. 48 Code of Federal Regulations Part 9904 - Cost Accounting Standards Board {when applicable)
All costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements.
Costs that are noncom pliant with the federal and state requirements are not eligible for reimbursement.
Local governments are responsible for applying only cognizant agency approved or Caltrans accepted Indirect Cost Rate{s).
Prime Consultant or Subconsultant Certifying:
Name: ______________ _ Title*:
Signature: _ _ _ _ _ _ ____ __ __ _ _ _ Date of Certification {mm/dd/yyyy): _ Email: ______ ______ __ _ Phone Number:
Address: ________________________________ _
*An individual executive or financial officer of the consultant's or subconsultant's organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract.
List services the consultant is providinq under the proposed contract:
January 2020
PresidentChristine Santolucito, R/W-AC $ 0.00
07/21/2022
[email protected] 951-225-3500 ext. 101
31600 Railroad Canyon Road, Suite 100-L, Canyon Lake, CA 92587 Real Estate Appraisal Review Services - 4 Appraisal Reviews for the Anaheim Safe Routes to School Project Local Assistance Procedures Manual EXHIBIT 10-H2
Cost Proposal
January 2020
EXHIBIT 10-H2 COST PROPOSAL Page 1 of 3
SPECIFIC RATE OF COMPENSATION (USE FOR ON-CALL OR AS-NEEDED CONTRACTS) (CONSTRUCTION ENGINEERING AND INSPECTION CONTRACTS)
Note: Mark-ups are Not Allowed
Consultant _Overland, Pacific & Cutler, LLC_____________________ ☒ Prime Consultant ☐ Subconsultant ☐ 2nd Tier Subconsultant
Project No. ATPSB1L5055(194)______ Contract No. _________________ Participation Amount $____________________ Date _7/28/2022_______
For Combined Rate 136.40%
Fringe Benefit % + General &Administrative % = Combined ICR% OR
For Home Office Rate
Fringe Benefit % + General &Administrative % = Home Office ICR% For Field Office Rate
Fringe Benefit % + General &Administrative % = Field Office ICR%
Fee = 10%
BILLING INFORMATION CALCULATION INFORMATION
Name/Job Title/Classification1 Hourly Billing Rates 2
Straight3 OT(1.5x) OT(2x)
Effective Date of Hourly Rate
From To
Actual or Avg.
Hourly Rate4
% or $
Increase
Hourly Range -
for Classifications Only
Vicky Cook – Program Director* $81.73
$84.18
$86.71
n/a
n/a
n/a
n/a
n/a
n/a
07/29/2022
07/29/2023
07/29/2024
07/29/2023
07/29/2024
07/29/2025
$81.73
$84.18
$86.71
3.0%
3.0%
Not Applicable
Roy Guinaldo – Broker / Senior
Project Manager*
$64.90
$66.85
$68.85
n/a
n/a
n/a
n/a
n/a
n/a
07/29/2022
07/29/2023
07/29/2024
07/29/2023
07/29/2024
07/29/2025
$64.90
$66.85
$68.85
3.0%
3.0%
Not Applicable
Senior Agent
$38.46
$39.61
$40.80
n/a
n/a
n/a
n/a
n/a
n/a
07/29/2022
07/29/2023
07/29/2024
07/29/2023
07/29/2024
07/29/2025
$38.46
$39.61
$40.80
3.0%
3.0%
Not Applicable
Agent
$31.25
$32.19
$33.15
n/a
n/a
n/a
n/a
n/a
n/a
07/29/2022
07/29/2023
07/29/2024
07/29/2023
07/29/2024
07/29/2025
$31.25
$32.19
$33.15
3.0%
3.0%
$30.00 - $33.65
$00 - $00
$00 - $00
Skip Carleton - Survey Manager*
$74.99
$77.24
$79.56
n/a
n/a
n/a
n/a
n/a
n/a
07/29/2022
07/29/2023
07/29/2024
07/29/2023
07/29/2024
07/29/2025
$74.99
$77.24
$79.56
3.0%
3.0%
Not Applicable
Local Assistance Procedures Manual EXHIBIT 10-H2
Cost Proposal
January 2020
Escrow Coordinator
$30.00
$30.90
$31.83
n/a
n/a
n/a
n/a
n/a
n/a
07/29/2022
07/29/2023
07/29/2024
07/29/2023
07/29/2024
07/29/2025
$30.00
$30.90
$31.83
3.0%
3.0%
Not Applicable
Senior Analyst
$30.00
$30.90
$31.83
n/a
n/a
n/a
n/a
n/a
n/a
07/29/2022
07/29/2023
07/29/2024
07/29/2023
07/29/2024
07/29/2025
$30.00
$30.90
$31.83
3.0%
3.0%
Not Applicable
(Add pages as necessary)
NOTES:
1. Key personnel must be marked with an asterisk (*) and employees that are subject to prevailing wage requirements must be marked with two asterisks (**).All costs must comply with the Federal cost principles. Subconsultants will provide their own cost proposals.
2. The cost proposal format shall not be amended.
3. Billing rate = actual hourly rate * (1+ ICR) * (1+ Fee). Indirect cost rates shall be updated on an annual basis in accordance with the consultant’s annual accounting period and established by a cognizant agency or accepted by Caltrans. All costs must comply with the Federal cost principles for reimbursement.
4. For named employees and key personnel enter the actual hourly rate. For classifications only, enter the Average Hourly Rate for that classification.
Local Assistance Procedures Manual EXHIBIT 10-H2
Cost Proposal
January 2020
EXHIBIT 10-H2 COST PROPOSAL Page 2 of 3
SPECIFIC RATE OF COMPENSATION (USE FOR ON-CALL OR AS-NEEDED CONTRACTS) (CONSTRUCTION ENGINEERING AND INSPECTION CONTRACTS)
Consultant _____Overland, Pacific & Cutler, LLC_____________________________________ ☒ Prime Consultant ☐ Subconsultant
Project No. _______________________ Contract No. ____________________ Date ___7/28/2022_________________
SCHEDULE OF OTHER DIRECT COST ITEMS (Add additional pages as necessary) Description of Item Quantity Unit Unit Cost Total
Mileage Costs $ $
Equipment Rental and Supplies $ $
Permit Fees $ $
Plan Sheets $ $
Test $ $
Vehicle $ $
Preliminary Title Reports 4 PTRs $650.00 $2,600.00
Subconsultant 1: Hennessey & Hennessey (up to 4 appraisals) $16,300.00 Subconsultant 2: Santolucito Doré (up to 4 appraisal reviews) $6,720.00 Subconsultant 3: $
Subconsultant 4: $
Subconsultant 5: $
Note: Add additional pages if necessary.
NOTES:
1. List other direct cost items with estimated costs. These costs should be competitive in their respective industries and supported with appropriate documentation.
2. Proposed ODC items should be consistently billed regardless of client and contract type.
3. Items when incurred for the same purpose, in like circumstance, should not be included in any indirect cost pool or in the overhead rate.
4. Items such as special tooling, will be reimbursed at actual cost with supporting documentation (invoice).
5. Items listed above that would be considered "tools of the trade" are not reimbursable as other direct cost.
6. Travel related costs should be pre-approved by the contracting agency and shall not exceed current State Department of Personnel Administration rules.
7. If mileage is claimed, the rate should be properly supported by the consultant's calculation of their actual costs for company vehicles. In addition, the miles claimed should be supported by mileage logs.
8. If a consultant proposes rental costs for a vehicle, the company must demonstrate that this is its standard procedure for all of their contracts and that they do not own any vehicles that could be used for the same purpose.
9. The cost proposal format shall not be amended. All costs must comply with the Federal cost principles.
10. Add additional pages if necessary.
11. Subconsultants must provide their own cost proposals.
Local Assistance Procedures Manual EXHIBIT 10-H2
Cost Proposal
January 2020
EXHIBIT 10-H2 COST PROPOSAL Page 3 of 3
Certification of Direct Costs:
I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost proposal(s) in this contract are actual, reasonable, allowable, and allocable to the contract in accordance with the contract terms and the following requirements:
7. Generally Accepted Accounting Principles (GAAP)
8. Terms and conditions of the contract
9. Title 23 United States Code Section 112 - Letting of Contracts
10. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures
11. 23 Code of Federal Regulations Part 172 - Procurement, Management, and Administration of Engineering and Design Related Service
12. 48 Code of Federal Regulations Part 9904 - Cost Accounting Standards Board (when applicable)
All costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements. Costs that are noncompliant with the federal and state requirements are not eligible for reimbursement.
Prime Consultant or Subconsultant Certifying:
Name: Brian Everett Title *: Chief Executive Officer
Signature :
Date of Certification (mm/dd/yyyy): 7/28/2022
Email: [email protected] Phone Numbe
r:562.304.2000
Address: 5000 Airport Plaza Drive, Suite 250, Long Beach, CA 90815
* An individual executive or financial officer of the consultant’s or subconsultant’s organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract.
List services the consultant is providing under the proposed contract:
Right-of-way acquisition, project management, legals and plats, and certification
Local Assistance Procedures Manual Exhibit 10-K
Consultant Annual Certification of Indirect Costs and Financial Management System EXHIBIT 10-KCONSULTANT ANNUAL CERTIFICATION OF
INDIRECT COSTS AND FINANCIAL MANAGEMENT SYSTEM
(Note: If a Safe Harbor Indirect Cost Rate is approved, this form is not required.) Consultant’s Full Legal Name:
Important: Consultant means the individual or consultant providing engineering and design related services as a party of a contract with a recipient or sub-recipient of Federal assistance. Therefore, the Indirect Cost Rate(s) shall not be combined with its parent company or subsidiaries.
Indirect Cost Rate:
Combined Rate % OR
Home Office Rate % and Field Office Rate (if applicable) % Facilities Capital Cost of Money % (if applicable)
Fiscal period *
* Fiscal period is annual one year applicable accounting period that the Indirect Cost Rate was developed (not the contract period). The Indirect Cost Rate is based on the consultant’s one-year applicable accounting period for which financial statements are regularly prepared by the consultant.
I have reviewed the proposal to establish an Indirect Cost Rate(s) for the fiscal period as specified above and have determined to the best of my knowledge and belief that:
• All costs included in the cost proposal to establish the indirect cost rate(s) are allowable in accordance with the cost principles of the Federal Acquisition Regulation (FAR) 48, Code of Federal Regulations (CFR), Chapter 1, Part 31 (48 CFR Part 31); • The cost proposal does not include any costs which are expressly unallowable under the cost principles of 48 CFR Part 31;
• The accounting treatment and billing of prevailing wage delta costs are consistent with our prevailing wage policy as either direct labor, indirect costs, or other direct costs on all federally- funded A&E Consultant Contracts.
• All known material transactions or events that have occurred subsequent to year-end affecting the consultant’s ownership, organization, and indirect cost rates have been disclosed as of the date of this certification.
I am providing the required and applicable documents as instructed on Exhibit 10-A.
Financial Management System:
Our labor charging, job costing, and accounting systems meet the standards for financial reporting, accounting records, and internal control adequate to demonstrate that costs claimed have been incurred, appropriately accounted for, are allocable to the contract, and comply with the federal requirements as set forth in Title 23 United States Code (U.S.C.) Section 112(b)(2); 48 CFR Part 31.201-2(d); 23 CFR, Chapter 1, Part 172.11(a)(2); and all applicable state and federal rules and regulations.
Our financial management system has the following attributes:
• Account numbers identifying allowable direct, indirect, and unallowable cost accounts; • Ability to accumulate and segregate allowable direct, indirect, and unallowable costs into separate cost
March 2018
Overland, Pacific & Cutler, LLC
136.40
1/1/2021 - 12/31/2021
Local Assistance Procedures Manual Exhibit 10-K
Consultant Annual Certification of Indirect Costs and Financial Management System accounts;
• Ability to accumulate and segregate allowable direct costs by project, contract and type of cost; • Internal controls to maintain integrity of financial management system; • Ability to account and record costs consistently and to ensure costs billed are in compliance with FAR; • Ability to ensure and demonstrate costs billed reconcile to general ledgers and job costing system; and • Ability to ensure costs are in compliance with contract terms and federal and state requirement Cost Reimbursements on Contracts:
I also understand that failure to comply with 48 CFR Part 16.301-3 or knowingly charge unallowable costs to Federal-Aid Highway Program (FAHP) contracts may result in possible penalties and sanctions as provided by the following:
• Sanctions and Penalties - 23 CFR Part 172.11(c)(4)
• False Claims Act - Title 31 U.S.C. Sections 3729-3733 • Statements or entries generally - Title 18 U.S.C. Section 1001 • Major Fraud Act - Title 18 U.S.C. Section 1031
All A&E Contract Information:
• Total participation amount $___________________ on all State and FAHP contracts for Architectural & Engineering services that the consultant received in the last three fiscal periods. • The number of states in which the consultant does business is . • Years of consultant’s experience with 48 CFR Part 31 is . • Audit history of the consultant’s current and prior years (if applicable) ☐ Cognizant ICR Audit ☐ Local Gov’t ICR Audit □ Caltrans ICR Audit ☐ Federal Gov’t ICR Audit ☐ CPA ICR Audit
I, the undersigned, certify all of the above to the best of my knowledge and belief and that I have reviewed the Indirect Cost Rate Schedule to determine that any costs which are expressly unallowable under the Federal cost principles have been removed and comply with Title 23 U.S.C. Section 112(b)(2), 48 CFR Part 31, 23 CFR Part 172, and all applicable state and federal rules and regulations. I also certify that I understand that all documentation of compliance must be retained by the consultant. I hereby acknowledge that costs that are noncompliant with the federal and state requirements are not eligible for reimbursement and must be returned to Caltrans.
Name**: _ Title**:
Signature: Date of Certification (mm/dd/yyyy):
Email**: Phone Number**:
**An individual executive or financial officer of the consultant’s or subconsultant’s organization at a level no lower than a Vice President, a Chief Financial Officer, or equivalent, who has authority to represent the financial information used to establish the indirect cost rate.
Note: Both prime and subconsultants as parties of a contract must complete their own Exhibit 10-K forms.
Caltrans will not process local agency’s invoices until a complete Exhibit 10-K form is accepted and approved by Caltrans Audits and Investigations.
Distribution: 1) Original - Local Agency Project File
2) Copy - Consultant
3) Copy - Caltrans Audits and Investigations
March 2018
6 22
/uni2714
Chief Financial OfficerBetsy Anderson
06/23/2022
[email protected]
Local Assistance Procedures Manual Exhibit 10-O1
Consultant Proposal DBE Commitment
EXHIBIT 10-O1 CONSULTANT PROPOSAL DBE COMMITMENT
1. Local Agency: 2. Contract DBE Goal:
3. Project Description:
4. Project Location:
5. Consultant's Name: 6. Prime Certified DBE:
7. Description of Work, Service, or Materials
Supplied
8. DBE
Certification
Number
Local Agency to Complete this Section
17. Local Agency Contract Number:
18. Federal-Aid Project Number:
19. Proposed Contract Execution Date:
20. 21. Local Agency Representative's Signature 22. Date
23. Local Agency Representative's Name 24. Phone
25. Local Agency Representative's Title
Consultant’s Ranking after Evaluation: __________________________ Local Agency certifies that all DBE certifications are valid and information on this form is complete and accurate.
9. DBE Contact Information
11. TOTAL CLAIMED DBE PARTICIPATION
10. DBE %
%
IMPORTANT: Identify all DBE firms being claimed for credit, regardless of tier. Written confirmation of each listed DBE is required.
12. Preparer's Signature 13. Date
14. Preparer's Name 15. Phone
16. Preparer's Title
DISTRIBUTION: Original – Included with consultant’s proposal to local agency.
ADA Notice: For individuals with sensory disabilities, this document is available in alternate formats. For information call (916) 654-6410 or TDD (916) 654- 3880 or write Records and Forms Management, 1120 N Street, MS-89, Sacramento, CA 95814.
LPP 18-01 Page 1 of 2
January 2019
Reset Form
Citywide SRTS Sidewalk Gap Closure Project
10%City of Anaheim
Various location throughout the City: Acacia St, La Palma Ave, Frontera St, & Santa Ana Canyon Rd.
Overland, Pacific & Cutler, LLC
Appraisal Reports
Appraisal Review
38014
43345
ATPSB1L5055 (194)
Hennessey & Hennessey, 17602 17TH STREET, SUITE
102 - 246, TUSTIN, CA 92780, [email protected]
SD GROUP, 31600 RAILROAD CANYON ROAD, SUITE 100-L,
CANYON LAKE, CA 92587, [email protected]
25.87 10.66
36.53 09/19/2022
562.684.8918Erica Waddell
Business Development Manager
Digitally signed by Erica
Waddell
Date: 2022.07.28
14:29:30 -07'00'
Local Assistance Procedures Manual Exhibit 15-H
Proposer/Contractor Good Faith Effort
EXHIBIT 15-H: PROPOSER/CONTRACTOR GOOD FAITH EFFORTS
Cost Proposal Due Date ___________________ PE/CE
Federal-aid Project No(s). _____________________ Bid Opening Date ___________________ CON The established a Disadvantaged Business Enterprise (DBE) goal of ______ for this contract. The information provided herein shows the required good faith efforts to meet or exceed the DBE contract goal.
Proposers or bidders submit the following information to document their good faith efforts within five (5) calendar days from cost proposal due date or bid opening. Proposers and bidders are recommended to submit the following information even if the Exhibit 10-O1: Consultant Proposal DBE Commitments or Exhibit 15-G:
Construction Contract DBE Commitment indicate that the proposer or bidder has met the DBE goal. This form protects the proposer’s or bidder’s eligibility for award of the contract if the administering agency determines that the bidder failed to meet the goal for various reasons, e.g., a DBE firm was not certified at bid opening, or the bidder made a mathematical error.
The following items are listed in the Section entitled “Submission of DBE Commitment” of the Special Provisions, please attach additional sheets as needed:
A. The names and dates of each publication in which a request for DBE participation for this project was placed by the bidder (please attach copies of advertisements or proofs of publication):
Publications Dates of Advertisement
B. The names and dates of written notices sent to certified DBEs soliciting bids for this project and the dates and methods used for following up initial solicitations to determine with certainty whether the DBEs were interested (please attach copies of solicitations, telephone records, fax confirmations, etc.):
Names of DBEs Solicited Date of Initial Solicitation Follow Up Methods and Dates
May 2020
07/29/2022
ATPSB1L5055 (194)
City of Anaheim
10.00%
n/a
Hennessey & Hennessey 07/13/2022
07/14/2022
07/14/2022
07/13/2022Santolucito Dore Group
Integra Realty Resources - OC
07/21/2022
07/20/2022
07/13/2022
07/13/2022
Coast Surveying
email to answer question
email to answer question
returned call
email follow up
Local Assistance Procedures Manual Exhibit 15-H
Proposer/Contractor Good Faith Effort
C. The items of work made available to DBE firms including those unbundled contract work items into economically feasible units to facilitate DBE participation. It is the bidder's responsibility to demonstrate that sufficient work to facilitate DBE participation in order to meet or exceed the DBE contract goal.
Items of Proposer or Bidder Breakdown of Amount Percentage Work Normally Performs Item Items ($) Of
(Y/N) Contract
D. The names, addresses and phone numbers of rejected DBE firms, the reasons for the bidder's rejection of the DBEs, the firms selected for that work (please attach copies of quotes from the firms involved), and the price difference for each DBE if the selected firm is not a DBE:
Names, addresses and phone numbers of rejected DBEs and the reasons for the bidder's rejection of the DBEs:
Names, addresses and phone numbers of firms selected for the work above:
E. Efforts (e.g. in advertisements and solicitations) made to assist interested DBEs in obtaining information related to the plans, specifications and requirements for the work which was provided to DBEs:
May 2020
No 4 appraisal reports $ 16,300.00 25.87%Appraisal
10.66%$ 6,720.004 appraisal reviewsYes
No Legals / Plats
0.00%
Yes
No
Appraisal Review
20.31%$ 12,800.00Legals / Plats
Pick
Yes
OPC included the RFP and links to Google maps of the project sites along with our request for information.
Integra Realty Resources
16030 Ventura Boulevard, Suite 620, Encino, CA 91436-4473, 818.290.5405 Bid $3,700 higher for appraisal reports and $4,280 higher for appraisal review (attached) Coast Surveying, Inc.
15031 Parkway Loop, Suite B, Tustin, CA 92780,
Bid over $2,000 higher than self-performing legals and plats, bid 6 days late (attached) Appraisal Reports - Hennessey & Hennessey LLC (DBE)
17602 17th Street, Suite 102 - 246, Tustin, CA 92780, 714.730.0744 Appraisal Reviews - SD Group, Inc. (DBE)
31600 Railroad Canyon Road, Suite 100-L,Canyon Lake, CA 92587, 951.225.3500 Legals & Plats - Overland, Pacific & Cutler, LLC
5000 Airport Plaza Drive, Suite 250, Long Beach, CA 90815, 562.304.2000 none
Local Assistance Procedures Manual Exhibit 15-H
Proposer/Contractor Good Faith Effort
F. Efforts (e.g. in advertisements and solicitations) made to assist interested DBEs in obtaining bonding, lines of credit or insurance, necessary equipment, supplies, materials, or related assistance or services, excluding supplies and equipment the DBE subcontractor purchases or leases from the prime contractor or its affiliate:
G. The names of agencies, organizations or groups contacted to provide assistance in contacting, recruiting and using DBE firms (please attach copies of requests to agencies and any responses received, i.e., lists, Internet page download, etc.):
Name of Agency/Organization Method/Date of Contact Results H. Any additional data to support a demonstration of good faith efforts:
May 2020
CUCP https://californiaucp.dbesystem.com/
none
website, 7/13/2022 firms outreached
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Integra Realty Resources- OrangeCounty
07/21/2022
Stephanie Kavanaugh
Cathy Williams
$ 12,000.00
$ 20,000.00
$20,000.00
$ 20,000.00
TBDCityofAnaheim-Appraisals
Team Leader/Reviewer
TeamLeader/Reviewer
Senior Appraiser
Appraiser
Beth B.Finestone
J. Richard Donahue
IntegraRealty Resources - Orange County
$ 8,000.00Nursery Property
0.00%
0.00%
0.00%
:KYZ
Single-FamilyResidences($4,000each)
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Integra Realty Resources - Orange County
07/21/2022
Stephanie Kavanaugh
Cathy Williams
$ 7,500.00
$ 11,000.00
$ 11,000.00
$ 11,000.00
TBD
Team Leader/Reviewer
Team Leader/Reviewer
Senior Appraiser
Appraiser
Beth B. Finestone
J. Richard Donahue
Integra Realty Resources - Orange County
$ 3,500.00Nursery Property
0.00%
0.00%
0.00%
:KYZ
Single-Family Residences ($2,500 each)
City of Anaheim - Appraisal
Reviews
www.OPCservices.com | 5000 Airport Plaza Drive, Suite 250, Long Beach, CA 90815 ph 562.304.2000 | fx 562.304.2020
ANAHEIM SAFE ROUTES TO SCHOOL
SIDEWALK GAP EASEMENT EXHIBITS
TASK 2 – PLATS and LEGALS
OPC will acquire Preliminary Title Reports for the four impacted parcels. Using the materials and documents provided by the City, OPC will prepare and deliver legal descriptions and plats (8½” x 11”) prepared by a California licensed Professional Land Surveyor for up to four permanent easements and three temporary construction easements required by the proposed construction of missing sidewalks for the project.
FEE $12,800.00
ASSUMPTIONS AND EXCLUSIONS
OPC will receive in a timely manner, a fully reconciled Land Net Map, establishing the datum, depicting controlling survey monumentation and the existing Right of Ways (in AutoCAD Civil 3D format) prepared by the LSR (“Land Surveyor of Record”). A OPC will receive in a timely manner, a Right of Way Requirements Map (in AutoCAD Civil 3D format) will be provided by the project civil design engineer. This project is “Off System” and will not require a Right of Way Record Map. OPC is not the LSR (“Land Surveyor of Record”) for this project; should circumstances trigger the requirement for items such as the preparation and filing of a Record of Survey, that work is considered to be outside of OPC’s scope of work and will require an amendment to the contract. OPC’s deliverables will be to and for the City of Anaheim and will not be reviewed by or constrained to formats and procedures of others; i.e., Caltrans.
Local Assistance Procedures Manual Exhibit 10-O2
Consultant Contract DBE Commitment
EXHIBIT 10-O2 CONSULTANT CONTRACT DBE COMMITMENT
1. Local Agency: 2. Contract DBE Goal:
3. Project Description:
4. Project Location:
5. Consultant's Name: 6. Prime Certified DBE: 7. Total Contract Award Amount:
8. Total Dollar Amount for ALL Subconsultants: 9. Total Number of ALL Subconsultants:
10. Description of Work, Service, or Materials
Supplied
11. DBE
Certification
Number
12. DBE Contact Information
13. DBE
Dollar
Amount
Local Agency to Complete this Section
14. TOTAL CLAIMED DBE PARTICIPATION
$20. Local Agency Contract
Number:
21. Federal-Aid Project Number:
22. Contract Execution
Date:
Local Agency certifies that all DBE certifications are valid and information on this form is complete and accurate.
23. Local Agency Representative's Signature 24. Date
25. Local Agency Representative's Name 26. Phone
27. Local Agency Representative's Title
%
IMPORTANT: Identify all DBE firms being claimed for credit, regardless of tier. Written confirmation of each listed DBE is required.
15. Preparer's Signature 16. Date
17. Preparer's Name 18. Phone
19. Preparer's Title
DISTRIBUTION: 1. Original – Local Agency
2. Copy – Caltrans District Local Assistance Engineer (DLAE). Failure to submit to DLAE within 30 days of contract execution may result in de-obligation of federal funds on contract.
ADA Notice: For individuals with sensory disabilities, this document is available in alternate formats. For information call (916) 654 -6410 or TDD (916) 654- 3880 or write Records and Forms Management, 1120 N Street, MS-89, Sacramento, CA 95814.
July 23, 2015
Citywide SRTS Sidewalk Gap Closure Project
City of Anaheim 10%
Various location throughout the City: Acacia St, La Palma Ave, Frontera St, & Santa Ana Canyon Rd.
Overland, Pacific & Cutler, LLC
3$ 25,620.00
63,015.26
Appraisal Reports 38014
Hennessey & Hennessey, 17602 17TH STREET,
SUITE 102 - 246, TUSTIN, CA 92780, [email protected]
Appraisal Review 43345
$ 16,300.00
SD GROUP, 31600 RAILROAD CANYON ROAD, SUITE 100-L,
CANYON LAKE, CA 92587, [email protected] $ 6,720.00 23,020.00
ATPSB1L5055 (194) 36.53
09/19/2022
Erica Waddell 562.684.8918
Business Development Manager
Digitally signed by Erica
Waddell
Date: 2022.09.20
22:43:40 -07'00'
Overland, Pacific & Cutler, LLC (OPC)
City of Anaheim - Contact Information
Didar Khandker, PE
City of Redondo Beach
Engineering Services Division
OPC is way above its competitors in the
industry. I have a very positive experience
and feelings about OPC and its staff. I
would recommend OPC to our colleagues
if asked for my opinion.
Overland, Pacific & Cutler, LLC
5000 Airport Plaza Drive,
Suite 250
Long Beach, CA 90815
Roy Guinaldo, RWA, RWP
Senior Project Manager
Direct : 562.354.2446
Office : 562.304.2000
Email : [email protected]
www.OPCservices.com
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.