City of Anaheim
DEPARTMENT OF PUBLIC WORKS
Anaheim City Hall
200 S. Anaheim Blvd.,
Suite 276
Anaheim, CA 92805
TEL (714) 765-5176
FAX (714) 765-5225
www.anaheim.net
July 6, 2022
To: Prospective Consultants
Subject: Request for Proposal (RFP) for the Citywide Safe Routes to School Sidewalk Gap Closure Project: Right -of-Way
Acquisition Services; Federally Funded Project – Active Transportation Programs (Cycle 4)
The City of Anaheim is seeking a consultant to provide right -of-way acquisition services for the Citywide Safe Routes to School Sidewalk Gap Closure Project.
The project is located at various locations throughout the City of Anaheim, all located within one-half mile of school entrances along Acacia Street, La Palma Avenue, Frontera Street and Santa Ana Canyon Road. The details of the work are further delineated in the attached Scope of Work and Exhibits.
The RFP and all the attachments are available online, and can be accessed at the link below:
https://pbsystem.planetbids.com/portal/14424/bo/bo-detail/95707 The successful Consultant shall be required to enter into a contract with the City of Anaheim in the form approved by the Anaheim City Attorney. Your proposal and a completed and signed original Conflict of Interest Form and Caltrans forms for the Consultant’s Agreement are due no later than 5:00 PM on Friday, July 29, 2022. Four (4) hard copies of each independent Proposal and one (1) digital file on a labeled USB Flash Drive (or equivalent) of y our proposal shall be provided. The Proposal shall be signed by a company official with the power to bind the company and submitted to the City of Anaheim. The Fee Proposal shall be submitted separately in a sealed separate envelope and delivered to:
City of Anaheim
Public Works Department, 2nd Floor
200 S. Anaheim Boulevard
Anaheim, CA 92805
Attn: Megan Hajimomen, Associate Engineer
Should you have any questions or need additional information, please contact Megan Hajimomen at (714) 765-5100 x5818.
Sincerely,
David K. Mori, Esq., P.E.
Engineering Manager
cc: Carlos Castellanos
Ellie Yazdani
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
REQUEST FOR PROPOSALS (RFP)
FOR
RIGHT-OF-WAY ACQUISITION SERVICES
FOR THE CITYWIDE SAFE ROUTES TO
SCHOOL SIDEWALK GAP CLOSURE PROJECT
FEDERALLY FUNDED PROJECT – ATP CYCLE 4
ACCOUNT NO.: 276-412-K955-7892
RCP NO.: RCP2020-17725
FEDERAL AID PROJECT NO.: ATPSB1L-5055 (194)
CITY OF ANAHEIM
Public Works Department
200 S. Anaheim Boulevard
Anaheim, CA 92805
David K. Mori, Esq., P.E.
Design Services Manager
Approved for Release:
Carlos Castellanos
City Engineer
Public Works Department
KEY RFP DATES (Subject to change at discretion of City):
Issue Date/DBE Notification #1: Wednesday, July 6, 2022 DBE Notification #2 (if applicable): Wednesday, July 13, 2022 Deadline for Requests for Information: Monday, July 25, 2022 Proposal Due Date: Friday, July 29, 2022; 5 PM
Proposal Reviews (Week of): Monday, August 1, 2022
Council Award (Anticipated): Tuesday, September 13, 2022
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
NOTICE INVITING PROPOSALS
NOTICE IS HEREBY GIVEN that proposals will be received from qualified firms for Right-of-Way Acquisition Services for the Citywide Safe Routes to School Sidewalk Gap Closure Project.
Responses to this Request for Proposals (RFP) will be accepted until Friday, July 29, 2022 at 5:00 p.m. P roposals received after this date/time will not be considered. It is the responsibility of the Consultant to ensure that any proposals submitted have sufficient time to be received by the City of Anaheim prior to this proposal due date and time.
This project is funded through the Federal Active Transportation Program and is subject to all requirements set by Caltrans Division of Local Assistance.
The set DBE goal for this project is 10%. The Consultant shall meet this goal or show that a Good Faith Effort was made.
Proposals shall be enclosed in a sealed envelope and marked clearly with following information, formatted as follows:
“SEALED PROPOSAL FOR
RIGHT-OF-WAY ACQUISITION SERVICES FOR
THE CITYWIDE SAFE ROUTES TO SCHOOL
SIDEWALK GAP CLOSURE PROJECT
IN THE CITY OF ANAHEIM
DO NOT OPEN WITH REGULAR MAIL.”
City of Anaheim
Attn.: Megan Hajimomen
Associate Civil Engineer
Public Works Department
200 S. Anaheim Blvd; MS #276
Anaheim, CA 92807
Proposals shall be mailed, hand delivered, or sent by courier service.
Proposals shall NOT be sent via telegraphic, electronic or facsimile.
All notifications, updates and addenda will be available online and can be accessed on the PlanetBids page at:
https://pbsystem.planetbids.com/portal/14424/bo/bo-detail/95707 Consultants shall be responsible for registering on PlanetBids to obtain information regarding this solicitation. Failure to respond to required addenda will result in a determination of a nonresponsive proposal.
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
CITY OF ANAHEIM
REQUEST FOR PROPOSALS FOR
RIGHT-OF-WAY ACQUISITION SERVICES
FOR THE
CITYWIDE SAFE ROUTES TO SCHOOL
SIDEWALK GAP CLOSURE PROJECT
TABLE OF CONTENTS
I. INTRODUCTION .......................................................................................................................................... 4
II. PROJECT BACKGROUND ....................................................................................................................... 4
III. PROJECT DESCRIPTION ......................................................................................................................... 5
IV. SCOPE OF WORK ...................................................................................................................................... 5
V. PROPOSAL TERMS AND CONDITIONS ............................................................................................... 7
VI. INSTRUCTIONS TO CONSULTANTS ..................................................................................................... 8
VII. SUBMITTAL REQUIREMENTS ................................................................................................................ 9
VIII. PROPOSAL REVIEW (CONSULTANT SELECTION) ........................................................................ 15
IX. AWARD OF AGREEMENT ...................................................................................................................... 15
X. IMPLEMENTATION ................................................................................................................................... 16
XI. COMPENSATION ...................................................................................................................................... 16
XII. PUBLIC RECORDS ................................................................................................................................... 16
XIII. APPENDICES ............................................................................................................................................... 17 APPENDIX 1: PROJECT LOCATIONS, PRELIMINARY EXHIBITS, AND RIGHT-OF-WAY TABLE APPENDIX 2: ENVIRONMENTAL DOCUMENTS
APPENDIX 3: LOCAL ASSISTANCE PROCEDURES MANUAL EXHIBIT 13-C APPENDIX 4: SAMPLE AGREEMENT
APPENDIX 5: INSURANCE
APPENDIX 6: LOCAL ASSISTANCE PROCEDURES MANUAL EXHIBIT 10-I APPENDIX 7: LOCAL ASSISTANCE PROCEDURES MANUAL EXHIBIT 10-Q APPENDIX 8: LOCAL ASSISTANCE PROCEDURES MANUAL EXHIBIT 10-O1 APPENDIX 9: LOCAL ASSISTANCE PROCEDURES MANUAL EXHIBIT 15-H APPENDIX 10: LOCAL ASSISTANCE PROCEDURES MANUAL EXHIBIT 10-O2 APPENDIX 11: LOCAL ASSISTANCE PROCEDURES MANUAL EXHIBIT 10-H (Examples #1 thru #3) APPENDIX 12: LOCAL ASSISTANCE PROCEDURES MANUAL EXHIBIT 10-K APPENDIX 13: DESIGNATION OF SUB-CONTRACTORS
APPENDIX 14: CONFLICT OF INTEREST
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
CITY OF ANAHEIM
REQUEST FOR PROPOSALS FOR
RIGHT-OF-WAY ACQUISITION SERVICES
FOR THE
CITYWIDE SAFE ROUTES TO SCHOOL
SIDEWALK GAP CLOSURE PROJECT
I. INTRODUCTION
General:
The City of Anaheim is seeking a consultant to provide right -of-way acquisition services including, but not limited to, title reports, property appraisals, right-of-way acquisitions and negotiations, temporary construction easements, plat maps, legal descriptions, final record maps, and Caltrans Right-of-Way Certification for the Citywide Safe Routes to School Sidewalk Gap Closure Project (ATPSB1L-5055 (194)). This project is federally funded and services must comply with the Caltrans Local Assistance Procedures Manual (LAPM). The DBE goal for this project will be 10%.
Number of Proposals and Signature:
Four (4) hard copies of each independent Proposal and one (1) digital file on a labeled USB Flash Drive (or equivalent) of your proposal shall be provided. The Proposal shall be signed by a company official with the power to bind the company and submitted to the C ity of Anaheim.
One (1) Fee Proposal shall be submitted under a separate sealed envelope, and not included on the digital file.
Please provide a .pdf copy on a USB Flash Drive (or equivalent) of right-of-way acquisition services for a similar project your firm prepared as a sample of your work.
Prevailing Wages:
In accordance with the Federal Davis-Bacon Act and the California State Labor Code, prevailing wages rates apply. Copies of the prevailing rate of per diem wages are on file with the Public Works Agency and shall be made available to any interested party on request. When prevailing wages apply to the services described in the scope of work, transportation and subsistence costs shall be reimbursed at the minimum rates set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination. See http://www.dir.ca.gov.
II. PROJECT BACKGROUND
The City of Anaheim has received federal Active Transportation Program funding for this project.
The City has identified the need for right-of-way acquisition and temporary construction easements. The PAED phase has been completed, and this project has obtained both California Environmental Quality Act (CEQA) and NEPA environmental clearance accepted by Caltrans and FHWA.
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
III. PROJECT DESCRIPTION
As part of an ongoing effort to enhance safety near schools, the Public Works Department applied for and received ATP grant funding to construct new sidewalks around various parts of the city. The City of Anaheim is the lead agency for the design, right-of-way, and construction phases of the Project. The City has completed the PAED phase.
City Staff conducted an arterial sidewalk and curb ramp survey to identify all remaining sidewalk gaps on the arterial street. The survey revealed five locations with missing sidewalk segments located within one-half mile of school entrances (public or private) where pedestrians must walk on the street, across either lawns, dirt, or uneven segments of private property or cross the road to reach their destinations. Four of five public schools impacted by these sidewalk gaps are located in disadvantaged communities.
The Project will construct over 6,500 linear feet of ADA accessible sidewalk near nine schools (five public and four private), closing sidewalk gaps located within one-half mile of a school entrance and re-construction of ADA compliant driveways at the following locations: Acacia Street, La Palma Avenue, Frontera Street, and Santa Ana Canyon Road. Refer to the Project Map and Preliminary Exhibits (Appendix 1) for the project location and limits.
The selected Right -of-Way Acquisition Consultant shall provide title reports, property appraisals, right-of-way acquisitions and negotiations, temporary construction easements, plat maps, legal descriptions, final record maps, and Caltrans Right-of-Way Certification needed for this project. The project is anticipated to require three (3) right-of-way acquisitions and four (4) TCE’s, and are approximated in the Right-of-Way Table (Appendix 1).
The Consultant will obtain title reports and appraisals, and lead negotiation/acquisition activities.
All project services and deliverables must adhere to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 as amended in 1987 (the Uniform Act ), Title IV of the 1964 Civil Rights Act, and current Federal and California Department of Transportation (Caltrans) requirements, including the Caltrans Exhibit 13-C – Consultant Selection Criteria and Guide (Appendix 3). The final objective under the rig ht-of-way phase is to obtain the right -of- way certification from Caltrans. The Consultant shall complete all documents necessary to obtain a right -of-way certification using procedures outlined in the Caltrans Local Assistance Manual.
IV. SCOPE OF WORK
General
The City of Anaheim is requesting proposals from professional right-of-way acquisition firms to provide the following services as defined under each task of Consultant Services.
This project is Categorically Exempt from the California Environmental Quality Act (CEQA) pursuant to Title 14, Section 15301 of the California Code of Regulation. Caltrans has determined that this project is Categorically Excluded under the National Environmental Policy Act (Appendix 2). The Consultant shall become familiar with the approved environmental documents and shall provide the City notice as to their affect, if any, into the right -of-way acquisitions process.
The City will provide preliminary exhibits , right -of-way maps, existing right -of-way lines, Assessor Parcel numbers, and street addresses of properties impacted by the proposed improvements. The City will also provide the impact (square footage) for each property.
All documents shall be submitted in draft form in a Microsoft Word format for City review and
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
comment. Graphics and appendices shall be submitted in PDF format. The submittal of final technical reports and drawings shall be provided electronically in Adobe Acrobat PDF format and/or Microsoft Word format, as directed by the City. Each final electronic submission shall include four (4) hard copies.
All work products and deliverables shall be prepared in accordance with the latest Caltrans' regulations, policies, procedures, manuals and standards, and in compliance with Federal Highway Administration (FHWA) requirements.
Time is essential and the project schedule shall firmly conform to the City deadlines.
The selected Consultant shall work towards completing and meeting the task s outlined below.
The proposed schedule should reflect any potential issues.
Consultant Services
Task 1 – Project Management
1. Attend a kick -off meeting with City staff and two (2) additional meetings thereafter including the preparation of a meeting agenda distributed at a minimum of three (3) working days prior to the meeting. Meeting minutes are required and should be completed within one week after the meeting.
2. Conduct all necessary research, and obtain records and documents in order to complete the right-of-way acquisitions for the project.
3. Coordinate with sub-consultants (if needed) to ensure the timely completion of work.
4. Prepare and provide support documentation in response to Caltrans and/or FHWA comments.
5. Provide monthly progress status reports.
Task 2 – Plats and Legals
1. The Consultant shall prepare the plat maps, legal descriptions, final record maps and other necessary documents for the identification of existing and proposed Right-of-Way Acquisitions and Temporary Construction Easements (TCE’s) based on the identified right-of-way needs for the project. Plat maps and legal descriptions will identify portions of property takes by square footage. Right-of-Way Acquisitions and TCE’s may result in direct impacts to existing private on- site improvements (i.e. joining elevations at driveways, walkways and ramps). The Consultant shall obtain and provide all title reports for the affected properties.
2. The Consultant shall provide four (4) copies of three (3) ring binders, and one (1) digital file on a labeled USB Flash Drive (or equivalent) that contains the following information:
a. Right-of-Way plats and legal descriptions for each property/parcel requiring acquisition, and identified by an acquisition right-of-way number provided by Real Property/Design Section.
b. TCE plats and legal descriptions for each property/parcel requiring the need for the purposes of removal, demolition, and construction of improvements and identified by an acquisition right-of-way number provided by Real Property/ Design Section.
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
c. Copies of Title Reports shall be included in each binder and digital file.
3. Approval by The Public Works Department Survey Section is required for all Right -of- Way Acquisitions and Temporary Construction Easements (TCE) p lats and legal descriptions.
Task 3 – Member of Appraisal Institute (MAI): Appraisals
1. The Consultant shall be responsible for determining the fair market value for the Right- of-Way Acquisitions and TCE’s in accordance with professional standards, the Uniform Act, Caltrans manuals, and all other applicable laws and regulations. Appraiser responsibilities under the Uniform Act include, but are not limited to the following:
a. Property owner must be notified in writing of the City’s decision to appraise. i. The letter must also include an explanation of the City’s acquisition procedures.
b. Property owner or designee must be given opportunity to accompany appraiser during property inspection.
c. Responsibility of sending Title VI information.
d. Diary entry of notifications and contacts.
e. Prepare Appraisal Waiver Valuations, if appropriate. f. Appraisal to contai n minimum recognized standards for public acquisition (Zoning, Property Rights to be acquired, Highest and Best Use Analysis, Verified Comparable, Improvements Acquired, Damages, Cost-to-Cure, etc.) g. All MAI appraisals must contain Appraiser and Review Appraiser Certificates.
Task 4 - Acquisition
1. The Consultant shall assist the City with securing all the property rights necessary to construct the project and certify the project, see Task 5 - Certifications section below.
2. The selected Consultant shall prepare offers and negotiate right -of-way purchase/sale contracts to acquire the property. Prior to initiating negotiations for the acquisition of real property, the Consultant must provide all pertinent information to the City for the establishment of just compensation for each property.
3. The Consultant must have the appropriate and valid State of California issued license or registration to practice in the specific discipline, refer to the Consultant Selection Criteria and Guide, Caltrans Exhibit 13-C (Appendix 3) for further information.
4. Consultant acquisition responsibilities under the Uniform Act:
a. Ensure establishment of just compensation prior to initiation of negotiations. b. Expeditious acquisition within 30 days of approved appraisal. c. First Written Offer should be represented in person when possible. d. Caltrans requires that a copy of the appraisal report be provided to the owner with the First Written Offer; a Summary Statement (basis for the appraisal) is optional in this case.
e. Owner to be given reasonable time to consider offer and present material relevant to value determination (i.e. 30 days and a minimum of 3 contacts). f. Payment is required before taking possession unless date of possession clause is used in contract.
g. City is responsible for payment of all incidental expenses (title, escrow, surveys, prepayment penalties, etc.)
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
h. Preparation of Administrative Settlements when it is reasonable and in the public interest.
i. Diary entries including confirmation of delivering Title IV information.
5. Should negotiation of any property not settle by acquisition agreement, the Consultant will be required to provide additional exhibits. This includes, but not limited to, right of way maps, sketches, power point presentations, and CDs for legal counsel purposes.
Task 5 - Certification
Upon completion of securing all the right-of-way for the project, the Consultant shall prepare the Caltrans Exhibit 13 -B: Right-of-Way Certification Local Assistance along with all the required accompanying forms and provide all the backup documentation.
V. PROPOSAL TERMS AND CONDITIONS
By submitting a Proposal, the Consultant acknowledges that it has thoroughly examined and accepts the Terms and Conditions of the RFP as described below:
1. Examination: Consultant demonstrates it has thoroughly examined and become familiar with the services and responsibilities required of this RFP and it is capable of effectively and efficiently performing quality work to achieve the City’s objectives. Any attachments referenced herein or any interpretations, clarifications or amendments subsequently posted in relation to this RFP are fully incorporated.
2. Execution of Agreement: The City and the selected Consultant will enter into an Agreement similar to the Sample Agreement in Appendix 4. If a Consultant is unwilling or unable to execute an Agreement within thirty (30) days after being notified of selection under this RFP, the City reserves the right to select the next most qualified Consultant or call for new Proposals, whichever the City deems most appropriate. This contract will be a project-specific contract as defined by Caltrans and will be for the duration of the project.
The Non-Discrimination Clause (Exhibit 10-R: A&E Sample Contract Language, Article XVI Statement of Compliance from the LAPM) must be included in each consultant contract. The Consultant must include the nondiscrimination and compliance provisions of the Non-Discrimination Clause in all subcontractor agreements to perform work under the contract.
3. Proposal Validity: Services, pricing, and warranties indicated in a Consultant’s Proposal must be valid for a period of 120 days after the submission of the Proposal.
4. Pre-Contractual Expenses: Anaheim shall not, in any event, be liable for any pre - contractual expenses incurred by Consultants in the preparation of the Proposal.
5. Joint Offers/Subconsultants: Where if more Consultants desire to submit a single Proposal in response to this RFP, they should do so on a prime- subconsultant basis.
The City intends to contract with a single firm and not with multiple firms doing business as a joint venture.
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
VI. INSTRUCTIONS TO CONSULTANTS
1. City Responsibilities: The City will provide information in its possession relevant to the preparation of required information for the RFP. The City will provide only the staff assistance and documentation specifically referred to herein.
2. CONSULTANT RESPONSIBILITIES:
a. Point of Contact: The selected Consultant will assume responsibility for all services in its proposal. The selected Consultant shall identify a sole point of contact with the greatest knowledge in regard to the required service operations and contractual matters, including payment of any and all charges resulting from the Agreement.
b. The Consultant shall be responsible for collecting and disseminating the dat a, records, and documents in the preparation of all design documents. c. The Consultant shall coordinate and work closely with City staff throughout the duration of the project.
d. Any changes in the scope of work resulting in a contract increase or decrease in fee shall be approved, in writing, by the City Engineer prior to the commencement of an actual change of work. No fee adjustment shall be allowed unless it is based on said prior written approval.
e. Salary increases may be approved if the new salary is wit hin the salary range identified in the approved Cost Proposal and is approved by the City. 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 automatically approved by the City.
3. Request for Information or Clarification: All questions or requested clarifications shall be made in writing via the PlanetBids Portal. The Consultants are prohibited from communicating with any City r epresentative/employee/official/consultant/staff other than via the PlanetBids Portal. Only questions and answers responded to on PlanetBids or any addendums issued on PlanetBids as an addendum will be a part of this RFP solicitation. Consultants may submi t written questions concerning this RFP on PlanetBids per the Key RFP Dates on the title page. Questions received after the stated deadline will not be answered.
4. Addenda: Any changes in the RFP from the date of release to the due date of submittal will res ult in an addendum or amendment. Notification of such addendum or amendment shall be posted on the PlanetBids website.
5. Licenses & Permits: The selected Consultant shall be required to obtain a City of Anaheim Business license within ten (10) business days of selection and must provide a copy to the City Project Manager or designee prior to commencing any work in Anaheim.
a. Additionally, the Consultant will be responsible for obtaining any licenses/permits required by the Scope of Work.
6. Insurance: The selected Consultant shall be required to obtain and submit insurance coverage and provide indemnification and hold harmless provisions in favor of the City of Anaheim as described in Appendix 5.
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
7. City’s Right to Reject: The City reserves the right to reject any or all submitted proposals when such rejection is in the interest of the City to reject the Proposal of the Consultant who has not met the prerequisites of the RFP, who has previously failed to perform properly or complete on time contracts of a similar nature; and to reject the proposal of the Consultant who is, in the opinion of City, in a position unable to perform the contract.
The City also reserves the right to waive any information and technicalities in the RFP.
All costs incurred in the preparation of the proposal, in the submission of additional information and/or in any other aspect of a proposal prior to the award of a written contract shall be borne by the Consultant. The City will only provide the staff assistance and documentation specifically referred to herein, and will not be responsible for any other cost or obligation that may be incurred by the Consultant. All proposals submitted to the City shall become the property of the City of Anaheim.
VII. SUBMITTAL REQUIREMENTS
1. General:
a. Number of copies and signature: Refer to Section I: Introduction. b. Deadline: Proposals are due to the City of Anaheim at the date, time, and location set forth above on the title sheet of this RFP.
2. Proposal Contents: All proposals shall be limited to a MAXIMUM of 15 pages, including appendices, charts, pictures, tables, schedule, resource allocation table and resumes but excluding front and back covers, required submitted Caltrans forms, section dividers, addendum acknowledgements, fee proposal, and Conflict of Interest Form. With the exception of the Schedule and Resource Hour Allocation Table, which may be on single- sided Tabloid paper size (11”x17”), the Proposal shall be on single- sided Letter sheets (8.5"x11"). Font size shall be minimum 11-point Arial.
a. Statement of Qualifications
The Statement of Qualifications shall include the following:
i. Cover letter: Proposals shall include a letter signed by a principal or authorized representative who can ma ke legally binding commitments for the entity.
Include the address, telephone, email address, and type of business entity.
ii. Agreement Statement: Proposals shall include a statement outlining your concurrence or concerns with any and all provisions as contained in the sample agreement in Appendix 4 of this RFP.
iii. Firm and Team Experience: Proposals shall include a profile of the firm’s experience. Include resumes of project team/subcontractors that outline their technical and design experience. At a minimum, this should include the project manager/principal agent, associates in charge when project manager/principal agent is unavailable, key personnel, firm size, and an organization chart identifying only those who will perform work for the proposed project and the percentage of each individual’s time devoted to this project. The project manager/principal agent shall be the primary contact person to represent your firm. Provide a demonstrated record of success by the Consultant on work previously performed for the City, other municipalities, or other enterprises.
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
The Consultant’s organization and all associated Consultants and subconsultants must be identified at the time of the proposal. If the Consultant wishes to use a subconsultant not specified in the proposal, prior written approval must be obtained from the local agency. The subcontract must contain all required provisions of the prime contract.
iv. Understanding of Need: Proposals shall include an outline which demonstrates the firm’s understanding of t he scope of work. This outline should include an anticipated approach, tasks necessary for successful completion, and suggestions or special concerns the City should be made aware of. Proposal must articulate a thorough understanding of the scope of work, State and Federal requirements, and all other professional engineering tasks required to prepare a comprehensive bid package for this project.
v. Relevant Project Experience: Proposal shall include a list of projects which your firm or personnel have complet ed within the last 5 years, including significant work with public agencies following federal requirements. Project information should include project description, year completed, client name, along with a person to contact, a telephone number, and email address.
vi. Quality Control/Quality Assurance: Provide a description of your Quality Assurance and Quality Control process/procedures and explain how it will ensure quality work and an on-time product delivery.
vii. Project Controls: Describe your ability to cont rol costs and provide accurate and timely invoices through internal control measures; to monitor and stay within budget; to monitor schedule and review times and describe the techniques used to complete projects within the proposed time frames. b. Scope of Services and Schedule
The Proposal shall detail the work phases to be completed, the tasks to be accomplished and the deliverables to be provided in order to satisfy the Scope of Work. Consultants may additionally itemize those services which are further required in the servicing of the account but are not noted in this RFP as requirements. Consultants shall title this section as ADDITIONAL SERVICES.
In addition, the Consultant shall provide a detailed schedule using the project milestones in the RFP. The detailed schedule shall identify all pertinent tasks, time required to complete each task, milestones, time for City review (use 14 calendar days for each review), tim e for other regulatory agencies’ review, time for revising drafts, and tentative completion date to complete the design. It is not required or preferred to have costs estimates associated with the milestones.
The Resource Hour Allocation Table shall show the amount of time allotted for the Project Manager, Project Engineer, and other team members for the project as well as the total estimated working hours proposed to complete the project for the prime and all sub-consultants. Show only the number of the total estimated working hours, not the dollar amount in the proposal. The proposed fee shall be submitted in a separate sealed envelope.
A Consultant contract may be amended at any time prior to the expiration date of the original contract. All contract amendments must be fully executed before the ending date of the contract.
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
c. Fee Proposal
The Consultant’s fee proposal shall be submitted concurrently with the technical proposal, but in a separately sealed envelope, clearly labeled as “Fee Proposal.” It shall include the firm’s Standard Hourly Fee Schedule, and/or a Project Fee Schedule where applicable and as outlined in the Scope of Work, clearly indicating the grand total and optional items. For the Fee Proposal Portion, an 11”x17” size paper will be accepted.
A “time and materials” not -to-exceed fee including reimbursable expenses as a percentage of total fees is requested. The proposal costs must be summarized by task, the services to be provided by the Consultant, the product of each task and the cost for each task. A list of fees and expenses, including all incidental printing, photocopying and miscellaneous costs estimated to be accrued during the life of the contract must be provided in the reimbursable costs. A complete Work Breakdown Structure (WBS) and Earned Value Chart shall also be provided and used to monitor monthly progress payments. Total proposed fees, including the Consultant’s and any sub- consultant’s hourly rate schedules, shall be submitted with the proposal in a separate sealed envelope. The schedule of fees will remain in effect for the duration of the project. The selected Consultant will work with the City to come up with a Work Breakdown Structure and Earned Value Chart that fits the project needs.
All work shall be invoiced to the City in accordance with this proposal and the Agreement for Consultant Services. The City will make payments no more than once monthly on approved invoices up to the negotiated fee. Consultant invoices shall include the list of tasks and subtasks (Work Breakdown Structure) corresponding to the same format as the cost summary submitted with the proposal, number of hours and dates worked, name and title of person. The invoice shall be reviewed and signed by the Consultant Project Manager certifying its accuracy. The amount invoiced shall not exceed the amount shown on the Cost Summary, and Work Breakdown Structure for each phase of work.
Consultant shall not proceed with any additional scope items without an approved addendum executed by the City. An Earned Value Chart shall accompany each monthly invoice to trac k actual expenditures to projected expenditures, and earned value against planned progress. If the design is behind schedule or not on budget, a recovery plan shall also be submitted with the invoice describing how the project will be put back on budget/schedule by the next monthly invoice or sooner. Consultant payments are contingent upon Consultant submitting monthly project status report/schedule/WBS/earned value forms with each payment request.
The Consultant shall submit progress reports at least once a month. The report shall be sufficiently detailed for the City to determine, if the 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. Invoices shall be submitted no later than 45 calendar days after the performance of work for which the Consultant is billing. Invoices shall detail the work performed on each milestone. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference the contract number and project title. Final invoice shall contain the final cost and all credits due the City including any equipment purchased under the provisions of Article XI Equipment Purchase of this contract. The final invoice shall be submitted within 60 calendar days after completion of the Consultant’s work.
Invoices shall be mailed and emailed to the project manager.
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
Invoices should include, at minimum, all of the following:
• Prepared on the Consultant’s letterhead;
• Signed by the Consultant’s project manager;
• Have a unique invoice number;
• Progress report;
• Work Breakdown Structure (WBS) and Earned Value Chart • Appropriate documentation attached for all cost and reimbursements; • If t he contract involved milestones, each milestone should be invoiced separately;
• If the contract involved subconsultants, a separate invoice for each subconsultant should be attached in the same format as the prime Consultant’s invoice and should be included in the summary of the prime Consultant’s invoice;
• A summary of the reimbursements to -date and a summary of the funds remaining in the contract. This should be compared to the local agency’s own record of reimbursements to- date and a summary of the funds remaining in the contract;
• A summary of all payments to- date and funds remaining in the contract for each subconsultant.
d. Federal Requirements
This project is federally funded by the Active Transportation Program (ATP) and therefore all documents need to comply with Federal requirements and Caltrans policies and procedures as outlined in the latest Caltrans Local Assistance Procedures Manual (LAPM).
Accordingly, the contract agreement and other procedures required by the latest LAPM shall be adhered to, including, but not limited to:
• Caltrans LAPM Chapter 9 - Civil Rights and Disadvantaged Business Enterprises, Chapter 10 - Consultant Selection, Chapter 13 – Right of Way
• Prevailing Wages
The DBE goal for this project will be 10%.
Exhibit 10 -I – Notice to Proposers DBE Information (Appendix 6) is included as a requirement in this RFP. The Consultant must meet the goal or if not able to meet the DBE goal, document that a Good Faith Effort was made to meet the contract goal.
Exhibit 10-Q – Disclosure of Lobbing Activities ( Appendix 7) must be filled out and included in the proposal.
Exhibit 10-O1 – Consultant Proposal DBE Commitment (Appendix 8) must be filled out and included in the proposal and Fee Proposal envelope. Good Faith efforts must be documented by the Consultant, submitted with their proposal and approved by the City.
Exhibit 15-H – DBE Information – Good Faiths Efforts (Appendix 9) must be submitted in the Fee Proposal envelope.
Exhibit 10-O2 - Consultant Contract DBE Information (Appendix 10) must be executed and returned by the successful Consultant after cost negotiations and before the contract is awarded, even if there is no DBE goal in RFP. This form must include the names, addresses, and phone numbers of DBE firms that will participate with a
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
complete description of work or supplies to be provided by each, and the dollar value of each DBE transaction. When 100 percent of a subcontracted item of work is not to be performed or furnished by the DBE firm, a description of the exact portion of work to be performed or furnished by that DBE must be included in the DBE commitment, including the planned location of that work. A Consultant certified as a DBE firm must describe the work it has committed to be performed with its own forces, as well as any other work that it has committed to be performed by the DBE subconsultant, suppliers, and trucking companies. The winning proposer must provide written confirmation from each DBE firm participating in the contract. A copy of a DBE’s quote will serve as written confirmation that the DBE is participating in the contract.
The following disciplines were considered as DBE eligible work:
Item
Description
Likely to be
Performed by
Sub-
Contractor
(Y=Yes)?
Trucking or
Supply of
Material
Involved
(Y=Yes)?
Work
Category
Code
DBE Work
Factor (input a
percentage
only if the
number of
available DBEs
> 7)
Appraisals Y N H6531 100%
Land
Surveying
(Plats &
Legals)
Y N C9826 100%
The City considers the following procedure as a minimum for a Good Faith Effort. The City understands that DBE goals may not be met but as long as the Consultant documents the attempts to meet the goal to the City’s, Caltrans’ and FHWA’s liking, then the proposal can be accepted.
First, the Consultant must download the list DBEs using only District 12 as a filter for each Work Category. The DBE database can be found by following the instructions below:
1. The CUCP database includes the certified DBEs from all certifying agencies participating in the CUCP. Access the CUCP database from the Department of Transportation, Office of Business and Economic Opportunity Web site at:
https://dot.ca.gov/programs/civil-rights/dbe-search
. If you believe a firm is
certified that cannot be located on the database, please contact the Caltrans Office of Certification toll free number 1-866-810-6346 for assistance.
a. Under DBE Search, Click on Access the DBE Query Form located on the first line on the top of the page;
b. Click Start DBE Firms Query;
c. Under Caltrans Districts, click District 12. Under Work Category Codes, click each work code listed above. At the bottom of the page, click Start Search – PDF Results.
d. A DBE search must be completed for each Work Category Code.
2. The Consultant must email and mail the DBE firms notifying them of the
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
requirements listed in the RFP, the scope of their work, proposal and project schedule, etc. The Consultant must k eep a log of dates notifications were distributed and provide proof of the mailers that were sent, addresses, emailed request and email addresses. The Consultant must wait seven (7) calendar days for DBEs to respond before sending a second notice.
After seven calendar days have passed and less than three (3) DBE firms have proposed for each work category, then the Consultant shall email and mail a second request for proposals and track the efforts like the first request. The Consultant must also follow up with phone calls to all the non- responsive firms.
If the DBE firm does not answer, the Consultant shall leave a voice mail. The Consultant shall log when they called, who they spoke with and company position, if they are going to propose (if not then why), and if the phone number listed phone number does not work. The Consultant must wait another seven (7) calendar days for the last follow up phone call to the DBE firms before concluding the DBE proposal search and filling out the Good Faith Effort Exhibit 15-h.
Upon 30 days after the completion of the Contract, a summary of the records shall be prepared and submitted on the form entitled, “Final Report-Utilization of Disadvantaged Business Enterprise (DBE), First -Tier Subconsultants” CEM - 2402F [Exhibit 17- F, of the LAPM], certified correct by the Consultant or Consultant’s authorized representative and shall be furnished to the Contract Administrator with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in twenty-five percent (25%) of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to Consultant when a satisfactory “Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First -Tier Subconsultants” is submitted to the City.
VIII. PROPOSAL REVIEW (CONSULTANT SELECTION)
An internal Review Board selected by the City will review the proposals received. The final ranking of the consultants will be based upon qualifications evaluated from on the criteria below.
A short list of qualified firms may be asked to participate in oral interviews. If staff determines that an interview is not necessary, the total points possible would be 85.
Criteria Max Points
Ability of the Consultant to perform the specific tasks outlined in the RFP 25 Qualifications of key individuals to be assigned to the project 15 Amount and quality of time that the key personnel will be involved in their respective portions of the project 10
Specific methods and techniques to be employed by the Consultant on the project or problem at hand 10
Familiarity with state and federal procedures 15
Schedule 10
Interview (if necessary) 15
Total 100
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
Upon completion of the qualifications -based evaluation and ranking of proposals, the cost negotiations will begin with the most qualified Consultant and only their cost proposal will be opened. Should negotiations fail or result in a price the City does not consider fair and reasonable, negotiations must be formally terminated and the City will then undertake negotiations with the second most qualified Consultant. If the negotiations with the second most qualified firm are not successful, negotiations will be formally terminated and the City will then undertake negotiations with the third most qualified Consultant, and so on, until the price is determined to be fair and reasonable by the City.
IX. AWARD OF AGREEMENT
1. Request for Award:
Following the evaluation and rating by the proposal Review Board, the Public Works Director will recommend award of an agreement to the Consultant who is the most qualified to provide the service to the City Council.
2. Execution of Agreement:
A sample agreement is included as Appendix 4. The terms of the agreement will begin after the agreement is fully executed, and all required bonds, and insurance documents have been received and approved.
X. IMPLEMENTATION
1. Kick-off Meeting:
A kick-off meeting will be held after award of contract. Consultant and its team will meet with City of Anaheim staff to conduct introductions, discuss scope of services, and the implementation process.
2. Notice to Proceed:
Following the kick -off meeting, a formal Notice to Proceed (NTP) shall be issued after the agreement is fully executed, and all insurance documents and all other required documentation have been received and approved.
XI. COMPENSATION
The method of payment shall be primarily at Lump Sum or Firm Fixed Price. The Consultant shall submit, in a separate sealed envelope for the fee/cost schedule, as part of their Proposal documents, Exhibit 10- H – Sample Cost Proposal, Example #1, Actual Cost -Plus-Fixed Fee (Appendix 11).
Consultants and sub-Consultants shall submit, in a separate sealed envelope, as part of their Proposal documents, Exhibit 10- K – Consultant Certification of Contract Costs and Financial Management System (Appendix 12) certifying their contract costs and financial management system when the total contract between the prime Consultant and the local agency is $150K or more, (23 U.S.C. 112(b)(2)(B)). Contracts shall not be awarded to a Consultant without an adequate financial management and accounting system as required by 48 CFR Part 16.301-3, 2 CFR Part 200, 48 CFR Part 31 and the applicable federal regulations.
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
XII. PUBLIC RECORDS
All responses to the RFP shall become property of the City, and proposals will become public record after award of the agreement. Consultant information identified as proprietary information shall be maintained confidential, to the extent allowed under the California Public Records Act.
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
APPENDIX 1
PROJECT LOCATIONS, PRELIMINARY EXHIBITS, AND RIGHT-OF-WAY TABLE
¹½
¹½ ¹½
¹½
ñ
E MIRALOMA WAY
N
A NNA D
R
E BANYAN PL
N LOUISE DR
E BRIARVALE AVE
E ARBUTUS AVE
N BAXTER ST
E PARK LN
E SYCAMORE ST
E ROMNEYA DR
N BAXTER ST
E BENMORE LN
ES OUTH REDWOOD DR
E CANFIELD LN
E VIA BURTON ST
E SYCAMORE ST
E TERRACE ST
N DALY ST
E ROMNEYA DR
57 91
N PLACENTIA AVE
N ACACIA ST
E LA PALMA AVE
N STATE COLLEGE BLVD
N SUNKIST ST
E M
IRALOM
A AVE
E LA PALMA AVE
ISLAMIC INSTITUTE
OF ORANGE
COUNTY
EDISON
ELEMENTARY
SCHOOL
SYCAMORE JR
HIGH SCHOOL
SUNKIST
ELEMENTARY
SCHOOL
Sidewalk Gap Closure
Map Location
°
0 500 1,000
Feet
Key Features
City Boundary
ñ Religious Places
¹½ Schools
Missing Sidewalk
4586
City of Anaheim
GIS Central
May 31, 2018
Acacia St. and La Palma Ave.
¹½
CLUB LN
MAPLE STPINE STBEECH ST
OAK ST
PEAR ST
PEA
CHST
CLUB VISTA ST
N
TAORM
INA
DR
N VIA PORTO
PARK RD
ORANGE ST
E SOUTH ST
N
PARKVISTA
ST
S BETH CIRS CONNIE CIR
N ROYAL PL
N ROYAL ST
E JACKSON AVEN
CHANTILLYS T
E CARNIVAL AVE
N BETH ST
N SHAKESPEARE ST
N CAROUSEL ST
NARMANDO ST
E WHITE STARAVE
E FRONTERA ST
E GREENHEDGE AVE
E JACKSON AVE
E FRONTERA ST
57 91
N BLUE GUM ST
N RIO VISTA ST
E LA PALMA AVE
E LA PALMA AVE
RIO VISTA
ELEMENTARY
SCHOOL
Map Location
°
0 500 1,000
Feet
Key Features
City Boundary
¹½ Schools
Missing Sidewalk
4586
City of Anaheim
GIS Central
May 31, 2018
Sidewalk Gap Closure
Frontera St.
¹½
¹½¹½
¹½
N
VIA
BREVE
E EISENHOW
ERCIR
N
HANCOCK
ST
MINUET LN
N
M
ANTIDR
CYM
BAL ST
N POST LN
E HUNTER AVE
E GERDA DR
E BERGH DR
NHOLBROOKST
VISTALOM
A
WOODWIND LN
N M
ANASSERO ST
N
HARMONY
CIR
N
BRASHER
STE LANDON DR
E HUNTER AVE
91 N LAKEVIEW
AVE
N
KELLOGG
DR
E LA PALMA AVE
ORANGETHORPE AVE
E ORANGETHORPE AVE
E LA PALMA AVE
VINEYARD
CHRISTIAN
SCHOOL
FAIRMONT
ELEMENTARY
ANAHEIM HILLS
INTEGRITY
CHRISTIAN
SCHOOL
Sidewalk Gap Closure
Map Location
°
0 500 1,000
Feet
Key Features
City Boundary
¹½ Schools
Missing Sidewalk
4586
City of Anaheim
GIS Central
May 31, 2018
La Palma Ave.
¹½
¹½
E AUTRYDR
S TRISH CT
S SHIVOM
CT
SPENNYLN
SEUCALYPTUSDR
S TIMKEN RD
SOW
ENS DR
EEUCALYPT US DR
E VISTADELSOL
E ESPERANZARD
SCOYOTE LN
EPASEO
LAREDO
N
C
IELITO
LINDO
E MARTELLA LN
S MOHLERDR
N AVENIDA MALAGA
N AVENIDA CORDOBA
SCOUNTRY
HILLRD
N AVENIDA SEGOVIA
NMOHLERDR
E CAMINO TAMPICO
SOLDBRIDGERD
SDELGIORGIO
RD
ECALLEDURANGO91
S FAIRMONT BLVD
E LA PALMA AVE
N FAIRM
ONT BLVD ESANTAANACANYON
RD
EL RANCHO
CHARTER
MIDDLE SCHOOL
ANAHEIM
MONTESSORI
SCHOOL
Sidewalk Gap Closure
Map Location
°
0 500 1,000
Feet
Key Features
City Boundary
¹½ Schools
Missing Sidewalk
4586
City of Anaheim
GIS Central
May 31, 2018
Santa Ana Canyon Rd.
1471APN# 073-460-08
EXIST R/WEXIST CURB RAMP(PROTECT)A
EXIST R/WEXIST CURB RAMP(PROTECT)
BLOSSOM LN
LEGEND:PROPOSED ADA SIDEWALK
BURTON ST
TYPICAL SECTION A-A
CANFIELD LN
1DEPARTMENT OF PUBLIC WORKSCITY OF ANAHEIMCITYWIDE SRTS SIDEWALK GAP CLOSURECITY OF ANAHEIM CALIFORNIAFOUNDED 1857 CITY OF ANAHEIMDEPARTMENT OF PUBLIC WORKS200 SOUTH ANAHEIM BLVD. #276ANAHEIM, CA 92805(714) 765-5176www.anaheim.net K955 - CITYWIDE SRTS SIDEWALK GAP CLOSURE
ACCOUNT NUMBER8NOT FOR CONSTRUCTION
ACACIA ST
ACACIA STREETNTS
PROPOSED ADA DRIVEWAY
PROPOSED PARKWAY
EXISTING RIGHT-OF-WAY
ACACIA STREETFROM BURTON STREET TO BLOSSOM LANE
*ALL WORK WILL BE WITHIN PUBLIC R/W LIMITS
*GRADE TOMATCH EXISTING
1103APN# 073-323-181061APN# 073-333-141043APN# 073-333-181041APN# 073-333-231025APN# 073-333-241035APN# 073-333-161021APN# 073-333-27BB CC
EXIST R/WEXIST CURB RAMP(PROTECT) PROP R/WEXIST R/W
1135APN# 073-323-131129APN# 073-323-141123APN# 073-323-151115APN# 073-323-161109APN# 073-323-17 1141APN# 073-323-121147APN# 073-323-11BB
EXIST CURB RAMP(PROTECT)EXIST R/W EXIST R/W
MATCH LINE ~ SEE BELOW LEFT
DEPARTMENT OF PUBLIC WORKSCITY OF ANAHEIMCITYWIDE SRTS SIDEWALK GAP CLOSURECITY OF ANAHEIM CALIFORNIAFOUNDED 1857 CITY OF ANAHEIMDEPARTMENT OF PUBLIC WORKS200 SOUTH ANAHEIM BLVD. #276ANAHEIM, CA 92805(714) 765-5176www.anaheim.net K955 - CITYWIDE SRTS SIDEWALK GAP CLOSURE
ACCOUNT NUMBER8NOT FOR CONSTRUCTION2ACACIA STREETFROM LA PALMA TO ROMNEYA DRIVE MATCH LINE ~ SEE ABOVE RIGHT
LA PALMA AVE
ACACIA STLA PALMA AVE
ACACIA STROMNEYA DRIVE
ROMNEYA DRIVE
TYPICAL SECTION B-BACACIA STREETNTS TYPICAL SECTION C-C1041 ACACIA STREETNTSLEGEND:PROPOSED ADA SIDEWALK
PROPOSED ADA DRIVEWAY
PROPOSED PARKWAY
EXISTING RIGHT-OF-WAYPROPOSED RIGHT-OF-WAY
*ALL WORK WILL BE WITHIN PUBLIC R/W LIMITS
* *GRADE TOMATCH EXISTINGGRADE TOMATCH EXISTING
2230APN# 083-013-13
D
D2238APN# 083-013-14
EXIST R/W
PROP R/W
DEPARTMENT OF PUBLIC WORKSCITY OF ANAHEIMCITYWIDE SRTS SIDEWALK GAP CLOSURECITY OF ANAHEIM CALIFORNIAFOUNDED 1857 CITY OF ANAHEIMDEPARTMENT OF PUBLIC WORKS200 SOUTH ANAHEIM BLVD. #276ANAHEIM, CA 92805(714) 765-5176www.anaheim.net K955 - CITYWIDE SRTS SIDEWALK GAP CLOSURE
ACCOUNT NUMBER8NOT FOR CONSTRUCTION
LEGEND:PROPOSED ADA SIDEWALK
PROPOSED ADA DRIVEWAY
PROPOSED PARKWAY
EXISTING RIGHT-OF-WAY
3LA PALMA AVENUE2230 & 2238 LA PALMA AVE
LA PALMA AVE
WHITTIER ST
TYPICAL SECTION D-D2230 & 2238 ACACIA STREETNTSPROPOSED RIGHT-OF-WAY
WHITTIER ST
TEMPORARY CONSTRUCTION EASEMENT (TCE)
GRADE TOMATCH EXISTING
EXIST CURB RAMP(PROTECT) E
E2930APN# 268-331-02
PROP CURB & GUTTER
EXIST R/WEXIST R/W
DEPARTMENT OF PUBLIC WORKSCITY OF ANAHEIMCITYWIDE SRTS SIDEWALK GAP CLOSURECITY OF ANAHEIM CALIFORNIAFOUNDED 1857 CITY OF ANAHEIMDEPARTMENT OF PUBLIC WORKS200 SOUTH ANAHEIM BLVD. #276ANAHEIM, CA 92805(714) 765-5176www.anaheim.net K955 - CITYWIDE SRTS SIDEWALK GAP CLOSURE
ACCOUNT NUMBER8NOT FOR CONSTRUCTION
TYPICAL SECTION E-E
4FRONTERA STREETFROM 250' E/O PARK VISTA ST TO 700' E/O PARK VISTA ST
FRONTERA STREETNTS
PARK VISTA ST
FRONTERA ST
LEGEND:PROPOSED ADA SIDEWALK
PROPOSED ADA DRIVEWAY
PROPOSED PARKWAY
EXISTING RIGHT-OF-WAYPROPOSED RIGHT-OF-WAYTEMPORARY CONSTRUCTION EASEMENT (TCE)
GRADE TOMATCH EXISTING
4616APN# 346-192-084620APN# 346-192-094640APN# 346-192-10EXIST R/W EXIST R/W F
F
4930APN# 346-403-054940APN# 346-403-054950APN# 346-403-035010APN# 346-403-105020APN# 346-403-09EXIST R/W EXIST R/W F
F
DEPARTMENT OF PUBLIC WORKSCITY OF ANAHEIMCITYWIDE SRTS SIDEWALK GAP CLOSURECITY OF ANAHEIM CALIFORNIAFOUNDED 1857 CITY OF ANAHEIMDEPARTMENT OF PUBLIC WORKS200 SOUTH ANAHEIM BLVD. #276ANAHEIM, CA 92805(714) 765-5176www.anaheim.net K955 - CITYWIDE SRTS SIDEWALK GAP CLOSURE
ACCOUNT NUMBER8NOT FOR CONSTRUCTION5LA PALMA AVENUEFROM LAKEVIEW AVE TO KELLOGG DR
LA PALMA AVE
LAKEVIEW AVE
TYPICAL SECTION F-FLA PALMA AVENTS
LEGEND:PROPOSED ADA SIDEWALK
PROPOSED ADA DRIVEWAY
PROPOSED PARKWAY
EXISTING RIGHT-OF-WAY
LAKEVIEW AVE
LA PALMA AVE
HANCOCK ST
MANASSERO ST
KELLOGG DR
*ALL WORK WILL BE WITHIN PUBLIC R/W LIMITS
*GRADE TOMATCH EXISTING
5395APN# 346-231-095401APN# 346-261-065425APN# 346-261-06EXIST R/WG G
EXIST R/W
5601APN# 346-271-17HEXIST R/W
H
DEPARTMENT OF PUBLIC WORKSCITY OF ANAHEIMCITYWIDE SRTS SIDEWALK GAP CLOSURECITY OF ANAHEIM CALIFORNIAFOUNDED 1857 CITY OF ANAHEIMDEPARTMENT OF PUBLIC WORKS200 SOUTH ANAHEIM BLVD. #276ANAHEIM, CA 92805(714) 765-5176www.anaheim.net K955 - CITYWIDE SRTS SIDEWALK GAP CLOSURE
ACCOUNT NUMBER8NOT FOR CONSTRUCTION6LA PALMA AVENUEFROM BRASHER ST TO IMPERIAL HWY
LA PALMA AVE
BRASHER ST
TYPICAL SECTION H-HLA PALMA AVENTS
LEGEND:PROPOSED ADA SIDEWALK
PROPOSED ADA DRIVEWAY
PROPOSED PARKWAY
EXISTING RIGHT-OF-WAY
LA PALMA AVE
IMPERIAL HWY
IMPERIAL HWY
TYPICAL SECTION G-GLA PALMA AVENTS*ALL WORK WILL BE WITHIN PUBLIC R/W LIMITS *GRADE TOMATCH EXISTINGGRADE TOMATCH EXISTING*
I
I EXIST R/WEXIST R/W APN# 356-441-03
111APN# 356-441-05115APN# 356-441-06119APN# 356-441-07
J
J EXIST R/W
DEPARTMENT OF PUBLIC WORKSCITY OF ANAHEIMCITYWIDE SRTS SIDEWALK GAP CLOSURECITY OF ANAHEIM CALIFORNIAFOUNDED 1857 CITY OF ANAHEIMDEPARTMENT OF PUBLIC WORKS200 SOUTH ANAHEIM BLVD. #276ANAHEIM, CA 92805(714) 765-5176www.anaheim.net K955 - CITYWIDE SRTS SIDEWALK GAP CLOSURE
ACCOUNT NUMBER8NOT FOR CONSTRUCTION
MATCH LINE ~ SEE BELOW LEFT
SANTA ANA CANYON ROAD
FAIRMONT BLVD MATCH LINE ~ SEE ABOVE RIGHT
MATCH LINE ~ SEE SHEET 8
SANTA ANA CANYON ROAD
FAIRMONT BLVD
MOHLER DR
MOHLER DR
7SANTA ANA CANYON ROADFROM FAIRMONT BLVD TO MOHLER DRTYPICAL SECTION I-ISANTA ANA CANYON ROADNTS*ALL WORK WILL BE WITHIN PUBLIC R/W LIMITS *
TYPICAL SECTION J-JSANTA ANA CANYON ROADNTS*ALL WORK WILL BE WITHIN PUBLIC R/W LIMITS * LEGEND:PROPOSED ADA SIDEWALK
PROPOSED HIKING & EQUESTRIAN TRAILEXISTING RIGHT-OF-WAY
111APN# 356-311-25117APN# 356-311-2321065APN# 356-311-01 111APN# 356-311-257615APN# 358-301-16 7625APN# 358-301-17
EXIST R/W EXIST R/W
J
J
J
J
7635APN# 358-301-18101APN# 358-301-03109APN# 358-301-02105APN# 358-301-01
EXIST R/W
J
JEXIST R/W
DEPARTMENT OF PUBLIC WORKSCITY OF ANAHEIMCITYWIDE SRTS SIDEWALK GAP CLOSURECITY OF ANAHEIM CALIFORNIAFOUNDED 1857 CITY OF ANAHEIMDEPARTMENT OF PUBLIC WORKS200 SOUTH ANAHEIM BLVD. #276ANAHEIM, CA 92805(714) 765-5176www.anaheim.net K955 - CITYWIDE SRTS SIDEWALK GAP CLOSURE
ACCOUNT NUMBER8NOT FOR CONSTRUCTION
MATCH LINE ~ SEE BELOW LEFTSANTA ANA CANYON ROAD
MATCH LINE ~ SEE ABOVE RIGHT
SANTA ANA CANYON ROAD
MARTIN RD
8SANTA ANA CANYON ROADFROM MOHLER DR TO EUCALYPTUS DRTYPICAL SECTION D-DSANTA ANA CANYON ROADNTS*ALL WORK WILL BE WITHIN PUBLIC R/W LIMITS *
MATCH LINE ~ SEE SHEET 7
EUCALYPTUS DR
EUCALYPTUS DR
LEGEND:PROPOSED ADA SIDEWALK
PROPOSED HIKING & EQUESTRIAN TRAILEXISTING RIGHT-OF-WAY
# APN Address Description Owner Type of Acquisition Approx. Area (SF)
1 073-333-23 1041 N Acacia St Single Family Residential Yorba Oaks LLC C/O Michael P Robles Permanent Easement 700
2 083-013-13 2230 E La Palma Ave Single Family Residential Edgar Montanez Permanent Easement 1,320 3 083-013-14 2238 E La Palma Ave Single Family Residential Lawrence Molesky Permanent Easement 1,320 4 268-331-02 2930 E Frontera St Nursery Frontera LLC TCE 4,500 5 073-333-23 1041 N Acacia St Single Family Residential Yorba Oaks LLC C/O Michael P Robles TCE 350
6 083-013-13 2230 E La Palma Ave Single Family Residential Edgar Montanez TCE 460 7 083-013-14 2238 E La Palma Ave Single Family Residential Lawrence Molesky TCE 540 APPENDIX 1
RIGHT-OF-WAY TABLE
Permanent Easements
Temporary Construction Easements (TCE)
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
APPENDIX 2
ENVIRONMENTAL DOCUMENTS
CEQA EXEMPTION / NEPA CATEGORICAL EXCLUSION
DETERMINATION FORM (rev. 05/2020)
Project Information
DIST-CO-RTE: 12-ORA-Anaheim PM/PM: N/A
EA: NA Federal-Aid Project Number: ATPSB1L-5055(194)
Project Description
The proposed project includes the filling of incomplete sidewalk gaps along segments of Acacia Street, La Palma Avenue, Frontera Street, and Santa Ana Canyon Road.
Existing segments are a mix of narrow sidewalks, dirt paths across private property, and complete blockages by landscaping or fencing forcing pedestrians and bicyclists into the street. The project would create smooth, continuous, and accessible routes for students and other residents as they commute on bike or foot to access neighboring schools, businesses, and bus routes. Work also includes new American Disabilities Act (ADA) sidewalks, reconstruction of ADA compliant driveways and ramps, curb and gutter, drainage facilities, mixed-use trails, and minor asphalt concrete pavement resurfacing.
Partial right-of-way and temporary construction easements are anticipated at three private properties.
Caltrans CEQA Determination (Check one)
☒ Not Applicable – Caltrans is not the CEQA Lead Agency ☐ Not Applicable – Caltrans has prepared an IS or EIR under CEQA Based on an examination of this proposal and supporting information, the project is:
☐ Exempt by Statute. (PRC 21080[b]; 14 CCR 15260 et seq.) ☐ Categorically Exempt. Class Enter class. (PRC 21084; 14 CCR 15300 et seq.) ☐ No exceptions apply that would bar the use of a categorical exemption (PRC 21084 and 14 CCR 15300.2). See the SER Chapter 34 for exceptions. ☐ Covered by the Common Sense Exemption. This project does not fall within an exempt class, but it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment (14 CCR 15061[b][3].) Senior Environmental Planner or Environmental Branch Chief N/A
Print Name Signature Date
Project Manager
N/A
Print Name Signature Date
CEQA EXEMPTION / NEPA CATEGORICAL EXCLUSION
DETERMINATION FORM
EA: N/A Page 2 of 3
Federal-Aid Project Number: ATPSB1L-5055(194)
Caltrans NEPA Determination (Check one)
Caltrans has determined that this project has no significant impacts on the environment as defined by NEPA, and that there are no unusual circumstances as described in 23 CFR 771.117(b). See SER Chapter 30 for unusual circumstances. As such, the project is categorically excluded from the requirements to prepare an EA or EIS under NEPA and is included under the following:
☒ 23 USC 326: Caltrans has been assigned, and hereby certifies that it has carried out the responsibility to make this determination pursuant to 23 USC 326 and the Memorandum of Understanding dated April 18, 2019, executed between FHWA and Caltrans. Caltrans has determined that the project is a Categorical Exclusion under:
☒ 23 CFR 771.117(c): activity (c)(3)
☐ 23 CFR 771.117(d): activity (d)(Enter activity number) ☐ Activity Enter activity number listed in Appendix A of the MOU between FHWA and Caltrans
☐ 23 USC 327: Based on an examination of this proposal and supporting information, Caltrans has determined that the project is a Categorical Exclusion under 23 USC 327.
The environmental review, consultation, and any other actions required by applicable Federal environmental laws for this project are being, or have been, carried out by Caltrans pursuant to 23 USC 327 and the Memorandum of Understanding dated December 23, 2016 and executed by FHWA and Caltrans.
Senior Environmental Planner or Environmental Branch Chief Charles Baker
Print Name Signature Date
Project Manager/ DLA Engineer
Tifini Tran
Print Name Signature Date
Date of Environmental Commitment Record or equivalent: 10/28/21 10/29/2021
10/29/2021
CEQA EXEMPTION / NEPA CATEGORICAL EXCLUSION
DETERMINATION FORM
EA: N/A Page 3 of 3
Federal-Aid Project Number: ATPSB1L-5055(194)
Continuation sheet:
This page will serve as the Environmental Commitments Record for this project.
Environmental Commitment: If work occurs within the general avian and raptor breeding season (occurs from February 15th to August 31st), a pre-construction survey for avian nesting shall be conducted by a qualified biologist within 7 calendar days prior to work. If nests are found, a qualified biologist shall mark the buffer (500-feet for raptor nests; 300 feet from listed bird species’ nests; and 100-feet from non-listed bird species’ nests) so that work does not encroach into the buffer until the nest is no longer active, as determined by a qualified biologist.
03/01/2021ATPSB1L-5055 (194)
Kathleen Nguyen City of Anaheim
Stephen Cruz (714) 765-5100 x5808District 12, Local Assistance 200 S. Anaheim Blvd., Anaheim, CA 928051750 E 4th Street, Suite 100, Santa Ana, CA 92705 [email protected]@dot.ca.gov
2019
19/20; 20/21 104,000; $550, 20/21 424,000 21/22; 22/23 50,000;$3,021 Construct 1.25 miles of ADA accessible sidewalk segments to close all remaining sidewalk gaps located within 0.5 mile of 6"
Bicycle &
#3
09/30/2020 714-765-5100 x5808
Stephen Cruz, P.E.
714-765-5100 x580809/30/2020
1 Will the project require future construction to fully utilize the design capabilities included in the proposed project? No. The proposed project is the sidewalk gap closure of various streets throughout the City of Anaheim, and no future construction would be required to utilize the sidewalks. 2 Will the project generate public controversy?
No. The citywide sidewalk gap closures are required for public safety, which would provide a benefit to the City, its residents, and its visitors. Therefore, the proposed project would not generate public controversy. 3 Is the project a Type I project as defined in 23 CFR 772.5(h); "construction on new location or the physical alteration of an existing highway, which significantly changes either the horizontal or vertical alignment or increases the number of through-traffic lanes?
The proposed project is not a Type I project as defined in 23 CFR 772.5(h); the project would not change the horizontal or vertical alignment or increase the number of through-traffic of an existing highway. The proposed project is not located on a highway.
4 Does the project have the potential for adverse construction-related noise impact (such as related to pile driving)? No. The proposed project would generate temporary noise during construction activities. Construction activities would require the operation of heavy construction equipment. No noise intensive activities such as pile driving would be required to construct the proposed project. Noise would diminish over time and end at the completion of construction. Construction would take place on weekdays and in compliance with the Anaheim Municipal Code which exempts sound created by construction or building repair of any premises within the City during the hours of 7:00 a.m. and 7:00 p.m.
5 Is the project in a NA AQS non-attainment or maintenance area? Yes. The proposed project is located in the South Coast Air Basin (SCAB) within jurisdiction of the South Coast Air Quality Management District (SCAQMD). The SCAB is currently considered a non-attainment area for the National Ambient Air Quality Standards (NAAQS) for ozone (O3) and particulate matter with a diameter of 2.5 microns or less (PM2.5)(CARB2017).
6 Is the project exempt from the requirement that a conformity determination be made? (If "Yes", state which conformity exemption in 40 CFR 93.126, Table 2 applies).
Yes. The proposed project is exempt from the requirement that a conformity determination be made. The proposed project is categorized under air quality project type (bicycle and pedestrian facilities) in 40 CFR 93.126 Table 2. 7 Is the project exempt from regional conformity? (If "Yes", state which conformity exemption in 40 CFR 93.127, Table 3 applies).
N/A
8 If project is not exempt from regional conformity, (If "No" on Question #7):
Is project in a metropolitan non-attainment/maintenance area? N/A Is project in an isolated rural non-attainment area? N/A Is project in a CO, PM10 and/or PM2.5 non-attainment/maintenance area? N/A 9 Is there potential for hazardous materials (including underground or aboveground tanks, etc.) or hazardous waste (including oil/water separators, waste oil, asbestos-containing material, lead-based paint, ADL, etc.) within or immediately adjacent to the construction area?
No. A search of the Department of Toxic Substance Control's (DTSC) Hazardous Waste and Substances Site List (Cortese List) and EnviroStor online database and the State Water Resources Control Board (SWRCB) GeoTracker online database was conducted for the project area. No known records were found within the project footprint or immediately adjacent areas.
10 Does the project have the potential to impact water resources (rivers, streams, bays, inlets, lakes, drainage sloughs) within or immediately adjacent to the construction area? No. The proposed project is located along existing roadways, where there are no rivers, streams, bays, lakes, or drainage sloughs. Appropriate Best Management Practices (BMPs) would be applied to the drainage inlets to avoid impacts to water resources. All construction work would occur along existing roads. 11 Is the project within a designated sole-source aquifer? No. A sole-source aquifer is an aquifer that has been designated by the Environmental Protection Agency (EPA) as the sole or principal source of drinking water for an area. The proposed project is located in Orange County, where there are no designated sole-source aquifers.
12 Is the project within the State Coastal Zone, San Francisco Bay, or Suisun Marsh? No. The proposed project is located in the City of Anaheim in the County of Orange, and it is not within the State Coastal Zone, San Francisco Bay, or Suisun Marsh.
13 Is the construction area located within a regulatory floodway or within the base floodplian (100-year) evelation of a watercourse or lake?
No. According to the Federal Emergency Management Agency (FEMA) Flood Insurance Rate Maps (FIRM), the project site is not located within a regulatory floodway or within the base floodplain (100-year) elevation of a watercourse or lake. The project site is located in an area designated Zone X, as shown on FIRM Map Numbers 06059C0133J and 06059C0131J. Zone X are areas of 0.2 percent annual chance flood; areas of one percent annual chance flood with average depths of less than one-foot or with drainage areas less than one square mile; and areas protected by levees from one percent annual chance flood. Areas designated Zone X are not considered to be within the base floodplain (100-year flood).
14 Is the project within or immediately adjacent to a Wild and Scenic River System? The project area is not located within or immediately adjacent to a Wild and Scenic River System. 15 Is there potential for federally listed threatened or endangered species, or their critical habitat or essential fish habitat to occur within or adjacent to the construction area? No. The project area is characterized primarily with residential and public (e.g., schools, parks) land uses.
Biological resources in the project area include ornamental trees, grasses, and shrubs. Due to the lack of native habitat within the project area, the potential for federally listed threatened or endangered species to occur within or adjacent to the project is low.
16 Does the project have the potential to directly or indirectly affect migratory birds, or their nests or eggs (such as vegetation removal, box culvert replacement/repair, bridge work, etc.)? Yes. The project area contains primarily ornamental vegetation, which could provide potential nesting habitat for birds. The proposed project involves the removal of minor ornamental vegetation and palm trees to accommodate the proposed improvements. The removal of this vegetation has the potential to affect nesting birds protected under the Migratory Bird Treaty Act (MBTA). Impacts to nesting birds would be avoided if construction occurs outside of the nesting season (February 15 to August 31). If construction or other proposed project activities are scheduled to occur during the bird breeding season (February 15 through August 31), a pre-construction nesting bird survey should be conducted by a qualified biologist. The survey should focus on detecting nesting birds protected by the MBT A, on or immediately adjacent to the proposed project alignment. The survey should be completed no more than three days prior to initial ground disturbance. The nesting bird survey should include the proposed project alignment and adjacent areas where project activities have the potential to cause nest failure. If an active nest is identified, a qualified biologist should establish an appropriately-sized no-work buffer around the nest using flagging or staking. Construction activities should be prohibited within no-work buffer zones until the nest is deemed no longer active by the biologist.
17 Is there a potential for wetlands to occur within or adjacent to the construction area? No. The project site is primarily within the ROW of Acacia Street, La Palma Avenue, Frontera Street & Santa Ana Canyon Road. The surrounding areas are fully developed with residential and public land uses. There are no wetlands on or immediately adjacent to the project site. 18 Is there a potential for agricultural wetlands to occur within or adjacent to the construction area? No. There are no agricultural lands located adjacent to the project area. The project area is characterized by residential and public land uses. Construction activities would occur within existing ROWs with the exception of partial ROW acquisition affecting one property on Acacia Street, and two properties on La Palma Avenue required to fit the standard street cross section. There is no potential for agricultural wetlands to occur within or adjacent to the construction area.
19 Is there a potential for the introduction or spread of invasive plant species? No. The proposed project involves the construction of sidewalks and does not involve landscaping or revegetation.
The proposed project could include the removal of existing vegetation to accommodate the proposed improvements; however, the proposed project is not anticipated to have the potential for the introduction or spread of invasive plant species because the proposed project is located in a fully developed urban area. 20 Are there any historic sites or publicly owned public parks, recreation areas, wildlife or waterfowl refuges (Section 4[f]) within or immediately adjacent to the construction area? Yes. There are several schools that are located adjacent to the project area, which include playgrounds or recreation areas. These schools include Thomas Edison Elementary School on Acacia Street, Sycamore Junior High School, Fairmont Private School, Integrity Christian School & Vineyard Christian School along La Palma Avenue, Rio Vista Elementary School along Rio Vista Street, and El Rancho Charter Middle School along Santa Ana Canyon Road. Although these schools are within the vicinity of our project location, it is unlikely that any Section 4[f] impacts would occur.
21 Does the project have the potential to affect properties acquired or improved with Land and Water Conservation Act (Section 6[f)) funds?
No. There are no properties acquired or improved with Land and Water Conservation Act (Section 6[f)) funds in or adjacent to the project area (California Department of Parks and Recreation 2017). 22 Does the project have the potential to affect any visual or scenic resources? No. The proposed project is the closure of gaps in the sidewalks along Acacia Street, La Palma Avenue, Frontera Street & Santa Ana Canyon Road. The proposed project would construct ADA compliant sidewalks and driveways.
A questionnaire to determine the visual impact assessment (VIA) level for the Proposed Project was completed resulting in a score of eight (Attachment). A score of eight does not require any further analysis. 23 Will the project require the relocation of residential or business properties? No. No residential or business properties would need to be relocated to construct the proposed project. The proposed project would be built entirely within the existing ROW of Acacia Street, La Palma Avenue, Frontera Street & Santa Ana Canyon Road, with the exception of partial ROW acquisition affecting one property on Acacia Street, and two properties on La Palma Avenue.
24 Will the project require any right-of-way, including partial or full takes? Consider construction easements and utility relocations.
Yes. The proposed project will require temporary construction easements (TCEs) to relocate the private improvements and to match grades behind the driveways. The proposed project will require partial ROW acquisition affecting one property on Acacia Street (1041 N. Acacia Street), and two properties on La Palma Avenue (2230 & 2238 La Palma Avenue).
25 Is the project inconsistent with plans and goals adopted by the community? No. The proposed project would close gaps in the sidewalks along Acacia Street, La Palma Avenue, Frontera Street & Santa Ana Canyon Road. The current routes are a mix of narrow sidewalks, dirt paths across private property, and complete blockages by landscaping or fencing forcing pedestrians and bicyclists into the street. The project would create smooth, continuous, and accessible routes for students and other residents as they commute on bike or foot to school, nearby businesses, or bus routes. These improvements would promote public safety and alternative modes of transportation. The proposed project would be consistent with the City of Anaheim's General Plan. For example, the Proposed Project would be consistent with the following goals and policies from the Circulation Element:
• Goal 3.1: Provide a well-maintained street system.
Policy 2: Maintain and rehabilitate all components of the circulation system, including roadways, sidewalks, bicycle facilities, pedestrian facilities, Intelligent Transportation systems and traffic signals.
• Goal 8.1: Protect and encourage pedestrian travel.
Policy 4: Support the planning of sidewalks of appropriate width to allow the provision of buffers to shield non-motorized traffic from vehicles.
26 Does the project have the potential to divide or disrupt neighborhoods/communities? No. The proposed improvements would occur within the existing ROW of Acacia Street, La Palma Avenue, Frontera Street and Santa Ana Canyon Drive, with the exception of partial ROW acquisition affecting one property on Acacia Street, and two properties on La Palma Avenue required to fit the standard street cross section. The proposed project would not divide or disrupt neighborhoods/communities. 27 Does the project have the potential to disproportionately affect low-income and minority populations? No. All improvements would occur within the existing ROW Acacia Street, La Palma Avenue, Frontera Street and Santa Ana Canyon Drive, with the exception of partial ROW acquisition affecting one property on Acacia Street, and two properties on La Palma Avenue. The proposed project does not have the potential to disproportionately affect low-income and minority population. The proposed project would result in beneficial impacts for the community by providing safety improvements to the sidewalks along Acacia Street, La Palma Avenue, Frontera Street and Santa Ana Canyon Drive.
28 Will the project require the relocation of public utilities? Yes. The proposed project would include minor utility relocation (adjust to grade of pull boxes and water meters), as needed.
29 Will the project affect access to properties or roadways? Yes. The proposed project is the closure of gaps in the sidewalks along Acacia Street, La Palma Avenue, Frontera Street and Santa Ana Canyon Drive. The proposed project would construct ADA compliant sidewalks and driveways. During construction, it is possible that access to properties or roadways adjacent to the project area would be affected temporarily. However, detours and alternate access points would be provided. Once project construction is completed, access to properties and roadways along Acacia Street, La Palma Avenue, Frontera Street and Santa Ana Canyon Drive would remain the same as existing conditions. 30 Will the project involve changes in access control to the State Highway System (SHS)? No. The proposed project is located along Acacia Street, La Palma Avenue, Frontera Street and Santa Ana Canyon Drive, and not within the SHS.
31 Will the project involve the use of a temporary road, detours, or ramp closure? No. During construction, the use of traffic control would be needed to for temporary closure; however, through traffic would be maintained at all times and access to adjacent properties would remain open. 32 Will the project reduce available parking?
No. During construction, on-street parking along Acacia Street, La Palma Avenue, Frontera Street and Santa Ana Canyon Drive would be temporarily restricted. However, after construction the existing on-street parking would be made available again. The project would not affect the parking conditions post construction. 33 Will the project construction encroach on state or federal lands? No. The proposed project would occur entirely within the existing ROWs with the exception of partial ROW acquisition affecting one property on Acacia Street, and two properties on La Palma Avenue required to fit the standard street cross section. Project construction would not encroach on state or federal lands. 34 Will the project convert any farmland to a different use or impact any farmlands? No. The project area is characterized by residential and public land uses where there are no farmlands within or immediately adjacent to the project area. The proposed project would not convert any farmland to a different use or impact any farmlands.
35 Is there National Register listed, or potentially eligible historic properties, or archaeological resources within or immediately adjacent to the construction area?
To be determined. (Note: Caltrans PQS answers question #35). 36 Is the project adjacent to, or would it encroach on Tribal land? No. The project site is not located within or adjacent to Tribal land; therefore, the proposed project would not impact or encroach on Tribal land.
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
APPENDIX 3
LOCAL ASSISTANCE PROCEDURES MANUAL EXHIBIT 13-C
CONSULTANT SELECTION CRITERIA AND GUIDE
Local Assistance Procedures Manual EXHIBIT 13-C
Consultant Selection Criteria and Guide
EXHIBIT 13-C CONSULTANT SELECTION CRITERIA AND GUIDE
APPRAISAL CONSULTANTS
To be used on projects where property rights are to be acquired for a project, whether those rights are temporary, permanent, in fee, or easement, or compensable damages accrue to property as a result of the project. The appraiser measures the fair market value of the rights to be acquired.
When selecting appraisal consultants, care must be exercised to ensure that the candidates have expertise in the specific appraisal field appropriate for the contemplated project. The greater the complexity of the project, the greater the need for highly specialized and/or experienced appraisers.
Appraisal Consultants are required to possess:
Appropriate Appraisal license as issued by the CA Office of Real Estate Appraisers in accordance to the degree, complexity and value of the appraisal required:
a) Residential License for any non-complex 1- 4 family property with value of 1 million and nonresidential property with a transaction value up to $250,000.
b) Certified Residential for any 1- 4 family property without regard to transaction value or complexity and nonresidential property with a transaction value up to $250,000. c) Certified General for all real estate without regard to transaction value or complexity. Appraisal License is required by law for transportation projects on or off the State Highway System. Minimum two (2) years experience of appraisal of rights for eminent domain purposes. Successful completion of a course in appraisal of partial acquisitions for public agencies. Knowledge of the Uniform Relocation and Real Property Acquisition Policies Act and state eminent domain Law. Work samples provided by the consultant should be reviewed by the LPA. Specific knowledge and experience appropriate for the proposed project.
Appraiser Responsibilities under the Uniform Act:
Property owner must be notified in writing of agency’s decision to appraise. Property owner or designee must be given opportunity to accompany appraiser during property inspection. Responsibility of sending Title VI information.
Diary entry of notifications and contacts.
Appraisal to contain minimum recognized standards for public acquisition (Zoning, Property Rights to be acquired, Highest and Best Use Analysis, Comparables, Improvements Acquired, Damages, Cost to Cure, etc.)
All appraisals must contain Appraiser and Review Appraiser Certificates.
LPP
04-06 July 9, 2004
EXHIBIT 13-C
Consultant Selection Criteria and Guide
Local Assistance Procedures Manual
July 9, 2004 LPP 04-06
REVIEW APPRAISER CONSULTANTS
Each appraisal must be reviewed by a qualified review appraiser and contain a Review Appraiser Certificate.
The review appraiser is the person responsible for appraisal quality and value determination. The review appraiser must remain independent and must not be subject to undue influence or pressure from any source to arrive at a particular value or to accept inadequate appraisal reports. It is essential that the review appraiser understands that his/her responsibility is to recommend an estimate of value for just compensation determination by the acquiring agency. The Uniform Act requires that an official of the acquiring agency must make the final determination of just compensation.
Review Appraiser Consultants are required to possess:
Certified Residential License for any 1- 4 family property without regard to transaction value or complexity and nonresidential property with a transaction value up to $250,000, or Certified General License for all real estate without regard to transaction value or complexity. Minimum two (2) years experience reviewing appraisals for eminent domain purposes. Knowledge of the Uniform Relocation and Real Property Acquisition Policies Act and state eminent domain Law.
Specific knowledge and experience appropriate for the proposed project.
Review Appraiser Responsibilities under the Uniform Act:
Confirmation of Analysis of Highest and Best Use, Damages, and Cost to Cure Damages. Confirmation of Valuation.
Confirmation of Calculations and Report Integrity.
Prepare signed statement certifying value of appraisal reviewed, including an explanation of the basis for recommendation.
Acquisition Consultants
To be used when rights are to be acquired, whether those rights are temporary, permanent, in fee, or easement, or compensable damage payments are to be made as a result of the project.
When selecting acquisition consultants, care must be exercised to ensure that the candidates have expertise with the conditions affecting the acquisition that are present in the contemplated project. These may vary, and some factors to be considered include property type, type of occupancy, and project design/impact on remainder.
Acquisition Consultants must possess:
Real Estate Broker’s or Salesperson’s License (when under the direct supervision of a Real Estate Broker) as issued by the CA Department of Real Estate (required by law). All Right of Way Contracts must be approved for content and signed or initialed by the Real Estate Broker.
Local Assistance Procedures Manual EXHIBIT 13-C
Consultant Selection Criteria and Guide
Minimum two (2) years experience in the acquisition of rights for eminent domain purposes. Knowledge of the Uniform Relocation and Real Property Acquisition Policies Act and state Eminent Domain Law. By signing the Right of Way Contract, the Broker or Principal of the Company acknowledges responsibility for maintaining a complete file on each parcel. Specific knowledge and experience appropriate for the proposed project.
It is extremely important for the local agency to be fully aware of the acquisition consultant’s qualifications and knowledge of the Uniform Act. If there are violations by the acquisition consultant or consulting firm, the local agency could jeopardize a portion of, or all of the federal funding for the entire project.
If you have questions or concerns, please contact the Department’s Right of Way Local Programs Coordinator in your area.
Acquisition Consultants Responsibilities under the Uniform Act:
Ensure establishment of just compensation by local agency prior to initiation of negotiations. Expeditious acquisition within 30-days of approved appraisal. First Written Offer should be presented in person when possible. Summary Statement (basis for the appraisal) to be included with the first written offer. Owner to be given responsible time to consider offer and present material relevant to value determination (i.e. 30 days and a minimum of 3 contacts).
Payment is required before taking possession unless date of possession clause is used in contract. Local agency is responsible for payment of all incidental expenses (title, escrow, surveys, prepayment penalties, etc.)
Preparation of Administrative Settlements when it is reasonable and in the public interest. Diary entries including confirmation of delivering Title VI information if project is federally funded.
Rel
ocation Consultants
To be used when there are occupants and/or personal property within the project area that must be relocated outside the project area. Occupancy may be residential or nonresidential, including agricultural uses. Relocation specialists may be used to prepare the relocation impact documents (part of the NEPA compliance process) in the planning stage. Refer to: http://www.dot.ca.gov/ser/vol1/sec3/community/ch24cia/chap24cia.htm. A consultant proficient in both acquisition and relocation may be retained for both functions under the “caseworker” approach.
When selecting relocation consultants, care must be exercised to ensure that the candidates have expertise with types of occupancy affected by contemplated project, whether residential (owner-occupied), residential (tenant- occupied), personal property only, business, or nonprofit organization. The greater the complexity of the project, the greater the need for highly specialized and/or experienced relocation consultants.
Relocation Consultants should possess:
Minimum two (2) years experience at the working level providing public agency relocation assistance. Knowledge of the Uniform Relocation and Real Property Acquisition Policies Act and state eminent domain Law.
Specific knowledge and experience appropriate for the proposed project.
LPP
08-02 May 30, 2008
EXHIBIT 13-C
Consultant Selection Criteria and Guide
Local Assistance Procedures Manual
July 9, 2004 LPP 04-06
Property Management Consultants
To be used when tenants will be in occupancy of the right of way after the agency has acquired the property but prior to displacement.
When selecting property management consultants, care must be exercised to ensure that the candidates have expertise with types of tenancies affected by the contemplated project, whether residential, personal property only, business, or nonprofit organization. The greater the complexity of the project, the greater the need for highly specialized and/or experienced property management consultants.
Property Management Consultants should possess:
Real Estate Broker’s or Salesperson’s License (when under the direct supervision of a Real estate Broker) as issued by the CA Department of Real Estate (required by law). Minimum two (2) years experience at the working level in management of rental properties. Knowledge of applicable sections of the Uniform Relocation and Real Property Acquisition Policies Act, state eminent domain law, and Landlord Tenant Law.
Specific knowledge and experience appropriate for the proposed project.
Right of Way Project Management Consultants
May be used to coordinate and direct the work of other consultants as well as local agency staff. Will have primary responsibility to ensure the work products for the project satisfy all requirements of applicable laws, statutes, regulations, policies, and procedures.
Project Management Consultants should possess:
Minimum five (5) years experience at a supervising, managerial, or oversight level in a right of way organization operating with the power of eminent domain. Knowledge of the Federal and State Uniform Relocation and Real Property Acquisition Policies Act and Article 1, Section 19, California Constitution (granting the power of eminent domain law). Familiarity with project management theories and techniques, including project scheduling, staff assignments, and coordination and communication with other project entities.
Project Management Consultant or Principal of the consulting firm’s responsibilities:
Ensure right of way process has been followed in accordance with the Uniform Act. Ensure consultants have appropriate licenses for the scope of work. Ensure Broker signs or initials all right of way contracts. Approval of all right of way files (signature in diary) that files are complete and in accordance to the Uniform Act with appropriate diary entries.
Turnkey Right of Way Consultants
Multi-functional organizations that may be used to provide all right of way services required of a given project.
Should be competent in each individual functional area. Turnkey consultants must have sufficient staff to preserve separation of the appraisal, appraisal review, and acquisition functions. An individual may be technically proficient in multiple functions, but may not be used as a turnkey consultant. All appropriate licenses/certifications are required for the type of services performed.
Right-of-Way Acquisition Services for the Citywide SRTS Sidewalk Gap Closure Project (ATPSB1L-5055 (194))
APPENDIX 4
SAMPLE AGREEMENT
A G R E E M E N T
THIS AGREEMENT, dated for purposes of identification only this _____ day of __________, 2022, is made and entered into by and between the
CITY OF ANAHEIM, a municipal corporation,
hereinafter referred to as "ANAHEIM,"
A
N
D
_________________, a ____________________,
hereinafter referred to as "CONSULTANT."
ANAHEIM and CONSULTANT are sometimes individually referred to herein as "Party" and collectively as "Parties."
W I T N E S S E T H:
WHEREAS, ANAHEIM is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City of Anaheim; and
WHEREAS, ANAHEIM desires to obtain the services of CONSULTANT to provide Right-of-Way work for the Citywide SRTS Sidewalk Gap Closure Project (collectively, the “Services”); and
WHEREAS, CONSULTANT possesses the skill, experience, ability, background, certification and knowledge to provide the services for the Project as described in this Agreement; and
WHEREAS, ANAHEIM has solicited and received a proposal from CONSULTANT dated ____________ ("Proposal"), has reviewed the previous experience and evaluated the expertise of CONSULTANT, and desires to retain CONSULTANT to render professional services under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS:
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 CONSULTANT’s Proposal dated _____________, attached hereto as Exhibit “A” and incorporated herein and in the Request for Proposal (“RFP”) issued by ANAHEIM, a copy of which is available in the Department of Public Works upon request and a re both incorporated herein by this reference ("Scope of Services").
In the event of conflicting provisions, the provisions shall govern in the following order: (1) this Agreement, (2) the RFP, and (3) the Proposal.
1.2 Non-Exclusive Agreement . CONSU LTANT acknowledges that ANAHEIM may enter into agreements similar to this Agreement with other consultants. It is understood and agreed that any Services to be performed pursuant to this Agreement will be awarded to the CONSULTANT that ANAHEIM determines, in its sole discretion, to be most qualified to provide such Services to ANAHEIM.
1.3 Progress Reports. A. CONSULTANT shall submit progress reports at least once a month. The 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 restricted to, acts of God or of the public ene my, unusually severe weather, fires, earthquakes, floods, pestilence, and other natural catastrophes, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, civil disturbance or disobedience, sabotage, restraint by court
3 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 the exercise of due diligenc e such Party could not reasonably have been expected to avoid and which by exercise of due diligence has been unable to overcome, if CONSULTANT shall within ten (10) days of the commencement of such delay notify the Project Administrator in writing of the causes of the delay. The Project Administrator shall ascertain the facts and the extent of delay, and may extend the time for performing the Services for the period of the enforced delay if, in the judgment of the Project Administrator, such delay is justified. The Project Administrator's determination shall be final and conclusive upon the Parties to this Agreement. In the event of delay, however caused, CONSULTANT's sole remedy shall be an extension of th is Agreement pursuant to this Section and CONSULTANT shall not be entitled to recover damages against ANAHEIM.
4. COMPENSATION
4.1 ANAHEIM shall pay CONSULTANT for the Services rendered, pursuant to this Agreement, in the amount of _________________ ($__________) pursuant to the fee proposal set forth in Exhibit A and incorporated herein by reference (“Schedule of Compensation"). CONSULTANT and ANAHEIM agree that no changes to the fee proposal set forth in Exhibit A shall be made during the term of this Agreement without the prior written approval of ANAHEIM.
4.2 Extra Work. The Director of Public Works is authorized to approve additional expenditures to be paid to CONSULTANT, pursuant to this Agreement, for Extra Work not included in the Scope of Services, in the amount of _______________________ ($_________) if the Director of Public Works determines, in her sole discretion, that the additional Extra Work is necessary for the successful completion of the Services. .01 In no event shall CONSULTANT render Extra Work beyond the scope of this Agreement without the written authorization of the Director of Public Works. .02 All Extra Work approved in writing by the Director of Public Works shall be billed at either the rates set forth in the Schedule of Compensation or at a fixed price, at ANAHEIM’s sole discretion. If billed at a fixed price, CONSULTANT shall provide ANAHEIM with general description of the Extra Work to be performed with a proposed price. At such time as the Director of Public Works has approved the Extr a Work, has agreed to a fixed price for the services, and has notified CONSULTANT of such approval and agreement in writing, CONSULTANT shall perform the Extra Work.
.03 Except as specifically provided herein, no additional Services or Extra Work beyond the scope of this Agreement shall be rendered by CONSULTANT unless previously authorized in writing by the City Manager. .04 As used herein, “Extra Work” means any work that is determined by ANAHEIM to be necessary for the proper completion of the Services, but which is
4 not included within the Scope of Services and which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
4.3 It is understood by and agreed between the Parties to this Agreement that full and complete payment for all Services provided in accordance with this Agreement, including, but not limited to, all Extra Work, reimbursable expenses and subconsultant fees, if any, shall not exceed the fixed fee of __________________($______________).
4.4. CONSULTANT shall submit monthly invoices to ANAHEIM describing the work performed the preceding month. CONSULTANT’s bills shall include the name of the person who performed the work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. ANAHEIM shall pay CONSULTANT no later than thirty (30) days after approval of the monthly invoice by ANAHEIM staff.
4.5 All Parties recognize that the continuation of this Agreement after the close of any fiscal year of ANAHEIM, which fiscal year ends on June 30 of each year, shall be subject to budget approval providing for or covering such contract items as an expenditure in said budget.
ANAHEIM does not represent that said budget item will be actually adopted, said determination being the determination of the City Council at the time of the adoption of the budget herein. No penalty shall accrue to ANAHEIM in the event this provision 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 CON SULTANT 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 bet ween 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.
4.9 It is mutually agreed that if sufficient funds are not appropriated, t his contract may be amended to reflect any reduction in funds.
5 4.10 ANAHEIM has the option to void the contract under the 30-day termination clause pursuant to Section 25, or by mutual agreement to amend the contract to reflect any reduction of funds.
4.11 The method of payment for this contract will be based on actual cost plus a fixed fee. ANAHEIM will reimburse CONSULTANT for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by CONSULTANT in performance of the work. CONSULTANT will not be 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 c ost 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 arrear s 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 t he 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 days af ter completion of CONSULTANT’s work. Invoices shall be mailed to ANAHEIM’s Contract Administrator at the following address:
6 __________________________, 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 ___________________ to be its Project Manager. It is expressly understood that the experience, knowledge, capability 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 co mpletion 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 necessary personnel to complete the Ser vices 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 works 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.
(ii) The Project Administrator is authorized to ta ke 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 7. STANDARD OF CARE
7.1 CONSULTANT shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of Cal ifornia. 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 nature that is legally required of CONSULTANT to practice its profession. CONSULTANT shall maintain a City of Anaheim business license during the term of this Agreement.
8. FAMILIARITY WITH WORK
By executing this Agreement, CONSULTANT represents and 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 such fact and shall not proceed exce pt 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 become or be deemed to be a partner of CONSULTANT in its business or otherwise or a joint venture or a member of any joint enterprise with CONSULTANT.
9.2 In consideration for the compensation paid to CONSULTANT by ANAHEIM, CONSULTANT agrees that ANAHEIM shall not be liable or responsible for a ny benefits, including, but not limited to, worker's compensation, disability, retirement, life,
8 unemployment, health or any other benefits and CONSULTANT agrees that it shall not sue or file a claim, petition or application therefor e against ANAHEIM or an y 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 autos, in an amount not less than $1,000,000 per occurrence, combined single limit, as required by California law. .04 Professional Liability Insurance in an amount not less than $1,000,000 per claim, 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 $5,000 per claim, 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:
.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."
9 .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 forth in the above -referenced clauses are ot herwise 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 insurance required herein, then ANAHEIM has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the Parties agree that CONSULTANT shall fully defend, hold harml ess, 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 con tained 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/subcontractor, if any) performance of the work covered under this Agreement.
10.7 In the event CONSULTANT hires other persons or firms to perform some of the work related to this Agreement, CONSULTANT shall ensure, and certify to ANAHEIM in writing that: ( i) the acts or omissions of such persons or fi rms are covered under the above - referenced liability insurance; or (ii) such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of CONSULTANT
10 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 provided, evidence of such insurance coverage, reasonably acceptable to ANAHEIM.
10.8 ANAHEIM's Risk Manager is hereby authorized to reduce the requirements set forth herein in the event he determines that such reduction is in ANAHEIM's best interest.
11. INDEMNIFICATION
11.1 As respects acts, errors or omissions in the performance of professional services, CONSULTANT agrees to indemnify and hold harmless ANAHEIM, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, to the extent arising directly out of CONSULTANT's (or CONSULTANT's contractors' or subcontractors', if any) negligent acts, errors or omissions in the performance of professional services under this Agreement.
11.2 As respects all acts, errors or omissions which do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically 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, relative to this Agreement; except for those Claims which arise out of the sole negligence or willful misconduct of ANAHEIM.
11.3 The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not ANAHEIM, CONSULTANT, or any other person maintains, or fails to maintain, insurance coverage, or a self -insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement.
12. PREVAILING WAGES
12.1 CONSULTANT shall comply with the State of California’s General Prevailing Wage Rate requirements in accordance with California Labor Code, Section 1770, and all Federal, State, and local laws and ordinances applicable to the work.
12.2 Any subcontract entered into as a result of this contract, if for more than $25,000 for public works construction or more than $15,000 for the alteration, demolition, repair, or maintenance of public works, shall contain all of the provisions of this Article, unless the awarding agency has an approved labor compliance program by the Director of Industrial Relations.
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 rates set by the
11 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 t he 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 th e professional reputation, experience and competence of CONSULTANT.
Neither the whole nor any interest in, nor any of the rights or privileges granted 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 substitution 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 los ses 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 completion of this project by others, except only such use as many be authorized in writing by CONSULTANT.
16.4 Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27, Subpart 27.3 - Patent Rights under Government Contracts for federal-aid contracts).
16.5 ANAHEIM may permit copyrighting reports or other agreement products.
If copyrights are permitted; the agreement shall provide that the FHWA shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.
17. CONFIDENTIALITY
17.1 All financial, statistical, personal, technical, or other data and information relative to ANAHEIM's operations, which are designated confidential by ANAHEIM and made available to CONSULTANT in order to carr y out this contract, shall be protected by CONSULTANT from unauthorized use and disclosure.
17.2. Permission to disclose information on one occasion, or public hearing held by ANAHEIM relating to the contract, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.
17.3. CONSULTANT shall not comment publicly to the press or any other media regarding the contract or ANAHEIM's actions on the same, except to ANAHEIM’s staff, CONSULTANT’s own personnel involved in the performance of this contract, at public hearings or in response to questions from a Legislative committee.
17.4 CONSULTANT shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this contract without prior review of the contents thereof by ANAHEIM, and receipt of ANAHEIM’S written permission.
13 17.5. Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article.
17.6 All information related to the construction estimate is confidential, and shall not be disclosed by CONSULTANT to any entity other than ANAHEIM.
18. INTELLECTUAL PROPERTY INDEMNITY
CONSULTANT shall defend and indemnify ANAHEIM, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by CONSULTANT to ANAHEIM pursuant to this Agreement.
19. RECORDS
CONSULTANT shall keep records and invoices in connection with the work to be performed under this Agreement. CONSULTANT shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to ANAHEIM, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to CONSULTANT under this Agreement.
All such records and invoices shall be clearly identifiable. CONSULTANT shall allow a representative of ANAHEIM to examine, audit and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours.
CONSULTANT shall allow inspection of all work, data, Documents, proceedings and activities related to this Agreement for a period of three (3) years from the date of final payment to CONSULTANT under this Agreement.
For the purpose of determining compliance with Public Contract Code 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of the contract pursuant to Government Code 8546.7; CONSULTANT, subconsulta nts, 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 m ake 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 accountants (CPA) work papers that are pertinent to the contract and indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested.
20. WITHHOLDINGS
ANAHEIM may withhold payment to CONSULTANT of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. CONSULTANT shall not discontinue work as a result of such withholding. CONSULTANT shall have an immediate right
14 to appeal to the City Manager or his Designee with respect to such disputed sums and his/her decision shall be final. CONSULTANT shall be entitled to receive interest on any withheld sums at the rate of return that ANAHEIM earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld.
21. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional 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 this paragraph is intended to limit ANAHEIM's rights under the law or any other sections of this Agreement.
22. ANAHEIM'S RIGHT TO EMPLOY OTHER CONSULTANTS
CONSULTANT acknowledges and agrees that this Agreement and the provision of services hereunder 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 affect ed 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 ma y have a financial interest in the outcome of this contract, or any ensuing ANAHEIM construction project, which will follow.
CONSULTANT hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this contract.
CONSULTANT hereby certifies that neither CONSULTANT, nor any firm affiliated with CONSULTANT will bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this contract. An affiliated firm is one, which is subject to the control of the same persons through joint-ownership, or otherwise.
15 Except for subconsultants whose services are limited to providing surveying or materials testing information, no subconsultant who has provided design services in connection with this contract shall be eligible to bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this contract.
24. NOTICES
All notices, demands or other writings to be made, given or sent hereunder, or which may be so given or made or sent by either ANAHEIM or CONSULTANT to the other shall be deemed to have been given when in writing and personally deliv ered or if mailed on the third (3rd) day after being deposited in the United States mail, certified or registered, postage prepaid, 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: Consultant's Name
Attn:
Address:
Phone:
25. ENFORCEMENT OF AGREEMENT
25.1 Events of Default.
.01 For purposes of this Section 25, the word "Default" shall mean the failure of CONSULTANT to perform any of CONSULTANT's duties or obligations or the breach by CONSULTANT of any of the terms and conditions set forth in this 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 adjudged bankrupt; (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization or inso lvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing); or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution or seizure of all or a substantial portion of CONSULTANT's assets or of CONSULTANT's interests hereunder.
16 .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 perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, ANAHEIM may proceed with the work in any manner deemed proper by ANAHEIM. If ANAHEIM terminates this contract with CONSULTANT, ANAHEIM shall pay CONSULTANT the sum due to 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 du e 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 here by, and no agreement, statement or 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.
17 29. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits or any other attachments attached hereto, the terms of this Agreement shall govern.
30. INTERPRETATION
Each Party acknowledges that he / she / it has had the benefit of advice of competent legal counsel with respect to its decision to enter this Agreement. The provisions of this Agreement shall be interpreted to give effect to their fair meaning and shall be construed as prepared by both Parties.
31. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by both CONSULTANT and ANAHEIM and approved as to form by the City Attorney.
CONSULTANT shall only commence work covered by an amendment a fter 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 unenforc eable, the remainder of this Agreement, or the application of its terms and provisions to persons and circumstances other than those to which it has been held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
33. REMEDIES CUMULATIVE
The remedies given to ANAHEIM and CONSULTANT herein shall be cumulative and are given without impairing any other rights given ANAHEIM or CONSULTANT by statute or law now existing or hereafter 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 a ny 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 nondisc rimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement. In addition, CONSULTANT shall comply with the provisions provided in FHWA-1273, attached hereto as Exhibit B and incorporated herein.
38.2 Nondiscrimination.
A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification 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 performanc e of this AGREEMENT, CONSULTANT and its subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual
19 orientation, or military and veteran statu s. CONSULTANT and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.
C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by ANAHEIM to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100 -8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.
D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and ANAHEIM upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of 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 labo r organizations with which 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 re gard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
H. The CONSULTANT shall comply with regulations relative to non - discrimination in federally-assisted programs of the U.S. Department of Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
I. CONSULTANT, 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 4 9 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 r efuses 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.
43. STATEMENT OF COMPLIANCE
23 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 requ irements 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 a ny 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 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a -f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Contract by reference and made a part hereof as if set forth in full.
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 w ill 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, including procurement of materials and leases of equipment. The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT’s Regulations, including employment practices when the Agreement covers a program whose goal is employment.
44. DEBARMENT AND SUSPENSION CERTIFICATION
44.1 CONSULTANT’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that CONSULTANT has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Govern ment wide Debarment and Suspension (nonprocurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal
24 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 assis tance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49CFR26.55 defines "manufacturer" and "regular dealer." This AGREEMENT is subject to 49 CFR Part 26 entitled “Par ticipation 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 b y either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: DBE Information –Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
D. Contract Assurance
Under 49 CFR 26.13(b):
CONSULTANT, subrecipient or subconsultant shall not discriminate on t he 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.
26 ANAHEIM authorizes a request to use other forces or sources of materials if CONSULTANT shows any of the following justifications:
1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.
2. ANAHEIM stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet ANAHEIM’s bond requirements.
3. Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the 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
27 perform at least the same amou nt of work as the original DBE under the contract to the extent needed to meet or exceed the DBE goal.
F. Commitment and Utilization
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 mu st 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 commerciall y useful function (CUF) on the AGREEMENT. CUF must be evaluated on an agreement by agreement basis. A DBE performs a Commercially Useful
28 Function (CUF) when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibiliti es by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying 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 obt ain 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 thi rty 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 employed, or retained, to solicit or secure this contract upon an agreement or
29 understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies mai ntained 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 actually performed, or in its discretion to deduct fro m the contract price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
47. DISPUTES
47.1 Any dispute, other than audit, concerning a question of fact arising under this contract that is not disposed of by agreement shall be decided by a committee consisting of ANAHEIM's Contract Administrator and Director of Public Works, who may consider written or verbal information submitted by CONSULTANT.
47.2 Not later than 30 days after completion of all deliverables necessary to complete the plans, specifications and estimate, CONSULTANT may request review by ANAHEIM Director of Public Works, of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
48. SAFETY
48.1 CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions issued by ANAHEIM Safety Of ficer and other ANAHEIM representatives. CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site.
48.2 Pursuant to the authority contained in Section 591 of the Vehicle Code, ANAHEIM has determined that such areas are within the limits of the project and are open to public traffic.
CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. CONSULTANT shall take all reasonably neces sary 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 eva luate or defend against such claims; CONSULTANT agrees to make its personnel available for consultation with ANAHEIM's
30 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.
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 contract in order to resolve the construction claims.
50. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code Section 10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against CONSULTANT within the immediately preceding two - year period, because of CONSULTANT’s failure to comply with an order of a federal court t hat 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 toge ther 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 CONSU LANTS and shall make prompt and regular incremental acceptances of portions, as determined by ANAHEIM, of the contract work, and pay retainage to CONSULTANT based on these acceptances. ANAHEIM shall designate one of the methods below in the contract to ens ure 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 holding retainage from subconsultants. Any delay or postponement of payment may take place only for good cause and with ANAHEIM’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedi es, otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment
31 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.
54. PROMPT PAYMENT FROM ANAHEIM TO CONSULTANT
ANAHEIM shall make any progress payment within 30 days after receipt of an undisputed and properly submitted paymen t request from CONSULTANT on a professional service contract. If ANAHEIM fails to pay promptly, ANAHEIM shall pay interest to the contractor, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfie d. 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").
32 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth.
DATE OF EXECUTION:
CITY OF ANAHEIM
a municipal corporation
By:
“ANAHEIM”
ATTEST:
By: _
City Clerk of Anaheim
_______________________, a ______________
DATE OF EXECUTION:
By:
Printed Name _______________________
Title ___________________________
“CONSULTANT”
APPROVED AS TO FORM:
ROBERTY FABELA, CITY ATTORNEY
By:
Bryn M. Morley
Deputy City Attorney
Dated:
Attachments: Exhibit A
146258
1 EXHIBIT A
STARTS AFTER THIS PAGE
1 EXHIBIT B
STARTS AFTER THIS PAGE
I
I
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
Exhibit 10-R: A&E BOILERPLATE AGREEMENT LANGUAGE
(For Local Assistance Federal-aid Projects)
NOTE TO LOCAL AGENCY - BE SURE THAT YOUR LEGAL STAFF REVIEWS AND APPROVES ALL CONSULTANT CONTRACTS BEFORE EXECUTION. THIS AGREEMENT LANGUAGE IS RECOMMENDED LANGUAGE , EXCEPT
TITLE VI APPENDICES A-E MUST BE PHYSICALLY INCLUDED, UNMODIFIED, IN THE EXECUTED CONTRACT FOR ALL FEDERAL-AID PROJECTS, REFER TO ARTICLE XXXII. MODIFY AS RECOMMENDED BY YOUR OWN LEGAL STAFF AND TO FIT YOUR PARTICULAR REQUIREMENTS AND PROJECT.
THE FISCAL AND FEDERAL PROVISIONS ARE REQUIRED IN ALL FEDERALLY FUNDED CONTRACTS. THE ORIGINAL INTENT OF THE ARTICLE SHALL REMAIN, IF MODIFIED BY YOUR LEGAL STAFF.
This exhibit contains fiscal requirements from 2 CFR 200 and is to be used for state-only funded contracts as well.
TABLE OF CONTENTS
Page
ARTICLE I INTRODUCTION....................................................................................................................3 ARTICLE II CONSULTANT’S REPORTS OR MEETINGS......................................................................4 ARTICLE III STATEMENT OF WORK .....................................................................................................5 ARTICLE IV PERFORMANCE PERIOD ..................................................................................................6 ARTICLE V ALLOWABLE COSTS AND PAYMENTS............................................................................6 ARTICLE VI TERMINATION ..................................................................................................................11 ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS ...................................11 ARTICLE VIII RETENTION OF RECORD/AUDITS ...............................................................................12 ARTICLE IX AUDIT REVIEW PROCEDURES ......................................................................................12 ARTICLE X SUBCONTRACTING..........................................................................................................14 ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES ............................15 ARTICLE XII STATE PREVAILING WAGE RATES..............................................................................16 ARTICLE XIII CONFLICT OF INTEREST ..............................................................................................19 ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION .......................20
ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR FEDERAL FUNDS FOR LOBBYING ....................................................................................................................................20 ARTICLE XVI NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE...................21 ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION ..................................................22 ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION .................22 ARTICLE XIX INSURANCE ...................................................................................................................26 ARTICLE XX FUNDING REQUIREMENTS ...........................................................................................27 ARTICLE XXI CHANGE IN TERMS.......................................................................................................27 ARTICLE XXII CONTINGENT FEE........................................................................................................27 ARTICLE XXIII DISPUTES.....................................................................................................................28
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
ARTICLE XXIV INSPECTION OF WORK..............................................................................................28 ARTICLE XXV SAFETY.........................................................................................................................28 ARTICLE XXVI OWNERSHIP OF DATA ...............................................................................................29 ARTICLE XXVII CLAIMS FILED BY LOCAL AGENCY’s CONSTRUCTION CONTRACTOR.............29 ARTICLE XXVIII CONFIDENTIALITY OF DATA...................................................................................30 ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION .....................................30 ARTICLE XXX EVALUATION OF CONSULTANT ................................................................................31 ARTICLE XXXI PROMPT PAYMENT FROM THE LOCAL AGENCY TO CONSULTANT ...................31 ARTICLE XXXII TITLE VI ASSURANCES.............................................................................................31 ARTICLE XXXIII NOTIFICATION...........................................................................................................36 ARTICLE XXXIV CONTRACT................................................................................................................36 ARTICLE XXXV SIGNATURES .............................................................................................................36
January 2022
-
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
ARTICLE I INTRODUCTION
This AGREEMENT is between the following named, hereinafter referred to as, CONSULTANT and the following named, hereinafter referred to as, LOCAL AGENCY:
The name of the “CONSULTANT” is as follows:
(NAME OF CONSULTANT)
Incorporated in the State of (NAME OF STATE)
The Project Manager for the “CONSULTANT” will be (NAME) The name of the “LOCAL AGENCY” is as follows:
(NAME)
The Contract Administrator for LOCAL AGENCY will be (NAME) B. The work to be performed under this AGREEMENT is described in Article III Statement of Work and the approved CONSULTANT’s Cost Proposal dated (DATE). The approved CONSULTANT’s Cost Proposal is attached hereto (Attachment #) and incorporated by reference. If there is any conflict between the approved Cost Proposal and this AGREEMENT, this AGREEMENT shall take precedence.
C. CONSULTANT agrees to the fullest extent permitted by law, to indemnify, protect, defend, and hold harmless LOCAL AGENCY, its officers, officials, agents, employees and volunteers from and against any and all claims, damages, demands, liability, costs, losses and expenses, including without limitation, court costs and reasonable attorneys’ and expert witness fees, arising out of any failure to comply with applicable law, any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise arising out of the performance of the work described herein, to the extent caused by a negligent act or negligent failure to act, errors, omissions, recklessness or willful misconduct incident to the performance of this AGREEMENT on the part of CONSULTANT, except such loss or damage which was caused by the sole negligence, or willful misconduct of LOCAL AGENCY, as determined by a Court of competent jurisdiction. The provisions of this section shall survive termination or suspension of this AGREEMENT.
D. CONSULTANT in the performance of this AGREEMENT, shall act in an independent capacity. It is understood and agreed that CONSULTANT (including CONSULTANT's employees) is an independent contractor and that no relationship of employer-employee exists between the Parties hereto. CONSULTANT's assigned personnel shall not be entitled to any benefits payable to employees of City.
E. LOCAL AGENCY is not required to make any deductions or withholdings from the compensation payable to CONSULTANT under the provisions of the AGREEMENT, and is not required to issue W-2 Forms for income and employment tax purposes for any of CONSULTANT's assigned personnel. CONSULTANT, in the performance of its obligation hereunder, is only subject to the control or direction of the LOCAL AGENCY as to the designation of tasks to be performed and the results to be accomplished.
F. Any third party person(s) employed by CONSULTANT shall be entirely and exclusively under the direction, supervision, and control of CONSULTANT. CONSULTANT hereby indemnifies and holds LOCAL AGENCY harmless from any and all claims that may be made against City based upon any contention by any third party that an employer-employee relationship exists by reason of this AGREEMENT.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
G. Except as expressly authorized herein, CONSULTANT's obligations under this AGREEMENT are not assignable or transferable, and CONSULTANT shall not subcontract any work, without the prior written approval of the LOCAL AGENCY. However, claims for money due or which become due to CONSULTANT from City under this AGREEMENT may be assigned to a financial institution or to a trustee in bankruptcy, without such approval. Notice of any assignment or transfer whether voluntary or involuntary shall be furnished promptly to the LOCAL AGENCY.
H. CONSULTANT shall be as fully responsible to the LOCAL AGENCY for the negligent acts and omissions of its contractors and subcontractors or subconsultants, and of persons either directly or indirectly employed by them, in the same manner as persons directly employed by CONSULTANT.
I. No alteration or variation of the terms of this AGREEMENT shall be valid, unless made in writing and signed by the parties authorized to bind the parties; and no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto.
J. The consideration to be paid to CONSULTANT as provided herein, shall be in compensation for all of CONSULTANT’s expenses incurred in the performance hereof, including travel and per diem, unless otherwise expressly so provided.
ARTICLE II CONSULTANT’S REPORTS OR MEETINGS
(Choose either Option 1 or Option 2)
(Option 1 - Use paragraphs A & B below for standard AGREEMENTs) A. CONSULTANT shall submit progress reports at least once a month. The report should be sufficiently detailed for the LOCAL AGENCY’s 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.
B. CONSULTANT’s Project Manager shall meet with LOCAL AGENCY’s Contract Administrator, as needed, to discuss progress on the AGREEMENT.
(Option 2 - Use paragraphs A & B below for on-call AGREEMENTs) A. CONSULTANT shall submit progress reports on each specific project in accordance with the Task Order. These reports shall be submitted at least once a month. The report should be sufficiently detailed for LOCAL AGENCY’s Contract Administrator or Project Coordinator 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.
B. CONSULTANT’s Project Manager shall meet with LOCAL AGENCY’s Contract Administrator or Project Coordinator, as needed, to discuss progress on the project(s).
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
ARTICLE III STATEMENT OF WORK
(Insert Appropriate Statement of work including a Description of the Deliverables) in the following sections. If a section does not apply to the AGREEMENT, state “Not Applicable to this AGREEMENT.”) A. CONSULTANT Services
Detail based on the services to be furnished should be provided by CONSULTANT. Nature and extent should be verified in the negotiations to make precise statements to eliminate subsequent uncertainties and misunderstandings. Reference to the appropriate standards for design or other standards for work performance stipulated in CONSULTANT AGREEMENT should be included.
Describe acceptance criteria, and if the responsible CONSULTANT/engineer shall sign all Plans, Specifications and Estimate (PS&E) and engineering data furnished under the AGREEMENT including registration number.
Environmental documents are not considered complete until a Caltrans District Senior Environmental Planner signs the Categorical Exclusion, a Caltrans Deputy District Director signs the Finding of No Significant Impact, or the Caltrans District Director signs the Record of Decision (see LAPM Chapter 6: Environmental Procedures, and the Standard Environmental Reference).
B. Right of Way
State whether Right of Way requirements are to be determined and shown by CONSULTANT, whether land surveys and computations with metes and bounds descriptions are to be made, and whether Right of Way parcel maps are to be furnished.
C. Surveys
State whether or not the CONSULTANT has the responsibility for performing preliminary or construction surveys.
D. Subsurface Investigations
State specifically whether or not CONSULTANT has responsibility for making subsurface investigations. If borings or other specialized services are to be made by others under the supervision of CONSULTANT, appropriate provisions are to be incorporated. Archaeological testing and data recovery guidance can be found in the Standard Environmental Reference.
E. Local Agency Obligations
All data applicable to the project and in possession of LOCAL AGENCY, another agency, or government agency that are to be made available to CONSULTANT are referred to in the AGREEMENT. Any other assistance or services to be furnished to CONSULTANT are to be stated clearly.
F. Conferences, Site Visits, Inspection of Work
This AGREEMENT provides for conferences as needed, visits to the site, and inspection of the work by representatives of the LOCAL AGENCY, State, and/or FHWA. Costs incurred by CONSULTANT for meetings, subsequent to the initial meeting shall be included in the fee.
G. Checking Shop Drawings
For AGREEMENTs requiring the preparation of construction drawings, make provision for checking shop drawings. Payment for checking shop drawings by CONSULTANT may be included in the AGREEMENT fee, or provision may be made for separate payment.
H. CONSULTANT Services During Construction
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
The extent, if any of CONSULTANT’s services during the course of construction as material testing, construction surveys. etc., are specified in the AGREEMENT together with the method of payment for such services.
I. Documentation and Schedules
AGREEMENTs where appropriate, shall provide that CONSULTANT document the results of the work to the satisfaction of LOCAL AGENCY, and if applicable, the State and FHWA. This may include preparation of progress and final reports, plans, specifications and estimates, or similar evidence of attainment of the AGREEMENT objectives.
J. Deliverables and Number of Copies
The number of copies or documents to be furnished, such as reports, brochures, sets of plans, specifications, or Right of Way parcel maps shall be specified. Provision may be made for payment for additional copies.
ARTICLE IV PERFORMANCE PERIOD
A time must be set for beginning and ending the work under the AGREEMENT. The time allowed for performing the work is specified; it should be reasonable for the kind and amount of services contemplated; and it is written into the AGREEMENT. If it is desirable that Critical Path Method (CPM) networks, or other types of schedules be prepared by CONSULTANT, they should be identified and incorporated into the AGREEMENT.
A. This AGREEMENT shall go into effect on (DATE), contingent upon approval by LOCAL AGENCY, and CONSULTANT shall commence work after notification to proceed by LOCAL AGENCY’S Contract Administrator. The AGREEMENT shall end on (DATE), unless extended by AGREEMENT amendment.
B. CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on LOCAL AGENCY until the AGREEMENT is fully executed and approved by LOCAL AGENCY.
Use paragraph C below in addition to paragraphs A & B above for on-call AGREEMENTs. On-call AGREEMENTs shall be 5 years maximum.
C. The period of performance for each specific project shall be in accordance with the Task Order for that project. If work on a Task Order is in progress on the expiration date of this AGREEMENT, the terms of the AGREEMENT shall be extended by AGREEMENT amendment prior to the expiration of the contract to cover the time needed to complete the task order in progress only. The maximum term shall not exceed five (5) years.
ARTICLE V ALLOWABLE COSTS AND PAYMENTS
(Choose either Option 1, 2, 3, or 4)
(Option 1 - Use paragraphs A through K below for Cost-Plus-Fixed Fee AGREEMENTs. Use Exhibit 10-H1: Cost Proposal Format)
A. The method of payment for this AGREEMENT will be based on actual cost plus a fixed fee. LOCAL AGENCY will reimburse CONSULTANT for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by CONSULTANT in performance of the work. CONSULTANT will not be 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 AGREEMENT amendment. In no event, will CONSULTANT be reimbursed for overhead costs at a rate that exceeds LOCAL AGENCY’s approved overhead rate set forth in the
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
Cost Proposal. In the event, that LOCAL AGENCY determines that a change to the work from that specified in the Cost Proposal and AGREEMENT is required, the AGREEMENT time or actual costs reimbursable by LOCAL AGENCY shall be adjusted by AGREEMENT amendment to accommodate the changed work. The maximum total cost as specified in Paragraph “I” of this Article shall not be exceeded, unless authorized by AGREEMENT amendment.
B. The indirect cost rate established for this AGREEMENT is extended through the duration of this specific AGREEMENT. CONSULTANT’s agreement to the extension of the 1-year applicable period shall not be a condition or qualification to be considered for the work or AGREEMENT award.
C. In addition to the allowable incurred costs, LOCAL AGENCY will pay CONSULTANT a fixed fee of $(AMOUNT). The fixed fee is nonadjustable for the term of the AGREEMENT, except in the event of a significant change in the scope of work and such adjustment is made by AGREEMENT amendment.
D. Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal.
E. 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.
F. 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 Article III Statement of Work, LOCAL AGENCY shall have the right to delay payment or terminate this AGREEMENT.
G. No payment will be made prior to approval of any work, nor for any work performed prior to approval of this AGREEMENT.
H. CONSULTANT will be reimbursed promptly according to California Regulations upon receipt by LOCAL AGENCY’s Contract Administrator of itemized invoices in duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number and project title. Final invoice must contain the final cost and all credits due LOCAL AGENCY including any equipment purchased under the provisions of Article XI Equipment Purchase. The final invoice should be submitted within sixty (60) calendar days after completion of CONSULTANT’s work. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following address:
(LOCAL AGENCY/NAME OF CONTRACT ADMINISTRATOR)
(ADDRESS)
I. The total amount payable by LOCAL AGENCY including the fixed fee shall not exceed $(Amount).
J. 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.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
(Option 2 - For Cost per Unit of Work AGREEMENTs, replace paragraphs A & B of Option 1 with the following paragraphs A, B, and C and re-letter the remaining paragraphs. Adjust as necessary for work specific to your project. Use Exhibit 10-H3: Cost Proposal Format).
A. The method of payment for the following items shall be at the rate specified for each item, as described in this Article. The specified rate shall include full compensation to CONSULTANT for the item as described, including but not limited to, any repairs, maintenance, or insurance, and no further compensation will be allowed therefore.
B. The specified rate to be paid for vehicle expense for CONSULTANT’s field personnel shall be $(Amount) per approved Cost Proposal. This rate shall be for fully equipped vehicle(s) specified in Article III Statement of Work, as applicable. The specified rate to be paid for equipment shall be, as listed in the approved Cost Proposal.
C. The method of payment for this AGREEMENT, except those items to be paid for on a specified rate basis, will be based on cost per unit of work. LOCAL AGENCY will reimburse CONSULTANT for actual costs (including labor costs, employee benefits, travel, equipment-rental costs, overhead and other direct costs) incurred by CONSULTANT in performance of the work. CONSULTANT will not be 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 Cost Proposal, unless additional reimbursement is provided for, by AGREEMENT amendment. In no event, will CONSULTANT be reimbursed for overhead costs at a rate that exceeds LOCAL AGENCY approved overhead rate set forth in the approved Cost Proposal. In the event, LOCAL AGENCY determines that changed work from that specified in the approved Cost Proposal and AGREEMENT is required; the actual costs reimbursable by LOCAL AGENCY may be adjusted by AGREEMENT amendment to accommodate the changed work. The maximum total cost as specified in Paragraph “I,” of this article shall not be exceeded unless authorized by AGREEMENT amendment.
(Option 3 - Use paragraphs A through P for Specific Rates of Compensation Agreements [such as on- call Agreements]. This payment method shall only be used when it is not possible at the time of procurement to estimate the extent or duration of the work or to estimate costs with any reasonable degree of accuracy. The specific rates of compensation payment method should be limited to AGREEMENTs or components of AGREEMENTs for specialized or support type services where the CONSULTANT is not in direct control of the number of hours worked, such as construction engineering and inspection. Use Exhibit 10-H2: Cost Proposal Format).
A. CONSULTANT will be reimbursed for hours worked at the hourly rates specified in the CONSULTANT’s approved Cost Proposal. The specified hourly rates shall include direct salary costs, employee benefits, prevailing wages, employer payments, overhead, and fee. These rates are not adjustable for the performance period set forth in this AGREEMENT. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate.
B. In addition, CONSULTANT will be reimbursed for incurred (actual) direct costs other than salary costs that are in the approved Cost Proposal and identified in the approved Cost Proposal and in the executed Task Order.
C. Specific projects will be assigned to CONSULTANT through issuance of Task Orders.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
D. After a project to be performed under this AGREEMENT is identified by LOCAL AGENCY, LOCAL AGENCY will prepare a draft Task Order; less the cost estimate. A draft Task Order will identify the scope of services, expected results, project deliverables, period of performance, project schedule and will designate a LOCAL AGENCY Project Coordinator. The draft Task Order will be delivered to CONSULTANT for review. CONSULTANT shall return the draft Task Order within ten (10) calendar days along with a Cost Estimate, including a written estimate of the number of hours and hourly rates per staff person, any anticipated reimbursable expenses, overhead, fee if any, and total dollar amount. After agreement has been reached on the negotiable items and total cost; the finalized Task Order shall be signed by both LOCAL AGENCY and CONSULTANT.
E. Task Orders may be negotiated for a lump sum (Firm Fixed Price) or for specific rates of compensation, both of which must be based on the labor and other rates set forth in CONSULTANT’s approved Cost Proposal.
CONSULTANT shall be responsible for any future adjustments to prevailing wage rates including, but not limited to, base hourly rates and employer payments as determined by the Department of Industrial Relations. CONSULTANT is responsible for paying the appropriate rate, including escalations that take place during the term of the AGREEMENT.
F. (Local Agency to include either (a) or (b) below; delete the other one) (a) Reimbursement for transportation and subsistence costs shall not exceed State rates. (b) Reimbursement for transportation and subsistence costs shall not exceed the rates as specified in the approved Cost Proposal. CONSULTANT will be responsible for transportation and subsistence costs in excess of State rates.
G. When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval in the form of an AGREEMENT amendment for a revised milestone cost estimate from the Contract Administrator before exceeding such estimate.
H. Progress payments for each Task Order will be made monthly in arrears based on services provided and actual costs incurred.
I. CONSULTANT shall not commence performance of work or services until this AGREEMENT has been approved by LOCAL AGENCY and notification to proceed has been issued by LOCAL AGENCY’S Contract Administrator. No payment will be made prior to approval or for any work performed prior to approval of this AGREEMENT.
J. A Task Order is of no force or effect until returned to LOCAL AGENCY and signed by an authorized representative of LOCAL AGENCY. No expenditures are authorized on a project and work shall not commence until a Task Order for that project has been executed by LOCAL AGENCY.
K. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate. Separate invoices itemizing all costs are required for all work performed under each Task Order. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing, or upon completion of the Task Order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number, project title and Task Order number. Credits due LOCAL AGENCY that include any equipment purchased under the provisions of Article XI Equipment Purchase, must be reimbursed by CONSULTANT prior to the expiration or termination
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
of this AGREEMENT. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following address:
(NAME OF LOCAL AGENCY/ NAME OF CONTRACT ADMINISTRATOR)
(ADDRESS)
L. The period of performance for Task Orders shall be in accordance with dates specified in the Task Order. No Task Order will be written which extends beyond the expiration date of this AGREEMENT.
M. The total amount payable by LOCAL AGENCY for an individual Task Order shall not exceed the amount agreed to in the Task Order, unless authorized by amendment.
N. If CONSULTANT fails to satisfactorily complete a deliverable according to the schedule set forth in a Task Order, no payment will be made until the deliverable has been satisfactorily completed.
O. Task Orders may not be used to amend the language (or the terms) of this AGREEMENT nor to exceed the scope of work under this AGREEMENT.
P. The total amount payable by LOCAL AGENCY for all Task Orders resulting from this AGREEMENT shall not exceed $ (Amount). It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this AGREEMENT through Task Orders.
(Option 4 - Use paragraphs A through E below for lump sum agreements. Use Exhibit 10-H1: Cost Proposal Format)
A. The method of payment for this AGREEMENT will be based on lump sum. The total lump sum price paid to CONSULTANT will include compensation for all work and deliverables, including travel and equipment described in Article III Statement of Work. No additional compensation will be paid to CONSULTANT, unless there is a change in the scope of the work or the scope of the project. In the instance of a change in the scope of work or scope of the project, adjustment to the total lump sum compensation will be negotiated between CONSULTANT and LOCAL AGENCY.
Adjustment in the total lump sum compensation will not be effective until authorized by AGREEMENT amendment and approved by LOCAL AGENCY.
B. Progress payments may be made monthly in arrears based on the percentage of work completed by CONSULTANT. If CONSULTANT fails to submit the required deliverable items according to the schedule set forth in Article III Statement of Work, LOCAL AGENCY shall have the right to delay payment or terminate this AGREEMENT in accordance with the provisions of Article VI Termination.
C. CONSULTANT shall not commence performance of work or services until this AGREEMENT has been approved by LOCAL AGENCY and notification to proceed has been issued by LOCAL AGENCY’S Contract Administrator. No payment will be made prior to approval of any work, or for any work performed prior to approval of this AGREEMENT.
D. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
number and project title. Final invoice must contain the final cost and all credits due LOCAL AGENCY that include any equipment purchased under the provisions of Article XI Equipment Purchase. The final invoice must be submitted within sixty (60) calendar days after completion of CONSULTANT’s work unless a later date is approved by the LOCAL AGENCY. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following address:
(LOCAL AGENCY/NAME OF CONTRACT ADMINISTRATOR)
(ADDRESS)
E. The total amount payable by LOCAL AGENCY shall not exceed $(Amount).
ARTICLE VI TERMINATION
A. This AGREEMENT may be terminated by LOCAL AGENCY, provided that LOCAL AGENCY gives not less than thirty (30) calendar days’ written notice (delivered by certified mail, return receipt requested) of intent to terminate. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
B. LOCAL AGENCY may temporarily suspend this AGREEMENT, at no additional cost to LOCAL AGENCY, provided that CONSULTANT is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If LOCAL AGENCY gives such notice of temporary suspension, CONSULTANT shall immediately suspend its activities under this AGREEMENT. A temporary suspension may be issued concurrent with the notice of termination.
C. Notwithstanding any provisions of this AGREEMENT, CONSULTANT shall not be relieved of liability to LOCAL AGENCY for damages sustained by City by virtue of any breach of this AGREEMENT by CONSULTANT, and City may withhold any payments due to CONSULTANT until such time as the exact amount of damages, if any, due City from CONSULTANT is determined.
D. In the event of termination, CONSULTANT shall be compensated as provided for in this AGREEMENT. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS A. The CONSULTANT agrees that 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.
B. The CONSULTANT also agrees to comply with Federal procedures in accordance with 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
C. Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200 are subject to repayment by the CONSULTANT to LOCAL AGENCY.
D. When a CONSULTANT or Subconsultant is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
ARTICLE VIII RETENTION OF RECORD/AUDITS
For the purpose of determining compliance with Gov. Code § 8546.7, the CONSULTANT, Subconsultants, and LOCAL AGENCY shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the AGREEMENT including, but not limited to, the costs of administering the AGREEMENT. All parties, including the CONSULTANT’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the AGREEMENT period and for three (3) years from the date of final payment under the AGREEMENT and records for real property and equipment acquired with federal funds must be retained for three (3) years after final disposition. LOCAL AGENCY, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the CONSULTANT, Subconsultants, and the CONSULTANT’s Independent CPA, that are pertinent to the AGREEMENT for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
ARTICLE IX AUDIT REVIEW PROCEDURES
A. Any dispute concerning a question of fact arising under an interim or post audit of this AGREEMENT that is not disposed of by AGREEMENT, shall be reviewed by LOCAL AGENCY’S Chief Financial Officer.
B. Not later than thirty (30) calendar days after issuance of the final audit report, CONSULTANT may request a review by LOCAL AGENCY’S Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.
C. Neither the pendency of a dispute nor its consideration by LOCAL AGENCY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.
D. CONSULTANT and subconsultant AGREEMENTs, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an AGREEMENT audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the AGREEMENT, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR Part 31 and other related laws and regulations.
In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, LOCAL AGENCY, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The AGREEMENT, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by LOCAL AGENCY Contract Administrator 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 AGREEMENT by this reference if directed by LOCAL AGENCY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, LOCAL AGENCY or local governments have access to CPA work papers, will be considered a breach of AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
E. CONSULTANT’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the CONSULTANT and approved by the LOCAL AGENCY Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
recommendations included in the audit report. Refusal by the CONSULTANT to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
1. During IOAI’s review of the ICR audit work papers created by the CONSULTANT’s independent CPA, IOAI will work with the CPA and/or CONSULTANT toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, LOCAL AGENCY will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines}is received and approved by IOAI.
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate. c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.
2. If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require CONSULTANT to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.
3. If the CONSULTANT fails to comply with the provisions of this paragraph E, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this AGREEMENT.
4. CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this AGREEMENT has been completed to the satisfaction of LOCAL AGENCY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO LOCAL AGENCY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this AGREEMENT and all other agreements executed between LOCAL AGENCY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
ARTICLE X SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual relation between the LOCAL AGENCY and any Subconsultants, and no subagreement shall relieve the CONSULTANT of its responsibilities and obligations hereunder. The CONSULTANT agrees to be as fully responsible to the LOCAL AGENCY for the acts and omissions of its Subconsultants 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 the CONSULTANT. The CONSULTANT's obligation to pay its Subconsultants is an independent obligation from the LOCAL AGENCY's obligation to make payments to the CONSULTANT.
B. The CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the LOCAL AGENCY Contract Administrator, except that which is expressly identified in the CONSULTANT’s approved Cost Proposal.
C. Any subagreement entered into as a result of this AGREEMENT, shall contain all the provisions stipulated in this entire AGREEMENT to be applicable to Subconsultants unless otherwise noted.
D. CONSULTANT shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each payment made to the CONSULTANT by the LOCAL AGENCY.
E. Any substitution of Subconsultants must be approved in writing by the LOCAL AGENCY Contract Administrator in advance of assigning work to a substitute Subconsultant.
F. Prompt Progress Payment
CONSULTANT or subconsultant shall pay to any subconsultant, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed CONSULTANT on account of the work performed by the subconsultants, to the extent of each subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from CONSULTANT or subconsultant to a subconsultant, CONSULTANT or subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
G. Prompt Payment of Withheld Funds to Subconsultants
The LOCAL AGENCY may hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the LOCAL AGENCY, of the contract work, and pay retainage to CONSULTANT based on these acceptances. The LOCAL AGENCY 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.)
Method 1: No retainage will be held by the LOCAL AGENCY from progress payments due to CONSULTANT. CONSULTANTS and subconsultants are prohibited from holding retainage from
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
subconsultants. Any delay or postponement of payment may take place only for good cause and with the LOCAL AGENCY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant.
This clause applies to both DBE and non-DBE subconsultants.
Method 2: No retainage will be held by the LOCAL AGENCY from progress payments due to CONSULTANT. Any retainage kept by CONSULTANT or by a subconsultant must be paid in full to the earning subconsultant within 15 days after the subconsultant’s work is satisfactorily completed.
Any delay or postponement of payment may take place only for good cause and with the LOCAL AGENCY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and 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.
Method 3: The LOCAL AGENCY shall hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the LOCAL AGENCY of the contract work and pay retainage to CONSULTANT based on these acceptances. CONSULTANT or subconsultant shall return all monies withheld in retention from all subconsultants within 15 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the LOCAL AGENCY. Any delay or postponement of payment may take place only for good cause and with the LOCAL AGENCY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT; deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non-DBE subconsultants.
Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions and other remedies specified therein. These requirements 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 subcontract performance, or noncompliance by a subconsultant.
ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES A. Prior authorization in writing by LOCAL AGENCY’s Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.
B. For purchase of any item, service, or consulting work not covered in CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by LOCAL AGENCY’s Contract Administrator, three competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
C. Any equipment purchased with funds provided under the terms of this AGREEMENT is subject to the following:
1. 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 five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, LOCAL AGENCY shall receive a proper refund or credit at the conclusion of the AGREEMENT, or if the AGREEMENT is terminated, CONSULTANT may either keep the equipment and credit LOCAL AGENCY in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established LOCAL AGENCY procedures; and credit LOCAL AGENCY in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by LOCAL AGENCY and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by LOCAL AGENCY.
2. Regulation 2 CFR Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.
ARTICLE XII STATE PREVAILING WAGE RATES
A. No CONSULTANT or Subconsultant may be awarded an AGREEMENT containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this AGREEMENT, including any subsequent amendments.
B. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this AGREEMENT are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer (https://dot.ca.gov/programs/construction/labor-compliance). These wage rates are made a specific part of this AGREEMENT by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at LOCAL AGENCY construction sites, at LOCAL AGENCY facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve LOCAL AGENCY projects. Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.
C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations website at http://www.dir.ca.gov.
D. Payroll Records
1. Each CONSULTANT and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the CONSULTANT or Subconsultant in connection with the public work. Each payroll record shall contain or be
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
verified by a written declaration that it is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct. b. The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.
2. The payroll records enumerated under paragraph (1) above shall be certified as correct by the CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by LOCAL AGENCY representatives at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows:
a. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request. b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
c. The public shall not be given access to certified payroll records by the CONSULTANT. The CONSULTANT is required to forward any requests for certified payrolls to the LOCAL AGENCY Contract Administrator by both email and regular mail on the business day following receipt of the request.
3. Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.
4. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by LOCAL AGENCY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.
5. The CONSULTANT shall inform LOCAL AGENCY of the location of the records enumerated under paragraph (1) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.
6. The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (1) above. In the event the CONSULTANT or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to LOCAL AGENCY, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated.
Such penalties shall be withheld by LOCAL AGENCY from payments then due. CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.
E. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the LOCAL AGENCY Contract Administrator.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
F. Penalty
1. The CONSULTANT and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the CONSULTANT and any Subconsultant shall forfeit to the LOCAL AGENCY a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any public work done under the AGREEMENT by the CONSULTANT or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
2. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the CONSULTANT or Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under the Labor Code. The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.
3. In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the CONSULTANT or Subconsultant.
4. If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the prime CONSULTANT of the project is not liable for the penalties described above unless the prime CONSULTANT had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the prime CONSULTANT fails to comply with all of the following requirements:
a. The AGREEMENT executed between the CONSULTANT and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815. b. The CONSULTANT shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certified payroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the CONSULTANT shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining sufficient funds due the Subconsultant for work performed on the public works project. d. Prior to making final payment to the Subconsultant for work performed on the public works project, the CONSULTANT shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813.
5. Pursuant to Labor Code §1775, LOCAL AGENCY shall notify the CONSULTANT on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
6. If LOCAL AGENCY determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if LOCAL AGENCY did not retain sufficient money under the AGREEMENT to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the CONSULTANT shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by LOCAL AGENCY.
G. Hours of Labor
Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to the LOCAL AGENCY, twenty-five dollars ($25) for each worker employed in the execution of the AGREEMENT by the CONSULTANT or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one and one-half (1.5) times the basic rate of pay, as provided in §1815.
H. Employment of Apprentices
1. Where either the prime AGREEMENT or the subagreement exceeds thirty thousand dollars ($30,000), the CONSULTANT and any subconsultants under him or her shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.
2. CONSULTANTs and subconsultants are required to comply with all Labor Code requirements regarding the employment of apprentices, including mandatory ratios of journey level to apprentice workers. Prior to commencement of work, CONSULTANT and subconsultants are advised to contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey-to- apprentice ratios for the AGREEMENT work. The CONSULTANT is responsible for all subconsultants’ compliance with these requirements.
Penalties are specified in Labor Code §1777.7.
ARTICLE XIII CONFLICT OF INTEREST
A. During the term of this AGREEMENT, the CONSULTANT shall disclose any financial, business, or other relationship with LOCAL AGENCY that may have an impact upon the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project. The CONSULTANT shall also list current clients who may have a financial interest in the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project which will follow.
B. CONSULTANT certifies that it has disclosed to LOCAL AGENCY any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this AGREEMENT. CONSULTANT agrees to advise LOCAL AGENCY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this AGREEMENT. CONSULTANT further agrees to complete any statements of economic interest if required by either LOCAL AGENCY ordinance or State law.
C. The CONSULTANT hereby certifies that it does not now have nor shall it acquire any financial or business interest that would conflict with the performance of services under this AGREEMENT.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
D. The CONSULTANT hereby certifies that the CONSULTANT or subconsultant and any firm affiliated with the CONSULTANT or subconsultant that bids on any construction contract or on any Agreement to provide construction inspection for any construction project resulting from this AGREEMENT, has established necessary controls to ensure a conflict of interest does not exist.
An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.
ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION The CONSULTANT warrants that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any LOCAL AGENCY employee.
For breach or violation of this warranty, LOCAL AGENCY shall have the right, in its discretion, to terminate this AGREEMENT without liability, to pay only for the value of the work actually performed, or to deduct from this AGREEMENT price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR FEDERAL FUNDS
FOR LOBBYING
(Include this article in all AGREEMENTs where federal funding will exceed $150,000. If less than $150,000 in federal funds will be expended on the AGREEMENT; delete this article and re-number the subsequent articles.)
A. The CONSULTANT certifies, to the best of his or her knowledge and belief, that:
1. No State, Federal, or LOCAL AGENCY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, 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 or making of this AGREEMENT, or with the extension, continuation, renewal, amendment, or modification of this AGREEMENT.
2. 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 agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
B. 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 ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.
C. The 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 subagreements, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
ARTICLE XVI NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE 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, CONSULTANT and its subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. CONSULTANT and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.
C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by LOCAL AGENCY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.
D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or LOCAL AGENCY shall require to ascertain compliance with this clause.
E. CONSULTANT and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.
G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
H. The CONSULTANT shall comply with regulations relative to non-discrimination in federally- assisted programs of the U.S. Department of Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
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 the LOCAL AGENCY 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 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.
ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION
A. The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:
1. Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;
2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;
3. Does not have a proposed debarment pending; and
4. 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.
B. Any exceptions to this certification must be disclosed to LOCAL AGENCY. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.
C. Exceptions to the Federal Government excluded parties (https://sam.gov/content/home) maintained by the U.S. General Services Administration are to be determined by FHWA.
ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION A. CONSULTANT, subrecipient (LOCAL AGENCY), 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, The LOCAL AGENCY 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 at date of proposal opening that the DBE firm is certified as a DBE by using the California Unified Certification Program (CUCP) database and possesses the most specific available North American Industry Classification System (NAICS) codes or work code applicable to the type of work the firm will perform on the contract. Additionally, the CONSULTANT is responsible to document the verification record by printing out the CUCP data for each DBE firm. A
January 2022
I
-
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
list of DBEs certified by the CUCP can be found at https://dot.ca.gov/programs/civil-rights/dbe- search.
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 procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49CFR26.55 defines "manufacturer" and "regular dealer." This AGREEMENT is subject to 49 CFR Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. CONSULTANTs who enter into a federally-funded agreement will assist the LOCAL AGENCY in a good faith effort to achieve California's statewide overall DBE goal.
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- O2: Consultant Contract DBE Commitment attached hereto and incorporated as part of the AGREEMENT. If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: DBE Information – Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
D. Contract Assurance
Under 49 CFR 26.13(b):
CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.
Failure by the CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying CONSULTANT from future proposing as non-responsible
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
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 the LOCAL AGENCY’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 the LOCAL AGENCY. Unless the LOCAL AGENCY’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.
The LOCAL AGENCY authorizes a request to use other forces or sources of materials if CONSULTANT shows any of the following justifications:
1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.
2. The LOCAL AGENCY stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the LOCAL AGENCY’s bond requirements.
3. Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the project because of suspension or debarment.
7. Listed DBE becomes bankrupt or insolvent.
8. Listed DBE voluntarily withdraws with written notice from the 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. The LOCAL AGENCY determines other documented good cause.
CONSULTANT shall notify the original DBE of the intent to use other forces or material sources and provide the reasons and provide the DBE with 5 days to respond to the notice and advise CONSULTANT and the LOCAL AGENCY of the reasons why the use of other forces or sources of materials should not occur.
CONSULTANT’s request to use other forces or material sources must include:
1. One or more of the reasons listed in the preceding paragraph.
2. Notices from CONSULTANT to the DBE regarding the request.
3. Notices from the DBEs to CONSULTANT regarding the request.
If a listed DBE is terminated or substituted, CONSULTANT must make good faith efforts to find another DBE to substitute for the original DBE. The substitute DBE must perform at least the same amount of work as the original DBE under the contract to the extent needed to meet or exceed the DBE goal.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
F. Commitment and Utilization
The LOCAL AGENCY’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization.
The LOCAL AGENCY shall request CONSULTANT to:
1. Notify the LOCAL AGENCY’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 the LOCAL AGENCY. On work completion, CONSULTANT shall complete a Disadvantaged Business Enterprises (DBE) Certification Status Change, Exhibit 17-O, form and submit the form to the LOCAL AGENCY 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 the LOCAL AGENCY within 90 days of contract acceptance. The LOCAL AGENCY will withhold $10,000 until the form is submitted. The LOCAL AGENCY will release the withhold upon submission of the completed form.
In the LOCAL AGENCY’s reports of DBE participation to Caltrans, the LOCAL AGENCY 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 performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying 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
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
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.
K. 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 LOCAL AGENCY’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 10
th 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.
ARTICLE XIX INSURANCE
(Choose either Option 1 or Option 2)
(Option 1 - for AGREEMENT with a scope of services that may require the CONSULTANT or subconsultant to work within the operating state or Local Agency Highway Right of Way; where there would be exposure to public traffic or construction operations).
A. Prior to commencement of the work described herein, CONSULTANT shall furnish LOCAL AGENCY a Certificate of Insurance stating that there is general comprehensive liability insurance presently in effect for CONSULTANT with a combined single limit (CSL) of not less than one million dollars ($1,000,000) per occurrence.
B. The Certificate of Insurance will provide:
1. That the insurer will not cancel the insured’s coverage without thirty (30) calendar days prior written notice to LOCAL AGENCY.
2. That LOCAL AGENCY, its officers, agents, employees, and servants are included as additional insureds, but only insofar as the operations under this AGREEMENT are concerned.
3. That LOCAL AGENCY will not be responsible for any premiums or assessments on the policy.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
C. CONSULTANT agrees that the bodily injury liability insurance herein provided for, shall be in effect at all times during the term of this AGREEMENT. In the event said insurance coverage expires at any time or times during the term of this AGREEMENT, CONSULTANT agrees to provide at least thirty (30) calendar days prior notice to said expiration date; and a new Certificate of Insurance evidencing insurance coverage as provided for herein, for not less than either the remainder of the term of the AGREEMENT, or for a period of not less than one (1) year. New Certificates of Insurance are subject to the approval of LOCAL AGENCY. In the event CONSULTANT fails to keep in effect at all times insurance coverage as herein provided, LOCAL AGENCY may, in addition to any other remedies it may have, terminate this AGREEMENT upon occurrence of such event.
(Option 2 - for AGREEMENTs with a scope of services that will not require the CONSULTANT or subconsultant to work within the operating state or Local Agency Highway Right of Way where there would be exposure to public traffic or construction CONSULTANT operations).
CONSULTANT is not required to show evidence of general comprehensive liability insurance.
ARTICLE XX FUNDING REQUIREMENTS
A. It is mutually understood between the parties that this AGREEMENT may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the AGREEMENT were executed after that determination was made.
B. This AGREEMENT is valid and enforceable only if sufficient funds are made available to LOCAL AGENCY for the purpose of this AGREEMENT. In addition, this AGREEMENT is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or LOCAL AGENCY governing board that may affect the provisions, terms, or funding of this AGREEMENT in any manner.
C. It is mutually agreed that if sufficient funds are not appropriated, this AGREEMENT may be amended to reflect any reduction in funds.
D. LOCAL AGENCY has the option to terminate the AGREEMENT pursuant to Article VI Termination, or by mutual agreement to amend the AGREEMENT to reflect any reduction of funds.
ARTICLE XXI CHANGE IN TERMS
A. This AGREEMENT may be amended or modified only by mutual written agreement of the parties.
B. CONSULTANT shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by LOCAL AGENCY’s Contract Administrator.
C. 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 AGREEMENT without prior written approval by LOCAL AGENCY’s Contract Administrator.
ARTICLE XXII CONTINGENT FEE
CONSULTANT warrants, by execution of this AGREEMENT that no person or selling agency has been employed, or retained, to solicit or secure this AGREEMENT upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
established commercial or selling agencies maintained by CONSULTANT for the purpose of securing business. For breach or violation of this warranty, LOCAL AGENCY has the right to annul this AGREEMENT without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the AGREEMENT price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
ARTICLE XXIII DISPUTES
Prior to either party commencing any legal action under this AGREEMENT, the parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty -five (45) days of good-faith negotiations and as may be otherwise provided herein, then either party may commence legal action against the other.
(Choose either Option 1 or Option 2)
(Option 1 - Use paragraphs A through C below for all AGREEMENTs without PS&E submittal) A. Any dispute, other than audit, concerning a question of fact arising under this AGREEMENT that is not disposed of by agreement shall be decided by a committee consisting of LOCAL AGENCY’s Contract Administrator and (Insert Department Head or Official), who may consider written or verbal information submitted by CONSULTANT.
B. Not later than thirty (30) calendar days after completion of all work under the AGREEMENT, CONSULTANT may request review by LOCAL AGENCY Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
C. Neither the pendency of a dispute, nor its consideration by the committee will excuse CONSULTANT from full and timely performance in accordance with the terms of this AGREEMENT.
(Option 2 - Replace Paragraph B, above, with the following for AGREEMENTs requiring the submission of PS&E)
B. Not later than thirty (30) calendar days after completion of all deliverables necessary to complete the plans, specifications and estimate, CONSULTANT may request review by LOCAL AGENCY Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
ARTICLE XXIV INSPECTION OF WORK
CONSULTANT and any subconsultant shall permit LOCAL AGENCY, the State, and the FHWA if federal participating funds are used in this AGREEMENT; to review and inspect the project activities and files at all reasonable times during the performance period of this AGREEMENT.
ARTICLE XXV SAFETY
A. CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions issued by LOCAL AGENCY Safety Officer and other LOCAL AGENCY representatives.
CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
B. Pursuant to the authority contained in Vehicle Code §591, LOCAL AGENCY has determined that such areas are within the limits of the project and are open to public traffic. CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. CONSULTANT shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles. (Add the following paragraph to all AGREEMENTs, which may require trenching of five feet or deeper) D. CONSULTANT must have a Division of Occupational Safety and Health (CAL-OSHA) permit(s), as outlined in Labor Code §6500 and §6705, prior to the initiation of any practices, work, method, operation, or process related to the construction or excavation of trenches which are five (5) feet or deeper.
ARTICLE XXVI OWNERSHIP OF DATA
A. It is mutually agreed that all materials prepared by CONSULTANT under this AGREEMENT shall become the property of City, and CONSULTANT shall have no property right therein whatsoever.
Immediately upon termination, City shall be entitled to, and CONSULTANT shall deliver to City, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not, and other such materials as may have been prepared or accumulated to date by CONSULTANT in performing this AGREEMENT which is not CONSULTANT’s privileged information, as defined by law, or CONSULTANT’s personnel information, along with all other property belonging exclusively to City which is in CONSULTANT’s possession. Publication of the information derived from work performed or data obtained in connection with services rendered under this AGREEMENT must be approved in writing by City.
B. Additionally, it is agreed that the Parties intend this to be an AGREEMENT for services and each considers the products and results of the services to be rendered by CONSULTANT hereunder to be work made for hire. CONSULTANT acknowledges and agrees that the work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City without restriction or limitation upon its use or dissemination by City.
C. Nothing herein shall constitute or be construed to be any representation by CONSULTANT that the work product is suitable in any way for any other project except the one detailed in this Contract.
Any reuse by City for another project or project location shall be at City’s sole risk.
D. 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).
E. LOCAL AGENCY 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.
ARTICLE XXVII CLAIMS FILED BY LOCAL AGENCY’s CONSTRUCTION CONTRACTOR A. If claims are filed by LOCAL AGENCY’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 to make its personnel available for consultation with LOCAL AGENCY’S construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
B. CONSULTANT’s personnel that LOCAL AGENCY considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from LOCAL AGENCY. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for CONSULTANT’s personnel services under this AGREEMENT.
C. Services of CONSULTANT’s personnel in connection with LOCAL AGENCY’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this AGREEMENT in order to resolve the construction claims.
ARTICLE XXVIII CONFIDENTIALITY OF DATA
A. All financial, statistical, personal, technical, or other data and information relative to LOCAL AGENCY’s operations, which are designated confidential by LOCAL AGENCY and made available to CONSULTANT in order to carry out this AGREEMENT, shall be protected by CONSULTANT from unauthorized use and disclosure.
B. Permission to disclose information on one occasion, or public hearing held by LOCAL AGENCY relating to the AGREEMENT, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.
C. CONSULTANT shall not comment publicly to the press or any other media regarding the AGREEMENT or LOCAL AGENCY’s actions on the same, except to LOCAL AGENCY’s staff, CONSULTANT’s own personnel involved in the performance of this AGREEMENT, at public hearings, or in response to questions from a Legislative committee.
D. CONSULTANT shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this AGREEMENT without prior review of the contents thereof by LOCAL AGENCY, and receipt of LOCAL AGENCY’S written permission.
(For PS&E contracts add paragraph F, below, to paragraphs A through E, above) E. All information related to the construction estimate is confidential, and shall not be disclosed by CONSULTANT to any entity, other than LOCAL AGENCY, Caltrans, and/or FHWA. All of the materials prepared or assembled by CONSULTANT pursuant to performance of this Contract are confidential and CONSULTANT agrees that they shall not be made available to any individual or organization without the prior written approval of City or except by court order. If CONSULTANT or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this Contract, City has the right to reimbursement and indemnity from CONSULTANT for any damages caused by CONSULTANT releasing the information, including, but not limited to, City’s attorney’s fees and disbursements, including without limitation experts’ fees and disbursements.
ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code §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.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
ARTICLE XXX EVALUATION OF CONSULTANT
CONSULTANT’s performance will be evaluated by LOCAL AGENCY. A copy of the evaluation will be sent to CONSULTANT for comments. The evaluation together with the comments shall be retained as part of the AGREEMENT record.
ARTICLE XXXI PROMPT PAYMENT FROM THE LOCAL AGENCY TO CONSULTANT The LOCAL AGENCY shall make any progress payment within 30 days after receipt of an undisputed and properly submitted payment request from CONSULTANT on a professional service contract. If the LOCAL AGENCY fails to pay promptly, the LOCAL AGENCY 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, the LOCAL AGENCY shall act in accordance with both of the following:
(1
) E
ach payment request shall be reviewed by the LOCAL AGENCY as soon as practicable after r
eceipt for the purpose of determining that the payment request is a proper payment request. (2) A
ny payment request determined not to be a proper payment request suitable for payment shall be r
eturned to CONSULTANT as soon as practicable, but not later than seven (7) days, after r
eceipt. A request returned pursuant to this paragraph shall be accompanied by a document s
etting forth in writing the reasons why the payment request is not proper.
A
RTICLE XXXII TITLE VI ASSURANCES
APPENDICES A - E of the TITLE VI ASSURANCES
The U.S. Department of Transportation Order No.1050.2A requires all federal-aid Department of Transportation contracts between an agency and a consultant to contain Appendices A and E of the Title VI Assurances. Include Appendices B, C, and D if appliable as shown below. In addition, the consultant must include the Title VI Assurances Appendices A and E, and if applicable Appendices B, C, and D in all subcontracts to perform work under the contract.
The clauses of Appendix B of this Assurance shall be included as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, use, or improvements thereon or interest therein to a LOCAL AGENCY.
The clauses set forth in Appendix C and Appendix D of this Assurance shall be included as a covenant running with the land, in any future deeds, leases, licenses, permits, or similar instruments entered into by the LOCAL AGENCY with other parties:
a.
for
the subsequent transfer of real property acquired or improved under the applicable activity, pr
oject, or program; and
b. for
the construction or use of, or access to, space on, over, or under real property acquired or i
mproved under the applicable activity, project, or program.
AP
PENDIX A
During the performance of this Agreement, the contractor, for itself, its assignees and successors in interest (hereinafter collectively referred to as CONSULTANT) agrees as follows:
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
a. Compliance with Regulations: CONSULTANT shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement.
b. Nondiscrimination: CONSULTANT, with regard to the work performed by it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment. CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations.
c. 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. d. Information and Reports: CONSULTANT shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient 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 the recipient or FHWA as appropriate, and shall set forth what efforts CONSULTANT has made to obtain the information.
e. Sanctions for Noncompliance: In the event of CONSULTANT’s noncompliance with the nondiscrimination provisions of this agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
i. withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or
ii. cancellation, termination or suspension of the Agreement, in whole or in part. f. 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 the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, CONSULTANT may request the recipient enter into such litigation to protect the interests of the State, and, in addition, CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States.
January 2022
Local Assistance Procedures Manual EXHBIT 10-R
A&E Boilerplate Agreement Language
APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4:
NOW THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the recipient will accept title to the lands and maintain the project constructed thereon in accordance with Title 23 U.S.C., the regulations for the administration of the preceding statute, and the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the recipient all the right, title and interest of the U.S.
Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto the recipient and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the recipient, its successors and assigns. The recipient, in consideration of the conveyance of said lands and interest in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the recipient will use the lands and interests in lands and interest in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended[, and (3) that in the event of breach of any of the above- mentioned non-discrimination conditions, the Department will have a right to enter or re-enter said lands and facilities on said lands, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to make clear the purpose of Title VI.)
APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE
ACTIVITY, FACILITY, OR PROGRAM
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the recipient pursuant to the provisions of Assurance 7(a):
A. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does