Professional Services Agreement with Harris & Associates, Inc., in an am... Page 694 of 1671 Next FY Financial
Impact:
$821,700.35 Strategic Objective: Community Infrastructure Source of funds: Federal HBP, DIF Roads,
Measure A, CVAG
Fund-Org-Object
Reference:
300-523006, 212-523006,
312-523006, 233-523006
Additional Financial Details:
The total cost of the Professional Services Agreement with Harris & Associates is expected to be $3,371,700.35. The City has received federal funding from the Highway Bridge Program (HBP) for these construction management and inspection services. In addition, the City has an agreement with CVAG to pay for 75% of the local share of the project. The total cost to the City is outlined below:
Total Cost $3,371,700.35
Federal Funds $2,779,532.00
Local Share $ 592,168.35
CVAG Share $ 444,126.26
Indio Share $ 148,042.09
The City’s share is budgeted in the five-year Capital Improvement Program in Fiscal Years 2024/25 and 2025/26 as the project is anticipated to take 18 months for completion.
ATTACHMENTS:
Attachment 1 - Project Location Map
Attachment 2 - Bridge Renderings
Attchment 3 - Redlined Comments and Draft Professional Services Agreement with Harris & Associates Inc.
APPROVAL(S):
Timothy Wassil, Public Works Director Approved - 10 Jul 2024 Jennifer A. Mizrahi, Assistant City Attorney Approved - 10 Jul 2024 Ruby D. Walla, Director of Finance Approved - 10 Jul 2024 Bryan H. Montgomery, City Manager Approved - 11 Jul 2024
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PROJECT LOCATION MAP
PROJECT LOCATION MAP
ATTACHMENT 2
BRIDGE RENDERINGS
BRIDGE RENDERING
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REDLINED COMMENTS AND
DRAFT PROFESSIONAL SERVICES
AGREEMENT WITH
HARRIS & ASSOCIATES INC.
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Exceptions to the Proposed Agreement
Harris has reviewed the City’s proposed Agreement and respectfully requests the City’s consideration of the following exceptions listed below. Underlined text indicates additions and strikethrough text indicates omissions.
• Section 2. Scope of Services and Schedule of Performance, (a) Scope of Services, please add the following language:
“Consultant shall not assume any of the contractual responsibilities or duties of the General Contractor. Consultant shall have no control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the construction of the Project, these being solely the responsibility of the General Contractor under the Construction Contract.” • Section 9. Standard of Performance, please consider the following revision to the second sentence:
“Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services perform all Services in accordance with generally accepted practices using the degree of skill and care ordinarily exercised by other professionals practicing under similar conditions and in the same or similar locality.”
• Section 16. Indemnification, (a) Indemnification by Consultant, please consider the following revisions:
“To the fullest extent permitted by law, Consultant shall indemnify, protect, defend (with legal counsel reasonably acceptable to City) and hold harmless City and any and all of its elected and appointed officials, officers, employees, and representatives and agents (“Indemnified Parties”) from and against any and all claims, actions and proceedings (whether at law or equity, administrative or judicial), demands, orders, judgments, losses, injuries (including without limitation injury to or death of an employee of Consultant or subconsultants), liabilities of every kind (including, without limitation, incidental and consequential damages, court costs, and litigation expenses, and fees of expert consultants or expert witnesses incurred in connection therewith and cost of investigation), damages, costs and expenses, including reasonable attorney’s fees and costs, (collectively “Claims”) that to the extent they arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, any goods provided or negligent performance of Services by Consultant, its officers, agents, employees, representatives, subconsultants, anyone directly or indirectly employed by any of them, or anyone that they control. Consultant’s duty to indemnify, protect, defend and hold harmless Indemnified Parties, shall not include any Claims arising from the sole negligence or willful misconduct of the Indemnified parties.
“Notwithstanding the foregoing, to the extent Consultant’s Services are subject to Civil Code Section 2782.8, the above indemnity and duty to defend shall be limited, to the extent required by Civil Code Section 2782.8. In no event shall the cost to defend charged to the Consultant exceed the Consultant’s proportionate percentage of fault.”
• Section 31. Attorney’s Fees, Costs and Expenses, please consider the following revisions:
“In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney’s fees, costs and expenses, in addition to any other relief to which it may be entitled each Party shall bear its own attorney’s fees, costs and expenses.”
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PROFESSIONAL SERVICES AGREEMENT
BY AND BETWEEN
THE CITY OF INDIO,
A CALIFORNIA MUNICIPAL CORPORATION
AND
HARRIS & ASSOCIATES, INC.,
A CALIFORNIA CORPORATION
Form Approved 09/01/2022
Agreement No. BR1101-CM
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PROFESSIONAL SERVICES AGREEMENT
FOR CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES
FOR THE AVENUE 44 LOW WATER CROSSING REPLACEMENT
AT THE COACHELLA VALLEY STORM WATER CHANNEL PROJECT
BETWEEN THE CITY OF INDIO AND HARRIS & ASSOCIATES, INC.
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into this 17th day of July, 2024 (“Effective Date”), by and between the CITY OF INDIO (“City”), a California municipal corporation and Harris & Associates, Inc., a California corporation, (“Consultant”). For the purposes of this Agreement City and Consultant are sometimes hereinafter referred to as “Party” and hereinafter referred collectively referred to as the “Parties.”
RECITALS
1. City has sought by issuance of a request for proposals, the performance of the Construction Management and Inspection Services for the Avenue 44 Low Water Crossing Replacement at the Coachella Valley Storm Water Channel Project defined and described particularly in Section 2, “Scope of Services and Schedule of Performance” of this Agreement.
2. Consultant was selected by the City to perform those services.
3. Consultant was selected by the City on the basis of Consultant’s demonstrated competence and the professional qualifications necessary for the satisfactory performance of the services required.
4. Pursuant to the Chapter 33 of the Indio Municipal Code, City has authority to enter into this Agreement and the City Manager has authority to execute this Agreement.
5. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Section 2 “Scope of Services and Schedule of Performance” of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, for and in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT
(a) Subject to the provisions of Section 20 "Termination of Agreement" of this Agreement, the Term of this Agreement is through June 30, 2029, commencing on Effective Date, unless otherwise extended by written agreement of the Parties.
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(b) The City Manager may, in his or her sole discretion, unilaterally exercise an option to extend the Agreement on a month-to-month basis following expiration on the same terms and conditions, including compensation as set forth in Section 4 “Compensation and Method of Payment.”
(c) Consultant acknowledges that the Agreement term may extend over multiple City fiscal years, and that work and compensation under this Agreement is contingent on the City Council appropriating funding for and authorizing such work and compensation for those fiscal years. This Agreement may be terminated by the City Manager at the end of a fiscal year when sufficient funding is not appropriated and authorized for the subsequent fiscal year. City is not obligated to pay Consultant for any amounts not duly appropriated and authorized by City Council.
SECTION 2. SCOPE OF SERVICES AND SCHEDULE OF PERFORMANCE (a) SCOPE OF SERVICES. Subject to this Agreement, all addendums and exhibits attached and incorporated hereto, Consultant agrees to perform the services and tasks set forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services”) and the City agrees to retain and does hereby retain Consultant for the Services. Consultant shall not assume any of the contractual responsibilities or duties of the General Contractor. Consultant shall have no control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the construction of the Project, these being solely the responsibility of the General Contractor under the Construction Contract.”
(b) SCHEDULE OF PERFORMANCE. The Services shall be completed pursuant to the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to that schedule, the Consultant shall be deemed to be in Default of this Agreement. The City, in its sole discretion, may choose not to enforce Section 21, “Default” of this Agreement and may instead allow Consultant to continue performing the Services.
SECTION 3. ADDITIONAL SERVICES.
Consultant shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writing in accordance with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a) Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in Exhibit “B” “Compensation” and made a part of this Agreement by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed Three Million, Three Hundred Seventy-One Thousand, Seven Hundred Dollars
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and Thirty-Five Cents ($3,371,700.35), unless additional compensation is approved in writing in accordance with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this Agreement. Payment shall be made in accordance with City’s usual accounting procedures upon receipt and approval of an itemized invoice setting forth the services performed. The invoices shall be delivered to City at the address set forth in Section 24, “Notices” hereof. Under no circumstances shall the total amount paid to Consultant under this Agreement exceed the City Manager’s authority under Indio Municipal Code Section 33.116 (C)(2) without approval by the City Council. (b) Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month. The invoice shall detail charges by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and subconsultant contracts. Subconsultant charges shall be detailed by the following categories: labor, travel, materials, equipment and supplies. If the compensation set forth in subsection (a) and Exhibit “B” include payment of labor on an hourly basis (as opposed to labor and materials being paid as a lump sum), the labor category in each invoice shall include detailed descriptions of tasks performed and the amount of time incurred for or allocated to that task. City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. In the event that no charges or expenses are disputed, the invoice shall be approved and paid according to the terms set forth in subsection (c). In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. (c) Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, City will use its best efforts to cause Consultant to be paid within forty-five (45) days of receipt of Consultant’s correct and undisputed invoice. (d) Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.
(e) If this Agreement is extended pursuant to Section 1 “Term of Agreement,” the City shall pay the same rates specified in Exhibit “B” “Compensation.” SECTION 5. INSPECTION AND FINAL ACCEPTANCE.
City may inspect and accept or reject any of Consultant’s work under this Agreement, either during performance or when completed. City shall reject or finally accept Consultant’s work within sixty (60) days after submitted to City. City shall reject work by a timely written explanation, otherwise Consultant’s work shall be deemed to have been accepted. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud. Acceptance of any of Consultant’s work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 16 “Indemnification” and Section 17 “Insurance.”
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SECTION 6. OWNERSHIP OF DOCUMENTS.
All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by Consultant in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Consultant. Upon completion, expiration or termination of this Agreement, Consultant shall turn over to City all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents.
If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents prepared, developed or discovered by Consultant in the course of providing the Services pursuant to this Agreement, Consultant’s guarantees and warranties in Section 9 “Standard of Performance” of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents.
(a) INTELLECTUAL PROPERTY RIGHTS ASSIGNMENT. For no additional compensation, Consultant hereby assigns to City all of Consultant’s rights, title, and interest in and to the content of all deliverable materials created by Consultant or its employees, agents, or subconsultants, including copyrights, in connection with the Services performed under this Agreement. Consultant shall promptly execute and deliver, and shall cause its employees, agents, and subconsultants to promptly execute and deliver, upon request by the City or any of its successors or assigns at any time and without further compensation of any kind, any power of attorney, assignment, application for copyright, patent, trademark or other intellectual property right protection, or other papers or instruments which may be necessary or desirable to fully secure, perfect or otherwise protect to or for the City, its successors and assigns, all right, title and interest in and to the content of the deliverable materials. For purposes of this section deliverable materials includes all works, tangible or not, created under this Agreement including, without limitation, documents, material, data, reports, manuals, specifications, artwork, drawings, sketches, computer programs and databases, schematics, photographs, video and audiovisual recordings, sound recordings, marks, logos, graphic designs, notes, website, domain names, inventions, processes, formulas matters and combinations thereof, and all forms of intellectual property. The provisions of this paragraph are binding on the successors, assigns and heirs of Consultant and shall survive the termination of Consultant’s Services under this Agreement.
SECTION 7. CONSULTANT’S BOOKS AND RECORDS.
(a) Consultant shall maintain any and all documents and records demonstrating or relating to Consultant’s performance of the Services. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to City pursuant to this Agreement. Any and all such documents or records shall be maintained in
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accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Consultant pursuant to this Agreement. Any and all such documents or records shall be maintained for three (3) years from the date of execution of this Agreement and to the extent required by laws relating to audits of public agencies and their expenditures. (b) Any and all records or documents required to be maintained pursuant to this section shall be made available for inspection, audit and copying, at any time during regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at Consultant’s address indicated for receipt of notices, “Section 24,” of this Agreement.
(c) Where City has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Consultant’s business, City may, by written request, require that custody of such documents or records be given to the City. Access to such documents and records shall be granted to City, as well as to its successors in interest and authorized representatives.
SECTION 8. INDEPENDENT CONTRACTOR.
(a) Consultant is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Consultant shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. (b) The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Consultant or any of Consultant’s officers, employees, subconsultants or agents except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. (c) Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Consultant expressly waives any claim Contractor may have to any such rights.
SECTION 9. STANDARD OF PERFORMANCE.
Consultant represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the Services required under this Agreement in a thorough,
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competent and professional manner. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services in accordance with generally accepted practices using the degree of skill and care ordinarily exercised by other professionals practicing under similar conditions and in the same or similar locality. In meeting its obligations under this Agreement, Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Consultant under this Agreement, and shall use such skill, prudence, and diligence as other members of Consultant’s profession commonly possess and exercise. In addition to the general standards of performance set forth this section, additional specific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Services” that shall also be applicable to Consultant’s work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general.
SECTION 10. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES.
Consultant shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Consultant shall at all times observe and comply with all such laws, ordinances and regulations, and shall be solely responsible for any failure to comply with all applicable laws, ordinances and regulations. Consultant represents and warrants that Consultant has obtained or shall promptly obtain all necessary licenses to perform the Services set forth in this Agreement and that such licenses are in good standing. Consultant further represents and warrants that the services provided herein shall conform to all ordinances, policies and practices of the City. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Consultant to comply with this section.
SECTION 11. PREVAILING WAGE LAWS.
(a) Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects.
To the extent applicable, Consultant shall defend, indemnify, and hold the City, its elected officials, officers, employees, and agents free and harmless form any claim or liability arising out of any failure or alleged failure of Consultant to comply with the Prevailing Wage Laws.
(b) It is the understanding of City and Consultant that Prevailing Wage Laws do not apply to this Agreement because the Agreement does not involve any of the following services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder: Construction, alteration, demolition, installation, or repair work performed on public buildings, facilities, streets or sewers done under contract and paid for in whole or in part out of public funds. In this context, “construction" includes work
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performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work.
SECTION 12. NONDISCRIMINATION.
Consultant shall not discriminate, in any way, against any person on the basis of race, color, religious creed, national origin, ancestry, sex, age, physical handicap, medical condition or marital status in connection with or related to the performance of this Agreement.
SECTION 13. UNAUTHORIZED ALIENS.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of the Services, and should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City.
SECTION 14. CONFLICTS OF INTEREST.
(a) Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of the Services. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. (b) City understands and acknowledges that Consultant is, as of the date of execution of this Agreement, independently involved in the performance of non-related services for other governmental agencies and private parties. Consultant is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section. (c) City understands and acknowledges that Consultant will, perform non-related services for other governmental agencies and private parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section.
SECTION 15. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law.
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(b) Consultant, its officers, employees, agents or subconsultants, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent or subconsultant of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct. (d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
SECTION 16. INDEMNIFICATION.
(a) INDEMNIFICATION BY CONSULTANT. To the fullest extent permitted by law, Consultant shall indemnify, protect, defend (with legal counsel reasonably acceptable to City) and hold harmless City, its elected and appointed officials, officers, employees, and representatives (“Indemnified Parties”) from and against claims, actions and proceedings (whether at law or equity, administrative or judicial), demands, orders, judgments, losses, injuries (including injury to or death of an employee of Consultant or subconsultants), liabilities (including court costs, and litigation expenses, and fees of expert consultants or expert witnesses incurred in connection therewith and cost of investigation), damages, costs and expenses, including reasonable attorney’s fees and costs, (collectively "Claims") to the extent arise out of, pertain to, or relate to negligent performance of Services by Consultant, its officers, agents, employees, representatives, subconsultants, anyone directly or indirectly employed by any of them, or anyone that they control. Consultant’s duty to indemnify, protect, defend and hold harmless Indemnified Parties, shall not include any Claims arising from the negligence or willful misconduct of the Indemnified parties.
Notwithstanding the foregoing, to the extent Consultant’s Services are subject to Civil Code Section 2782.8, the above indemnity and duty to defend shall be limited to the extent required by Civil Code Section 2782.8. In no event shall the cost to defend charged to the Consultant exceed the Consultant’s proportionate percentage of fault.
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(b) INDEMNIFICATION FROM SUB-CONSULTANTS. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subconsultant, subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Consultant and shall survive the termination of this Agreement and this section.
SECTION 17. INSURANCE.
Consultant agrees to obtain and maintain in full force and effect during the Term of this Agreement the insurance policies set forth in Addendum “1” “Insurance” and made a part of this Agreement. All insurance policies shall be subject to approval by City as to form and content.
These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Consultant agrees to provide City with copies of required policies upon request.
SECTION 18. ASSIGNMENT.
The expertise and experience of Consultant are material considerations for this Agreement.
City has an interest in the qualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Consultant under this Agreement. In recognition of that interest, Consultant shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Consultant’s duties or obligations under this Agreement without the prior written consent of the City, which may be given in the sole and absolute discretion of the City Manager. Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 20 “Termination of Agreement.” City acknowledges, however, that Consultant, in the performance of its duties pursuant to this Agreement, may utilize subconsultants.
If in the performance of its duties Consultant utilizes subconsultants or subcontractors, Consultant covenants that subcontracts, if any, shall contain a provision making subconsultants or subcontractors subject to all provisions stipulated in this Agreement, including without limitation, the insurance obligations set forth in Section 17 “Insurance.” The Consultant acknowledges and agrees that the City is an intended beneficiary of any work performedby any subconsultant or subcontractor for purposes of establishing a duty of care between any subconsultant or subcontractor and the City.
SECTION 19. CONTINUITY OF PERSONNEL.
Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors / subconsultants, if any, assigned to perform the Services.
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Consultant shall notify City of any changes in Consultant’s staff and subcontractors / subconsultants, if any, assigned to perform the Services prior to and during any such performance.
SECTION 20. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, at any time by giving written notice of termination to Consultant. In the event such notice is given, Consultant shall cease immediately all work in progress.
(b) Consultant may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City.
(c) If either Consultant or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Consultant, or City may terminate this Agreement immediately upon written notice.
(d) Upon termination of this Agreement by either Consultant or City, all property belonging exclusively to City which is in Consultant’s possession shall be returned to City. Consultant shall furnish to City a final invoice for work performed and expenses incurred by Consultant, prepared as set forth in Section 4 “Compensation and Method of Payment” of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 4 “Compensation and Method of Payment” of this Agreement. (e) Upon written notice, City may suspend all or any portion of Consultant’s performance under this Agreement at its sole option and for its convenience for a reasonable period of time not to exceed six (6) months. City will pay to Consultant a sum equivalent to the reasonable value of the services satisfactorily provided up to the date of suspension. City may rescind the suspension prior to or at six (6) months by providing Consultant with written notice of the rescission, at which time Consultant would be required to resume performance in compliance with the terms and provisions of this Agreement. Consultant will be entitled to an extension of time to complete performance under this Agreement equal to the length of the suspension unless otherwise agreed to in writing by the Parties.
SECTION 21. DEFAULT.
In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default.
This timeframe is presumptively thirty (30) days, but may be extended or reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under Section 20 “Termination of Agreement.” Any failure on the part
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of the City to give notice of the Consultant’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
SECTION 22. EXCUSABLE DELAYS.
Consultant shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Consultant. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 23. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Consultant in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.
SECTION 24. NOTICES.
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows:
To City: City of Indio
Attn: City Manager
100 Civic Circle Drive
Indio, CA 92201
To Consultant: Harris & Associates, Inc.
Attn: Ehab Gerges, Principal-in-Charge
800 North Haven Ave, Ste 390
Ontario, CA 91764
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
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SECTION 25. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Consultant represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Consultant to the performance of its obligations hereunder.
SECTION 26. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 28 “Amendment” and the City Manager’s contracting authority under the Indio Municipal Code.
SECTION 27. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 28. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by Consultant and by City. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the City Manager’s contracting authority under the Indio Municipal Code. All other amendments shall be approved by the City Council. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void.
SECTION 29. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 30. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
SECTION 31. ATTORNEY’S FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, each Part shall bear its own attorney’s fees, costs, and expenses.
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SECTION 32. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits and Addendums, along with any amendments thereto, is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between Consultant and City prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 33. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 34. INCORPORATION AND CONFLICTING TERMS.
(a) The following documents are incorporated and made part of this Agreement by this reference:
1. Insurance requirements (“Addendum 1”)
2. All Exhibits and Addendums
3. All amendments
4. Consultant’s proposal, if any
5. Any laws, regulations, requirements, or restrictions, applicable to the funding source used by City to pay Consultant for any portion of work done under Agreement (“Funding Restrictions”)
(b) The documents listed above shall be referred to collectively as the “Agreement Documents.” The Agreement Documents are intended to be complementary, and a requirement in one Document is effective as if it appeared in all the Documents. In the event of a conflict between any of the Agreement Documents, the Documents shall be given effect in the following order: Funding Restrictions, Amendments (most recent first), this Agreement, Insurance requirements, Exhibits and Addendums, and Consultant’s proposal. Where the requirements of one Document are more stringent then another the more stringent shall govern.
SECTION 35. TIME OF ESSENCE.
Time is of the essence for each and every provision of this Agreement.
SECTION 36. FEDERAL FUNDS.
As the Services are funded either in whole or in part by federal funds, Consultant shall comply with the requirements of Addendum “2” “Federal Funds.” For any conflicting provisions between the Agreement and the provisions in Addendum "2" "Federal Funds", the provisions of Addendum "2" "Federal Funds" shall prevail.
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[SIGNATURE PAGE FOLLOWS]
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Signature Page
PROFESSIONAL CONSULTANT SERVICES AGREEMENT
FOR CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES
FOR THE AVENUE 44 LOW WATER CROSSING REPLACEMENT
AT THE COACHELLA VALLEY STORM WATER CHANNEL PROJECT
BETWEEN THE CITY OF INDIO AND HARRIS & ASSOCIATES, INC.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY OF INDIO
___________________________
Bryan Montgomery
City Manager
ATTEST:
CITY CLERK
By: ___________________________
APPROVED AS TO FORM:
CITY ATTORNEY
By: ____________________________
CONSULTANT
By:
Its:
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Exhibit A – Scope of Services
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EXHIBIT “A”
SCOPE OF SERVICES
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Exhibit B – Compensation
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EXHIBIT “B”
COMPENSATION
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Addendum 1 - Insurance
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ADDENDUM “1”
INSURANCE
(A)INSURANCE REQUIREMENTS. Consultant shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Services by Consultant, its agents, representatives or employees.
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Consultant shall provide the following scope and limits of insurance:
1. MINIMUM SCOPE OF INSURANCE. Consultant shall maintain the following types and limits of insurance.
2. MINIMUM LIMITS OF INSURANCE.
GENERAL LIABILITY INSURANCE. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
AUTOMOBILE LIABILITY INSURANCE. Consultant shall maintain automobile liability insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
PROFESSIONAL LIABILITY (ERRORS & OMISSIONS) INSURANCE. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.
WORKERS’ COMPENSATION INSURANCE. Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000 per accident or disease). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers.
UMBRELLA OR EXCESS LIABILITY INSURANCE. [Optional depending on limits required]. As an option to meet the limits of insurance required by this Agreement, Consultant may obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages
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set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
• Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall “follow form” to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies.
(B) OTHER PROVISIONS. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City. (C) OTHER REQUIREMENTS. Consultant agrees to deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City Attorney may require that Consultant furnish City with copies of original endorsements effecting coverage required by this Section. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. Upon request from the City, Consultant shall furnish certificates and endorsements from each subcontractor identical to those Consultant provides.
2. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall not be construed to limit Consultant’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.
4. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance.
Any umbrella or excess insurance shall contain or be endorsed to
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contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
5. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
6. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
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ADDENDUM “2"
FEDERAL FUNDS
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As used throughout the Addendum 2, LOCAL AGENCY shall mean City.
ARTICLE I INTRODUCTION – NOT USED
ARTICLE II CONSULTANT’S REPORTS OR MEETINGS
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.
ARTICLE III STATEMENT OF WORK – NOT USED
ARTICLE IV PERFORMANCE PERIOD
A. This AGREEMENT shall go into effect on Effective 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 June 30, 2029, 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.
ARTICLE V ALLOWABLE COSTS AND PAYMENTS
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 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
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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 One Hundred Fifty-Nine Thousand, Six Hundred Eight-Seven Dollars and Eighty-One Cents ($159,687.81) 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 Exhibit A Scope of Services, 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 Emailed to LOCAL AGENCY’s Contract Administrator at the following email addresses: [email protected]; [email protected].
I. The total amount payable by LOCAL AGENCY including the fixed fee shall not exceed Three Million, Three Hundred Seventy-One Thousand, Seven Hundred Dollars and ThirtyFive Cents ($3,371,700.35) 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.
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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 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 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 31 or 2 CFR 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 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
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
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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 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.
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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 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.
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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.
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
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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.
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 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.
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
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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.
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 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
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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 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 asfollows:
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 onrequest.
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
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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, withinfive (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 thissection.
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.
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 prevailingwages is not excusable if the CONSULTANT or
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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 CONSULTANT of the project is not liable for the penalties described above unless the CONSULTANT had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the CONSULTANT fails to comply with all of the followingrequirements:
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 worksproject.
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 diemwages.
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
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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-toapprentice 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
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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.
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
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
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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.
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
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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 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 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 ormanager:
1. Is not currently under suspension, debarment, voluntary exclusion, or determinationof 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 pastthree (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.
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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 byFHWA.
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 (GFE) 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 and 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 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 DBEmanufacturer. 60 percent counts if the materials or supplies are purchased from a DBE regulardealer.
Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular dealer." This AGREEMENT is subject to 49 CFR 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 22%. 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
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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: Proposer/Contractor Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
D. Contract Assurance
Under 49 CFR 26.13(b):
CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.
Failure by the CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying CONSULTANT from future proposing as non-responsible E. Termination and Replacement 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 replace 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.
Termination of DBE Subconsultants
After execution of the AGREEMENT, termination of a DBE may be allowed for the following, but not limited to, justifiable reasons with prior written authorization from the LOCAL AGENCY:
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
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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 or exhibits credit unworthiness.
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 must use the following procedures to request the termination of a DBE or portion of a DBE’s work:
1. Send a written notice to the DBE of the CONSULTANT’s intent to use other forces or material sources and include one or more justifiable reasons listed above.
Simultaneously send a copy of this written notice to the LOCAL AGENCY. The written notice to the DBE must request they provide any response within five (5) business days to both the CONSULTANT and the LOCAL AGENCY by either acknowledging their agreement or documenting their reasoning as to why the use of other forces or sources of materials should not occur.
2. If the DBE does not respond within five (5) business days, CONSULTANT may move forward with the request as if the DBE had agreed to CONSULTANT’s written notice.
3. Submit CONSULTANT’s DBE termination request by written letter to the LOCAL AGENCY and include:
• One or more above listed justifiable reasons along with supporting documentation.
• CONSULTANT’s written notice to the DBE regarding the request, including proof of transmission and tracking documentation of CONSULTANT’s written notice
• The DBE's response to CONSULTANT’s written notice, if received. If a written response was not provided, provide a statement to that effect.
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The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE termination request within five (5) business days.
Replacement of DBE Subconsultants
After receiving the LOCAL AGENCY’s written authorization of DBE termination request, CONSULTANT must obtain the LOCAL AGENCY’s written agreement for DBE replacement.
CONSULTANT must find or demonstrate GFEs to find qualified DBE replacement firms to perform the work to the extent needed to meet the DBE commitment.
The following procedures shall be followed to request authorization to replace a DBE firm:
1. Submit a request to replace a DBE with other forces or material sources in writing to the LOCAL AGENCY which must include:
a. Description of remaining uncommitted work item made available for replacement DBE solicitation and participation.
b. The proposed DBE replacement firm's business information, the work they have agreed to perform, and the following:
• Description of scope of work and cost proposal
• Proposed subcontract agreement and written confirmation of agreement to perform on the Contract
• Revised Exhibit 10-O2: Consultant Contract DBECommitment
2. If CONSULTANT has not identified a DBE replacement firm, submits documentation of CONSULTANT’s GFEs to use DBE replacement firms within seven (7) days of LOCAL AGENCY's authorization to terminate the DBE. CONSULTANT may request the LOCAL AGENCY's approval to extend this submittal period to a total of 14 days. Submit documentation of actions taken to find a DBE replacement firm, such as:
• Search results of certified DBEs available to perform the original DBE work identified and or other work CONSULTANT had intended to self-perform, to the extent needed to meet DBE commitment • Solicitations of DBEs for performance of work identified • Correspondence with interested DBEs that may have included contract details and requirements
• Negotiation efforts with DBEs that reflect why an agreement was not reached
• If a DBE's quote was rejected, provide reasoning for the rejection, such as why the DBE was unqualified for the work, or why the price quote was unreasonable or excessive
• Copies of each DBE's and non-DBE's price quotes for work identified, as the LOCAL AGENCY may contact the firms to verify solicitation efforts and determine if the DBE quotes are substantially higher
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st
• Additional documentation that supports CONSULTANT’s GFE The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE replacement request within five (5) business days.
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 recordsincluding:
• Name and business address of each 1 -tiersubconsultant • 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 Exhibit 17-O: Disadvantaged Business Enterprises (DBE) Certification Status Change 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. Commercially Useful Function
DBEs must perform a commercially useful function (CUF) under 49 CFR 26.55 when performing work or supplying materials listed on the DBE Commitment form. The DBE value of work will only count toward the DBE commitment if the DBE performs a CUF. A DBE performs a CUF when it is responsible for execution of the work of the AGREEMENT
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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.
CONSULTANT must perform CUF evaluation for each DBE working on a federal-aid contract, with or without a DBE goal. Perform a CUF evaluation at the beginning of the DBE’s work and continue to monitor the performance of CUF for the duration of the project.
CONSULTANT must provide written notification to the LOCAL AGENCY at least 15 days in advance of each DBE's initial performance of work or supplying materials for the Contract. The notification must include the DBE's name, work the DBE will perform on the contract, and the location, date, and time of where their work will take place.
Within 10 days of a DBE initially performing work or supplying materials on the Contract, CONSULTANT shall submit to the LPA the initial evaluation and validation of DBE performance of a CUF using the LAPM 9-J: Disadvantaged Business Enterprise Commercially Useful Function Evaluation. Include the following information with the submittal:
• Subcontract agreement with the DBE
• Purchase orders
• Bills of lading
• Invoices
• Proof of payment
CONSULTANT must monitor all DBE’s performance of CUF by conducting quarterly evaluations and validations throughout their duration of work on the Contract using the LAPM 9-J: DBE Commercially Useful Function Evaluation. CONSULTANT must submit to the LOCAL AGENCY these quarterly evaluations and validations by the 5th of the month for the previous three months of work.
CONSULTANT must notify the LOCAL AGENCY immediately if they believe the DBE may not be performing a CUF.
The LOCAL AGENCY will verify DBEs performance of CUF by reviewing the initial and quarterly submissions of LAPM 9-J: DBE Commercially Useful Function Evaluation, submitted supporting information, field observations, and through any additional LOCAL AGENCY evaluations. The LOCAL AGENCY must evaluate DBEs and their CUF performance throughout the duration of a Contract. The LOCAL AGENCY will provide written notice to the CONSULTANT and the DBE at least two (2) business days prior to any evaluation. The CONSULTANT and the DBE must participate in the evaluation. Upon completing the evaluation, the LOCAL AGENCY must share the evaluation results with the CONSULTANT and the DBE. An evaluation could include items that must be remedied upon receipt. If the LOCAL AGENCY determines the DBE is not performing a CUF, the CONSULTANT must suspend
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performance of the noncompliant work.
CONSULTANT and DBEs must submit any additional CUF related records and documents within five (5) business days of LOCAL AGENCY’s request such as:
• Proof of ownership or lease and rental agreements for equipment • Tax records
• Employee rosters
• Certified payroll records
• Inventory rosters
Failure to submit required DBE Commercially Useful Function Evaluation forms or requested records and documents can result in withholding of payment for the value of work completed by the DBE.
If CONSULTANT and/or the LOCAL AGENCY determine that a listed DBE is not performing a CUF in performance of their DBE committed work, CONSULTANT must immediately suspend performance of the noncompliant portion of the work. LOCAL AGENCY may deny payment for the noncompliant portion of the work. LOCAL AGENCY will ask the CONSULTANT to submit a corrective action plan (CAP) to the LOCAL AGENGY within five (5) days of the noncompliant CUF determination. The CAP must identify how the CONSULTANT will correct the noncompliance findings for the remaining portion of the DBE's work. LOCAL AGENCY has five (5) days to review the CAP in conjunction with the CONSULTANT’s review. The CONSULTANT must implement the CAP within five (5) days of the LOCAL AGENCY's approval. The LOCAL AGENCY will then authorize the prior noncompliant portion of work for the DBE's committed work.
If corrective actions cannot be accomplished to ensure the DBE performs a commercially useful function on the Contract, CONSULTANT may have good cause to request termination of the DBE.
H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
J. CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each
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DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE 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. For projects awarded on or after March 1, 2020, but before September 1, 2023: 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 must complete and email Exhibit 9-F: Disadvantaged Business Enterprise Running Tally of Payments to [email protected] with a copy to local administering agencies.
For projects awarded on or after September 1, 2023: Exhibit 9-F is no longer required.
Instead, by the 15th of the month following the month of any payment(s), the CONSULTANT must now submit Exhibit 9-P to the LOCAL AGENCY administering the contract. If the CONSULTANT does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
M. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.
ARTICLE XIX INSURANCE – NOT USED
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
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offunds.
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 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.
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 the Director of Public Works, 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.
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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.
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.
C. Any subcontract entered into as a result of this contract, shall contain all of the provisions of this Article.
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 byCity.
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
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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 byCity.
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 solerisk.
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.
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 LOCALAGENCY. 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 resolvethe 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
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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.
E. Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article.
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.
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
A. PROMPT PAYMENT FROM LOCAL AGENCY TO CONSULTANT
The LOCAL AGENCY shall make all project 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 CONSULTANT, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied and pro-rated as necessary. Upon receipt of the payment request, the LOCAL AGENCY shall act in accordance with both of the following:
(1) The LOCAL AGENCY shall review each payment request as soon as feasible after receipt to verify it is a proper payment request.
(2) The LOCAL AGENCY must return any payment request deemed improper by the LOCAL AGENCY to the CONSULTANT as soon as feasible, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall include
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documentation setting forth in writing the reasons why it is an improper payment request.
B. PROMPT PAYMENT CERTIFICATION
For projects awarded on or after September 1, 2023: the CONSULTANT must now submit Exhibit 9-P to the LOCAL AGENCY administering the contract by the 15th of the month following the month of any payment(s). If the CONSULTANT does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
The LOCAL AGENCY must verify all Exhibit 9-P information, monitor compliance with prompt payment requirements for DBE and non-DBE firms, and address any shortfalls to the DBE commitment and prompt payment issues until the end of the project. The LOCAL AGENCY must email a copy of Exhibit 9-P to [email protected] before the end of the month after receiving the Exhibit 9-P from the CONSULTANT.
ARTICLE XXXII TITLE VI ASSURANCES
APPENDIX 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:
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
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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 limitedto:
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 inpart. 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 pursuantthereto.
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.
APPENDIX E
During the performance of this contract, the CONSULTANT, for itself, its assignees, and successors in interest (hereinafter referred to as the “CONSULTANT”) agrees to comply with the following non- discrimination statutes and authorities, including, but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42
U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);
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• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex;
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-incomepopulations;
• Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English Proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); • Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C.1681 etseq).
ARTICLE XXXIII NOTIFICATION – NOT USED
ARTICLE XXXIV CONTRACT – NOT USED
ARTICLE XXXV SIGNATURES – NOT USED
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City Council
July 17, 2024
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Timothy Wassil, Public Works Director
Subject: Construction contract with Ortiz Enterprises, Inc., in an amount not to exceed $28,894,389.80 for the Avenue 44 Bridge at the Coachella Valley Storm Water Channel Project, Federal Project No. BRLKS-5275(024), City Project No. BR1101, and a 10% contingency of $2,889,438.98, for a total amount of $31,783,828.78
RECOMMENDATION:
Find the low bid from Ames Construction, Inc. as non-responsive and award a construction contract to Ortiz Enterprises, Inc. for $28,894,389.80, and approve a 10% contingency of $2,889,438.98, allowing for unexpected costs, for a total amount of $31,783,828.78, for the Avenue 44 Bridge at the Coachella Valley Storm Water Channel Project, Federal Project No. BRLKS-5275(024), City Project No. BR1101, and allowing the City Manager or his designee to negotiate substantive terms of the agreement including possible extensions thereto, but not including the price, and execute same, in a form as approved by the City Attorney.
SUMMARY:
On April 11, 2024, the City received bids from eight (8) construction companies for the project.
Ames Construction, Inc. (Ames) submitted the apparent low bid, while Ortiz Enterprises, Inc. (Ortiz) submitted the second lowest bid. On May 15, 2024, Council awarded a construction contract to Ames for a total amount of $27,015,479.70, contingent on receiving Caltrans approval of the contract, specifically the approval of the good faith efforts of the apparent low bidder to meet the established Disadvantaged Business Enterprises (DBE) goal of 22%. After staff and Caltrans’ evaluation and analysis of the good faith efforts, staff determined that Ames did not submit a responsive bid due to an inadequate good faith effort to meet the DBE goal of 22%. Ortiz met the DBE goal and staff determined that Ortiz submitted the lowest responsive bid.
BACKGROUND INFORMATION:
Since 2011, Indio's Avenue 44 bridge project has been steadily progressing thanks to federal funding. This initiative aims to replace the low water crossing that is routinely damaged during severe storm events. Over the years, the project has navigated various phases, including environmental clearances, and acquiring necessary right of way to build the bridge.
The construction part of the project was advertised on February 22, 2024. The City received and opened bids on April 11, 2024. A total of eight (8) bids were received. A summary of the bids as opened is provided below.
AGENDA ITEM #8.20
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Ames Construction, Inc. Corona, CA $24,559,527.00
Ortiz Enterprises, Inc. Irvine, CA $28,894,389.80
Riverside Construction Company,
Inc. Riverside, CA $28,979,998.00
Ragnar Benson LLC Rockford, IL $29,621,277.85
Granite Construction Company Indio, CA $29,977,992.00
MCM Construction, Inc. North Highlands, CA $30,641,387.00 Griffith Company Brea, CA $30,958,983.99
Steve P. Rados, Inc. Santa Ana, CA $32,614,967.00
While Ames was the apparent low bidder, they did not meet the DBE Goal of 22% and instead submitted documentation of their Good Faith Effort to meet this goal as required by Part 9 – Federal Specifications of the Contract Documents. The second low bidder, Ortiz, did meet the DBE Goal.
On April 18, 2024, staff performed an evaluation of Ames’ Good Faith Efforts and determined that Ames did demonstrate Good Faith Efforts to meet the DBE goal of this project for the reasons cited in that evaluation, included herein as Attachment 1.
In accordance with the procedures outlined in the Local Assistance Procedures Manual, Chapter 9 for Civil Rights and Disadvantaged Business Enterprises, which the City has agreed to follow in order receive federal funding, the City’s evaluation was submitted to the California Department of Transportation (Caltrans) Office of Civil Rights, Engineering Support Branch (ESB) for concurrence.
During this review, Council approved the construction contract with Ames contingent on Caltrans approval.
On June 13, 2024, ESB provided an independent review of Ames’ Good Faith Efforts and did not concur with the City’s review. ESB determined that Ames did not demonstrate adequate good faith efforts and instructed the City to perform an independent re-evaluation of Ames’ good faith efforts.
This review, included herein as Attachment 2, was provided to Ames for a formal response, which was received on June 21, 2024, included herein as Attachment 3.
During this period, Ames submitted a bid protest, outside of the time specified in the bid documents, requesting the City find Ortiz’s bid as non-responsive for failing to include the Exhibit 9-I DBE Confirmation signed forms as required by Part 9 – Federal Specifications. This protest was provided to Ortiz for an opportunity to respond. Ortiz provided additional information that the Contract Documents allow for a copy of the DBE’s quote to serve as written confirmation, which they provided within 5 days of the bid opening as required. In reviewing the protest and response, staff agrees that the DBE’s quote is allowable in the Contract Documents as confirmation of the DBE’s intent to participate, and Ortiz provided a responsive bid.
On June 27, 2024, the City submitted the Good Faith Efforts for the top three bidder’s to the Caltrans District 8 (District 8) staff including the City’s initial evaluation, the ESB evaluation, and the additional documentation provided by Ames for an independent re-evaluation.
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 756 of 1671 On July 1, 2024, District 8 provided their re-evaluation and determined that Ames did not demonstrate good faith efforts. After thorough review from three independent sources, including additional documentation provided by Ames, staff has reversed its original evaluation and finds that Ames did not perform a Good Faith Effort to meet the DBE Goal. This final re-evaluation is included herein as Attachment 4. In addition, District 8 agreed that the DBE quote serves as confirmation per the Contract Documents in response to the Ames protest.
On July 2, 2024, Ames was notified of this final decision and provided an opportunity to attend a reconsideration hearing made up of three officials from the City’s Management Staff that did not take part in the original evaluation.
On July 3, 2024, Ames turned down the opportunity for the reconsideration hearing and provided a formal response to the City’s re-evaluation disagreeing with the findings and requesting the City consider rejecting all bids, included herein as Attachment 5. Staff finds this protest to be without merit as Ortiz provided all DBE quotes with their DBE Commitment forms, which is allowed to be used as confirmation per the Contract Documents. A copy of the correspondence regarding the bid protest and responses is included herein as Attachment 6.
The engineer’s estimate for this work was $25,992,312.60. Public Works staff examined the submissions and submitted the bid documents to Caltrans for review. After a careful review of the project requirements and bid documents, staff determined that the lowest responsible bidder is Ortiz. The company is appropriately licensed and qualified to perform the work within the project specifications. Staff recommends awarding the contract to Ortiz.
FINANCIAL SUMMARY:
Current FY Financial
Impact:
$18,907,926.88 In current year budget: Yes
Current FY General
Fund Impact:
$0 Budget adjustment: Yes
Next FY Financial
Impact:
$12,875,901.90 Strategic Objective: Community Infrastructure Source of funds: Federal HBP, Measure A, DIF
Roads, CVAG, IWA
Fund-Org-Object
Reference:
300-523006, 212-523006
312-523006, 233-523006
Additional Financial Details:
On May 15, 2024, the City approved expenditures totaling $27,015,479.70 as outlined below:
Federal Funds $20,383,236.00
CVAG Funds $ 4,974,182.77
Local Share $ 1,658,060.93
Total Budget $27,015,479.70
By awarding to Ortiz, the total construction costs, including a 10% contingency, will increase to $31,783,828.78 as outlined below:
Ortiz Enterprises, Inc. $28,894,389.80
Contingency (10%) $ 2,889,438.98
Construction Costs $31,783,828.78
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 757 of 1671 Additional Local Costs $4,768,349.08
These additional local costs will be paid for out of the City’s Capital Improvement Plan budget next fiscal year, FY25/26. Staff will request additional federal and CVAG funding to help offset the additional participating costs. It is expected that the City’s share will be $1,634,495.78 as outlined below:
Federal Funds (88.53% Eligible Costs) $25,245,846.00
CVAG Funds (75% Local Share) $ 4,903,487.00
Local Share $ 1,634,495.78
Total Budget $31,783,828.78
ATTACHMENTS:
Attachment 1 - Staff Good Faith Effort Evaluation
Attachment 2 - ESB Good Faith Effort Evaluation
Attachment 3 - Ames Construction Repoonse to ESB Evalution Attachment 4 - Staff Good Faith Effort Re-Evalution
Attachment 5 - Ames Construction Response to Re-Evaluation Attachment 6 - Ames Construction Bid Protest Correspondence Attachment 7 - Contract with Ortiz Construction Inc.
APPROVAL(S):
Timothy Wassil, Public Works Director Approved - 10 Jul 2024 Jennifer A. Mizrahi, Assistant City Attorney Approved - 10 Jul 2024 Ruby D. Walla, Director of Finance Approved - 10 Jul 2024 Bryan H. Montgomery, City Manager Approved - 11 Jul 2024
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 758 of 1671 ATTACHMENT 1
STAFF GOOD FAITH EFFORT
EVALUATION
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 759 of 1671 100 Civic Center Mall, Indio, CA 92201
@cityofindio 760-391-4000 Indio.org
MEMORANDUM
To: PROJECT FILE Avenue 44 Bridge Date: 04/18/2024
Federal-Aid Project #: BRLKS-5275(024)
Bid Opening Date: April 11, 2024
Bidder: Ames Construction, Inc.
(hereinafter called “Low Bidder”)
Type of Work: New four-lane bridge (replace lowwater crossing) Bid Amount: $24,559,527.00
From: City of Indio
Subject: Evaluation of Good Faith Efforts
The City of Indio established a Disadvantaged Business Enterprise (DBE) goal of 22% for this construction contract. The Low Bidder commits 5.21% DBE Participation. The City of Indio has determined that the Low Bidder did not meet the contract goal and would evaluate the Low Bidder’s Good Faith Efforts to meet the contract goal.
The City of Indio’s evaluation of the Low Bidder’s Good Faith Efforts is based on Section 9.8 of the Local Assistance Procedures Manual and Appendix A in Part 26 of Title 49 of the Code of Federal Regulations. The efforts of the Low Bidder were reviewed by the City of Indio Public Works Department from the information provided in Exhibit 15-H: Proposer/Contractor Good Faith Efforts signed and submitted by Mike Boer, VP of Engineering for Ames Construction, Inc.
The City of Indio determined that the Low Bidder did demonstrate Good Faith Efforts to meet the DBE participation goal of this project for the reasons cited in this evaluation.
EVALUATION
A. Items of work the bidder made available to DBE firms In Part C of the Low Bidder’s “DBE Information – Good Faith Efforts” form, the Low Bidder provided a list of items of work offered. Items of work made available included dust abatement; develop water supply; earthwork (excavation and fill); aggregate base; HMA Type A; slurry seal; minor concrete flatwork; minor concrete storm drain structures; storm drain; slope paving and GCS (concrete); fencing and metal railing; SWPPP preparation and compliance; temporary erosion control measures; street sweeping; temporary concrete washout; signing, striping, and marking; street lighting and electrical systems; traffic control; portable changeable message signs; hydroseed; CIDH piles; Prestressing CIP Concrete; Structural Concrete Bridge and Related; Concrete Texture Linings; Joint Seal Assembly; Bar Reinforcing Steel; Miscellaneous Metals Bridge; Anti-Graffiti Coating; Concrete Barrier; Bat Houses; Water Line Construction; and Electrical / Utility Work.
According to list of items of work provided, the Low Bidder indicated that they made approximately $22,224,427 or 90.50% of work available to DBE firms. The Low Bidder
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 760 of 1671 reported that they would normally perform approximately 56.23% of the work made available to DBE firms.
B. Solicitation effort documentation
According to the documents provided in Part B of the Low Bidder’s “DBE Information – Good Faith Efforts” form, the Low Bidder initially contacted 588 registered DBE firms. The initial advertisement was on 3/11/24, 31 days before bid opening. The Low Bidder sent follow up emails on 3/20/24 and on 4/8/24. Follow up calls were performed on 3/27/24 and 4/9/24 according to the Low Bidder’s tracking log. All email and telephone log correspondence was provided.
As a result of this effort, the Low Bidder received responses that indicated 42 of the DBE solicited would provide a quote, while 149 declined the offer. 397 of the DBE firms solicited were nonresponsive.
In addition to the direct outreach, the Low Bidder advertised in four publications starting on 3/6/24. These advertisements provided adequate information about the contract.
C. Rejected DBE documentation
According to the documents provided in Part D of the Low Bidder’s “DBE Information – Good Faith Efforts” form, the Low Bidder rejected 16 DBE quotes:
Name Reason Cited
West Coast Drilling DBE Firm did not quote large diameter shafts. Ames does not perform this work, nor did we receive quotes to complete this scope. Malcolm Drilling mobilization cost covers work for the larger diameter CIDH.
Price difference significantly higher.
Don H. Mahaffey
Drilling
DBE Firm did not quote large diameter shafts. Ames does not perform this work, nor did we receive quotes to complete this scope. Malcolm Drilling mobilization cost covers work for the larger diameter CIDH.
Price difference significantly higher.
Dees Burke
Engineering
Due to DBE's exclusions for concrete buy, rebar, and pilaster work, Ames price to compared to Sub's price was significantly lower. Ames amount does not include concrete, rebar and pilaster work to compare to Dees Burke.
Trinity Fence Ace Fence which is a DBE was listed to perform this scope.
In-Line Construction Ace Fence which is a DBE was listed to perform this scope.
Cat Tracking, Inc. CTI excluded temporary striping and removal of temporary striping.
Added cost for this work would be over $10,000. CTI price is higher than Chrisp and their scope was incomplete.
Legacy Reinforcing
Steel
Legacy's bond rate 3% adds $75,161 to their price. Integrity bond cost is $14,557 add. Legacy is higher than Integrity.
Marvella Steel
Placers
Marvella's bond rate 3% adds $76,705,161 to their price and their scope requires an add for bridge rebar tests of $11,875. Integrity bond cost is $14,557 add. Marvella is higher than Integrity.
LA Steel LA Steel is significantly higher than Integrity Rebar.
SRK Engineering SRK Engineering price is very significantly high.
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 761 of 1671 Name Reason Cited
Kitty Sweeping Ames plans on using Maverick Sweeping which is a DBE to perform this work.
IMRAE Price is significantly higher than Techno Coatings IMRAE Price is significantly higher than Murphy Industrial Coatings Universal
Construction
Engineering
Ames cost includes excavation, backfill, and subgrade preparation.
Universal price did NOT include that work. Universal significantly higher with less scope compared to Ames cost plus mark-up.
Mass X, Inc. Mass X Inc price very significantly higher than Ames self-perform prices.
Tailwind
Construction Supply
Tailwind Construction Supply price is significantly higher than Ferguson Waterworks.
Overall, the Low Bidder rejected 2 DBEs for insufficiently quoting the project scope, rejected 3 DBEs in lieu of using a different DBE with a lower quote, and rejected 11 DBEs that provided higher quotes that the Low Bidder could either self-perform for a lower price or that the Low Bidder received a more competitive price from a non-DBE. There were two quotes that were rejected that could have met the DBE goal, but these quotes were twice as high as the provided bid price which provides reasonable justification for rejection.
D. Publication effort made to advertise the projects to include DBE participation The Low Bidder used the following publications to solicit DBE participation:
Publications Dates of Advertisement
DBE GoodFaith Focus Journal 3/6/24 – 4/11/24
DBE GoodFaith Trade Journal 3/6/24 – 4/11/24
Contractors Estimate Trade 3/6/24 – 4/11/24
Contractors Estimate Focus 3/6/24 – 4/11/24
Copies of the publications were provided in the Low Bidder’s Good Faith Efforts Documentation.
E. Agencies, organizations, or groups contacted to provide assistance in contacting, recruiting and using DBEs
According to the documents provided in Part G of the Low Bidder’s “DBE Information – Good Faith Efforts” form, the Low Bidder contacted 28 agencies and organizations to provide assistance in contacting, recruiting, and using DBE firms:
1. Antelope Valley Black Chamber of Commerce
2. Asian Business Association (ABA)
3. Antelope Valley Hispanic Chamber of Commerce
4. Black Business Association of LA (BBA)
5. Black Business Association
6. Chicano Federation
7. Greater LA African American Chamber of Commerce
8. Greater Corona Hispanic COC
9. High Desert Small Business Development and Hispanic CHO
10.Indian Human Resource Center
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 762 of 1671
11.Inland Empire Small Business and African American COH
12.Latin Business Association (LBA)
13.Korean American Association of San Diego
14.MBDA Center LA and Riverside County
15.Minority Business Opportunity Center (MBOC)
16.Moreno Valley Black COH
17.NAWIC
18.National Association of Minority Contractors (NAMC)
19.National Association of Women Business Owners (NAWBO)
20.National Center for American Indians
21.National Center for American Indian Enterprise Development (NCAIED)
22.Ontario Hispanic COH
23.Regional Black COC
24.Regional Hispanic COC
25.SD County Imperial Valley Hispanic COC
26.SD Latino Development Center
27.So Cal Minority Business Development
28.The Filipino American COC
F. Efforts to provide information about the plans, specifications, and contract requirements
The Low Bidder did offer to provide information regarding the plans, specifications, and contract requirements in each solicitation and advertisement.
G. Assistance with bonding, lines of credit, insurance, equipment, supplies, materials, and/or services
The Low Bidder did offer to provide assistance for bonding, credit, and/or insurance needs within each solicitation and advertisement.
H. Additional data to support a demonstration of Good Faith Effort The Low Bidder has submitted very detailed documentation of his effort towards DBE’s.
Based on the Low Bid Amount: $24,559,527, the DBE Contract Goal of 22% relates to $5,403,095.94. The Low Bidder has committed $1,279,728.12, which is short of the goal by $4,123,367.82.
Based on the amount of rejected DBE quotes for higher bids alone, the Low Bidder turned down $5,336,500 worth of DBE work in lieu of self-performance or a more competitive quote from a different sub-contractor. This indicates that the bidder performed sufficient efforts to receive enough quotes to meet the DBE Goal. However, per Appendix A to Part 26, “Prime Contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable”.
There are two quotes, from SRK Engineering for all the pipeline work and Mass X Engineering for excavation and grading work, that primarily contributed to the total value of the DBE quotes rejected. These two quotes were each double the amount listed in the bid and clearly represent excessive and unreasonable price differences.
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 763 of 1671 The 2nd low bidder, Ortiz Enterprises, Inc, submitted a DBE Commitment of 22.4% which does meet the contract goal.
The third low bidder, Riverside Construction Company, Inc, submitted a DBE Commitment of
6.9%, which does not meet the contract goal.
However, the bid from the second and third low bidders were each approximately 18% higher than the Low Bidder.
FINDING OF THE CITY OF INDIO
The City of Indio finds that the Low Bidder did demonstrate Good Faith Efforts to meet the DBE contract goal for the reasons cited in this evaluation. The Low Bidder achieved a reasonable balance between project cost and trying to meet the DBE goal.
Submitted by: Approved by:
Joshua Nickerson, PE Juan Raya, PE
(Principal Engineer) (City Engineer)
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 764 of 1671 ATTACHMENT 2
ESB GOOD FAITH EFFORT
EVALUATION
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 765 of 1671 State of California California State Transportation Agency
DEPARTMENT OF TRANSPORTATION
“Provide a safe and reliable transportation network that serves all people and respects the environment” Memorandum
To: TRACY COAN Date: June 13, 2024
Local Civil Compliance Liaison
Division of Local Assistance File: BRLKS-5275(024)
From: DON WARD
Senior Transportation Engineer
Engineering Support Branch
Office of Civil Rights
Subject: CITY OF INDIO GOOD FAITH EFFORT EVALUATION
The City of Indio determined that the Disadvantaged Business Enterprise (DBE) contract goal for this project is 22%. According to the documentation provided by City of Indio, the DBE commitment listed the apparent lowest bidder, Ames Construction, Inc. (Ames), is 5.21% or $ $1,279,738.12 of the total bid for the Avenue 44 Bridge at the Coachella Valley Storm Water Channel project.
Engineering Support Branch (ESB) has reviewed the submitted Disadvantaged Business Enterprises (DBE) forms from Ames. ESB determined that Ames‘s DBE commitment of 5.21% or $ 1,279,738.12 did not meet the 22% contract goal.
ESB does not concur with City of Indio’s determination that Ames did demonstrate adequate Good Faith Effort (GFE) to meet the contract goal.
According to the DBE Program, when a bidder has not committed to meet the contract goal, ESB evaluates the bidder’s good faith efforts using Appendix A of 49 CFR Part 26.
EVALUATION OF GOOD FAITH EFFORT DOCUMENTATION
The Good Faith Efforts (GFE) are all necessary and reasonable steps to achieve a DBE goal or other requirement of this part which, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient DBE participation.
Type text here
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 766 of 1671 Contract No. 08-BRLKS-5275(024)
June 13, 2024
“Provide a safe and reliable transportation network that serves all people and respects the environment” A. Outreach Efforts
In Part A of the “Exhibit 15-H: Proposer/Contractor Good Faith Efforts” form, the Contractor was asked to describe their outreach efforts, list the dates, location and results.
Ames reached out to four publications and started their advertisements 36 days before bid opening for solicitation of DBE subcontractors and suppliers. This allowed the DBE firms time to respond to the solicitation as well as provided adequate information about the contract.
The following table indicates a summary of Ames’s advertisements.
Publications Advertisement Date Bid
Opening
Date
Number of
Days
Published
Supporting
Documents
Provided
DBE GoodFaith
Focus Journal Ad
3/6/24
through
4/11/24
4/11/24 36 Yes
DBE GoodFaith
Trade Journal Ad
3/6/24
through
4/11/24
4/11/24 36 Yes
Contractors
Estimate Trade
3/6/24
through
4/11/24
4/11/24 36 Yes
Contractors
Estimate Focus
3/6/24
through
4/11/24
4/11/24 36 Yes
Ames provided a copy of the advertisements in the GFE supporting documentation.
B. Documentation of Solicitation Efforts and Follow Up
Ames did not provide a copy of Exhibit 15-H: Proposer/Contractor Good Faith Efforts” form.
In the supporting documentation Ames indicated that they utilized B2Gnow California Unified Certification Program (B2Gnow). Ames provided a copy of the search, which resulted in 588 DBE firms. However, Ames did not provide the Work
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 767 of 1671 Contract No. 08-BRLKS-5275(024)
June 13, 2024
“Provide a safe and reliable transportation network that serves all people and respects the environment” codes or NAICS codes used in their query. Therefore, ESB is unable to verify that Ames utilized viable codes in their database search. Ames searched for DBE firms in District 8 and the following counties San Bernardino, Riverside, Orange, Los Angeles, and San Diego.
ESB performed an independent search of the CUCP and B2GNow database using the criteria of Caltrans District 8, counties of San Bernardino, Riverside, and the services needed for this contract:
Work Code Category
C1200 CONSTRUCTION AREA SIGNS
C1201 TRAFFIC CONTROL SYSTEM
C1701 DEVELOP WATER SUPPLY
C1531 PLANE ASPHALT CONCRETE
C1901 ROADWAY EXCAVATION
C1910 GRADING
C1980 IMPORTED BORROW
C2602 AGGREGATE BASE (AB)
C7301 CONCRETE CURB & SIDEWALK- MISC
C7112 REINFORED CONCRETE SEWER PIPE
C7218 AIR-BLOWN MORTAR (SLOPE PAVING)
C8000 FENCING
C8852 SWPPP PLANNING
C2066 TEMPORARY EROSION CONTROL
C9609 STREET SWEEPING TRUCK
C8405 THERMOPLASTIC TRAFFIC STRIPING & MARKING
C8406 PAINTED TRAFFIC STRIPING & MARKING
C8407 REMOVE PAVEMENT MARKING & TRAFFIC STRIPES
C8501 PAVEMENT MARKER
C8602 SIGNAL & LIGHTING
C1701 DEVELOP WATER SUPPLY
C2021 HYDROSEEDING
C1920 STRUCTURE EXCAVATION
C4906 CAST-IN-DRILLED-HOLE CONCRETE PILING
C5100 CONCRETE STRUCTURE
C5105 MINOR CONCRETE STRUCTURE
C5201 REINFORCING STEEL
C7035 WELDED STEEL PIPE
ESB identified a total of 231 certified DBE firms, not including trucking. appreciated
Type te
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 768 of 1671 Contract No. 08-BRLKS-5275(024)
June 13, 2024
“Provide a safe and reliable transportation network that serves all people and respects the environment” Ames sent out initial solicitations on March 11, 2024, to 588 DBE firms.
Date Solicitation Method Sent Total
3/11/24 Initial Email 588 588
Ames followed up by email on March 20, 2024, and April 8, 2024. Then by fax on March 25, 2024. Finally, Ames sent follow up solicitations by phone on March 27, 2024, and April 9, 2024.
Date Solicitation Method Sent Total
3/20/24 Follow-up Email 588 588
3/25/24 Follow-up Fax 588 588
3/27/24 Follow-up Phone 588 588
4/8/24 Follow-up Email 588 588
4/9/24 Follow-up Phone 588 588
Ames provided proof of follow up efforts and the results. The overall results of their solicitation efforts are summarized below:
• 146 DBE firms indicated they would not bid.
• 41 DBE firms would submit a bid.
• There were no results or responses provided by Ames for 401 DBE firms.
At bid time, Ames had confirmations for 10 DBE firms as a result of their solicitation efforts.
C. Work Made Available to DBEs
In Part C of the “Exhibit 15-H: Proposer/Contractor Good Faith Efforts” form, the Contractor was asked to select portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be achieved, including breaking out contract work items into economically feasible units to facilitate DBE participation.
Ames provided a list of items of work offered, services offered, or materials supplied, including the following:
• Dust Abatement
• Develop Water Supply
• Earthwork (Excavation and Fill)
• Aggregate Base
• HMA Type A
• Slurry Seal
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 769 of 1671 Contract No. 08-BRLKS-5275(024)
June 13, 2024
“Provide a safe and reliable transportation network that serves all people and respects the environment” • Minor Concrete Flatwork
• Minor Concrete Storm Drain Structures
• Storm Drain
• Slope Paving and GCS (Concrete)
• Fencing and Metal Railing
• SWPPP Preparation & Compliance
• Temporary Erosion Control Measures
• Street Sweeping
• Temporary Concrete Washout
• Signing, Striping, and Marking
• Street Lighting and Electrical Systems
• Traffic Control
• Portable Changeable Message Signs
• Hydroseed
• CIDH Piles
• Prestressing CIP Concrete
• Structural Concrete Bridge and Related
• Concrete Texture Linings
• Joint Seal Assembly
• Bar Reinforcing Steel
• Miscellaneous Metals Bridge
• Anti-Graffiti Coating
• Concrete Barrier
• Bat Houses
• Water Line Construction
• Electrical / Utility Work
According to the list of items of work provided, Ames indicated that they made approximately $22,224,427.00 or 90% of work available to DBE firms.
D. Rejected DBEs
Ames did not provide a copy of “Exhibit 15-H: Proposer/Contractor Good Faith Efforts” form.
Ames provided accepted and rejected DBE quotes. Ames also provided the reasons why a non-DBE firm was selected over a DBE firm.
Work
Description
Accepted Firm
& Quote Amount
DBE or
NonDBE
DBE Rejected
& Quote
Amount
Reason
Anti Graffiti
Coatings
Techno
Coatings
NonDBEIMARE
$35,709.00
Price is higher
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 770 of 1671 Contract No. 08-BRLKS-5275(024)
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“Provide a safe and reliable transportation network that serves all people and respects the environment” $6,100.00
Flap Gate
for RCP
Ferguson
Waterworks
$188,765.00
NonDBETailwind
Construction
Supply
$347,459.00
Tailwind
Construction
Supply price is
significantly higher
than Ferguson
Waterworks.
Stain Bridge
Railings
Murphy
Industrial
Coatings, Inc
$51,500.00
NonDBEIMARE
$63,010.00
Price is higher
Signing,
Striping and
Markings
Chrisp
Company
$25,230.00
NonDBECat Tracking
$34,445.00
CTI price higher.
CTI excluded
temporary striping
and removal of
temporary striping.
CIDH Malcom Drilling
$734,440.00
NonDBEDon H
Mahafrey
Drilling
$811,000
The DBE Firm did
not quote large
diameter shafts.
Malcolm
Drilling cost covers
work for the larger
diameter CIDH.
And is less.
Reinforcing
Steel
Integrity Rebar
Placers
$2,426,116.00
NonDBELegacy
Reinforcing
Steel
$2,580,518.00
Legacy's bond
rate 3% adds
$75,161 to their
price. Integrity
bond cost is
$14,557 add.
Legacy is higher
than Integrity.
Reinforcing
Steel
Integrity Rebar
Placers
$2,426,116.00
NonDBEMarvella Steel
Placers
$2,571,411.00
Marvella's bond
rate 3% adds
$76,705,161 to their
price and their
scope requires an
add for bridge
rebar tests of
$11,875. Integrity
bond cost
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 771 of 1671 Contract No. 08-BRLKS-5275(024)
June 13, 2024
“Provide a safe and reliable transportation network that serves all people and respects the environment” is $14,557 add.
Marvella is higher
than Integrity.
Concrete
Barrier
Ames
(Self-Perform)
$322,219.00
NonDBEDees and
Burke
Engineering
$520,650.00
Ames price to
compared to Sub's
price was
significantly lower.
Water Lines Ames
(Self-Perform)
$2,558,320.00
NonDBESRK
Engineering
$5,205,745.00
SRK Engineering
price is very
significantly high.
Minor
Concrete
Ames
(Self-Perform)
$330,389.00
NonDBEUniversal
Construction
and
Engineering
$394,230.00
Ames cost
includes
excavation,
backfill, and
subgrade
preparation.
Universal price did
NOT include that
work. Universal
significantly higher
with less scope
compared to
Ames cost plus
mark-up.
Excavation Ames
(Self-Perform)
$2,617,100.00
NonDBEMass X Inc.
$4,689,580.00
Mass X Inc price
very significantly
higher than Ames
self-perform prices.
Ames rejected the DBE firm, IMARE, and accepted non-DBE firm, Techno Coatings, for anti-graffiti coatings due to a price difference of $29,609.00.
Ames rejected the DBE firm, Tailwind Construction Supply, and accepted non-DBE firm, Ferguson Waterworks, for flap gates due to a price difference of $158,694.00.
Per the Appendix A to Part 26, "Prime contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable."
Ames rejected the DBE firm, IMARE, and accepted non-DBE firm, Murphy Industrial Coatings, Inc, for stain bridge railings work due to a price difference of $11,510.00.
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“Provide a safe and reliable transportation network that serves all people and respects the environment” Ames rejected the DBE firm, Cat Tracking, and accepted non-DBE firm, Chrisp Company, for signing, striping and markings due to a price difference of $9,215.00.
Ames rejected the DBE firm, Don H Mahaffey Drilling, and accepted non-DBE firm, Malcom Drilling, for CIDH Drilling due to a price difference of $76,560.00 or 9.4%.
Ames rejected the DBE firm, Legacy Reinforcing Steel, and accepted non-DBE firm, Integrity Rebar Placers, for Reinforcing Steel due to a price difference of $145,295.00 or 5.6%.
Per the Appendix A to Part 26, " However, the fact that there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for a bidder's failure to meet the contract DBE goal, as long as such costs are reasonable." Furthermore “Another practice considered an insufficient good faith effort is the rejection of the DBE because its quotation for the work was not the lowest received.” IMARE, Cat Tracking, Don H Mahaffey Drilling, and Legacy Reinforcing steel’s higher cost are reasonable.
Ames chose to self-perform water lines and rejected DBE firm, SRK Engineering due to Ames internal costs were less. SRK Engineering costs were unreasonable.
Per the Appendix A to Part 26, "Prime contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable."
Ames chose to self-perform concrete barrier and rejected DBE firm, Dees and Burke Engineering due to Ames internal cost was less. Dees and Burke Engineering costs were unreasonable.
Ames chose to self-perform Minor concrete work and rejected Universal Construction a DBE firm due to Ames internal cost was less.
Ames chose to self-perform Excavation work and rejected Mass X Inc. a DBE firm due to Ames internal cost was less.
Per Appendix A to Part 26, "the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts.”
Per the Appendix A to Part 26, " However, the fact that there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for a bidder's failure to meet the contract DBE goal, as long as such costs are
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“Provide a safe and reliable transportation network that serves all people and respects the environment” reasonable." Furthermore “Another practice considered an insufficient good faith effort is the rejection of the DBE because its quotation for the work was not the lowest received.”
Ames did not provide evidence that they negotiated in good faith with the interested DBE firms, nor did they provide evidence explaining why additional agreements could not be reached with DBEs to perform the work.
E. Assistance Given on Plans, Specifications, and Contract Requirements Ames did not provide a copy of “Exhibit 15-H: Proposer/Contractor Good Faith Efforts” form. However, A copy of their advertisements state that plans and specifications are available to view at For questions about plans, specifications and other contract requirements please contact our office.
There is no evidence or assertion that Ames assisted any DBE subcontractor and/or suppliers during the bid advertisement period for plans, specifications, or contract requirements.
There is no evidence or assertion that Ames assisted any DBE subcontractor and/or suppliers during the bid advertisement period with bonding, lines of credit, or insurance, equipment, supplies, and materials
F. Assistance or Services Offered for Bonding, Lines of Credit, Insurance, Equipment, Supplies, Materials
Ames did not provide a copy of “Exhibit 15-H: Proposer/Contractor Good Faith Efforts” form. However, A copy of their advertisements state, “Please call to discuss how Ames Construction can assist you in your bonding, credit and/or insurance needs. Also, let us know if you need assistance in obtaining necessary equipment, supplies, materials or related assistance or services for this project.” There is no evidence or assertion that Ames assisted any DBE subcontractor and/or suppliers during the bid advertisement period with bonding, lines of credit, or insurance, equipment, supplies, and materials.
G. Contacting Recruitment Agencies
Ames did not provide a copy of “Exhibit 15-H: Proposer/Contractor Good Faith Efforts” form. However, in the GFE documentation Ames provided supporting documentation indicating that they contacted the following minority or women’s community organizations, minority or women’s contractors’ groups, local, state, and federal minority or women’s business assistance offices, and other organizations:
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June 13, 2024
“Provide a safe and reliable transportation network that serves all people and respects the environment” • Antelope Valley Black Chamber of
Commerce
• Korean American Association of
San Diego.
• Inland Empire Small Business and
African American COH.
• National Association of Minority
Contractors
• Antelope Valley Hispanic Chamber
of Commerce.
• National Association of Women
Business Owners
• So Cal Minority Business
Development.
• National Center for American
Indians,
• High Desert Small Business
Development and Hispanic CHO.
• National Center for American
Indian Enterprise Development
• Asian Business Association • Ontario Hispanic COH.
• Chicano Federation. • Regional Black COC.
• Greater Corona Hispanic COC • Regional Hispanic COC.
• MBDA Center LA and Riverside
County.
• SD County Imperial Valley Hispanic
COC.
• Latin Business Association (LBA) • SD Latino Development Center. • Black Business Association of LA • Indian Human Resource Center. • Black Business Association. • Asian Business Association • Moreno Valley Black COH. • The Filipino American COC. • Greater LA African American
Chamber of Commerce.
• Minority Business Opportunity
Center
There is no evidence or assertion that Ames received any response from the above agencies.
H. Additional Good Faith Efforts
Ames did not provide a copy of “Exhibit 15-H: Proposer/Contractor Good Faith Efforts” form.
There is no evidence or assertion of additional good faith efforts performed for this contract by Ames.
I. Bidder Comparison of DBE Commitment
The lowest bidder, Ames’s, apparent DBE participation is 5.21% of the total bid.
Ames did not meet the contract goal of 22%.
The second lowest bidder, Ortiz Enterprises, Inc. apparent DBE participation is
22.4% of the total bid. Ortiz Enterprises, Inc. appears to meet the 22% DBE goal.
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June 13, 2024
“Provide a safe and reliable transportation network that serves all people and respects the environment” The third lowest bidder, Riverside Construction Company, Inc. apparent DBE participation is 6.9% of the total bid. Riverside Construction Company, Inc. appears to meet the 22% DBE goal.
Per 49 CFR Part 26, Appendix A to Part 26 (V), “In determining whether a bidder has made good faith efforts, you may take into account the performance of other bidders in meeting the contract. For example, when the apparent successful bidder fails to meet the contract goal, but others meet it, you may reasonably raise the question of whether, with additional reasonable efforts, the apparent successful bidder could have met the goal.” Although the other bidders did not meet the DBE goal, they were able to obtain more DBE participation than the lowest bidder.
Additionally, “If the apparent successful bidder fails to meet the goal, but meets or exceeds the average DBE participation obtained by other bidders, you may view this, in conjunction with other factors, as evidence of the apparent successful bidder having made good faith efforts.” The average DBE participation obtained by the lowest three bidders is 11.50%. However, Ames’ DBE participation of 5.21% was much lower than the average.
The bids were as follows:
Bid
Rank Bidder Bid Amount Claimed DBE
Commitment
Confirmed DBE
Commitment
1 Ames $24,559,527.00 $1,279,738.12 or
5.21%
1,279,738.12 or
5.21%
2 Ortiz Enterprises, Inc. $28,894,389.80 $6,472,048.65 or
22.4% -
3 Riverside
Construction
Company, Inc.
$28,979,998.00 $1,985,638.00 or
6.9% -
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 776 of 1671 State of California California State Transportation Agency
DEPARTMENT OF TRANSPORTATION
“Provide a safe and reliable transportation network that serves all people and respects the environment”
CONCLUSION
ESB has determined that Ames did not meet the contract goal and did not demonstrate adequate good faith efforts through soliciting by indirect and direct methods. ESB considers the quantity, quality, and intensity of the different kinds of efforts that Ames has made. Based on the following fact that Ames received several bids that should have been considered and been used in the DBE commitment. Several reasonable quotes were rejected for not being the lowest or Ames chose to self-perform the work at a lower cost. These include the following:
• Ames rejected the DBE firm, IMARE, and accepted non-DBE firm, Murphy Industrial Coatings, Inc. for stain bridge railings work due to a price difference of $11,510.00.
• Ames rejected the DBE firm, Cat Tracking, and accepted non-DBE firm, Chrisp Company, for signing, striping, and markings due to a price difference of $9,215.00.
• Ames rejected the DBE firm, Don H Mahaffey Drilling, and accepted nonDBE firm, Malcom Drilling, for CIDH Drilling due to a price difference of $76,560.00 or 9.4%.
• Ames rejected the DBE firm, Legacy Reinforcing Steel, and accepted nonDBE firm, Integrity Rebar Placers, for Reinforcing Steel due to a price difference of $145,295.00 or 5.6%.
• IMARE, Cat Tracking, Don H Mahaffey, Drilling and Legacy Reinforcing steel’s higher cost are reasonable.
• Ames chose to self-perform Minor concrete work and rejected Universal Construction a DBE firm due to Ames internal cost was less. • Ames chose to self-perform Excavation work and rejected Mass X Inc. a DBE firm due to Ames internal cost was less.
• Per Appendix A to Part 26, "the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts.” Also,”… the fact that there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for a bidder's failure to meet the contract DBE goal, as long as such costs are reasonable." Finally “Another practice considered an insufficient good faith effort is the rejection of the DBE because its quotation for the work was not the lowest received.” • Ames did not demonstrate that they took all necessary and reasonable steps and available means to obtain sufficient DBE participation for this contract.
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 777 of 1671 100 Civic Center Mall, Indio, CA 92201
@cityofindio 760-391-4000 Indio.org
MEMORANDUM
To: PROJECT FILE Avenue 44 Bridge Date: 04/18/2024
Federal-Aid Project #: BRLKS-5275(024)
Bid Opening Date: April 11, 2024
Bidder: Ames Construction, Inc.
(hereinafter called “Low Bidder”)
Type of Work: New four-lane bridge (replace lowwater crossing) Bid Amount: $24,559,527.00
From: City of Indio
Subject: Evaluation of Good Faith Efforts
The City of Indio established a Disadvantaged Business Enterprise (DBE) goal of 22% for this construction contract. The Low Bidder commits 5.21% DBE Participation. The City of Indio has determined that the Low Bidder did not meet the contract goal and would evaluate the Low Bidder’s Good Faith Efforts to meet the contract goal.
The City of Indio’s evaluation of the Low Bidder’s Good Faith Efforts is based on Section 9.8 of the Local Assistance Procedures Manual and Appendix A in Part 26 of Title 49 of the Code of Federal Regulations. The efforts of the Low Bidder were reviewed by the City of Indio Public Works Department from the information provided in Exhibit 15-H: Proposer/Contractor Good Faith Efforts signed and submitted by Mike Boer, VP of Engineering for Ames Construction, Inc.
The City of Indio determined that the Low Bidder did demonstrate Good Faith Efforts to meet the DBE participation goal of this project for the reasons cited in this evaluation.
EVALUATION
A. Items of work the bidder made available to DBE firms In Part C of the Low Bidder’s “DBE Information – Good Faith Efforts” form, the Low Bidder provided a list of items of work offered. Items of work made available included dust abatement; develop water supply; earthwork (excavation and fill); aggregate base; HMA Type A; slurry seal; minor concrete flatwork; minor concrete storm drain structures; storm drain; slope paving and GCS (concrete); fencing and metal railing; SWPPP preparation and compliance; temporary erosion control measures; street sweeping; temporary concrete washout; signing, striping, and marking; street lighting and electrical systems; traffic control; portable changeable message signs; hydroseed; CIDH piles; Prestressing CIP Concrete; Structural Concrete Bridge and Related; Concrete Texture Linings; Joint Seal Assembly; Bar Reinforcing Steel; Miscellaneous Metals Bridge; Anti-Graffiti Coating; Concrete Barrier; Bat Houses; Water Line Construction; and Electrical / Utility Work.
According to list of items of work provided, the Low Bidder indicated that they made approximately $22,224,427 or 90.50% of work available to DBE firms. The Low Bidder
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 778 of 1671 reported that they would normally perform approximately 56.23% of the work made available to DBE firms.
B. Solicitation effort documentation
According to the documents provided in Part B of the Low Bidder’s “DBE Information – Good Faith Efforts” form, the Low Bidder initially contacted 588 registered DBE firms. The initial advertisement was on 3/11/24, 31 days before bid opening. The Low Bidder sent follow up emails on 3/20/24 and on 4/8/24. Follow up calls were performed on 3/27/24 and 4/9/24 according to the Low Bidder’s tracking log. All email and telephone log correspondence was provided.
As a result of this effort, the Low Bidder received responses that indicated 42 of the DBE solicited would provide a quote, while 149 declined the offer. 397 of the DBE firms solicited were nonresponsive.
In addition to the direct outreach, the Low Bidder advertised in four publications starting on 3/6/24. These advertisements provided adequate information about the contract.
C. Rejected DBE documentation
According to the documents provided in Part D of the Low Bidder’s “DBE Information – Good Faith Efforts” form, the Low Bidder rejected 16 DBE quotes:
Name Reason Cited
West Coast Drilling DBE Firm did not quote large diameter shafts. Ames does not perform this work, nor did we receive quotes to complete this scope. Malcolm Drilling mobilization cost covers work for the larger diameter CIDH.
Price difference significantly higher.
Don H. Mahaffey
Drilling
DBE Firm did not quote large diameter shafts. Ames does not perform this work, nor did we receive quotes to complete this scope. Malcolm Drilling mobilization cost covers work for the larger diameter CIDH.
Price difference significantly higher.
Dees Burke
Engineering
Due to DBE's exclusions for concrete buy, rebar, and pilaster work, Ames price to compared to Sub's price was significantly lower. Ames amount does not include concrete, rebar and pilaster work to compare to Dees Burke.
Trinity Fence Ace Fence which is a DBE was listed to perform this scope.
In-Line Construction Ace Fence which is a DBE was listed to perform this scope.
Cat Tracking, Inc. CTI excluded temporary striping and removal of temporary striping.
Added cost for this work would be over $10,000. CTI price is higher than Chrisp and their scope was incomplete.
Legacy Reinforcing
Steel
Legacy's bond rate 3% adds $75,161 to their price. Integrity bond cost is $14,557 add. Legacy is higher than Integrity.
Marvella Steel
Placers
Marvella's bond rate 3% adds $76,705,161 to their price and their scope requires an add for bridge rebar tests of $11,875. Integrity bond cost is $14,557 add. Marvella is higher than Integrity.
LA Steel LA Steel is significantly higher than Integrity Rebar.
SRK Engineering SRK Engineering price is very significantly high.
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 779 of 1671 Name Reason Cited
Kitty Sweeping Ames plans on using Maverick Sweeping which is a DBE to perform this work.
IMRAE Price is significantly higher than Techno Coatings IMRAE Price is significantly higher than Murphy Industrial Coatings Universal
Construction
Engineering
Ames cost includes excavation, backfill, and subgrade preparation.
Universal price did NOT include that work. Universal significantly higher with less scope compared to Ames cost plus mark-up.
Mass X, Inc. Mass X Inc price very significantly higher than Ames self-perform prices.
Tailwind
Construction Supply
Tailwind Construction Supply price is significantly higher than Ferguson Waterworks.
Overall, the Low Bidder rejected 2 DBEs for insufficiently quoting the project scope, rejected 3 DBEs in lieu of using a different DBE with a lower quote, and rejected 11 DBEs that provided higher quotes that the Low Bidder could either self-perform for a lower price or that the Low Bidder received a more competitive price from a non-DBE. There were two quotes that were rejected that could have met the DBE goal, but these quotes were twice as high as the provided bid price which provides reasonable justification for rejection.
D. Publication effort made to advertise the projects to include DBE participation The Low Bidder used the following publications to solicit DBE participation:
Publications Dates of Advertisement
DBE GoodFaith Focus Journal 3/6/24 – 4/11/24
DBE GoodFaith Trade Journal 3/6/24 – 4/11/24
Contractors Estimate Trade 3/6/24 – 4/11/24
Contractors Estimate Focus 3/6/24 – 4/11/24
Copies of the publications were provided in the Low Bidder’s Good Faith Efforts Documentation.
E. Agencies, organizations, or groups contacted to provide assistance in contacting, recruiting and using DBEs
According to the documents provided in Part G of the Low Bidder’s “DBE Information – Good Faith Efforts” form, the Low Bidder contacted 28 agencies and organizations to provide assistance in contacting, recruiting, and using DBE firms:
1. Antelope Valley Black Chamber of Commerce
2. Asian Business Association (ABA)
3. Antelope Valley Hispanic Chamber of Commerce
4. Black Business Association of LA (BBA)
5. Black Business Association
6. Chicano Federation
7. Greater LA African American Chamber of Commerce
8. Greater Corona Hispanic COC
9. High Desert Small Business Development and Hispanic CHO
10.Indian Human Resource Center
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 780 of 1671
11.Inland Empire Small Business and African American COH
12.Latin Business Association (LBA)
13.Korean American Association of San Diego
14.MBDA Center LA and Riverside County
15.Minority Business Opportunity Center (MBOC)
16.Moreno Valley Black COH
17.NAWIC
18.National Association of Minority Contractors (NAMC)
19.National Association of Women Business Owners (NAWBO)
20.National Center for American Indians
21.National Center for American Indian Enterprise Development (NCAIED)
22.Ontario Hispanic COH
23.Regional Black COC
24.Regional Hispanic COC
25.SD County Imperial Valley Hispanic COC
26.SD Latino Development Center
27.So Cal Minority Business Development
28.The Filipino American COC
F. Efforts to provide information about the plans, specifications, and contract requirements
The Low Bidder did offer to provide information regarding the plans, specifications, and contract requirements in each solicitation and advertisement.
G. Assistance with bonding, lines of credit, insurance, equipment, supplies, materials, and/or services
The Low Bidder did offer to provide assistance for bonding, credit, and/or insurance needs within each solicitation and advertisement.
H. Additional data to support a demonstration of Good Faith Effort The Low Bidder has submitted very detailed documentation of his effort towards DBE’s.
Based on the Low Bid Amount: $24,559,527, the DBE Contract Goal of 22% relates to $5,403,095.94. The Low Bidder has committed $1,279,728.12, which is short of the goal by $4,123,367.82.
Based on the amount of rejected DBE quotes for higher bids alone, the Low Bidder turned down $5,336,500 worth of DBE work in lieu of self-performance or a more competitive quote from a different sub-contractor. This indicates that the bidder performed sufficient efforts to receive enough quotes to meet the DBE Goal. However, per Appendix A to Part 26, “Prime Contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable”.
There are two quotes, from SRK Engineering for all the pipeline work and Mass X Engineering for excavation and grading work, that primarily contributed to the total value of the DBE quotes rejected. These two quotes were each double the amount listed in the bid and clearly represent excessive and unreasonable price differences.
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 781 of 1671 The 2nd low bidder, Ortiz Enterprises, Inc, submitted a DBE Commitment of 22.4% which does meet the contract goal.
The third low bidder, Riverside Construction Company, Inc, submitted a DBE Commitment of
6.9%, which does not meet the contract goal.
However, the bid from the second and third low bidders were each approximately 18% higher than the Low Bidder.
FINDING OF THE CITY OF INDIO
The City of Indio finds that the Low Bidder did demonstrate Good Faith Efforts to meet the DBE contract goal for the reasons cited in this evaluation. The Low Bidder achieved a reasonable balance between project cost and trying to meet the DBE goal.
Submitted by: Approved by:
Joshua Nickerson, PE Juan Raya, PE
(Principal Engineer) (City Engineer)
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DLA DBE CONFIRMATION
DOT LAPM 9-I (NEW 01/2023)
FEDERAL PROJECT NUMBER
NAME OF DBE BUSINESS
NAME OF DBE REPRESENTATIVE
DBE CERTIFICATION NUMBER
NAME OF BIDDER
NAME OF PRIME CONTRACTOR IF DIFFERENT FROM THE BIDDER
NAME OF REPRESENTATIVE OF PRIME CONTRACTOR
DATE
1 Bid Item Number Item of work and description of services to be subcontracted or materials to be provided Amount ($)
1 If 100% of an item is not to be performed or furnished by the DBE, describe the exact portion of the item to be performed or furnished.
DBE firms can use this form as a written confirmation or use an equivalent form. Written confirmation must be submitted no later than 4 pm on the 5th day of bid opening.
Total
As an authorized representative of a certified disadvantaged business enterprise, I confirm if the bidder is awarded the contract, my business will enter into a contractual agreement with the bidder or prime contractor to perform the type and dollar amount of work shown on the DBE Commitment form.
I certify under penalty of perjury that the foregoing is true and correct.
Signature of DBE's Authorized Representative
Printed Name of DBE's Authorized Representative
Title of DBE's Authorized Representative
Date
ADA Notice This document is available in alternative accessible formats. For more information, please contact the Forms Management Unit at (279) 234-2284, TTY 711, in writing at Forms Management Unit, 1120 N Street, MS-89, Sacramento, CA 95814, or by email at [email protected].
Michael Abanilla
Amy Tsui
President
04/16/2024
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DLA DBE CONFIRMATION
DOT LAPM 9-I (NEW 01/2023)
FEDERAL PROJECT NUMBER
NAME OF DBE BUSINESS
NAME OF DBE REPRESENTATIVE
DBE CERTIFICATION NUMBER
NAME OF BIDDER
NAME OF PRIME CONTRACTOR IF DIFFERENT FROM THE BIDDER
NAME OF REPRESENTATIVE OF PRIME CONTRACTOR
DATE
1 Bid Item Number Item of work and description of services to be subcontracted or materials to be provided Amount ($)
1 If 100% of an item is not to be performed or furnished by the DBE, describe the exact portion of the item to be performed or furnished.
DBE firms can use this form as a written confirmation or use an equivalent form. Written confirmation must be submitted no later than 4 pm on the 5th day of bid opening.
Total
As an authorized representative of a certified disadvantaged business enterprise, I confirm if the bidder is awarded the contract, my business will enter into a contractual agreement with the bidder or prime contractor to perform the type and dollar amount of work shown on the DBE Commitment form.
I certify under penalty of perjury that the foregoing is true and correct.
Signature of DBE's Authorized Representative
Printed Name of DBE's Authorized Representative
Title of DBE's Authorized Representative
Date
ADA Notice This document is available in alternative accessible formats. For more information, please contact the Forms Management Unit at (279) 234-2284, TTY 711, in writing at Forms Management Unit, 1120 N Street, MS-89, Sacramento, CA 95814, or by email at [email protected].
BRLKS-5275(024) Ames Construction, Inc. Same as above Mike Boer 4/11/24 BT Trucking Inc dba BT Concrete 45186 VARIOUS Hourly Trucking $43,800.00 $43,800.00
JOYCE BUCHAN
April 16,2024
Assistant Estimator
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5.21 1,279,738.12
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DLA DBE CONFIRMATION
DOT LAPM 9-I (NEW 01/2023)
FEDERAL PROJECT NUMBER
NAME OF DBE BUSINESS
NAME OF DBE REPRESENTATIVE
DBE CERTIFICATION NUMBER
NAME OF BIDDER
NAME OF PRIME CONTRACTOR IF DIFFERENT FROM THE BIDDER
NAME OF REPRESENTATIVE OF PRIME CONTRACTOR
DATE
1 Bid Item Number Item of work and description of services to be subcontracted or materials to be provided Amount ($)
1 If 100% of an item is not to be performed or furnished by the DBE, describe the exact portion of the item to be performed or furnished.
DBE firms can use this form as a written confirmation or use an equivalent form. Written confirmation must be submitted no later than 4 pm on the 5th day of bid opening.
Total
As an authorized representative of a certified disadvantaged business enterprise, I confirm if the bidder is awarded the contract, my business will enter into a contractual agreement with the bidder or prime contractor to perform the type and dollar amount of work shown on the DBE Commitment form.
I certify under penalty of perjury that the foregoing is true and correct.
Signature of DBE's Authorized Representative
Printed Name of DBE's Authorized Representative
Title of DBE's Authorized Representative
Date
ADA Notice This document is available in alternative accessible formats. For more information, please contact the Forms Management Unit at (279) 234-2284, TTY 711, in writing at Forms Management Unit, 1120 N Street, MS-89, Sacramento, CA 95814, or by email at [email protected].
JANET NAKADA
CEO
04/16/2024
Janet Nakada
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DLA DBE CONFIRMATION
DOT LAPM 9-I (NEW 01/2023)
FEDERAL PROJECT NUMBER
NAME OF DBE BUSINESS
NAME OF DBE REPRESENTATIVE
DBE CERTIFICATION NUMBER
NAME OF BIDDER
NAME OF PRIME CONTRACTOR IF DIFFERENT FROM THE BIDDER
NAME OF REPRESENTATIVE OF PRIME CONTRACTOR
DATE
1 Bid Item Number Item of work and description of services to be subcontracted or materials to be provided Amount ($)
1 If 100% of an item is not to be performed or furnished by the DBE, describe the exact portion of the item to be performed or furnished.
DBE firms can use this form as a written confirmation or use an equivalent form. Written confirmation must be submitted no later than 4 pm on the 5th day of bid opening.
Total
As an authorized representative of a certified disadvantaged business enterprise, I confirm if the bidder is awarded the contract, my business will enter into a contractual agreement with the bidder or prime contractor to perform the type and dollar amount of work shown on the DBE Commitment form.
I certify under penalty of perjury that the foregoing is true and correct.
Signature of DBE's Authorized Representative
Printed Name of DBE's Authorized Representative
Title of DBE's Authorized Representative
Date
ADA Notice This document is available in alternative accessible formats. For more information, please contact the Forms Management Unit at (279) 234-2284, TTY 711, in writing at Forms Management Unit, 1120 N Street, MS-89, Sacramento, CA 95814, or by email at [email protected].
Colleen Parris
Colleen Parris
Office Administrator
04/16/24
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5.21 1,279,738.12
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DLA DBE CONFIRMATION
DOT LAPM 9-I (NEW 01/2023)
FEDERAL PROJECT NUMBER
NAME OF DBE BUSINESS
NAME OF DBE REPRESENTATIVE
DBE CERTIFICATION NUMBER
NAME OF BIDDER
NAME OF PRIME CONTRACTOR IF DIFFERENT FROM THE BIDDER
NAME OF REPRESENTATIVE OF PRIME CONTRACTOR
DATE
1 Bid Item Number Item of work and description of services to be subcontracted or materials to be provided Amount ($)
1 If 100% of an item is not to be performed or furnished by the DBE, describe the exact portion of the item to be performed or furnished.
DBE firms can use this form as a written confirmation or use an equivalent form. Written confirmation must be submitted no later than 4 pm on the 5th day of bid opening.
Total
As an authorized representative of a certified disadvantaged business enterprise, I confirm if the bidder is awarded the contract, my business will enter into a contractual agreement with the bidder or prime contractor to perform the type and dollar amount of work shown on the DBE Commitment form.
I certify under penalty of perjury that the foregoing is true and correct.
Signature of DBE's Authorized Representative
Printed Name of DBE's Authorized Representative
Title of DBE's Authorized Representative
Date
ADA Notice This document is available in alternative accessible formats. For more information, please contact the Forms Management Unit at (279) 234-2284, TTY 711, in writing at Forms Management Unit, 1120 N Street, MS-89, Sacramento, CA 95814, or by email at [email protected].
BRLKS-5275(024) Ames Construction, Inc. Same as above Mike Boer 4/11/24 59 Furnish Formliner $66,054.00 67 Furnish Bat Houses $ 7,429.70 $ 73,483.70 RUPERT CONSTRUCTION SUPPLY, LP 32785 Stacy Monroe
Sales/Project Manager
4/16/24
Stacy Monroe
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5.21 1,279,738.12
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DLA DBE CONFIRMATION
DOT LAPM 9-I (NEW 01/2023)
FEDERAL PROJECT NUMBER
NAME OF DBE BUSINESS
NAME OF DBE REPRESENTATIVE
DBE CERTIFICATION NUMBER
NAME OF BIDDER
NAME OF PRIME CONTRACTOR IF DIFFERENT FROM THE BIDDER
NAME OF REPRESENTATIVE OF PRIME CONTRACTOR
DATE
1 Bid Item Number Item of work and description of services to be subcontracted or materials to be provided Amount ($)
1 If 100% of an item is not to be performed or furnished by the DBE, describe the exact portion of the item to be performed or furnished.
DBE firms can use this form as a written confirmation or use an equivalent form. Written confirmation must be submitted no later than 4 pm on the 5th day of bid opening.
Total
As an authorized representative of a certified disadvantaged business enterprise, I confirm if the bidder is awarded the contract, my business will enter into a contractual agreement with the bidder or prime contractor to perform the type and dollar amount of work shown on the DBE Commitment form.
I certify under penalty of perjury that the foregoing is true and correct.
Signature of DBE's Authorized Representative
Printed Name of DBE's Authorized Representative
Title of DBE's Authorized Representative
Date
ADA Notice This document is available in alternative accessible formats. For more information, please contact the Forms Management Unit at (279) 234-2284, TTY 711, in writing at Forms Management Unit, 1120 N Street, MS-89, Sacramento, CA 95814, or by email at [email protected].
BRLKS-5275(024) Ames Construction, Inc. Same as above Mike Boer 4/11/24 VARIOUS Quality Control Testing Services $112,934.00 $ 112,934.00 SEQUOIA CONSULTANTS, INC. 35308 Pri DeSilva, PE
President
04/16/24
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DLA DBE CONFIRMATION
DOT LAPM 9-I (NEW 01/2023)
FEDERAL PROJECT NUMBER
NAME OF DBE BUSINESS
NAME OF DBE REPRESENTATIVE
DBE CERTIFICATION NUMBER
NAME OF BIDDER
NAME OF PRIME CONTRACTOR IF DIFFERENT FROM THE BIDDER
NAME OF REPRESENTATIVE OF PRIME CONTRACTOR
DATE
1 Bid Item Number Item of work and description of services to be subcontracted or materials to be provided Amount ($)
1 If 100% of an item is not to be performed or furnished by the DBE, describe the exact portion of the item to be performed or furnished.
DBE firms can use this form as a written confirmation or use an equivalent form. Written confirmation must be submitted no later than 4 pm on the 5th day of bid opening.
Total
As an authorized representative of a certified disadvantaged business enterprise, I confirm if the bidder is awarded the contract, my business will enter into a contractual agreement with the bidder or prime contractor to perform the type and dollar amount of work shown on the DBE Commitment form.
I certify under penalty of perjury that the foregoing is true and correct.
Signature of DBE's Authorized Representative
Printed Name of DBE's Authorized Representative
Title of DBE's Authorized Representative
Date
ADA Notice This document is available in alternative accessible formats. For more information, please contact the Forms Management Unit at (279) 234-2284, TTY 711, in writing at Forms Management Unit, 1120 N Street, MS-89, Sacramento, CA 95814, or by email at [email protected].
BRLKS-5275(024) Ames Construction, Inc. Same as above Mike Boer 4/11/24 55 Furnish Bearing Pads and Related $13,785.00 $ 75,387.00 WEBSTER ENGINEERING, INC. dba TAILWIND CONSTRUCTION SUPPLY 44316 60 Furnish Joint Seal Assembly $30,610.00 63 Furnish Miscellaneous Metals Bridge $30,992.00 Justyn Webster
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5.21 1,279,738.12
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DLA DBE CONFIRMATION
DOT LAPM 9-I (NEW 01/2023)
FEDERAL PROJECT NUMBER
NAME OF DBE BUSINESS
NAME OF DBE REPRESENTATIVE
DBE CERTIFICATION NUMBER
NAME OF BIDDER
NAME OF PRIME CONTRACTOR IF DIFFERENT FROM THE BIDDER
NAME OF REPRESENTATIVE OF PRIME CONTRACTOR
DATE
1 Bid Item Number Item of work and description of services to be subcontracted or materials to be provided Amount ($)
1 If 100% of an item is not to be performed or furnished by the DBE, describe the exact portion of the item to be performed or furnished.
DBE firms can use this form as a written confirmation or use an equivalent form. Written confirmation must be submitted no later than 4 pm on the 5th day of bid opening.
Total
As an authorized representative of a certified disadvantaged business enterprise, I confirm if the bidder is awarded the contract, my business will enter into a contractual agreement with the bidder or prime contractor to perform the type and dollar amount of work shown on the DBE Commitment form.
I certify under penalty of perjury that the foregoing is true and correct.
Signature of DBE's Authorized Representative
Printed Name of DBE's Authorized Representative
Title of DBE's Authorized Representative
Date
ADA Notice This document is available in alternative accessible formats. For more information, please contact the Forms Management Unit at (279) 234-2284, TTY 711, in writing at Forms Management Unit, 1120 N Street, MS-89, Sacramento, CA 95814, or by email at [email protected].
BRLKS-5275(024) Ames Construction, Inc. Same as above Mike Boer 4/11/24 22-27 Furnish RCP $167,221.16 $167,221.16 YMSC, INC dba PRIME SUPPLY 1 45860
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AMES CONSTRUCTION, INC. RESPONSE
TO ESB EVALUATION
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 860 of 1671 391 N Main St. #302
Corona, California 92880
T 951-356-1275 • F 951-737-7658
An Equal Opportunity Employer
Scottsdale AZ • Corona CA • Aurora CO • Burnsville MN • West Valley City UT • Carlin NV June 21,2024
City of Indio
100 Civic Center Mall
Indio, CA 92201
Attention: Josh Nickerson, PE Engineering Consultant
Subject: Ames Construction Response to Caltrans GFE Evaluation Avenue 44 Bridge Bid date April 11, 2024
Ames has attached our response to the Caltrans Memorandum dated June 13, 2024 “City of Indio Good Faith Effort Evaluation”. We reviewed the City of Indio Memorandum for “Evaluation of Good Faith Efforts” and are in complete agreement of their findings based on Section 9.8 of the Local Assistance Procedures Manual and Appendix A in Part 26 of Title 49 of the Code of Federal Regulations that Ames did demonstrate Good Faith Efforts to meet the DBE participation goal for this project.
Ames provided ample documented opportunities with sufficient solicitation notice to DBE firms to participate in the bidding of this project. Considerations to various scopes of work which could be performed with qualified DBE firms were evaluated that ultimately led to a selection of 12 DBE firms who now have the opportunity to participate and perform work on this project.
Ames has identified additional DBE commitment for a 2nd tier subcontractor to utilize for this project.
Golden West Construction Services for furnish and place CIDH Concrete as a subcontractor to Malcolm Drilling Company for $575,000. Ames inadvertently left this DBE firm off the original commitment form.
However, we did not list them as a rejected DBE firm since we listed and planned on using Malcolm Drilling Company who included Golden West Construction Services to complete the scope of work. This brings the overall commitment to 7.6%.
Ames has questioned that the bids received from Ortiz Enterprises, Ragnor Benson, and MCM may be considered non-responsive because they did not submit by the 5th day after the bid opening the required Exhibit 9-I DBE confirmation signed forms from the DBE firms. This appears to be a requirement per the contract documents Part 9 – Federal Specifications page FS-6 Commitment and Utilization section. This specification clearly states this provision governs over the rest of the contract.
Ames would also like to point out that three of the eight bidders who met the goal may be considered non-responsive and used a combination of three subcontractors who were unreasonably high in price compared to the other bidders (noted by Caltrans ESB memorandum “costs were unreasonable”).
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 861 of 1671 391 N Main St. #302
Corona, California 92880
T 951-356-1275 • F 951-737-7658
An Equal Opportunity Employer
Scottsdale AZ • Corona CA • Aurora CO • Burnsville MN • West Valley City UT • Carlin NV Ames did demonstrate and took all necessary and reasonable steps and available means to obtain sufficient DBE participation as documented on the City Indio form “DBE Information – Good Faith Efforts” that matched the Exhibit H requirements that Caltrans has referenced. Finally, we direct attention to the Local Assistance Procedures Manual, Chapter 9. 9.8 Goof Faith Efforts, “Prime contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable”.
Ames Construction is available and more than willing to meet with Caltrans and / or FHWA personnel to discuss our Good Faith Efforts (GFE), Caltrans evaluation of the GFE, and our response to Caltrans.
Sincerely,
Mike Boer
CA Regional Vice President Engineering – Ames Construction
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 862 of 1671 391 N Main St. #302
Corona, California 92880
T 951-356-1275 • F 951-737-7658
An Equal Opportunity Employer
Scottsdale AZ • Corona CA • Aurora CO • Burnsville MN • West Valley City UT • Carlin NV Ames Construction Response to Caltrans GFE Evaluation
Section A – Caltrans agrees that Ames met the requirements for Outreach Efforts.
Sections B., D., E., F., G., and H. – Caltrans notes that “Ames did not provide a copy of Exhibit 15-H:
Proposer/Contractor Good Faith Efforts Form.” Ames utilized the “DBE Information – Good Faith Efforts” form provided by the City of Indio which were included with the bid forms. See attached file “Exhibit 15- H Ames Construction” that responds to Caltrans questions for these sections and how all the information was provided on the City of Indio form that matches the content of Exhibit H.
B. Documentation of Solicitation Efforts and Follow Up
Ames provided the CUCP Directory that was ran from B2Gnow, each vendor/subcontractor has the CUCP code listed. This can be found in GFE B-28 Section B. Ames included searches from both San Bernardino and Riverside Counties as well as 3 additional counties. Our search resulted in 588 DBE firms as compared to Caltrans search of only 231. See attached document for Work Code List that demonstrates Ames searched 134 codes as compared to Caltrans 27.
In regards to proof of follow up efforts. Ames submitted a log which listed every date an email, fax or phone call were made/sent. Caltrans stated there were no results or responses provided by Ames for 401 DBE firms. The log gives 3 explanations – No bid (vendor notified us that they will not be bidding this project) Yes (they will be bidding this project) and No Response (we received no response via email and fax, nor a response when initiating calls).
Section C – Caltrans agrees that Ames met the requirements for Work Made Available to DBEs.
Section D. Rejected DBEs Response
IMARE total bid package was $106,765 with bond cost and mobilization cost. Techno Coatings and Murphy Industrial combined bids were $57,600. Price difference of $49,165, 85.3% higher total cost.
Only 1 bidder of 8 used IMARE. This dollar amount is both excessive and unreasonable for this work scope. Caltrans ESB did not consider the total work scope as a price comparison.
Cat Tracking work scope was not complete. They did not include the removal and temporary pavement markings that were part of bid item 41 traffic control. To cover this work excluded by Cat Tracking, Ames would need to add $31,895 to the bid comparison. The amount for Ames and Cat Tracking would be $66,340 as compared to Chrisp Company’s bid of $34,455. Price difference of $31,885, 92.5% higher
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Corona, California 92880
T 951-356-1275 • F 951-737-7658
An Equal Opportunity Employer
Scottsdale AZ • Corona CA • Aurora CO • Burnsville MN • West Valley City UT • Carlin NV total cost. Superior Pavement Markings and Cal Stripe were both lower than Cat Tracking’s price of $66,340. Only 2 of 8 bidders used Cat Tracking. This dollar amount is both excessive and unreasonable for this work scope. Caltrans ESB did not consider the total work scope as a price comparison.
Don H Mahaffey Drilling quoted a portion of their typical CIDH scope, the smaller (36” diameter) CIDH work. Ames does not perform the 120” CIDH work scope. No other bids covering only the 120” CIDH scope were received from other subcontractors that would allow any bidder to utilize Don H Mahaffey.
Their price was higher for the 36” CIDH and their bid proposal was incomplete. None of the other (8) bidders used Don H Mahaffey. They all listed Malcolm Drilling or self-performed for the total work scope. Therefore, it is not reasonable to utilize Don H Mahaffey Drilling.
Legacy Rebar total cost including bond cost is $2,580,518 (3% bond rate is $75,161). Integrity Rebar total cost including bond cost is $2,426,116. Price difference of $154,402, 6.3% higher total cost. Pacific Steel Group was also lower than Legacy Rebar. Lowest (3) bidders all listed Integrity Rebar to perform the work. This demonstrates that Legacy Rebar’s price was not reasonable.
Universal Construction and Engineering (UCE) sent their quote to Ames after the bid deadline (see attached correspondence from UCE). Ames repeatedly sent request for bids and followed up with phone calls to their office so Ames can receive their bid in time. Steve Carroll with Ames called Frank Kfer (UCE) twice on bid day to receive their quote. After receiving the UCE price the day after the bid all their work scopes (concrete flatwork and minor drainage structures) were over the California requirements for Subcontracting listing limit (Public Contract Code §4100). Ames could not use them regardless of any price comparison.
Mass X Inc Price was $2,072,480 higher than Ames price to perform the earthwork scope. This dollar amount is both excessive and unreasonable for this work scope. No other bidder listed Mass X further demonstrates that their price was not reasonable.
Section I. of Caltrans Engineering Support Branch (ESB) comments incorrectly states that Riverside Construction Company appears to meet the 22% DBE Goal. Riverside was 6.9%, less than Ames committed amount of 7.6% (5.21% on form). Ortiz Enterprises, Inc. only met the goal by using SRK Engineering for $2,576,008 or 8.9% of their bid and 40% of their DBE participation. The only other bidders (Ragnor Benson and MCM) who met the goal used SRK Engineering. No other bidder met the goal and these other bidders did not use SRK Engineering. Section D. Caltrans ESB clearly states that SRK Engineering costs were unreasonable.
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Corona, California 92880
T 951-356-1275 • F 951-737-7658
An Equal Opportunity Employer
Scottsdale AZ • Corona CA • Aurora CO • Burnsville MN • West Valley City UT • Carlin NV Ortiz Enterprises also added significant costs to get DBE participation for LA Steel, R Dugan Construction, as well as SRK to meet the goal. This amount totals $2,198,118 or 7.6% of their total bid, and 15.3% of their 22.4% DBE commitment.
Scope of Work Ames $ Amount Ortiz Enterprises $ Amount Dollar Difference SRK Waterline 68-85, 87-92 $865,115 $2,576,008 $1,710,893 R Dugan Constr Minor Conc Structures 16-20 $396,559 $642,628 $246,069 Rebar: LA Steel Services vs Integrity $2,411,560 $2,652,716 $241,156 Total $2,198,118
Ortiz commitment without this significant dollar amount added would be 7.1%. This would average the 3 low bids at 6.4% and therefore Ames 7.6% (actual, 5.21% on form) is within a reasonable range of the lowest bidders. If Dees Burke Engineering cost for concrete barrier (deemed unreasonable by Caltrans ESB) is removed from Riverside Construction, their DBE commitment would only be 5.06%, lower than Ames 7.6% (actual, 5.21% on form).
Ames Construction total bid to the City of Indio was 17.6% lower bid than Ortiz and of that amount 7.6% was unreasonable added costs for DBE participation.
Ames accepted DBE participation from 12 subcontractors and material suppliers for different work scopes. The average of all eight bidders was only 9. This is evidence that we negotiated in good faith with DBE firms and demonstrates our quantity and intensity of obtaining DBE participation. Examples of this include:
1. Selecting ABSL over Harber Companies to perform bridge deck grind and grooving for a reasonable additional cost of $3,213, 3.9% difference. Ames is one of four Primes to utilize the higher cost for ABSL.
2. Selecting Sequoia Consultants over RMA Group for Quality Control Testing for a reasonable additional cost of $17,002, 17.7% difference. Ames is one of three Primes to utilize a DBE QC Firm.
3. Selecting BT Trucking over Munyon Trucking for hourly hauling for a reasonable additional cost of $1,580, 3.0% difference. Ames is one of two Primes to utilize DBE trucking.
4. Selecting Maneri Traffic Control for portion of the traffic control scope when Ames could perform this work for less. Ames is the only Prime to utilize DBE Subcontractor for this work scope.
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 865 of 1671 391 N Main St. #302
Corona, California 92880
T 951-356-1275 • F 951-737-7658
An Equal Opportunity Employer
Scottsdale AZ • Corona CA • Aurora CO • Burnsville MN • West Valley City UT • Carlin NV
5. Ames selected DBE for surveying (one of four Primes to do this), selected DBE for sweeping (one of three Primes to do this), and we selected three different DBE material suppliers (one of only two Primes to do this).
Ames negotiations with DBEs to reach contract agreements revolves around providing the opportunity to bid and having discussions regarding work scopes that DBEs can perform. This includes Ames providing traffic control, demolition and replacement of pavements, supplying construction water and handling debris. In fairness to all subcontractors and suppliers bidding to us, we cannot negotiate pricing with DBEs nor do we ask them to reduce their prices. See attached pdf for cost comparisons for ABSL, BT Trucking and Sequoia Consultants.
Summary of the DBE Vendors not used:
1. Universal Construction’s bid was non-responsive because they sent their quote to Ames after the bid due date.
2. SRK Engineering, Dees Burke Engineering, Tailwind Construction Supply (flap gates), and Mass X Inc bids were well beyond excessive in cost and therefore NOT reasonable price proposals.
3. Don H Mahaffey Drilling, Cat Tracking Inc., and IMRAE quotes were not complete bids and also significantly higher price differences on what they did provide bids for.
4. Legacy Reinforcing Steel was significantly higher than Integrity Rebar and the low 3 bidders all listed Integrity Rebar.
Section E. Assistance Given on Plans, Specifications, and Contract Requirements Ames made plans and specifications available through a link in our advertisements and requests for quotes and contact information for our Lead Estimator was provided. We offered assistance with any questions regarding the bid documents. Ames also used Pipeline Suite Software to allow all interested bidders access to all the bidding documents (plans, specifications, addendum, etc.). For all DBEs who are wanting to bid to Ames, we provide them access to the plan room at no cost to them. No additional requests from DBEs were made to Ames. See attached summary report from our Pipeline Suite Software for assistance to DBEs.
Section F. Assistance or Services Offered for Bonding, Lines of Credit, Insurance, Equipment, Supplies, Materials
As of the bid date we had no one requesting our offer of assistance nor inquired about it. Ames policy with DBEs even after bid submittal and during contract negotiation is to pay the bond cost for the DBEs, have flexibility with insurance limits and help cover costs for excess coverage if required for the DBEs, and help negotiate payment terms with DBEs and their suppliers.
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Corona, California 92880
T 951-356-1275 • F 951-737-7658
An Equal Opportunity Employer
Scottsdale AZ • Corona CA • Aurora CO • Burnsville MN • West Valley City UT • Carlin NV Section G. Contacting Recruitment Agencies
All agencies listed in Exhibit “C” were contacted in writing and were provided copies of supporting documents for this bid. Ames is compliant with the requirement of this section.
Section H. Additional Good Faith Efforts
Ames made additional Good Faith Efforts by using our Pipeline Suite software to assist all interested DBEs. Ames sent a detailed Request for Quotes for all the work scopes on this project. Email responses are supplied in Section H. Ames did negotiate in good faith with DBEs to obtain 12 different DBE vendors to contract with Ames on this Project. Second most DBE vendor participation of the responsive bidders.
In conclusion, Ames did demonstrate acceptable good faith efforts through soliciting by indirect and direct methods. The quotes that were rejected were not reasonable costs and/or incomplete work scopes. Ames bid was $4,334,862 lower than the second-place bidder saving the Federal-Aid Funding sources, the City of Indio budget, and the tax payers a significant amount of money. Half (50.7%) of this saving was based on Ames not using excessively over-priced, non-competitive, unreasonable DBE subcontractors. Per the Appendix A to Part 26, “Prime contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable”.
Caltrans ESB stated in their conclusion “Finally, “Another practice considered an insufficient good faith effort is the rejection of the DBE because its quotation for the work was not the lowest received.”” This statement is not in Chapter 9 – 9.8 Good Faith Efforts Document and should be disregarded. This statement leads bidders to believe all DBEs should be selected regardless of price. This contradicts lines 8-11 of paragraph 2 that “Caltrans strongly cautions LPAs against requiring that a bidder meet a DBE contract goal in order to be awarded a contract”.
Ames did demonstrate and took all necessary and reasonable steps and available means to obtain sufficient DBE participation as documented on the City Indio form “DBE Information – Good Faith Efforts” that matched the Exhibit H requirements that Caltrans has referenced.
Sincerely,
Mike Boer
CA Regional Vice President Engineering – Ames Construction
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 867 of 1671 Local Assistance Procedures Manual Exhibit 15-H
Proposer/Contractor Good Faith Effort
May 2020
EXHIBIT 15-H: PROPOSER/CONTRACTOR GOOD FAITH EFFORTS
Cost Proposal Due Date ___________________ PE/CE
Federal-aid Project No(s). _____________________ Bid Opening Date ___________________ CON The (Agency Name) established a Disadvantaged Business Enterprise (DBE) goal of _____% for this contract. The information provided herein shows the required good faith efforts to meet or exceed the DBE contract goal.
Proposers or bidders submit the following information to document their good faith efforts within five (5) calendar days from cost proposal due date or bid opening. Proposers and bidders are recommended to submit the following information even if the Exhibit 10-O1: Consultant Proposal DBE Commitments or Exhibit 15-G: Construction Contract DBE Commitment indicate that the proposer or bidder has met the DBE goal. This form protects the proposer’s or bidder’s eligibility for award of the contract if the administering agency determines that the bidder failed to meet the goal for various reasons, e.g., a DBE firm was not certified at bid opening, or the bidder made a mathematical error.
The following items are listed in the Section entitled “Submission of DBE Commitment” of the Special Provisions, please attach additional sheets as needed:
A. The names and dates of each publication in which a request for DBE participation for this project was placed by the bidder (please attach copies of advertisements or proofs of publication):
Publications Dates of Advertisement
B. The names and dates of written notices sent to certified DBEs soliciting bids for this project and the dates and methods used for following up initial solicitations to determine with certainty whether the DBEs were interested (please attach copies of solicitations, telephone records, fax confirmations, etc.):
Names of DBEs Solicited Date of Initial Solicitation Follow Up Methods and Dates
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 868 of 1671 Local Assistance Procedures Manual Exhibit 15-H
Proposer/Contractor Good Faith Effort
May 2020
C. The items of work made available to DBE firms including those unbundled contract work items into economically feasible units to facilitate DBE participation. It is the bidder's responsibility to demonstrate that sufficient work to facilitate DBE participation in order to meet or exceed the DBE contract goal.
0.00%
0.00%
0.00%
0.00%
D. The names, addresses and phone numbers of rejected DBE firms, the reasons for the bidder's rejection of the DBEs, the firms selected for that work (please attach copies of quotes from the firms involved), and the price difference for each DBE if the selected firm is not a DBE:
Names, addresses and phone numbers of rejected DBEs and the reasons for the bidder's rejection of the DBEs:
Names, addresses and phone numbers of firms selected for the work above:
E. Efforts (e.g. in advertisements and solicitations) made to assist interested DBEs in obtaining information related to the plans, specifications and requirements for the work which was provided to DBEs:
Items of
Work
Proposer or Bidder
Normally Performs Item
(Y/N)
Breakdown of
Items
Amount
($)
Percentage
Of
Contract
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 869 of 1671 Local Assistance Procedures Manual Exhibit 15-H
Proposer/Contractor Good Faith Effort
May 2020
F. Efforts (e.g. in advertisements and solicitations) made to assist interested DBEs in obtaining bonding, lines of credit or insurance, necessary equipment, supplies, materials, or related assistance or services, excluding supplies and equipment the DBE subcontractor purchases or leases from the prime contractor or its affiliate:
G. The names of agencies, organizations or groups contacted to provide assistance in contacting, recruiting and using DBE firms (please attach copies of requests to agencies and any responses received, i.e., lists, Internet page download, etc.):
Name of Agency/Organization Method/Date of Contact Results H. Any additional data to support a demonstration of good faith efforts:
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 870 of 1671
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 871 of 1671
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 872 of 1671
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 873 of 1671 C0620
LANDSCAPING & NURSERY
SUPPLIER
C0621
LANDSCAPING MATERIALS
SUPPLIER
C0651
CONCRETE & CEMENT
SUPPLIER(BULK ITEM)
C0657 LUMBER SUPPLIER
C0670 PIPE SUPPLIER
C0680 FENCING SUPPLIER
C0683
GUARD RAILING & BARRIERS
SUPPLIER
C0685 PAVEMENT MARKERS SUPPLIER
C0686
ELECTRICAL & SIGNALS SUPPLIER
C0700
CONSTRUCTION STAKING SUPPLIER
C0800
TRAFFIC STRIPES, MARKING AND
TRAFFIC CONTROL MATERIALS
SUPPLIER
C1200 CONSTRUCTION AREA SIGNS C1200 CONSTRUCTION AREA SIGNS C1201 TRAFFIC CONTROL SYSTEM C1201 TRAFFIC CONTROL SYSTEM C1290 TEMPORARY RAILING (TYPE K)
C1531 PLANE ASPHALT CONCRETE C1531 PLANE ASPHALT CONCRETE C1575 REMOVE BRIDGE ITEM
C1580 MODIFY BRIDGE ITEM
C1601 CLEARING & GRUBBING
C1701 DEVELOP WATER SUPPLY C1701 DEVELOP WATER SUPPLY
C1801 DUST PALLIATIVE
C1901 ROADWAY EXCAVATION C1901 ROADWAY EXCAVATION
C1910 GRADING C1910 GRADING
C1920 STRUCTURE EXCAVATION C1920 STRUCTURE EXCAVATION
C1930 STRUCTURE BACKFILL
C1940 DITCHES EXCAVATION
C1970 EMBANKMENT CONSTRUCTION
C1980 IMPORTED BORROW C1980 IMPORTED BORROW
C2000 HIGHWAY PLANTING
C2001 ROCK BLANKET
C2020 SOIL AMENDMENTS
C2021 HYDROSEEDING C2021 HYDROSEEDING
C2030 EROSION CONTROL
C2065
IRRIGATION SYSTEM
C2066 TEMPORARY EROSION CONTROL C2066 TEMPORARY EROSION CONTROL C2501 AGGREGATE SUB BASE (AS)
C2602 AGGREGATE BASE (AB) C2602 AGGREGATE BASE (AB)
C2700 CEMENT TREATED BASE
C2800 CONCRETE BASE
C3701 SEAL COAT
AMES WORK CODE SEARCH ESB WORK CODE SEARCH
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 874 of 1671 C3901 ASPHALT CONCRETE
C3910
PAVING ASPHALT (ASPHALT
CONCRETE)
C3930
PAVEMENT REINFORCING FABRIC
C3940
PLACE ASPHALT CONCRETE DIKE &
MISC
C3990
RECYCLE, RECLAIM ASPHALT
CONCRETE PAVEMENT
C4010
PORTLAND CEMENT & CONCRETE
PAVEMENT
C4040
CLEAN & SEAL PAVEMENT JOINTS –
ROUT & SEAL CRACKS
C4901 FURNISH & DRIVE PILING
C4905 SOIL STABILIZATION
C4906
CAST-IN-DRILLED-HOLE CONCRETE
PILING C4906
CAST-IN-DRILLED-HOLE
CONCRETE PILING
C5100 CONCRETE STRUCTURE C5100 CONCRETE STRUCTURE
C5105 MINOR CONCRETE STRUCTURE C5105 MINOR CONCRETE STRUCTURE C5110 CONCRETE SURFACE FINISH
C5111
CONCRETE OVERLAY – DRILL &
BOND
C5135 MASONRY BLOCK SOUND WALL
C5201 REINFORCING STEEL C5201 REINFORCING STEEL
C5501 STEEL STRUCTURES
C5570 STEEL CRIB WALL
C5601 SIGN STRUCTURE
C5620 ROADSIDE SIGN
C6200 ALTERNATIVE PIPE CULVERT
C6500 REINFORCED CONCRETE PIPE
C6650
CORRUGATED METAL PIPE (CMP)
C6800 SUBSURFACE DRAIN
C6811 EDGE DRAIN
C6815 HORIZONTAL DRAIN
C6819 FILTER FABRIC
C6820 PERMEABLE MATERIAL
C7006
CORRUGATED STEEL PIPE INLET &
RISER
C7035 WELDED STEEL PIPE C7035 WELDED STEEL PIPE
C7065 DEBRIS RACK-DRAINAGE GATE
C7112
REINFORCED CONCRETE SEWER
PIPE C7112
REINFORCED CONCRETE SEWER
PIPE
C7200
ROCK SLOPE PROTECTION (RSP)
C7215
CONCRETED-ROCK SLOPE
PROTECTION
C7218
AIR-BLOWN MORTAR (SLOPE
PAVING) C7218
AIR-BLOWN MORTAR (SLOPE
PAVING)
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 875 of 1671 C7301
CONCRETE CURB & SIDEWALKMISC C7301CONCRETE CURB & SIDEWALKMISC C7500
MISC IRON & STEEL FRAME, COVER
& GRATE
C7602 SAW CUTTING
C8000 FENCING C8000 FENCING
C8201 OBJECT MARKER
C8320 METAL BEAM GUARD RAILING
C8331
CONCRETE BARRIER (PERMANENT)
(all concrete barrier types)
C8391
METAL BEAM BARRIER
C8396 CRASH CUSHION
C8405
THERMOPLASTIC TRAFFIC
STRIPING & MARKING C8405
THERMOPLASTIC TRAFFIC
STRIPING & MARKING
C8406
PAINTED TRAFFIC STRIPING &
MARKING
C8406
PAINTED TRAFFIC STRIPING &
MARKING
C8407
REMOVE PAVEMENT MARKING &
TRAFFIC STRIPES
C8501 PAVEMENT MARKER C8501 PAVEMENT MARKER
C8601
MAINTAINING EXISTING TRAFFIC
MANAGEMENT SYSTEM ELEMENTS
DURING CONSTRUCTION
C8602 SIGNAL & LIGHTING C8602 SIGNAL & LIGHTING
C8605
MESSAGE SIGNS, LIGHTING & SIGN
ILLUMINATION
C8608 DETECTOR
C8609
TRAFFIC COUNT STATION
C8611 RAMP METERING SYSTEM
C8701 BUSINESS ADMINISTRATION
C8702
MANAGEMENT INFORMATION
SYSTEMS
C8707 FEASIBILITY STUDIES
C8710 ENGINEERING
C8713 CONSULTANT, ENVIRONMENTAL
C8730 SAFETY STUDIES
C8731
BUILDING INSPECTION SERVICES
C8733
CONSTRUCTION ENGINEERING &
INSPECTION SERVICES
C8744 LANDSCAPE ARCHITECTS
C8760 LAND SURVEYOR
C8770 CONSTRUCTION MANAGEMENT
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 876 of 1671 C8773
CONSTRUCTION MANAGEMENT –
HIGHWAY, STREET, AND BRIDGE
CONSTRUCTION
C8779
CONSTRUCTION RELATED - NOT
LICENSED IN CALIFORNIA
C8780 ENGINEERING- GEOTECHNICAL
C8781 ENGINEERING- HYDROLOGY
C8790
ENVIRONMENTAL –
ACOUSTIC/NOISE STUDIES
C8791 ENVIRONMENTAL – AR QUALITY
C8792
ENVIRONMENTAL – BIOLOGICAL
STUDIES
C8793
ENVIRONMENTAL –
ENVIRONMENTAL IMPACT STUDIES
C8795
ENVIRONMENTAL – REGULATORY
C8800
CONSTRUCTION ESTIMATING &
COSTING
C8801
CONSTRUCTION PROJECT AND
DOCUMENT CONTROL
C8836 GEOLOGIST
C8851 LEAD COMPLIANCE
C8852 SWPPP PLANNING C8852 SWPPP PLANNING
C8853
BIOLOGICAL RESOURCES STUDIES
C9602 BOTTOM DUMP TRUCK
C9604 SUPER 10 DUMP TRUCK
C9605 FLAT BED TRUCKING
C9606 WATER TRUCK
C9607 END DUMP TRUCK
C9609 STREET SWEEPING TRUCK C9609 STREET SWEEPING TRUCK C9632
HAZARDOUS SUBSTANCE REMOVAL
C9670 TRUCK RENTAL
C9774 TRUCKER
C9801 BUILDING CONSTRUCTION
C9826 LAND SURVEYING
C9829 RETAINER WALLS
C9905
CUTTING CONCRETE or
EXCAVATION
C9907
CONSTRUCTION EQUIPMENT
RENTAL
C9908 HEAVY EQUIPMENT RENTAL
C9980 DEMOLITION
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 877 of 1671 1 Mike Boer
From: Steve Carroll
Sent: Monday, June 17, 2024 7:27 AM
To: Mike Boer
Subject: FW: [EXTERNAL] City of Indio - Avenue 44 Bridge Attachments: City of Indio - Ave 44 Bridge Proposal.pdf Here is the email I received from them at 10:42 am the day after the bid.
On Bid day I recall calling Frank Kfer (760-404-8538) sometime in the late morning asking if they were providing a price and was told they we’re bidding and would send over their quote.
I recall calling him again closer to bid close and he never answered, I then called him the next morning and he said someone would send it over that morning.
Steve Carroll [x1283]
Estimator
[email protected]
Southwest Office
Phone: 951-833-8969
391 N Main Street, Suite 302
Corona CA 92880 AmesConstruction.com
Instilling True Confidence. Delivering Success.
The information transmitted is intended only for the person or entity to which it is addressed and may contain proprietary, business-confidential and/or privileged material. If you are not the intended recipient of this message you are hereby notified that any use, review, retransmission, dissemination, publication, distribution, reproduction or any action taken in reliance upon this message is prohibited. If you received this in error, please contact the sender and delete the material.
Any views expressed in this message are those of the individual sender and may not necessarily reflect the views of the company.
From: Joanna Montes <[email protected]> Sent: Friday, April 12, 2024 10:42 AM
To: Steve Carroll <[email protected]>
Subject: [EXTERNAL] City of Indio - Avenue 44 Bridge
CAUTION: This email originated from outside of Ames Construction. DO NOT click links or open attachments unless you recognize and/or trust the sender. Contact Ames IT with questions or concerns.
2 Hello,
Please see attached estimate for project listed above. I apologize for not sending this earlier. Please let me know if you have any questions or concerns.
Thank you,
Joanna Montes
Universal Construction and Engineering
77725 Enfield Ln. Suite 210
Palm Desert, Ca 92211
Cell: 760-397-5406
Office: 760-200-3100
Fax: 760-200-3124
Summary of DBE Firms Selected – Some Additional
Reasonable Costs
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 880 of 1671 Pipeline Suite Vendor Solicitation Additional DBEs
Division Company Contact Phone Email City State Date Sent Email Status Y/N Vendors: Concrete - Flatwork Sub A's Construction Andrew 714-656-7421 [email protected] Santa Ana CA 3/8/2024 11:33 Delivered Unc Vendors: Asphalt - Milling Sub ABSL Construction Doug Southard 5599362102 [email protected] Hayward CA 3/8/2024 11:33 Delivered Unc Vendors: PCC Pavement - Grinding ABSL Construction Doug Southard 5599362102 [email protected] Hayward CA 3/8/2024 11:33 Delivered Unc Vendors: Fence Sub Ace Fence Michael Abanilla 626-333-0727 [email protected] La Puente CA 3/8/2024 11:33 Delivered Unc Vendors: Guardrail Sub Ace Fence Michael Abanilla 626-333-0727 [email protected] La Puente CA 3/8/2024 11:33 Delivered Unc Vendors: Bridge Joint Seal Austin Enterprises Debbie Lonon 6615891001 [email protected] Bakersfield CA 3/8/2024 11:33 Clicked Yes Vendors: Bridge Joint Seal Baryeh Construction Inc. Kofi Baryeh 7143519236 [email protected] Yorba Linda CA 3/8/2024 11:33 Opened No Vendors: Utility - Relocation Bert W Salas Bob Salaz 6195627711 [email protected] Santee CA 3/8/2024 11:33 Delivered Unc Vendors: Electrical Sub California Professional Engineering DIANA ROSE 6268101338 [email protected] La Puente CA 3/8/2024 11:33 Clicked Yes Vendors: Pavement Marking CAT Tracking Inc. Arthur Garratt 951-682-1494 [email protected] Riverside CA 3/8/2024 11:33 Opened Unc Vendors: Signs CAT Tracking Inc. Arthur Garratt 951-682-1494 [email protected] Riverside CA 3/8/2024 11:33 Opened Unc Vendors: Signs - Small CAT Tracking Inc. Arthur Garratt 951-682-1494 [email protected] Riverside CA 3/8/2024 11:33 Opened Unc Vendors: Trucking Contera Construction Corporation Eric Scheafer 9516952800 [email protected] Temecula CA 3/8/2024 11:33 Opened Unc Vendors: Concrete Barrier Cooper Engineering Mitchell Cooper 9517366135 [email protected] Corona CA 3/8/2024 11:33 Clicked Unc Vendors: Electrical Sub DB Electric, Inc Brad [email protected] Eastvale CA 3/8/2024 11:33 Opened Unc Vendors: Concrete Barrier Dees Burke Engineering Todd Wingo 9168383692 [email protected] Pasadena CA 3/8/2024 11:33 Opened Unc Vendors: Concrete - Flatwork Sub Desert Elite Electric & Construction Eddie Jimenez 7605651804 [email protected] Palm Desert CA 3/8/2024 11:33 Dropped Unc Vendors: Ground Improvements - CIDH Piling Don H Mahaffey Drilling Co 310-668-2030 [email protected] Compton CA 3/8/2024 11:33 Opened Yes Vendors: Signs - Small Full Traffic Maintenance, Inc. Sammy Salgado 9515209990 [email protected] Corona CA 3/8/2024 11:33 Delivered Unc Vendors: Traffic Control Full Traffic Maintenance, Inc. Sammy Salgado 9515209990 [email protected] Corona CA 3/8/2024 11:33 Delivered Unc Vendors: Traffic Control - Equipment Full Traffic Maintenance, Inc. Sammy Salgado 9515209990 [email protected] Corona CA 3/8/2024 11:33 Delivered Unc Vendors: Electrical Sub High-Light Electric Inc Erwin Mendoza 9513529646 [email protected] Riverside CA 3/8/2024 11:33 Delivered Unc Vendors: Erosion Control Sub Hydrosprout, Inc Dean Sanchez 7604328233 [email protected] Escondido CA 3/8/2024 11:33 Opened Unc Vendors: Asphalt - Primecoat Sub IMRAE COATING Jose Chinchay 9514130240 [email protected] Murriea CA 3/8/2024 11:33 Opened Unc Vendors: Fence Sub In-Line Construction, Inc. David Ortiz 7607890282 [email protected] Ramona CA 3/8/2024 11:33 Delivered Yes Vendors: Guardrail Sub In-Line Construction, Inc. David Ortiz 7607890282 [email protected] Ramona CA 3/8/2024 11:33 Delivered Yes Vendors: Sweeping Kitty's Sweeping, Inc. Estimating 9097211797 [email protected] Yucaipa CA 3/8/2024 11:33 Opened Unc Vendors: Rebar LA Steel Services, Inc. Richard Rabay 9513932013 [email protected] Corona CA 3/8/2024 11:33 Opened Unc Vendors: Asphalt - Milling Sub Lindy's Cold Planing (Cindy Trump Inc.) BRIANNA TRUMP 5626872286 [email protected] La Habra CA 3/8/2024 11:33 Delivered Unc Vendors: Sweeping Lindy's Cold Planing (Cindy Trump Inc.) BRIANNA TRUMP 5626872286 [email protected] La Habra CA 3/8/2024 11:33 Delivered Unc Vendors: Electrical Sub Los Angeles Signal Constr Inc Morales Chris 9095992201 San Dimas CA 3/8/2024 11:33 Delivered Unc Vendors: Guardrail Sub Maneri Traffic Control Bianca Lopez 951-695-5104 [email protected] Fallbrook CA 3/8/2024 11:33 Opened Yes Vendors: Signs - Small Maneri Traffic Control Bianca Lopez 951-695-5104 [email protected] Fallbrook CA 3/8/2024 11:33 Opened Yes Vendors: Traffic Control Maneri Traffic Control Bianca Lopez 951-695-5104 [email protected] Fallbrook CA 3/8/2024 11:33 Opened Yes Vendors: Rebar Marvella Steel Placers Michael Galvan 5628323529 [email protected] Bellflower CA 3/8/2024 11:33 Delivered Yes Vendors: Trucking Monzon & Son Lizzette Garcia 3236228984 [email protected] Lynwood CA 3/8/2024 11:33 Clicked Unc Vendors: Erosion Control Sub Quality Hydroseeding & Restoration Cynthia Poundstone [email protected] Ramona CA 3/8/2024 11:33 Opened Unc Vendors: Traffic Control Quality Traffic Control Jose Segura 9092765582 qualitytrafficcontrol.com Fontana CA 3/8/2024 11:33 Opened Unc Vendors: Traffic Control - Equipment Quality Traffic Control Jose Segura 9092765582 qualitytrafficcontrol.com Fontana CA 3/8/2024 11:33 Opened Unc Vendors: Concrete - Flatwork Sub Raymond Lee HAYES,JR. Construction Raymond Hayes 5625434970 [email protected] Long Beach CA 3/8/2024 11:33 Delivered Unc Vendors: Bridge - Bearing Supply Rupert Construction Supply Karen Wonnenberg 9252295577 [email protected] El Dorado Hills CA 3/8/2024 11:33 Delivered Yes Vendors: Concrete - Form Rustification Supply Rupert Construction Supply Karen Wonnenberg 9252295577 [email protected] El Dorado Hills CA 3/8/2024 11:33 Delivered Yes Vendors: Quality Control Sequoia Consultants Joel Tirney 7149746316 [email protected] Orange CA 3/8/2024 11:33 Clicked Yes Vendors: Traffic Control So. Cal Traffic, Inc. Cecilia Ostlund 8587200179 [email protected] Vista CA 3/8/2024 11:33 Opened Unc Vendors: Traffic Control - Equipment So. Cal Traffic, Inc. Cecilia Ostlund 8587200179 [email protected] Vista CA 3/8/2024 11:33 Opened Unc Vendors: Utility - Relocation SRK Engineering Jeremy Kirkpatrick 7602944012 [email protected] Escondido CA 3/8/2024 11:33 Delivered Yes Vendors: Erosion Control Supply Triumph Geo-Synthetics, Inc. Mychal Perez 888-775-7545 [email protected] Anaheim CA 3/8/2024 11:33 Delivered Unc Vendors: Geotextiles Supply Triumph Geo-Synthetics, Inc. Mychal Perez 888-775-7545 [email protected] Anaheim CA 3/8/2024 11:33 Delivered Unc Vendors: Concrete - Flatwork Sub Universal Construction and Engineering Frank Kifer 760-404-8538 [email protected] Indio CA 3/8/2024 11:33 Delivered Unc Vendors: Electrical Sub VT Electric Inc. Tony Tran 9099851755 [email protected] Ontario CA 3/8/2024 11:33 Delivered Unc
ATTACHMENT 4
STAFF GOOD FAITH EFFORT
RE-EVALUATION
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 882 of 1671
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 883 of 1671
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 884 of 1671 1 Josh Nickerson
From: Sy, Quyen@DOT <[email protected]>
Sent: Monday, July 1, 2024 3:10 PM
To: Josh Nickerson; Vergel De Dios, Alberto C@DOT
Cc: Timothy Wassil; Juan Raya; Garcia, Jesus@DOT; Moreno-Castaneda, Eduardo@DOT; Content-Watkins, Bryna@DOT; Mirzayi, Rose@DOT; Liao, Anthony@DOT Subject: RE: Reevaluation Request for DBE Good Faith Effort Determination – Avenue 44 Bridge, Federal Project No. BRLKS-5275(024)
WARNING: External email. Please verify sender before opening attachments or clicking on links.
Hi Josh,
As an independent reviewer per the City request, I perform a holisƟc review of the submiƩed documents:
bidders’ good faith efforts, the City’s evaluaƟon, the ESB evaluaƟon, and the contractor’s response.
I find that the Low Bidder Ames did not demonstrate Good Faith Efforts to meet the DBE contract 22% goal for the reasons cited below:
-Lowest price not sufficient reason to reject DBE (most primes do not award on low bid alone) -When another bidder uses a DBE quote that the low bidder rejected, the price is probably not “unreasonable”.
-Ames promises to obtain addiƟonal DBE parƟcipaƟon aŌer Ɵme of bid or 5 days aŌer bid opening (extensions are not permiƩed). That raises the quesƟons of whether, with addiƟonal efforts, the apparent low bidder could have met the contract goal.
-Ames did not provide evidence that they negoƟated in good faith with the interested DBE firms. -Ames self-performing work that could be subcontracted to DBEs.
Quyen Sy, P.E.
District Local Assistance Specialist (DLAS)
District 8, Planning/Local Assistance
Phone: (909) 925-7525
From: Josh Nickerson <[email protected]>
Sent: Thursday, June 27, 2024 7:37 AM
To: Vergel De Dios, Alberto C@DOT <[email protected]>; Sy, Quyen@DOT <[email protected]> Cc: External, twassil <[email protected]>; Juan Raya <[email protected]>; Garcia, Jesus@DOT <[email protected]>; Moreno-Castaneda, Eduardo@DOT <[email protected]>; Content-Watkins, Bryna@DOT <Bryna.Content[email protected]>; Mirzayi, Rose@DOT <[email protected]>; Liao, Anthony@DOT
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 885 of 1671 2 <[email protected]>; Josh Nickerson <[email protected]> Subject: Reevaluation Request for DBE Good Faith Effort Determination – Avenue 44 Bridge, Federal Project No. BRLKS5275(024) Importance: High
EXTERNAL EMAIL. Links/attachments may not be safe.
Hi Alberto,
On April 11, 2024, the City of Indio received and opened 8 bids for the Avenue 44 Bridge Project, BRLKS5275(024). The apparent low bidder was Ames Construction, however, in receiving their DBE Documentation within the prescribed timeframe, Ames did not meet the DBE Goal of 22%, but did provide their Good Faith Efforts documentation. The results of the top three bidders is outlined below:
1. Ames Construction - $24,559,527 – DBE Commitment = 5.21%
2. Ortiz Enterprises - $28,897,389.80 – DBE Commitment = 22.4%
3. Riverside Construction Company - $28,979,998.00 – DBE Commitment = 6.9% In accordance with the LAPM Chapter 9 procedures, the City performed a review the Contractor’s Good Faith Efforts and found them to be adequate. On April 19, 2024, the City of Indio provided the Ames Good Faith Efforts Evaluation to Caltrans for review. On June 13, 2024, the Office of Civil Rights Engineering Support Branch (ESB) provided an independent review of the Ames Good Faith Efforts and did not concur with the City’s review. ESB determined that the Contractor did not demonstrate adequate good faith efforts.
This review was provided to Ames and on June 21, 2024, the City received a response from Ames providing additional documentation and information regarding the ESB determination. The Contractor’s response notes several deficiencies in the ESB review including lack of documentation that was indeed provided, and further details on the reason for rejection of the DBE bidders.
As an independent reviewer, the City requests Caltrans District 8 staff review the bidders’ good faith efforts, the City’s evaluation, the ESB evaluation, and the contractor’s response to determine if Ames provided adequate good faith efforts documentation. A copy of all the documents referenced above are located in the following shared folder organized under the same dates listed:
https://naiconsulting.sharefile.com/public/share/web-s338e43e209a846dd9a0316797e7afff6.
This link will expire in 6 months.
Inclusive of the following documents:
GFE files for:
o AMES
o Ortiz
o Riverside
City Evaluation
Caltrans Evaluation
Ames Response
Please review the files and make sure you can access them and let us know if you believe anything is missing as referenced above. In an effort to keep the bids from expiring, we’d like to have your final independent evaluation by July 8, 2024.
Thanks,
Josh Nickerson, PE
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 886 of 1671 3 Engineering Consultant
City of Indio
P: (760) 861-2727
E1: [email protected]
E2: [email protected]
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 887 of 1671 ATTACHMENT 5
AMES CONSTRUCTION, INC.
RESPONSE TO RE-VALUATION
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 888 of 1671 391 N Main St. #302
Corona, California 92880
T 951-356-1275 • F 951-737-7658
An Equal Opportunity Employer
Scottsdale AZ • Corona CA • Aurora CO • Burnsville MN • West Valley City UT • Carlin NV July 3,2024
City of Indio
100 Civic Center Mall
Indio, CA 92201
Attention: Timothy T. Wassil, PE
Subject: Ames Construction Response to City of Indio GFE Re-Evaluation Avenue 44 Bridge Bid date April 11, 2024
Ames Construction (Ames) has supplied ample information regarding our process of evaluating, validating, and soliciting DBE inclusion and participation for the Avenue 44 Bridge project which was bid on April 11, 2024. During this entire review process of the Good Faith Efforts (GFE) provided, Ames acknowledges the City of Indio’s initial efforts in recognizing and approving the GFE. Unfortunately, our efforts are being analyzed, outside of the City’s control, as a means to discredit the efforts of not selecting unreasonable cost variances, incomplete scope, and non-recognition of unresponsive DBE bid submission at bid time. It appears that the goal percentage based on value, take precedence regardless of the number of actual DBE participants, which allows for more DBE firm to participate in contracts.
Ames provided 12 such opportunities which is much greater than the average number utilized by the proposed bidders.
Ames does take exception to the latest Memorandum dated July 2, 2024, that the Low Bidder is found to be non-responsive to the contract requirements. If this were the case, there are other inconsistencies which would deem other bidders to be found non-responsive, due to their lack of submission of the required Exhibit 9-I DBE confirmation forms from DBE firms, which were due by the 5th day after the bid opening.
Ames would suggest that the City of Indio consider the rejection of all bids and rebid this project due to the inconsistent re-evaluation which included several mistakes and conflicting information in the Caltrans first memorandum. The analysis was further exacerbated by a lack of interpretation and by their own admission, DBE’s who should not have been considered based on unreasonable pricing and should have been discredited, along with inconsistencies regarding pricing negotiations, and finally recognized efforts in DBE solicitation and responsiveness. The re-evaluation seems to have taken a general clause stance as opposed to a discrete understanding of Appendix A Part 26. Application of inconsistencies regarding the requirements should apply to all bidders.
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 889 of 1671 391 N Main St. #302
Corona, California 92880
T 951-356-1275 • F 951-737-7658
An Equal Opportunity Employer
Scottsdale AZ • Corona CA • Aurora CO • Burnsville MN • West Valley City UT • Carlin NV Ames understands the City of Indio has made concerted efforts to recognize our GFE efforts that we have provided and appreciate the acknowledgement. Based on Caltrans review and re-evaluation which did not consider valid responses, it would appear that a reconsideration hearing would not benefit the City or Ames at this point.
Sincerely,
Mike Boer
CA Regional Vice President Engineering – Ames Construction
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 890 of 1671 ATTACHMENT 6
AMES CONSTRUCTION, INC.
BID PROTEST CORRESPONDENCE
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 891 of 1671
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 892 of 1671 1 Joshua Nickerson
From: Jeff Ortiz <[email protected]>
Sent: Friday, June 21, 2024 8:23 AM
To: Joshua Nickerson; Jared Ramsey; Patrick Ortiz
Cc: Juan Raya <[email protected]>; Donn Uyeno; Tim Wassil Subject: RE: BR1101 - Ortiz DBE Listing
Attachments: BR1101 - Ortiz - DBE Commitment.pdf
Josh,
Per the bid proposal downloaded on PlanetBids, Ortiz filled out the attached page B-26, DBE commitment form 15-G.
Above the signature line on form 15-G is this statement:
“IMPORTANT: Identify all DBE firms being claimed for credit, regardless of tier. Names of the First Tier DBE Subcontractors and their respective item(s) of work listed above must be consistent, where applicable with the names and items of the work in the "Subcontractor List" submitted with your bid. Written confirmation of each listed DBE is required.”
Per the project specifications below on page IB-8 and IB-9, Ortiz provided each DBE subcontractor’s quote as written confirmation.
Please let me know if you need anything else.
Sincerely,
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 893 of 1671 1 Josh Nickerson
From: Sy, Quyen@DOT <[email protected]>
Sent: Friday, June 28, 2024 10:08 AM
To: Josh Nickerson
Cc: Moreno-Castaneda, Eduardo@DOT; Vergel De Dios, Alberto C@DOT Subject: RE: Reevaluation Request for DBE Good Faith Effort Determination – Avenue 44 Bridge, Federal Project No. BRLKS-5275(024)
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Thank you, Josh,
Agree, DBE quotes serve as confirmation.
From: Josh Nickerson <[email protected]>
Sent: Friday, June 28, 2024 9:43 AM
To: Sy, Quyen@DOT <[email protected]>
Cc: External, twassil <[email protected]>; Josh Nickerson <[email protected]> Subject: Re: Reevaluation Request for DBE Good Faith Effort Determination – Avenue 44 Bridge, Federal Project No.
BRLKS-5275(024)
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Hi Quyen,
1. Regarding the 9-I's: Ames, Granite, and Riverside Construction submitted the 9-I forms. Ortiz, Griffith, MCM, and Ragnar Benson did submit the DBE quotes as confirmation. Rados didn't submit anything, so they are non-responsive. Ames submitted an informal bid protest asking the City to find those companies who didn't submit the 9-I form as non-responsive. Ortiz submitted a reply stating the quote is an equivalent document, see attached for both emails.
2. Regarding the Utility Agreement, yes, it specifies that the City will be doing the work, but the utility would pay for it, see attached. This agreement needs to be amended to reflect the actual cost of the work per the bid, but this is pending the decision on which bidder was the lowest responsive bidder.
Let me know if you have any other questions.
Thanks!
Josh Nickerson, PE
NAI Consulting
68955 Adelina Rd, Cathedral City, CA 92234
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 894 of 1671 ATTACHMENT 7
CONTRACT WITH ORTIZ
ENTERPRISES, INC.
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 895 of 1671 C-2
City Project: BR1101 City of Indio Public Works
Federal Project No.: BRLKS-5275(024)
CONTRACT
CITY OF INDIO CONTRACT FOR
AVENUE 44 BRIDGE AT THE COACHELLA VALLEY STORM WATER
CHANNEL [the “Project”]
Federal Project Number: BRLKS-5275(024) City Project Number: BR1101 THIS CONTRACT (“Contract”) is made and entered this 17th Day of July , 2024 (“Effective Date”), by and between the CITY OF INDIO, a California municipal corporation (“City”) and Ortiz Enterprises, Inc., a California Corporation (“Contractor”). Contractor’s California State Contractor’s license number is 467088; Class A). Contractor’s DIR registration number is 1000003766.
In consideration of the mutual covenants hereinafter set forth, the parties hereto agree as follows:
1. Contract Documents. The Contract Documents consist of this Contract, the Notice Inviting Bids, Instructions to Bidders, Bid (including documentation accompanying the Bid and any postBid documentation submitted before the Notice of Award), the Bonds, permits from regulatory agencies with jurisdiction, General Provisions, Special Provisions, Plans, Standard Plans, Standard Specifications, Reference Specifications, Addenda, Change Orders, and Supplemental Agreements. The Contract Documents are attached hereto and incorporated herein by reference.
2. Scope of Services. Contractor shall perform the Work in a good and workmanlike manner for the project identified as Avenue 44 Bridge at the Coachella Valley Storm Water Channel (“Project”), as described in this Contract and in the Contract Documents.
3. Compensation. In consideration of the services rendered hereunder, City shall pay Contractor a not to exceed amount of Twenty-Eight Million, Eight Hundred Ninety-Four Thousand, Three Hundred Eighty-Nine dollars and Eighty cents ($28,894,389.80) in accordance with the prices as submitted in the Bid.
4. Incorporation by Reference. All of the following documents are attached hereto and incorporated herein by this reference: Workers’ Compensation Certificate of Insurance, Additional Insured Endorsement (Comprehensive General Liability), Additional Insured Endorsement (Automobile Liability), and Additional Insured Endorsement (Excess Liability).
5. Antitrust Claims. In entering into this Contract, Contractor offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. § 15) or under the Cartwright Act (Business and Professions Code Section 16700 et seq.) arising from purchases of goods, services, or materials pursuant to the Contract. This assignment shall be made and become effective at the time City tenders final payment to Contractor without further acknowledgment by the parties.
6. Prevailing Wages. City and Contractor acknowledge that the Project is a public work to which prevailing wages apply. Contractor and all subcontractors pursuant to this agreement shall comply with the Davis-Bacon Fair Labor Standards Act, 23 USC 113. Contractor agrees to not pay less than the higher wage rate between the minimum wage rates determined by the Director of California Department of Industrial Relations and the Federal Wage General Decision, Number 4, attached hereto in Exhibit “A” and incorporated herein by this reference.
7. Workers’ Compensation. Labor Code Sections 1860 and 3700 provide that every contractor will be required to secure the payment of compensation to its employees. In
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 896 of 1671 C-3
City Project: BR1101 City of Indio Public Works
Federal Project No.: BRLKS-5275(024)
accordance with the provisions of Labor Code Section 1861, by signing this Contract, the Contractor certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the Work of this Contract.”
8. Titles. The titles used in this Contract are for convenience only and shall in no way define, limit or describe the scope or intent of this Contract or any part of it.
9. Required Contract Provisions for Federal Aid Construction Contracts (FHWA-1273).
This Contract is funded with Federal-Aid Highway funds subject to provisions under Title 23 of the United State Code (23 USC). As such the Contractor agrees to the following provisions titled, "Required Contract Provisions for Federal Aid Construction Contracts", excluding Attachment A - Employment and Material Preference for Appalachian Development Highway System or Appalachian Local Access Road Contracts. The Contractor agrees to insert these provisions, unaltered, into each subcontract and further require their inclusion in all lower tier subcontracts excluding purchase orders, rental agreements, and other agreements for supplies or services.
Complete form 1273 is attached hereto as Exhibit “A” and incorporated herein by this reference.
10. Authority. Any person executing this Contract on behalf of Contractor warrants and represents that he or she has the authority to execute this Contract on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations hereunder.
11. Entire Agreement. This Contract, including the Contract Documents and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between City and Contractor. This Contract supersedes all prior oral or written negotiations, representations or agreements. This Contract may not be modified or amended, nor any provision or breach waived, except in a writing signed by both parties that expressly refers to this Contract.
12. Counterparts. This Contract may be executed in counterpart originals, duplicate originals, or both, each of which is deemed to be an original for all purposes. [SIGNATURES ON THE NEXT PAGE]
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 897 of 1671 C-4
City Project: BR1101 City of Indio Public Works
Federal Project No.: BRLKS-5275(024)
IN WITNESS WHEREOF, the parties hereto have executed this Contract the day and year first above written.
CITY OF INDIO
By:
Mayor
ATTEST: APPROVED AS TO FORM:
By: By:
City Clerk City Attorney
Dated:
(“CONTRACTOR”)
By:
By:
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 898 of 1671 C-5
City Project: BR1101 City of Indio Public Works
Federal Project No.: BRLKS-5275(024)
EXHIBIT “A”
AVENUE 44 BRIDGE AT THE COACHELLA VALLEY STORM WATER CHANNEL Federal Project No.: BRLKS-5275(024)
City Project No.: BR1101
Federal Requirements for Federal-Aid Construction Projects:
- Form FHWA 1273, and
- Davis Bacon Wage Determinations
Construction contract with Ortiz Enterprises, Inc., in an amount not to ... Page 899 of 1671 C-6
City Project: BR1101 City of Indio Public Works
Federal Project No.: BRLKS-5275(024)
FHWA-1273 -- Revised October 23, 2023
REQUIRED CONTRACT PROVISIONS
FEDERAL-AID CONSTRUCTION CONTRACTS
I. General
II. Nondiscrimination
III. Non-segregated Facilities
IV. Davis-Bacon and Related Act Provisions
V. Contract Work Hours and Safety Standards Act
Provisions
VI. Subletting or Assigning the Contract
VII. Safety: Accident Prevention
VIII. False Statements Concerning Highway Projects
IX. Implementation of Clean Air Act and Federal Water
Pollution Control Act
X. Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion
XI. Certification Regarding Use of Contract Funds for
Lobbying
XII. Use of United States-Flag Vessels:
ATTACHMENTS
A. Employment and Materials Preference for Appalachian
Development Highway System or Appalachian Local
Access Road Contracts (included in Appalachian contracts only)
I. GENERAL
1. Form FHWA-1273 must be physically incorporated in
each construction contract funded under title 23, United States Code, as required in 23 CFR 633.102(b) (excluding emergency contracts solely intended for debris removal).
The contractor (or subcontractor) must insert this form in each subcontract and further require its inclusion in all lower tier subcontracts (excluding purchase orders, rental
agreements and other agreements for supplies or services). 23 CFR 633.102(e).
The applicable requirements of Form FHWA-1273 are
incorporated by reference for work done under any purchase order, rental agreement or agreement for other services. The prime contractor shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider. 23 CFR 633.102(e).
Form FHWA-1273 must be included in all Federal-aid designbuild contracts, in all subcontracts and in lower tier subcontracts (excluding subcontracts for design services, purchase orders, rental agreements and other agreements for supplies or services) in accordance with 23 CFR 633.102.
The design-builder shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service
provider.
Contracting agencies may reference Form FHWA-1273 in
solicitation-for-bids or request-for-proposals documents, however, the Form FHWA-1273 must be physically
incorporated (not referenced) in all contracts, subcontracts and lower-tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or
services related to a construction contract). 23 CFR
633.102(b).
2. Subject to the applicability criteria noted in the following sections, these contract provisions shall apply to all work performed on the contract by the contractor's own
organization and with the assistance of workers under the
3. contractor's immediate superintendence and to all work performed on the contract by piecework, station work, or by subcontract. 23 CFR 633.102(d).
4. A breach of any of the stipulations contained in these Required Contract Provisions may be sufficient grounds
for withholding of progress payments, withholding of final payment, termination of the contract, suspension /
debarment or any other action determined to be
appropriate by the contracting agency and FHWA.
5. Selection of Labor: During the performance of this
contract, the contractor shall not use convict labor for any purpose within the limits of a construction project on a Federal-aid highway unless it is labor performed by
convicts who are on parole, supervised release, or
probation. 23 U.S.C. 114(b). The term Federal-aid highway does not include roadways functionally classified as local roads or rural minor collectors. 23 U.S.C. 101(a).
II. NONDISCRIMINATION (23 CFR 230.107(a); 23 CFR
Part 230, Subpart A, Appendix A; EO 11246)
The provisions of this section related to 23 CFR Part 230, Subpart A, Appendix A are applicable to all Federal-aid construction contracts and to all related construction
subcontracts of $10,000 or more. The provisions of 23 CFR Part 230 are not applicable to material supply, engineering, or architectural service contracts.
In addition, the contractor and all subcontractors must comply with the following policies: Executive Order 11246, 41 CFR Part 60, 29 CFR Parts 1625-1627, 23 U.S.C. 140,
Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations including 49 CFR Parts 21, 26, and 27; and 23 CFR Parts 200, 230, and 633.
The contractor and all subcontractors must comply with:
the requirements of the Equal Opportunity Clause in 41
CFR 60- 1.4(b) and, for all construction contracts
exceeding $10,000, the Standard Federal Equal
Employment Opportunity Construction Contract
Specifications in 41 CFR 60-4.3.
Note: The U.S. Department of Labor has exclusive authority to determine compliance with Executive Order 11246 and
the policies of the Secretary of Labor including 41 CFR Part 60, and 29 CFR Parts 1625-1627. The contracting agency
and the FHWA have the authority and the responsibility to ensure compliance with 23 U.S.C. 140, Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations including 49 CFR Parts 21, 26, and 27; and 23 CFR Parts 200, 230, and 633.
The following provision is adopted from 23 CFR Part 230, Subpart A, Appendix A, with appropriate revisions to
conform to the U.S. Department of Labor (US DOL) and
FHWA requirements.
1. Equal Employment Opportunity: Equal Employment
Opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (see 28 CFR Part 35, 29 CFR Part 1630, 29 CFR Parts 1625-1627, 41 CFR Part 60 and 49 CFR Part 27) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140, shall constitute the EEO and specific affirmative action standards for the contractor's