4. Approval of Minutes of Special Meeting of
Orange Cove City Council on May 26, 2026.
Cisneros
5. Consideration and Approval of an agreement with A&M Consulting Escobar Engineers for on-call services for State and Federally Funded Projects.
6. Consideration and Approval of Active Transportation Program (ATP) Escobar Cycle 8 Grant Application. Staff recommends that the City Council adopt Resolution No.2026-15 authorizing submission of Active Transportation Program (ATP) Cycle 8 grant application for the Orange Cove Safe Routes to School project.
PUBLIC HEARING
Administration Department - City Manager Escobar
7. Subject: Approve Resolution No. 2026-12.
Recommendation: Staff recommends that the City Council adopt Resolution No. 2026-12 to submit to city voters at the next general election, to be held on November 3, 2026, a ballot measure proposing to impose a special tax for police services, recreation services, and park maintenance in the City of Orange Cove.
REGULAR BUSINESS
Administration Department - City Manager Escobar
8. Subject: Temporary City Council Seat Vacancy Appointment.
9. Recommendation: Staff recommends that the City Council review the applications received for the temporary City Council seat vacancy, interview applicants who are present at the June 10, 2026, meeting, and appoint a qualified candidate to serve as a temporary City Council Member until the vacancy is filled at the General Election on November 3, 2026.
Subject: Planning Commission Recruitment.
Recommendation: Staff recommends that the City Council designate two Council Members to serve on the interview panel for the Planning Commission applicants.
Workshop (Information only)
10. Subject: Fiscal Year 2026-2027 General Fund Budget Workshop.
Presentation by Finance Director Jimenez.
ORANGE COVE CITY COUNCIL
SPECIAL MEETING MINUTES
May 26, 2026________________________________________________________ The Special Meeting of the Orange Cove City Council was called to order by Mayor Pro Tem Garcia at 6:30 PM on Wednesday, May 26, 2026, at the City of Orange Senior Center at 699 6 th Street, Orange Cove, California.
1. ROLL CALL
COUNCIL MEMBERS’ PRESENT
Del Bosque, Ortiz, Rodriguez, Mayor Pro-Tem Garcia.
ABSENT
Mayor Diana Guerra-Silva.
INVOCATION
Council Member Ortiz.
PLEDGE OF ALLEGIANCE
Council Member Del Bosque.
2. CONFIRMATION OF AGENDA
No changes to the agenda.
3. PUBLIC COMMENT
One member of the public spoke. Estela Juarez addressed the City Council expressing concern about a proposed hydrogen gas “flood experiment” planned by SoCalGas in Orange Cove. She noted that on April 22, 2026, 652 residents submitted signatures requesting that the city withdraw its support for the project. She criticized the council for failing to respond or provide transparency after about 35 days and questioned why the issue has not been addressed publicly. She also raised concerns about the city’s relationship with the company, suggesting the possibility of improper incentives, and argued that residents have not been fully informed or given written consent regarding the experiment. While acknowledging that SoCalGas has applied for the project and that the CPUC will make a final decision, she urged the city council members to take action to protect residents from potential health, housing, and community impacts, and to reconsider any support for the proposal.
CONSENT CALENDAR
4. Approval of Minutes – Special Meeting of the Orange Cove City Council held on May 7, 2026.
5. Approval of Minutes – Regular Meeting of the Orange Cove City Council held on May 13, 2026. (C
6. Approval of Minutes – Special Meeting of the Orange Cove City Council held on May 13, 2026. (C
7. Adoption of Resolution No. 2026-09 – A Resolution of the City Council of the City of Orange Cove calling and giving notice of the General Municipal Election to be held on November 3, 2026; requesting consolidation with the Statewide General Election; authorizing election services by the Fresno County Clerk/Registrar of Voters; and authorizing reimbursement of related costs.
8. A Fee Waiver and Facility Use Request – Consideration and approval of a fee waiver and use of the Orange Cove Community Center by Orange Cove New Birth Apostolic Church for its Vacation Bible School Program.
9. Warrant Register – Approval of the April 2026 Warrant Register.
Action: Motion was made by Council Member Ortiz to approve the consent calendar and seconded by Council Member Del Bosque. The motion carried with the following vote:
ORANGE COVE CITY COUNCIL SPECIAL MEETING MINUTES- May 26, 2026 AYES: 4 COUNCIL MEMBERS: Ortiz, Del Bosque, Rodriguez, Garcia NOES: 0 COUNCIL MEMBERS: None
ABSTAIN:0 COUNCIL MEMBER: None
ABSENT: 1 COUNCIL MEMBER: Guerra-Silva
REGULAR BUSINESS
Administration-City Manager Escobar
10. Subject: Water and Wastewater Rate Study
Recommendation: Staff recommends that the City Council adopt Resolution No. 2026-10 approving the proposed water and sewer rate increases in accordance with the Proposition 218 public hearing notices mailed to customers on April 7, 2026.
Dan Bergman addressed the council. He made his first presentation in January, returned in March, and presented specific rates for both sewer and water. Notices went out to all residents. There were zero (0) protests received.
Public Hearing Opened: 6:48 PM and closed at 6:57 PM. Two members of the public spoke.
Action: Motion was made by Council Member Del Bosque to adopt Resolution No. 2026-10 approving the proposed water and sewer rate increases in accordance with Proposition 218 public hearing notices mailed to customers on April 7, 2026, and seconded by Council Member Ortiz.
The motion carried with the following vote:
AYES: 4 COUNCIL MEMBERS: Del Bosque, Ortiz, Rodriguez, Garcia NOES: 0 COUNCIL MEMBERS: None
ABSTAIN:0 COUNCIL MEMBER: None
ABSENT: 1 COUNCIL MEMBER: Guerra-Silva
REGULAR BUSINESS
Finance-Director Jimenez
Workshop (Information only)
11. Subject: Fiscal Year 2026-2027 Enterprise Funds (Water & Wastewater) Budget Finance Director Jimenez provided a detailed presentation of the Fiscal Year 2026-2027 Enterprise Funds (Water & Wastewater) Budget.
REGULAR BUSINESS
Public Works – Director Estrada
12. Subject: Community Service Volunteer Policy
Recommendation: Staff recommends that the City Council provide direction to prepare a formal Community Service Program Policy for future consideration and adoption. The proposed policy would establish procedures, participant eligibility requirements, safety standards, supervision guidelines, and conduct expectations for individuals performing community service work within City departments Action: Motion was made by Council Member Ortiz to approve the proposed policy, which would establish procedures, participant eligibility requirements, safety standards, supervision guidelines, and conduct expectations for individuals performing community service work within City departments and seconded by Council Member Rodriguez. The motion carried with the following vote:
AYES: 4 COUNCIL MEMBERS: Ortiz, Rodriguez, Del Bosque, Garcia NOES: 0 COUNCIL MEMBERS: None
ABSTAIN:0 COUNCIL MEMBER: None
ABSENT: 1 COUNCIL MEMBER: Guerra-Silva
ORANGE COVE CITY COUNCIL SPECIAL MEETING MINUTES- May 26, 2026
13. Subject: Cooling Center Policy
Recommendation: Staff recommends that the City Council provide direction to develop and implement a formal Cooling Center Policy for future consideration and adoption. The policy would authorize designated public facilities to serve as cooling centers during excessive heat events and emergency weather conditions, in coordination with local public safety agencies, Fresno County emergency services, and community partners.
Director Estrada addressed the council and provided details on the subject.
Public Comment: Two members of the public spoke.
Action: Motion was made by Council Member Rodriguez for the City Council to provide direction to develop and implement a formal Cooling Center Policy for future consideration and adoption. The policy would authorize designated public facilities to serve as cooling centers during excessive heat events and emergency weather conditions, in coordination with local public safety agencies, Fresno County emergency services, and community partners. and seconded by Council Member Del Bosque. The motion carried with the following vote:
AYES: 4 COUNCIL MEMBERS: Rodriguez, Del Bosque, Ortiz, Garcia NOES: 0 COUNCIL MEMBERS: None
ABSTAIN:0 COUNCIL MEMBER: None
ABSENT: 1 COUNCIL MEMBER: Guerra-Silva
(Information only)
14. Subject: Participation with the Fresno County Adult Offender Work Program.
Director Estrada addressed the council and provided details regarding participation with the Fresno County Adult Offender Work Program.
Public Comment: Two members of the public spoke.
REGULAR BUSINESS
Engineering Services - City Engineer Muniz
15. Subject: CDBG Funds Reprogramming – Capital Project Allocation Direction Recommendation: Staff recommends that the City Council provide direction on the reprogramming of available Community Development Block Grant (CDBG) funds among the City’s three programmed capital projects. Two options are presented for consideration. Staff recommends Option 2, which maintains a placeholder allocation for the Sheridan Park Improvements Project pending additional funding and reallocates the remaining CDBG funds to fully fund construction of the Community Center Park Rehabilitation Project.
City Engineer Muniz addressed the council.
Action: Motion was made by Council Member Ortiz to approve Option 2, which maintains a placeholder allocation for the Sheridan Park Improvements Project pending additional funding and reallocates the remaining CDBG funds to fully fund construction of the Community Center Park Rehabilitation Project, and seconded by Council Member Rodriguez. The motion carried with the following vote:
AYES: 4 COUNCIL MEMBERS: Ortiz, Rodriguez, Del Bosque, Garcia NOES: 0 COUNCIL MEMBERS: None
ABSTAIN:0 COUNCIL MEMBER: None
ABSENT: 1 COUNCIL MEMBER: Guerra-Silva
REGULAR BUSINESS
Engineering Services – City Engineer Howard
16. Subject: Seven Intersections Safety Striping Improvements – Public Works Contract Award ORANGE COVE CITY COUNCIL SPECIAL MEETING MINUTES- May 26, 2026 Recommendation: Staff recommends that the City Council adopt Resolution No. 2026-13 awarding the contract for the Seven Intersections Safety Striping Improvements Project to Dave Christian Construction Company, Inc. in the amount of $279,523.00, with a contingency of $42,000.00 (approximately 15%) for unforeseen construction-related issues, for a total project encumbrance of $321,523.00. Staff further recommends authorizing the City Manager and/or designee to execute the Agreement.
City Manager Escobar addressed the council.
Action: Motion was made by Council Member Del Bosque to adopt Resolution No. 2026-13 awarding the contract for the Seven Intersections Safety Striping Improvements Project to Dave Christian Construction Company, Inc. in the amount of $279,523.00, with a contingency of $42,000.00 (approximately 15%) for unforeseen construction-related issues, for a total project encumbrance of $321,523.00. Staff further recommends authorizing the City Manager and/or designee to execute the Agreement, seconded by Council Member Ortiz. The motion carried with the following vote:
AYES: 4 COUNCIL MEMBERS: Del Bosque, Ortiz, Rodriguez, Garcia NOES: 0 COUNCIL MEMBERS: None
ABSTAIN:0 COUNCIL MEMBER: None
ABSENT: 1 COUNCIL MEMBER: Guerra-Silva
17. Subject: ATP (Cycle 5) Bike Lane, Sidewalk & Crossing Improvements – Public Works Contract Award Recommendation: Staff recommends that the City Council adopt Resolution No. 2026-14 awarding the contract for the ATP/SB1 (Cycle 5) Bike Lane, Sidewalk & Crossing Improvements Project to Juarez Brothers General Engineering, Inc. in the amount of $563,079.25, with a contingency of $112,600.00 (approximately 20%) for unforeseen construction-related issues, for a total project encumbrance of $675,679.25. Staff further recommends authorizing the City Manager and/or designee to execute the Agreement.
City Manager Escobar addressed the council.
Public Comment: A member of the public spoke.
Action: Motion was made by Council Member Ortiz to adopt Resolution No. 2026-14 awarding the contract for the ATP/SB1 (Cycle 5) Bike Lane, Sidewalk & Crossing Improvements Project to Juarez Brothers General Engineering, Inc. in the amount of $563,079.25, with a contingency of $112,600.00 (approximately 20%) for unforeseen construction-related issues, for a total project encumbrance of $675,679.25. Staff further recommends authorizing the City Manager and/or designee to execute the Agreement, seconded by Council Member Rodriguez. The motion carried with the following vote:
AYES: 4 COUNCIL MEMBERS: Ortiz, Rodriguez, Del Bosque, Garcia NOES: 0 COUNCIL MEMBERS: None
ABSTAIN:0 COUNCIL MEMBER: None
ABSENT: 1 COUNCIL MEMBER: Guerra-Silva
REGULAR BUSINESS
18. Legal Counsel – City Attorney Crouch
Subject: Resolution No. 2026-11 – Declaration of Vacancy and Appointment Process Recommendation: Staff recommends that the City Council adopt Resolution No. 2026-11 declaring a vacancy in the City Council and expressing intent to appoint a qualified candidate to serve the remainder of the current term.
Staff further recommends appointing a current Councilmember to fill the Mayor’s seat and initiating the process to fill the resulting Councilmember vacancy.
ORANGE COVE CITY COUNCIL SPECIAL MEETING MINUTES- May 26, 2026 City Attorney Crouch addressed the council regarding the subject.
The council had a discussion. Council Member Del Bosque nominated Mayor Pro Tem Garcia to be appointed as Mayor, seconded by Council Member Ortiz, and Council Member Rodriguez agreed.
Public Comment: One member of the public spoke in support of appointing Mayor Pro Tem Garcia as Mayor.
Action: Motion was made by Council Member Del Bosque to appoint Mayor Pro Tem Gilbert Garcia to fill the Mayor’s seat and seconded by Council Member Rodriguez. The motion carried with the following vote:
AYES: 4 COUNCIL MEMBERS: Del Bosque, Rodriguez, Ortiz, Garcia NOES: 0 COUNCIL MEMBERS: None
ABSTAIN:0 COUNCIL MEMBER: None
ABSENT: 1 COUNCIL MEMBER: Guerra-Silva
Action: Motion was made by Council Member Ortiz to adopt Resolution No. 2026-11 declaring a vacancy in the City Council and expressing intent to appoint a qualified candidate to serve the remainder of the current term and seconded by Council Member Del Bosque. The motion carried with the following vote:
AYES: 4 COUNCIL MEMBERS: Ortiz, Del Bosque, Rodriguez, Garcia NOES: 0 COUNCIL MEMBERS: None
ABSTAIN:0 COUNCIL MEMBER: None
ABSENT: 1 COUNCIL MEMBER: Guerra-Silva
19. CITY MANAGER’S REPORT
• Provided a grant update. The grant includes assistance for local businesses and support for reestablishing the Chamber of Commerce. • He, Shun, and Jennifer attended the ICSC Conference in Las Vegas.
They learned a lot and had meetings with retailers. And are hopeful to bring in new development.
20. CITY ATTORNEYS REPORT
Nothing to report.
21. CITY COUNCIL COMMUNICATIONS
Council Member Del Bosque
• Congratulated Mayor Garcia as he was appointed to this evening’s meeting.
Council Member Ortiz
• Thanked the Orange Cove Police Department for receiving their youth grant and for their support and contribution to the Senior Sunset. • Announced the Friday, July 3rd Independence Day Celebration Mayor Garcia
• Thanked his fellow council members for supporting and appointing him as Mayor.
• He wished Mayor Guerra-Silva well and thanked her for her service throughout the years and this term.
• He will be running for Mayor in the November election.
22. ADJOURNMENT There being no further business, the meeting was adjourned at 8:10 p.m.
Respectfully submitted,
_________________________ __________________________
Cynthia Cisneros, City Clerk Gilbert Garcia, Mayor
For the Council Meeting of June 10, 2026
CITY OF ORANGE COVE
REPORT TO CITY COUNCIL
1 TO: Orange Cove City Council
FROM: Samuel A. Escobar, City Manager
SUBJECT: Approve an agreement with A&M Consulting Engineers for on-call services for State and Federally Funded Projects.
ATTACHMENTS: Response to Request for Qualifications, PIF RECOMMENDATION:
Staff recommends the City Council to approve an agreement with A&M Consulting Engineers for on-call services for State and Federally Funded Projects.
BACKGROUND:
City staff solicitated a Request for Qualifications (RFQ) for on-call services for State and Federally Funded Projects. The goal of this solicitation was to locate a highly qualified firm who would be responsible for a full portfolio of services related to any state and federally funded projects. This includes, but is not limited to:
• Grant Writing and Grant Administration
• Project Planning
• Environmental Compliance
• Construction Design and Management
The RFQ was issued to support the City’s ongoing and future transportation, infrastructure, and capital improvement projects funded through programs including, but not limited to:
• Congestion Mitigation and Air Quality (CMAQ)
• Highway Infrastructure Program (HIP)
• Active Transportation Program (ATP)
• Community Development Grant (CDBG)
• Other state and federal funding opportunities.
A&M Consulting Engineers was the only firm that submitted for the RFQ. A scoring sheet was completed, and it was determined that A&M Consulting Engineers met all the evaluation criteria. The City has created a Public Interest Finding because of the noncompetitive determination.
CONFLICT OF INTEREST:
None.
.
2 FISCAL IMPACT:
Expenses for on-call services for State and Federally Funded Projects are offset by state and federal reimbursements. The Fiscal Impact would be any cost share that is project based .
Prepared by: Jennifer Hernandez Approved by: Samuel A. Escobar REVIEW: Samuel Escobar Finance: _______ City Attorney: ______ TYPE OF ITEM: COUNCIL ACTION: APPROVED DENIED NO ACTION X Consent
Info Item
Action Item
Department Report
Redevelopment Agency
Public Hearing
Matter Initiated by a Council Member
Other
Continued to: _________
May 19, 2026
Response to Request for Qualifications (RFQ) for On-Call Services for State and Federally Funded Projects for the City of Orange Cove.
Primary Contact
Javier Andrade, PE
Principal Civil Engineer
[email protected]
608 E. Center Ave
Visalia, CA 93292
P: 559.429.4747
am-engr.com
A&M
Consulting Engineers
Table of Contents
1. Introductory Letter
Introductory Letter
2. Consultant Information, Qualifications & Experience
Consultant Information, Qualifications & Experience
3. Organization and Approach
Organization and Approach
4. Conflict of Interest Statement, 5. Litigation, and 6. Contract Agreement Conflict of Interest Statement, Litigation, and Contract Agreement
7. Federal-Aid Provisions & 8. Cost Proposal
Attached separately
9. Successful Past Performance with Grant Applications & 10. Past Work Performance with the City & Current Workload
Addenda
All addenda issued attached, if applicable.
2. Consultant Information, Qualifications & Experience
About Us.
A&M Consulting Engineers is a Central Valley civil engineering firm providing on-call professional services for municipal infrastructure projects, including planning, grant writing and administration, design, surveying, utility and right-of-way coordination, bid assistance, construction management, and project closeout. Our team understands the City of Orange Cove is seeking a responsive consultant to support state and federally funded projects through authorized Task Orders, from project development through final delivery. Our team is familiar with Caltrans Local Assistance, FHWA, and state and federal funding requirements, including RFAs, progress reports, grant documentation, invoices, award packages, and final reports of expenditures. A&M’s approach emphasizes clear communication, defined team roles, schedule and budget control, organized project files, and timely, compliant work products to help the City efficiently deliver grant-funded infrastructure projects.
Business Address
A&M Consulting Engineers | Visalia Office
608 E. Center Avenue, Visalia, CA 93292
P: 559.429.4747
Local Presence
A&M Consulting Engineers operates in Visalia and
has successfully worked with various cities around
the area such as Parlier, Corcoran, Avenal, Exeter,
Selma, Lemoore, and Orange Cove.
Type of Organization
Corporation
Conflict of Interest Statement
A&M Consulting Engineers has no known conflicts
of interest related to its current contracts with the
City of Orange. Although Orfil Muniz serves as City
Engineer for the City, he will have no involvement in
this SOQ submittal and is not part of the proposed
team.
Litigation
A&M Consulting Engineers maintains insurance
coverage consistent with the professional services
we provide to public agency clients.
A&M 4
Commercial General Liability
Policy Number: B7013593958
Business Automobile Liability
Policy Number: BUA7012551405
Workers’ Compensation & Employers’ Liability
Policy Number: EIG294378206
Professional Liability
Policy Number: ANE4938104.25
Contract Agreement
A&M Consulting Engineers has reviewed the
proposed contract agreement included with the
RFQ and does not take exception to its terms at
this time. A&M understands that services will be
performed through authorized Task Orders and
paid based on specific rates of compensation,
as negotiated and approved by the City. A&M’s
proposal terms shall remain in effect for ninety (90)
days following the proposal submittal deadline. A&M
also confirms that it maintains an adequate financial
management and accounting system capable of
supporting state and federally funded contracts,
including documentation, invoicing, cost tracking,
and audit requirements.
A&M 5
2. Consultant Information, Qualifications & Experience
Relevant Experience with State- and Federally Funded
Public Works Projects
A&M Consulting Engineers provides professional engineering services to California public agencies with experience
supporting local, state, and federally funded infrastructure projects. Our team’s experience includes project
management, preliminary engineering, design, surveying, right-of-way support, utility coordination, regulatory
coordination, bidding assistance, construction engineering/ management, and closeout support for public improvement projects.
Our firm has provided municipal engineering services for cities including Parlier, Avenal, Exeter, and Corcoran. This experience includes day-to-day city engineering support as well as capital project delivery involving public works coordination, development review, CIP programming,
plan preparation, grant-funded project administration, and construction-phase services.
Core Qualifications
• Experience delivering civil and transportation
engineering services for public agency clients.
• Familiarity with federally and state funded project
requirements and documentation.
• Experience coordinating with Caltrans Local Assistance, FHWA, DWR, and other regulatory and funding agencies
• Capability to support projects from planning and
preliminary engineering through design, bidding,
construction, closeout, and audit support.
• Multidisciplinary experience in development services, utility coordination, right-of-way support, and
construction administration.
Services Relevant to This RFQ
• Project management and task order administration
• Preliminary engineering and design
• Surveying, mapping, and right-of-way support
• Environmental and regulatory coordination
• Utility coordination
• PS&E preparation and cost estimating
• Bid-phase support and addenda
• Construction engineering/management and resident
engineering support
Experience.
Federal/State Funding and Compliance Experience
• Caltrans Local Assistance LAPM coordination and
documentation
• Federal-aid project requirements, including RFQ/RFP
support and task-order delivery
• Independent cost estimate support, bid review, and
reimbursement documentation
• CDBG and other grant-funded project administration
support
• Davis-Bacon/DIR compliance coordination, where
applicable
• Grant reporting, agency coordination, and audit
support
Municipal and Capital Improvement Experience
• Development review, plan check, and conditions of
approval support
• CIP programming, budgeting, and staff report
preparation
• Preparation of plans, specifications, estimates, and
engineer’s opinions of probable cost
• Construction administration, submittal review, change order evaluation, claims avoidance support, and
closeout documentation
• Coordination with City staff, regulatory agencies,
utilities, developers, and contractors
Value to the City of Orange Cove
• Understanding of the City’s need for on-call support for state- and federally funded projects
• Ability to provide responsive staff support for task-orderbased assignments • Familiarity with the documentation, coordination, and compliance requirements needed to keep projects
moving
• Experience preparing complete and well-coordinated
deliverables for public agency review, bidding,
construction, and audit purposes
• Practical municipal perspective that supports both
day-to-day City needs and long-term capital project
delivery
A&M 6
2. Consultant Information, Qualifications & Experience
PARLIER FLOOD PROTECTION PROJECT
Parlier, CA
10. Project Objective: This project will improve Parlier’s stormwater infrastructure while at the same time creating safe, accessible, and attractive public spaces, enhancing flood protection, community amenities, and overall quality of life.
11. Project Description: A&M Consulting Engineers provided construction management and resident engineering services for the City of Parlier’s Urban Flood Protection Project.
Our CM/CE role included oversight of storm drain and sewer manholes, and basin improvements, We monitored construction of the new pump station at Richard Flores Basin and coordinated delivery of associated hardscape. Throughout the project, A&M administered construction activities to verify compliance with design intent and project requirements, supporting the City in successfully delivering critical stormwater conveyance upgrades and community amenities.
1. Contracting City
City of Parlier
2. Contracting City Project
Manager
David Del Bosque
Public Works Director
3. Contracting City Contact
Information
(559) 646-3700
4. Contract Amount
$5,018,562
5. Project Type(s) and Description
of Responsibilities
-Engineering Design
-Construction Engineering
6. Funding Source
State
7. Date of Contract
10/2021
8. Date of Completion
3/2026
9. Consultant Project Manager
and contact information
Javier Andrade, PE
[email protected]
12. Project Outcome: The project enhanced the City of Parlier’s stormwater infrastructure by improving drainage capacity, supporting flood protection, and delivering related public improvements that increased site functionality, accessibility, and community benefit.
3. Organization & Approach
A&M 7
Professional Engineer
David Hernandez, PE
Professional Engineer
Diego Corvera, PE
Assistant Engineers
Denise Isaguirre, EIT
Edward Magana, EIT
Pedro Lopez, EIT
Gelasio Rodriguez
Anabel Tapia
Nelson Gomez
Kyndra Martinez
David Del Bosque
Derian Gutierrez
Assistant Construction Engineer
Alexis Gutierrez
Assistant Construction Engineer
Samuel Mudford
Professional Land Surveyor
Richard Aviles, PLS
Professional Land Surveyor
Daniel Cerda, PLS
Assistant Land Surveyor
Luis Lopez, LSIT
Administrative Specialist
Mary Espinosa
Administrative Specialist
Graciela Aguilar
Construction Management
Land Surveying
Administrative Department
Key Personnel.
Project Manager
Javier Andrade, PE
Assistant Construction Engineer
Gonzalo Robledo
A&M 8
3. Organization & Approach
Community Outreach.
Two-Stage Outreach Approach
• We treat community outreach as a continuous process:
first to gather input that shapes grant applications, then to fulfill outreach and reporting requirements once
funding is awarded.
Pre-Grant Community Input
• Conduct community meetings, workshops, and pop-up
events to identify needs, safety concerns, and project
ideas.
• Use clear visual exhibits, concept sketches, and plainlanguage summaries of potential improvements. • Provide multilingual surveys (online and in-person)
and coordinate with schools, community groups, and
businesses.
• Ensure that grant applications are grounded in
community-identified needs and priorities.
Grant-Funded Outreach & Compliance
• Prepare outreach plans tailored to each grant
program’s guidelines and schedules.
• Host public meetings to review design options and
project milestones, and support school-based safety
campaigns and volunteer events.
• Manage logistics, materials, sign-in sheets, photos,
and summary memos for use in grant progress reports
and closeout documentation.
City Partnership & Capacity Building
• Act as an extension of City staff by organizing and
documenting outreach so it is meaningful to residents
and fully compliant with funding requirements.
• Use completed outreach to strengthen future
grant applications and build a reliable pipeline of
competitive projects for the City of Orange Cove.
Community Town Hall Meetings
A&M Consulting Engineers hosts town hall meetings in partnership with the cities we serve to gather valuable input from community members. We recognize the importance of listening to residents’ concerns and priorities. During these meetings, our team presents exhibits of potential projects that have generated community interest.
Attendees are encouraged to provide feedback and suggest changes, ensuring the proposals reflect local needs. This collaborative process allows us to refine project concepts and pursue grant funding opportunities, minimizing reliance on local funds and maximizing community benefit.
City of Corcoran Community Cleanup Event
A&M Consulting Engineers partnered with the City of Corcoran on a resident-led cleanup campaign that brought neighbors, staff, and volunteers together to clean streets, alleys, and public spaces. These events met Clean CA Local Grant requirements and paved the way for permanent improvements along the Whitley Avenue gateway corridor, including drought-tolerant landscaping, targeted litter reduction, energy-efficient lighting, and ADA-accessible sidewalks, curb ramps, and crossings. The result is a safer, brighter, and more welcoming entrance to Corcoran that reflects community pride and invites families to walk, gather, and feel at home.
City of Selma Tactical Urbanism Pilot Study 1
A&M Consulting Engineers partnered with Selma Unified School District and the City of Selma on an STP-funded Tactical Urbanism pilot to quickly improve streets around school campuses. With principals, crossing guards, and families, we installed low-cost, quick-build curb extensions, daylighted corners, high-visibility crosswalks, simplified student pick-up/drop-off, median refuges, and clear signing/striping. Before/ after observations, speed checks, and student travel tallies showed calmer, more predictable drop-off and now guide permanent safety improvements shaped by families’ input.
Past Community Outreach Events
A&M 9
3. Organization & Approach
Grant Management.
After conducting meaningful community outreach, A&M Consulting Engineers takes the community’s concerns and priorities and turns them into clear and fundable projects.
We then match projects with the most suitable state and federal programs and structure competitive applications so community-driven needs can move forward with secured funding.
Develop and Maintain a Grant Management Plan:
A&M is well-versed in creating comprehensive grant management plans that outline key milestones, deliverables, and responsibilities. These plans serve as roadmaps to ensure that every aspect of the grant is systematically addressed and that all stakeholders are aware of their roles and timelines.
Monitor Grant Expenditures and Budget Adherence:
Budget management and adherence to grantor requirements are critical aspects of our expertise. We have a proven ability to closely monitor grant expenditures, track financial data, and ensure that spending aligns with grant guidelines. This approach guarantees compliance while optimizing resource utilization.
Coordinate with City Staff:
Collaboration is at the heart of our approach. We work closely with program staff to ensure that project activities align seamlessly with the grant’s objectives. Effective communication and coordination are central to our strategy for successful grant implementation.
Maintain Detailed Records and Documentation:
Our team places a premium on record-keeping and documentation.
We maintain meticulous records of all grant-related activities, transactions, and correspondence. This rigorous documentation is essential for demonstrating compliance and accountability to grantors.
Prepare and Submit Progress Reports:
We are proficient in preparing and submitting regular progress reports to grantors in strict accordance with established timelines and guidelines.
Our reports provide a comprehensive overview of project developments, achievements, challenges, and financial updates. Timely reporting is a hallmark of our commitment to transparency.
We are experienced in managing the diverse reporting requirements of our funding sources. For example, under the CDBG program, we submit a Quarterly Progress Report via the eCivis platform that includes both financial and activity data. Similarly, funding sources such as Clean CA require a quarterly progress report, submitted within 45 days, using Smartsheet.
Maintain Accurate and Complete Grant Files:
Our dedication to organization extends to maintaining accurate and complete grant files. These files include financial records, progress reports, correspondence with grantors, and any other pertinent documents. Our systematic approach ensures that all documentation is readily accessible and well-organized.
Ensure Timely Submission of Required Documentation:
Meeting deadlines for grant deliverables is non-negotiable for us. We prioritize timely submission of all required materials, from progress reports to financial statements and any additional documentation specified by grantors. This punctuality is integral to maintaining positive relationships with funding entities.
A&M 10
3. Organization & Approach
Design.
Project Initiation & Coordination
• Hold kickoff meeting to confirm City priorities, schedule, and communication protocols.
• Review available background information (plans,
studies, reports, and standards).
• Refine project objectives, deliverables, and key
milestones with the City.
Existing Conditions & Data Collection
• Conduct site visits to document existing conditions,
constraints, and opportunities.
• Gather and review relevant data (as-built drawings,
utilities, surveys, traffic/usage data, environmental
information, etc.)
• Identify potential conflicts, access issues, and right-ofway or property constraints.
Analysis & Concept Development
• Analyze existing conditions and data to understand
needs, deficiencies, and risks.
• Develop and compare feasible design concepts,
including “no build” or minimal-intervention options
where appropriate.
• Evaluate concepts against applicable standards,
Owner objectives, constructability, and life-cycle costs. • Meet with the Owner to review concepts and confirm a
preferred alternative for design.
Preliminary Design (Concept to ~30%)
• Prepare preliminary layouts, typical sections, and key design parameters.
• Identify required surveys, geotechnical work, or
specialty studies and incorporate findings.
• Coordinate early with utilities, permitting agencies, and affected stakeholders.
• Provide a preliminary opinion of probable construction cost for budget and phasing discussions.
Design Development & PS&E (Progress Submittals)
• Advance the design through structured submittals (e.g., 30%, 60%, 90%, and Final).
• Prepare and refine:
- Plan drawings, details, & profiles.
- Technical specifications & special
provisions.
- Quantities and detailed Engineer’s Estimates.
- Staging and temporary traffic control or
access plans, if applicable.
• Integrate comments from the City, utilities, and
reviewing agencies at each stage.
Quality Assurance / Quality Control (QA/QC)
• Assign senior staff not involved in day-to-day production to perform independent reviews.
• Check for conformance with applicable codes,
standards, and funding requirements.
• Verify consistency among plans, specifications, and
estimates.
• Review for constructability, phasing, safety, and longterm maintenance considerations.
Permitting, Approvals, and Coordination
• Support the City in obtaining required permits and
approvals.
• Coordinate with regulatory agencies, utilities, and
stakeholders to resolve issues early.
• Update design documents to reflect permit conditions
and final agreements.
A&M 11
3. Organization & Approach
Construction Engineering &
Management.
A. Pre-Construction
1. Perform constructability reviews to identify risks, schedule constraints, and value engineering opportunities.
2. Facilitate pre-contruction conferences, prepare agendas and distribute minutes within 24 hours.
3. Document existing site conditions through baseline photo and video surveys.
4. Coordinate permits, encroachment approvals, and traffic management plans with the City and Caltrans.
5. Notify utility companies of potential conflicts and plan for long-lead procurement items.
B. Construction Administration and Field Management
1. Provide daily oversight through the Resident Engineer (RE) and City inspectors to confirm contract compliance.
2. Administer Requests for Information (RFIs), submittals, and shop drawings using a controlled logging system (Bluebeam and City-approved formats).
3. Monitor project schedules using Critical Path Method (CPM) reviews and implement recovery actions when negative float is identified.
4. Implement cost control measures, including quantity verfication, independent cost estimates, and comprehensive change-order packages that clearly segregate participating and non-participating costs.
5. Independent Assurance (IA) Testing:
- Coordinate with Caltrans or designated IA laboratories to perform split-sample testing and technician observation of the City’s acceptance testers.
- Verify calibration of equipment such as nuclear density gauges, compression machines, and asphalt sampling devices.
- Document results to ensure that acceptance testing is performed by qualified personnel in accredited laboratories.
- Submit annual proficiency and IA reports as required by Caltrans and FHWA.
6. Oversee labor compliance, including certified payrolls through the Department of Industrial Relations (DIR) electronic portal, worker interviews, and prevailing wage verification.
7. Monitor environmental commitments (such as CEQA or NEPA mitigation) and Stormwater Pollution Prevention Plan (SWPPP) measures.
8. Support public outreach, including notifications to residents and businesses, stakeholder meetings, and utility coordination.
C. Closeout
1. Coordinate final punch lists with City staff and contractors.
2. Maintain continuously updated as-built drawings and compile them into a final electronic record set.
3. Verify the final materials testing report, ensuring both acceptance testing and Independent Assurance (IA) documentation are complete.
4. Process final pay estimates, assist with preparation of Notice of Completion, and support City Council staff reports.
Funding Type Funding Source Name of Project Owner Amount State Prop 68 Gateway Park City of Corcoran $7M
State Urban Greening Grant
Program
Fig Tree Park City of Parlier $5M
State Urban Flood Protection
Grant Program
Parlier Flood Protection
Project
City of Parlier $4M
State Active Transportation
Program (ATP)
Corcoran Safe Routes to
School
City of Corcoran $3.5M
State Active Transportation
Program (ATP)
Selma Branch Canal
Parkway
City of Selma $3.5M
State Active Transportation
Program (ATP)
Limitless Lane Network City of Parlier $3M
Federal Active Transportation
Program (ATP)
School Corridor Active
Transportation Improvements
City of Parlier $3M
State Clean California Local Grant
Program
Selma SR-99 Gateway to
Downtown
City of Selma $3M
State Clean California Local Grant
Program
Community Beautification
and Cleanup Project
City of Corcoran $2.6M
Federal Surface Transportation Block
Grant (STBG)
Manning Avenue
Rehabilitation
City of Parlier $1.3M
Federal Congestion Mitigation and
Air Quality (CMAQ)
2021 Ped & Bicycle Facility
Improvements Phase 1 & 2
City of Corcoran $1.1M
Federal Congestion Mitigation and
Air Quality (CMAQ)
2020 Ped & Bicycle Facility
Improvements Phase 1 & 2
City of Corcoran $900K
State Sustainable Transportation
Planning Program (STP)
EV Charging Infrastructure
Network Plan
City of Corcoran $300K
State Sustainable Transportation
Planning Program (STP)
Tactical Urbanism Safe
Streets Study
City of Selma $300K
Federal Highway Infrastructure
Program (HIP)
Corcoran 2020 HIP Road
Maintenance
City of Corcoran $261K
State Highway Safety
Improvement Program (HSIP)
Various – Cycle 10 City of Corcoran $250K
State Highway Safety
Improvement Program (HSIP)
Bush Street Pedestrian Safety
Improvements Project
City of Lemoore $250K
State Highway Safety
Improvement Program (HSIP)
Various – Cycle 10 City of Parlier $250K
State Per Capita Program Heritage Park Playground &
Earl Ruth Park Playground
City of Parlier $188K
State/Federal Systemic Safety Analysis
Report Program
City of Parlier Local
Roadway Safety Plan
City of Parlier $65K
State/Federal Systemic Safety Analysis
Report Program
City of Corcoran Local
Roadway Safety Plan
City of Corcoran $65K
Federal Congestion Mitigation and
Air Quality (CMAQ)
Roundabout at Parlier Ave
and Newmark Ave
City of Parlier $1.6M
State Small Community Drought
Relief Program
Water Storage Tank City of Parlier $765K
State Sustainable Transportation
Planning Program (STP)
Parlier Active Transportation
Study - Tactical Urbanism
City of Parlier $353K
10. Past Work Performance with the City & Current Workload A&M Consulting Engineers currently serves as the City Engineer for the City of Orange Cove under an existing professional services agreement. A&M has reviewed its current workload and confirms that the proposed project team has the availability, staffing, and resources necessary to support the City throughout the duration of this on-call contract.
9. Successful Past Performance with Grant Applications
A&M 12
The following chart highlights our successful track record in applying for and managing federal and state funded projects.
This demonstrates our expertise in grant administration and compliance, ensuring impactful infrastructure and transportation improvements while minimizing the burden on local resources.
Local Assistance Procedures Manual EXHBIT 10-Q
Disclosure of Lobbying Activities
INSTRUCTIONS FOR COMPLETING EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES This disclosure form shall be completed by the reporting entity, whether subawardee or prime federal recipient at the initiation or receipt of covered federal action or a material change to previous filing pursuant to title 31 U.S.C. Section 1352.
The filing of a form is required for such payment or agreement to make payment to lobbying entity 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 a covered federal action. Attach a continuation sheet for additional information if the space on the form is inadequate. Complete all items that apply for both the initial filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional information.
1. Identify the type of covered federal action for which lobbying activity is or has been secured to influence, the outcome of a covered federal action.
2. Identify the status of the covered federal action.
3. Identify the appropriate classification of this report. If this is a follow-up report caused by a material change to the information previously reported, enter the year and quarter in which the change occurred. Enter the date of the last, previously submitted report by this reporting entity for this covered federal action.
4. Enter the full name, address, city, state, and zip code of the reporting entity. Include Congressional District if known. Check the appropriate classification of the reporting entity that designates if it is or expects to be a prime or subaward recipient. Identify the tier of the subawardee, e.g., the first subawardee of the prime is the first tier. Subawards include but are not limited to:
subcontracts, subgrants, and contract awards under grants.
5. If the organization filing the report in Item 4 checks "Subawardee" then enter the full name, address, city, state, and zip code of the prime federal recipient. Include Congressional District, if known.
6. Enter the name of the federal agency making the award or loan commitment. Include at least one organization level below agency name, if known. For example, Department of Transportation, United States Coast Guard.
7. Enter the federal program name or description for the covered federal action (item 1). If known, enter the full Catalog of Federal Domestic Assistance (CFDA) number for grants, cooperative agreements, loans and loan commitments.
8. Enter the most appropriate federal identifying number available for the federal action identification in item 1 (e.g., Request for Proposal (RFP) number, Invitation for Bid (IFB) number, grant announcement number, the contract grant. or loan award number, the application/proposal control number assigned by the federal agency). Include prefixes, e.g., "RFP-DE-90-001."
9. For a covered federal action where there has been an award or loan commitment by the Federal agency, enter the federal amount of the award/loan commitments for the prime entity identified in item 4 or 5.
10. Enter the full name, address, city, state, and zip code of the lobbying entity engaged by the reporting entity identified in Item 4 to influence the covered federal action.
11. Enter the full names of the individual(s) performing services and include full address if different from 10 (a). Enter Last Name, First Name and Middle Initial (Ml).
12. Enter the amount of compensation paid or reasonably expected to be paid by the reporting entity (Item 4) to the lobbying entity (Item 10). Indicate whether the payment has been made (actual) or will be made (planned). Check all boxes that apply. If this is a material change report, enter the cumulative amount of payment made or planned to be made.
13. Check all boxes that apply. If payment is made through an in-kind contribution, specify the nature and value of the in-kind payment.
14. Check all boxes that apply. If other, specify nature.
15. Provide a specific and detailed description of the services that the lobbyist has performed or will be expected to perform and the date(s) of any services rendered. Include all preparatory and related activity not just time spent in actual contact with federal officials. Identify the federal officer(s) or employee(s) contacted or the officer(s) employee(s) or Member(s) of Congress that were contacted.
16. Check whether or not a continuation sheet(s) is attached.
17. The certifying official shall sign and date the form, and print his/her name title and telephone number.
Public reporting burden for this collection of information is estimated to average 30-minutes per response, including time for reviewing instruction, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0046), Washington, D.C. 20503. SFLLL-Instructions Rev. 06-04
LPP 13-01 May 8, 2013
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
Exhibit 10-R: A&E BOILERPLATE AGREEMENT LANGUAGE
(For Local Assistance Federal-Aid Projects)
NOTE TO LOCAL AGENCY - BE SURE THAT YOUR LEGAL STAFF REVIEWS AND APPROVES ALL CONSULTANT CONTRACTS BEFORE EXECUTION. THIS AGREEMENT LANGUAGE IS RECOMMENDED LANGUAGE,
EXCEPT ARTICLE XXXII TITLE VI ASSURANCES (APPENDICES A AND E MUST BE PHYSICALLY INCLUDED,
UNMODIFIED, IN ANY FEDERAL-AID CONTRACT AND APPENDICES B-D MUST BE PHYSCIALLY INCLUDED, UNMODIFIED, IN ANY FEDERAL-AID CONTRACT INVOLVING RIGHT OF WAY ACQUISITION). MODIFY AS RECOMMENDED BY YOUR OWN LEGAL STAFF AND TO FIT YOUR PARTICULAR REQUIREMENTS AND PROJECT.
THE FISCAL AND FEDERAL PROVISIONS ARE REQUIRED IN ALL FEDERALLY FUNDED CONTRACTS. THE ORIGINAL INTENT OF THE ARTICLE SHALL REMAIN, IF MODIFIED BY YOUR LEGAL STAFF.
THIS EXHIBIT CONTAINS FISCAL REQUIREMENTS FROM 2 CFR 200 AND IS TO BE USED FOR STATE-ONLY FUNDED CONTRACTS AS WELL.
[Note: italic text within brackets throughout the Articles is intended for instructional purposes only]
TABLE OF CONTENTS
Page
ARTICLE I INTRODUCTION................................................................................................................. 3 ARTICLE II CONSULTANT’S REPORTS OR MEETINGS.................................................................... 4 ARTICLE III STATEMENT OF WORK .................................................................................................. 4 ARTICLE IV PERFORMANCE PERIOD................................................................................................ 6 ARTICLE V ALLOWABLE COSTS AND PAYMENTS.......................................................................... 6 ARTICLE VI TERMINATION ............................................................................................................... 10 ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS.................................. 11 ARTICLE VIII RETENTION OF RECORD/AUDITS............................................................................. 11 ARTICLE IX AUDIT REVIEW PROCEDURES .................................................................................... 12 ARTICLE X SUBCONTRACTING ....................................................................................................... 13 ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES ........................... 15 ARTICLE XII STATE PREVAILING WAGE RATES............................................................................ 16 ARTICLE XIII CONFLICT OF INTEREST............................................................................................ 19 ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION ...................... 20
ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR FEDERAL FUNDS FOR LOBBYING ................................................................................................................................. 20 ARTICLE XVI NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE.................. 20 ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION................................................. 22 ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION................. 22 ARTICLE XIX INSURANCE ................................................................................................................ 28 ARTICLE XX FUNDING REQUIREMENTS......................................................................................... 29 ARTICLE XXI CHANGE IN TERMS .................................................................................................... 29 Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
ARTICLE XXII CONTINGENT FEE ..................................................................................................... 30 ARTICLE XXIII DISPUTES.................................................................................................................. 30 ARTICLE XXIV INSPECTION OF WORK ........................................................................................... 30 ARTICLE XXV SAFETY...................................................................................................................... 31 ARTICLE XXVI OWNERSHIP OF DATA............................................................................................. 31 ARTICLE XXVII CLAIMS FILED BY LOCAL AGENCY’s CONSTRUCTION CONTRACTOR............ 32 ARTICLE XXVIII CONFIDENTIALITY OF DATA................................................................................. 32 ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION.................................... 33 ARTICLE XXX EVALUATION OF CONSULTANT.............................................................................. 33 ARTICLE XXXI PROMPT PAYMENT.................................................................................................. 33 ARTICLE XXXI TITLE VI ASSURANCES ........................................................................................... 34 ARTICLE XXXII NOTIFICATION......................................................................................................... 38 ARTICLE XXXIII CONTRACT ............................................................................................................. 39 ARTICLE XXXIV SIGNATURES ......................................................................................................... 39 Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
ARTICLE I INTRODUCTION
A. This AGREEMENT is between the following named, hereinafter referred to as, CONSULTANT and the following named, hereinafter referred to as, LOCAL AGENCY:
The name of the “CONSULTANT” is as follows:
(NAME OF CONSULTANT)
Incorporated in the State of (NAME OF STATE)
The Project Manager for the “CONSULTANT” will be (NAME) The name of the “LOCAL AGENCY” is as follows:
(NAME)
The Contract Administrator for LOCAL AGENCY will be (NAME) B. The work to be performed under this AGREEMENT is described in Article III Statement of Work and the approved CONSULTANT’s Cost Proposal dated (DATE). The approved CONSULTANT’s Cost Proposal is attached hereto (Attachment #) and incorporated by reference. If there is any conflict between the approved Cost Proposal and this AGREEMENT, this AGREEMENT shall take precedence.
C. CONSULTANT agrees to the fullest extent permitted by law, to indemnify, protect, defend, and hold harmless LOCAL AGENCY, its officers, officials, agents, employees and volunteers from and against any and all claims, damages, demands, liability, costs, losses and expenses, including without limitation, court costs and reasonable attorneys’ and expert witness fees, arising out of any failure to comply with applicable law, any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise arising out of the performance of the work described herein, to the extent caused by a negligent act or negligent failure to act, errors, omissions, recklessness or willful misconduct incident to the performance of this AGREEMENT on the part of CONSULTANT, except such loss or damage which was caused by the sole negligence, or willful misconduct of LOCAL AGENCY, as determined by a Court of competent jurisdiction. The provisions of this section shall survive termination or suspension of this AGREEMENT.
D. CONSULTANT in the performance of this AGREEMENT, shall act in an independent capacity. It is understood and agreed that CONSULTANT (including CONSULTANT's employees) is an independent contractor and that no relationship of employer-employee exists between the Parties hereto. CONSULTANT's assigned personnel shall not be entitled to any benefits payable to employees of LOCAL AGENCY.
E. LOCAL AGENCY is not required to make any deductions or withholdings from the compensation payable to CONSULTANT under the provisions of the AGREEMENT, and is not required to issue W-2 Forms for income and employment tax purposes for any of CONSULTANT's assigned personnel. CONSULTANT, in the performance of its obligation hereunder, is only subject to the control or direction of the LOCAL AGENCY as to the designation of tasks to be performed and the results to be accomplished.
F. Any third party person(s) employed by CONSULTANT shall be entirely and exclusively under the direction, supervision, and control of CONSULTANT. CONSULTANT hereby indemnifies and holds LOCAL AGENCY harmless from any and all claims that may be made against LOCAL AGNECY based upon any contention by any third party that an employer-employee relationship exists by reason of this AGREEMENT.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
G. Except as expressly authorized herein, CONSULTANT's obligations under this AGREEMENT are not assignable or transferable, and CONSULTANT shall not subcontract any work, without the prior written approval of the LOCAL AGENCY. However, claims for money due or which become due to CONSULTANT from LOCAL AGENCY under this AGREEMENT may be assigned to a financial institution or to a trustee in bankruptcy, without such approval. Notice of any assignment or transfer whether voluntary or involuntary shall be furnished promptly to the LOCAL AGENCY.
H. CONSULTANT shall be as fully responsible to the LOCAL AGENCY for the negligent acts and omissions of its contractors and subcontractors or subconsultants, and of persons either directly or indirectly employed by them, in the same manner as persons directly employed by CONSULTANT.
I. No alteration or variation of the terms of this AGREEMENT shall be valid, unless made in writing and signed by the parties authorized to bind the parties; and no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto.
J. The consideration to be paid to CONSULTANT as provided herein, shall be in compensation for all of CONSULTANT’s expenses incurred in the performance hereof, including travel and per diem, unless otherwise expressly so provided.
ARTICLE II CONSULTANT’S REPORTS OR MEETINGS
[Choose either Option 1 or Option 2]
[Option 1 - Use paragraphs A & B below for standard AGREEMENTs] A. CONSULTANT shall submit progress reports at least once a month. The report should be sufficiently detailed for the LOCAL AGENCY’s Contract Administrator to determine, if CONSULTANT is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.
B. CONSULTANT’s Project Manager shall meet with LOCAL AGENCY’s Contract Administrator, as needed, to discuss progress on the AGREEMENT.
[Option 2 - Use paragraphs A & B below for on-call AGREEMENTs] A. CONSULTANT shall submit progress reports on each specific project in accordance with the Task Order. These reports shall be submitted at least once a month. The report should be sufficiently detailed for LOCAL AGENCY’s Contract Administrator or Project Coordinator to determine, if CONSULTANT is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.
B. CONSULTANT’s Project Manager shall meet with LOCAL AGENCY’s Contract Administrator or Project Coordinator, as needed, to discuss progress on the project(s).
ARTICLE III STATEMENT OF WORK
[Insert Appropriate Statement of work including a Description of the Deliverables in the following sections. If a section does not apply to the AGREEMENT, state “Not Applicable to this AGREEMENT.”] A. CONSULTANT Services
[Detail based on the services to be furnished should be provided by CONSULTANT. Nature and extent should be verified in the negotiations to make precise statements to eliminate subsequent Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
uncertainties and misunderstandings. Reference to the appropriate standards for design or other standards for work performance stipulated in CONSULTANT AGREEMENT should be included.
Describe acceptance criteria, and if the responsible CONSULTANT/engineer shall sign all Plans, Specifications and Estimate (PS&E) and engineering data furnished under the AGREEMENT including registration number.
Environmental documents are not considered complete until a Caltrans District Senior Environmental Planner signs the Categorical Exclusion, a Caltrans Deputy District Director signs the Finding of No Significant Impact, or the Caltrans District Director signs the Record of Decision (see LAPM Chapter 6: Environmental Procedures, and the Standard Environmental Reference).] B. Right of Way
[State whether Right of Way requirements are to be determined and shown by CONSULTANT, whether land surveys and computations with metes and bounds descriptions are to be made, and whether Right of Way parcel maps are to be furnished.]
C. Surveys
[State whether or not the CONSULTANT has the responsibility for performing preliminary or construction surveys.]
D. Subsurface Investigations
[State specifically whether or not CONSULTANT has responsibility for making subsurface investigations. If borings or other specialized services are to be made by others under the supervision of CONSULTANT, appropriate provisions are to be incorporated. Archaeological testing and data recovery guidance can be found in the Standard Environmental Reference.] E. Local Agency Obligations
All data applicable to the project and in possession of LOCAL AGENCY, another agency, or government agency that are to be made available to CONSULTANT are referred to in the AGREEMENT. Any other assistance or services to be furnished to CONSULTANT are to be stated clearly.
F. Conferences, Site Visits, Inspection of Work
This AGREEMENT provides for conferences as needed, visits to the site, and inspection of the work by representatives of the LOCAL AGENCY, State, and/or FHWA. Costs incurred by CONSULTANT for meetings, subsequent to the initial meeting shall be included in the fee.
G. Checking Shop Drawings
[For AGREEMENTs requiring the preparation of construction drawings, make provision for checking shop drawings. Payment for checking shop drawings by CONSULTANT may be included in the AGREEMENT fee, or provision may be made for separate payment.] H. CONSULTANT Services During Construction
The extent, if any of CONSULTANT’s services during the course of construction as material testing, construction surveys. etc., are specified in the AGREEMENT together with the method of payment for such services.
I. Documentation and Schedules
AGREEMENTs where appropriate, shall provide that CONSULTANT document the results of the work to the satisfaction of LOCAL AGENCY, and if applicable, the State and FHWA. This may include preparation of progress and final reports, plans, specifications and estimates, or similar evidence of attainment of the AGREEMENT objectives.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
J. Deliverables and Number of Copies
The number of copies or documents to be furnished, such as reports, brochures, sets of plans, specifications, or Right of Way parcel maps shall be specified. Provision may be made for payment for additional copies.
ARTICLE IV PERFORMANCE PERIOD
[A time must be set for beginning and ending the work under the AGREEMENT. The time allowed for performing the work is specified; it should be reasonable for the kind and amount of services contemplated; and it is written into the AGREEMENT. If it is desirable that Critical Path Method (CPM) networks, or other types of schedules be prepared by CONSULTANT, they should be identified and incorporated into the AGREEMENT.]
A. This AGREEMENT shall go into effect on (DATE), contingent upon approval by LOCAL AGENCY, and CONSULTANT shall commence work after notification to proceed by LOCAL AGENCY’S Contract Administrator. The AGREEMENT shall end on (DATE), unless extended by AGREEMENT amendment.
B. CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on LOCAL AGENCY until the AGREEMENT is fully executed and approved by LOCAL AGENCY. [Use paragraph C below in addition to paragraphs A & B above for on-call AGREEMENTs. On-call AGREEMENTs shall be 5 years maximum.]
C. The period of performance for each specific project shall be in accordance with the Task Order for that project. If work on a Task Order is in progress on the expiration date of this AGREEMENT, the terms of the AGREEMENT shall be extended by AGREEMENT amendment prior to the expiration of the contract to cover the time needed to complete the task order in progress only. The maximum term shall not exceed five (5) years.
ARTICLE V ALLOWABLE COSTS AND PAYMENTS
[Choose either Option 1, 2, 3, or 4]
[Option 1 - Use paragraphs A through J below for Cost-Plus-Fixed Fee Agreements] 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 applicable period shall not be a condition or qualification to be considered for the work or AGREEMENT award.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
C. In addition to the allowable incurred costs, LOCAL AGENCY will pay CONSULTANT a fixed fee of $(AMOUNT). The fixed fee is nonadjustable for the term of the AGREEMENT, except in the event of a significant change in the scope of work and such adjustment is made by AGREEMENT amendment.
D. Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal.
E. When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate.
F. Progress payments will be made monthly in arrears based on services provided and allowable incurred costs. A pro rata portion of CONSULTANT’s fixed fee will be included in the monthly progress payments. If CONSULTANT fails to submit the required deliverable items according to the schedule set forth in Article III Statement of Work, LOCAL AGENCY shall have the right to delay payment or terminate this AGREEMENT.
G. No payment will be made prior to approval of any work, nor for any work performed prior to approval of this AGREEMENT.
H. CONSULTANT will be reimbursed promptly according to California Regulations upon receipt by LOCAL AGENCY’s Contract Administrator of itemized invoices in duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number and project title. Final invoice must contain the final cost and all credits due LOCAL AGENCY including any equipment purchased under the provisions of Article XI Equipment Purchase. The final invoice should be submitted within sixty (60) calendar days after completion of CONSULTANT’s work. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following address:
(LOCAL AGENCY/NAME OF CONTRACT ADMINISTRATOR)
(ADDRESS)
I. The total amount payable by LOCAL AGENCY including the fixed fee shall not exceed $(Amount).
J. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable. [Option 2 - For Cost per Unit of Work Agreements, replace paragraphs A & B of Option 1 with the following paragraphs A, B, and C and re-letter the remaining paragraphs. Adjust as necessary for work specific to your project].
A. The method of payment for the following items shall be at the rate specified for each item, as described in this Article. The specified rate shall include full compensation to CONSULTANT for the item as described, including but not limited to, any repairs, maintenance, or insurance, and no further compensation will be allowed therefore.
B. The specified rate to be paid for vehicle expense for CONSULTANT’s field personnel shall be $(Amount) per approved Cost Proposal. This rate shall be for fully equipped vehicle(s) specified in Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
Article III Statement of Work, as applicable. The specified rate to be paid for equipment shall be, as listed in the approved Cost Proposal.
C. The method of payment for this AGREEMENT, except those items to be paid for on a specified rate basis, will be based on cost per unit of work. LOCAL AGENCY will reimburse CONSULTANT for actual costs (including labor costs, employee benefits, travel, equipment-rental costs, overhead and other direct costs) incurred by CONSULTANT in performance of the work. CONSULTANT will not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead and other estimated costs set forth in the approved Cost Proposal, unless additional reimbursement is provided for, by AGREEMENT amendment. In no event, will CONSULTANT be reimbursed for overhead costs at a rate that exceeds LOCAL AGENCY approved overhead rate set forth in the approved Cost Proposal. In the event, LOCAL AGENCY determines that changed work from that specified in the approved Cost Proposal and AGREEMENT is required; the actual costs reimbursable by LOCAL AGENCY may be adjusted by AGREEMENT amendment to accommodate the changed work. The maximum total cost as specified in Paragraph “I,” of this article shall not be exceeded unless authorized by AGREEMENT amendment. [Option 3 - Use paragraphs A through P for Specific Rates of Compensation Agreements (such as oncall Agreements). This payment method shall only be used when it is not possible at the time of procurement to estimate the extent or duration of the work or to estimate costs with any reasonable degree of accuracy. The specific rates of compensation payment method should be limited to AGREEMENTs or components of AGREEMENTs for specialized or support type services where the CONSULTANT is not in direct control of the number of hours worked, such as construction engineering and inspection.]
A. CONSULTANT will be reimbursed for hours worked at the hourly rates specified in the CONSULTANT’s approved Cost Proposal. The specified hourly rates shall include direct salary costs, employee benefits, prevailing wages, employer payments, overhead, and fee. These rates are not adjustable for the performance period set forth in this AGREEMENT. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate.
B. In addition, CONSULTANT will be reimbursed for incurred (actual) direct costs other than salary costs that are in the approved Cost Proposal and identified in the approved Cost Proposal and in the executed Task Order.
C. Specific projects will be assigned to CONSULTANT through issuance of Task Orders.
D. After a project to be performed under this AGREEMENT is identified by LOCAL AGENCY, LOCAL AGENCY will prepare a draft Task Order; less the cost estimate. A draft Task Order will identify the scope of services, expected results, project deliverables, period of performance, project schedule and will designate a LOCAL AGENCY Project Coordinator. The draft Task Order will be delivered to CONSULTANT for review. CONSULTANT shall return the draft Task Order within ten (10) calendar days along with a Cost Estimate, including a written estimate of the number of hours and hourly rates per staff person, any anticipated reimbursable expenses, overhead, fee if any, and total dollar amount. After agreement has been reached on the negotiable items and total cost; the finalized Task Order shall be signed by both LOCAL AGENCY and CONSULTANT.
E. Task Orders may be negotiated for a lump sum (Firm Fixed Price) or for specific rates of compensation, both of which must be based on the labor and other rates set forth in CONSULTANT’s approved Cost Proposal.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
CONSULTANT shall be responsible for any future adjustments to prevailing wage rates including, but not limited to, base hourly rates and employer payments as determined by the Department of Industrial Relations. CONSULTANT is responsible for paying the appropriate rate, including escalations that take place during the term of the AGREEMENT.
F. [Local Agency to include either (a) or (b) below; delete the other one] (a) Reimbursement for transportation and subsistence costs shall not exceed State rates. (b) Reimbursement for transportation and subsistence costs shall not exceed the rates as specified in the approved Cost Proposal. CONSULTANT will be responsible for transportation and subsistence costs in excess of State rates.
G. When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval in the form of an AGREEMENT amendment for a revised milestone cost estimate from the Contract Administrator before exceeding such estimate.
H. Progress payments for each Task Order will be made monthly in arrears based on services provided and actual costs incurred.
I. CONSULTANT shall not commence performance of work or services until this AGREEMENT has been approved by LOCAL AGENCY and notification to proceed has been issued by LOCAL AGENCY’S Contract Administrator. No payment will be made prior to approval or for any work performed prior to approval of this AGREEMENT.
J. A Task Order is of no force or effect until returned to LOCAL AGENCY and signed by an authorized representative of LOCAL AGENCY. No expenditures are authorized on a project and work shall not commence until a Task Order for that project has been executed by LOCAL AGENCY.
K. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate. Separate invoices itemizing all costs are required for all work performed under each Task Order. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing, or upon completion of the Task Order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number, project title and Task Order number. Credits due LOCAL AGENCY that include any equipment purchased under the provisions of Article XI Equipment Purchase, must be reimbursed by CONSULTANT prior to the expiration or termination of this AGREEMENT. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following address:
(NAME OF LOCAL AGENCY/ NAME OF CONTRACT ADMINISTRATOR)
(ADDRESS)
L. The period of performance for Task Orders shall be in accordance with dates specified in the Task Order. No Task Order will be written which extends beyond the expiration date of this AGREEMENT.
M. The total amount payable by LOCAL AGENCY for an individual Task Order shall not exceed the amount agreed to in the Task Order, unless authorized by amendment.
N. If CONSULTANT fails to satisfactorily complete a deliverable according to the schedule set forth in a Task Order, no payment will be made until the deliverable has been satisfactorily completed.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
O. Task Orders may not be used to amend the language (or the terms) of this AGREEMENT nor to exceed the scope of work under this AGREEMENT.
P. The total amount payable by LOCAL AGENCY for all Task Orders resulting from this AGREEMENT shall not exceed $ (Amount). It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this AGREEMENT through Task Orders.
[Option 4 - Use paragraphs A through E below for lump sum agreements.
A. The method of payment for this AGREEMENT will be based on lump sum. The total lump sum price paid to CONSULTANT will include compensation for all work and deliverables, including travel and equipment described in Article III Statement of Work. No additional compensation will be paid to CONSULTANT, unless there is a change in the scope of the work or the scope of the project. In the instance of a change in the scope of work or scope of the project, adjustment to the total lump sum compensation will be negotiated between CONSULTANT and LOCAL AGENCY. Adjustment in the total lump sum compensation will not be effective until authorized by AGREEMENT amendment and approved by LOCAL AGENCY.
B. Progress payments may be made monthly in arrears based on the percentage of work completed by CONSULTANT. If CONSULTANT fails to submit the required deliverable items according to the schedule set forth in Article III Statement of Work, LOCAL AGENCY shall have the right to delay payment or terminate this AGREEMENT in accordance with the provisions of Article VI Termination.
C. CONSULTANT shall not commence performance of work or services until this AGREEMENT has been approved by LOCAL AGENCY and notification to proceed has been issued by LOCAL AGENCY’S Contract Administrator. No payment will be made prior to approval of any work, or for any work performed prior to approval of this AGREEMENT.
D. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number and project title. Final invoice must contain the final cost and all credits due LOCAL AGENCY that include any equipment purchased under the provisions of Article XI Equipment Purchase. The final invoice must be submitted within sixty (60) calendar days after completion of CONSULTANT’s work unless a later date is approved by the LOCAL AGENCY. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following address:
(LOCAL AGENCY/NAME OF CONTRACT ADMINISTRATOR)
(ADDRESS)
E. The total amount payable by LOCAL AGENCY shall not exceed $(Amount).
ARTICLE VI TERMINATION
A. This AGREEMENT may be terminated by LOCAL AGENCY, provided that LOCAL AGENCY gives not less than thirty (30) calendar days’ written notice (delivered by certified mail, return receipt requested) of intent to terminate. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
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 LOCAL AGENCY by virtue of any breach of this AGREEMENT by CONSULTANT, and LOCAL AGENCY may withhold any payments due to CONSULTANT until such time as the exact amount of damages, if any, due LOCAL AGENCY 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 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.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
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.
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.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.
2. If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require CONSULTANT to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.
3. If the CONSULTANT fails to comply with the provisions of this paragraph E, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this AGREEMENT.
4. CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this AGREEMENT has been completed to the satisfaction of LOCAL AGENCY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO LOCAL AGENCY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this AGREEMENT and all other agreements executed between LOCAL AGENCY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.
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.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
D. Any substitution of Subconsultants must be approved in writing by the LOCAL AGENCY Contract Administrator in advance of assigning work to a substitute Subconsultant.
E. Prompt Progress Payment
CONSULTANT or subconsultant shall pay to any subconsultant, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed CONSULTANT on account of the work performed by the subconsultants, to the extent of each subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from CONSULTANT or subconsultant to a subconsultant, CONSULTANT or subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
CONSULTANT must 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.
F. Prompt Payment of Withheld Funds to Subconsultants
The LOCAL AGENCY may hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the LOCAL AGENCY, of the contract work, and pay retainage to CONSULTANT based on these acceptances. The LOCAL AGENCY shall designate one of the methods below in the contract to ensure prompt and full payment of any retainage kept by CONSULTANT or subconsultant to a subconsultant. [Choose either Method 1, Method 2, or Method 3 below and delete the other two.] Method 1: No retainage will be held by the LOCAL AGENCY from progress payments due to CONSULTANT. CONSULTANTS and subconsultants are prohibited from holding retainage from 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.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
Method 2: No retainage will be held by the LOCAL AGENCY from progress payments due to CONSULTANT. Any retainage kept by CONSULTANT or by a subconsultant must be paid in full to the earning subconsultant within 15 days after the subconsultant’s work is satisfactorily completed.
Any delay or postponement of payment may take place only for good cause and with the LOCAL AGENCY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non-DBE subconsultants.
Method 3: The LOCAL AGENCY shall hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the LOCAL AGENCY of the contract work and pay retainage to CONSULTANT based on these acceptances. CONSULTANT or subconsultant shall return all monies withheld in retention from all subconsultants within 15 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the LOCAL AGENCY. Any delay or postponement of payment may take place only for good cause and with the LOCAL AGENCY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT; deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and nonDBE subconsultants.
Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subcontract performance, or noncompliance by a subconsultant.
ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES A. Prior authorization in writing by LOCAL AGENCY’s Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.
B. For purchase of any item, service, or consulting work not covered in CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by LOCAL AGENCY’s Contract Administrator, three competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified.
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 Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
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 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 Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows:
a. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request. b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
c. The public shall not be given access to certified payroll records by the CONSULTANT.
The CONSULTANT is required to forward any requests for certified payrolls to the LOCAL AGENCY Contract Administrator by both email and regular mail on the business day following receipt of the request.
3. Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.
4. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by LOCAL AGENCY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.
5. The CONSULTANT shall inform LOCAL AGENCY of the location of the records enumerated under paragraph (1) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.
6. The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (1) above. In the event the CONSULTANT or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to LOCAL AGENCY, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated.
Such penalties shall be withheld by LOCAL AGENCY from payments then due. CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.
E. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the LOCAL AGENCY Contract Administrator.
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 Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
2. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the CONSULTANT or Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under the Labor Code. The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.
3. In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the CONSULTANT or Subconsultant.
4. If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the 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 following requirements:
a. The AGREEMENT executed between the CONSULTANT and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815. b. The CONSULTANT shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certified payroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the CONSULTANT shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining sufficient funds due the Subconsultant for work performed on the public works project. d. Prior to making final payment to the Subconsultant for work performed on the public works project, the CONSULTANT shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813.
5. Pursuant to Labor Code §1775, LOCAL AGENCY shall notify the CONSULTANT on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.
6. If LOCAL AGENCY determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if LOCAL AGENCY did not retain sufficient money under the AGREEMENT to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the CONSULTANT shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by LOCAL AGENCY.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
G. Hours of Labor
Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to the LOCAL AGENCY, twenty-five dollars ($25) for each worker employed in the execution of the AGREEMENT by the CONSULTANT or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one and one-half (1.5) times the basic rate of pay, as provided in §1815.
H. Employment of Apprentices
1. Where either the prime AGREEMENT or the subagreement exceeds thirty thousand dollars ($30,000), the CONSULTANT and any subconsultants under him or her shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.
2. CONSULTANTs and subconsultants are required to comply with all Labor Code requirements regarding the employment of apprentices, including mandatory ratios of journey level to apprentice workers. Prior to commencement of work, CONSULTANT and subconsultants are advised to contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey-to- apprentice ratios for the AGREEMENT work. The CONSULTANT is responsible for all subconsultants’ compliance with these requirements.
Penalties are specified in Labor Code §1777.7.
ARTICLE XIII CONFLICT OF INTEREST
A. During the term of this AGREEMENT, the CONSULTANT shall disclose any financial, business, or other relationship with LOCAL AGENCY that may have an impact upon the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project. The CONSULTANT shall also list current clients who may have a financial interest in the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project which will follow.
B. CONSULTANT certifies that it has disclosed to LOCAL AGENCY any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this AGREEMENT. CONSULTANT agrees to advise LOCAL AGENCY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this AGREEMENT. CONSULTANT further agrees to complete any statements of economic interest if required by either LOCAL AGENCY ordinance or State law.
C. The CONSULTANT hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this AGREEMENT.
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.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION The CONSULTANT warrants that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any LOCAL AGENCY employee.
For breach or violation of this warranty, LOCAL AGENCY shall have the right, in its discretion, to terminate this AGREEMENT without liability, to pay only for the value of the work actually performed, or to deduct from this AGREEMENT price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR FEDERAL FUNDS
FOR LOBBYING
[Include this article in all AGREEMENTs where federal funding will exceed $150,000 $100,000. If less than $150,000 $100,000 in federal funds will be expended on the AGREEMENT, delete this article and re-number the subsequent articles.]
A. The CONSULTANT certifies, to the best of his or her knowledge and belief, that:
1. No State, Federal, or LOCAL AGENCY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this AGREEMENT, or with the extension, continuation, renewal, amendment, or modification of this AGREEMENT.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.
C. The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subagreements, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.
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 §11102.
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 Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
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 ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.
C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by LOCAL AGENCY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.
D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or LOCAL AGENCY shall require to ascertain compliance with this clause.
E. CONSULTANT and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.
G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
H. The CONSULTANT shall comply with regulations relative to non-discrimination in federally-assisted programs of the U.S. Department of Transportation (49 CFR 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.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION
A. The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:
1. Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;
2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;
3. Does not have a proposed debarment pending; and
4. Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.
B. Any exceptions to this certification must be disclosed to LOCAL AGENCY. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.
C. Exceptions to the Federal Government excluded parties (https://sam.gov/content/home) maintained by the U.S. General Services Administration are to be determined by FHWA.
ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION A. CONSULTANT, subrecipient (LOCAL AGENCY), or subconsultant, shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contract (49 CFR 26).
To ensure equal participation of DBEs provided in 49 CFR 26.5, the LOCAL AGENCY shows a contract goal for DBEs. CONSULTANT shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers.
CONSULTANT shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate Good Faith Efforts (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://caltrans.dbesystem.com/.
All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies CONSULTANT purchases from DBEs counts towards the goal in the following manner:
• 100 percent counts if the materials or supplies are obtained from a DBE manufacturer. • 60 percent counts if the materials or supplies are purchased from a DBE regular dealer. • Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular dealer." Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
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_________%. Participation by DBE CONSULTANT or subconsultants shall be in accordance with information contained in Exhibit 10- O2: Consultant Contract DBE Commitment attached hereto and incorporated as part of the AGREEMENT. If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: 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
In accordance with 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 LOCAL AGENCY deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions; and/or
(3) 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.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
2. The LOCAL AGENCY stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the LOCAL AGENCY’s bond requirements.
3. Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the project because of suspension or debarment.
7. Listed DBE becomes bankrupt or insolvent 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.
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.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
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 DBE Commitment
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
• 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 Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
3. Maintain records including:
• Name and business address of each 1st-tier subconsultant • Name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier
• Date of payment and total amount paid to each business (see Exhibit 9-F: Monthly Disadvantaged Business Enterprise Payment)
If CONSULTANT is a DBE CONSULTANT, they shall include the date of work performed by their own forces and the corresponding value of the work.
If a DBE is decertified before completing its work, the DBE must notify CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify CONSULTANT in writing of the certification date. CONSULTANT shall submit the notifications to the LOCAL AGENCY. On work completion, CONSULTANT shall complete 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 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
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
• 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 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.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
J. CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier.
The records shall show the date of payment and the total dollar figure paid to all firms. DBE CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
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
[Choose either Option 1 or Option 2]
[Option 1 - for AGREEMENT with a scope of services that may require the CONSULTANT or subconsultant to work within the operating state or Local Agency Highway Right of Way; where there would be exposure to public traffic or construction operations.] A. Prior to commencement of the work described herein, CONSULTANT shall furnish LOCAL AGENCY a Certificate of Insurance stating that there is general comprehensive liability insurance presently in effect for CONSULTANT with a combined single limit (CSL) of not less than one million dollars ($1,000,000) per occurrence.
B. The Certificate of Insurance will provide:
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
1. That the insurer will not cancel the insured’s coverage without thirty (30) calendar days prior written notice to LOCAL AGENCY.
2. That LOCAL AGENCY, its officers, agents, employees, and servants are included as additional insureds, but only insofar as the operations under this AGREEMENT are concerned.
3. That LOCAL AGENCY will not be responsible for any premiums or assessments on the policy.
C. CONSULTANT agrees that the bodily injury liability insurance herein provided for, shall be in effect at all times during the term of this AGREEMENT. In the event said insurance coverage expires at any time or times during the term of this AGREEMENT, CONSULTANT agrees to provide at least thirty (30) calendar days prior notice to said expiration date; and a new Certificate of Insurance evidencing insurance coverage as provided for herein, for not less than either the remainder of the term of the AGREEMENT, or for a period of not less than one (1) year. New Certificates of Insurance are subject to the approval of LOCAL AGENCY. In the event CONSULTANT fails to keep in effect at all times insurance coverage as herein provided, LOCAL AGENCY may, in addition to any other remedies it may have, terminate this AGREEMENT upon occurrence of such event.
[Option 2 - for AGREEMENTs with a scope of services that will not require the CONSULTANT or subconsultant to work within the operating state or Local Agency Highway Right of Way where there would be exposure to public traffic or construction CONSULTANT operations.] CONSULTANT is not required to show evidence of general comprehensive liability insurance.
ARTICLE XX FUNDING REQUIREMENTS
A. It is mutually understood between the parties that this AGREEMENT may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the AGREEMENT were executed after that determination was made.
B. This AGREEMENT is valid and enforceable only if sufficient funds are made available to LOCAL AGENCY for the purpose of this AGREEMENT. In addition, this AGREEMENT is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or LOCAL AGENCY governing board that may affect the provisions, terms, or funding of this AGREEMENT in any manner.
C. It is mutually agreed that if sufficient funds are not appropriated, this AGREEMENT may be amended to reflect any reduction in funds.
D. LOCAL AGENCY has the option to terminate the AGREEMENT pursuant to Article VI Termination, or by mutual agreement to amend the AGREEMENT to reflect any reduction of funds.
ARTICLE XXI CHANGE IN TERMS
A. This AGREEMENT may be amended or modified only by mutual written agreement of the parties.
B. CONSULTANT shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by LOCAL AGENCY’s Contract Administrator.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
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.
[Choose either Option 1 or Option 2]
[Option 1 - Use paragraphs A through C below for all AGREEMENTs without PS&E submittal] A. Any dispute, other than audit, concerning a question of fact arising under this AGREEMENT that is not disposed of by agreement shall be decided by a committee consisting of LOCAL AGENCY’s Contract Administrator and [Insert Department Head or Official], who may consider written or verbal information submitted by CONSULTANT.
B. Not later than thirty (30) calendar days after completion of all work under the AGREEMENT, CONSULTANT may request review by LOCAL AGENCY Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
C. Neither the pendency of a dispute, nor its consideration by the committee will excuse CONSULTANT from full and timely performance in accordance with the terms of this AGREEMENT. [Option 2 - Replace Paragraph B, above, with the following for AGREEMENTs requiring the submission of PS&E]
B. Not later than thirty (30) calendar days after completion of all deliverables necessary to complete the plans, specifications and estimate, CONSULTANT may request review by LOCAL AGENCY Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
ARTICLE XXIV INSPECTION OF WORK
CONSULTANT and any subconsultant shall permit LOCAL AGENCY, the State, and the FHWA if federal participating funds are used in this AGREEMENT; to review and inspect the project activities and files at all reasonable times during the performance period of this AGREEMENT.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
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.
[Add the following paragraph to all AGREEMENTs, which may require trenching of five feet or deeper] D. CONSULTANT must have a Division of Occupational Safety and Health (CAL-OSHA) permit(s), as outlined in Labor Code §6500 and §6705, prior to the initiation of any practices, work, method, operation, or process related to the construction or excavation of trenches which are five (5) feet or deeper.
ARTICLE XXVI OWNERSHIP OF DATA
A. It is mutually agreed that all materials prepared by CONSULTANT under this AGREEMENT shall become the property of LOCAL AGENCY, and CONSULTANT shall have no property right therein whatsoever. Immediately upon termination, LOCAL AGENCY shall be entitled to, and CONSULTANT shall deliver to LOCAL AGENCY, 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 LOCAL AGENCY which is in CONSULTANT’s possession. Publication of the information derived from work performed or data obtained in connection with services rendered under this AGREEMENT must be approved in writing by LOCAL AGENCY.
B. Additionally, it is agreed that the Parties intend this to be an AGREEMENT for services and each considers the products and results of the services to be rendered by CONSULTANT hereunder to be work made for hire. CONSULTANT acknowledges and agrees that the work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of LOCAL AGENCY without restriction or limitation upon its use or dissemination by City.
C. Nothing herein shall constitute or be construed to be any representation by CONSULTANT that the work product is suitable in any way for any other project except the one detailed in this Contract.
Any reuse by LOCAL AGENCY for another project or project location shall be at LOCAL AGENCY’s sole risk.
D. Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27 Subpart 27.3 - Patent Rights under Government Contracts for federalaid contracts).
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
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 LOCAL AGENCY.
Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for CONSULTANT’s personnel services under this AGREEMENT.
C. Services of CONSULTANT’s personnel in connection with LOCAL AGENCY’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this AGREEMENT in order to resolve the construction claims.
ARTICLE XXVIII CONFIDENTIALITY OF DATA
A. All financial, statistical, personal, technical, or other data and information relative to LOCAL AGENCY’s operations, which are designated confidential by LOCAL AGENCY and made available to CONSULTANT in order to carry out this AGREEMENT, shall be protected by CONSULTANT from unauthorized use and disclosure.
B. Permission to disclose information on one occasion, or public hearing held by LOCAL AGENCY relating to the AGREEMENT, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.
C. CONSULTANT shall not comment publicly to the press or any other media regarding the AGREEMENT or LOCAL AGENCY’s actions on the same, except to LOCAL AGENCY’s staff, CONSULTANT’s own personnel involved in the performance of this AGREEMENT, at public hearings, or in response to questions from a Legislative committee.
D. CONSULTANT shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this AGREEMENT without prior review of the contents thereof by LOCAL AGENCY, and receipt of LOCAL AGENCY’S written permission.
E. Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article.
[For PS&E contracts add paragraph F, below, to paragraphs A through E, above] F. All information related to the construction estimate is confidential, and shall not be disclosed by CONSULTANT to any entity, other than LOCAL AGENCY, Caltrans, and/or FHWA. All of the materials prepared or assembled by CONSULTANT pursuant to performance of this Contract are confidential and CONSULTANT agrees that they shall not be made available to any individual or organization without the prior written approval of LOCAL AGENCY or except by court order. If Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
CONSULTANT or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this Contract, LOCAL AGENCY has the right to reimbursement and indemnity from CONSULTANT for any damages caused by CONSULTANT releasing the information, including, but not limited to, LOCAL AGENCY’s attorney’s fees and disbursements, including without limitation experts’ fees and disbursements.
ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code §10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against CONSULTANT within the immediately preceding two-year period, because of CONSULTANT’s failure to comply with an order of a federal court that orders CONSULTANT to comply with an order of the National Labor Relations Board.
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 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.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
ARTICLE XXXI TITLE VI ASSURANCES
APPENDICES A - E of the TITLE VI ASSURANCES
[The U.S. Department of Transportation Order No.1050.2A requires all federal-aid Department of Transportation contracts between an agency and a consultant to contain Appendices A and E of the Title VI Assurances. Include Appendices B, C, and D if appliable as shown below. In addition, the consultant must include the Title VI Assurances Appendices A and E, and if applicable Appendices B, C, and D in all subcontracts to perform work under the contract.
The clauses of Appendix B of this Assurance shall be included as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, use, or improvements thereon or interest therein to a LOCAL AGENCY.
The clauses set forth in Appendix C and Appendix D of this Assurance shall be included as a covenant running with the land, in any future deeds, leases, licenses, permits, or similar instruments entered into by the LOCAL AGENCY with other parties:
a. for the subsequent transfer of real property acquired or improved under the applicable activity, project, or program; and
b. for the construction or use of, or access to, space on, over, or under real property acquired or improved under the applicable activity, project, or program.]
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 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.
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
Where any information required of CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, CONSULTANT shall so certify to the recipient or FHWA as appropriate, and shall set forth what efforts CONSULTANT has made to obtain the information.
e. Sanctions for Noncompliance: In the event of CONSULTANT’s noncompliance with the nondiscrimination provisions of this agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
i. withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or
ii. cancellation, termination or suspension of the Agreement, in whole or in part. f. Incorporation of Provisions: CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub-agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.
CONSULTANT shall take such action with respect to any sub-agreement or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, CONSULTANT may request the recipient enter into such litigation to protect the interests of the State, and, in addition, CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States.
APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4:
NOW THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the recipient will accept title to the lands and maintain the project constructed thereon in accordance with Title 23 U.S.C., the regulations for the administration of the preceding statute, and the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the recipient all the right, title and interest of the U.S.
Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto the recipient and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the recipient, its successors and assigns. The recipient, in consideration of the conveyance of said lands and interest in lands, does Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the recipient will use the lands and interests in lands and interest in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended [, and (3) that in the event of breach of any of the abovementioned non-discrimination conditions, the Department will have a right to enter or re-enter said lands and facilities on said lands, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to make clear the purpose of Title VI.)
APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE
ACTIVITY, FACILITY, OR PROGRAM
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the recipient pursuant to the provisions of Assurance 7(a):
A. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add “as a covenant running with the land”] that:
1. In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S.
Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all requirements imposed by the Acts and Regulations(as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities.
B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Nondiscrimination covenants, the recipient will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.* C. With respect to a deed, in the event of breach of any of the above Non-discrimination covenants, the recipient will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the recipient and its assigns.* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.)
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
APPENDIX D
CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE
ACTIVITY, FACILITY OR PROGRAM
The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by the recipient pursuant to the provisions of Assurance 7(b):
A. The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest ,and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, “as a covenant running with the land”) that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishings of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits or, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance.
B. With respect to (licenses, leases, permits, etc.) in the event of breach of any of the above of the above Non-discrimination covenants, the recipient will have the right to terminate the (license, permits, etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.*
C. With respect to deeds, in the event of breach of any of the above Non-discrimination covenants, the recipient will there upon revert to and vest in and become the absolute property of the recipient and its assigns.
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 nondiscrimination 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 Part 21. • 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); • 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);
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
Office Bulletin #25-07 R3
• 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-income populations; • 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 et seq).
ARTICLE XXXII NOTIFICATION
All notices hereunder and communications regarding interpretation of the terms of this AGREEMENT and changes thereto, shall be effected by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid, and addressed as follows:
CONSULTANT:
(CONSULTANT)
(NAME) ,Project Manager
(ADDRESS)
LOCAL AGENCY:
(LOCAL AGENCY)
(NAME) , Contract Administrator
(ADDRESS)
Local Assistance Procedures Manual EXHIBIT 10-U
Consultant Management Conflict of Interest Statement
EXHIBIT 10-U CONSULTANT IN MANAGEMENT SUPPORT ROLE CONFLICT OF INTEREST AND C 1 ONFIDENTIALITY STATEMENT
RFP/RFQ PROCUREMENT NUMBERS (if applicable):
PROJECT NAME (and FPN, if applicable)2
:
APPLICABILITY: To be filled out by local agency consultants in management support role. □ I am an employee of a consultant under contract to the local agency that is responsible for the procuring and administering of one or more consultant contracts containing either Federal or State funds.
□ I am in a management position with the local agency, my title is listed below and I have attached my duty statement and scope of work.
□ I hereby certify as follows:
1. I recuse myself from all potential conflicts of interest.
2. I will not directly or indirectly participate in, manage, or oversee any consultant selection procurement process in which the consulting firm of which I am employed is competing as a consultant or subconsultant.
3. I will not directly or indirectly influence any employee, staff member, or other individual participating in any consultant selection procurement process in which the consulting firm of which I am employed is as a consultant or subconsultant.
4. I will not directly or indirectly participate in, manage, or oversee any local agency contract that is with the consulting firm of which I am employed, regardless of whether the involvement of my employer in the contract is as a consultant or subconsultant.
Among other things, this includes my not being involved in approving changes in the schedule, scope, deliverables or invoices.
5. I understand that if I am involved in any local agency contract that is with the consulting firm of which I am employed, in violation of 1. or 2. above, that local agency contract will no longer be eligible for Federal or State reimbursement because of my involvement.
□ I certify that I have read and understand my responsibilities per 23 CFR 172.7(b)(5) □ I fully understand that it is unlawful for a person to utilize any organization name (i.e. local agency) or auxiliary organization information, which is not a matter of public record, for personal gain.
1 Each consultant staff working in a management support role shall complete a separate form. 2 For on-call contracts or contracts for multiple projects, indicate accordingly.
January 2018
Local Assistance Procedures Manual EXHIBIT 10-U
Consultant Management Conflict of Interest Statement
REVIEWED/CONCURRENCE BY FEDERAL HIGHWAYS
I have reviewed the foregoing “Conflict of Interest and Confidentiality Statement” and supervisor’s statement.
□ I concur that the consultant, who is under contract and in a management support role with the local agency, does not appear to present a conflict of interest. The local agency and the consultant should be considered eligible for federal reimbursement. □ I do not concur as I believe that the consultant, who is under contract and in a management support role with the local agency, does appear to present a conflict of interest.
Date: __________________ Signature: _________________________________ Name: ____________________________________
Position: __________________________________
Distribution: 1) Copy to: DLAE for each Federal/State funded project 2) Copy to be returned to Local Agency by DLAE with FHWA approval
January 2018
Colleen Vidinoff 05/26/2026
For the Meeting of June 10, 2026
CITY OF ORANGE COVE
REPORT TO THE CITY COUNCIL
To: Orange Cove City Council
From: Samuel A. Escobar, City Manager
Subject: Active Transportation Program (ATP) Cycle 8 Grant Application Attachments: Resolution No. 2026-15
RECOMMENDATION:
Staff recommends that the City Council adopt Resolution No.2026-15 authorizing submission of Active Transportation Program (ATP) Cycle 8 grant application for the Orange Cove Safe Routes to School project.
BACKGROUND:
The Active Transportation Program (ATP) provides funding for projects that improve walking, bicycling, safety, access, mobility, and connectivity for students, residents, and other roadway users. Eligible improvements may include bicycle facilities, pedestrian improvements, crossing and intersection enhancements, traffic calming measures, sidewalks, curb ramps, signage, striping, lighting, and related safety improvements. The City of Orange Cove seeks ATP Cycle 8 funding to improve active transportation access, roadway safety, and connectivity within the community.
The Orange Cove Safe Routes to School project will include bicycle improvements, pedestrian improvements, crossing and intersection improvements, and vehicular roadway traffic-calming improvements intended to improve safer routes to school and comfort for all users along the project corridors. The location and types of pedestrian safety improvements that are being considered are the following:
• 2
nd Street between D Street and E Railroad Avenue
o Curb and gutter, sidewalk, ADA improvements, traffic calming elements (landscaping, road narrowing, etc.)
• 3
rd Street between D Street and Park Blvd
o Curb and gutter, sidewalk, ADA improvements, traffic calming elements (landscaping, road narrowing, etc.)
• Park Boulevard at the intersection of 2
nd Street and 3rd Street
o ADA improvements, bulbouts, traffic calming elements
The estimated project cost is anticipated to be approximately $3,500,000 or less, subject to refinement through the grant application, project development, and applicable funding Active Transportation Program (ATP) Cycle 8
City of Orange Cove Application
RESIDENTIAL STREET CROSS SECTION OPTIONS
requirements. If awarded, the City will deliver the project in compliance with applicable ATP requirements and operate and maintain the ATP-funded improvements for their useful life.
FISCAL IMPACT:
There is no immediate fiscal impact associated with authorizing the submittal of the grant application.
If selected for funding, the Active Transportation Program does not require a local funds match.
CONFLICT OF INTEREST:
None.
Prepared by: Cynthia Cisneros Approved by: Samuel A. Escobar, City Manager REVIEW: Samuel A. Escobar Finance: _______ City Attorney: ______ TYPE OF ITEM: COUNCIL ACTION: • APPROVED • DENIED • NO ACTION X Consent
Info Item
_ Action Item
Department Report
Redevelopment Agency
Public Hearing
Matter Initiated by a Council
Member
Other
Continued to: _________
Active Transportation Program (ATP) Cycle 8
City of Orange Cove Application
RESIDENTIAL STREET CROSS SECTION OPTIONS
Notes About Option 1:
• Sidewalk gap closure and ADA curb ramp improvements
• Keeps the existing street configuration (curb-to-curb width of 38’) • Maintains an approx. 5-foot-wide sidewalk
• Does not contain shade elements
• Does not contain traffic calming elements
Active Transportation Program (ATP) Cycle 8
City of Orange Cove Application
RESIDENTIAL STREET CROSS SECTION OPTIONS
Existing view of 3rd Street at H Street (facing north) in Orange Cove.
Active Transportation Program (ATP) Cycle 8
City of Orange Cove Application
RESIDENTIAL STREET CROSS SECTION OPTIONS
Notes About Option 2:
• Sidewalk gap closure and ADA curb ramp improvements
• Reduces the curb-to-curb road width from the existing 38’ to 34’ (4-foot reduction) • Can accommodate an approx. 7-foot-wide sidewalk
• Can accommodate shade elements
• Narrower roadway width yields slower vehicle speeds, safer walking conditions Active Transportation Program (ATP) Cycle 8
City of Orange Cove Application
RESIDENTIAL STREET CROSS SECTION OPTIONS
Example street in Visalia of a residential street with a 32’ width from curb to curb, staggered parking, and shade trees.
Active Transportation Program (ATP) Cycle 8
City of Orange Cove Application
RESIDENTIAL STREET CROSS SECTION OPTIONS
Notes About Option 3:
• Sidewalk gap closure and ADA curb ramp improvements
• Reduces the curb-to-curb road width from the existing 38’ to 30’ (8-foot reduction) • Can accommodate an approx. 8-foot-wide sidewalk
• Can accommodate shade elements
• Can accommodate stormwater capture elements
• Narrower roadway width yields slower vehicle speeds, safer walking conditions Active Transportation Program (ATP) Cycle 8
City of Orange Cove Application
RESIDENTIAL STREET CROSS SECTION OPTIONS
Example street in Visalia of a residential street with a 30’ width from curb to curb, with staggered parking and shade trees.
RESOLUTION NO. 2026-15
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ORANGE COVE, STATE
OF CALIFORNIA, AUTHORIZING AN ACTIVE TRANSPORTATION PROGRAM CYCLE 8 GRANT APPLICATION
WHEREAS, the Active Transportation Program (ATP) provides funding for projects that improve walking, bicycling, safety, access, mobility, and connectivity for students, residents, and other roadway users; and
WHEREAS, eligible ATP improvements may include bicycle facilities, pedestrian improvements, crossing and intersection enhancements, traffic-calming measures, sidewalks, curb ramps, signage, striping, lighting, and related safety improvements; and WHEREAS, the City of Orange Cove seeks ATP Cycle 8 funding for the Orange Cove Safe Routes to School project to improve active transportation access, roadway safety, and connectivity within the community; and
WHEREAS, the proposed project will include bicycle improvements, pedestrian improvements, crossing and intersection improvements, and vehicular roadway traffic-calming improvements intended to improve safety and comfort for all users along the project corridors and create safe routes to school for students; and
WHEREAS, the estimated project cost is anticipated to be approximately $3,500,000 or less, subject to refinement through the grant application, project development, and applicable funding requirements; and
WHEREAS, the City will deliver the project in compliance with applicable ATP requirements and will operate and maintain the improvements for their useful life.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Orange Cove as follows:
Section 1. The City Council approves the submittal of an application to the Active Transportation Program Cycle 8.
Section 2. The City Manager, or designee, is authorized to submit the application; accept grant funds if awarded; and execute all related agreements, certifications, amendments, and other documents necessary to secure and administer the grant, subject to approval as to form by the City Attorney.
Section 3. The City commits to completing the project described in the application and to the longterm operation and maintenance of all ATP-funded improvements.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Orange Cove, on the 10th day of June, 2026, by the following vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
APPROVED:
___________________________
Gilbert Garcia, Mayor
ATTEST:
____________________________
Cynthia Cisneros, City Clerk
© 2026 Microsoft Corporation © 2026 Maxar ©CNES (2026) Distribution Airbus DS
D STREET
E STREET
PARK BLVD
G STREET
H STREET
2ND STREET
4TH STREET
5TH STREET
E RAILROAD AVE
3RD STREET
PROJECT LOCATION MAP
CITY OF ORANGE COVE
SAFE ROUTES TO SCHOOL
LEGEND
CITY LIMITS
SIDEWALK, CURB & GUTTERADA CURB RAMPS
RIGHT OF WAY
ATP CYCLE 5 IMPROVEMENTS
NORTH
NOT TO SCALE
For the Council Meeting of June 10, 2026
CITY OF ORANGE COVE
REPORT TO CITY COUNCIL
1 TO: Orange Cove City Council
FROM: Samuel A. Escobar, City Manager
SUBJECT: Approve Resolution No. 2026-12
ATTACHMENTS: Resolution No. 2026-12
Ordinance No. 403
RECOMMENDATION:
Staff recommends that the City Council adopt Resolution No. 2026-12 to submit to city voters at the next general election to be held November 3, 2026, a ballot measure proposing to impose a special tax for police services, recreation services, and park maintenance in the City of Orange Cove.
BACKGROUND:
The City is evaluating long-term and sustainable funding mechanisms to support public facilities and services. The prior special tax measure supporting police and fire services was rejected by voters during the March 2024 election, and the associated tax sunset in November 2024.
Since the expiration of the previous measure, the City has experienced continued financial constraints affecting the delivery of essential municipal services. The Orange Cove Police Department continues to provide critical public safety services; however, General Fund revenues are insufficient to maintain staffing levels necessary to support the City’s policing needs.
Additionally, the City’s Recreation and Park Maintenance programs have experienced reduced funding levels, impacting recreational programming, park upkeep, and maintenance of public facilities utilized by residents throughout the community.
On January 14, 2026, the council agreed to move forward with a parcel tax, and on April 22, 2026, the City Council directed staff to prepare the necessary resolution and ballot language for placement on the November 3, 2026 General Municipal Election ballot and directed that a Citizen’s Oversight Committee be established should the measure be approved by voters.
The following proposed measure will generate approximately $460,907 annually to fund police, recreation, and park maintenance services where 70% of the special tax proceeds shall be used for police services, shall the measure levying $125/unit for single family homes and $140/unit for multifamily, $800/acre for non-residential, and $400/acre for undeveloped parcels
CONFLICT OF INTEREST:
None.
2 FISCAL IMPACT:
If approved by voters, the measure is estimated to generate approximately $460,907 annually in special tax revenue dedicated to Police, Recreation, and Park Maintenance Services.
Prepared by: Jennifer Hernandez Approved by: Samuel A. Escobar REVIEW: Samuel Escobar Finance: _______ City Attorney: ______ TYPE OF ITEM: COUNCIL ACTION: • APPROVED • DENIED • NO ACTION Consent
Info Item
_ Action Item
Department Report
Redevelopment Agency
X Public Hearing
Matter Initiated by a Council Member
Other
Continued to: _________
RESOLUTION NO. 2026-12
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ORANGE COVE, CALIFORNIA, SUBMITTING TO CITY
VOTERS AT THE NEXT GENERAL ELECTION TO BE HELD
NOVEMBER 3, 2026, A BALLOT MEASURE PROPOSING TO
IMPOSE A SPECIAL TAX FOR POLICE SERVICES,
RECREATION SERVICES, AND PARK MAINTENANCE IN
THE CITY OF ORANGE COVE.
WHEREAS, the Orange Cove Police Department provides essential public safety services to the citizens of Orange Cove; and
WHEREAS, the City General Fund lacks funds to hire the police officers needed to maintain the necessary level for police protection in the City; and WHEREAS, State law (including Government Code Section 53978 et seq.) authorizes a special tax for the purpose of providing police services; and WHEREAS, the voters of the City of Orange Cove have previously approved a special parcel tax to help fund police and fire services codified by City Ordinance No. 396; and WHEREAS, the ballot measure relating to Ordinance No. 396 to provide for the continued funding of police and fire services was rejected by voters in March 2024; and WHEREAS, the special parcel tax relating to Ordinance No. 396 was sunset in November 2024; and
WHEREAS, the City provides recreation services and performs park maintenance for the benefit of the citizens of Orange Cove; and
WHEREAS, the City General Fund lacks funds to offer Recreation and Park Maintenance services at a level of service the City and its citizens require; and WHEREAS, the citizens of Orange Cove have expressed a strong desire to maintain public safety, park maintenance and recreation services as a top priority; and WHEREAS, the City Council held a Council Meeting on April 22, 2026, at which the City Council considered a staff report, presentation, public testimony, and deliberated on the matter regarding submitting a ballot measure to the voters concerning the imposition of a special parcel tax for Police, Recreation, and Park Maintenance services; and WHEREAS, the City Council has determined that a special parcel tax is necessary to generate the financial resources necessary for maintaining Police, Recreation, and Park Maintenance services as set forth above; and
WHEREAS, the City Council directed that a Citizen’s Oversight Committee be formed to oversee the expenditures resulting from the special tax should it be approved; and WHEREAS, the City Council desires to adopt City Ordinance No. 403 to impose a special parcel tax for police protection services and recreation and park maintenance services, subject to a two-thirds majority voter approval, as required by Cal. Const., art. XIIID, §3(2) and as allowed by Government Code Section 53978.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Orange Cove as follows:
SECTION 1. The City Council submits to the voters of the City of Orange Cove at a General Municipal Election to be consolidated with the regularly scheduled November 3, 2026 Statewide General Election, a ballot measure for consideration of an ordinance for establishment of a Special Parcel Tax for Police, Recreation, and Park Maintenance Services as set forth in the ordinance attaches as Exhibit “A” to this resolution.
SECTION 2. The City Council requests that the Board of Supervisors of the County of Fresno, State of California order the consolidation of the election in the City of Orange Cove to be held on November 3, 2026, with any other election(s) to be held on the same date, under California Election Code Sections 10400 et seq.
SECTION 2. The question to be submitted to the voters with respect to the ballot measure shall be printed on the election ballot with the title and in the form set forth as follows:
ORANGE COVE POLICE, RECREATION AND PARK
MAINTENANCE SERVICES SPECIAL TAX:
To generate approximately $460,907 annually to fund
police, recreation, and park maintenance services where 70% of the special tax proceeds shall be used for police services, shall the measure levying $125/unit for single family homes and $140/unit for multifamily, $800/acre
for non-residential, and $400/acre for undeveloped
parcels, known as Measure O, be adopted without
expiration, with 3% annual increase, with all funds
generated staying in the City of Orange Cove?
Measure _O__
YES
NO
SECTION 3. The following constitutes the synopsis of the measure to be voted on for purposes of meeting the publication requirements of Election Code Section 12111:
MEASURE TO BE VOTED ON
Notice is hereby given that the following measure is to be voted on at the general municipal election to be held in the City of Orange Cove, on Tuesday, the 3rd day of November, 2026.
ADOPTION OF ORDINANCE NO. 403 APPROVING A SPECIAL PARCEL TAX FOR
POLICE, RECREATION, AND PARK MAINTENANCE SERVICES
This proposed ordinance adds Chapter 3.34 to Title 3 of the Orange Cove Municipal Code establishing a special parcel tax to fund police, recreation, and park maintenance services indefinitely. If approved by a two-thirds majority of voters, the ordinance would impose a tax in the amount of one hundred and twenty-five dollars ($125.00) per unit for single family residences, one hundred forty-dollars ($140.00) per unit on each multi-family residential parcel, with non-residential parcels taxed at a rate of eight hundred dollars ($800.00) per acre, and four hundred dollars ($400.00) per acre on undeveloped parcels. The parcel tax would be subject be to an annual inflation of three percent (3.00%), subject to a Citizen’s Oversight Committee.
SECTION 4. The full text of the ordinance submitted to the voters is attached as Exhibit A.
The full text of Ordinance No. 403 is not required to be printed in the Sample Ballot and Voters Pamphlet. However, the full text of the measure shall be made available at the Office of the Fresno County Clerk/Registrar of Voters and the Office of the Orange Cove City Clerk (559-626-4488).
SECTION 5. Passage of this measure requires a two-thirds majority of votes.
SECTION 6. The City of Orange Cove requests that the Fresno County Clerk/Registrar of Voters conduct the election and canvass the returns, and the City consents to reimburse the Registrar of Voters for all costs incurred by said services.
SECTION 7. In all particulars not recited in this resolution, the election shall be held and conducted as provided by law for holding municipal elections.
SECTION 8. Arguments in favor or against the proposed measure are permissible and shall be filed with the Fresno County Clerk/Registrar in accordance with Elections Code Section 9282.
The Mayor is authorized to prepare and file a written argument in favor of the proposed measure not to exceed 300 words on behalf of the City Council. In the event an argument is filed against the measure, an argument against said proposition, the Mayor shall prepare and file a rebuttal argument on behalf of the City Council.
SECTION 9. The Fresno County Clerk/Registrar of Voters shall give the appropriate notices for the election in the Fresno Bee and shall conduct the election pursuant to provisions of state law.
SECTION 10. The City Attorney shall prepare an impartial analysis of the measure in accordance with Elections Code Section 9280 and file it with the Fresno County Clerk/Registrar of Voters.
SECTION 11. The City requests the Fresno County Cler/Registrar of Voters that the Measure be designated as Measure _O_.
SECTION 12. The City Clerk shall file a certified copy of this resolution with the Fresno County Clerk/Registrar of Voters as required by applicable law. The City Clerk is hereby authorized and directed to work with the Fresno County Clerk/Registrar of Voters and take all steps necessary to cause placement of the measure on the ballot.
SECTION 13. The City Clerk and the City Attorney are authorized to make any typographical, clerical, non-substantive corrections to this resolution as may be deemed necessary by the Fresno County Clerk/Registrar of Voters.
CLERK’S CERTIFICATION
I, Cynthia Cisneros, City Clerk for the City of Orange Cove, hereby certify that a public hearing was held and that the foregoing Resolution No. 2026-12 was duly approved at a regular meeting of the Orange Cove City Council on June 10, 2026, by the following vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
APPROVED
______________________
Gilbert Garcia, Mayor
ATTEST:
_______________________
Cynthia Cisneros, City Clerk
1 ORDINANCE NO. 403
AN ORDINANCE OF THE CITY OF ORANGE COVE, CALIFORNIA AMENDING THE ORANGE COVE MUNICIPAL CODE BY AMENDING CHAPTER 3.34 OF TITLE 3 BY
EXPANDING THE SPECIAL PARCEL TAX FOR POLICE, PARK, AND RECREATION
SERVICES AND ADJUSTING THE SPECIAL TAX RATES THERETO
The people of the City of Orange Cove do ordain as follows:
SECTION 1: The title of Chapter 3.34 of the Orange Cove Municipal Code is hereby amended as follows:
CHAPTER 3.34 – POLICE, PARK, AND RECREATION SERVICES SPECIAL
PARCEL TAX
SECTION 2: Section 3.34.010 of the Orange Cove Municipal Code is hereby amended to read as follows:
3.34.010 – Imposition of police, park and recreation services special parcel tax.
A special tax to fund police and recreation services and park maintenance is hereby imposed on every parcel of land in the City of Orange Cove. The tax shall be imposed each fiscal year in the amounts permitted by this chapter. The tax imposed by this chapter shall be a tax upon each parcel of property within the city and the tax shall not be measured by the value of the property.
SECTION 3: Section 3.34.020 of the Orange Cove Municipal Code is hereby amended to read as follows:
3.34.020 – Maximum tax amounts.
The maximum annual amount of the tax imposed on each parcel pursuant to this chapter shall be determined as follows:
1. A tax of one hundred twenty-five dollars ($125.00) shall be imposed on each singlefamily residential parcel within the city. A “single-family residential parcel” shall mean a parcel zoned to accommodate single-family residences.
2. A tax of one hundred forty dollars ($140.00) shall be imposed on each multi-family residential unit within the city. A “multi-family residential unit” shall mean a building or portion of a building designed for or occupied by one family which is part of a multifamily residential unit parcel. A “multi-family residential unit parcel” shall mean a parcel zoned for a building or those portions thereof that accommodate or is intended to accommodate two or more residential units.
3. A tax of eight hundred dollars ($800.00) per acre shall be imposed on each nonresidential parcel within the city. A “non-residential parcel” shall mean any parcel that is 2 not zoned for single-family or multi-family residences, but rather is zoned for commercial, light manufacturing, heavy manufacturing, or agricultural purposes.
4. A tax of four hundred dollars ($400.00) per acre shall be imposed on each undeveloped parcel within the city. An “undeveloped parcel” shall mean any parcel that lacks manmade structures, significant physical alterations, or functional utility connections and is vacant.
5. All taxes imposed on each parcel pursuant to this chapter shall be subject to an automatic annual inflation of three percent (3.00%).
SECTION 4: Section 3.34.030 of the Orange Cove Municipal Code is hereby amended to read as follows:
3.34.030 – Exemptions.
1. Parcels owned by the city, federal or state government or any other public agency and parcels owned by any public or private entity that are specifically exempted from a parcel tax enacted as a special tax under applicable state or federal statute or regulation shall be exempt from the imposition of the special parcel tax set forth in this chapter.
2. Property owners claiming an exemption under subsection (A) above shall file proof of exemption on a form prescribed by the city manager prior to March 31 prior to the first fiscal year for which the exemption is sought.
SECTION 5: Section 3.34.040 of the Orange Cove Municipal Code is hereby amended to read as follows:
3.34.040 – Administrative determinations; appeal procedures.
1. The records of the Fresno County Assessor as of March 1 of each year shall be used to determine each parcel for the calculation of the tax applicable to that parcel in the following fiscal year.
2. The city manager, or his or her authorized designee, shall administer the special parcel tax under this chapter.
3. Appeals of any determination of the city manager shall be submitted in writing to the city clerk within thirty (30) days of the date of the notice of the determination. The city council shall consider the appeal and issue a decision to the appellant in writing no later than June 30 of the fiscal year prior to the imposition of the tax.
SECTION 6: Section 3.34.050 of the Orange Cove Municipal Code is hereby amended to read as follows:
3.34.050 – Accountability measures.
1. Independent Oversight Committee. The city council shall establish an independent oversight committee to review the annual report, as described below, on issues relating to the use of the special tax proceeds set forth in this chapter. The oversight committee will 3 independently review the use and expenditure of the tax proceeds and shall present an annual report to the city council.
a. The oversight committee shall consist of five members, each shall be a resident of the City of Orange Cove, who shall serve without compensation. The members shall be nominated by the city manager following a review of their qualifications and appointed by city council approval.
b. Members shall serve two-year terms, and each member shall serve until a successor is duly appointed and confirmed. Members are limited to a maximum of two consecutive terms. The expiration date of all terms shall be May 1. Any vacancy shall be filled for the remainder of the unexpired term. The oversight committee shall select a chair from among its members annually. The chair will serve a one-year term with the option of reappointment for an additional one-year term.
c. The oversight committee shall meet at least twice annually with additional meetings convened as necessary and as determined by the chair, and shall set an attendance policy for its members.
2. Annual Review Report. An annual review report shall be prepared by the oversight committee with support from the city manager, or his designee, setting forth the amount of revenues received under the special tax and the amount and purpose of disbursements.
The purpose is to assure accountability and the proper disbursement of the proceeds of the special tax. The annual review report shall be presented to the city council not later than January 31 following each fiscal year in which the tax is collected. The annual review report shall be filed with and maintained in the city clerk's office.
SECTION 7: Section 3.34.060 of the Orange Cove Municipal Code is hereby amended to read as follows:
3.34.060 – Collection with property taxes.
The special tax imposed by this chapter shall be due in the same manner, on the same dates, and subject to the same penalties and interest as established by law for other charges and taxes fixed and collected by the County of Fresno on behalf of the City of Orange Cove. The special tax imposed by this chapter, together with all penalties and interest thereon, shall constitute a lien upon the parcel upon which it is levied until it has been paid, and shall constitute a personal obligation of the owners of the parcel on the date the tax is due.
SECTION 8: Section 3.34.070 of the Orange Cove Municipal Code is hereby amended to read as follows:
3.34.070 – Term.
The special tax adopted under this chapter shall continue indefinitely, until otherwise appealed by the electorate of the City of Orange Cove.
4 SECTION 9: If any section or portion of this Ordinance is found to be invalid by a court of competent jurisdiction, such finding shall not affect the validity of the remainder of the Ordinance, which shall continue in full force and effect, and to that extent, the provisions of this Ordinance are severable.
SECTION 10: The City hereby determines that this Ordinance is not in-and-of-itself a “project” pursuant to the California Environmental Quality Act, Public Resources Code section 21000 et seq., including without limitation CEQA Guidelines 15378(b)(4) and 15061(b)(3), as it can be seen with certainty that there is no possibility that the adoption of the ordinance itself may have a significant effect on the environment.
SECTION 11: Following certification that the eligible voters of the City of Orange Cove has approved this Ordinance, the Mayor shall sign it attesting to its adoption by the People voting thereon at the November 3, 2026 General Municipal Election, and the City Clerk shall cause the same to be entered in the book of original ordinance ordinances of said City; and shall cause the same, or a summary thereof, to be published as required by law.
This Ordinance shall take effect only if approved by two-thirds of the eligible voters of the City of Orange Cove voting at the General Municipal Election to be held on November 3, 2026. Pursuant to California Elections Code section 9217, this Ordinance shall be deemed valid and binding and shall be considered as adopted upon the date that the vote is declared by the City Council and shall take effect ten (10) days after that date.
This Ordinance was approved and adopted by the People of the City of Orange Cove at the City’s November 3, 2026 General Municipal Election.
* * * *
APPROVED
______________________
Gilbert Garcia, Mayor
ATTEST: :
_______________________
Cynthia Cisneros, City Clerk
For the Special Meeting of June 10, 2026
CITY OF ORANGE COVE
REPORT TO THE CITY COUNCIL
To: Orange Cove City Council
From: Samuel A. Escobar, City Manager
Subject: Appointment to Fill Temporary City Council Seat Vacancy Attachments: City Council Applications
RECOMMENDATION:
Staff recommends that the City Council review the applications received for the temporary City Council seat vacancy, interview applicants who are present at the June 10, 2026, meeting, and appoint a qualified candidate to serve as a temporary City Council Member until the vacancy is filled at the General Election on November 3, 2026.
BACKGROUND:
A vacancy currently exists on the City Council. Pursuant to applicable state law and the City's Municipal Code, the City Council may fill the vacancy by appointment until the next regularly scheduled election at which the office can be filled by the voters.
To facilitate the appointment process, the City accepted applications from eligible residents interested in serving on the City Council. The application period closed on June 5, 2026, and applications received by the deadline have been provided to the City Council for review.
At the June 10, 2026, meeting, applicants who are present will be provided an opportunity to interview before the City Council. Following the interviews, the City Council may deliberate and appoint a qualified applicant to serve as a temporary City Council Member.
FISCAL IMPACT:
None.
CONFLICT OF INTEREST:
None.
Prepared by: Cynthia Cisneros Approved by: Samuel A. Escobar, City Manager REVIEW: Samuel A. Escobar Finance: _______ City Attorney: ______ TYPE OF ITEM: COUNCIL ACTION: • APPROVED • DENIED • NO ACTION Consent
Info Item
X_ Action Item
Department Report
Redevelopment Agency
Public Hearing
Matter Initiated by a Council
Member
Other
Continued to: __________
For the Special Meeting of June 10, 2026
CITY OF ORANGE COVE
REPORT TO THE CITY COUNCIL
To: Orange Cove City Council
From: Samuel A. Escobar, City Manager
Subject: Planning Commission Interview Panel
Attachments: None
RECOMMENDATION:
Staff recommends that the City Council designate two Council Members to serve on the interview panel for the Planning Commission applicants.
BACKGROUND:
The city recently initiated a recruitment process for Planning Commission positions. The recruitment period commenced on April 9, 2026, and continued through May 29, 2026.
The recruitment was undertaken because records identifying the number of terms served by current commissioners are incomplete or unavailable. Without historical term information, staff cannot verify term limits, appointment history, or the duration of service for current commissioners.
To ensure a transparent and equitable appointment process, all current Planning Commissioners were encouraged to participate by submitting applications and taking part in interviews alongside new applicants.
The city has received applications for positions on the Planning Commission. To facilitate the appointment process, staff requests that the City Council appoint two Council Members to participate in applicant interviews. Following the interviews, the panel will provide recommendations to the City Council for consideration in making appointments to the Planning Commission.
The term for the appointment will be as follows:
Two Commissioners: One (1) year term expiring July 2027 One Commissioner: Three (3) year term expiring July 2029 One Commissioner: Four (4) year term expiring July 2030.
The Planning Commission serves as an advisory body to the City Council on matters related to land use, zoning, development proposals, and long-range planning issues.
Maintaining a full and active commission is important to supporting the City's planning and development objectives.
FISCAL IMPACT:
None.
CONFLICT OF INTEREST:
None.
Prepared by: Cynthia Cisneros Approved by: Samuel A. Escobar, City Manager REVIEW: Samuel A. Escobar Finance: _______ City Attorney: ______ TYPE OF ITEM: COUNCIL ACTION: • APPROVED • DENIED • NO ACTION Consent
Info Item
X_ Action Item
Department Report
Redevelopment Agency
Public Hearing
Matter Initiated by a Council
Member
Other
Continued to: __________
For the Council Meeting of June 10, 2026
CITY OF ORANGE COVE
REPORT TO THE CITY COUNCIL
To: Orange Cove City Council
From: Danny Jimenez, Finance Director
Subject: Fiscal Year 2026-2027 General Fund Budget Workshop Attachments: None.
RECOMMENDATION:
Receive and discuss the proposed General Fund Budget for Fiscal Year 2026-2027 and provide policy direction to staff regarding budget priorities, service levels, and funding allocations for inclusion in the proposed budget document.
BACKGROUND:
The General Fund is the City's primary operating fund and accounts for the majority of municipal services, including administration, public safety, public works, community development, recreation, and other general government functions.
The purpose of this budget workshop is to provide the City Council with an overview of the proposed General Fund Budget, discuss significant revenue and expenditure assumptions, review fiscal challenges and opportunities, and obtain policy direction prior to adoption of the final budget.
CONFLICT OF INTEREST:
None.
Prepared by: Finance Director Approved by: Samuel A. Escobar REVIEW: Finance Director______ Finance: _______ City Attorney: ______ TYPE OF ITEM: COUNCIL ACTION: • APPROVED • DENIED • NO ACTION Consent
X Info Item
Action Item
Department Report
Redevelopment Agency
Public Hearing
Matter Initiated by a Council Member
Other
Continued to: _________
For the Meeting of June 10th, 2026
CITY OF ORANGE COVE
REPORT TO THE CITY COUNCIL
To: Orange Cove City Council
From: Joe Estrada, Public Works Director
Subject: Approval of New Public Works Administrative Assistant Position – Internal Recruitment
Attachments: Job Description
Salary Schedule
RECOMMENDATION:
Staff recommends that the City Council approve the establishment and filling of a new full-time position within the Public Works Department titled Public Works Administrative Assistant and further authorize internal recruitment to fill the position. The role will provide dedicated clerical support, data entry assistance, record management, and customer service operations for the Public Works Department.
BACKGROUND:
Historically, administrative operations within the Public Works Department have been handled by the Public Works Director and various City Hall staff members. While staff has continued to support the department’s daily functions, this arrangement has presented operational challenges and inefficiencies due to increasing workloads and limited dedicated administrative support.
As the Public Works Department continues to expand operational responsibilities, regulatory reporting requirements, work order tracking, utility coordination, customer service requests, and departmental documentation, it has become necessary to establish a dedicated full-time administrative position to support departmental operations.
The addition of a Public Works Administrative Assistant will improve overall efficiency by:
• Providing consistent clerical and administrative support; • Improving customer service response times;
• Assisting with data entry, filing, and records management; • Supporting departmental reporting and operational tracking; • Enhancing communication between Public Works and City Hall operations; and • Allowing supervisory and field staff to focus on operational responsibilities.
The proposed position will strengthen internal operations and improve the department’s ability to provide efficient services to the community.
REASON FOR RECOMMENDATION:
Staff respectfully recommends that the City Council approve the establishment and internal recruitment of the Public Works Administrative Assistant position to support the operational and administrative needs of the Public Works Department.
FISCAL IMPACT:
The fiscal impact associated with this request will be minimal, as the position is proposed as an internal transfer to a newly added position within the organizational structure.
CONFLICT OF INTEREST:
None.
Prepared by: Joe Estrada Approved by: Samuel A. Escobar, City Manager REVIEW: Samuel A. Escobar Finance: _______ City Attorney: ______ TYPE OF ITEM: COUNCIL ACTION: • APPROVED • DENIED • NO ACTION Consent
Info Item
X_ Action Item
Department Report
Redevelopment Agency
Public Hearing
Matter Initiated by a Council
Member
Other
Continued to: __________
CITY OF ORANGE COVE
ADMINISTRATIVE ASSISTANT – PUBLIC WORKS
DEFINITION
To perform a variety of routine to complex clerical, technical, and administrative support public works activities in the department to which assigned; and to perform related duties and responsibilities as required.
SUPERVISION RECEIVED AND EXERCISED
Receives direction from department management.
EXAMPLES OF ESSENTIAL FUNCTIONS - Essential functions may include, but are not limited to, the following:
• Performs advanced, varied, and responsible office support duties to assist in the coordination, processing, and completion of routine and/or confidential administrative operations within assigned department.
• Evaluates office procedures and makes recommendations for modifications as necessary to maintain efficient and effective office operations. • Assists in developing and implementing office objectives, policies, procedures, and work standards.
• Attends meetings as required; prepares and distributes meeting agendas and minutes.
• Research and compiles information from a variety of sources for the completion of forms or preparation of reports.
• Processes various forms, applications, permits, or other documents requiring indepth, sub-professional knowledge of the department’s functions; creates forms to facilitate work as needed.
• Types documents from drafts, notes, dictated tapes or brief instructions, which may include various memos, notices, correspondence and other external communications, statistical and narrative reports, records, forms, manuals, contracts, specifications, proposals, official documents, legal documents, etc.; may compose routine correspondence and reports.
• Edits, proofreads and checks typed and other materials for accuracy, completeness and compliance with departmental policies and procedures. Establishes, organizes, and maintains department filing systems.
• Enter and retrieves computer data; generates computer reports and/or spreadsheets.
• Schedules and maintains appointments, meetings, work activities, and other functions as required.
• Make meetings, conference and travel arrangements as requested by department staff. May help with personnel functions of the assigned department, including maintaining employee records and processing personnel paperwork. • Orders, stores, and issues department supplies and materials may prepare bid documents.
• May perform various bookkeeping tasks, which may include but are not limited to calculating monies due, collecting, and receipting monies, processing requisitions, processing reimbursements, processing payroll, posting financial data, preparing bank deposits, maintaining, and balancing accounts, transferring funds, etc. • Answer the telephone and provide information and assistance to callers or forwards calls to appropriate staff person; take messages, as necessary. • Performs routine clerical support work as required, which may include but is not limited to copying and distributing documents, filing / retrieving files, processing mail, sending, and receiving faxes, collating documents, maintaining lists and logs, etc.
• Provides information and assistance to other City staff, other agency personnel, and the public, requiring the use of judgment and the interpretation of policies, procedures, or rules; assists in coordinating office activities with those of other departments and agencies, as necessary.
• Assist in Housekeeping and minor janitorial work as requested by management. • Provides professional, courteous customer service always. • Operates a variety of standard office equipment, which may include computers, printers, copier, adding machine, fax machine, paper shredder, telephone, two-way radio, postage machine, etc. Attend various meetings and training as required or appropriate.
• Coordinates, monitors, and expedites the completion of special projects holiday events, assignments, and activities.
• May provide technical assistance to co-workers in the use of department computer equipment and systems.
MINIMUM QUALIFICATIONS
Knowledge of:
• Modern office practices and technology, including the use of computers for word and data processing.
• Methods of letter writing record-keeping and report preparation. • Filing systems and methods.
• English usage, spelling, grammar, and punctuation.
• Basic business arithmetic, budgeting, and bookkeeping methods.
Ability to:
• Able to read, write, and speak English fluently. Bilingual skills are a plus. • Read, learn, understand, and apply pertinent federal, state, and local laws, rules, and regulations.
• Perform detailed clerical and administrative work accurately. • Learn specialized processes, procedures and office support tasks related to the department to which assigned.
• Organize work, set priorities, meet critical deadlines, and follow up on assignments with a minimum of direction.
• Use initiative and sound, independent judgment within established guidelines. • Perform work effectively despite frequent interruptions and the pressure of deadlines.
• Understand and follow oral and written instructions.
• Establish and maintain accurate records and files.
• Maintain confidentiality as required.
• Type at an accurate speed is necessary for successful job performance. • Learn and use a variety of computer software programs, including word processing, data processing, and accounting programs.
• Safely operate basic office equipment.
• Communicate clearly and concisely, both orally and in writing. • Prepare clear and concise reports.
• Perform mathematical computations with accuracy.
• Establish and maintain effective working relationships with those contacted in the course of work.
Experience:
Two years of increasingly responsible clerical experience.
Education:
Graduation from high school or GED equivalent.
Additional Requirements:
Possession of a valid California Class “C” driver’s license.
Proficiency in the use of word processing software in common use in local government, such as Microsoft Office Suite.
TYPICAL WORKING CONDITIONS
Work is performed in a normal office environment. Tasks may involve extended periods of time at a keyboard or workstation.
TYPICAL PHYSICAL REQUIREMENTS
Requires the mobility to work in an office environment. Requires the ability to sit at desk for long periods of time and intermittently walk, stand, stoop, kneel, crouch, and reach while performing office duties; use hands to finger, handle or feel objects, tools, or controls; lift and/or move objects and materials of up to 25 pounds in weight. Must be able to maintain effective audio-visual discrimination and perception needed for making observations, communicating with others, reading, and writing, and operating office equipment. Must be able to use a telephone to communicate verbally and a keyboard to communicate through written means, to review information and enter/retrieve data, to see and read characters on a computer screen.
This class specification lists the major duties and requirements of the job and is not allinclusive. Incumbents may be expected to perform job-related duties other than those contained in this document.
Salary Schedule
Public Works Admin Assistant Step A Step B Step C Step D Step E
HOURLY RATE
23.42 24.59
25.82 27.11
28.47 MONTHLY RATE
4,059.47
4,262.44
4,475.56
4,699.34
4,934.31
ANNUAL RATE
48,713.60
51,149.28
53,706.74
56,392.08
59,211.69
For the Meeting of June 10th, 2026
CITY OF ORANGE COVE
REPORT TO THE CITY COUNCIL
To: Orange Cove City Council
From: Joe Estrada, Public Works Director
Subject: Approval of hiring a Wastewater Treatment Chief Plant Operator Attachments: Job Description
Salary Schedule
RECOMMENDATION:
Staff recommends that City Council approve an external recruitment and hire a full-time Wastewater Chief Plant Operator for the City’s wastewater treatment operations.
Since 2020, the City has operated without a full-time Chief Plant Operator. During this time, wastewater operations have been managed on a part-time basis by the Public Works Director to maintain continuity and ensure compliance with California State Water Resources Control Board (SWRCB) requirements.
As the City advances its five-year operational and infrastructure plan, dedicated full-time supervision of the wastewater division has become increasingly necessary. The wastewater treatment facility is a critical public utility requiring consistent oversight, regulatory compliance monitoring, operational planning, staff supervision, reporting, and coordination of preventative maintenance activities.
Hiring a full-time Chief Plant Operator will provide the city with the following benefits:
• Improved regulatory compliance with SWRCB requirements; • Enhanced operational oversight and accountability;
• Better long-term planning for wastewater infrastructure and maintenance; • Increased support for wastewater staff and daily operations; and • Reduced operational risk to the city.
BACKGROUND:
The city has not maintained a full-time Chief Plant Operator position since 2020. While current operations have continued under part-time supervision, the increasing demands of wastewater compliance and operational management make it necessary to restore this position as a full-time supervisory role.
REASON FOR RECOMMENDATION:
Staff respectfully recommend that the City Council approve the recruitment and hiring of a full-time Wastewater Chief Plant Operator to support the City’s wastewater operations and maintain compliance with state regulatory requirements
FISCAL IMPACT:
The fiscal impact associated with filling this position will be funded through the Wastewater Enterprise Fund. No General Fund monies are proposed to be used for this position.
CONFLICT OF INTEREST:
None.
Prepared by: Joe Estrada Approved by: Samuel A. Escobar, City Manager REVIEW: Samuel A. Escobar Finance: _______ City Attorney: ______ TYPE OF ITEM: COUNCIL ACTION: • APPROVED • DENIED • NO ACTION Consent
Info Item
X_ Action Item
Department Report
Redevelopment Agency
Public Hearing
Matter Initiated by a Council
Member
Other
Continued to: __________
Salary Schedule
Chief Plant Waste Water Operator Step A Step B Step C Step D Step E
HOURLY RATE
37.00 38.85
40.79 42.83
44.97 MONTHLY RATE
6,413.33
6,734.00
7,070.70
7,424.24
7,795.45
ANNUAL RATE
76,960.00
80,808.00
84,848.40
89,090.82
93,545.36
For the Special Meeting of June 10, 2026
CITY OF ORANGE COVE
REPORT TO THE CITY COUNCIL
To: Orange Cove City Council
From: Javier Pena, Chief of Police
Subject: Approval of revised City of Orange Cove Towing / Operator Agreement
Attachments: Revised Tow Agreement
RECOMMENDATION:
Staff recommends the City Council approve the revised Tow Agreement. The city requires the commissioning of tow truck operators on a rotational basis to deliver towing services within its jurisdiction; and the operator is a licensed tow truck operator qualified to provide these services within the city’s jurisdiction; and all parties wish to formalize an agreement that will place the operator on the city’s rotation list, set a fair and reasonable rate for towing services requested by the city, and outline the guidelines for companies involved in the city’s rotation program.
BACKGROUND:
The Orange Cove Police Department Policy 502 establishes a rotation system for police-initiated tows of vehicles and directs that the police call to move and store motor vehicles in accident, arrest, disabled vehicle, and similar cases. The city requires the commissioning of tow truck operators on a rotational basis to deliver towing services within its jurisdiction; and the operator is a licensed tow truck operator qualified to provide these services within the city’s jurisdiction; and all parties wish to formalize an agreement that will place the operator on the city’s rotation list, set a fair and reasonable rate for towing services requested by the city, and outline the guidelines for companies involved in the city’s rotation program.
FISCAL IMPACT:
None.
CONFLICT OF INTEREST:
None.
Prepared by: Javier Pena Approved by: Samuel A. Escobar, City Manager REVIEW: Samuel A. Escobar Finance: _______ City Attorney: ______ TYPE OF ITEM: COUNCIL ACTION: • APPROVED • DENIED • NO ACTION Consent
Info Item
X_ Action Item
Department Report
Redevelopment Agency
Public Hearing
Matter Initiated by a Council
Member
Other
Continued to: __________
AGREEMENT
This AGREEMENT (hereinafter “Agreement”) made this day of by and between City of Orange Cove, (hereinafter “City”) and , (hereinafter “Operator”) as follows:
RECITALS
A. WHEREAS, City has a need to commission tow truck operators on a rotation basis to provide tow services within the City’s jurisdiction; and B. WHEREAS, Operator is a duly licensed tow truck operator capable of providing the tow services within the City’s jurisdiction; and
C. WHEREAS, the parties hereto desire to enter into an agreement to provide for Operator’s placement on a rotation list as maintained by the City, to establish a fair and reasonable City rate for tow services requested by the City and to establish guidelines for companies participating in City’s rotation program:
NOW THEREFORE, the parties agree as follows:
1. ROTATION LIST
A. The City shall maintain a rotation tow list to ensure an equitable distribution of calls. The number of rotational tow companies on the list will be capped at a maximum number of (3) owner/operators for span of control purposes. When a tow company resigns, the level of service will be re-evaluated to determine whether or not an additional tow service is needed based on current service levels.
Nothing in this Agreement shall prohibit the City from requesting a specific tow company when, in the Chief of Police’s or his designee’s opinion, the necessary resources to clear a hazard as expeditiously as possible are not available from tow company currently at the top of the rotation tow list.
1) In such an instance, the tow company selected would be the next tow company on the list, which has the qualifications (equipment, skills, timeliness, etc.) to provide the required service. After the request, the selected company would then go to the bottom of the rotation two list and remain there until lit rotates back into its original position. Tow companies on the same list that were by-passed would remain in the same order until their selection for a rotation tow for which they are qualified.
B. Nothing shall prohibit a Class B, C, or D operator from maintaining a place on the rotation tow list, provided the tow truck meets the equipment specifications for that class of operation.
1) Regardless of the class of tow truck utilized or responding to the call, charges shall not be more than for the class of vehicle towed or serviced except where vehicle recovery operations require a larger class of tow truck.
C. A call to an operator shall constitute one turn on the list and the operator shall be moved to the bottom of the list. This includes when the operator fails to answer the phone, is unable to respond, is unable to perform the required service, refuses to respond or provide service or is canceled due to excessive response time. If it is determined that the operator is not needed and is canceled by the City, up to and including arrival at the scene and standby time which does not result in a tow, there shall be no charges and the operator will be placed back at the top of the list. 1) If the operator is canceled by the vehicle’s owner or agent prior to the operator taking possession of the vehicle, there shall be no charges for the towing. The operator shall immediately contact the City and advise them of the cancellation. The operator will then be placed back at the top of the list.
2) If service, other than towing and recovery, has begun and is canceled by the vehicle’s owner or agent, the operator may charge a minimum of onehalf of the regular hourly service charge, for the time expended on the call for purposes of cancellation, service begins when physical work on the vehicle has begun, not the response. No lien shall arise for the service unless the operator has presented a written statement to the vehicle’s owner or agent for the signed authorization of services to be performed. a) The operator shall not attempt to take possession of the vehicle in order to establish a lien for any non-towing services performed, or begun and subsequently canceled, when not entitled to such lien by law. Refer to Civil Code Section 3068.1 for when a lien begins.
D. If two or more operators are called to the same incident, distribution of the vehicles shall be at the discretion of the City.
E. The City Incident Commander may direct a rotation tow operator to move vehicles to help clear a roadway or for lifesaving operations. Operators shall provide the assistance as directed. There shall be no charge for this assistance, and the assistance provided shall not change the operator’s place in the rotation.
F. An operator shall have a business office, storage facility located within the City limits of Orange Cove, unless this requirement is excused by the police officer or his designee. Refer to Attachment A for the definition of a City Rotation Tow Business.
1) The Police Chief or his designee may establish a maximum radius for the location of a business office from which an operator may provide service under this Agreement.
2) A secondary storage facility does not qualify an operator for an additional place on the rotation list.
G. Operators applying for a rotation tow listing shall have a minimum of three (3) years verifiable for-hire-towing experience, as an owner or principal, prior to the final filing date of an enrollment period in order to qualify for a City rotation tow listing.
1) Operators and owners who do not meet the three year verifiable for-hire-towing experience may be considered for a position on the City rotation tow list if a full time manager who possesses the required tow management experience is employed by the company. The manager shall have the authority to conduct all company business and to sign the Tow Service Agreement. If the manager ceases to be employed by the company, the Agreement will be terminated until a new manager can be approved by the City. The City will evaluate the new manager’s experience and require him/her to sign the Tow Service Agreement for the company. An operator/owner who releases vehicles, completes lien sale paperwork and other tow business related documents for three years, in the company with the qualified manager, will fulfill the three years for-hiretowing experience requirement. 2) Ownership status will be investigated and determined by the City.
2. TOW TRUCK CLASSIFICATIONS
A. An operator shall equip and maintain tow trucks covered under this Agreement (Attachments B and C) in accordance with the provisions set forth in the California Vehicle Code, Title 13 of the California Code of Regulations, the specifications contained in this Agreement, and consistent with industry standards and practices.
1) Notwithstanding Section 615 VC, all tow trucks shall have recovery capabilities, wheel lift capabilities, and a boom meeting the specifications contained in this Agreement. Class D tow trucks used exclusively for salvage and recovery operations are not required to possess underlift capabilities. For the purpose of this Agreement, "a trailer for hire that is being used to transport a vehicle" shall not qualify as a primary tow truck for rotation tow lists.
2) An operator who has a car carrier may be exempted from the recovery, wheel lift, and boom capability requirements. However, the car carrier must be an additional unit.
B. A violation of the Gross Vehicle Weight Rating (GVWR) and safe loading requirements of a tow truck may be cause for immediate suspension. This exceeding the tow truck’s GVWR, front axle weight rating, rear axle weight rating, maximum tire weight ratings, or not maintaining 50 percent of the tow truck’s unladen front axle weight on the front axle when in tow.
C. There will be four classes of tow trucks covered under this Agreement:
1) Class A – Light Duty
a) An operator shall maintain a minimum of one tow truck which has a manufacturer’s GVWR of at least 10,000/14,000 pounds. (Refer to General Equipment Specifications.) Class A equipment specifications can be found in Attachment C of this Agreement. (1) The Area commander may require more than one tow
truck in areas where rapid response for congestion relief is required.
(2) The Area commander may require that one of the
additional required tow trucks be a car carrier in areas where rapid response for congestion relief is required
or where the need exists based upon the type of
vehicles towed.
(3) A “trailer for hire” shall not be approved for listing as a Class A tow truck.
(4) Tow companies whose equipment had previously been
approved and continuously used on rotation for the City and owned by the same operator, but do not have wheel
lift capabilities, may apply for and receive a Class A
rotation tow listing.
2) Class B - Medium Duty
a) An operator shall maintain a minimum of one tow truck with a GVWR of at least 19,501 pounds. The truck shall be equipped with air brakes and a tractor protection valve or device, and be capable of providing and maintaining continuous air to the towed vehicle. Class B equipment specifications can be found in Attachment C of this Agreement.
b) The Area commander may require more than one tow truck in areas where rapid response for congestion relief is
required.
c) Tow companies whose equipment had previously been approved and continuously used on rotation for the City and owned by the same operator, but do not have wheel lift capabilities, air brakes, and/or a tractor protection valve or device, may apply for and receive a Class B rotation tow listing if the tow truck is capable of supplying continuous air to the towed vehicle from its engine mounted air compressor and is equipped with an air gauge. d) Class B tow trucks that are not equipped with portable tow dollies 24 hours a day, 7 days a week, will not be allowed to operate on a Class A rotation tow list.
3) Class C - Heavy Duty
a) An operator may maintain at least one three-axle tow truck with a GVWR of at least 33,000 pounds. The truck shall be equipped with air brakes and must be capable of providing and maintaining continuous air to the towed vehicle. Class C equipment
specifications can be found in Attachment C of this Agreement. b) Tow companies whose equipment had previously been approved and continuously used on rotation for the City and owned by the same operator, but do not have under lift capabilities and/or threeaxles, may apply for and receive a Class C rotation tow listing. c) The Area commander may require more than one tow truck in areas where rapid response for congestion relief is required. 4) Class D - Super Heavy Duty
a) An operator may maintain at least one three-axle tow truck with a GVWR of at least 50,000 pounds. The truck shall be equipped with air brakes and must be capable of providing and maintaining continuous air to the towed vehicle. Class D equipment
specifications can be found in Attachment C of this Agreement. b) This class of tow truck should be used exclusively for salvage and recovery operations.
c) The Area commander may require more than one tow truck in areas where rapid response for congestion relief is required.
D. To properly and safely tow and service the wide variety of vehicles being operated on the highway, a towing procedure may require the use of auxiliary equipment specifically designed for the purpose. This auxiliary equipment should be used when appropriate. A listing of service and auxiliary equipment for each classification can be found in Attachment C of this Agreement.
3. TOW TRUCK DRIVERS
A. All rotation tow truck drivers will attend or challenge and successfully pass a certified tow truck driver training course. Acceptable courses to fulfill this requirement will be reviewed and approved by the Police Chief or his designee.
The Police Chief may waive this requirement for a period of up to six months in instances where a company has no drivers who have completed a certified tow truck driver-training course and the lack of training is due to a loss of trained employees (Attachment E). Certified tow truck driver training requirements will not be enforced until . The operator shall ensure that tow truck drivers responding to calls initiated by the City have completed a certified tow truck drivers training course and are qualified and competent employees of the operator’s company. The operator shall ensure that the tow truck drivers are trained and proficient in the use of the tow truck and related equipment, including, but not limited to, the procedures necessary for the safe towing and recovery of the various types of vehicles serviced through City rotation. Tow truck drivers shall be at least 18 years old and possess the following minimum class driver license:
1) Class A tow truck - A valid Class C license, or a v valid Class A license with valid medical certificate.
2) Class B tow truck - A valid Class C license for non-regulated vehicles, o a valid Class A license with valid medical certificate for regulated vehicles pursuant to Section 34500 VC.
3) Class C tow truck - A valid Class A license with valid medical certificate. 4) Class D tow truck - A valid Class A license with valid medical certificate.
B. The Class A (1) license must be endorsed to allow operation of special vehicle configurations and/or special cargoes (refer to Attachment B).
C. The operator shall maintain a current list of drivers. 1) The operator shall provide a current list of drivers to the City upon implementation of this Agreement. The operator shall notify the City upon any change in driver status, including the addition of any new drivers, or the deletion of any drivers. An updated list shall be provided to the City within seven calendar days of any change in driver status. 2) Operators shall provide a copy of the certified tow truck drivers training certificate to the City for each driver and operator. Tow companies need only supply the certificate copy one time. Certified copies will be supplied upon request by the City.
3) Operators shall, as a minimum, maintain the following information for each employee:
a) Full name.
b) Date of birth.
c) California driver license number.
d) Copy of valid medical certificate (if required).
e) Job title/description.
f) Current home address.
g) Current home phone number.
h) Types of trucks the driver is trained and instructed to operate. i) A copy of the tow truck driver training course certificate.
4. RATES
A. Fees charged for response to calls originating from the City shall be established by the Police Chief on an annual basis through a closed bid process. Operators would be able to submit proposals stating the rates Operators would charged for the services required under this agreement. The Police Chief shall determine the lowest most responsible rate from the proposals submitted and that rate becomes the City rate. In no event shall the City rate exceed the applicable CHP rate for the service. The responsiveness and reasonableness of the proposed rates will be determined in the following manner:
1) The Police Chief or his designee shall determine the validity and reasonableness of the submitted rates.
a) Validity will be based upon telephone quotes, posted rates, charges to retail customers, etc. Any submitted rate in excess of an operator’s usual customary retail rate quoted over the phone and posted in the company office, (as defined in Attachment A) will be considered invalid and will not be accepted.
b) Reasonableness shall be determined as compared to other rates. 2) In an effort to remain competitive in the open market, the operator may lower retail rates at any time by notifying the City. When an operator lowers the retail rate, that retail rate becomes the new approved City rate.
Operators may only raise rates for City calls during enrollment periods or upon approval after a midterm review. Operators may raise rates for nonCity calls at anytime. Rates for City calls shall remain at the lowest retail rate until the next enrollment period.
3) Any operator who charges rates above the City rate and/or the CHP rate for such services shall be in violation of the Agreement and subject to disciplinary action.
B. The rate for towing shall be computed from portal to portal (as defined in Attachment A). Time expended shall be charged at a rate not to exceed the approved City rate. Time expended in excess of the minimums shall also be at the hourly rate in no more than one-minute increments. There shall be no additional charges for mileage, labor, etc.
1) The operator may charge up to a thirty-minute minimum per call for any service or tow which is performed when the vehicle operator or agent is present and the vehicle is not stored at the direction of an officer. 2) The operator may charge up to a one-hour minimum per call on responses which results in storage of a vehicle at the direction of an officer. This does not include storage at the request of the vehicle operator, registered owner, or agent.
3) The operator shall base towing charges upon the class of vehicle being towed regardless of the class of truck used, except when vehicle recovery operations require a larger class truck.
C. Rates for a service call (out of gas, lockouts, tire changes, etc.) shall be from portal to end of service, and may be at the hourly rate with up to a thirty-minute minimum. Charges in excess of thirty minutes may be charged in no more than one-minute increments.
D. Fees for Special Operations
1) Fees charged for special operations involving Class B, C, and D tow trucks, the operators shall submit the proposed rates for vehicle recovery operations and load salvage operations (as defined in Attachment A) to the Police Chief or his designee at the same time as the proposed rates for the other services as set forth in paragraph A above. The proposed fees shall be reasonable and consistent with industry standards for similar operations. The Police Chief or his designee shall determine the lowest, most responsible fee from the proposals submitted and that fee becomes the City fee. In no event shall the City fee exceed the applicable CHP fee for the service. .
a) Hourly rates shall be proposed for the following:
(1) Auxiliary Equipment, e.g., airbags, converter gear/dolly, additional trailers, etc.
(2) Contracted Equipment, e.g., airbags, converter gear/dolly, additional trailers, forklifts, front loaders, etc.
(3) Contract labor.
b) The Police Chief or his designee shall determine the lowest, most responsible fee from the proposals submitted and that fee becomes the City fee. In no event shall the City fee exceed the applicable CHP fee for the service.
2) Operators shall propose a mark-up rate (percentage of the cost to the operator) for retail equipment and specialized labor not otherwise listed on the application.
3) If an operator performs a service for which a required rate was not submitted to, and approved by, the City, the operator shall only be entitled to charge for the actual cost of that service. Example: contract labor rate not submitted, the operator may only charge for the actual rate paid for the labor.
E. The total fees charged for after hours release shall be no more than one-half the hourly rate, and shall only be allowed outside posted business hours, after 6 p.m. on business days, weekends and holidays.
F. Storage Fees
1) The operator shall submit proposed storage fees for inside and outside storage to the Police Chief or his designee at the same time as the proposed rates for the other services as set forth in paragraph A above.
The Police Chief or his designee shall determine the lowest, most responsible fee from the proposals submitted and that fee becomes the City fee. In no event shall the City fee exceed the applicable CHP fee for the service.
2) The operator shall display in plain view at all cashiers’ stations, a sign as described in Section 3070 of the Civil Code, disclosing all storage fees and charges in force, including the maximum storage rate. 3) Vehicles stored 24 hours or less shall be charged no more than one day storage. Each day or partial day thereafter shall be calculated by calendar day.
4) The registered and/or legal owner of a vehicle stored or impounded shall be allowed to retrieve personal property from the vehicle without charge and a notice to that affect shall be posted within the business.
G. The approved schedule of rates charged by the operator shall be available in the tow truck, and shall be presented upon demand to the persons for whom the tow services were provided, their agent, or any City officer at the scene.
H. Rate requirements represent the maximums an operator may charge on a City call.
An operator is not precluded from charging less when deemed appropriate by the operator. These requirements shall not be construed as requiring a charge when an operator would not normally charge for such service.
1) No operator or employee shall refer to any rate as the minimum required or set by the City.
5. COLLUSION
A. An operator and/or applicant shall not conspire, or attempt to conspire, or commit any other act of collusion, with any other operator or applicant for the purpose of secretly, or otherwise, establishing an unfair understanding regarding rates or conditions to the Agreement that would bring about any unfair condition which could be prejudicial to the City, the motoring public, or other operators. 1) Examples of “collusion” include, but are not limited to: conspiracy by any tow operators to establish artificially high or low rates for services performed pursuant to the Agreement, conspiracy or attempt to circumvent the midterm review process, etc.
B. A finding by the City that any operator or applicant has been involved in collusion shall be cause for denial of an application or shall nullify the Agreement. Any operator or applicant found to be involved in any act, or attempted act of collusion, shall be disqualified from participation on the City rotation tow list for the current term, plus three years.
6. RESPONSE TO CALLS
A. The operator shall respond to City calls 24 hours a day, seven days a week, within the maximum response time limits as established by the Police Chief or his designee. The operator shall respond with a tow truck of the class required to tow the vehicle specified by the City. The operator shall advise City dispatch, at the time of notification, if they are either unable to respond or unable to meet the maximum response time. If, after accepting the call, the operator is unable to respond or will be delayed in responding, the operator shall immediately notify the City. The operator shall not assign initial calls to other tow operators. 1) A failure to respond and/or repeated failure to meet the maximum response time requirements shall constitute failure to comply with the terms and conditions of this Agreement.
a) The Police Chief or his designee may take immediate disciplinary action for any flagrant violation of the requirement to respond within the maximum response time.
b) When an operator will be temporarily unavailable to provide services due to a pre-planned or scheduled activity, e.g., vacation, maintenance, medical leave, etc., the operator shall notify the Police Chief or his designee at least 24 hours prior to the date that services will be unavailable, noting the times and dates of the unavailability.
B. The tow operator, or operator’s employees responding to a City call, shall perform the towing or service required for which they were called. This requirement may be waived by the Police Chief or his designee if the requested equipment is inadequate for the service to be performed.
1) Any refusal to respond or to perform the required towing or service will subject the operator to suspension, if deemed appropriate by the City.
C. An operator shall not respond to a City call assigned to another operator unless requested to do so by the City.
1) There may be times when the operator assigned the initial City call may require the assistance of an additional operator at the scene. The operator assigned the initial call may, subject to prior agreement with the Police Chief or his designee, request a specific operator for assistance. The request shall be routed to the additional operator through the City. 2) There may be times when an operator, who was not called to a scene, comes upon a collision scene where a vehicle or vehicles are blocking a roadway and a City officer requests assistance in clearing the roadway. In such a case, the operator may be requested to move the vehicle to a safe location, as directed by the officer, and leave it. There shall be no charge for this assistance, and the assistance provided shall not change the operator’s place in the rotation.
D. Only the tow truck personnel and equipment requested shall respond to a City call. Additional tow truck personnel and equipment shall be at the approval of the Police Chief or his designee. This shall not preclude the operator from responding to an incident to ascertain if additional assistance or equipment is required. There shall be no additional charge for any personnel or equipment that is not necessary to perform the required service.
7. STORAGE FACILITY
A. The operator shall be responsible for the security of vehicles and property at the place of storage. The operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles.
The operator shall also comply with the following requirements regarding outside and inside storage facilities:
1) A security system and video surveillance.
2) Properly secured fencing in good condition. Cyclone fencing shall have properly fitted slats of the same color, which prevents public viewing of stored vehicles.
3) Any storage facility with a dirt easement will provide and maintain landscaping to city standards.
B. The operator shall obtain approval from the City prior to the removal of any property from a stored or impounded vehicle and shall provide a receipt, with a copy placed in the stored vehicle. The requirement to obtain approval from the City prior to the removal of property may be excused by the Police Chief or his designee if it’s determined that proper safeguards and procedures are utilized by the operator.
1) This requirement may not be waived in cases where a vehicle has been impounded for evidence or investigation.
2) Upon approval from the City, the operator shall release personal property from an impounded vehicle at the request of the vehicle owner or agent.
a) There shall be no charge for the release of personal property during normal business hours. Operators may charge an after-hours release fee for property released after normal business hours, consistent with the after-hours vehicle release provisions. b) Personal property is considered to be items which are not affixed to the vehicle.
(1) Personal property includes: papers, transportable cellular telephones, pullout radios, portable radios and/or portable stereo equipment, clothes, luggage, tools, etc.
(2) Personal property from a stored vehicle shall be released upon request of the vehicle owner or agent.
3) Cargo shall be released upon demand of the carrier or pursuant to a court order.
4) Operator shall prominently display in plain view at all cashiers’ stations, a sign not less than 17 by 22 inches in size with lettering not less than one inch in height, advising the vehicle owner or agent that they may retrieve the personal property during normal business hours without charge upon request.
C. The primary storage facility shall normally be at the same location as the business address. If not at the same location, there shall be no charge for any additional distance traveled to and from a secondary location. The vehicle and/or personal property shall be released at the primary storage facility or place of business (when the primary storage facility and the place of business are not at the same location) upon request of the owner or a person having a legal entitlement to the vehicle and/or property.
1) Prior to the utilization of new storage facilities that were not listed on the application for rotation tow listing, the operator shall furnish the address and obtain the Area commander’s approval.
2) Secondary storage facilities shall be located reasonably close to the main business office.
D. Tow operators shall maintain sufficient storage spaces.
E. An operator’s place of business shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street. The sign shall be visible at night.
F. For the purpose of this Agreement, “normal business hours” shall not be less than 8 a.m. to 5 p.m., Monday through Friday, except for the following state recognized holidays:
New Year’s Day, Martin Luther King Day, Lincoln Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’Day, Thanksgiving Day, day after Thanksgiving Day, and Christmas Day.
G. Business hours shall be posted in plain view to the public. Offices staffed with only one employee may be closed for one hour at lunch. A sign shall be posted with the reason for closure. The sign shall have a phone number where a request will result in an immediate response to release property or vehicles. Response to the office shall be within the time frame required for a normal CHP Class A tow.
H. Employees shall be properly trained to conduct business transactions related to towing, storage and release of vehicles/property.
8. INSURANCE
A. The operator shall maintain the following minimum levels of insurance from an insurance carrier admitted in California or admitted in the state in which the operator’s business is located and is authorized to do business in California:
1) Minimum Level of Financial Responsibility (as required by Section 34631.5 of the California Vehicle Code) - Bodily injury and property damage with a combined single limit of not less than $750,000 for Class A tow trucks. The combined limits for Classes B, C, and D shall not be less than $1,000,000. These minimum standards are to include non-owned and hired auto coverage.
2) Uninsured Motorist - Legal minimum combined single limit. 3) On-Hook Coverage - Insuring the vehicle in tow with limits based on the size of the tow truck.
a) Class A tow truck ............................$25,000 b) Class B tow truck.............................$50,000 c) Class C tow truck...........................$100,000 d) Class D tow truck ..........................$100,000 4) Garage Liability - Includes premises and operations. Coverage for bodily injury and property damage with a combined single limit of not less than $500,0001,000,000 per occurrence and $2,000,000 aggregate. Coverage policy shall be endorsed to name the City as additional insured. 5) Garage Keepers Liability - Shall be the same minimum as on-hook coverage for vehicles in the care, custody, and control of the operator in the storage yard.
6) Workers’ Compensation Insurance - Legal minimum requirement. The coverage shall provide a waiver of subrogation endorsement in favor of the City.
B. Proof of insurance shall be in the form of a certificate of insurance and policy endorsements. Policy expiration or cancellation will immediately nullify the Tow Service Agreement. The operator’s insurance policy shall provide for not less than 30 days written notice to the City in the event the insurance policy is canceled or is due to expire. Additionally, the operator shall notify the City in advance of the expiration, or cancellation of the operator’s insurance policy.
C. Those tow truck operators removing a vehicle from a hazardous materialsincident to the nearest reasonable and safe stopping location will be considered to be transporting property subject to normal minimum insurance requirements of Section 34631.5 VC.
D. The Operator shall hold harmless, defend and indemnify the City, its agents, officers and employees from and against any liability, claims, actions, costs, damages or losses of any kind, including death or injury to any person and/or damage to property, including City property, arising out of the activities of Operator or its agents, officers and employees under this Agreement. The Operator specifically agrees to hold harmless and indemnify the City for any and all claims arising out of any injury, disability, or death of Operator 's employees or agents, unless the injury, disability or death was caused by the willful act or negligence of City, its agents, officers and employees. This indemnification obligation shall continue beyond the term of this Agreement as to any acts or omissions occurring under this Agreement or any extension of this Agreement.
The City shall hold harmless, defend and indemnify the Operator, its agents, officers and employees from and against any liability, claims, actions, costs, damages or losses of any kind, including death or injury to any person and/or damage to property, including Operator property, arising out of the activities of City or its agents, officers and employees under this Agreement. The City specifically agrees to hold harmless and indemnify the Operator for any and all claims arising out of any injury, disability, or death of City's employees or agents unless the injury, disability or death was caused by the willful act or negligence of Operator, its agents, officers and employees. This indemnification obligation shall continue beyond the term of this Agreement as to any acts or omissions occurring under this Agreement or any extension of this Agreement.
9. INSPECTIONS
A. The City shall provide for not less than one annual inspection of all tow trucks at no charge to the operator. The City may conduct additional inspections without notice during normal business hours. The operator shall not dispatch a tow truck (to a City call) that has not been inspected and approved by the City. The City shall inspect a tow truck within thirty days of a request from an operator. 1) Any operator who fails an inspection is entitled to only one re-inspection.
Failure to pass the re-inspection shall be cause for the disqualification of the tow truck from use on City rotation. The tow truck shall be disqualified until the next enrollment period.
10. BUSINESS RECORDS
A. The operator shall maintain records of all tow services furnished. The records will be maintained at the operator’s place of business.
1) Invoices shall at a minimum include a description of each vehicle, nature of service, start time, end time, location of call, and itemized costs of towing and storage.
2) Records for each call shall indicate the tow truck driver’s name and truck used.
B. The operator shall also maintain business records relating to personnel, insurance, personnel taxes, payroll, applicable operating authorities, local operating authorities, lien sale actions, Federal Communication Commission licensing, and non-City tows.
C. The City may inspect all operator records without notice during normal business hours.
D. Operators shall permit the CHP to make copies of business records at their place of business, or to remove business records for the purpose of reproduction. 1) The City shall provide a receipt for any (original) records removed from the place of business.
E. Records shall be maintained and available for inspection for a period of two years plus the current term of this Agreement.
F. Failure of the operator to comply with the inspection requirements shall be cause for suspension, if deemed appropriate by the City.
11. FINANCIAL INTEREST
A. No operator or applicant shall be directly involved in the towing related business of any other operator or applicant on the tow list. “Directly involved” shall mean anything in common between operators or applicants with regards to any of the following: 1) business licenses; 2) insurance; 3) tow truck or equipment ownership; and 4) employees.
B. Storage facilities owned by an operator, and shared with another operator, shall only be approved if the owner/operator charges for the space exclusively on a flat monthly rate rather than a vehicle-by-vehicle basis, or combination thereof. 1) Facilities shared by operators shall be physically separated and secured from each other. The Police Chief or his designee may delete the requirement if deemed appropriate.
C. The sale or transfer of the controlling interest in a company shall immediately terminate an Agreement. A new owner may apply for a rotation tow listing at any time during the remainder of the current Agreement term.
D. A terminated or suspended operator and/or the tow business owner at the time of the suspension or termination (as defined in Attachment A) shall not be eligible for a rotation listing for the duration of the suspension or termination. 1) This provision applies to the operator working in any capacity within any tow business, or operating any tow business, and to the tow business, even if operated under new ownership.
E. Any violation of this element is cause for suspension, if deemed appropriate by the City.
12. ANNUAL MEETINGS
A. The Police Chief or his designee shall conduct, at a minimum, one annual meeting to discuss issues concerning the tow rotation. All meetings shall be mandatory for the operator or operator’s designee wishing to remain on rotation. The City shall give the operator 30 days written notice (as defined in Attachment A) of these meetings.
13. DEMEANOR AND CONDUCT
A. While involved in City rotation tow operations or related business, the tow operator and/or employees shall refrain from any acts of misconduct including, but not limited to, any of the following:
1) Rude or discourteous behavior to City employees or vehicle owners. 2) Lack of service, selective service, or refusal to provide service which the operator is/should be capable of performing.
3) Any act of sexual harassment or sexual impropriety.
4) Unsafe driving practices.
5) Exhibiting any objective symptoms of alcohol and/or drug use. 6) Appearing at the scene of a City rotation tow call with the odor of an alcoholic beverage emitting from the driver’s or employee’s breath. a) The operator/tow truck driver shall submit to a preliminary alcohol-screening test upon demand of the City.
B. All City related tow service complaints received by the City against a tow operator or tow operator’s employees will be accepted and investigated in a fair and impartial manner. As a result of the investigation, the City may initiate disciplinary action as deemed appropriate. In any event, the operator will be notified of the results of any investigation.
C. Should the filing of criminal charges be a possibility, the City will conduct the investigation to conclusion or assist the lead investigating agency and, if warranted, request prosecution.
D. Any violation of this element is cause for suspension, if deemed appropriate by the City.
14. COMPLIANCE WITH LAW
A. The tow operator and employees shall, at all times, comply with federal, state, and local laws and ordinances, which include, but are not limited to, those laws which are applicable to the operator (refer to Attachment B for selected Vehicle Code and Civil Code Sections). The fact that all prohibited laws are not given special attention in no way diminishes their applicability.
1) In the event of a minor traffic violation by a rotation tow truck driver which is known by the City, the tow operator shall be advised of the violation by the City. The tow operator will be granted the opportunity to take necessary steps to ensure that the driver complies with the law. Any subsequent traffic violations may be cause for disciplinary action against the operator and/or the involved employees.
2) Any flagrant traffic violation may be cause for immediate disciplinary action against the operator and/or the involved employees.
B. These provisions do not preclude the City from taking appropriate enforcement or administrative action for any violations of law. Complaints for violations of the law not normally investigated by City will be referred to the agency with investigation jurisdiction.
C. Any conviction of the operator involving a stolen or embezzled vehicle, fraud related to the towing business, stolen or embezzled property, a crime of violence, a drug related offense, felony driving while under the influence of alcohol and/or a drug, misdemeanor driving while under the influence of alcohol and/or a drug while involved in a City rotation tow call, or moral turpitude shall be cause for denial of application or termination of the Agreement.
D. Any conviction of an employee involving a stolen or embezzled vehicle, fraud related to the towing business, stolen or embezzled property, a crime of violence, a drug related offense, felony driving while under the influence of alcohol and/or a drug, misdemeanor driving while under the influence of alcohol and/or a drug while involved in a City rotation tow call, or moral turpitude shall be cause for the removal of the employee from the list of current City rotation tow truck drivers.
E. An operator, or employee, arrested/charged for a violation involving any of the above crimes may be suspended until the case is adjudicated.
15. COMPLIANCE WITH AGREEMENT
A. The operator agrees, as a condition of inclusion on the rotation tow list, to comply with the terms and conditions of this Tow Service Agreement. Furthermore, the operator agrees that failure by the operator or the operator’s agent to comply with these terms and conditions shall be cause for written reprimand (as defined in Attachment A), suspension, or termination from the City rotation tow lists.
Alleged violations of the Tow Service Agreement will be investigated by the City Area covered by the Agreement. The operator will be notified of the City’s findings within 30 calendar days of the conclusion of the investigation.
16. DISCIPLINARY ACTION
A. The Police Chief or his designee shall take disciplinary action against operators for violations investigated and confirmed or sustained. 1) The Police Chief or his designee shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement.
B. Records of violations shall be retained by the City for at least 36 months.
C. A violation of the equipment requirements related to safety shall be cause for immediate suspension. The period of the suspension shall be determined by the Police Chief or his designee. The suspension will remain in effect until the period of suspension is completed and the City has conducted an inspection and found that the operator is in compliance.
D. A violation of the GVWR and safe loading requirements of a tow truck may because for immediate suspension. This includes exceeding the tow truck’s GVWR, front axle weight rating, rear axle weight rating, maximum tire weight ratings, or not maintaining 50 percent of the tow truck’s unladen front axle weight on the front axle when in tow.
E. A violation of intentionally overcharging or a pattern of overcharging shall be cause for suspension. The period of the suspension shall be determined by the Police Chief or his designee. The suspension will remain in effect until the period of suspension is completed and the operator has presented proof to the City that reimbursement has been made to the aggrieved customer.
F. City personnel shall not be offered gratuities and requests for gratuities shall not be honored by tow company operators, employees or associates of the company.
A violation of this section shall be cause for suspension or termination. The period of suspension shall be determined by the Police Chief or his designee.
G. Any unsatisfactory rating or inspection may be cause for suspension. Failure of the operator to satisfy a court order mandating reimbursement to the vehicle or property owner for the damage or loss which occurred while the vehicle was in the operator’s custody will result in a suspension. The period of the suspension shall be determined by the Police Chief or his designee. The suspension will remain in effect until the period of suspension is completed and the operator has presented proof of the reimbursement.
H. Failure of the operator to comply with the inspection requirements of this Agreement will result in a suspension. The period of the suspension shall be determined by the Police Chief or his designee. The suspension will remain in effect until the period of suspension is completed and the operator has complied with the inspection requirement.
I. Operators will not send tow truck drivers on City calls unless the drivers have completed a certified tow truck driver-training course. Failure of the operator to comply with this requirement will result in a suspension. The period of the suspension shall be determined by the Police Chief or his designee. Operators with a written waiver from the Area commander will be exempt from this requirement during the period for which the waiver is valid.
J. Failure of the operator to maintain the minimum insurance requirements set forth in the Agreement will immediately nullify the Agreement and is deemed to be a major violation of the Agreement.
1) The operator will be subject to an additional suspension for failure to notify the City in advance of the insurance policy expiration or cancellation.
K. Failure of the operator or employee to comply with the provisions of this Agreement regarding Demeanor and Conduct, and/or Compliance with Law, may be cause for suspension if deemed appropriate by the Police Chief or his designee. 1) Minor traffic violations may be considered minor violations of the Agreement.
2) A tow truck driver, not under the immediate observation of the operator, while on-duty and driving a tow truck, who is arrested and subsequently convicted for misdemeanor driving under the influence of alcohol and/or drugs, will be subject to suspension from participating as a tow truck driver under the provisions of this Agreement. The length of suspension will be at the Police Chief’s or his designee’s discretion.
L. If the operator is serving a suspension for one year or more, the operator shall be required to comply with all terms and conditions of the current Agreement at the time of the reinstatement. There will be no approval of equipment that is not in compliance with the equipment specifications contained in the Agreement at the time of reinstatement. Elements of this Agreement which are commonly referred to as “grandfather clauses” shall no longer apply to the operator who is suspended for one year or more.
M. Major Violations. Violations of the terms and conditions of the Agreement that are subject to suspension for the first violation are categorized as major violations.
Any subsequent or continuing major violation may be cause for termination. 1) When considering punitive action for a major violation of the Tow Service Agreement, a Police Chief or his designee may take into consideration all major and minor violations that occurred within 36 months prior to the date of the current violation.
2) Termination shall be invoked if, in the City’s judgment, continued participation in the Rotation Tow Program by the affected tow operator may result in a hazard to public safety and/or welfare, or the operator has been convicted of a crime listed in this Agreement.
3) In lieu of termination, the City may impose additional suspensions for longer periods, if deemed appropriate.
N. Minor Violations. Except as specifically stated in the Agreement, minor violations of the terms and conditions of the Agreement may be cause for disciplinary action in the following manner.
1) 1st violation within a 12-month period – letter of written reprimand. 2) 2nd violation within a 12-month period –up to 30-day suspension. 3) 3rd violation within a 12-month period – 60- to 90-day suspension. 4) 4th violation within a 12-month period – termination of the Agreement. a) In lieu of a termination, the City may impose additional Suspensions for longer periods, if deemed appropriate.
O. Nothing herein shall be deemed to prohibit the City from immediately suspending any operator or employee whose conduct, in the opinion of the Police Chief or his designee, is deemed to be a danger to the motoring public or who has engaged in conduct constituting a flagrant violation of this Agreement.
17. HEARING/APPEAL
A. In the event the City serves the operator with a written reprimand, suspension or termination, the operator may request a hearing within seven calendar days by submitting a request in writing to the Police Chief or his designee. If a hearing is requested, it shall be held as soon as practicable. The hearing shall be conducted by the Police Chief or his designee and the operator shall be entitled to present all relevant facts and circumstances in support of the operator’s position. The operator shall be further entitled to present testimony of at least one representative (as defined in Attachment A) of a tow truck association or other qualified person.
The operator shall be notified in writing of the decision of the Police Chief or his designee, within ten business days of the date of the hearing.
B. Following a hearing, if the operator is dissatisfied with the City’s decision, the operator may request an appeal (as defined in Attachment A) by submitting a request in writing to the City within seven calendar days. If an appeal is requested, it shall be held as soon as practicable.
The appeal shall be conducted by the Police Chief or his designee. The Operator shall have the same rights as those provided at the Area level. The operator shall be notified in writing of the decision of the Police Chief or his designee within ten business days of the date of the appeal. The City’s decision shall be subject to no further administrative appeal.
C. A suspension shall not take effect until the hearing and appeal process has been exhausted, with the exception of operators whose conduct is deemed to be a danger to the motoring public or whose conduct grossly violates the terms and conditions of this Agreement. If an operator fails to request a hearing or appeal within the specified time or fails to appear at a scheduled hearing or appeal, the action taken by the Police Chief or his designee shall be final and the suspension shall take effect upon written notification to the operator by the Police Chief or his designee.
18. MIDTERM REVIEW OF THE TERMS AND CONDITIONS OF THE
AGREEMENT
A. The purpose of this section is to provide a process for a midterm review of the terms and conditions of the Agreement in the event that there is a legitimate and substantial change in conditions or law affecting the majority of the operators within City, or the City. Examples of conditions may include, but not limited to:
1) Substantial increase or decrease in business expenses. 2) Advances in technology in the industry related to safety issues. 3) Changes in law requiring the City or the operators to perform specific functions or operations in order to comply.
4) Proposed changes to the terms and conditions agreed upon by the Police Chief or his designee and the operators within the City at the time that the Agreement was signed (e.g., response times).
B. A midterm review of the terms and conditions of the Agreement in a particular Area may only be granted by the City.
1) A request for a midterm review of the terms and conditions of the Agreement shall be communicated to the Police Chief or his designee in writing, from a representative of the towing industry, not merely at the request of a single operator. The Police Chief or his designee may also request a midterm review if it is in the best interests of the motoring public, the tow industry, and/or the Department. The Police Chief will route all legitimate requests for midterm review with all pertinent information to the City.
2) Conditions indicating a need for midterm review must be substantial and must affect the entire towing industry or the City.
a) For purposes of this Agreement, the midterm review process is not intended to provide relief for a small number of operators who wish to increase their rates, or change any other term or condition of the Agreement, to compensate for financial problems brought about as a result of business decisions or conditions which affect a small percentage of the industry.
3) A request for review will not be processed if there are 60 days or less remaining in the term of the Agreement.
C. A midterm review, when granted by the City or designee, will not automatically authorize a change in the terms and conditions of the Agreement. If a midterm review is announced by the City, or designee, it is the responsibility of the affected Police Chief or his designee to conduct a review of the conditions which initially caused the request to be communicated and to determine if the change is justified.
1) The Police Chief or his designee, after completing the review of all pertinent issues, may authorize the operators to submit their proposed changes or may notify the operators of the changes to be implemented and direct them to comply with those changes. If, after evaluating all pertinent information, City authorizes or directs a change in the terms and conditions of the Agreement, or if a change is not justified, the Police Chief or his designee shall notify the towing industry representative within 14 calendar days of the date of the City’s announcement authorizing the midterm review.
a) Operators shall resubmit their proposed changes in writing to the Police Chief or his designee within seven calendar days of the date that the Police Chief or his designee announces the decision.
Failure to resubmit a written proposal within the specified time may result in the operator forfeiting the ability to propose more equitable conditions or rates, or may be cause for disciplinary action or termination of the Agreement.
(1) If the proposed change affects tow rates only, operators shall resubmit their proposed rates on a new application.
The new application shall contain only the information
pertinent to the rate proposals. When received by the City, the new application will be attached to the original
application for the current term.
(2) The Police Chief or his designee shall determine the reasonableness of the rate, based upon the average of the proposed rates submitted. An additional page with the new rates shall be signed and attached to the original.
2) In the event that the towing industry representatives are dissatisfied with the Police Chief’s or his designee’s decision regarding the midterm review, the towing industry, through its representatives, may request a hearing by submitting a request in writing to the Police Chief or his designee within seven calendar days. If a hearing is requested, it shall be conducted by the Police Chief or his designee, as soon as practicable. The number of representatives at the hearing shall be limited to a maximum of two. The representatives shall be entitled to present all relevant factors and circumstances in support of the industry’s position. A designated representative shall be notified in writing of the decision of the Police Chief or his designee within seven calendar days of the date of the hearing.
3) In the event that the towing industry representatives are dissatisfied with the Police Chief’s or his designee’s decision, the towing industry, through its representatives, may request an appeal by submitting a request in writing to the City within seven calendar days. If an appeal is requested, it shall be conducted by the City or designee as soon as practicable. The number of representatives at the appeal shall be limited to a maximum of two. The representatives shall have the same rights as those provided at the previous level. A designated representative shall be notified in writing of the decision of the City within seven calendar days of the date of the hearing.
4) In the event that the Police Chief’s or his designee’s decision is to direct the operators to resubmit rates which are more reasonable than the current rates, the new rate application process shall not be initiated until the hearing and appeal process is exhausted. If the towing industry, or its representatives, fail to request a hearing or appeal within the specified time, or fail to appear at a scheduled hearing or appeal, the decision of the Police Chief or his designee shall be final and the new rate application process shall begin.
5) In the event that the Police Chief’s or his designee’s decision is to direct the operators to comply with a change to any other term or condition of the Agreement, e.g., change in response times, the new terms and conditions shall not be initiated until the hearing and appeal process is exhausted. If the towing industry, or its representatives, fail to request a hearing or appeal within the specified time, or fail to appear at a scheduled hearing or appeal, the decision of the Police Chief or his designee shall be final and the new rate application process shall begin.
19. ADVERTISING
A. The operator shall not display any sign or engage in any advertisement indicating an official or unofficial connection with the City.
1) Examples include: “Official Orange Cove Tow,” “Approved by Orange Cove,” etc.
2) This will not preclude the Police Chief or his designee from implementing a system to mark and identify particular tow trucks as having passed the City’s inspection or as being placed on the tow rotation list.
B. Any violation of this provision is cause for suspension. At a minimum, the suspension should be for the duration of the advertisement.
20. CANCELLATION
A. This Agreement may be canceled by either party without prejudice by giving written notice to the other party.
ACKNOWLEDGMENT
I have read and understand the terms of this ROTATIONAL TOWING AGREEMENT and agree to abide by these terms.
--------------------------------------------- ---------------------------------------- Chief of Police Operator/Owner
City of Orange Cove
------------------------------------------------ -------------------------------------------- Date Date
Rev. 01/19