10. Certification of eligibility.
i. By entering into this contract, the contractor certifies that neither it nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of 40 U.S.C. 3144(b) or 29 CFR 5.12(a). ii. No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of 40 U.S.C. 3144(b) or 29 CFR 5.12(a). iii. The penalty for making false statements is prescribed in the U.S. Code, Title 18 Crimes and Criminal Procedure, 18 U.S.C. 1001.
11 Anti-retaliation It is unlawful for any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, or to cause any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, any worker or job applicant for:
i. Notifying any contractor of any conduct which the worker reasonably believes constitutes a violation of the DBA, Related Acts, or 29 CFR parts 1, 3, or 5; ii. Filing any complaint, initiating or causing to be initiated any proceeding, or otherwise asserting or seeking to assert on behalf of themselves or others any right or protection under the DBA, Related Acts, or 29 CFR parts 1, 3, or 5;
iii. Cooperating in any investigation or other compliance action, or testifying in any proceeding under the DBA, Related Acts, or 29 CFR parts 1, 3, or 5; or
iv. Informing any other person about their rights under the DBA, Related Acts, or 29 CFR parts 1, 3, or 5.
B. Contract Work Hours and Safety Standards Act (CWHSSA) The Agency Head must cause or require the contracting officer to insert the following clauses set forth in 29 CFR 5.5(b)(l), (2), (3), (4), and (5) in full, or (for contracts covered by the Federal Acquisition Regulation) by reference, in any contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses must Previous editions obsolete 7 Form HUD-4010, (10/2023)
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be inserted in addition to the clauses required by 29 CFR 5.5(a) or 4.6. As used in this paragraph, the terms "laborers and mechanics" include watch persons and guards.
1. Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
2. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in 29 CFR 5.5(b)(l) the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages and interest from the date of the underpayment. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watch persons and guards, employed in violation of the clause set forth in 29 CFR 5.5(b)(l), in the sum of $31 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in 29 CFR 5.5(b)(l).
3. Withholding for unpaid wages and liquidated damages
i. Withholding process The U.S Department of Housing and Urban Development or the recipient of Federal assistance may, upon its own action, or must, upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor so much of the accrued payments or advances as may be considered necessary to satisfy the liabilities of the prime contractor or any subcontractor for any unpaid wages; monetary relief, including interest; and liquidated damages required by the clauses set forth in 29 CFR 5.5(b) on this contract, any other Federal contract with the same prime contractor, or any other federally assisted contract subject to the Contract Work Hours and Safety Standards Act that is held by the same prime contractor (as defined in 29 CFR 5.2). The necessary funds may be withheld from the contractor under this contract, any other Federal contract with the same prime contractor, or any other federally assisted contract that is subject to the Contract Work Hours and Safety Standards Act and is held by the same prime contractor, regardless of whether the other contract was awarded or assisted by the same agency, and such funds may be used to satisfy the contractor liability for which the funds were withheld.
ii Priority to withheld funds The Department has priority to funds withheld or to be withheld in accordance with 29 CFR 5.5(a)(2)(i) or (b)(3)(i), or both, over claims to those funds by:
A. A contractor's surety(ies), including without limitation performance bond sureties and payment bond sureties;
B. A contracting agency for its reprocurement costs;
C. A trustee(s) (either a court-appointed trustee or a U.S. trustee, or both) in bankruptcy of a contractor, or a contractor's bankruptcy estate;
D. A contractor's assignee(s);
E. A contractor's successor(s); or
F. A claim asserted under the Prompt Payment Act, 31 U.S.C. 3901-3907.
4. Subcontracts. The contractor or subcontractor must insert in any subcontracts the clauses set forth in 29 CFR 5.5(b)(l) through (5) and a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor is responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in 29 CFR 5.5(b)(l) through (5). In the event of any violations of these clauses, the prime contractor and any subcontractor(s) responsible will be liable for any unpaid wages and monetary relief, including interest from the date of the underpayment or loss, Previous editions obsolete 8 Form HUD-4010, (10/2023)
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due to any workers of lower-tier subcontractors, and associated liquidated damages and may be subject to debarment, as appropriate.
5 Anti-retaliation It is unlawful for any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, or to cause any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, any worker or job applicant for:
i. Notifying any contractor of any conduct which the worker reasonably believes constitutes a violation of the Contract Work Hours and Safety Standards Act (CWHSSA) or its implementing regulations in 29 CFR part 5;
ii. Filing any complaint, initiating or causing to be initiated any proceeding, or otherwise asserting or seeking to assert on behalf of themselves or others any right or protection under CWHSSA or 29 CFR part 5;
iii. Cooperating in any investigation or other compliance action, or testifying in any proceeding under CWHSSA or 29 CFR part 5; or
iv. Informing any other person about their rights under CWHSSA or 29 CFR part 5.
C. CWHSSA required records clause In addition to the clauses contained in 29 CFR 5.S(b), in any contract subject only to the Contract Work Hours and Safety Standards Act and not to any of the other laws referenced by 29 CFR 5.1, the Agency Head must cause or require the contracting officer to insert a clause requiring that the contractor or subcontractor must maintain regular payrolls and other basic records during the course of the work and must preserve them for a period of 3 years after all the work on the prime contract is completed for all laborers and mechanics, including guards and watch persons, working on the contract. Such records must contain the name; last known address, telephone number, and email address; and social security number of each such worker; each worker's correct classification(s) of work actually performed; hourly rates of wages paid; daily and weekly number of hours actually worked; deductions made and actual wages paid. Further, the Agency Head must cause or require the contracting officer to insert in any such contract a clause providing that the records to be maintained under this paragraph must be made available by the contractor or subcontractor for inspection, copying, or transcription by authorized representatives of the (write the name of agency) and the Department of Labor, and the contractor or subcontractor will permit such representatives to interview workers during working hours on the job.
D. Incorporation of contract clauses and wage determinations by reference Although agencies are required to insert the contract clauses set forth in this section, along with appropriate wage determinations, in full into covered contracts, and contractors and subcontractors are required to insert them in any lower-tier subcontracts, the incorporation by reference of the required contract clauses and appropriate wage determinations will be given the same force and effect as if they were inserted in full text.
E. Incorporation by operation of law The contract clauses set forth in this section (or their equivalent under the Federal Acquisition Regulation), along with the correct wage determinations, will be considered to be a part of every prime contract required by the applicable statutes referenced by 29 CFR 5.1 to include such clauses, and will be effective by operation of law, whether or not they are included or incorporated by reference into such contract, unless the Administrator grants a variance, tolerance, or exemption from the application of this paragraph. Where the clauses and applicable wage determinations are effective by operation of law under this paragraph, the prime contractor must be compensated for any resulting increase in wages in accordance with applicable law.
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F. HEALTH AND SAFETY
The provisions of this paragraph (F) are applicable where the amount of the prime contract exceeds $100,000.
1. No laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his or her health and safety, as determined under construction safety and health standards promulgated by the Secretary of Labor by regulation.
2. The contractor shall comply with all regulations issued by the Secretary of Labor pursuant to 29 CFR Part 1926 and failure to comply may result in imposition of sanctions pursuant to the Contract Work Hours and Safety Standards Act, (Public Law 91-54, 83 Stat 96), 40 U.S.C. § 3701 et seq.
3. The contractor shall include the provisions of this paragraph in every subcontract, so that such provisions will be binding on each subcontractor. The contractor shall take such action with respect to any subcontractor as the Secretary of Housing and Urban Development or the Secretary of Labor shall direct as a means of enforcing such provisions.
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1 EQUAL EMPLOYMENT OPPORTUNITY CLAUSE.
During the performance of this contract, the contractor agrees as follows:
a. The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limite d to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to pos t in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
b. The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. c. The contractor will send to each labor union or representative of workers with which he/she has a collective bargaining agreement or other contract or understanding, a notice to be provided, advising the said labor union or workers’ representative of the contractor’s commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
d. The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. e. The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his/her books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
f. In the event of the contractor’s noncompliance with the nondiscrimination clause of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole, or in part, and the contractor may be declared ineligible for further government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. g. The contractor will include the provisions of Paragraph 1a through 1g in every subcontract or purchase order unless exempted by rule, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance. Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States. << Page 12>>
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2 EQUAL EMPLOYMENT SPECIFICATIONS
(Executive Order 11246).
a. As used in these specifications:
( 1 ) Covered area means the geographical area described in the solicitation from which this contract resulted;
( 2 ) Director means Director, Office of Federal Contract Compliance Programs, United States Department of Labor, or any person to whom the Director delegates authority;
( 3 ) Employer Identification Number (EIN) means the Federal Social Security Number used on the Employer’s Quarterly Federal Tax Return, United States Treasury Department Form 941.
( 4 ) Minority includes:
(a) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin)
(b) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race); (c) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the pacific Islands); and
(d) American Indian or Alaskan Native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification). b. Whenever the contractor, or any subcontractor at any tier, subcontracts a portion of the work involving any construction trade, it shall physically include in each subcontract in excess of $10,000 the provisions of these specifications and the notice which contains the applicable goals for minority and female participation and which is set forth in the solicitations from which this contract resulted.
c. If the contractor is participating (pursuant to 41 CFR Part 60 -4.5) in a Hometown Plan approved by the United States Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the Plan area (including goals and time tables) shall be in accordance with that Plan for those trades which have unions participating in the Plan. Contractors must be able to demonstrate their participation in and compliance with the provisions of any such Hometow n Plan. Each contractor or subcontractor participating in an approved Plan is individually required to comply with its obligations under the EEO Clause, and to make a good faith effort to achieve each goal under the Plan in each trade in which it has emplo yees. The overall good faith performance by other contractors or subcontractors toward a goal in an approved Plan does not excuse any covered contractor’s or subcontractor’s failure to take good faith efforts to achieve the Plan goals and timetables. d. The contractor shall implement the specific affirmative action standards provided in paragraphs 3g (1) through 3g (16) of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the tot al hours of employment and training of minority and female utilization the contractor should << Page 13>>
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3 reasonable be able to achieve in each construction trade in which it has employees in the covered area. Covered construction contractors performing construction wo rk in geographical areas where they do not have a Federal or federally assisted construction contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals are published periodically in the Federal Register in notice form, and such notices may be obtained from any Office of Federal Contract Compliance Programs office or from Federal procurement contracting officers.
The contractor is expected to make substantially uniform progress in meeting its goals in each craft during the period specified.
e. Neither the provisions of any collective bargaining agreement nor the failure by a union with whom the contractor has a collective bargaining agreement, to refer either minority or women shall excuse the contractor’s obligations under these specifications, Executive Order 11246 or the regulations promulgated pursuant thereto. f. In order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals, such apprentice s and trainees must be employed by the contractor during the training period, and the contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities . Trainees must be trained pursuant to training programs approved by the United States Department of Labor.
g. The contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the contractor’s compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. The contractor shall document these efforts fully, and shall implement affirmative action steps at least as extensive as the following:
( 1 ) Ensure and main tain working environment free of harassment, intimidation, and coercion at all sites, and in all facilities at which the contractor’s employees are assigned to work. The contractor, where possible, will assign two or more women to each construction project . The contractor shall specifically ensure that all foremen, superintendents, and other on-site supervisory personnel are aware of and carry out the contractor’s obligation to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities. ( 2 ) Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the contractor or its unions have employment opportunities available, and maintain a record of the organization’s responses. ( 3 ) Maintain a current file of the name, address, and telephone numbers of each minority and female off -the street applicant and minority or female referral from a union, a recruitment source, or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the contractor by the union or, if referred, not employed by the con tractor, this shall be documented in the file with the reason therefore, along with whatever additional actions the contractor may have taken. ( 4 ) Provide immediate written notification to the Director when the union or unions with which the contractor ha s a collective bargaining agreement has not referred to the contractor a minority person or woman sent by the contractor, or when the contractor has other information that the union referral process has impeded the contractor’s efforts to meet its obligations.
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4 ( 5 ) Develop on-the-job training opportunities and/or participate in training programs for the area which expressly include minorities and women, including upgrading programs and apprenticeship and trainee programs relevant to the contractor’s employm ent needs, especially those programs funded or approved by the Department of Labor.
The contractor shall provide notice of these programs to the sources compiled under 3g (2) above.
( 6 ) Disseminate the contractor’s EEO policy by providing notice of the po licy to unions and training programs and requesting their cooperation in assisting the contractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc.; by specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all employees at each location where constru ction work is performed.
( 7 ) Review, at least annually, the company’s EEO policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, layoff, termination or other employment dec isions including specific review of these items with on - site supervisory personnel such as Superintendents, General Foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter.
( 8 ) Disseminate the contractor’s EEO policy externally by including it in any advertising in the news media, specifically including minority and female news media, and providing written notification to and discussing the contractor’s EEO policy with other contractors and subcontractors with whom the contractor does or anticipates doing business. ( 9 ) Direct its recruitment efforts, both oral and written, to minority, female, and community organizations; to schools with minority and female students; and to minority and female recruitment and training organizations serving the contractor’s recruitment area and employment needs. Not later tha n one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment sources, the contractor shall send written notification to organizations such as the above, describing the opening, screening procedures, and tests to be used in the selection process. ( 1 0 ) Encourage present minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer, and vacation employment to minority and female youth, b oth on the site and in other areas of a contractor’s work force.
( 1 1 ) Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR Part 60-3, Uniform Guidelines on Employee Selection Procedures. ( 1 2 ) Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities. ( 1 3 ) Ensure that senio rity practices, job classifications, work assignments, and other personnel practices do not have a discriminatory effect by continually monitoring all personnel and employment -related activities to ensure that the EEO policy and the contractor’s obligations under these specifications are being carried out. << Page 15>>
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5 ( 1 4 ) Ensure that all facilities and company activities are non -segregated except that separate or single -user toilet and necessary changing facil ities shall be provided to assure privacy between the sexes.
( 1 5 ) Document and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to min ority and female contractor associations and other business associations.
( 1 6 ) Conduct a review, at least annually, of all supervisors’ adherence to and performance under the contractor’s EEO policies and affirmative action obligations. h. Contractors are encouraged to participate in voluntary associations which assist in fulfilling one or more of their affirmative action obligations 3g(1) through (16). The efforts of a contractor association, joint contractor-union, contractor-community, or other similar group of which the contractor is a member and participant, may be asserted as fulfilling any one or more of its obligations under 3g(1) though (16) of these specifications provided that the contractor actively participates in the group, makes every effort to ensure that the group has a positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the contractor’s minority and female work force participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the contractor. The obligation to comply, however, is the contractor’s, and failure of such a group to fulfill an obligation shall not be a defense for the contractor’s noncompliance.
i. A single goal for minorities and a separate single goal for women have been established.
The contractor, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and non -minority. Consequently, the contractor may be in violation of the Executive Order if a particular group is employed in a substantially disparate manner (for example, even though the contractor has achieved its goals for women generally, the contractor may be in violation of the Executive Order if a specific minority group of women is underutilized).
j. The contractor shall not use the goals a nd timetables of affirmative action standards to discriminate against any person because of race, color, religion, sec or national origin. k. The contractor shall not enter into any subcontract with any person or firm debarred from Government contracts pursuant to Executive Order 11246. l. The contractor shall carry out such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination, and cancellation of existing subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its implementing regulations, by the Office of Federal Contract Compliance Programs. Any contractor who fails to carry out such sanctions and penalties shall be in violation of these specifications and Executive Order 11246, as amended.
m. The contractor, in fulfilling its obligations under these specifications, shall implement specific affirmative actions steps, at least as extensive as those standards prescribed in Paragraph 3g of these specifications, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the contractor fails to comply with the requirements of the Executive Order, the implementing regulations, or these << Page 16>>
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6 specifications, the Director shall proceed in accordance with 41 CFR Part 60 -1.8 (Show Cause Notice).
n. The contractor shall designate a responsible official to monitor all employment related activity to ensure that the company EEO policy is being carried out, to be required by the Government and to keep records. Records shall at least include for each employee the name, address, telephone numbers, construction trade, union affiliation, if any, employee identification number when assigned, social security number, race, sex, statu s (e.g., mechanic, apprentice, trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, contractors shall not be required to maintain separate records.
o. Nothing herein provided shall be construed as a limitation upon the application of other laws which establish different standards of compliance or upon the application of requirements for the hiring of local or other area residents (e.g., those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program). p. The Director, from time to time, shall issue goals and timetables for minority and female utilization which shall be based on appropriate work force, demographic or other relevant data and which shall cover construction projects or construction contracts performed in specific geographic areas. The goals, which shall be applicable to each construction trade in a covered contractor’s or subcontractor’s entire work force which is working in the area covered by the goals and timetables, shall be published as notices in the Federal Register, and shall be inserted by the contracting officers and applicants, as applicable, in the Notice required by 41 CFR 60-4.2.
SPECIFIC EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS.
For a federally assisted construction contract in excess of $10,000, the contractor/subcontractor shall:
a. Forward the following EEO certification forms to the contract awarding authority prior to contract award: Certification of Non-segregated Facilities and Certification with Regard to the Performance of Previous Contracts or Subcontracts Subject to the Equal Opportunity Clause and the Filing of Required Reports.
b. Submit a notification of subcontracts awarded to the Director, Office of Federal Contract Compliance Programs, United States Department of Labor - ESA, 200 Constitutional Avenue, NW, Room C3325, Washington, D.C., 20210, within 10 working days of award of any subcontract in excess of $10,000, listing the name, address, and telephone number of the subcontractor; employer identification number; estimated dollar amount of the subcontract; estimated starting date and completion dates of the subcontract; and t he geographical area in which the contract is to be performed. c. Send a notice of the contractor’s commitment to equal employment opportunity to labor unions or representatives of workers prior to commencement of construction work. d. Display an equal e mployment opportunity poster in a conspicuous place available to employees and applicants for employment.
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7 e. For contracts in excess of $10,000, bind subcontractors to the Federal Equal Employment Opportunity requirements by including the provisions of P aragraphs 1 through 3, above, in the subcontract.
f. Upon commencement of construction work and until the work is completed, forward the Monthly Employment Utilization Report (Form CC-257) to the contract awarding authority by the end of each work month. With the initial monthly report, the contractor/subcontractor shall attach the Contractor’s List of Federal and Non-Federal Work in Bid Condition Area to the monthly report.
NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL
EMPLOYMENT OPPORTUNITY
(Executive Order 11246)
a. The Offeror or Bidder’s attention is called to the Equal Opportunity Clause and the Standard Federal Equal Employment Specifications set forth herein. b. The goals and timetables for minority and female participation, express ed in percentage terms for the contractor’s aggregated work force in each trade on all construction work in the covered area, are as follows:
Goals for Minority and Female Participation in Timetables, Each Trade: 28.3%, 6.9% These goals are applicable t o all the contractor’s construction work (whether or not it is Federal or federally assisted) performed in the covered area. If the contractor performs construction work in a geographical area located outside of the covered area, it shall apply the goals e stablished for such geographical area where the work is actually performed.
With regard to this second area, the contractor also is subject to the goals for both its federally involved and non-federally involved construction.
The contractor’s compliance with the Executive Order and the regulations in 41 CFR Part 60-4 shall be based on its implementation of the Equal Opportunity Clause, specific affirmation action obligations required by the specifications set forth in 41 CFR Part 60 -
4.3(a), and its efforts to meet the goals. The hours of minority and female employment and training must be substantially uniform throughout the length of the contract and in each trade, and the contractor shall make a good faith effort to employ minorities and women evenly on e ach of its projects. The transfer of minority or female employees or trainees from contractor to contractor or from project to project for the sole purpose of meeting the contractor’s goals shall be a violation of the contract, the Executive Order, and the regulations of 41 CFR Part 60 -4. Compliance with the goals will be measured against the total work hours performed.
c. The contractor shall provide written notification to the Director of the Office of Federal Contract Compliance Programs within ten (10) working days of award of any construction subcontract in excess of $10,000 at any tier for construction work under the contract resulting from this solicitation. The notification shall list the name, address, and telephone number of the subcontractor; emp loyer identification number of the subcontractor; estimated dollar amount of the subcontract; estimated starting and completion dates of the subcontract; and the geographical area in which the contract is to be performed. << Page 18>>
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8 d. As used in this notice, and in the contract resulting from this solicitation, the covered area is the Standard Metropolitan Statistical Area of Los Angeles-Long Beach, specifically the County of Los Angeles, State of California.
CONTRACTING WITH SMALL BUSINESS, MINORITY FIRMS, WOMEN’S BUSINESS ENTERPRISE AND LABOR SURPLUS AREA FIRMS.
a. It is national policy to award a fair share of contracts to Small business and Minority Firms.
Accordingly, affirmative steps must be taken to as sure that Small Business and Minority Firms are utilized when possible, as sources of supplies, equipment, construction and services. Affirmative steps include the following:
1. Including qualified Small Business and Minority Firms on solicitation lists.
2. Assuring that Small Business and Minority Firms are solicited whenever they are potential sources.
3. When economically feasible, dividing total requirements into smaller tasks or quantities so as to permit maximum Small Business and Minority Firm participation.
4. Where the requirement permits, establishing delivery schedules which will encourage participation by Small Business and Minority Firms.
5. Using the services and assistance of the Small Business Administration and the Minority Business Development Agency of the Department of Commerce, as required.
6. If any subcontracts are to be let, requiring the prime contractor to take the affirmative steps in a1 through a5 above.
b. Grantees shall take similar appropriate affirmative action in support of Women’s Business Enterprises.
c. Grantees are encouraged to procure goods and services from Labor Surplus Areas.
CIVIL RIGHTS ACT OF 1964. Under Title VI of the Civil Rights Act of 1964, no person shall, on the grounds of race, color, or national or igin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
SECTION 503 OF THE REHABILITATION ACT OF 1973 . Any contract in excess of $10,000 entered into by any Federal department or agency for the procurement of personal property and non-personal services (including construction) for the United States shall contain a provision requiring that the party contracting with the United States shall tak e affirmative action to employ and advance in employment qualified individuals with disabilities. No otherwise qualified individual with handicaps in the United States shall, solely by reason of his or her handicap, be excluded from the participation in, b e denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.
SECTION 109 OF THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974. No person in the United States on the grounds of race, color, national origin, or sex be excluded from << Page 19>>
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9 participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under this title.
VIETNAM ERA VETERANS' READJUSTMENT ASSIST ANCE ACT OF 1974, as amended.
Covered contracts entered into by any department or agency for the procurement of personal property and non- personal services (including construction) for the United States, shall contain a provision requiring that the party contracting with the United States shall take affirmative action to employ and advance in employment qualified special disabled veterans, veterans of the Vietnam era and any other veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized. The provisions of this section shall apply to any subcontract entered into by a prime contractor in carrying out any contract for the procurement of personal property and non -personal services (including construction) for the United States.
AGE DISCRIMINATION ACT OF 1975. No person in the Unites States shall, on the basis of age, be excluded from participation in, be de nied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. << Page 20>>
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COMPLIANCE WITH CLEAN AIR AND WATER ACTS
(Applicable to federally assisted construction contracts and related subcontracts exceeding $150,000)
During the performance of this contract, t he contractor and all subcontractors shall comply with the requirements of the Clean Air Act, as amended, 42 USC 1857 et seq., the Federal. Water Pollution Control Act, as amended, 33 USC 1251 et seq., and the regulations
of the Environmental Protection Agency with respect thereto, at 40 CFR Part 15, as amended.
In addition to the foregoing requirements, all nonexempt contr actors and subcontractors
shall furnish to the owner, the following:
1. A stipulation by the contra ctor or subcontractors, that any facility to be utilizes) in the performance of any non ex empt contract or subcontra ct,. is not listed on the List of Violating Facilities issued by the Environmental Protection Agency (EPA) pursuant to 40 CFR 15.20.
2. Agreement by the contra ctor to comply with all t he requirements of Section 114 of the Clean Air Act, as amended, (42
USC 1857c-8 ) and Section 308 of the
Federal Water Pollution Control Act, as amended, (33 USC 1318) relating to inspection, monitoring, entry, reports and information, as well as all other requirements specified in said Section 114 and Section 308, and all regulations and guidelines issued there under.
3. A stipulation that as a condition for t he award of the contract, prompt notice will be given of any notification received fr om the Director, Office of Federal Activities, EPA, ind
icating that .a facility utilized, or to be utiliz ed for the contract, is under consideration to be listed on the EPA List of Violating Facilities.
4. Agreement by the cont ractor that he will include, or cause to be included, the criteria and requirements in paragraph (1) through (4) of this section in every nonexempt subcontract and requir ing that the contractor wil l take such action as the government may direct as a means of enforcing such provisions. << Page 21>>
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LABOR CODE SECTIONS
(1771, 1774, 1775, 1776,1777.5, 1813, AND 1815)
§1771. Except for public works projects of one thousand dollars ($1,000) or less, not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work fixed as provided in this chapter, shall be paid to all workers employed on public works.
This section is applicable only to work performed under contract, and is not applicable to work car ried out by a public agency with its own forces. This section is applicable to contracts let for maintenance work. §1774. The contractor to whom the contract is awarded, and any subcontractor under him, shall pay not less than the specified prevailing rates of wages to all workmen employed in the execution of the contract. §1775.
(a) (1) The contractor and any subcontractor under the contractor shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfe it not more than fifty dollars ($50) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rates as determined by the director for the work or craft in which the worker is employed for any public work done under the contract by the contractor or, except as provided in subdivision (b), by any subcontractor under the contractor. (2) (A) The amount of the penalty shall be determined by the Labor Commissioner based on consideration of both of the following:
(i) Whether the failure of the contractor or subcontractor to pay the correct rate of per diem wages was a good faith mistake and, if so, the error was promptly and voluntarily corrected when brought to the attention of the contractor or subcontractor.
(ii) Whether the contractor or subcontractor has a prior record of failing to meet its prevailing wage obligations.
(B) The penalty may not be less than ten dollars ($10) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate , unless the failure of the contractor or subcontractor to pay the correct rate of per diem wages was a good faith mistake and, if so, the error was promptly and voluntarily corrected when brought to the attention of the contractor or subcontractor. (i) The penalty may not be less than twenty dollars ($20) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, if the contractor or subcontractor has been assessed penalties within the previous three years for fail ing to meet its prevailing wage obligations on a separate contract, unless those penalties were subsequently withdrawn or overturned.
(ii) The penalty may not be less than thirty dollars ($30) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, if the Labor Commissioner determines that the violation was willful, as defined in subdivision (c) of Section 1777.1. (C) When the amount due under this section is collected from the contractor or subcontractor, any outstanding wage claim under Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 against that contractor or subcontractor shall be satisfied before applying that amount to the penalty imposed on that contractor or subcontractor pursuant to this section. (D) The determination of the Labor Commissioner as to the amount of the penalty shall be reviewable only for abuse of discretion.
(E) The difference between the prevailing wage rates and the amount paid to each worker for each calendar day or port ion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the contractor or subcontractor, and the body awarding the contract shall cause to be inserted in the contract a stipulation that this section will be complied with. (b) If a worker employed by a subcontractor on a public works project is not paid the general prevailing rate of per diem wages by the subcontractor, the prime contractor of the project is not liable for any penalties under subdivision (a) unless the prime contractor had knowledge of that failure of the subcontractor to pay the specified << Page 22>>
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prevailing rate of wages to those workers or unless the prime contractor fails to comply with all of the following requirements:
(1) The contract executed between the contractor and the subcontractor for the performance of work on the public works project shall include a copy of the provisions of Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
(2) The contractor shall monitor the payment of the speci fied general prevailing rate of per diem wages by the subcontractor to the employees, by periodic review of the certified payroll records of the subcontractor.
(3) Upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages, the contractor shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for work performed on the public works project.
(4) Prior to making final payment to the subcontractor for work performed on the public works project, the contractor shall obtain an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the specified general prevailing r ate of per diem wages to his or her employees on the public works project and any amounts due pursuant to Section 1813. (C) The Division of Labor Standards Enforcement shall notify the contractor on a public works project within 15 days of the receipt by the Division of Labor Standards Enforcement of a complaint of the failure of a subcontractor on that public works project to pay workers the general prevailing rate of per diem wages. §1776.
(a) Each contractor and subcontractor shall keep accurate payrol l records, 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 him or he r 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:
(1) The information contained in the payroll record is true and correct. (2) The employer has complied with the requirements of Sections 1771, 1811, and 1815 for any work performed by his or her employees on the public works project. (b) The payroll records enumerated under subdivision (a) shall be certified and shall be available for inspection at all reasonable hours at the principal office of the contractor on the following basis:
(1) A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or his or her authorized representative on request. (2) A certified copy of all payroll records enumerated in subdivision (a) shall be made available for inspection or furnished upon request to a representative of the body awarding the contract, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards of the Department of Industrial Relations.
(3) A certified copy of all payroll records enumerated in subdivision (a) shall be made available upon request by the public for inspection or for copies thereof. However, a request by the public shall be made through either the body awarding the contract, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement. If the requested payroll records have not been provided pursuant to paragraph (2), the requesting party shall, prior to being provided the records, reimburse the costs of preparation by the contractor, subcontractors, and the entity through which the request was made. The public may not be given access to the records at the principal office of the contractor. (c) The certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement or shall contain the same information as the forms provided by the division. The payroll records may consist of printouts of payroll data that are maintained as computer records, if the printouts contain the same information as the forms provided by the division and the printouts are verified in the manner specified in subdivision (a).
(d) A contractor or subcontractor shall file a certified copy of the records enumerated in subdivision (a) with the entity that requested the records within 10 days after receipt of a written request. (e) Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by the awarding body, the Division of Apprenticeship Standards, or the Division of Labor << Page 23>>
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Standards Enforcement shall be marked or obliterated to prevent disclosure of an individual's name, address, and social secu rity number. The name and address of the contractor awarded the contract or the subcontractor performing the contract shall not be marked or obliterated. Any copy of records made available for inspection by, or furnished to, a joint labor -management committee established pursuant to the federal Labor Management
Cooperation Act of 1978 (29 U.S.C. Sec. 175a) shall be marked or obliterated only to prevent disclosure of an individual's name and social security number. A joint labor management committee may mai ntain an action in a court of competent jurisdiction against an employer who fails to comply with Section 1774.
The court may award restitution to an employee for unpaid wages and may award the joint labor management committee reasonable attorney's fees an d costs incurred in maintaining the action. An action under this subdivision may not be based on the employer's misclassification of the craft of a worker on its certified payroll records. Nothing in this subdivision limits any other available remedies for a violation of this chapter.
(f) The contractor shall inform the body awarding the contract of the location of the records enumerated under subdivision (a), including the street address, city, and county, and shall, within five working days, provide a notice of a change of location and address.
(g) The contractor or subcontractor has 10 days in which to comply subsequent to receipt of a written notice requesting the records enumerated in subdivision (a). In the event that the contractor or subcontractor fa ils to comply within the 10- day period, he or she shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit twenty -five dollars ($25) for each calendar day, or portion thereof, for each worker, unti l strict compliance i s effectuated. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, these penalties shall be withheld from progress payments then due. A contractor is not subject to a penalty a ssessment pursuant to this section due to the failure of a subcontractor to comply with this section. (h) The body awarding the contract shall cause to be inserted in the contract stipulations to effectuate this section.
(i) The director shall adopt rules consistent with the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and the Information Practices Act of 1977 (Title 1.8 (commencing with Section 1798) of Part 4 of Division 3 of the Civil Code) governing the release of these records, including the establishment of reasonable fees to be charged for reproducing copies of records required by this section.
§1777.5.
(a) Nothing in this chapter shall prevent the employment of properly registered apprentices upon public works. (b) Every apprentice employed upon public works shall be paid the prevailing rate of per diem wages for apprentices in the trade to which he or she is registered and shall be employed only at the work of the craft or trade to which he or she is registered.
(c) Only apprentices, as defined in Section 3077, who are in training under apprenticeship standards that have been approved by the Chief of the Division of Apprenticeship Standards and who are parties to written apprentice agreements under Chapter 4 (commencing with Section 3070) of Division 3 are eligible to be employed at the apprentice wage rate on public works. The employment and training of each apprentice shall be in accordance with either of the following:
(1) The apprenticeship standards and apprentice agreements under which he or she is training. (2) The rules and regulations of the California Apprenticeship Council. (d) When the contractor to whom the contract is awarded by the state or any political subdivision, in performing any of the work under the contract, employs workers in any apprenticeable craft or trade, the contractor shall employ apprentices in at least the ratio set forth in this section and may apply to any apprenticeship program in the craft or trade that can provide apprentices to the site of the public work for a certificate approving the contractor under the apprenticeship standards for the employment and training of apprentices in the area or industry affected. However, the decision of the apprenticeship program to approve or deny a certificate shall be subject to review by the Administrator of Apprenticeship. The apprenticeship program or programs, upon approving the contractor, shall arrange for the dispatch of apprentices to the contractor. A contractor covered by an apprenticeship program's standards shall not be required to submit any additional application in order << Page 24>>
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to include additional public works contracts under that program. “Apprenticeable craft or trade,” as used in this section, means a craft or trade determined as an apprenticeable occupation in accordance with rules and regulations prescribed by the California Apprenticeship Council. As used in this section, “contractor” includes any subcontractor under a contractor who perfor ms any public works not excluded by subdivision (o).
(e) Prior to commencing work on a contract for public works, every contractor shall submit contract award information to an applicable apprenticeship program that can supply apprentices to the site of th e public work. The information submitted shall include an estimate of journeyman hours to be performed under the contract, the number of apprentices proposed to be employed, and the approximate dates the apprentices would be employed. A copy of this information shall also be submitted to the awarding body if requested by the awarding body. Within 60 days after concluding work on the contract, each contractor and subcontractor shall submit to the awarding body, if requested, and to the apprenticeship program a verified statement of the journeyman and apprentice hours performed on the contract. The information under this subdivision shall be public. The apprenticeship programs shall retain this information for 12 months. (f) The apprenticeship program that can supply apprentices to the area of the site of the public work shall ensure equal employment and affirmative action in apprenticeship for women and minorities. (g) The ratio of work performed by apprentices to journeymen employed in a particular craft or t rade on the public work may be no higher than the ratio stipulated in the apprenticeship standards under which the apprenticeship program operates where the contractor agrees to be bound by those standards, but, except as otherwise provided in this section, in no case shall the ratio be less than one hour of apprentice work for every five hours of journeyman work.
(h) This ratio of apprentice work to journeyman work shall apply during any day or portion of a day when any journeyman is employed at the jobsit e and shall be computed on the basis of the hours worked during the day by journeymen so employed. Any work performed by a journeyman in excess of eight hours per day or 40 hours per week shall not be used to calculate the ratio. The contractor shall emplo y apprentices for the number of hours computed as above before the end of the contract or, in the case of a subcontractor, before the end of the subcontract. However, the contractor shall endeavor, to the greatest extent possible, to employ apprentices during the same time period that the journeymen in the same craft or trade are employed at the jobsite. Where an hourly apprenticeship ratio is not feasible for a particular craft or trade, the Chief of the Division of Apprenticeship Standards, upon application of an apprenticeship program, may order a minimum ratio of not less than one apprentice for each five journeymen in a craft or trade classification. (i) A contractor covered by this section that has agreed to be covered by an apprenticeship program's standards upon the issuance of the approval certificate, or that has been previously approved for an apprenticeship program in the craft or trade, shall employ the number of apprentices or the ratio of apprentices to journeymen stipulated in the applicable apprenticeship standards, but in no event less than the 1 -to-5 ratio required by subdivision(g).
(j) Upon proper showing by a contractor that he or she employs apprentices in a particular craft or trade in the state on all of his or her contracts on an annual average of not less than one hour of apprentice work for every five hours of labor performed by journeymen, the Chief of the Division of Apprenticeship Standards may grant a certificate exempting the contractor from the 1 -to-5 hourly ratio, as set forth in this section for that craft or trade.
(k) An apprenticeship program has the discretion to grant to a participating contractor or contractor association a certificate, which shall be subject to the approval of the Administrator of Apprenticeship, exempting the contractor from the 1-to-5 ratio set forth in this section when it finds that any one of the following conditions is met:
(1) Unemployment for the previous three-month period in the area exceeds an average of 15 percent. (2) The number of apprentices in training in the area exceeds a ratio of 1 to 5. (3) There is a showing that the apprenticeable craft or trade is replacing at least one-thirtieth of its journeymen annually through apprenticeship training, either on a statewide basis or on a local basis. (4) Assignment of an apprentice to any work performed under a public works contract would create a condition that would jeopardize h is or her life or the life, safety, or property of fellow employees or the public at large, or the specific task to which the apprentice is to be assigned is of a nature that training cannot be provided by a journeyman.
(l) When an exemption is granted pursuant to subdivision (k) to an organization that represents contractors in a specific trade from the 1 -to-5 ratio on a local or statewide basis, the member contractors shall not be << Page 25>>
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required to submit individual applications for approval to local joint appr enticeship committees, if they are already covered by the local apprenticeship standards.
(m) (1) A contractor to whom a contract is awarded, who, in performing any of the work under the contract, employs journeymen or apprentices in any apprenticeable cra ft or trade shall contribute to the California Apprenticeship Council the same amount that the director determines is the prevailing amount of apprenticeship training contributions in the area of the public works site. A contractor may take as a credit for payments to the council any amounts paid by the contractor to an approved apprenticeship program that can supply apprentices to the site of the public works project. The contractor may add the amount of the contributions in computing his or her bid for the contract. (2) At the conclusion of the 2002-03 fiscal year and each fiscal year thereafter, the California Apprenticeship Council shall distribute training contributions received by the council under this subdivision, less the expenses of the Division of Apprenticeship Standards for administering this subdivision, by making grants to approved apprenticeship programs for the purpose of training apprentices. The funds shall be distributed as follows:
(A) If there is an approved multiemployer apprenticeship program serving the same craft or trade and geographic area for which the training contributions were made to the council, a grant to that program shall be made.
(B) If there are two or more approved multiemployer apprenticeship programs serving the same craft or trade and geographic area for which the training contributions were made to the council, the grant shall be divided among those programs based on the number of apprentices registered in each program.
(C) All training contributions not distributed under subparagraphs (A) and (B) shall be used to defray the future expenses of the Division of Apprenticeship Standards. (3) All training contributions received pursuant to this subdivision shall be deposited in the Apprenticeship Training Contribution Fund , which is hereby created in the State Treasury. Notwithstanding Section 13340 of the Government Code, all money in the Apprenticeship Training Contribution Fund is hereby continuously appropriated for the purpose of carrying out this subdivision and to pay the expenses of the Division of Apprenticeship Standards.
(n) The body awarding the contract shall cause to be inserted in the contract stipulations to effectuate this section. The stipulations shall fix the responsibility of compliance with this section for all apprenticeable occupations with the prime contractor.
(o) This section does not apply to contracts of general contractors or to contracts of specialty contractors not bidding for work through a general or prime contractor when the contracts of gen eral contractors or those specialty contractors involve less than thirty thousand dollars ($30,000). (p) All decisions of an apprenticeship program under this section are subject to Section 3081. §1813. The contractor or subcontractor shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit twenty -five dollars ($25) for each worker employed in the execution of the contract by the respective contractor or subcontractor for each calendar day during w hich the worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of this article. In awarding any contract for public work, the awarding body shall cause to be inserted in the contract a stipulation to this effect. The awarding body shall take cognizance of all violations of this article committed in the course of the execution of the contract and shall report them to the Division of Labor Standards Enforcement.
§ 1815. Notwithstanding the provisions of Sections 1810 to 1814, inclusive, of this code, and notwithstanding any stipulation inserted in any contract pursuant to the requirements of said sections, work performed by employees of contractors in excess of 8 hours per day, and 40 hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than 11/2 times the basic rate of pay.
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CERTIFICATION OF UNDERSTANDING AND AUTHORIZATION
Project Name
Contracting Agency Project Number:
This is to certify that the principal and the authorized payroll officer(s), listed below, have received and read and a copy of the Federal Labor Standards Provisions (HUD-4010) and a copy of the Contractor’s Guide to prevailing Wage Requirements for Federally-Assisted Construction Projects, and that they understand the labor standards clauses pertaining to the above listed projects.
The following person(s) is/are designated as payroll officer for the undersigned and is/are authorized to sign the Statement of Compliance forms which will accompany each weekly payroll report for contractor listed below during the duration of this project.
Contractor Subcontractor Business Name License Number Payroll Officer Name (Print) Payroll Officer (Signature) Payroll Officer Name (Print) Payroll Officer (Signature) Name of Person Authorized to Sign (Print) (Authorized Signature) Title Date
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EQUAL EMPLOYMENT OPPORTUNITY COMMITMENT
(03/31/17)
TO: ____
____________________________
(Name of Labor Union, Workers Representative, etc)
______
__________________________
(Address)
Contractor Name: __________________________________
Project Name: ______ _______________________________ Project Number: ____________ The Undersigned contractor holds a contract with _____________________________, involving funds provided by the U. S. Government, or a subcontract with a prime contractor holding such contract.
Under the provisions included in the contract or subcontract for the above referenced project, and in accordance with Executive Order 11246, the undersigned contractor is obligated not to discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. This obligation not to discriminate in employment includes, but is not limited to the follow:
1. Hiring, placement, upgrading, transfer or demotion;
2. Recruitment, advertising or solicitation for employment;
3. Treatment during employment;
4. Rates of pay or other forms of compensation;
5. Selection for training, including apprenticeship; and
6. Layoff or termination.
The undersigned contractor shall abide by the requirements of 41 CFR 60–300.5(a) and 60–741.5(a).
These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability; and require affirmative action by prime contractors and subcontractors to employ , and advance in employment, qualified protected veterans and individuals with disabilities.
Copies of this notice will made available to worker representatives and be posted by the undersigned in conspicuous places available to employees or applicants for employment. ___________________________________ By: _______________________________________ (Print Name) (Signature)
___________________________________ _______________________________________ (Date) ( Title)
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U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
REPORT OF ADDITIONAL CLASSIFICATION AND RATE
HUD FORM 4230A
OMB Approval Number 2501-0011
(Exp. 8/31/2022)
1. FROM (name and address of requesting agency) 2. PROJECT NAME AND NUMBER
3. LOCATION OF PROJECT (City, County and State)
4. BRIEF DESCRIPTION OF PROJECT 5. CHARACTER OF CONSTRUCTION Building
Heavy
Highway
Residential
Other (specify)
6. WAGE DECISION NO. (include modification number, if any)
COPY ATTACHED
DATE of WAGE DECISION: 7. WAGE DECISION EFFECTIVE
DATE (LOCK-IN):
8. WORK CLASSIFICATION(S) HOURLY WAGE RATES
BASIC WAGE FRINGE BENEFIT(S) (if any)
9. PRIME CONTRACTOR (name, address) 9a.
Agree
Disagree
10. SUBCONTRACTOR/EMPLOYER, IF APPLICABLE
(name, address)
9b. SIGNATURE DATE
Check All That Apply:
The work to be performed by the additional classification(s) is not performed by a classification in the applicable wage decision.
The proposed classification is utilized in the area by the construction industry.
The
proposed wage rate(s), including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage decision.
The interested parties, including the employees or their authorized representatives, agree on the classification(s) and wage rate(s).
Supporting documentation attached, including applicable wage decision.
Check One:
Approved, meets all criteria. DOL confirmation requested.
One or more classifications fail to meet all criteria. DOL decision requested.
FOR HUD USE ONLY
LR2000:
Agency Representative
(Typed name and signature)
Date
Log in:
Log out:
Phone Number
HUD-4230A (8-19) PREVIOUS EDITION IS OBSOLETE
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BIDDERS QUESTIONNAIRE FORM
Fill out all the following information and submit with Bid Proposal:
Bidder/Contractor’s Name:
Business Address:
Telephone Number: Email:
California State Contractor’s License Number
and Class:
#:
Class:
Tax Identification Number:
DIR Contractor Registration Number:
UEI Number:
Business License: Do you currently have an active
City Business License?
YES #:
NO
Number of years of experience the company has as a contractor:
DIR Contractor Worker(s) Classification (s)
(e.g. laborer, electrician, cement mason etc.)
Has the company or any principal having an
interest in this Bid ever failed to complete a
project?
YES NO
If yes, explain:
Has the company or any principal having an
interest in this Bid ever been terminated for
cause, even if was converted to a “termination of
convenience”
YES NO
If yes, explain:
Type of Firm: Individual Partnership Limited Liability Company Corporation (State ) Other (specify) << Page 30>>
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Minority Business Enterprise(MBE)
Women Business Enterprise (WBE)
Small
Disadvantaged Business (SDB)
Veteran Owned Business
Disabled Veteran Owned Business
None Apply
List at least three related projects completed in the last five (5) years:
1. Name of Project:
Contact: Phone:
Location of Project (City/State):
Contact Amount: Date Completed:
Brief Description of Work:
2. Name of Project:
Contact: Phone:
Location of Project (City/State):
Contact Amount: Date Completed:
Brief Description of Work:
3. Name of Project:
Contact: Phone:
Location of Project (City/State):
Contact Amount: Date Completed:
Brief Description of Work:
Surety Company that will provide all Insurance Requirements:
Name of Surety:
Address:
Surety Company:
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NON-SEGREGATED FACILITIES CERTIFICATION
FEDERALLY-ASSISTED CONSTRUCTION PROJECTS
The federally-assisted construction contractor certifies that he/she DOES NOT and WILL NOT:
1. Maintain or provide, for his/her employees, any segregated facilities at any of his/her establishments.
2. Permit his/her employees to perform their services at any location, under his/her control, where segregated facilities are maintained.
The federally-assisted contractor agrees that a breach of this certificat ion is a violation of the Equal Opportunity Clause in this contract. As used in this certification, the term segregated facilities means any waiting room, work areas, restrooms and washrooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dr essing areas, parking lots, drinki ng fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis of race, creed, color, or national origin, because of habit, local custom, or otherwise.
The federally-assisted contractor agrees that (except where he/she has obtained identical certifications from proposed subcontractors for specific time periods) he/she will obtain identica l certifications from proposed subcontractors prior to the award of s ubcontracts exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity Clause, and t hat he/she will retain such certifications in his/her files.
NOTE: The penalty for making false statements in offers is prescribed in 18 U.S.C. 1001.
Date: ________________________ Project Number: ________________________ Company: ________________________________________________________________________ Address: _________________________________________________________________________ By: ______________________________________________________________________________ Title: ____________________________________________________________________________ << Page 32>>
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CERTIFICATION
WITH REGARD TO THE PERFORMANCE OF PREVIOUS CONTRACTS OR
SUBCONTRACTS SUBJECT TO THE EQUAL OPPORTUNITY CLAUSE AND
THE FILING OF REQUIRED REPORTS
The
bidder,
proposed sub-contractor, hereby certifies that he/she
has,
has not, participated
in a previous contract or subcontract subject to the Equal Opportunity Clause, as required by Executive Orders 10925, 11114, or 11246, and that he/she has,
has not, filed with the Joint
Reporting Committee, the Director of the Office of Federal Contract Compliance, a Federal Government contracting or administering agency, or the former President’s Committee on Equal Employment Opportunity, all reports due under the applicable filing requirements.
Date: __________ Project Number: _____________ Contract Award: $____ ___________ Awarding Agency: ________________________________________________________________ Cont
ractor Name: ___________________________________ Total Number of Employees______ Affiliate Company: _______________________________________________________________ By: ___________________________________________________________________________ Title: __________________________________________________________________________ NOTE: The above certification is required by the Equal Employment Opportunity Regulations of the Secretary of Labor (41 CFR 60-1.7(b)(1), and must be submitted by bidders and proposed subcontractors only in connection with contracts and subcontracts which are subject to the equal opportunity clause. Contracts and subcontracts which are exempt from the equal opportunity clause are set forth in 41 CFR 60-1.5 (Generally only contracts or subcontracts of $10,000 or under are exempt).
Proposed prime contractors and subcontractors who have participated in a previous contract or subcontract subject to the Executive Orders and have not filed the required reports should note that 41 CFR 60-1.7(b)(1) prevents the award of contracts and subcontracts unless such contractor submits a report covering the delinquent period or such other period specified by the U.S. Department of the Interior or by the Director, Office of Federal Contract Compliance, U.S.
Department of Labor.
SF-100 (EEO-1) must be filed by;
(A) All private employers who are:
(1)
Subject to Title VII of the Civil Rights Act of 1964 (as amended) with 100 or more employees. (2) Subject to Title VII who has
fewer than 100 empl oyees, if the company is owned or affiliated with another company, or there is centralized ownership, control or management so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees. (B)
All federal contractors (private employers), who:
(1) Are not exempt as provided for by 41 CFR 60-1.5
(2) Have 50 or more employees, and
a. Are prime contractors or first-tier subcontra
ctors, and have a contract, subcontract, or purchase
order amounting to $50,000 or more; or
b.
Serve as a depository of Government funds in any amount, or c. Is a financial institution, which is an issuing, and paying agent for U.S. Savings Bonds and Notes. << Page 33>>
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Certification for Contracts, Grants, Loans, and Cooperative Agreements (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 Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, ''Disclosure of Lobbying Activities,'' in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. 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 section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,00 0 and not more than $100,000 for each such failure. * CONTRACTOR/SUBCONTRACTOR
* SIGNATURE: * DATE:
Suffix:
Middle Name:
* PRINTED NAME AND TITLE OF AUTHORIZED REPRESENTATIVE
Prefix: * First Name:
* Last Name:
* Title:
CERTIFICATION REGARDING LOBBYING
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
The undersigned certifies, to the best of his or her knowledge and belief, that:
The undersigned states, to the best of his or her knowledge and belief, that:
If any 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 commitment providing for the United States to insure or guarantee a loan, the undersigned shall complete and submit Standard Form-LLL, ''Disclosure of Lobbying Activities,'' in accordance with its instructions. Submission of this statement is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required statement shall be subjec t to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
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I I
I I I I I I
I I I I
I I
I I I I
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WORKER’S COMPENSATION CERTIFICATION
I certify, by signature below, t hat I am aware of the provis ions of Section 3700 of the California Labor Code which require every em ployer to be insured against liability for worker’s compensation or to undertake self-insurance in accordance with the provisi ons of
that code, and I will comply with such provisions before commencing the performance of the work of this contract.
Date: ________________ Project Number: ________________________ Project Name: ____________________________________________________________ Company Name: __________________________________________________________ Address: _______________________________________________________________ Print Name: ______________________________________________________________ Title: __________________________________________________________________ Signature: _______________________________________________________________ << Page 35>>
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CONTRACTOR LIST OF PROPOSED SUBCONTRACTORS
PROJECT NAME AWARDING AGENCY
Location: Project Number:
SUBCONTRACTORS:
Name, Address, and Telephone Number
Employer
Identification
Number
Contractor
License
Number
Contract
Amount
Estimated
Start
Date
Estimated
Completion
Date
TRADES TO BE USED
Signature Name and Title
Date Company Name
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Declaration of Intent to Comply with Section 3 Requirements Rev. 9.1.21
DECLARATION OF INTENT TO COMPLY WITH
SECTION 3 REQUIREMENTS
As a minimum requirement for consideration of a contract award, the Bidder/Proposer shall declare his/her intent to comply with Section 3 (24 CFR 75) of the Housing and Urban Development Act of 1968, as amended (Section 3). The Bidder/Proposer is obliged, to the greatest extent feasible, to give opportunities for training and employment to low-income and very low-income persons residing in the service area or neighborhood in which the covered Section 3 project/service is located, and/or to award subcontracts to other Section 3 business concerns that provide economic opportunities for Section 3 workers and Targeted Section 3 workers.
Bidder/Proposer agrees that, as a condition of responsiveness to the solicitation and prior to recommendation for contract award by the Local Contracting Agency (LCA), he/she will agree to comply with the Section 3 requirements by including the Section 3 contract language in the contract, to the greatest extent feasible, to meet the Section 3 benchmarks and report all accomplishments with required documentation on a quarterly basis for the duration of the contract.
The Section 3 benchmarks apply to all Section 3 covered contracts as follows:
• Public housing financial assistance benchmarks:
o Section 3 workers: 25% or more for the total number of labor hours worked by all workers employed, and
o Targeted Section 3 workers: 5% or more of the total number of labor hours worked by all workers employed of which is included as part of the 25% threshold in the previous bullet.
• Community development financial assistance benchmarks:
o Section 3 workers: 25% or more for the total number of labor hours worked by all workers employed on a Section 3 project, and
o Targeted Section 3 workers: 5% or more of the total number of labor hours worked by all workers employed on a Section 3 project of which is included as part of the 25% threshold in the previous bullet.
Failure of the Bidder/Proposer to agree to comply with the Section 3 requirements and reporting obligations shall be grounds for determining the Bidder/Proposer non - responsive, and no further consideration for contract award shall be granted.
I declare under penalty of perjury under the laws of the State of California that we agree to comply with the Section 3 requirements as stated above.
Name of Contractor/Subcontractor Address
Print Name Title
Signature Date
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NOTICE OF SECTION 3 COMMITMENT
TO:
(Name of Labor Union, Workers Representative, etc.
(Address)
Name of Business (Contractor):
Project Name: Project Number:
The Undersigned currently holds a contract with
involving Block Grant (CDBG) funds from the U. S. Department of Housing and Urban Development or a subcontract with a prime contractor holding such contract.
You are advised that under the provisions of the above contract or subcontract and in accordance with Section 3 of the Housing and Urban Development Act of 1968, the undersigned is obligated to the greatest extent feasible, to give opportunities for employment and training to lower income residence of the CDBG -assisted project area and to award contracts for work on the project to business concerns which are located in or are owned in substantial part by project area residence.
Regarding employment opportunities for Section 3, the minimum number and job titles are:
Number Job Classification
Regarding job referrals, request that consideration be given, to the greatest extent feasible, to assignment of persons residing in the service area or neighborhood in which the project is located.
The anticipated date the work will begin is . For additional information, you may contact , at ( ) .
Contact Person’s Name Title
This notice is furnished to you pursuant to the provisions of the above contract or subcontract and Section 3 of the Housing and Urban Development Act of 1968. Copies of this notice will be posted by the undersigned in conspicuous places available to employees or applicants for employment.
By:
(Print Name) (Signature)
(Date) (Title)
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Section 3 Business Concern Certification Rev. 9.1.21
SECTION 3 BUSINESS CONCERN CERTIFICATION
Business Name:
Address:
City/State/Zip Code:
Telephone Number: Email Address:
This business is a Section 3 business concern based on one of the following categories, as documented:
A. Business is 51% or more owned by low- or very low-income persons, (Attach a S
ection 3 Worker Certification(s) for each owner to this certification.) B. Over 75 percent (75%) of the labor hours performed for the business over the prior three-month period are performed by Section 3 workers, Provide the following information for the prior three-month period:
• Indicate total number of labor hours performed by Section 3 workers: Hours • Indicate total number of labor hours performed by all workers: Hours • Calculate the percentage of labor hours by Section 3 workers: % (Attach the Section 3 Worker Certifications and Section 3 Labor Hours Reports.) C. Business is 51% or more owned and controlled by current public housing residents or residents who currently live in Section 8-assisted housing. (Attach proof of public housing or Section 8-assisted housing residence.) (NOTE: FAILURE OF THE BUSINESS TO PROVIDE THE REQUIRED DOCUMENTATION AS NOTED ABOVE SHALL BE GROUNDS FOR THE LCA TO DETERMINE THE BUSINESS A NON-SECTION 3 BUSINESS CONCERN.)
I declare under penalty of perjury under the laws of the State of California that the information stated above is true and correct.
Signature Title Date
TO BE COMPLETED BY LOCAL CONTRACTING AGENCY STAFF
This business meets the following category:
51% owned by low- or very low-income persons,
75% of labor hours performed by Section 3 workers, or 51% currently owned and controlled by public housing or Section 8-assisted housing residents. ☐ None of the above.
Approved by: (Print Name) Signature: Date:
The above-mentioned business firm is not a Section 3 business concern, but commits to the Section 3 goal:
Written Commitment (Section 3 Economic Opportunity Plan), outline intentions to comply with the requirements of 24 CFR 75: (
D.
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WARNING: The information provided on this form is subject to verification by HUD at any time, and Title 18, Section 1001 of the U.S. Code states that a person is guilty of a felony and assistance can be terminated for knowingly and willingly making a false or fraudulent statement to a department of the United States Government. 1 SECTION 3/TARGETED SECTION 3 INCOME CERTIFICATION
Printed on: Effective Date:
INSTRUCTIONS: All workers shall self-certify and submit this form to the prime contractor or subcontractor, to determine if the individual is a Section 3 worker or Targeted Section 3 worker as defined in 24 CFR Part 75. To determine “Annual (Gross) Income” fill in the blank fields below, then sign this statement to certify that the information is complete and accurate.
BASIC INFORMATION:
First Name: Last Name:
Address:
ENTER/SELECT THE APPROPRIATE INFORMATION TO CONFIRM YOUR WORKER STATUS.
1. Are you a resident of public housing or a housing choice Voucher Holder (Section 8)? ☐ YES ☐ NO
2. Are you a Youth Build participant? ☐ YES ☐ NO
3. Do you live within one mile of the Project? ☐ YES ☐ NO DEFINITION OF INCOME:
HUD 24 CFR Part 5
Low-income person means individuals whose incomes do not exceed 80 percent of the median income for the area.
Very low-income person means individuals whose incomes do not exceed 50 percent of the median family income for the area.
To verify Income Limits by Area: https://www.huduser.gov/portal/datasets/il.html#2021 *Please note that HUD updates income limits annually
Select the amount of individual income for the previous or annualized calendar year. ☐ Less than $20,000 ☐ $55,001 – $60,000
☐ $20,001 – $25,000 ☐ $60,001 – $65,000
☐ $25,001 – $30,000 ☐ $65,001 – $70,000
☐ $30,001 – $35,000
☐ $35,001 – $40,000
☐ $40,001 – $45,000
☐ $45,001 – $50,000
☐ $50,001 – $55,000 ☐ More than $70,000
INCOME INFORMATION:
Annual gross income (Individual/ One Person) for the previous or annualized calendar year: $ IDENTIFY COUNTY:
☐ Los Angeles County ☐ Orange County ☐ Riverside County ☐ San Bernardino County I certify that this information is complete and accurate. I agree to provide, upon request, documentation on all income sources to the HUD Grantee/Program Administrator.
Printed Full Name Signature Date:
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WARNING: The information provided on this form is subject to verification by HUD at any time, and Title 18, Section 1001 of the U.S. Code states that a person is guilty of a felony and assistance can be terminated for knowingly and willingly making a false or fraudulent statement to a department of the United States Government. 2 CERTIFICATION
THIS SECTION MUST BE COMPLETED BY THE AUTHORIZED BUSINESS OWNER/AGENT (If the employer is certifying on behalf of employee)
The above-named person is: An applicant ☐ A permanent full-time ☐ A new hire/employee ☐ What was the individual’s Annual Gross Income
for the previous or annualized calendar year? $
This person’s work Classification is: Date of hire:
Business Name Printed Name of Owner /Agent Signature of Owner/Agent Date *EMPLOYERS MUST RETAIN THIS FORM IN THEIR SECTION 3 COMPLIANCE FILE FOR FIVE YEARS.
THIS SECTION MUST BE COMPLETED BY LABOR COMPLIANCE AGENCY The above individual is (Check the applicable statement below):
☐ A Section 3 worker who currently fits or when hired within the past five years fit at least one of the following categories, as documented:
1) The worker's income for the previous or annualized calendar year is below the income limit established by HUD.
2) The worker is employed by a Section 3 business concern. 3) The worker is a YouthBuild participant.
☐ A Targeted Section 3 worker who currently fits at least one of the following categories, as documented:
1) A worker employed by a Section 3 business concern; or 2) A worker who currently fits or when hired fit at least one of the following categories, as documented within the past five years:
a. Living within the service area or the neighborhood of the project. b. A YouthBuild participant.
☐ Not a Section 3 worker or Targeted Section 3 worker.
Initial:
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QUALITATIVE EFFORTS FOR CONTRACTORS
☐ Engaged in outreach efforts to generate job applicants who are Targeted Section 3 workers.
Date of Outreach Effort Address of Outreach Effort
☐ Provided training or apprenticeship opportunities.
Date of Training Address of Training
☐ Provided technical assistance to help Section 3 workers compete for jobs (e.g., resume assistance, coaching).
Date of Technical Assistance Address of Technical Assistance
☐ Provided or connected Section 3 workers with assistance in seeking employment including: drafting resumes, preparing for interviews, and finding job opportunities connecting residents to job placement services.
Date of Workers Assistance Address of Workers Assistance
☐ Held one or more job fairs.
Date of Job Fair Address of Job Fair
☐ Provided or referred Section 3 workers to services supporting work readiness and retention (e.g., work readiness activities, interview clothing, test fees, transportation, childcare).
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Date of Referral Type of Service Provided or Referred
☐ Prov
ided assistance to apply for/or attend community college, a four-year educational institution, or vocational/technical training.
Date of Assistance Type of Educational Assistance Provided ☐ Assisted Section 3 workers to obtain financial literacy training and/or coaching.
Date of Assistance Type of Training/Coaching Provided
☐ Engaged in out
reach efforts to identify and secure bids from Section 3 business concerns.
Date of Outreach Description of Outreach
☐ Prov
ided technical assistance to help Section 3 business concerns understand and bid on contracts.
Date of Technical Assistance Name of Business Concern
☐ Divided contracts into smaller jobs to facilitate participation by Section 3 business concerns.
Name of Business Concern
☐ Provided bonding assistance, guaranties, or other efforts to support viable bids from Sect
ion 3 business concerns.
Name of Business Concern Description of Assistance
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☐ Promoted use of business registries designed to create opportunities for disadvantaged and small businesses.
Date of Activity Name of Business Registry
☐ Outreach,
engagement, or referrals with the state one -stop system as defined in Section 121(e)(2) of the Workforce Innovation and Opportunity Act 17.
Date of Activity Description of Activity
☐ Other
: ____________________________________________________________ Date of Activity Description of Activity
(Print Name) (Signature)
(Date) (Title)
Contractor/Subcontractor Name
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Quantity Unit Unit Price Total Price
1 Mobilization 1 LS 4,000.00$ $4,000.00 2 Remove existing fixtures (toilets, sinks, urinals) in Men's and Women's restrooms 10 EA 100.00$ $1,000.00 3 Remove existing weight mats, punch bags, and their supports/fixtures. Clean the GYM floor before the installation of the new weight mats. 1L S 8,000.00$ $8,000.00
4 Not uses $0.00
5 Remove existing AC condensers (5 ton) including disconnect boxes from the roof (see attached pictures); cap/plug any open lines; cover open area of the roof to prevent rain entering the building until the new AC units are installed 4E A 2,000.00$ $8,000.00
6 Remove the related fan coils from the attic 4E A 2,000.00$ $8,000.00 7 Remove existing asphalt walkway, and ADA asphalt path of travel per plan 1,100 SF 20.00$ $22,000.00 8 Remove existing PCC pad/ walkway at west entrance of the building per plan 338 SF 100.00$ $33,800.00 9 Remove/cut 4 feet of existing fence and curb to allow for ADA path of travel. 4L F 500.00$ $2,000.00 10 Remove existing drinking water fountain and cap water line 1 EA 600.00$ $600.00 11 Furnish and install new restroom fixtures (toilets, sinks, urinals).Use Kohler brand fixtures. 10 EA 70.00$ $700.00 12 Furnish paint; Patch and paint restroom walls (men's and women's restrooms).Submit type of paint for approval by the city 1L S 16,000.00$ $16,000.00 13 Furnish and install new weight mats on top of the existing floor(2700 sq. ft.) Use “Greatmats” brand, 3/8 inch x 4 ft. wide with blue dots. See attached picture. Re-install the support/fixtures for the punch bags. 1L S 5,000.00$ $5,000.00
14 Install new ac condenser units on the roof, including supporting equipment.
Condenser units are provided by the City of San Bernardino (maintenance) 4E A 2,000.00$ $8,000.00 15 Furnish and install new fan coils in the attic. Match to existing controls/system s 4E A 6,000.00$ $24,000.00
16 Construct 4” thick PCC walkway (ADA path), including 95% subgrade compaction per plan and specifications. Use concrete class 560-C-3250 1450 SF 100.00$ $145,000.00 17 Furnish and install new fence- post to support the fence 1 LS 2,000.00$ $2,000.00 18 Patch/ repair curb/ gate-post base (see attached picture) 1 LS 3,000.00$ $3,000.00 19 Remove existing double doors on the south and west side of the building, and install new ADA compliant double doors, with panel bars and door closures, including doorbell & wiring. Submit door data sheets to the City for approval.
Doors to be vandal proof.
2E A 10,000.00$ $20,000.00
20 Apply 4” wide thermoplastic reflective white Striping, and blue borders for Handicap path per 2023 Caltrans Standard A90A per specification and Project Plans.
1L S 5,000.00$ $5,000.00
21 Construction 4’ x 8’ project sign 1E A 3,000.00$ $3,000.00 22 Furnish paint, and paint men’s and women’s restroom floors with epoxy paint. 1L S 8,000.00$ $8,000.00 Apparent Low Bidder 1
$327,100.00
$327,100.00
BID RANKING
TOTAL BID AMOUNT INDICATED BY BIDDER
BID TABULATION
1. BID TABULATION
PROJECT NAME: IMPROVEMENTS AT RUBEN CAMPOS COMMUNITY CENTER PROJECT NO: GB 25-007
Bid Item and Description
Apparent Low Bidder 1
Perfection Painting Corp
TOTAL BID AMOUNT CALCULATED BASED ON UNIT PRICES
CALCULATION CORRECTIONS TO BID AMOUNT SUBMITTED BY CONTRACTOR BASED ON CALCULATED BID AMOUNT
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Attachment 5
Project Location
700 ft
N➤➤
N
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20. Award Professional Services Agreement for Safe Streets and Roads for All (SS4A) for Baseline Street Study Analysis to KOA Corporation, for the total project budget amount of $301,000 (Wards 1,2,6,7)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Authorize the City Manager, or designee, to execute a design services contract with KOA Corporation for the Safe Streets and Roads for All (SS4A) Baseline Street Study Analysis, Strategy Design, and Local Roadway Safety Plan. The contract includes $105,700 for community engagement and $174,800 for all other tasks, totaling $280,500.
2. Authorize the Director of Finance & Management Services to allocate a contingency amount of $20,500, ensuring the total project budget for the Safe Streets and Roads for All (SS4A) Baseline Street Study remains within the grant award amount of $301,000.
3. Authorize the Director of Finance & Management Services to approve the use of the Safe Streets and Roads for All (SS4A) Baseline Street Study grant award and match funding, ensuring all expenditures, including the contingency, remain within the total project budget of $301,000.
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: February 5, 2025
To: Honorable Mayor and City Council Members
From: Rochelle Clayton, Acting City Manager;
Lynn Merrill, Director of Public Works
Department: Public Works
Subject: Award Professional Services Agreement for Safe Streets and Roads for All (SS4A) for Baseline Street Study
Analysis to KOA Corporation, for the total project budget amount of $301,000 (Wards 1,2,6,7)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Authorize the City Manager, or designee, to execute a design services contract with KOA Corporation for the Safe Streets and Roads for All (SS4A) Baseline Street Study Analysis, Strategy Design, and Local Roadway Safety Plan. The contract includes $105,700 for community engagement and $174,800 for all other tasks, totaling $280,500.
2. Authorize the Director of Finance & Management Services to allocate a contingency amount of $20,500, ensuring the total project budget for the Safe Streets and Roads for All (SS4A) Baseline Street Study remains within the grant award amount of $301,000.
3. Authorize the Director of Finance & Management Services to approve the use of the Safe Streets and Roads for All (SS4A) Baseline Street Study grant award and match funding, ensuring all expenditures, including the contingency, remain within the total project budget of $301,000.
Executive Summary
The Safe Streets and Roads for All (SS4A) Grant is designed to benefit the residents of the City by creating a safer, more inclusive environment for pedestrians, cyclists, and the traveling public. The SS4A program supports the development of a Packet Page. 738
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comprehensive safety action plan, referred to as an "Action Plan," which will enhance roadway safety, improve accessibility for pedestrians, promote active transportation strategies, and support public health initiatives. This agreement will allow the City to issue KOA Corporation a Notice to Proceed, initiating the design process for these improvements. The agreement includes KOA Corporation's design services which encompasses $105,700 for community engagement and $174,800 for other tasks, along with a contingency of $20,500, for a total not to exceed project budget of $301,000.
Background
The Bipartisan Infrastructure Law (BIL) established the Safe Streets and Roads for All (SS4A) discretionary program with $5 billion in appropriated funds over 5 years, 2022-2026. The SS4A program funds regional, local, and Tribal initiatives through grants to prevent roadway deaths and serious injuries. Over $3 billion is still available for future funding rounds. The SS4A program supports the U.S. Department of Transportation's National Roadway Safety Strategy and our goal of zero roadway deaths using a Safe System Approach.
The City has applied for and been awarded grant funding for the preparation of Safe Streets and Roads for All (SS4A) through the Caltrans grant program. Completion of SS4A Action Plan is required for the city to be eligible for future Highway Safety Improvement Program (HSIP) funding, SS4A grant Implementation and other federal and state grants. The program supports the development of a comprehensive safety action plan (Action Plan) that identifies the most significant roadway safety concerns in a community and the implementation of projects and strategies to address roadway safety issues. Action Plans are the foundation of the SS4A grant program. SS4A requires an eligible Action Plan to be in place before applying to implement projects and strategies.
Baseline St Between Meridian Ave and Tippecanoe Ave is classified in the City of San Bernadino General Plan as a major arterial with a posted speed of mostly 40 MPH and a total segment length of 5 miles. The curb-to-curb width varies with a majority being a minimum of 60 feet. The segment is generally a 4-lane divided highway with two-way center left turn lane along the entire segment. Parking is not permitted along the segment between Meridian Ave to the I-215 Freeway. Parking is permitted along the segment from I-215 Fwy to Tippecanoe Ave.
Recently the City has implemented and completed a significant safety improvement project along Baseline Street by upgrading the traffic signals with advanced dilemma’s zone technology to provide an extended red protect feature. Also, these improvements included modernized signal timing to reduce congestion, and replacing the controller cabinets. The SS4A planning grant will expand to include analyzing improvements installing continental crosswalk at the signalized intersections, installing leading Pedestrian Interval to make pedestrian movement more apparent, accessible push-button systems and analyzing protected left turn signals installation Packet Page. 739
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at high collision locations. Overall, these improvement will guide drivers and pedestrians more effectively through the signalized intersections shown in Table A.
Table A -Existing signals
Signals along Baseline St:
@ Meridian Ave
@ University Pkwy
@ California St
@ Medical Center Dr
@ Mt Vernon Ave
@ Massachusetts Ave
@ Perris St
@ H St
@ G St
@ F St
@ E St
@ D St
@ Arrowhead Ave
@ Mt View Ave
@ Sierra Way
@ Waterman Ave
@ Crestview Ave
@ Windsor Dr / Myrtle Dr
@ Tippecanoe Ave
Additionally, the SS4A planning grant will examine the feasibility for the installation of bicycle facilities and traffic calming measures along the entire segment of Baseline St from Meridian Ave to Tippecanoe Ave. This segment of Baseline St is listed in the SBCTA Non-Motorized Transportation Plan (NMTP) for the installation of Class II bike lanes.
A total of 435 collisions have taken place in this corridor. The following tables identify and provide breakdown of the type of crashes and the primary crash factor along this segment of Baseline Street.
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In order to address these collisions along this segment of Baseline St between Meridian St and Tippecanoe Ave at the non-signalized locations the following measures will be studied during the planning stages:
• Corner Extensions/Bulb-out.
• Road Diet Measures (Narrow lanes, Rumble Strips)
• Evaluating warrants for Rectangle Rapid Flashing beacons (RRFB’s) installation. • High Visibility Crosswalks at Non-signalized locations. • Electronic Speed feedback signs.
• Class I, II, and III bike lanes.
• Raised Crosswalks at midblock Locations.
• Evaluating warrants for Installation of High Intensity Activated Crosswalk Beacon (HAWK)
• Evaluating warrants for traffic signal installation at locations with high collision as a result of the cross-street traffic.
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• Evaluation of edge lines.
The planning grant should encompass the approach methodology, concept design, costs, data collection, and benefits of the proposed improvements to develop the plan.
Also, included in the grant is the Local Roadway Safety Plan (LRSP) amendment and community engagement element. The estimated budget is as follows:
Activity Federal Fund
Request
Total Project cost Federal Fund to
underserved
community
Baseline Rd
Study Analysis
and Strategy
Design
$224,800 $281,000 $224,800
LRSP (Action
plan)
$16,000 $20,000 $16,000
Subtotal Budget $240,800 $301,000 $240,800
As with all Department of Transportation funded aid projects, the City will be required to pay all project costs as they are incurred and seek reimbursement for eligible costs.
Discussion
Staff advertised a solicitation for design services for the Safe Streets and Roads for All (SS4A) Baseline Street Study Analysis and Strategy Design on PlanetBids. On October 31, 2024, the City received three proposals from the following firms:
1. KOA Corporation – Ontario, Ca
2. Willdan Engineering – Temecula, Ca
3. Linscott, Law & Greenspan Engineering (LLG) – Irvine, Ca The proposals were evaluated by a staff evaluation team based on qualifications, project-related experience, performance, firm profile, and the personnel/staffing plan outlined in the proposals. Additional evaluation criteria included project references, understanding of the assignment, the proposed work plan, technical ability, and the potential to meet project goals within budget as described in the RFP.
The evaluation adhered to the guidelines of the State of California Government Code and the City’s Purchasing Ordinance. Each proposal was scored based on a variety of factors, including proper licensing, conflict of interest, clarity and conformance to the RFP, proposer’s experience and performance, team qualifications, fee proposal alignment, references, and the proposer’s litigation history.
Below are the final rankings and scores:
1. KOA Corporation – 94.33%
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2. Willdan Engineering – 91.00%
3. Linscott, Law & Greenspan Engineering (LLG) – 88.33% The selected firm, KOA Corporation, demonstrated the best ability to meet the City's needs and project goals within the approved budget. The agreement with KOA Corporation will include their design services fee totaling $280,500, with a contingency amount of $20,500 to address unforeseen project needs for a not to exceed project budget of $301,000. This contract will enable the City to proceed with the development of the SS4A Baseline Street Study Analysis and Strategy Design utilizing the awarded FY2023 SS4A Program funding.
This agreement ensures that the SS4A project will support the City’s goal of creating a safer and more inclusive environment for pedestrians, cyclists, and the traveling public, while meeting the funding and project goals outlined in the grant. 2021-2025 Strategic Targets and Goals
This project is consistent with Goal No 4. Improve Quality of Life- Evaluate and enhance the quality of public safety services. Preparing an SS4A provides an opportunity to address unique roadway safety needs in San Bernardino while contributing to the success of the United States Department of Transportation safety projects.
Fiscal Impact
There is no General Fund Impact. The SS4A grant amount is $301,000, with 80% of this grant ($240,800) being funded by The United States Department of Transportation, with a required 20% ($60,200) local match. Currently the Local Regional Circulation Fund (Fund 263) will be used for the required 20% or $60,200 of the local match
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Authorize the City Manager, or designee, to execute a design services contract with KOA Corporation for the Safe Streets and Roads for All (SS4A) Baseline Street Study Analysis, Strategy Design, and Local Roadway Safety Plan. The contract includes $105,700 for community engagement and $174,800 for all other tasks, totaling $280,500.
2. Authorize the Director of Finance & Management Services to allocate a contingency amount of $20,500, ensuring the total project budget for the Safe Streets and Roads for All (SS4A) Baseline Street Study remains within the grant award amount of $301,000.
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3. Authorize the Director of Finance & Management Services to approve the use of the Safe Streets and Roads for All (SS4A) Baseline Street Study grant award and match funding, ensuring all expenditures, including the contingency, remain within the total project budget of $301,000.
Attachments
Attachment 1- Design Service Agreement
Attachment 2- Proposal, KOA Corporation
Attachment 3- KOA Corporation Fee Proposal
Ward:
First Ward; Second Ward; Sixth Ward; Seventh Ward
Synopsis of Previous Council Actions:
June 5, 2024 Accept Safe Street and Roads for All (SS4A) Grant (Wards 1, 2, 6, & 7)
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1 CITY OF SAN BERNARDINO
DESIGN SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND KOA CORPORATION
1. PARTIES AND DATE.
This Agreement is made and entered into as February 5, 2025 by and between the City of San Bernardino, a charter city and municipal corporation organized and operating under the laws of the State of California, with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, California 92401 (“City”), and KOA Corporation, a California Corporation with its principal place of business at 1100 Corporate Center Dr, Suite 201, Monterey , CA 91754 (hereinafter referred to as “Designer”). City and Designer are sometimes individually referred to herein as “Party” and collectively as “Parties.”
2. RECITALS.
2.1 City. City is a municipal corporation organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.
2.2 Designer. Designer desires to perform and assume responsibility for the provision of certain professional design services required by the City on the terms and conditions set forth in this Agreement. Designer warrants that it is fully licensed, qualified, and willing to perform the services required by this Agreement; provided, however, that if Designer is a corporation or other organization, the Project Designer designated pursuant to Section 3.2, and not the Designer itself, shall be fully licensed to practice as an architect and/or engineer in the State of California.
2.3 Project. City desires to engage Designer to render such services for the Safe Streets and Roads for All (SS4A) for the Baseline Street Study Analysis ("Project") as set forth in this Agreement.
3. TERMS
3.1 Employment of Designer.
3.1.1 Scope of Services. Designer promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional design and related services necessary for the full and adequate completion of the Project consistent with the provisions of this Agreement (hereinafter referred to as “Services”). The Services are more particularly described throughout this Agreement, including Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Designer shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld.
Additionally, Designer shall comply with all Federal requirements applicable to the Services as set forth in Exhibit “D.”]
3.1.2 Term. The term of this Agreement shall be from 15th January, 2025, through July 15, 2026 unless earlier terminated as provided herein. Consultant shall complete Packet Page. 746
2 the Services within the term of this Agreement and shall meet any other established schedules and deadlines.
3.2 Project Designer; Key Personnel.
3.2.1 Project Designer. Designer shall name a specific individual to act as Project Designer, subject to the approval of City. Designer hereby designates Frank Berrera (California RSP1) to act as the Project Designer for the Project. The Project Designer shall: (1) maintain oversight of the Services; (2) have full authority to represent and act on behalf of the Designer for all purposes under this Agreement; (3) supervise and direct the Services using his or her best skill and attention; (4) be responsible for the means, methods, techniques, sequences and procedures used for the Services; (5) adequately coordinate all portions of the Services; and (6) act as principal contact with City and all contractors, consultants, engineers and inspectors on the Project. Any change in the Project Designer shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld. The new Project Designer shall be of at least equal competence as the prior Project Designer. In the event that City and Designer cannot agree as to the substitution of a new Project Designer, City shall be entitled to terminate this Agreement for cause.
3.2.2 Key Personnel. In addition to the Project Designer, Designer has represented to the City that certain additional key personnel, engineers and consultants will perform the Services under this Agreement. Should one or more of such personnel, engineers or consultants become unavailable, Designer may substitute others of at least equal competence upon written approval of the City. In the event that City and Designer cannot agree as to the substitution of key personnel, engineers or consultants, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel, engineers or consultants who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Designer at the request of the City. The key additional personnel, engineers and consultants for performance of this Agreement are as follows:
Principal I
Project Manager
3.3 Hiring of Consultants and Personnel.
3.3.1 Right to Hire or Employ. Designer shall have the option, unless City objects in writing after notice, to employ at its expense architects, engineers, experts or other consultants qualified and licensed to render services in connection with the planning and/or administration of the Project, and to delegate to them such duties as Designer may delegate without relieving Designer from administrative or other responsibility under this Agreement. Designer shall be responsible for the coordination and cooperation of Designer’s architects, engineers, experts or other consultants. All consultants, including changes in consultants, shall be subject to approval by City in its sole and reasonable discretion. Designer shall notify City of the identity of all consultants at least fourteen (14) days prior to their commencement of work to allow City to review their qualifications and approve to their participation on the Project in its sole and reasonable discretion.
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3 3.3.2 Qualification and License. All architects, engineers, experts and other consultants retained by Designer in performance of this Agreement shall be qualified to perform the Services assigned to them, and shall be licensed to practice in their respective professions, where required by law.
3.3.3 Standards and Insurance. All architects, engineers, experts and other consultants hired by Designer shall be required to meet all of the same standards and insurance requirements set forth in this Agreement, unless other standards or requirements are approved by the City in writing. Unless changes are approved in writing by the City, Designer’s agreements with its consultants shall contain a provision making them subject to all provisions stipulated in this Agreement.
3.3.4 Assignments or Staff Changes. Designer shall promptly obtain written City approval of any assignment, reassignment or replacement of such architects, engineers, experts and consultants, or of other staff changes of key personnel working on the Project. As provided in the Agreement, any changes in Designer’s consultants and key personnel shall be subject to approval by City.
3.3.5 Draftsman and Clerical Support. Draftsmen and clerical personnel shall be retained by Designer at Designer’s sole expense.
3.4 Standard of Care.
3.4.1 Standard of Care. Designer shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform the Services in the same discipline in the State of California, and shall be responsible to City for damages sustained by the City and delays to the Project as specified in the indemnification provision of this Agreement. Without limiting the foregoing, Designer shall be fully responsible to the City for any increased costs incurred by the City as a result of any such delays in the design or construction of the Project. Designer represents and maintains that it is skilled in the professional calling necessary to perform the Services. Designer warrants and represents that all of its employees, architects, engineers, experts and other consultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Designer represents that it, its employees, architects, engineers, experts and other consultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services assigned to or rendered by them and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Designer shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Designer’s failure to comply with the standard of care provided for herein.
3.4.2 Performance of Employees. Any employee or consultant who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee or consultant who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Designer and shall not be re-employed to perform any of the Services or to work on the Project.
3.5 Laws and Regulations.
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4 3.5.1 Knowledge and Compliance. Designer shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in any manner affecting the performance of the Services or the Project, and shall give all notices required of the Designer by law. Designer shall be liable, pursuant to the standard of care and indemnification provisions of this Agreement, for all violations of such laws and regulations in connection with its Services. If the Designer performs any work knowing it to be contrary to such laws, rules and regulations, Designer shall be solely responsible for all costs arising therefrom.
Designer shall defend, indemnify and hold City, its officials, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.5.2 Drawings and Specifications. Designer shall cause all drawings and specifications to conform to any applicable requirements of federal, state and local laws, rules and regulations, including the Uniform Building Code, in effect as of the time the drawings and specifications are prepared or revised during the latest phase of the Services described in Exhibit “A” attached hereto. Any significant revisions made necessary by changes in such laws, rules and regulations after this time may be compensated as Additional Services which were not known or reasonably should not have been known by Designer. Designer shall cause the necessary copies of such drawings and specifications to be filed with any governmental bodies with approval jurisdiction over the Project, in accordance with the Services described in Exhibit “A” attached hereto. For the preparation of all such drawings and specifications, the Designer shall use Computer Aided Design Drafting (“CADD”) (e.g., AutoCAD) or other technology acceptable to the Designer and City.
3.5.3 Americans with Disabilities Act. Designer will use its best professional efforts to interpret all applicable federal, state and local laws, rules and regulations with respect to access, including those of the Americans with Disabilities Act (“ADA”). Designer shall inform City of the existence of inconsistencies of which it is aware or reasonably should be aware between federal and state accessibility laws, rules and regulations, as well as any other issues which are subject to conflicting interpretations of the law, and shall provide the City with its interpretation of such inconsistencies and conflicting interpretations. Unless Designer brings such inconsistencies and conflicting interpretations to the attention of the City and requests City’s direction on how to proceed, the Designer’s interpretation of such inconsistencies and conflicting interpretations shall be the sole responsibility and liability of Designer, and the Designer shall correct all plans, specifications and other documents prepared for the Project at no additional cost if its interpretations are shown to be incorrect. In the event that the Designer request’s City’s direction on how to proceed with respect to any inconsistent and/or conflicting interpretation, the Designer shall be responsible to the City only pursuant to the indemnification provisions of this Agreement.
3.5.4 Permits, Approvals and Authorizations. Designer shall provide City with a list of all permits, approvals or other authorizations required for the Project from all federal, state or local governmental bodies with approval jurisdiction over the Project. Designer shall then assist the City in obtaining all such permits, approvals and other authorizations. The costs of such permits, approvals and other authorizations shall be paid by the City.
3.5.5 Water Quality Management and Compliance.
(a) Compliance with Water Quality Laws, Ordinances and Regulations.
Designer shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be Packet Page. 749
5 implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); and any and all regulations, policies, or permits issued pursuant to any such authority. Designer shall additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges.
(b) Standard of Care. Designer warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies described in Sections 3.5.5(a) of this Agreement. Designer further warrants that it, its employees and subcontractors will receive adequate training, as determined by the City, regarding these requirements as they may relate to the Services.
(c) Liability for Non-compliance.
(i) Indemnity: Failure to comply with laws, regulations, and ordinances listed in Sections 3.5.5(a) of this Agreement is a violation of federal and state law.
Notwithstanding any other indemnity contained in this Agreement, Designer agrees to indemnify and hold harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the laws, regulations, and ordinances listed above, arising out of or in connection with the Services, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers.
(ii) Defense: City reserves the right to defend any enforcement action or civil action brought against the City for Designer’s failure to comply with any applicable water quality law, regulation, or policy. Designer hereby agrees to be bound by, and to reimburse the City for the costs associated with, any settlement reached between the City and the relevant enforcement entity.
(iii) Damages: City may seek damages from Designer for delay in completing the Services caused by Designer’s failure to comply with the laws, regulations and policies described in Section 3.5.5(a) of this Agreement, or any other relevant water quality law, regulation, or policy.
3.5.6 Air Quality.
(a) Compliance with Air Quality Laws, Ordinances, and Regulations.
Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Contractor shall specifically be aware of the CARB limits and requirements’ application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or Packet Page. 750
6 regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.
3.6 Independent Contractor.
3.6.1 Control and Payment of Subordinates. City retains Designer on an independent contractor basis and Designer is not an employee of City. Designer is not an employee for state tax, federal tax or any other purpose, and is not entitled to the rights or benefits afforded to City’s employees. Any additional personnel performing the Services under this Agreement on behalf of Designer shall also not be employees of City, and shall at all times be under Designer’s exclusive direction and control. Designer shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Designer shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
3.7 Schedule of Services.
3.7.1 Designer Services. Designer shall fully and adequately complete the Services described in this Agreement and in Exhibit “A” attached hereto and incorporated herein by reference.
3.7.2 Timely Performance Standard. Designer shall perform all Services hereunder as expeditiously as is consistent with professional skill and care, as well as the orderly progress of the Project work so as not to be the cause, in whole or in part, of delays in the completion of the Project or in the achievement of any Project milestones, as provided herein.
Specifically, Designer shall perform its Services so as to allow for the full and adequate completion of the Project within the time required by the City and within any completion schedules adopted for the Project. Designer agrees to coordinate with City’s staff, contractors and consultants in the performance of the Services, and shall be available to City’s staff, contractors and consultants at all reasonable times.
3.7.3 Performance Schedule. Designer shall prepare an estimated time schedule for the performance of Designer’s Services, to be adjusted as the Project proceeds.
Such schedule shall be subject to the City’s review and approval, which approval shall not be unreasonably withheld, and shall include allowances for periods of time required for City’s review and approval of submissions, and for approvals of authorities having jurisdiction over Project approval and funding. If City and Designer cannot mutually agree on a performance schedule, City shall have the authority to immediately terminate this Agreement. The schedule shall not be exceeded by Designer without the prior written approval of City. If the Designer’s Services are not completed within the time provided by the agreed upon performance schedule, or any milestones established therein, it is understood, acknowledged and agreed that the City will suffer damage for which the Designer will be responsible pursuant to the indemnification provision of this Agreement.
3.7.4 Excusable Delays. Any delays in Designer’s work caused by the following shall be added to the time for completion of any obligations of Designer: (1) the actions of City or its employees; (2) the actions of those in direct contractual relationship with City; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any parties not within the reasonable control of the Designer; and (5) Force Majeure Event . Neither the City nor Packet Page. 751
7 the Designer shall be liable for damages, liquidated or otherwise, to the other on account of such delays. Such a non-compensable adjustment shall be Designer’s sole and exclusive remedy for such delays and the Designer will not receive an adjustment to the contract price or any other compensation. A Force Majeure Event shall mean an event that materially affects a party’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the work); (4) pandemics, epidemics or quarantine restrictions; and (5) strikes and other organized labor action occurring at the project site and the effects thereof on the work, only to the extent such strikes and other organized labor action are beyond the control of Designer and its subcontractors, of every tier, and to the extent the effects thereof cannot be avoided by use of replacement workers. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.
3.7.5 Request for Excusable Delay Credit. The Designer shall, within fifteen (15) calendar days of the beginning of any excusable delay, notify the City in writing of the causes of delay (unless City grants in writing a further period of time to file such notice prior to the date of final payment under the Agreement). City will then ascertain the facts and the extent of the delay, and grant an extension of time for completing the Services when, in its sole judgment, the findings of fact justify such an extension. The City’s findings of fact thereon shall be final and conclusive on the parties. Extensions of time shall apply only to that portion of the Services affected by the delay and shall not apply to other portions of the Services not so affected. The sole remedy of Designer for extensions of time shall be an extension of the performance time at no cost to the City. If Additional Services are required as a result of an excusable delay, the parties shall mutually agree thereto pursuant to the Additional Services provision of this Agreement. Should Designer make an application for an extension of time, Designer shall submit evidence that the insurance policies required by this Agreement remain in effect during the requested additional period of time.
3.8 Additional Designer Services.
3.8.1 Request for Services. At City’s request, Designer may be asked to perform services not otherwise included in this Agreement, not included within the basic services listed in Exhibit “A” attached hereto, and/or not customarily furnished in accordance with generally accepted design practice.
3.8.2 Definition. As used herein, “Additional Services” mean: (1) any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary for the Designer to perform at the execution of this Agreement; or (2) any work listed as Additional Services in Exhibit “A” attached hereto. Designer shall not perform, nor be compensated for, Additional Services without prior written authorization from City and without an agreement between the City and Designer as to the compensation to be paid for such services. City shall pay Designer for any approved Additional Services, pursuant to the compensation provisions herein, so long as such services are not made necessary through the fault of Designer pursuant to the indemnification provision of this Agreement.
3.8.3 Examples of Additional Services. Such Additional Services shall not include any redesign or revisions to drawings, specifications or other documents when such Packet Page. 752
8 revisions are necessary in order to bring such documents into compliance with applicable laws, rules, regulations or codes of which Designer was aware or should have been aware pursuant to the laws and regulations provision of this Agreement above. Such Additional Services may include, but shall not be limited to:
(a) Separately Bid Portions of Project. Plan preparation and/or administration of work on portions of the Project separately bid. (b) Furniture and Interior Design. Assistance to City, if requested, for the selection of moveable furniture, equipment or articles which are not included in the Construction Documents.
(c) Fault of Contractor. Services caused by delinquency, default or insolvency of contractor, or by major defects in the work of the contractor, provided that any such services made necessary by the failure of Designer to detect and report such matters when it reasonably should have done so shall not be compensated. (d) Inconsistent Approvals or Instructions. Revisions in drawings, specifications or other documents when such revisions are inconsistent with written approvals or instructions previously given and are due to causes beyond the control of Designer. (e) Legal Proceedings. Serving as an expert witness on City's behalf or attending legal proceedings to which the Designer is not a party. (f) Damage Repair. Supervision of repair of damages to any structure. (g) Extra Environmental Services. Additional work required for environmental conditions (e.g. asbestos or site conditions) not already contemplated within the Designer's services for the Project.
3.9 City Responsibilities. City’s responsibilities shall include the following:
3.9.1 Data and Information. City shall make available to Designer all necessary data and information concerning the purpose and requirements of the Project, including scheduling and budget limitations, objectives, constraints and criteria. As part of the budget limitation information, the City shall provide the Designer with a preliminary construction budget (“City’s Preliminary Construction Budget”).
3.9.2 Project Survey. If required pursuant to the scope of the Project and if requested by Designer, City shall furnish Designer with, or direct Designer to procure at City’s expense, a survey of the Project site prepared by a registered surveyor or civil engineer, any other record documents which shall indicate existing structures, land features, improvements, sewer, water, gas, electrical and utility lines, topographical information and boundary dimensions of the site, and any other such pertinent information.
3.9.3 Bid Phase. Distribute Construction Documents to bidders and conduct the opening and review of bids for the Project.
3.9.4 Testing. Retain consultant(s) to conduct chemical, mechanical, soils, geological or other tests required for proper design of the Project, and furnish such surveys, borings, test pits, and other tests as may be necessary to reveal conditions of the site which must Packet Page. 753
9 be known to determine soil condition or to ensure the proper development of the required drawings and specifications.
3.9.5 Required Inspections and Tests. Retain consultant(s) to conduct materials testing and inspection or environmental/hazardous materials testing and inspection pursuant to any applicable laws, rules or regulations.
3.9.6 Fees of Reviewing or Licensing Agencies. Directly pay or reimburse the payment of all fees required by any reviewing or licensing agency, or other agency having approval jurisdiction over the Project.
3.9.7 City’s Representative. The City hereby designates the Director of Public Works, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. Representative hereby designates the City Engineer, or his or her designee, as the City’s contact for the implementation of the Services hereunder.
Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
3.9.8 Review and Approved Documents. Review all documents submitted by Designer, including change orders and other matters requiring approval by the City Council or other officials. City shall advise Designer of decisions pertaining to such documents within a reasonable time after submission, so as not to cause unreasonable delay as provided in the excusable delay provisions of this Agreement above.
3.10 Compensation.
3.10.1 Designer’s Compensation for Basic Services. City shall pay to Designer, for the performance of all Services rendered under this Agreement, the total not to exceed amount of Two hundred eighty thousand five hundred dollars ($280,500) (“Total Compensation”). This Total Compensation amount shall be based upon, and may be adjusted according to, the fee schedule and related terms and conditions attached hereto as Exhibit “B” and incorporated herein by reference. The Total Compensation, as may be adjusted upon mutual agreement, shall constitute complete and adequate payment for Services under this Agreement.
3.10.2 Payment for Additional Services. At any time during the term of this Agreement, City may request that Designer perform Additional Services. As used herein, Additional Services means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Any additional work in excess of this amount must be approved by the City. If authorized, such Additional Services will be compensated at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the parties. If City requires Designer to hire consultants to perform any Additional Services, Designer shall be compensated therefore at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the parties. City shall have the authority to review and approve the rates of any such consultants. In addition, Designer shall be reimbursed for any expenses incurred by such consultants pursuant to the terms and conditions of Section 3.10.3.
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10 3.10.3 Reimbursable Expenses. Reimbursable expenses are in addition to compensation for the Services and Additional Services. Designer shall not be reimbursed for any expenses unless authorized in writing by City, which approval may be evidenced by inclusion in Exhibit “C” attached hereto. Such reimbursable expenses shall include only those expenses which are reasonably and necessarily incurred by Designer in the interest of the Project. Designer shall be required to acquire prior written consent in order to obtain reimbursement for the following: (1) extraordinary transportation expenses incurred in connection with the Project; (2) out-of-town travel expenses incurred in connection with the Project; (3) fees paid for securing approval of authorities having jurisdiction over the Project; (4) bid document duplication costs in excess of $1,000; and (5) other costs, fees and expenses in excess of $1,000.
3.10.4 Payment to Designer. Designer’s compensation and reimbursable expenses shall be paid by City to Designer no more often than monthly. Such periodic payments shall be made based upon the percentage of work completed, and in accordance with the phasing and funding schedule provided in Exhibit “B” and the compensation rates indicated in Exhibit “C” attached hereto and incorporated herein by reference. In order to receive payment, Designer shall present to City an itemized statement which indicates Services performed, percentage of Services completed, method for computing the amount payable, and the amount to be paid at the address listed in Section 3.29. The statement shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement, as well as those expenses for which reimbursement is requested for that statement period. The amount paid to Designer shall never exceed the percentage amounts authorized by the phasing and funding schedule located in Exhibit “B” attached hereto. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the parties in a mutually agreeable manner.
Payments made for Additional Services shall be made in installments, not more often than monthly, proportionate to the degree of completion of such services or in such other manner as the parties shall specify when such services are agreed upon, and in accordance with any authorized fee or rate schedule. In order to receive payment, Designer shall present to City an itemized statement which indicates the Additional Services performed, percentage of Additional Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Additional Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the parties in a mutually agreeable manner.
Upon cancellation or termination of this Agreement, Designer shall be compensated as set forth in the termination provision herein.
3.10.5 Withholding Payment to Designer. The City may withhold payment, in whole or in part, to the extent reasonably necessary to protect the City from claims, demands, causes of action, costs, expenses, liabilities, losses, damages, or injuries of any kind to the extent arising out of or caused by the negligence, recklessness, or willful misconduct protected under the indemnification provisions of this Agreement. Failure by City to deduct any sums from a progress payment shall not constitute a waiver of the City’s right to such sums. The City may keep any moneys which would otherwise be payable at any time hereunder and apply the same, or so much as may be necessary therefor, to the payment of any expenses, losses, or damages as determined by the City, incurred by the City for which Designer is liable under the Agreement Packet Page. 755
11 or state law. Payments to the Designer for compensation and reimbursable expenses due shall not be contingent on the construction, completion or ultimate success of the Project. Payment to the Designer shall not be withheld, postponed, or made contingent upon receipt by the City of offsetting reimbursement or credit from parties not within the Designer’s reasonable control.
3.10.6 Prevailing Wages. Designer is aware of the requirements of California Labor Code Sections 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Designer agrees to fully comply with and to require its consultants to fully comply with such Prevailing Wage Laws. City shall provide Designer with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement.
Designer shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Designer’s principal place of business and at the Project site.
Designer shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure of the Designer or its consultants to comply with the Prevailing Wage Laws. It shall be mandatory upon the Designer and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
3.10.7 Registration. If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Designer and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Designer shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
3.10.8 Labor Compliance. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Designer’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Designer or any subcontractor that affect Designer’s performance of Services, including any delay, shall be Designer’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Designer caused delay and shall not be compensable by the City. Designer shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Designer or any subcontractor.
3.10.9 Retention of Funds. No retainage will be held by the City from progress payments due the Designer. Any retainage held by the Designer or sub-consultants from progress Packet Page. 756
12 payments due sub-consultants shall be promptly paid in full to sub-consultants within 30 days after the sub-consultant’s work is satisfactorily completed. Federal law (49 CFR 26.29) requires that any delay or postponement of payment over the 30 days may take place only for good cause and with the City’s prior written approval. Any violation of this provision shall subject the violating Designer or sub--consultant to the penalties, sanctions and other remedies specified in Section 7108.5 of the Business and Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the Designer or sub-consultant in the event of a dispute involving late payment or nonpayment by the Designer, deficient sub-consultant performance, or noncompliance by a sub-consultant. This provision applies to both DBE and non-DBE Designer and sub-consultants.
3.11 Notice to Proceed.
Designer shall not proceed with performance of any Services under this Agreement unless and until the City provides a written notice to proceed.
3.12 Termination, Suspension and Abandonment.
3.12.1 Grounds for Termination; Designer’s Termination for Cause. City hereby reserves the right to suspend or abandon, at any time and for any reason, all or any portion of the Project and the construction work thereon, or to terminate this Agreement at any time with or without cause. Designer shall be provided with at least seven (7) days advanced written notice of such suspension, abandonment or termination. In the event of such suspension, abandonment or termination, Designer shall be paid for Services and reimbursable expenses rendered up to the date of such suspension, abandonment or termination, pursuant to the schedule of payments provided for in this Agreement, less any claims against or damages suffered by City as a result of the default, if any, by Designer. Designer hereby expressly waives any and all claims for damages or compensation arising under this Agreement, except as set forth herein, in the event of such suspension, abandonment or termination. Designer may terminate this Agreement for substantial breach of performance by the City such as failure to make payment to Designer as provided in this Agreement.
3.12.2 City’s Suspension of Work. If Designer’s Services are suspended by City, City may require Designer to resume such Services within ninety (90) days after written notice from City. When the Project is resumed, the Total Compensation and schedule of Services shall be equitably adjusted upon mutual agreement of the City and Designer.
3.12.3 Documents and Other Data. Upon suspension, abandonment or termination, Designer shall provide to City all preliminary studies, sketches, working drawings, specifications, computations, and all other Project Documents, as defined below, to which City would have been entitled at the completion of Designer’s Services under this Agreement. Upon payment of the amount required to be paid to Designer pursuant to the termination provisions of this Agreement, City shall have the rights, as provided in this Agreement hereinafter, to use such Project Documents prepared by or on behalf of Designer under this Agreement. Designer shall make such documents available to City upon request and without additional compensation other than as may be approved as a reimbursable expense.
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13 3.12.4 Employment of other Designers. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.13 Ownership and Use of Documents; Confidentiality.
3.13.1 Ownership. All plans, specifications, original or reproducible transparencies of working drawings and master plans, preliminary sketches, design presentation drawings, structural computations, estimates and any other documents prepared pursuant to this Agreement, including, but not limited to, any other works of authorship fixed in any tangible medium of expression such as writings, physical drawings and data magnetically or otherwise recorded on computer diskettes (hereinafter referred to as the “Project Documents”) shall be and remain the property of City. Although the official copyright in all Project Documents shall remain with the Designer or other applicable subcontractors or consultants, the Project Documents shall be the property of City whether or not the work for which they were made is executed or completed. Within thirty (30) calendar days following completion of the Project, Designer shall provide to City copies of all Project Documents required by City. In addition, Designer shall retain copies of all Project Documents on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of reasonable duplication costs. Before destroying the Project Documents following this retention period, Designer shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
(a) Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27, Subpart 27.3 - Patent Rights under Government Contracts for federal-aid contracts).
(b) The City may permit copyrighting reports or other agreement products. If copyrights are permitted; the agreement shall provide that the Federal Highway Administration 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.
3.13.2 Right to Use. Designer grants to City the right to use and reuse all or part of the Project Documents, at City’s sole discretion and with no additional compensation to Designer, for the following purposes:
(a) The construction of all or part of this Project.
(b) The repair, renovation, modernization, replacement, reconstruction or expansion of this Project at any time;
(c) The construction of another project by or on behalf of the City for its ownership and use;
City is not bound by this Agreement to employ the services of Designer in the event such documents are used or reused for these purposes. City shall be able to use or reuse the Project Documents for these purposes without risk of liability to the Designer or third parties with respect to the condition of the Project Documents, and the use or reuse of the Project Documents for these purposes shall not be construed or interpreted to waive or limit City’s right to recover for latent defects or for errors or omissions of the Designer.
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14 Any use or reuse by City of the Project Documents on any project other than this Project without employing the services of Designer shall be at City’s own risk with respect to third parties.
If City uses or reuses the Project Documents on any project other than this Project, it shall remove the Designer’s seal from the Project Documents and hold harmless Designer and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Project Documents on such other project.
3.13.3 License. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify or reuse any and all Project Documents and any intellectual property rights therein. Designer shall require any and all subcontractors and consultants to agree in writing that City is granted a non-exclusive and perpetual license for the work of such subcontractors or consultants performed pursuant to this Agreement.
3.13.4 Right to License. Designer represents and warrants that Designer has the legal right to license any and all copyrights, designs and other intellectual property embodied in the Project Documents that Designer prepares or causes to be prepared pursuant to this Agreement. Designer shall indemnify and hold City harmless pursuant to the indemnification provisions of this Agreement for any breach of this Section. Designer makes no such representation and warranty in regard to previously prepared designs, plans, specifications, studies, drawings, estimates or other documents that were prepared by design professionals other than Designer and provided to Designer by City.
3.13.5 Confidentiality. All Project Documents, either created by or provided to Designer in connection with the performance of this Agreement, shall be held confidential by Designer to the extent they are not subject to disclosure pursuant to the Public Records Act. All Project Documents shall not, without the written consent of City, be used or reproduced by Designer for any purposes other than the performance of the Services. Designer shall not disclose, cause or facilitate the disclosure of the Project Documents to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Designer which is otherwise known to Designer or is generally known, or has become known, to the related industry shall be deemed confidential. Designer shall not use City’s name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the written consent of City.
3.14 Indemnification.
3.14.1 To the fullest extent permitted by law, Designer shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Designer, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Designer’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Designer's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Designer, the City, its officials, officers, employees, agents, or volunteers.
3.14.2 If Designer’s obligation to defend, indemnify, and/or hold harmless arises out of Designer’s performance of “design professional” services (as that term is defined under Packet Page. 759
15 Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Designer’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Designer, and, upon Designer obtaining a final adjudication by a court of competent jurisdiction, Designer’s liability for such claim, including the cost to defend, shall not exceed the Designer’s proportionate percentage of fault.
3.15 Insurance. Designer shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Designer shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section.
3.15.1 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, Designer shall, at its expense, procure and maintain in full force and effect for the duration of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Designer agrees to amend, supplement or endorse the policies to do so.
3.15.2 Additional Insured. The City of San Bernardino, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Designer’s and its subconsultants’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.
3.15.3 Commercial General Liability
(a) The Designer shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (b) Coverage for Commercial General Liability insurance shall be at least as broad as the following: Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. Commercial General Liability Insurance must include coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX) exclusion deleted
(7) Contractual Liability with respect to this Contract Packet Page. 760
16 (8) Broad Form Property Damage
(9) Independent Consultants Coverage
(c) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(d) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(e) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured.
3.15.4 Automobile Liability
(a) At all times during the performance of the work under this Agreement, the Designer shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
(b) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(c) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status.
(d) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.
3.15.5 Workers’ Compensation/Employer’s Liability
(a) Designer certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(b) To the extent Designer has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Designer shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein.
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17 Designer shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this Section.
3.15.6 Professional Liability (Errors and Omissions)
(a) At all times during the performance of the work under this Agreement the Designer shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Designer. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend.
3.15.7 Privacy/Network Security (Cyber
(a) At all times during the performance of work under this Agreement, the Designer shall maintain privacy/network security insurance, in a form and with insurance companies acceptable to the City, for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and (4) the introduction, implantation or spread of malicious software code.
3.15.8 Aviation and/or Drone Liability
(a) At all times during the performance of the work under this Agreement, the Designer shall maintain Aviation and/or Drone Liability insurance for bodily injury and property damage, in a form and with insurance companies acceptable to the City.
3.15.9 Minimum Policy Limits Required
(a) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal injury, and property
damage
Automobile Liability $1,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
Cyber Liability $1,000,000 per occurrence and aggregate Aviation/Drone Liability $1,000,000 per occurrence limit Packet Page. 762
18 (b) Defense costs shall be payable in addition to the limits. (c) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement.
3.15.10 Evidence Required
(a) Prior to execution of the Agreement, the Designer shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.
3.15.11 Policy Provisions Required
(a) Designer shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Designer shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non- payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Designer shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(b) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Designer’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss.
(c) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Designer shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Designer shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement.
(d) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Designer or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Designer hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. (e) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.
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19 Further the limits set forth herein shall not be construed to relieve the Designer from liability in excess of such coverage, nor shall it limit the Designer’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
3.15.12 Qualifying Insurers
(a) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.15.13 Additional Insurance Provisions
(a) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Designer, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Designer pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(b) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Designer or City will withhold amounts sufficient to pay premium from Designer payments. In the alternative, City may cancel this Agreement.
(c) The City may require the Designer to provide complete copies of all insurance policies in effect for the duration of the Project. (d) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
3.15.14 Subconsultant Insurance Requirements
(a) Designer shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Designer, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.
3.16 Retention of Records/Audit.
3.16.1 Records. For the purpose of determining compliance with Gov. Code § 8546.7, the Consultant, sub-consultants, and City shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate work-papers, and other Packet Page. 764
20 evidence pertaining to the performance of the Agreement including, but not limited to, the costs of administering the Agreement. All parties, including the Designer’s Independent CPA, shall make such work-papers and materials available at their respective offices at all reasonable times during the Agreement period and for five (5) years from the date of final payment under the Agreement. City, 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 Designer, sub-consultants, and the Designer’s Independent CPA, that are pertinent to the Agreement for audits, examinations, work-paper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
3.16.2 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 the City’s Director of Finance & Management Services.
(b) Not later than 30 days after issuance of the final audit report, Designer may request a review by the City’s Director of Finance & Management Services of unresolved audit issues. The request for review shall be submitted in writing. (c) Neither the pendency of a dispute nor its consideration by the City will excuse Designer from full and timely performance, in accordance with the terms of this Agreement.
(d) Designer and sub-consultant agreements, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an agreement audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the agreement, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Designer’s responsibility to ensure federal, City, 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 Designer and approved by the City Manager to conform to the audit or review recommendations. Designer agrees that individual terms of costs identified in the audit report shall be incorporated into the agreement by this reference if directed by City at its sole discretion.
Refusal by Designer to incorporate audit or review recommendations, or to ensure that the federal, City 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) Designer’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 Designer and approved by the City Manager to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the Designer 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.
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21 (i) During IOAI’s review of the ICR audit work papers created by the Designer’s independent CPA, IOAI will work with the CPA and/or Designer 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, City will reimburse the Designer at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines}is received and approved by IOAI. Accepted rates will be as follows:
(1) 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.
(2) 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.
(3) If the proposed rate is greater than two hundred
percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate. (ii) If IOAI is unable to issue a cognizant letter per subsection e.1 above, IOAI may require Designer 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 Designer’s and/or the independent CPA’s revisions. (iii) If the Designer fails to comply with the provisions of this subsection 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 subsection 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.
(iv) Designer may submit to City 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 City; and, (3) IOAI has issued its final ICR review letter. The DESIGNER MUST SUBMIT ITS FINAL INVOICE TO CITY 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 City and the Designer, either as a prime or sub-consultant, with the same fiscal period ICR.
3.17 Standardized Manufactured Items.
Designer shall cooperate and consult with City in the use and selection of manufactured items on the Project, including but not limited to, paint, hardware, plumbing, mechanical and electrical equipment, fixtures, roofing materials and floor coverings. All such manufactured items shall be standardized to City’s criteria to the extent such criteria do not interfere with building design.
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22 3.18 Limitation of Agreement.
This Agreement is limited to and includes only the work included in the Project described herein. Any additional or subsequent construction at the site of the Project, or at any other City site, will be covered by, and be the subject of, a separate Agreement for design services between City and the designer chosen therefor by City.
3.19 Mediation.
Disputes arising from this Agreement may be submitted to mediation if mutually agreeable to the parties hereto. The type and process of mediation to be utilized shall be subject to the mutual agreement of the parties.
3.20 Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Designer shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.
3.21 Asbestos Certification.
Designer shall certify to City, in writing and under penalty of perjury, that to the best of its knowledge, information and belief no asbestos-containing material or other material deemed to be hazardous by the state or federal government was specified as a building material in any construction document that the Designer prepares for the Project. Designer shall require all consultants who prepare any other documents for the Project to submit the same written certification. Designer shall also assist the City in ensuring that contractors provide City with certification, in writing and under penalty of perjury, that to the best of their knowledge, information and belief no material furnished, installed or incorporated into the Project contains asbestos or any other material deemed to be hazardous by the state or federal government. These certifications shall be part of the final Project submittal. Designer shall include statements in its specifications that materials containing asbestos or any other material deemed to be hazardous by the state or federal government are not to be included.
3.22 No Third Party Rights.
This Agreement shall not create any rights in, or inure to the benefits of, any third party except as expressly provided herein.
3.23 Governing Law.
This Agreement shall be construed in accordance with, and governed by, the laws of the State of California. Venue shall be in San Bernardino County.
3.24 Exhibits and Recitals.
All exhibits and recitals contained herein and attached hereto are material parts of this Agreement and are incorporated as if fully set forth.
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23 3.25 Severability.
Should any provision in the Agreement be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force and effect.
3.26 Non-Waiver.
None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.
3.27 Safety.
3.27.1 Designer shall comply with OSHA regulations applicable to Designer regarding necessary safety equipment or procedures. Designer shall comply with safety instructions issued by the City Safety Officer and other City representatives. Designer personnel shall wear hard hats and safety vests at all times while working on the construction project site.
3.27.2 Pursuant to the authority contained in Section 591 of the Vehicle Code, the City has determined that such areas are within the limits of the project and are open to public traffic. Designer shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Designer 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.
3.27.3 Any subcontract entered into as a result of this Agreement, shall contain all of the provisions of this Section.
3.27.4 Designer must have a Division of Occupational Safety and Health (CAL- OSHA) permit(s), as outlined in California Labor Code Sections 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 feet or deeper. d
3.28 Harassment Policy.
Designer shall provide a copy of the City's Harassment Policy to each of its employees assigned to perform the tasks under this Agreement. Designer shall submit to the City's Personnel Manager a statement signed by each of its employees who are assigned to perform the Services under this Agreement certifying receipt of City's Harassment Policy and certifying that they have read the Harassment Policy. A finding by the City that any of Designer's employees has harassed a City employee shall be grounds for appropriate discipline, up to and including such employee's removal from performance of this Agreement at City's request.
3.29 Delivery of Notices.
All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Packet Page. 768
24 CITY:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, California 92401
Attn: City Manager
With a Copy to:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
DESIGNER:
KOA Corp.
1100 Corporate Center Drive, Suite 201
Monterey Park, Ca 91754
(323)260-4703
Michael Nilsson – Principal
Frank Barrera - Project Manager
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.30 Time of Essence.
Time is of the essence for each and every provision of this Agreement.
3.31 City’s Right to Employ Other Consultants.
City reserves right to employ other consultants, including designers, in connection with this Project or other projects.
3.32 Prohibited Interests.
3.32.1 Solicitation. Designer maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Designer, to solicit or secure this Agreement. Further, Designer warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Designer, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability.
3.32.2 Conflict of Interest. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.33 Equal Opportunity Employment.
Designer represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or any other classification protected by federal or state law.
Such non-discrimination shall include, but not be limited to, all activities related to initial Packet Page. 769
25 employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Designer shall also comply with all relevant provisions of City’s minority business enterprise program, affirmative action plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.34 Labor Certification.
By its signature hereunder, Designer certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.35 Subcontracting.
As specified in this Agreement, Designer shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to each and every provision of this Agreement.
3.36 Supplemental Conditions.
Any supplemental conditions shall be attached as an exhibit to this Agreement, and that exhibit shall be incorporated herein by reference.
3.37 Electronic Signature.
Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature.
3.38 Entire Agreement.
This Agreement, with its exhibits, contains the entire agreement of the parties hereto, and supersedes any and all other prior or contemporaneous negotiations, understandings and oral or written agreements between the parties hereto. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. Furthermore, any modification of this Agreement shall only be effective if in writing signed by all parties hereto.
3.39 Cost Principles and Administrative Requirements.
The Designer agrees that 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost. Designer also agrees to comply with federal procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. Any costs for which payment has been made to the Designer that are determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200 are subject to repayment by the Designer to City. When a Designer or sub-consultant is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
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26 3.40 Federal Requirements.
Federal funds will be used to fund all or a portion of this Agreement. Designer shall comply with all applicable federal requirements as outlined in Exhibit “D”, attached hereto and incorporated herein by this reference. Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in this Agreement. With respect to any conflict between such federal requirements and the terms of this Agreement and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control.
[SIGNATURES ON FOLLOWING PAGE]
Packet Page. 771
27 SIGNATURE PAGE FOR DESIGN SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND KOA CORPORATION
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
CITY OF SAN BERNARDINO
APPROVED BY:
Rochelle Clayton
Acting City Manager
ATTESTED BY:
Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
KOA CORPORATION, A Lochner
Company
Signature
Name
Title
Packet Page. 772
Exhibit A-1
EXHIBIT A
DESIGNER’S SCOPE OF SERVICES
1. GENERAL REQUIREMENTS.
1.1 Basic Services. Designer agrees to perform all the necessary professional design, engineering (e.g. mechanical, electrical, plumbing, structural, site engineering, and any other necessary engineering services mutually agreeable to the parties) and construction administration services for the Project in a timely and professional manner, consistent with the standards of the profession, including those provided for herein.
1.2 Exclusions from Basic Services. The following services shall be excluded from the basic services listed above: N/A
1.3 Additional Services. Designer shall perform the following Additional Services for the Project: N/A
1.4 Communication with City. Designer shall participate in consultations and conferences with authorized representatives of City and/or other local, regional, or state agencies concerned with the Project, which may be necessary for the completion of the Project or the development of the drawings, specifications and documents in accordance with the applicable standards and requirements of law and the City. Such consultations and conferences shall continue throughout the planning and construction of the Project and the contractor’s warranty period. Designer shall take direction only from the City’s Representative, or any other representative specifically designated by the City for this Project, including any construction manager hired by the City.
1.5 Coordination and Cooperation with Construction Manager. The City may hire a construction manager to administer and coordinate all or any part of the Project on its behalf. If the City does so, it shall provide a copy of its agreement with the construction manager so that the Designer will be fully aware of the duties and responsibilities of the construction manager.
The Designer shall cooperate with the construction manager and respond to any requests or directives authorized by the City to be made or given by the construction manager. The Designer shall request clarification from the City in writing if the Designer should have any questions regarding the authority of the construction manager.
2. INITIAL PLANNING PHASE.
During the initial planning phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
2.1 Project Feasibility. Provide advice and assistance to City in determining the feasibility of the Project, analysis of the type and quality of materials and construction to be selected, the site location, and other initial planning matters.
2.2 Meeting Budget and Project Goals. Designer shall notify City in writing of potential complications, cost overruns, unusual conditions, and general needs that potentially impact the Project budget and time line, including the City’s Preliminary Construction Budget.
Designer shall use its best judgment in determining the balance between the size, type and quality Packet Page. 773
Exhibit A-2
of construction to achieve a satisfactory solution within the Project’s budget and construction allowance. It shall be the duty of the Designer to design the Project within budget. As discussed herein, including in Section 7.3, if the lowest responsive and responsible bid for the Project exceeds the budget by the stated amount, Designer may be required to make the necessary changes in the drawing and specifications, at its sole cost and expense, to bring the bids within the required budget.
2.3 Permits, Approvals and Authorizations. As indicated in Section 3.5.4 of the Agreement, Designer shall assist City in securing easements, encroachment permits, rights of way, dedications, infrastructures and road improvements, as well as coordinating with utilities and adjacent property owners.
3. SCHEMATIC PLAN PHASE.
During the schematic plan phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
3.1 Funding Documents. Designer shall provide a site plan and all other Project- related information necessary and required for an application by City to any federal, state, regional, or local agencies for funds to finance the construction Project.
3.2 Schematic Plans. In cooperation with City, Designer shall prepare preliminary plans and studies, schematic drawings, site utilization plans, and phasing plans showing the scale and relationship of the components of the Project, the plot plan development at the site, and the proposed design concept of the buildings (“Schematic Plans”). Designer shall incorporate the functional requirements of City into the Schematic Plans. The Schematic Plans shall meet all laws, rules and regulations of the State of California. The Schematic Plans shall show all rooms incorporated in each building of the Project in single-line drawings, and shall include all revisions required by City or by any federal, state, regional or local agency having jurisdiction over the Project. All design drawings for the Project shall be in a form suitable for reproduction.
3.3 Preliminary Project Budget. Designer shall use the City’s Preliminary Construction Budget and its own expertise and experience with the Project to establish a preliminary project budget or allowance in a format required by City (“Designer’s Preliminary Project Budget”). The purpose of the Designer’s Preliminary Project Budget is to show the probable Project cost in relation to City’s Preliminary Construction Budget and the construction standards of any applicable funding agency. If Designer perceives site considerations which render the Project expensive or cost prohibitive, Designer shall disclose such conditions in writing to City immediately. As discussed herein, including in Section 7.3, if the lowest responsive and responsible bid for the Project exceeds the budget by more than the stated amount, Designer may be required to make the necessary changes in the drawings and specifications, at its sole cost and expense, to bring the bids within the required budget Designer shall provide a preliminary written time schedule for the performance of all construction work on the Project.
3.4 Copies of Schematic Plans and Other Documents. Designer, at its own expense, shall provide a complete set of the Schematic Plans described herein for City’s review and approval. Additionally, at City’s expense, Designer shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.
Packet Page. 774
Exhibit A-3
4. DESIGN DEVELOPMENT PHASE.
During the design development phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
4.1 Design Development Documents. Once City provides Designer with specific written approval of the Schematic Plans described herein, Designer shall prepare design development documents consisting of: (1) site and floor plans; (2) elevations; and (3) any other drawings and documents sufficient to fix and describe the types and makeup of materials, as well as the size and character of the Project’s structural, mechanical and electrical systems, and to outline the Project specifications (“Design Development Documents”). The Design Development Documents shall be prepared in sufficient form to present to the City Council for approval.
4.2 Copies of Design Development and Other Documents. Designer, at its own expense, shall provide a complete set of the Design Development Documents described herein for City’s review and approval. Additionally, at City’s expense, Designer shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.
4.3 Updated Project Budget. Designer shall use its Preliminary Project Budget and expertise and experience with the Project to establish an updated estimate of probable construction costs, containing detail consistent with the Design Development Documents as set forth herein and containing a breakdown based on types of materials and specifications identified herein (“Designer’s Updated Project Budget”).
4.4 Timetable. Designer shall provide a written timetable for full and adequate completion of the Project to City.
4.5 Application for Approvals. Designer shall assist City in applying for and obtaining required approvals from all federal, state, regional or local agencies concerned with the Project. Designer shall furnish and process all design and engineering information required to prepare and process applications to applicable utilities in order to secure priorities and materials, to aid in the construction of the Project and to obtain final Project approval and acceptance by any of the above agencies as may be required.
4.6 Color and Other Aesthetic Issues. Designer shall provide, for City’s review and approval, a preliminary schedule of all color materials and selections of textures, finishes and other matters involving an aesthetic decision about the Project.
5. FINAL WORKING DRAWINGS AND SPECIFICATIONS.
During the final working drawings and specifications phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
5.1 Final Working Drawings and Specifications. Once City provides Designer with specific written approval of the Design Development Documents described herein, Designer shall prepare such complete working drawings and specifications as are necessary for developing complete bids and for properly executing the Project work in an efficient and thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings and Specifications shall be developed from the Schematic Plans and Design Development Documents approved by City. The Final Working Drawings and Specifications shall set forth in detail all of the following:
Packet Page. 775
Exhibit A-4
(1) the Project construction work to be done; (2) the materials, workmanship, finishes, and equipment required for the architectural, structural, mechanical, and electrical systems; and (3) the utility service connection equipment and site work. As indicated in Section 3.9.2 of the Agreement, City may be requested to supply Designer with the necessary information to determine the proper location of all improvements on and off site, including record drawings (“as- built drawings”) in City’s possession. Designer will make a good-faith effort to verify the accuracy of such information by means of a thorough interior and exterior visual survey of site conditions.
City shall also make a good-faith effort to verify the accuracy of the as-built drawings and provide any supplemental information to Designer which may not be shown on the as-built drawings.
5.2 Form. The Final Working Drawings and Specifications must be in such form as will enable Designer and City to secure the required permits and approvals from all federal, state, regional or local agencies concerned with the Project. In addition, the Final Working Drawings and Specifications must be in such form as will enable City to obtain, by competitive bidding, a responsible and responsive bid within the applicable budgetary limitations and cost standards.
The Final Working Drawings and Specifications shall be clear and legible so that uniform copies may be on standard architectural size paper, properly indexed and numbered, and shall be capable of being clearly copied and assembled in a professional manner by Designer.
5.3 Approval and Revisions. City shall review, study, and check the Final Working Drawings and Specifications presented to it by Designer, and request any necessary revisions or obtain any necessary approvals by the City Council, subject to the approval of all federal, state, regional or local agencies concerned with the Project. Designer shall make all City-requested changes, additions, deletions, and corrections in the Final Working Drawings and Specifications at no additional cost, so long as they are not in conflict with the requirements of public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or Designer’s professional judgment. Designer shall bring any such conflicts and/or inconsistencies to the attention of City. The parties agree that Designer, and not the City, possesses the requisite expertise to determine the constructability of the Final Working Drawings and Specifications.
However, the City reserves the right to conduct one or more constructability review processes with the Final Working Drawings and Specifications, and to hire an independent designer or other consultant to perform such reviews. Any such independent constructability review shall be at City’s expense. Designer shall make all City-requested changes, additions, deletions, and corrections in the Final Working Drawings and Specifications which may result from any constructability review, at no additional cost to the City, so long as they are not in conflict with the requirements of public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or Designer’s professional judgment. If such changes, additions, deletions or corrections are inconsistent with prior City direction, Designer shall make such alterations and be compensated therefore pursuant to the Additional Services provision of this Agreement.
5.4 Costs of Construction. It is understood by Designer that should the Final Working Drawings and Specifications be ordered by City, City shall specify the sum of money set aside to cover the total cost of construction of the work, exclusive of Designer’s fees. Should it become evident that the total construction cost will exceed the specified sum, Designer shall at once present a statement in writing to the City’s Representative setting forth this fact and giving a full statement of the cost estimates on which the conclusion is based.
5.5 Copies of Final Working Drawings and Specifications and Other Documents.
Designer, at its own expense, shall provide a complete set of the Final Working Drawings and Specifications described herein for City’s review and approval. Additionally, at City’s expense, Designer shall provide such documents as may be required by any federal, state, regional or local Packet Page. 776
Exhibit A-5
agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.
6. CONSTRUCTION CONTRACT DOCUMENTS.
During the construction contract documents phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
6.1 Bid and Contract Documents. If so required by City, Designer shall assist City in the completion of all bid and construction documents, including but not limited to, the Notice Inviting Bids, Instructions to Bidders, Contract Bid Forms (including Alternate Bids as requested by City), Contract, General Conditions, Supplementary General Conditions, Special Conditions, DVBE and other applicable affirmative action documents, Performance Bond, Payment Bond, Escrow Agreement for Security Deposits, and any other certifications and documents required by federal, state and local laws, rules and regulations which may be reasonably required in order to obtain bids responsive to the specifications and drawings. All such documents shall be subject to the approval of City and City’s legal counsel.
6.2 Final Estimate. At the time of delivery of these bid and construction documents, which shall include the Final Working Drawings and Specifications (collectively referred to herein as the “Construction Documents”), Designer shall provide City with its final estimate of probable construction cost (“Designer’s Final Estimate”). As discussed herein, including in Section 7.3, it shall be the Designer’s duty to design the Project within budget.
7. BID PHASE.
During the bid phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
7.1 Reproducible Construction Documents. Once City provides Designer with specific written approval of the Construction Documents and Designer’s Final Estimate, Designer shall provide to City one set of reproducible Construction Documents.
7.2 Distribution of Contract Documents and Review of Bids. Designer shall assist City in distributing the Construction Documents to bidders and conducting the opening and review of bids for the Project.
7.3 Over Budget. If the apparent lowest responsive and responsible bid on the Project exceeds the Designer’s Final Estimate by more than five percent (5%), City may request Designer to amend, at Designer’s sole cost and expense, the Final Drawings and Specifications in order to rebid the Project and receive a lowest responsive and responsible bid equal to or less than the Designer’s Final Estimate. All revisions necessary to bring the lowest responsible and responsive bid within the Designer’s Final Estimate, including any omissions, deferrals or alternates, shall be made in consultation with, and subject to the approval of, the City.
8. CONSTRUCTION PHASE.
During the construction phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
Packet Page. 777
Exhibit A-6
8.1 Observation. The Project Designer shall observe work executed from the Final Working Drawings and Specifications in person, provided that City may, in its discretion, consent to such observation by another competent representative of Designer.
8.2 General Administration. Designer shall provide general administration of the Construction Documents and the work performed by the contractors.
8.3 Pre-Construction Meeting. Designer shall conduct one or more pre-construction meetings, as the City determines is needed for the Project, with all interested parties.
8.4 Site Visits of Contractor’s Work. Designer shall conduct site visits to observe each contractors’ work for general conformance with the Construction Documents and with any approved construction schedules or milestones. Such site visits shall be conducted as often as are necessary and appropriate to the stage of construction, according to the City’s sole discretion, but in no event less than weekly.
8.5 Site Visits of Inspector’s Work. Designer shall conduct site visits to communicate and observe the activities of the City inspectors. Such site visits shall be conducted as often as is mutually acceptable to Designer and City. Designer shall direct the City inspectors and the Project contractors to coordinate the preparation of record drawings indicating dimensions and location of all “as-built” conditions, including but not limited to, underground utility lines.
8.6 Coordination of Designer’s Consultants. Designer shall cause all architects, engineers and other consultants, as may be hired by Designer or City, to observe the work completed under their disciplines as required, and approve and review all test results for general conformance with the Construction Documents.
8.7 Reports. Designer shall make regular reports as may be required by applicable federal, state or local laws, rules or regulations, as well as the federal, state, regional or local agencies concerned with the Project.
8.8 Construction Meetings; Minutes. Designer shall attend all construction meetings and provide written reports/minutes to the City after each construction meeting in order to keep City informed of the progress of the work. Such meetings shall occur at a frequency necessary for the progress of the Project work, according to the City’s sole discretion, but no less than weekly.
8.9 Written Reports. Designer shall make written reports to City as necessary to inform City of problems arising during construction, changes contemplated as a result of each such problems, and progress of the Project work.
8.10 Written Records. Designer shall keep accurate written records of the progress and quality of the Project work and the time schedules, and shall advise the contractors and City of any deviations from the time schedule which could delay timely completion of the Project.
8.11 Material and Test Reports. Designer shall check and process, in a timely manner, all required material and test reports for the Project work. In addition, Designer shall provide notice of any deficiencies in material or work reflected in such reports, as well as its recommendation for correction of such deficiencies, to the contractors and City.
Packet Page. 778
Exhibit A-7
8.12 Review and Response to Submissions. Designer shall review and respond, in a timely manner, to all schedules, submittals, shop drawings, samples, information requests, change requests, and other submissions of the contractor and subcontractors for compliance with, or alterations and additions to, the Construction Documents. Designer’s review and response shall be done in such a manner so as to ensure the timely and uninterrupted progress of the Project work.
8.13 Rejection of Work. Designer shall promptly reject, as discussed with City, work or materials which do not conform to the Construction Documents. Designer shall immediately notify the City and contractor(s) of such rejections. Designer shall also have the authority to recommend to the City that additional inspection or testing of the work be performed, whether or not such work is fabricated, installed or completed.
8.14 Substitutions. Designer shall consult with City, in a timely manner, with regard to substitution of materials, equipment and laboratory reports thereof, prior to the City’s final written approval of such substitutions. Designer’s consultation shall be done in such a manner so as to ensure the timely and uninterrupted progress of the Project work.
8.15 Revised Documents and Drawings. Designer shall prepare, at no additional expense to City, all documents and/or drawings made necessary by errors and omissions in the originally approved Construction Documents.
8.16 Change Requests and Material Changes. Designer shall evaluate and advise City, in a timely manner and in writing, of any change requests and material change(s) which may be requested or necessary in the Project plans and specifications. Designer shall provide the City with its opinion as to whether such change requests should be approved, denied or revised.
If the City has not hired a construction manager or other person to do so, the Designer shall prepare and execute all change orders and submit them to the City for authorization. If the City has designated a construction manager or other person to prepare all change orders, the Designer shall review all change orders prepared by such person, execute them and deliver them to the City for authorization if they meet with the Designer’s approval, or submit them to the City with recommendations for revision or denial if necessary. Designer shall not order contractors to make any changes affecting the contract price without approval by City of such a written change order, pursuant to the terms of the Construction Documents. Designer may order, on its own responsibility and pending City Council approval, changes necessary to meet construction emergencies, if written approval of City’s Representative is first secured.
8.17 Applications for Payment. Designer shall examine, verify and approve contractor’s applications for payment, and shall issue certificates for payment in amounts approved by the City’s inspector.
8.18 Final Color and Product Selection. Designer shall coordinate final color and product selection with City’s original design concept.
8.19 Substantial Completion. Designer shall determine the date of substantial completion, in consultation with the City.
8.20 Punch List. After determining that the Project is substantially complete, Designer shall participate in the inspection of the Project and shall review all remaining deficiencies and minor items needed to be corrected or completed on the Project, including those identified on the punch list prepared by the contractor (“Punch List Items”). Designer shall notify contractor in Packet Page. 779
Exhibit A-8
writing that all Punch List Items must be corrected prior to final acceptance of the Project and final payment. Designer shall also notify City of all Punch List Items.
8.21 Warranties. Designer shall review materials assembled by the contractor and subcontractors with regard to all written warranties, guarantees, owners’ manuals, instruction books, diagrams, record “as built” drawings, and any other materials required from the contractors and subcontractors pursuant to the Construction Documents. Designer shall coordinate and provide these materials to the City.
8.22 Certificate of Completion. Designer shall participate in any further inspections of the Project necessary to issue Designer’s Certificate of Completion and final certificate for payment.
8.23 Documents for Project Close-Out. Designer shall cause all other architects, engineers and other consultants, as may be hired by Designer, to file any and all required documentation with the City or other governmental authorities necessary to close out the Project.
Designer shall assist the City in obtaining such documentation from all other architects, engineers, or other consultants.
9. AS-BUILT DRAWINGS.
During the as-built drawings phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
9.1 As-Built Drawings and Specifications. Not later than thirty (30) days after substantial completion of the Project, before receipt of final payment, Designer shall review and forward the Final Working Drawings and Specifications, indicating on them all changes made by change orders or otherwise pursuant to the Construction Documents, as well as all information called for on the specifications, thus producing an “as-built” set of Final Working Drawings and Specifications (“As-Built Drawings and Specifications”). The As-Built Drawings and Specifications shall show, among other things, the location of all concealed pipe, buried conduit runs and other similar elements within the completed Project. Designer shall personally review and certify that the As-Built Drawings and Specifications are a correct representation of the information supplied to Designer by any inspectors and the contractor, and shall obtain certifications from any inspectors and the contractor that the drawings are correct.
9.2 Approval. Once City provides Designer with specific written approval of the As- Built Drawings and Specifications, Designer shall forward to City the complete set of original As- Built Drawings and Specifications or a complete set of reproducible duplicate As-Built Drawings and Specifications. The tracing shall be of such quality that clear and legible prints may be made without appreciable and objectionable loss of detail.
9.3 Documents for Final Payment. Prior to the receipt of Designer’s final payment, Designer shall forward to City all of the following: (1) one clear and legible set of reproductions of the computations; (2) the original copy of the specifications; (3) the As-Built Drawings and Specifications as required herein; and (4) Designer’s Certificate of Completion.
10. WARRANTY PERIOD.
During the warranty period phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:
Packet Page. 780
Exhibit A-9
10.1 Advice. Designer shall provide advice to City on apparent deficiencies in the Project during any applicable warranty periods for the Project.
Packet Page. 781
Exhibit B-1
EXHIBIT B
FEE AND PHASING/FUNDING SCHEDULES
1. FEE SCHEDULE.
Designer will invoice City on a monthly cycle based on the following fee schedule.
Designer will include with each invoice a detailed progress report that indicates the amount of budget spent on each phase and the total amount spent against the Total Compensation.
Designer will inform City regarding any out-of-scope work being performed by Designer for which Designer intends to seek compensation from City.
Packet Page. 782
Exhibit B-2
Packet Page. 783
Exhibit B-3
2. PHASING/FUNDING SCHEDULE.
Progress payments towards Total Compensation shall never exceed the following percentages of Total Compensation as of the phase indicated:
Initial Planning Phase: ________ percent (%____)
Schematic Plan Phase: ________ percent (%____)
Design Development Phase: ________ percent (%____) Final Working documents : ________ percent (%____) Packet Page. 784
Exhibit C-1
EXHIBIT C
COMPENSATION RATES AND REIMBURSABLE EXPENSES
1. HOURLY COMPENSATION RATES.
Attached
2. REIMBURSABLE EXPENSES.
Attached
3. ADDITIONAL SERVICES.
Additional Services shall be computed at the actual hourly rates in the attachment.
4. ADDITIONAL CONSULTANTS.
If City requires Designer to hire consultants to perform any Additional Services, Designer shall be compensated therefore at the Designer’s actual hourly rates plus 0%. Owner shall have the authority to review and approve the rates of any such consultants.
Packet Page. 785
Exhibit D
Exhibit D
Federal Requirements
INFRASTRUCTURE INVESTMENT AND JOBS (IIJ) ACT FEDERAL GUIDELINES
USE OF IIJ AND REQUIREMENTS
This Contract may be funded in whole or in part with funds provided by the Infrastructure Investment and Jobs Act – also referred to as the “Bipartisan Infrastructure Law” or “BIL”, Federal Award Identification Number (FAIN): 693JJ32440695 and Assistance Listing Number (formerly known as a CFDA number): 20.939 - Safe Streets and Roads for All Funding , and therefore Contractor agrees to comply with any and all IIJ requirements in addition to any and all applicable County, State, and Federal laws, regulations, policies, and procedures pertaining to the funding of this Contract. The use of the funds must also adhere to official federal guidance issued or to be issued on what constitutes a necessary expenditure. Any funds expended by the Contractor or its subcontractor(s) in any manner that does not adhere to the IIJ requirements shall be returned or repaid to the City. Any funds paid to Contractor i) in excess of the amount to which Contractor is finally determined to be authorized to retain; ii) that are determined to have been misused; or iii) that are determined to be subject to a repayment obligation pursuant to Section 24112 of the Infrastructure Investment and Jobs Act of the Act and have not been repaid, shall constitute a debt to the federal government. Contractor agrees to comply with the requirements of Section 24112 of the Infrastructure Investment and Jobs Act, regulations adopted by Treasury pursuant to the Act, and guidance issued by Treasury regarding the foregoing. Contractor shall provide for such compliance in any agreements with subcontractor(s).
Contractor agrees to comply with the following:
A. In accordance with Title 2 C.F.R. Section 200.471, costs incurred for telecommunications and video surveillance services or equipment such as phones, internet, video surveillance, cloud servers are allowable except for the following circumstances: Obligating or expending covered telecommunications and video surveillance services or equipment or services (as described in Title 2 C.F.R. Section 200.216) to: 1) Procure or obtain, extend or renew a contract to procure or obtain; 2) Enter into a contract (or extend or renew a contract) to procure; or 3) Obtain the equipment, services, or systems, as described in Title 2 C.F.R. Section 200.216 that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115- 232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities) and: (i) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities); (ii) Telecommunications or video surveillance services provided by such entities or using such equipment; and (iii) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered Packet Page. 786
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foreign country. In implementing the prohibition under Public Law 115-232, section 889, subsection (f), paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs shall prioritize available funding and technical support to assist affected businesses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained.
B. A non-Federal Contractor that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at Title 40 C.F.R. Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
C. Byrd Anti-Lobbying Amendment (31 U.S.C. Section 1352) - Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by Title 31 U.S.C. Section 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.
D. Clean Air Act (42 U.S.C. Sections 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. Sections 1251-1389), as amended - Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. Sections 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. Sections1251-1389).
E. Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of “funding agreement” under Title 37 C.F.R. Section 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment, or performance of experimental, developmental, or research work under that “funding agreement,” the Title 33 U.S.C. Sections 1251-1387 recipient or subrecipient must comply with the requirements of Title 37 C.F.R. Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.
F. Contracts for more than the simplified acquisition threshold, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by Title 41 U.S.C. Section 1908, must address administrative, contractual, or legal remedies in instances where Contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate.
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G. All contracts in excess of $10,000 must address termination for cause and for convenience by the non-Federal Contractor including the manner by which it will be effected and the basis for settlement.
H. Equal Employment Opportunity. Except as otherwise provided under Title 41 C.F.R. Part 60, all contracts that meet the definition of “federally assisted construction contract” in Title 41 C.F.R. Section 60-1.3 must include the equal opportunity clause provided under Title 41 C.F.R.
Section 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 C.F.R. part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The identified clause is below and the Contractor shall comply with the clause and all legal requirements and include the equal opportunity clause in each of its nonexempt subcontracts.
i. The applicant hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at Title 41 C.F.R. Chapter 60, which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following equal opportunity clause:
During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.
The contractor will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such Packet Page. 788
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information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
(4) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and the rules, regulations, and relevant orders of the Secretary of Labor. (6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, Packet Page. 789
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instrumentality or subdivision of such government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
I. Data Collection Requirements – Contractor agrees to collect pre-post data per City, and United States Treasury guidelines and timeline, for project tracking and monitoring and various reporting purposes. Data including, but not limited to: Required Project Demographic Distribution Data; Required Performance Indicators and Programmatic Data; Required Expenditure Report Data; and Required Program Evaluation Data. Contractor agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data that needs to be available to City, State or Federal governments upon request.
J. Data Submission Requirements - Contractor agrees to furnish data to the City upon request, per City, and United States Treasury guidelines and timeline, for project tracking and monitoring and various reporting purposes. Data including, but not limited to: Required Project Demographic Distribution Data; Required Performance Indicators and Programmatic Data; Required Expenditure Report Data; Required Program Evaluation Data. Contractor agrees to track and monitor data in a quantifiable and reportable database - retrievable collective data that needs to be available at request.
K. Project Progress Reporting - Contractor agrees to provide project timeline and progress updates to the City upon request, per City, and United States Treasury guidelines and timeline.
Contractor agrees to routine and impromptu program and project evaluation by the City.
L. Contractor shall comply with Title 2 Code of Federal Regulations Part 200 (Unifo Packet Page. 790
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rm Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards), including, but not limited to, Title 2 C.F.R. Section 200.303 (internal control), Title 2 C.F.R.
Sections 200.331 through 200.333 (subrecipient monitoring and management), and Title 2 C.F.R. Part 200 Subpart F (audit requirements), as these sections currently exist or may be amended. The use of funds must also adhere to official federal guidance issued or to be issued on what constitutes an eligible expenditure. Any funds expended by Contractor or its subcontractor(s) in any manner that does not adhere to official federal guidance shall be returned to the City. Contractor agrees to comply with all official guidance regarding the IIJ BIL. Contractor also agree that as additional federal guidance becomes available, an amendment to this Contract may become necessary. If an amendment is required, Contractor agrees to promptly execute the Contract amendment.
M. Contractor shall retain documentation of all uses of the funds, including but not limited to invoices and/or sales receipts in a manner consistent with Title 2 C.F.R. Section 200.334 (retention requirements for records). Such documentation shall be produced to City upon request and may be subject to audit. Unless otherwise provided by Federal or State law (whichever is the most restrictive), Contractor shall maintain all documentation connected with its performance under this Contract for a minimum of five (5) years from the date of the last payment made by City or until audit resolution is achieved, whichever is later, and to make all such supporting information available for inspection and audit by representatives of the City, the State or the United States Government during normal business hours at Contractor. Copies will be made and furnished by Contractor upon written request by City.
N. Contractor shall establish and maintain an accounting system conforming to Generally Accepted Accounting Principles (GAAP) to support Contractor’s requests for reimbursement which segregate and accumulate costs of Contractor and produce monthly reports which clearly identify reimbursable costs, matching fund costs (if applicable), and other allowable expenditures by Contractor. Contractor shall provide a monthly report of expenditures under this Contract no later than the 20th day of the following month.
O. Contractor shall cooperate in having an audit completed by City, at City’s option and expense.
Any audit required by IIJ BIL and its regulation and United States Treasury guidance will be completed by Contractor at Contractor’s expense.
P. Contractor shall repay to City any reimbursement for IIJ BIL funding that is determined by subsequent audit to be unallowable under the IIJ BIL within the time period required by the IIJ, but no later than one hundred twenty (120) days of Contractor receiving notice of audit findings, which time shall include an opportunity for Contractor to respond to and/or resolve the findings. Should the findings not be otherwise resolved and Contractor fail to reimburse moneys due City within one hundred twenty (120) days of audit findings, or within such other period as may be agreed between both parties or required by the IIJ BIL, City reserves the right to withhold future payments due Contractor from any source under City’s control.
Q. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Title 2 C.F.R. Part 200, other than such provisions as Treasury may determine are Packet Page. 791
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inapplicable and subject to such exceptions as may be otherwise provided by Treasury. Subpart F – Audit Requirements of the Uniform Guidance, implementing the Single Audit Act, shall apply.
R. Universal Identifier and System for Award Management (SAM), Title 2 C.F.R. Part 25.
S. Reporting Subaward and Executive Compensation Information, Title 2 C.F.R. Part 170.
T. OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (nonprocurement), Title 2 C.F.R. Part 180, including the requirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 C.F.R. Part 180, subpart B) that the award is subject to Title 2 C.F.R. Part 180 and Treasury’s implementing regulation at Title 31 C.F.R. Part 19. Debarment and Suspension (Executive Orders 12549 and 12689) - A contract award (see 2 C.F.R. Section 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at Title 2 C.F.R. Part 180 that implement Executive Orders 12549 (3 C.F.R. Part 1986 Comp., p. 189) and 12689 (3 C.F.R. Part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
U. Recipient Integrity and Performance Matters, pursuant to which the award terms set forth in Title 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference.
V. Government Requirements for Drug-Free Workplace, Title 31 C.F.R. Part 20.
W. New Restrictions on Lobbying, Title 31 C.F.R. Part 21.
X. Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C.
Sections 4601-4655) and implementing regulations.
Y. Applicable Federal environmental laws and regulations.
Z. Statutes and regulations prohibiting discrimination include, without limitation, the following:
i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. Sections 2000d et seq.) and Treasury’s implementing regulations at Title 31 C.F.R. Part 22, which prohibit discrimination on the basis of race, color, or national origin under programs or activities receiving federal financial assistance.
j. The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (42 U.S.C. Sections 3601 et seq.), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, or disability.
k. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. Section 794), which prohibits discrimination on the basis of disability under any program or activity receiving federal financial assistance.
l. The Age Discrimination Act of 1975, as amended (42 U.S.C. Sections 6101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
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m. Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. Sections 12101 et seq.), which prohibits discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto.
AA. Contractor understands that making false statements or claims in connection with the IIJ BIL funded activities is a violation of federal law and may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from participating in federal awards or contracts, and/or any other remedy available by law.
BB. Any publications produced with IIJ BIL funds must display the following language: “This project [is being] [was] supported, in whole or in part, by federal award number 693JJ32440695 awarded to the City of San Bernardino by the U.S. Department of Transportation.”
CC. Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Contractor is being encouraged to adopt and enforce on-the-job seat belt policies and programs for their employees when operating company-owned, rented, or personally owned vehicles.
DD. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Contractor is being encouraged to adopt and enforce policies that ban text messaging while driving and establishing workplace safety policies to decrease accidents caused by distracted drivers.
EE. As a recipient of federal financial assistance, the Civil Rights Restoration Act of 1987 applies, and Contractor assures that it:
i. Ensures its current and future compliance with Title VI of the Civil Rights Act of 1964, as amended, which prohibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs and activities receiving federal funds, of any person in the United States on the ground of race, color, or national origin (42 U.S.C. Sections 2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at Title 31 C.F.R. Part 22 and other pertinent executive orders such as Executive Order 13166, directives, circulars, policies, memoranda and/or guidance documents.
j. Acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency,” seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, have Limited English proficiency (LEP). Contractor understands that denying a person access to its programs, services, and activities, because of LEP is a form of national origin discrimination prohibited under Title VI of the Civil Rights Act of 1964 and the Department of the Treasury’s implementing regulations.
Contractor shall initiate reasonable steps, or comply with the Department of the Treasury’s directives, to ensure LEP persons have meaningful access to its programs, services, and activities. Contractor understands and agrees that meaningful access may entail provide language assistance services, including oral interpretation and written translation where necessary, to ensure effective communication.
k. Agrees to consider the need for language services for LEP persons during development of applicable budgets and when conducting programs, services, and activities. l. Agrees to maintain a complaint log of any complaints of discrimination on the grounds of race, color, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Packet Page. 793
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Act and implementing regulations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome.
II. The City must include the following language in every contract or agreement subject to Title VI and its regulations:
“The Recipient, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that for any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award.” FF. Contractor shall cooperate in any enforcement or compliance review activities by the City, and/or the Department of the Treasury. Contractor shall comply with information requests, on-site compliance reviews, and reporting requirements.
GG. Contractor shall maintain records and financial documents sufficient to evidence compliance with section 603(c), regulations adopted by Treasury implementing those sections, and guidance issued by Treasury regarding the foregoing.
HH. City has the right of access to records (electronic or otherwise) of Contractor in order to conduct audits or other investigations.
II. Contractor shall maintain records for a period of five (5) years after the completion of the contract or a period of five (5) years after the last reporting date the City is obligated with the Department of the U.S. Treasury, whichever is later.
JJ. Contractor must disclose in writing any potential conflict of interest in accordance with Title 2 C.F.R. Section 200.112.
KK. In accordance with Title 41 U.S.C. Section 4712, subrecipient or Contractor may not discharge, demote, or otherwise discriminate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant.
The list of persons and entities referenced in the paragraph above includes the following: (i) A member of Congress or a representative of a committee of Congress; (ii) An Inspector General; (iii) The Government Accountability Office; (iv) A Treasury employee responsible for contract or grant oversight or management; (v) An authorized official of the Department of Justice or other law enforcement agency; (vi) A court or grand jury; or (vii) A management official or other employee of Recipient, subrecipient, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct. Subrecipient or Contractor shall inform its employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.
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LL. City and Contractor acknowledge that if additional federal guidance is issued, an amendment to this Contract may be necessary. In the event any of the terms in this Exhibit conflict with any other terms in the Contract, the terms in this Exhibit shall control.
MM. As applicable, Contractor shall comply with all federal requirements including, but not limited to, additional contract provisions attached hereto as Appendix “A” and Appendix “B” and incorporated herein by reference.
OO. Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in this Agreement and Exhibits. With respect to any conflict between such federal requirements and the terms of this Agreement and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control.
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Exhibit D
ANTI-LOBBYING CERTIFICATION
(To be submitted with bid)
The undersigned certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any Federal contract, grant, loan, or cooperative agreement. (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 Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure of Lobbying Activities," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents of all sub-awards at all tiers (including subcontracts, sub-grants, and contracts under grants, loans, and cooperative agreements) and that all sub- recipients shall certify and disclose accordingly.
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 section 1352, title 31, United States Code.
Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
Organization: ______________________________________________________________ Street address: ________________________________________________________________ ___________________________________________________________________________ City, State, Zip: _______________________________________________________________ Printed Name of Person Signing for Organization: _____________________________________ Title of Person Signing for Organization:_____________________________________________ Signature of Person Signing for Organization:_________________________________________ Packet Page. 796
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APPENDIX A
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees as follows:
1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts and the Regulations relative to Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Federal Highway Administration (FHWA), as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract.
2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 C.F.R. Part 21.
3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor’s obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin.
4. Information and Reports: The contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Recipient or the FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the Recipient or the FHWA, as appropriate, and will set forth what efforts it has made to obtain the information.
5. Sanctions for Noncompliance: In the event of a contractor’s noncompliance with the Non- discrimination provisions of this contract, the Recipient will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
a. withholding payments to the contractor under the contract until the contractor complies; and/or b. cancelling, terminating, or suspending a contract, in whole or in part.
6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the Recipient or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States.
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APPENDIX B
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees to comply with the following non- discrimination statutes and authorities; including but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 C.F.R. 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); • 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 C.F.R. Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on 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 at 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 nondiscrimination 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) Packet Page. 798
Exhibit D
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PROPOSAL FOR BASELINE STREET STUDY ANALYSIS AND STRATEGY DESIGN FOR SAFE STREETS AND ROADS
SCOPE OF WORK
TASK 1: PROJECT MOBILIZATION - MANAGEMENT, COORDINATION, AND ADMINISTRATION Project Management Structure
The San Bernardino Baseline Street Study Analysis and Strategy Design for Safe Streets and Roads for All (SS4A) (“Safety Action Plan”) will be led by Frank Barrera, KOA’s designated Project Manager. He will be the primary point of contact and will oversee all Task Leads and Support Staff throughout the project. He will ensure that the project is meeting all timeline deliverables and that there is coordination between Task Leads and Support Sta ff , as outlined in our team’s organizational chart. He will be supported by Michael Nilsson, KOA’s designated Principal In Charge. As such, Michael will provide general project oversight and deal with any contractual issues with City Sta ff , ensuring that task deliverables are error- free, on time, and on budget. Michael will have regular check-ins with Frank to oversee how production is happening, if there are any potential issues that need to be dealt with, an d develop remedies and contingencies, as needed. With both the Project Manager and Principal In Charge experienced in the development of Local Roadway Safety Plans and SS4A Safety Action Plans, Frank and Michael will coordinate on any administrative tasks, such as meeting agendas, minutes, timelines, and budgeting. KOA’s project manager will coordinate with other Task Leads at a more granular level to ensure that specifi c tasks and subtasks are being completed. He will also work with Support Sta ff to ensure that any methods and project level assumptions are in line with project goals and expectations for the City.
Frank will also be supported by Giuseppe Canzonieri, the teams’ Quality Assurance/Quality Control manager and Walter Okitsu, KOA’s Engineering task lead for project recommendations. Giuseppe and Walter bring decades of successful completion of roadway safety planning projects. Giuseppe will focus on QA/QC of any conceptual designs and project recommendations to ensure that they are feasible to implemen t from an engineering perspective. As an additional layer of oversight, Walter will collaborate with Frank to ensure the deliverables of planning tasks contain best practices in roadway safety and are context-sensitive to the City of San Bernardino. As a founding member of KOA, Walter’s decades of experience in the industry and his Level 1 and 2 certifi cations as a Road Safety Professional will be valuable to the overall project.
All Task Leads will coordinate with Frank to ensure that there is inter-task coordination and optimal production at all levels.
The Task Leads will oversee their individual Support Staff and will communicate with City staff on an as-needed basis.
TASK 1.1 KICK-OF
F MEETING
Upon receiving the authorization to proceed, the KOA team will organize and lead a kick-o ff meeting with the City project manager to initiate the project. This meeting serves are the fi rst step for the formal development of the City of San Bernardino SS4A Action Plan (Action Plan) through the Baseline Street study analysis and strategy design, community engagement, and LRSP amendment project.
The kick-off meeting will establish an understanding of expectations and a path towards successful project execution.
We will discuss project scope and schedule, as well as the vision and goals for the project. The team will establish staff communication and coordination protocol. In advance of the kick-o ff meeting, the KOA team will prepare and circulate a draft agenda and incorporate any feedback/comments two days before the scheduled meetings. KOA will also prepare a Data Needs Request Memorandum that lists major items ne eded to advance the project. These major items include the latest GIS data and key planning documents for background review, a list of known key stakeholders, a capital improvement project list and plans, and the development of any other active transportation policies or campaigns led by or involving the City. After the kick-off meeting, key action items will be identi fi ed, and the project schedule will be revised (if needed).
The meeting will also include a discussion on the characteristics of existing facilities, potential project issues, and the identifi cation of key project locations. Engagement methods and strategies will also be discussed to determine the appropriate stakeholder and community engagement methods to achieve high participation numbers. KOA will provide meeting notes detailing major decisions and action items resulting from the kick-o ff meeting.
SECTION 7 | PROPOSED METHOD TO ACCOMPLISH THE WORK
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TASK 1.2 PROJECT COORDINATION MEETINGS
Project Coordination Meetings
K
OA will set up and organize monthly virtual project coordination meetings with the City’s project manager over the project’s duration to discuss project progress and milestones and to outline major decision points. KOA will draft agendas and make them available prior to the meeting. Meeting minutes with action items outlined will be distributed following the meetings. They will provide an opportunity to ensure that project milestones are being met, methodologies to project deliverables are discussed, and draft elements/concepts have been reviewed and approved. Additionally, should any issues arise, KOA’s project manager will communicate with the City staff to ensure that they are dealt with in a proactive and timely manner. Any potential risks and challenges will also be identi fi ed during the coordination meetings with solutions discussed to ensure project success.
Monthly Invoicing and Progress Reports
KOA will provide monthly reports and invoices to the City of San Bernardino in accordance with City protocols as well as USDOT Safe Streets and Roads for All (SS4A) invoicing and reporting methodologies. The invoices and progress reports will document current work eff orts, items completed in the previous month, and upcoming work tasks and assignments anticipated in future months.
TASK 1.3 GENERAL PROJECT MANAGEMENT
Schedule
A
s noted earlier, KOA will revisit the project schedule during the kick-o ff meeting. The schedule will be shared with the City and will be reviewed monthly to ensure that major milestones are being met.
Communication
KOA’s Project Manager will maintain ongoing communication with the City’s Project Manager and the rest of the project team. The monthly meetings will provide a great opportunity to ensure that the project is meeting milestones and methodology, and that draft elements/concepts have been revi ewed and approved. Additionally, should any issues arise, KOA’s Project Manager will communicate with the City team to ensure that they are dealt with in a proactive and timely manner.
Quality Control
As with any KOA deliverable, our team ensures that the products provided to our clients are of the utmost quality.
As such, we will ensure that any deliverable undergoes a thorough review process and that several senior-level staff members review the products prior to submittal. Should any issues arise, KOA will ensure that all corrections are made, and issues are addressed.
TASK 1.4 ESTABLISH PURPOSE, OBJECTIVE AND GOALS OF THE PROJECT K
OA will draft a Purpose and Goals memorandum for the SS4A Safety Action Plan after the project kicko ff meeting. The memorandum will outline the steps that KOA will take to identify safety emphasis areas and locations with roadway safety issues along the Baseline Street study corridor and select appropriate countermeasures for addressing them. The method will be presented in a fashion so that key stakeholders interested in the project will be able to understand the desired outcomes of the project and procedure for obtaining those outcomes. The memorandum will set up the framework to develop, implement, and evaluate the SS4A Safety Action Plan. The memorandum will be provided to the City for review and to provide comments. KOA will submit a revised Purpose and Goals memorandum upon receiving comments from the City.
TASK 1.5 IDENTIFYING STAKEHOLDERS AFFECTED BY THE PROJECT This subtask is discussed in our Scope of Work Task 2 – Stakeholder and Community Engagement.
TASK 1.6 DEFINING HOW SAFETY PROBLEMS WILL BE IDENTIFIED This subtask is discussed in our Scope of Work Task 3 – State of the System Review and Task 4 – Crash History Assessment.
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PROPOSAL FOR BASELINE STREET STUDY ANALYSIS AND STRATEGY DESIGN FOR SAFE STREETS AND ROADS TASK 1.7 IDENTIFYING HOW THE LRSP AMENDMENT WILL BE UPDATED This subtask is discussed in our Scope of Work Task 6 – Draft and Final Report.
Task 1 Deliverables
• 1.1 – Set up kick-off meeting, meeting agenda and minutes, revised project schedule • 1.1 – Data Needs List
• 1.2 – Set up monthly Project Coordination meetings
• 1.2 – Meeting agendas and minutes
• 1.2 – Monthly progress reports and invoices
• 1.3 – Maintain ongoing communication with City team
• 1.3 – Ensure deliverables undergo a rigorous
• 1.4 – Purpose, objective, and goals of the project memorandum TASK 2 – STAKEHOLDER AND COMMUNITY ENGAGEMENT
Involving diverse stakeholders, including residents, local businesses, and community groups ensures that a comprehensive range of perspectives is considered in the development of the project. Katherine Padilla & Associates (KPA) will lead the stakeholder and community engagement tasks, with support from KOA, and coordination with City staff . The team will identify key stakeholders and organize public and key stakeholder meetings. Anticipated stakeholders may include San Bernardino City Uni fi ed School District (SBCUSD) and local school representatives, the San Bernardino Police Department, transit operators (Omnitrans), community organizations, and community members residing along or near the project study corridor. The KOA team will work with City staff to ensure that engagement with underserved communities, including low-income, ethnic minorities, people with Limited English Pro fi ciency (LEP), and persons with disabilities will be a major focus of the outreach program.
SECTION 7 | PROPOSED METHOD TO ACCOMPLISH THE WORK
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PROPOSAL FOR BASELINE STREET STUDY ANALYSIS AND STRATEGY DESIGN FOR SAFE STREETS AND ROADS SECTION 7 | PROPOSED METHOD TO ACCOMPLISH THE WORK
TASK 2.1 STAKEHOLDER LIST
KPA, in partnership with KOA and in coordination with
Ci
ty staff , will create a stakeholder list of local schools, businesses, homeowner’s associations, and community
groups that should be informed about the outreach e ff ort.
This list will be utilized to announce information about the project that is available for review, share online surveys on the project webpage, and allow interested stakeholders to provide a comment or ask questions related to the project.
The list will consist of e-mail addresses and phone number information for each stakeholder. The stakeholder list
can be expanded and modifi ed as the outreach eff ort
progresses. KPA will also create a project email address that will be monitored to respond to stakeholder and
community member questions/comments, with support
from KOA.
TASK 2.2 PROJECT WEBPAGE
KOA shall develop a project webpage to provide a
r
esource that includes, but is not limited to, project
description and background, including goals and
objectives; project milestones; and space to provide
information about the project and gather community
feedback. The webpage will be available in both English and Spanish to ensure that all stakeholders can engage
with the project. KOA shall be responsible for updating the project webpage as approved by the City. The project webpage may be provided on the City’s existing website
or serve as a stand-alone website. Upon the close of the project, KOA shall deactivate the website.
TASK 2.3 GENERAL PROJECT SURVEY
A general project survey will be developed and
a
dministered by the KOA team. An electronic and paper
version will be made available in both English and Spanish.
The electronic survey will be accessible through the
project webpage and paper versions will be distributed
during public and stakeholder meetings. The KOA team
will work with City staff to provide a link to the survey on the City’s website. Upon the close of the survey eff ort, KOA will analyze the survey results and present the conclusions to stakeholders and project team members. Conclusions
drawn from the surveys will be incorporated into project recommendations.
TASK 2.4 ONLINE MAPPING TOOL
KOA will develop an online mapping tool using ArcGIS to c
ollect location-speci fi c feedback from the public and key stakeholders, available in both English and Spanish. This tool will help identify certain issues in key areas and assist the Project Team in developing recommendations that will enhance safety along the corridor.
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TASK 2.5 OUTREACH MATERIALS (FLYERS AND FACT SHEET )
KPA, in partnership with KOA and in coordination with City staff , will develop collateral materials to support engagement eff orts and enhance feedback collection. This will include creating project fl yers, a fact sheet, and other printed materials as needed. All outreach materials will also be available in English and Spanish.
TASK 2.6 SOCIAL MEDIA
KPA, in partnership with KOA and in coordination with City staff , will create social media graphics and content to help increase project awareness within the community. Social media graphics and content will be used for posting on the City’s Instagram, X, Facebook, and other online platforms. Posts will be in both English and Spanish and will include information on how to get involved with the project, details about upcoming public meetings, and updates on the project’s progress. Social media posts may also be shared with local schools located along the project study corridor for posting on their platforms, including Peachjar.
TASK 2.7 PUBLIC AND STAKEHOLDER MEETINGS
KPA, in partnership with KOA and in coordination with City staff , will organize logistics and facilitate three (3) public and stakeholder meetings with the option to conduct a fourth meeting if necessary. All meetings will be held in person at a location that is accessible to the public and veri fi ed by City staff . To maximize attendance, details for each meeting will be posted on the project webpage and the City’s social media platforms, distributed though e-blasts, and be shared with local schools via fl yers. Bilingual Spanish-speaking sta ff will also be present at each meeting to address language needs.
Summaries at the conclusion of each meeting will also be shared with the Project Team.
TASK 2.8 ENGAGEMENT SUMMARY
KOA, in partnership with KPA, will develop a summary of the outreach activities conducted and the feedback received w
hich will be included within the Final Report for the stud y analysis and LRSP amendment. Information will be presented in an easy-to-read format by including infographics, images, and tables that summarize the collected input.
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PROPOSAL FOR BASELINE STREET STUDY ANALYSIS AND STRATEGY DESIGN FOR SAFE STREETS AND ROADS SECTION 7 | PROPOSED METHOD TO ACCOMPLISH THE WORK
Task 2 Deliverables
• 2.1 – Stakeholder List
• 2.2 – Project Webpage
• 2.3 – General Project Survey
• 2.4 – Online Mapping Tool
• 2.5 – Outreach Materials
» One (1) Project Fact Sheet
» Up to four (4) fl yers, with one for each public and stakeholder meeting • 2.6 – Social Media
» Up to six (6) social media graphics with content for posting to enhance project awareness in the community • 2.7 – Public and Stakeholder Meetings
» Three (3) public and stakeholder meetings, with a fourth optional meeting to be conducted if needed » Three (3) meeting summaries, with one following each meeting • 2.8 – Engagement Summary
TASK 3 – STATE OF THE SYSTEM REVIEW
TASK 3.1 STATE OF THE SYSTEM REVIEW
For the Plan to be both an eff ective policy document and a guide for implementing projects, KOA will take a holistic view of how programs, practices, and policies related to safety operate within the City and nearby communities.
The initial step in assessing the current state of the City’s transportation policy and planning documents and regulatory frameworks is to establish an understanding of the policies and priorities. KOA will review the existing related documents, such as the latest General Plan, Downtown Specifi c Plan, City’s Systemic Safety Analysis Report (SSAR), Active Transportation Plan (ATP), Local Roadway Safety Plan (LRSP), and other City-speci fi c documents and other recent tra ffi c or mobility studies aff ecting the Baseline Street study corridor and the development of the City’s SS4A Safety Action Plan.
With direct involvement in the development of the documents mentioned above, KOA will be able to conduct a thorough and expedited review through our deep familiarity of City policies.
KOA will identify opportunity areas for developing safety improvements addressing any of the four E’s of traffi c safety (Enforcement, Education, Emergency Response, and Engineering) and coordinate with City Sta ff to understand the priorities and funding availability of planned projects, which will help our team in prioritizing safety countermeasures/ projects.
As the City of San Bernardino shares many regional corridors with the City of Rialto, City of Highland, and the County of San Bernardino, KOA will also conduct extensive research of current relevant documents for adjacent jurisdictions that include their circulation elements and any existing or in-progress active transportation plans that a ff ect the Baseline Street study corridor.
In addition to City-specifi c transportation plans and nearby jurisdiction plans, the KOA team will review regional plans, such as SCAG’s Regional Transportation Plan (Connect SoCal 2024), the San Bernardino County 2023-2028 Strategic Plan, and ongoing environmental studies for large projects.
KOA will use these plans and policies to form a baseline regarding transportation programs and safety improvements that might be needed corridor-wide for the Baseline Street study corridor.
Task 3 Deliverables
• 3.1 – Conduct literature review
• 3.1 – Summary of literature review in Draft and Final Plan Packet Page. 805
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PROPOSAL FOR BASELINE STREET STUDY ANALYSIS AND STRATEGY DESIGN FOR SAFE STREETS AND ROADS SECTION 7 | PROPOSED METHOD TO ACCOMPLISH THE WORK
TASK 4 – CRASH HISTORY ASSESSMENT
TASK 4.1 CRASH DATA COLLECTION
KOA will obtain the most recent and available fi ve years of collision data from available sources such as the Statewide Integrated Traffi c Records System (SWITRS), the Transportation Injury Mapping System (TIMS), and the City’s collision database for the Baseline Street study corridor. Our team has extensive experience working with various databases and the interrelation among attributes. In addition, KOA will refe rence supplemental information from City records such as a complaint database, police reports, and citation tickets, if available.
Traffi c volume is essential in the calculation of roadway segment crash rates. KOA will work closely with the City to obtain average daily traffi c (ADT) volumes and intersection turning movement counts from the City’s database or recent studies, such as the Engineering and Traffi c Survey, traffi c impact studies, and other such studies.
KOA will coordinate with City staff to obtain available documents and data (such as tra ffi c volumes, speed surveys, roadway classifi cations, and other relevant data) for consideratio n when identifying safety measures for appropriate application at identifi ed locations along the Baseline Street study corridor.
TASK 4.2 COLLISION ANALYSIS
KOA will conduct an in-depth analysis of the SWITRS data for the past fi ve years. SWITRS includes collisions of all severity levels, including property damage only collisions, while TIMS only collects collisions that result in injuries and fatalities.
For fatal and severe collisions, KOA will request collision reports from the City’s law enforcement services department, which provide in-depth information related to driving behavi or and other information that is not included or not as detailed in the TIMS/SWITRS data.
Through the collision data analysis, KOA will identify prom inent collision patterns, which will include a combination of collision type, location type (signals vs. mid-block), Pr imary Collision Factors (PCFs), involved parties, movements preceding the collisions, lighting conditions, and others. KOA wi ll also identify trends related to shifts in crash type and contributing factors.
School Collisions Map, San Bernardino LRSP, KOA
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PROPOSAL FOR BASELINE STREET STUDY ANALYSIS AND STRATEGY DESIGN FOR SAFE STREETS AND ROADS KOA will rank the intersections and roadway segments within the Baseline Street study corridor by collision frequency and Equivalent Property Damage Only (EPDO) scores, which generally re fl ect an order of magnitude di ff erence between the societal costs of fatal and severe injury crashes versus non- severe injury crashes. This practice helps our team identify prioritized locations for fi eld review. The goal is to identify high crash concentration locations and similar intersections that may not have the same crash history but share similar risk factors.
Using the KOA in-house VBA-enabled Excel Workbook Collision Analysis Tool and 5-year SWITRS data gives us a snapshot of the recent crash history by looking at the data in various ways. Figure 1 illustrates the homepage of the KOA in-house collision tool developed to quickly and e ffi ciently analyze collision factors, trends, hot spot locations, and various other factors that help develop the emphasis areas for in-depth analysis.
SECTION 7 | PROPOSED METHOD TO ACCOMPLISH THE WORK
Figure 1
TASK 4.3 IDENTIFY SAFETY EMPHASIS AREAS
Emphasis (or challenge) areas represent crash factors that are common in the City and along the Baseline Street study cor
ridor and provide the opportunity to identify counterm easures that will reduce the largest number of tra ffi c injuries with strategic investment. Emphasis areas will be selected based on the vision and goals of the planning process and can be compared with the trends and patterns identifi ed in the safety analysis of the Baseline Street study corridor.
KOA team members will analyze the fi ve-year crash data to identify the top emphasis areas of the Baseline Street study corridor. Our team will evaluate at least four (4) key emphasis areas identi fi ed in the safety analysis and through conversations with key project stakeholders and identify contributing factors to each as well as potential countermeasures.
TASK 4.4 PRIORITIZATION OF HIGH COLLISION LOCATIONS
The KOA team will use TIMs data to evaluate Equivalent Property Damage Only (EPDO) by assigning weighting factors to cr
ashes based on injury level to develop a property damage only score. This fi gure is then divided by the injury cost for a property damage only crash. The resulting fi gure allows all locations on the Baseline Street study corridor to be compared based on injury crash costs. From this analysis, we will evaluate whether the outcomes of crashes (severity of injury, complaints of pain, fatalities, etc.) and the type of crash (rear end, head on, sideswipe, etc.) are overrepresented compared to segments and intersections with similar characteristics. We will use this approach to identify the top high- collision intersections and top high-collision roadwa y segments of the Baseline Street study corridor.
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Task 4 Deliverables
• 4.1 – List of the fi ve-year crash data
• 4.2 – Summary of the collision analysis fi ndings included in the draft and fi nal Plan • 4.3 – Summary of the identi fi ed emphasis areas of the Baseline Street study corridor • 4.4 – Prioritization list of high collision locations on Baseline Street TASK 5 – COMPREHENSIVE SAFETY, DATA AND INFRASTRUCTURE ANALYSIS TASK 5.1 EQUITY ANALYSIS
Equity and underserved communities will be a focus of analysis in the fi nal SS 4A Safety Action Plan, and we will overlay data from CalEnviroScreen and other commonly utilized indi cators for grant funding programs (e.g., Healthy Places Index, Free and Reduced Priced Lunches, as well as USDOT’s Historically Disadvantaged Communities, Areas of Persistent Poverty, Justice40 and the Climate and Economic Justice Screening Tool (CEJST) to identify higher priority areas that are located within disadvantaged communities within the Baseline Street study corridor surrounding areas.
This analysis can be used to identify areas that may be prioritized for implementation of infrastructure based on the goal of creating an equitable active transportation system. A series of GIS-based maps that document and summarize several community characteristics will be prepared for the project area. Our GIS team will work with the City to determine the most appropriate format and ensure layout consistency.
TASK 5.2 IDENTIFY COUNTERMEASURES AND PROJECT OPPORTUNITIES Based on information gathered during our engagement (Task 2) and collision history assessment (Task 4), KOA will map pr
iority areas and the locations along the Baseline Street study corridor to improve transportation safety issues.
Through these eff orts, KOA will identify tailored countermeasures that will seek to address the infrastructure defi ciencies identifi ed by the stakeholders, community, and the collision a nalysis. The KOA team will analyze the following potential countermeasures for the Baseline Street study corridor to identify solutions that best address the speci fi c issues identifi ed along the corridor:
• Corner extensions/bulb-outs
• Road diet measures (narrow lanes, rumble strips)
• Evaluating warrants for Rectangular Rapid Flashing Beacons (RRFB’s) intersections • High visibility crosswalks
• Electronic speed feedback signs
• Class I, II, and III Bike Lanes
• Leading Pedestrian Interval (LPI) signal phasing
• Raised Crosswalks at midblock locations
• Evaluating warrants for High-Intensity Acti vated Crosswalk Beacon (HAWK) installations • Evaluating warrants for traffi c signal installations at locations with high collisions as a result of cross-street tra ffi c • Evaluation of edge lines
The KOA team will identify and develop a comprehensive list of strategies for each emphasis area of the Baseline Street study corridor. These strategies and countermeasures will focus on a Safe System Approach, e ff ective interventions, and consider multidisciplinary activities. To the extent practical, data limitations are identi fi ed and mitigated. The countermeasures and strategies will include those that are identi fi ed as FHWA Proven Safety Countermeasures and NHTSA’s Countermeasures that Work. A matrix will be developed that includes these countermeasures and strategies.
It will include the Crash Modifi cation Factor (CMF) or NHTSA star rating, if available, the application (e.g., spot, corridor, systemic) and priority location, cost threshold (e.g., low, medi um, high), emphasis area, and source (e.g., workshop input, SHSP). It will also include a lead agency and potential partners. The KOA team will consider the impacts and cost/bene fi t of the recommended countermeasure. The Team will provide a matrix of potential countermeasures to respond to the experienced crash types and the location where they occurred.
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PROPOSAL FOR BASELINE STREET STUDY ANALYSIS AND STRATEGY DESIGN FOR SAFE STREETS AND ROADS TASK 5.3 LIST OF PRIORITIZED PROJECTS AND CONCEPT DESIGNS The KOA team will create an implementation matrix that include s a prioritized list of strategies and countermeasures for the Baseline Street study corridor high-crash and/or high-risk locations, with funding sources identi fi ed. Concept designs and cost estimates will be developed for the identi fi ed infrastructure improvements on the Baseline Street study corridor.
These concept designs for the priority projects will be developed as fact sheets that can be utilized for future grant applications to implement the projects.
TASK 5.4 EVALUATION METRICS
The KOA team will work with the City of San Bernardino to ide ntify key performance metrics that will help to inform stakeholders, elected o ffi cials, and the public of the City’s progress towards meeting program goals, including zero fatal and severe injury crashes. Metrics may include mitigation e ff orts (number of safety improvements implemented), and estimated reduction of fatal and severe injury crashes. The data sources and reporting templates will be developed and submitted for approval. Safety Action Plan Implementation and performance tracking will be made available through a public interactive performance dashboard. Our team has developed interactive dashboards using tools such as PowerBI to provide key statistics in an easy-to-understand manner. The dashboard will be hosted via the project webpage along with all project plans for transparency.
Task 5 Deliverables
• 5.1 – Equity analysis maps and summary included in the draft and fi nal Plan • 5.2 – List of countermeasures and opportunities
• 5.3 – List of priority projects and concept designs
• 5.4 – Evaluation metrics summary included in the draft and fi nal Plan SECTION 7 | PROPOSED METHOD TO ACCOMPLISH THE WORK
Concept Design Plan, San Bernardino LRSP, KOA
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TASK 6 – DRAFT AND FINAL REPORT
TASK 6.1 DRAFT SAFETY ACTION PLAN
KOA will document and compile all deliverables that were reviewed, analyzed, created, and designed from Tasks 2-5 and pr
epare the Draft Safety Action Plan. This document will include a comprehensive safety vision, with a focus on action for strategic implementation of projects identi fi ed for the Baseline Street study corridor. It will also include concept designs on the identifi ed infrastructure improvements developed from the various analyses and stakeholder/community engagement feedback.
The draft Safety Action Plan will be submitted to the City for review before the last stakeholder and community engagement event to receive feedback on the Plan.
PREPARATION OF ONE GRANT APPLICATION
Once the team completes the project prioritization process, an infrastructure project will be selected for a grant app
lication through coordination with the City’s project manager. The team will coordinate with the City’s project manager to identify the most appropriate grant application, either the Highway Safety Improvement Program (HSIP) or the Safe Streets and Roads for All (SS4A) grant programs and based on the grant submittal deadlines.
KOA will coordinate with the City to prepare all information and exhibits required for the project selected for the preparation of either the HSIP or SS4A grant application. KOA will provide a data request list to the City to obtain any additional information needed for the ap plication that is not available through the development of the Baseline Street Study Analysis. This may include, depending on the project and grant application type:
• Tra ffi c volume and ADT
• Previous grant applications information
• Existing fi eld photos of the project area
• Completion of grant required forms
• Signatures on fi nal grant application forms
KOA will fi ll out the grant application with project data and draf t the grant application narratives and other information required for the grant application. KOA will clarify any detail s needed for the grant application with the City, such as the project description, project identi fi cation, location history, and project schedule. KOA will provide advice on schedule to ensure the project meets all relevant grant deadlines.
KOA will submit all grant materials in PDF format to the City for review. KOA will make one round of revisions based on City comments. KOA will then fi nalize the application and provide all grant application materials to the City for fi nal submittal.
TASK 6.2 FINAL SAFETY ACTION PLAN
Upon receipt of comments by stakeholders, sta ff
, and City staff , KOA will develop the Final Plan. The Safety Action Plan will be developed to satisfy the eight components of the SS4A Safety Action Plan as described in USDOT’s Self Certifi cation Checklist for SS4A Action Plan compliance as described in the scope of work section of the City’s Request for Proposals. The Plan will include information on methodology, project selection, prioritization, cost estimates, concept designs, and funding sources to implement project recommendations, and a timeline for implementation.
Task 6 Deliverables
• 6.1 Draft Safety Action Plan
• 6.1 Preparation of One Grant Application
• 6.2 Final Safety Action Plan
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100
CITY OF SAN BERNARDINO
PROPOSAL FOR BASELINE STREET STUDY ANALYSIS AND STRATEGY DESIGN FOR SAFE STREETS AND ROADS SECTION 7 | PROPOSED METHOD TO ACCOMPLISH THE WORK
INNOVATIVE OR ADVANCED TECHNIQUES
The list below describes a number of innovative tools/methodologies that KOA has created or utilized in completing similar projects:
1. KOA Collision Tool: An Excel-based tool that was developed by KOA to process and compile both SWITS and TIMS collision data locally and regionally. This can also be used with Crossroads data. This tool converts raw collision attributes into meaningful statistics and identi fi es top collision intersections and roadways. This tool is used on Local Roadway Safety Plans (LRSP), SS4A Action Plans and is highlighted in this proposal.
2. In-House Active Transportation Network Selection Model: KOA has developed an automated network selection model that utilizes an array of existing conditions datasets to select high-priority transit, bicycle, and pedestrian corridors. The purpose of these tools is to use a data-driven approach when recommending improvements. We have used this tool for active transportation plans.
3. ArcGIS Hub: ArcGIS hub is an easy-to-confi gure cloud platform that organizes people, data, and tools to accomplish project initiatives and goals. We have used this tool for many types of planning projects. KOA used ArcGIS Hub as a project website for Ontario ATP which can be found at this link – https://tinyurl.com/md9wmy3h
4. Rise 360 (by Articulate): A we
b app that is used as an e-learning public outreach tool. The creation of a web- based learning module allows online users to learn more about project history and background, interactively preview preliminary improvement concepts, and submit feedback on proposed recommendations. This web app is of high value in times when public outreach is constrained (COVID-19). KOA developed one for the Garden Grove Active Downtown Plan to acquire feedback about speci fi c project treatments, and showcasing project updates and considerations – https://tinyurl.com/ywm8pmfe
5. ArcGIS StoryMaps: S
tory authoring web-based application that enables the user to bridge a narrative or story with multimedia content such as videos, photos, or maps. StoryMaps are dynamic and intuitive and allow the user to harness the full potential of a story. KOA has used StoryMaps for interviews and project presentations. Here is an example of one we created for Riverside – https://tinyurl.com/54pn9nha
6. Bicycle Level of Tra ffi
c Stress (LTS) and Pedestrian Level of Comfort (LOC): One of the transportation industry’s best practices for analyzing the comfort and connectivity of bicycle and pedestrian networks. KOA has built upon traditional industry standards and developed their own LTS/LOC methodologies, analyzing a multitude of existing conditions datasets (posted speed, number of travel lanes, AADT, roadway classifi cation, bicycle facilities, sidewalk presence). This model is applied at both the segment and census block level.
7. Intersection Pedestrian Level of Comfort Analysis (ILOC): An in-house tool/methodology developed by KOA – a point-based model of pedestrian and user experience within and along formal crosswalks or crossing designations.
Pairs nicely with pedestrian LOC because it looks at the intersection in conjunction with the segment.
8. Use of GoToMeeting, Microsoft Teams, and Other Platforms for Presentations: These programs are used to host various project workshops, outreach meetings, project progress meetings, and other communications when a face-to-face meeting is not possible.
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101
CITY OF SAN BERNARDINO
PROPOSAL FOR BASELINE STREET STUDY ANALYSIS AND STRATEGY DESIGN FOR SAFE STREETS AND ROADS 1 1.1 Kick-off Meeting
1.2 Project Coordination Meetings
1.3 General Project Management
2 2.1 Stakeholder List
2.2 Project Website
2.3 General Project Survey
2.4 Online Mapping Tool
2.5 Outreach Materials (Flyers and Fact Sheet)
2.6 Social Media
2.7 Public and Stakeholder Meetings
2.8 Engagement Summary
3 3.1 Policy Review and Analysis
3.2 Identify Opportunity Areas
4 4.1 Collision Data Collection
4.2 Collision Analysis
4.3 Identify Emphasis Areas
4.4 Prioritization of High Collision Locations
5 5.1 Equity Analysis
5.2 Identify Countermeasures and Project Opportunities
5.3 List of Prioritized Projects and Concept Designs
5.4 Evaluation Metrics
6 DRAFT AND FINAL REPORT
6.1 Draft Safety Action Plan
6.1 Final Safety Action Plan
Task In-Progress
Client Review/Deliverables Submission
AUG
2025
SEP
OCT
COMPREHENSIVE SAFETY, DATA, AND INFRASTRUCTURE ANALYSIS
PROJECT SCHEDULE
PROJECT MANAGEMENT, COORDINATION, AND ADMINISTRATION
STAKEHOLDER AND COMMUNITY ENGAGEMENT
STATE OF THE SYSTEM REVIEW
CRASH HISTORY ASSESSMENT
JAN
FEB
MAR
APR
MAY
JUN
JUL
PROJECT SCHEDULE
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FEE PROPOSAL FOR THE
BASELINE STREET STUDY ANALYSIS
AND STRATEGY DESIGN FOR
SAFE STREETS AND ROADS
CITY OF SAN BERNARDINO
OCTOBER 31, 2024
Exhibit A
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1 CITY OF SAN BERNARDINO
FEE PROPOSAL FOR BASELINE STREET STUDY ANALYSIS AND STRATEGY DESIGN FOR SAFE STREETS AND ROADS Exhibit A
VENDOR QUOTE FORM
VENDOR NAME:
ADDRESS:
PHONE:
The undersigned, hereby declare that they have carefully examined the location of the proposed work, familiarized themselves with the local conditions affecting the cost of the work, and have read and examined the terms and conditions for the following Project:
Baseline Street Study Analysis and Strategy Design
LRSP (Action Plan) Amendment and Community Engagement
The undersigned, hereby propose to furnish all labor, materials, equipment, tools, transportation, and services, and to discharge all duties and obligations necessary and required to perform and complete the Project in strict accordance with the Vendor Price Quote for the ELECTRONICALLY SUBMITTED TOTAL VENDOR QUOTE PRICE.
Item No. Description Quantity
Unit
Cost
Lump Sum
Amount
$____ ____
$____ ____
$____ ____
$____ ____
$____ ____
$____ ____
$____ ____
TOTAL VENDOR QUOTE $____ ____
Total Number of Additional Pages:
Should the proposer be requested to perform additional finance related services, please list the proposed positions and hourly rate:
Personnel Specify Exact Title of Position assigned Hourly Rate
Staff Manager (or similar) $ 330 _
Staff Associate (or similar) $ 250 _
I hereby declare under penalty of perjury that the foregoing is true and correct.
Submitted By:________________________________________Title: _________________________________ (Authorized Representative Signature)
Print Name: __________________________________________
KOA Corporation
333 S. Anita Drive, Suite 800, Orange, CA 92868
(714) 573-0317
Principal
Michael Nilsson, AICP CTP
Task 1
Task 2
Task 3
Task 4
Task 5
Task 6
Project Management, Coordination, & Administration
Stakeholder and Community Engagement
State of the System Review
Crash History Assessment
Comprehensive Safety, Data, & Infrastructure Analysis
Draft and Final Report
32,100
105,700
8,700
29,840
73,260
30,900
280,500
Principal I
Project Manager
0 VENDOR QUOTE FORM
Exhibit A
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2 CITY OF SAN BERNARDINO
FEE PROPOSAL FOR BASELINE STREET STUDY ANALYSIS AND STRATEGY DESIGN FOR SAFE STREETS AND ROADS SUB-
CONSULTANTS
Principal I Project
Manager
Senior
Engineer
Engineer
Associate II
Engineer
Associate I Planner III Planner I Katherine Padilla
& Associates
Katherine Padilla
& Associates
Hourly Rates (Fully Burdened) $330.00 $250.00 $200.00 $160.00 $140.00 $180.00 $140.00 Services Other Direct
Costs
Kick-off Meeting 2 4 2 8 $2,020.00 $1,200.00 $3,220.00
Project Coordination Meetings $2,360.00 $2,360.00
General Project Management 16 72 18 106 $26,520.00 $26,520.00 SUBTOTAL 18 76 20 114 $28,540.00 $3,560.00 $32,100.00
Stakeholder List 1 1 3 6 11 $1,960.00 $3,740.00 $5,700.00 Project Webpage 1 2 8 20 31 $5,070.00 $5,070.00
General Project Survey 1 2 6 12 21 $3,590.00 $6,840.00 $10,430.00 Online Mapping Tool 1 2 4 22 29 $4,630.00 $4,630.00
Outreach Materials (Flyers and Fact Sheet) 2 2 6 12 22 $3,920.00 $15,000.00 $18,920.00 Social Media 2 2 4 8 $1,420.00 $13,620.00 $15,040.00
Public and Stakeholder Meetings 2 30 32 8 72 $1,000.00 $16,040.00 $19,480.00 $4,000.00 $39,520.00 Engagement Summary 1 4 14 4 23 $4,410.00 $1,980.00 $6,390.00 SUBTOTAL 9 45 75 88 217 $1,000.00 $41,040.00 $60,660.00 $4,000.00 $105,700.00 Policy Review and Analysis 2 2 18 22 $3,680.00 $3,680.00 Identify Opportunity Areas 2 4 24 30 $5,020.00 $5,020.00 SUBTOTAL 4 6 42 52 $8,700.00 $8,700.00
Collision Data Collection 2 16 18 $2,740.00 $2,740.00
Collision Analysis 2 8 80 90 $13,860.00 $13,860.00
Identify Emphasis Areas 2 24 26 $3,860.00 $3,860.00
Prioritization of High Collision Locations 2 8 48 58 $9,380.00 $9,380.00 SUBTOTAL 4 20 168 192 $29,840.00 $29,840.00
Equity Analysis 2 8 16 48 74 $12,260.00 $12,260.00
Identify Countermeasures and Project Opportunities 6 8 16 32 60 122 $400.00 $20,460.00 $20,460.00 List of Prioritized Projects and Concept Designs 2 4 24 120 48 32 230 $36,860.00 $36,860.00 Evaluation Metrics 2 2 18 22 $3,680.00 $3,680.00
SUBTOTAL 12 22 40 120 80 16 158 448 $400.00 $73,260.00 $73,260.00 Draft Safety Action Plan 6 18 24 80 128 $22,000.00 $22,000.00 Final Safety Action Plan 2 8 16 24 50 $8,900.00 $8,900.00 SUBTOTAL 8 26 40 104 178 $30,900.00 $30,900.00
TOTAL BASE SERVICES 55 195 40 120 80 151 560 1201 $1,400.00 $212,280.00 $64,220.00 $4,000.00 $280,500.00 Lump Sum NTE
TASK 5: COMPREHENSIVE SAFETY, DATA, AND INFRASTRUCTURE ANALYSIS
FEE PROPOSAL
CITY OF SAN BERNARDINO DEPARTMENT OF PUBLIC WORKS
BASELINE STREET STUDY ANALYSIS AND STRATEGY DESIGN FOR SAFE STREETS AND ROADS
DELIVERABLES
TEAM TOTALTotal Hours Other Direct
Costs
KOA
TOTAL
BASE SERVICES
TASK 1: PROJECT MANAGEMENT, COORDINATION, AND ADMINISTRATION TASK 2: STAKEHOLDER AND COMMUNITY ENGAGEMENT
TASK 3: STATE OF THE SYSTEM REVIEW
TASK 4: CRASH HISTORY ASSESSMENT
TASK 6: DRAFT AND FINAL REPORT
FEE PROPOSAL
Exhibit A
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www.koacorp.com
LOS ANGELES | CORPORATE OFFICE
1100 Corporate Center Drive, Suite 201
Monterey Park, CA 91754
(323) 260-4703
ORANGE COUNTY OFFICE
333 S. Anita Drive, Suite 800
Orange, CA 92868
(714) 573-0317
INLAND EMPIRE OFFICE
3190 Shelby Street, Bldg C.
Ontario, CA 91764
(909) 890-9693
SAN DIEGO OFFICE
5095 Murphy Canyon Road, Suite 330
San Diego, CA 92123
(619) 683-2933
X#24085
Exhibit A
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: February 5, 2025
To: Honorable Mayor and City Council Members
From: Miguel J Guerrero, General Manager
Department: Water
Subject: Receive and File San Bernardino Municipal Water Department’s Audited Annual Comprehensive Financial
Report for Fiscal Year Ended June 30, 2024 (All Wards)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California, receive and file the San Bernardino Municipal Water Department’s audited Annual Comprehensive Financial Report for water and sewer utilities for Fiscal Year ended June 30, 2024.
Executive Summary
The purpose of this report is to file the Water Department’s Annual Comprehensive Financial Report (ACFR) for the fiscal year ended June 30, 2024, with the Mayor and City Council.
Background
Section 603(e) of the City of San Bernardino Charter requires that the Water Board provide for an “annual, independent audit of all water and wastewater accounts” and the “copies of all auditors’ reports shall be filed with the City Clerk and Council.”
The audit firm Lance, Soll & Lunghard, LLP completed the Water Department’s annual audit and produced the attached Annual Comprehensive Financial Report (ACFR) for Fiscal Year ended June 30, 2024. This report includes the financial statements, the Independent Auditor’s Report, Management’s Discussion and Analysis, as well as a statistical section containing historical information and data. The ACFR was presented to the City Water Board at its December 10, 2024, regular meeting, and it was approved unanimously.
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Discussion
N/A
2021-2025 Strategic Targets and Goals
This item aligns with the adopted 2021- 2025 Key Strategic Targets and Goals, specifically Target 1: Financial Stability. The information in these reports is useful to the City Water Board in making operational and financial decisions to meet the Water Department’s goals and objectives.
Fiscal Impact
There is no fiscal impact resulting from this item.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, receive and file the San Bernardino Municipal Water Department’s audited Annual Comprehensive Financial Report for Fiscal Year ended June 30, 2024.
Attachments
1. Attachment – Annual Comprehensive Financial Report for Fiscal Year Ended June 30, 2024.
Ward:
All Wards
Synopsis of Previous Council Actions:
None
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Miguel J. Guerrero