CAP2408.SR.DD
CITY OF SIMI VALLEY
MEMORANDUM
Ap
ril 15, 2024
TO: Cit
y Council
FR
OM: Department of Public Works
SUBJ
ECT: AWARD OF PROFESSIONAL SERVICES CONTRACT S FOR ON-CALL
PAVEMENT ENGINEERING AND MATERIAL TESTING SERVICES, RFQ NO. PW 24-01
STAFF RECOMMENDATION
It
is recommended that the City Council:
1. Awar
d professional services contracts for on-call pavement engineering and material testing services as outlined below:
a) Tw
ining, Inc. (page 4), in an amount not to exceed $300,000; and, b) Geoc
on West, Inc. (page 59), in an amount not to exceed $300,000; and, c) RMA
Group. (page 116), in an amount not to exceed $300,000;
2. Aut
horize the City Manager to approve subsequent contract amendments to extend the contracts for one additional one-year term.
BACKGROUND AND OVERVIEW
The P
ublic Works Department is recommending the award of professional services contracts to three consultants for on- call pavement engineering and material testing services. The Department does not maintain staff or equipment for certain specialized engineering services due to the fluctuating workload of projects. To streamline the consultant selection process, on- call contracts for professional services have been utilized. The Department contracts with multi ple firms in the event one consultant becomes unavailable due to workload, a conflict of interest, or the need for third-party peer review.
AGENDA I
TEM NO.
Consent (4)
CAP2408.SR.DD
FINDINGS AND ALTERNATIVES
A Request for Qualifications (RFQ) was issued and on December 20, 2023 , six firms submitted proposals. City staff evaluated and rated each of the proposals based on the following criteria:
• Understanding of the scope of work (weighted 15%)
• Expertise and experience of the team to be assigned (weighted 25%) • Related experience on public works projects (weighted 30%) • Approach to performing this type of service (weighted 15%) • Familiarity with Federal and State requirements and procedures (weighted 10%) • Local Presence and DBE (weighted 5%)
The three selected firms were rated as the most qualified to perform the services requested.
Staff is recommending the award of one contract to each consultant. Contracts include work performed on federally funded projects & non-federally funded projects in the amount not to exceed $300,000. The contracts are for two years with the possibility of 1 additional one- year extension.
The following alternatives are available to the City Council:
1. Award professional services contracts for on -call pavement engineering and material testing services as outlined below.
a) A contract to Twining, Inc., in an amount not to exceed $300,000; and,
b) A contact to Geocon West, Inc., in an amount not to exceed $300,000; and,
c) A contract to RMA Group., in an amount not to exceed $300,000;
2. Authorize the City Manager to approve subsequent contract amendments to extend the contracts for one additional one-year term;
3. Provide staff with other direction.
Staff recommends Alternative Nos. 1 and 2.
2 CAP2408.SR.DD
SUGGESTED CITY COUNCIL MOTION
I move to award professional services contracts for on- call pavement engineering and material testing services as outlined in the staff report to Twining, Inc., Geocon West, Inc., and RMA Group., and to authorize the City Manager to approve a subsequent contract amendment to extend the contracts for one additional one-year term.
SUMMARY
The Public Works Department is recommending that the City Council award professional services contracts to three consultants for on- call pavement engineering and material testing services. The Department does not maintain staff or equipment for certain specialized engineering services due to the fluctuating workload of projects. To streamline the consultant selection process, on- call contracts for professional services have been utilized. The Department contracts with multiple firms in the event one consultant becomes unavailable due to workload, a conflict of interest, or the need for third-p arty peer review. Staff recommends the City Council award contracts as outlined in this staff report and authorize the City Manager to approve subsequent contract amendments to extend the contracts for one additional one-year term.
____________________________________
Ronald K. Fuchiwaki
Public Works Director
Prepared by: Lauren Lien, Associate Engineer (Capital Projects)
INDEX Page
Contract with Twining, Inc. .............................................................. 4 Contract with Geocon West, Inc……………………………………...59
Contract with RMA Group. ……………………………………….....116
3 A2408.CON.TWINING.DD
RFQ PW 24-01
CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND TWINING, INC. FOR ON-
CALL PAVEMENT ENGINEERING AND MATERIAL
TESTING SERVICES, RFQ NO. PW 24-01
THIS CONTRACT is made and entered into in the City of Simi Valley on this 15
th day of April , 2024, by and between the CITY OF SIMI VALLEY, a municipal corporation, hereinafter referred to as CITY, and TWINING, INC. , a California Corporation, hereinafter referred to as CONSULTANT, each a “Party” and collectively “Parties”
RECITALS
WHEREAS, on December 20, 2023, CITY requested proposals for the On-Call Pavement Engineering and Material Testing Services, RFQ NO. PW 24-01; and
WHEREAS, pursuant to such request, CONSULTANT submitted a proposal, which was accepted by CITY for the services.
NOW, THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the Parties hereto agree as follows:
AGREEMENT
1. Recitals. The foregoing recitals are true and correct and are a part of this CONTRACT.
2. Term. The term of this CONTRACT shall be from the date this CONTRACT is made and entered, as first written above through a two year term. This CONTRACT may be extended for one additional one- year term, upon mutual written consent of the CITY and CONSULTANT. Pricing shall remain firm during the entire term of the contract. In the event a price increase is negotiated at the time o f an extension period, the increase rate shall not exceed the Consumer Price Index (CPI) rate for Los Angeles -Riverside-Orange County area for the previous 12- month period (March to March). It is understood that the CONSULTANT’S work under the Work Orders issued may not be completed within the term of this CONTRACT; however, all terms and conditions of the CONTRACT including all righ ts and obligations, shall survive until the work is completed, except the CITY’S right to issue, and the CONSULTANT’S right to accept, additional Purchase Orders. Either Party may terminate this CONTRACT at any time prior to the expiration date by giving thirty (30) days advance written notice thereof to the other party.
4 A2408.CON.TWINING.DD
RFQ PW 24-01
3. Description of Services . The services to be performed by CONSULTANT are as follows:
(On-call Pavement Engineering and Material Testing Services). CONSULTANT agrees to perform the services more specifically set forth in the “Scope of Work” attached hereto and incorporated herein as Exhibit “A”. CONSULTANT will meet with CITY at least monthly to discuss the anticipated tasks planned for the month and to receive direction from CITY regarding same.
4. Compensation and Payment
.
A. The total compensation payable to CONSULTANT by CITY for services under this CONTRACT shall not exceed the sum of $300,000.00 (the “Not- To-Exceed Amount”), and shall be earned as the work progresses. Payment will be made based on the rates contained in the “Schedule of Fees” as set forth in Exhibit “B” attached hereto and incorporated herein. CONSULTANT acknowledges that CONSULTANT is not guaranteed to receive the Not -To-Exceed Amount or any particular or minimum amount of compensation or work under this CONTRACT.
B. After CONSULTANT has performed the services as specified in this CONTRACT, CITY shall be obligated to pay CONSULTANT based upon the actual CITY-authorized services received by CITY at the rates established as a part of this CONTRACT. In no event shall the total amount paid exceed the CONTRACT Not-to-Exceed Amount unless otherwise agreed to by the Parties in writing.
C. Payments to the CONSULTANT shall be made within 30 days after receipt of an original invoice from the CONSULTANT and acceptance of the services by CITY.
D. CONSULTANT shall provide CITY with written verification of the actual compensation earned, which written verification will be in a form satisfactory to CITY. Invoices shall include the work performed including a list of hours worked by personnel.
5. CONSULTANT’s Representations and Obligations
.
A. CONSULTANT shall perform as required by this CONTRACT.
CONSULTANT also warrants on behalf of itself and all subcontractors engaged for the performance of this CONTRACT that only persons authorized to work in the United States pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the work hereunder.
B. CONSULTANT shall obey all Federal, State, local, and special district laws, ordinances, and regulations.
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RFQ PW 24-01
C. CONSULTANT agrees to abide by CITY’s Business Tax
Ordinance, of which proof of payment must be obtained prior to performance of this CONTRACT.
D. CONSULTANT acknowledges CITY may contract with other Parties for the performance of services or supplemental services as they relate to the work during the term of this CONTRACT.
E. The CONSULTANT shall keep a tally of the cost for the work ordered by CITY. The CONSULTANT shall not accept work orders from the CITY if the cost for the work will exceed the amount indicated above unless otherwise agreed to by the Parties in writing.
F. To the extent required by law, CONSULTANT agrees to abide by the following provisions pertaining to Prevailing Wages and Federally Funded Projects;
i. CONSULTANTS and all Subcontractors subject to prevailing wage requirements, must be registered and remain registered with DIR (Department Industrial Relations) through the term of the CONTRACT in accordance with the California Labor Code (“Labor Code”), in particular Labor Code Section 1771.1, and any successor or replacement provision thereto, unless a small project exemption applies ($25,000 for public works or $15,000 for maintenance). CONSULTANT further agrees that it will follow all requirements and obligations set forth in Labor Code Section 1776.
ii. Pursuant to the provisions of the California Labor Code the California Department of Industrial Relations has ascertained the general prevailing rate of per diem wages and the general prevailing rate for legal holiday and overtime work in the locality in which this work is to be performed for each craft, classification or type of worker needed to execute the CONTRACT. Such wage scale is set forth at length in a Schedule of Prevailing Rates of Wages that is on file at the California Department of Industrial Relations and is available at www.dir.ca.gov /DLSR/PWD/index.htm . The
published prevailing rates that the CONSULTANT shall pay are hereby incorporated in and made a part of this CONTRACT.
iii. CONSULTANT shall assist in locating, qualifying, hiring, and increasing the skills of minority group employees and applicants for employment, as set forth in Executive Orders 11246 and 11375.
iv. The CONSULTANT shall comply with Labor Code Section 1773.2 and a copy of the general wage rate list shall be posted at each job site.
CONSULTANT shall indemnify, d efend, and hold CITY harmless from any claim that prevailing wages should have been paid pursuant to this CONTRACT, including federal prevailing wage requirements under the Davis-Bacon Act, if applicable and shall be liable for the payment of same and any penalties thereon.
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RFQ PW 24-01
v. For Federally funded projects the current Federal General Wage Determinations shall apply as predetermined by the Secretary of Labor. If there is a difference in the Federal minimum wage rates and the California Department of Industrial Relations for similar classifications of labor, the CONSULTANT and its subcontractors shall pay not less than the higher wage rate. The wage rate for any classification not listed by the Federal Department of Labor or the California Department of Industrial Relations, but which may be required to execute the CONTRACT, shall be in accord with specified rates for similar or comparable classifications or for those performing similar or comparable duties, within the agencies determinations.
6. Audit.
A. At any time during normal business hours and as often as the CITY may deem necessary, CONSULTANT shall make available to CITY for inspection its records pertaining to this CONTRACT. CONSULTANT shall permit CITY to audit, examine and/or reproduce such records. CONSULTANT will retain such financial records, time sheets, work progress reports, invoices, bills and project records for at least two (2) years after termination or final payment under this CONTRACT. This paragraph shall survive for two (2) years after termination of this CONTRACT.
B. CITY shall have the option of inspecting and/or auditing all records and other written materials used by CONSULTANT in preparing its statements to CITY as a condition precedent to any payment to CONSULTANT.
7. Hold Harmless and Indemnification . To the fullest extent permitted by law (including, without limitation, California Civil Code Sections 2782 and 2782.8), CONSULTANT shall defend, and provide legal defense with attorney(s) acceptable to CITY, indemnify, and hold harmless the CITY, its agents, officials, officers, representatives, and employees, (collectively “Indemnitees”) from and against all claims, lawsuits, liabilities or damages (including, without limitation, injury to or death of an employee of CONSULTA NT or its sub -consultant), expense and liability of every kind, nature and description (including, without limitation incidental and consequential damages, court costs, attorney’s fees, litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of litigation) that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT, any sub- consultant, anyone directly or indirectly employed by them, or anyone that they control.
To the extent there is an obligation to indemnify under this Section of this CONTRACT; CONSULTANT shall be responsible for incidental and consequential damages resulting from CONSULTANT’S negligence, recklessness, or willful misconduct. The provisions of this Section survive completion of the services or the termination of this CONTRACT.
The provisions of this Section are not limited by the provisions of this CONTRACT relating to insurance. The CONSULTANT shall thoroughly investigate any and all claims subject to the provisions of this Section, and indemnify the CITY and do whatever is necessary to protect any and all Indemnitees.
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RFQ PW 24-01
8. Amendments. Any amendment, modification, or variation from the provisions of this CONTRACT shall be in writing and shall be effective only upon mutual written approval by the CITY and CONSULTANT.
9. Anti-Discrimination. In the performance of the terms of this CONTRACT, CONSULTANT shall not engage in, nor permit subcontractors to engage in, discrimination in e mployment of persons because of the age, race, color, religious creed, sex, sexual orientation, national origin, ancestry, physical disability, mental disability, medical condition, or marital status of such persons. Violation of this provision may result in the imposition of penalties referred to in Labor Code Section 1735.
10. Personal Services. This Agreement is for professional services, which are personal to CITY. Jeff Tawakoli is deemed to be specially experienced and is a key member of CONSULTANT’S firm, and shall be directly involved in performing, supervising, or assisting in the performance of this work. This key person shall communicate with, and periodically report to, CITY on the progress of the work. Should any such individual be removed from assisting in this contracted work for any reason, CITY may terminate this CONTRACT.
11. Termination. If, during the term of this CONTRACT, CITY determines that CONSULTANT is not faithfully abiding by any term or condition contained herein, CITY may notify CONSULTANT in writing of such defect or failure to perform. The notice must give to the CONSULTANT a ten (10) day period of time thereafter in which to perform the work or cure the deficiency. If CONSULTANT has not performed the work or cured the deficiency within the ten (10) days specified in the notice, such failure shall constitute a breach of this CONTRACT, and CITY may terminate this CONTRACT immediately by written notice to CONSULTANT. In addition, CITY, if it terminates this CONTRACT for cause, may withhold as an offset from payments due CONSULTANT damages occasioned by such breach, including liquidated damages, if so provided herein. The CITY shall be liable to the CONSULTANT only for those fees accrued by the CONSULTANT to the date CONSULTANT receives the notice of termination. In no event, however, shall CONSULTANT be entitled to receive in excess of the CONTRACT amount.
12. Delivery of Reports in Cases of Termination. If this CONTRACT is terminated pursuant to any of the provisions contained hereinabove, and if requested to do so in writing by the CITY, the CONSULTANT shall, within fourteen (14) calendar days after receipt of such written request, deliver and turn over to the CITY all of its preparation and work on the project which were done to the date of the receipt of the notice of termination. The terms "preparation" and "work" as used in this paragraph, shall refer to and include all data and materials of whatever type that have been gathered by the CONSULTANT, and contemplated to be used or actually used, in the provision of the services as specified in this CONTRACT.
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RFQ PW 24-01
13. Complete CONTRACT . This CONTRACT and its accompanying exhibits shall constitute the complete CONTRACT between the Parties hereto. No verbal agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such verbal agreement, understanding, or representation be binding upon the Parties hereto.
14. Independent Contractor. It is expressly understood between the Parties to this CONTRACT that no employee/employer relationship is intended .
CONSULTANT is not an agent or employee of the CITY and it is not entitled to participate in any pension plan, insurance or other benefi ts CITY provides for its employees.
CONSULTANT is an independent contractor in performing the Services required under this CONTRACT and will have control of all work and the manner in which it is performed.
Any provision of this CONTRACT that may appear to give CITY the right to direct CONSULTANT as to the details of doing the work required herein or to exercise a measure of control over the work means that the CONSULTANT will follow the direction of the CITY as to the results of the work only.
15. Time of Performance. Time is of the essence in this CONTRACT.
16. Insurance. CONSULTANT shall, at CONSULTANT’S sole cost and expense, provide insurance as contained in Exhibit “C”, incorporated herein.
CONSULTANT shall not commence work on the Services to be performed, until it submits proof of all insurance coverage as required.
17. Ownership of Reports and Data . The originals of all studies, reports, exhibits, documents, data and other work or materials prepared for, or used to comply with any term of this CONTRACT, plus any copies of same required by this CONTRACT to be furnished to the CITY by any of the other party(ies) with whom the CONSULTANT may have contract(s) pertaining to this project, shal l be deemed to be public records open to inspection by the public and, as such, to be and remain the property of the CITY.
18. Conflict of Interest. Neither CONSULTANT nor any employees, agents, or subcontractors of CONSULTANT who will be assigned to this project, to the best of CONSULTANT'S knowledge, own any property or interest in properties, business relationships, or sources of income which may be affected by the performance of this CONTRACT. Should one Party hereto learn of any such interest, inc ome source, or business relationship, such fact shall immediately be brought to the attention of the other Party hereto. If the Parties thereupon cannot mutually agree upon a means to eliminate the conflict, CITY may terminate the CONTRACT immediately for non-performance pursuant to Section 11 herein. In accordance with California Government Code Section 87306, CONSULTANT shall provide, if requested by CITY, a Conflict of Interest Statement, Form 700 no later than 30 days after execution of this CONTRACT, and annually thereafter prior to April 1st of each year for the duration of the CONTRACT.
Failure to file any of the required statements will result in withholding payment for services rendered.
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RFQ PW 24-01
19. Successors and Assigns. The terms hereof shall be binding upon and inure to the benefit of the successors and assigns of the Parties hereto; provided, however, that no Party hereto shall assign any of the benefits and burdens hereunder, whether voluntarily or by operation of law, without the prior written consent of the other party, and any such assignment without said consent shall be void.
20. Authority to Execute CONTRACT. Both CITY and CONSULTANT do covenant that each individual executing this CONTRACT on behalf of each Party is a person duly authorized and empowered to execute contracts for such party.
21. Jurisdiction and Venue . Jurisdiction is in an appropriate court in the State of California and venue lies in Ventura County, and the Parties do not consent to arbitration. In the event of any dispute, each Party shall bear its own fees and costs (including attorneys’ fees). This CONTRACT shall be governed by California law, without regard to conflict of law principles.
22. Non-Appropriation of Funds . Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of CITY. In the event CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this CONTRACT shall cover only those costs incurred up to the conclusion of the current fiscal year.
23. Taxpayer Identification Number . CONSULTANT shall provide CITY with a complete Request for Taxpayer Identification Number and Certification, form W-9 (latest revision), as issued by the Internal Revenue Service.
24. Permits and Licenses. CONSULTANT, at its sole cost and expense, shall obtain and maintain during the term of this CONTRACT, all appropriate permits, licenses, and certificates that may be required in connection with the performance of this CONTRACT.
25. Waivers. The waiver by one Party of any term or condition of this CONTRACT, or any breach thereof, shall not be construed to be a general waiver by the Party or as a waiver of any other term or breach.
26. Statement of Experience. CONSULTANT warrants that it will perform its Services with at least the due care, diligence and expertise generally accepted in its industry. CONSULTANT also understands and agrees that it is being employed to perform the Services provided for by this CONTRACT because of CONSULTANT’S professed expertise and experience in performing such Services. In addition, CONSULTANT understands and agrees that while CITY or CITY’S officers, employees, agents or volunteers may elect to do so, they have no duty to review, inspect, monitor, or supervise the work performed by CONSULTANT pursuant to this CONTRACT. As a consequence, CONSULTANT waives any right of contribution against CITY or any of CITY’S officers, employees, agents, or volunteers arising out of such failure to inspect, 10 A2408.CON.TWINING.DD
RFQ PW 24-01
review, monitor, or supervise the work performed by CONSULTANT pursuant to this CONTRACT.
27. Notices. All written notices required by, or related to this CONTRACT shall be sent by Certified Mail, Return Receipt Requested, postage prepaid and addressed as listed below. Neither Party to this CONTRACT shall refuse to accept such mail; the Parties to this CONTRACT shall promptly inform the other Party of any change of address. All notices required by this CONTRACT are effective on the day of receipt, unless otherwise indicated herein. The mailing address of each Party to this CONTRACT is as follows:
CITY Department of Public Works
City of Simi Valley
2929 Tapo Canyon Road
Simi Valley, CA 93063
Staff Contact: Fuad Shamout
Principal Engineer/Capital Projects
(805) 583-6788
11 A2408.CON.TWINING.DD
RFQ PW 24-01
CONSULTANT Twining, Inc.
1879 Portola Road, Suite G
Ventura, CA 93003
Staff Contract: Jeff Tawakoli, Ventura Branch
Manager, (805) 644-5100
IN WITNESS WHEREOF, t he Parties hereto have caused this instrument to be executed the day and year first above written.
Attest: City of Simi Valley, A Municipal Corporation
By:
Lucy Blanco, City Clerk Fred D. Thomas, Mayor of the City of Simi Valley, California
Approved as to Form: Twining, Inc.
By:
Algeria R. Ford, City Attorney
Print Name:
Approved as to Content: Title:
By:
Brian Paul Gabler, City Manager
Print Name:
Title:
Johanna Medrano,
Deputy Administrative Services Director/
Budget & Purchasing
Ronald K. Fuchiwaki
Public Works Director
12 A2408.CON.TWINING.DD
RFQ PW 24-01
EXHIBIT “A”
SCOPE OF WORK
CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND TWINING , INC. FOR ON-
CALL PAVEMENT ENGINEERING AND MATERIAL
TESTING SERVICES, RFQ NO. PW 24-01
A. Services to be Provided
The selected firm(s) shall provide the Professional Services in connection with design and construction of various public works projects within the City. These Professional Services will be assigned on an as -needed basis through the issuance of task orders depending upon the Department's project workload. Award of this annual contract does not necessarily guarantee the assignment of specific projects to the Consultant. The work, in general, may include but not limited to the following:
• Surface and subsurface soils investigation, testing (relative compaction, R- value, sieve analysis, shear, etc.), evaluation and geotechnical inspection.
• Material testing and inspection of conventional and rubberized asphalt concrete pavement both at the asphalt plant and at the job site, aggregate stockpile at the source; rock and sand base, paving asphalt, liquid asphalt, emulsion, etc.
• Subgrade test for any unusual characteristics which may cause early failure to the pavement section.
• Street structural section evaluations including pavement deflection testing, analysis, and recommendation.
• Other geotechnical/soils engineering and material testing as may be needed.
• Laboratory services, data collection, asphalt concrete batch plant inspection, preparation and submission of engineering reports consisting of test results, with interpretation, analysis, and recommendations.
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RFQ PW 24-01
EXHIBIT “B”
SCHEDULE OF FEES
CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND TWINING , INC. FOR ON-
CALL PAVEMENT ENGINEERING AND MATERIAL
TESTING SERVICES, RFQ NO. PW 24-01
14 EXHIBIT B TWINING
15 16
17 18
19 20
21 2024-2025 4.0% increase. 2025-2026 4.0% increase.
22 23
24 25
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RFQ PW 24-01
EXHIBIT “C”
INSURANCE REQUIREMENTS
CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND TWINING , INC. FOR ON-
CALL PAVEMENT ENGINEERING AND MATERIAL
TESTING SERVICES, RFQ NO. PW 24-01
Insurance - Consultant shall procure and maintain for the dura tion of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees.
Minimum Scope and Limit of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and 9 (non- owned), with limit no less than $1,000,0 00 per accident for bodily injury and property damage.
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. Consultant hereby certifies that it is aware of the provisions of Section 3700 et seq., of the Labor Code which require every employer to be insured against liability for Workers' Compensation.
4. Professional Liability (Errors and Omissions) Insurance appropriate to the Consultant’s profession, with limits no less than $2,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
5. If unmanned aerial systems (UAS)/drones will be used – Aviation Liability Insurance: On an “occurrence” basis, including products and completed operations, property damage, bodily injury with limits no less than $1,000,000 per occurrence, and $2,000,000 in the aggregate.
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RFQ PW 24-01
If the Consultant maintains broader coverage and/or higher limits than the minimum s shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Other Insurance Provisions - The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its Boards, Officers, Agents, Officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this project/contract, the Consultant’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its Boards, Officers, Agents, Officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its Boards, Officers, Agents, Officials, employees, and volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
Umbrella or Excess Policy
The Consultant may use Umbrella or Excess Policies to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non- contributory, additional insured, Self -Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Consultant’s primary and excess liability policies are exhausted.
Notice of Cancellation
Each insurance policy required above shall state that coverage shall not be canceled, except with notice to the City.
Waiver of Subrogation
Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Wo rkers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Consultant, its employees, agents and subcontractors.
Self-Insured Retentions
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RFQ PW 24-01
Self-insured retentions must be declared to and approved by the City. The City may require the Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Claims Made Policies
If any of the required policies provide coverage on a claims-made basis:
1. The Retroactive Date must be shown, and this date must be before the execution date of the contract or the beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
3. If coverage is canceled or non- renewed, and not replaced with another claims - made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase extended reporting coverage for a minimum of five (5) years after completion of work.
Verification of Coverage
Consultant shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that the City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
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EXHIBIT “D”
FEDERAL REQUIREMENTS
CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND TWINING , INC. FOR ON-
CALL PAVEMENT ENGINEERING AND MATERIAL
TESTING SERVICES, RFQ NO. PW 24-01
ARTICLE IV PERFORMANCE PERIOD
A. This AGREEMENT shall go into effect on April 15, 2024, contingent upon approval by LOCAL AGENCY, and CONSULTANT shall commence work after notification to proceed by LOCAL AGENCY’S Contract Administrator. The AGREEMENT shall end on April 15, 2026, unless extended by AGREEMENT amendment.
B. CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on LOCAL AGENCY until the AGREEMENT is fully executed and approved by LOCAL AGENCY.
C. The period of performance for each specific project shall be in accordance with the Task Order for that project. If work on a Task Order is in progress on the expiration date of this AGREEMENT, the terms of the AGREEMENT shall be extended by AGREEMENT amendment prior to the expiration of the contract to cover the time needed to complete the task order in progress only. The maximum term shall not exceed five (5) years.
ARTICLE V ALLOWABLE COSTS AND PAYMENTS
A. CONSULTANT will be reimbursed for hours worked at the hourly rates specified in the CONSULTANT’s approved Cost Proposal. The specified hourly rates shall include direct salary costs, employee benefits, prevailing wages, employer payments, overhead, and fee. These rates are not adjustable for the performance period set forth in this AGREEMENT. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate.
B. In addition, CONSULTANT will be reimbursed for incurred (actual) direct costs other than salary costs that are in the approved Cost Proposal and identified in the approved Cost Proposal and in the executed Task Order.
C. Specific projects will be assigned to CONSULTANT through issuance of Task Orders.
D. After a project to be performed under this AGREEMENT is identified by LOCAL AGENCY, LOCAL AGENCY will prepare a draft Task Order; less the cost estimate.
A draft Task Order will identify the scope of services, expected results, project deliverables, period of performance, project schedule and will designate a LOCAL 30 A2408.CON.TWINING.DD
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AGENCY Project Coordinator. The draft Task Order will be delivered to CONSULTANT for review. CONSULTANT shall return the draft Task Order within ten (10) calendar days along with a Cost Estimate, including a written estimate of the number of hours and hourly rates per staff person, any anticipated reimbursable expenses, overhead, fee if any, and total dollar amount. After agreement has bee n reached on the negotiable items and total cost; the finalized Task Order shall be signed by both LOCAL AGENCY and CONSULTANT.
E. Task Orders may be negotiated for a lump sum (Firm Fixed Price) or for specific rates of compensation, both of which must be based on the labor and other rates set forth in CONSULTANT’s approved Cost Proposal.
CONSULTANT shall be responsible for any future adjustments to prevailing wage rates including, but not limited to, base hourly rates and employer payments as determined by the Department of Industrial Relations. CONSULTANT is responsible for paying the appropriate rate, including escalations that take place during the term of the AGREEMENT.
F. Reimbursement for transportation and subsistence costs shall not exceed the rates as specified in the approved Cost Proposal. CONSULTANT will be responsible for transportation and subsistence costs in excess of State rates.
G. When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval in the form of an AGREEMENT amendment for a revised milestone cost estimate from the Contract Administrator before exceeding such estimate.
H. Progress payments for each Task Order will be made monthly in arrears based on services provided and actual costs incurred.
I. CONSULTANT shall not commence performance of work or services until this AGREEMENT has been approved by LOCAL AGENCY and notification to proceed has been issued by LOCAL AGENCY’S Contract Administrator. No payment will be made prior to approval or for any work performed prior to approval of this AGREEMENT.
J. A Task Order is of no force or effect until returned to LOCAL AGENCY and signed by an authorized representative of LOCAL AGENCY. No expenditures are authorized on a project and work shall not commence until a Task Order for that project has been executed by LOCAL AGENCY.
K. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate. Separate invoices itemizing all costs are required for all work performed under each Task Order.
Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing, or upon completion of the 31 A2408.CON.TWINING.DD
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Task Order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number, project title and Task Order number. Credits due LOCAL AGENCY that include any equipment purchased under the provisions of Article XI Equipment Purchase, must be reimbursed by CONSULTANT prior to the expiration or termination of this AGREEMENT. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following address:
City of Simi Valley, Public Works Department
Attn.: Fuad Shamout, Principal Engineer
2929 Tapo Canyon Road
Simi Valley, CA 93063
L. The period of performance for Task Orders shall be in accordance with dates specified in the Task Order. No Task Order will be written which extends beyond the expiration date of this AGREEMENT.
M. The total amount payable by LOCAL AGENCY for an individual Task Order shall not exceed the amount agreed to in the Task Order, unless authorized by amendment.
N. I f CONSULTANT fails to satisfactorily complete a deliverable according to the schedule set forth in a Task Order, no payment will be made until the deliverable has been satisfactorily completed.
O. Task Orders may n ot be used to a mend the language (or the terms) of th is AGREEMENT nor to exceed the scope of work under this AGREEMENT.
P. The total amount payable by LOCAL AGENCY for all Task Orders resulting from this AGREEMENT shall not exceed $500,000. It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this AGREEMENT through Task Orders.
ARTICLE VI TERMINATION
A. This AGREEMENT may be terminated by LOCAL AGENCY, provided that LOCAL AGENCY gives not less than thirty (30) calendar days’ written notice (delivered by certified mail, return receipt requested) of intent to terminate. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
B. LOCAL AGENCY may temporarily suspend this AGREEMENT, at no additional cost to LOCAL AGENCY, provided that CONSULTANT is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If LOCAL AGENCY gives such notice of temporary suspension, CONSULTANT shall 32 A2408.CON.TWINING.DD
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immediately suspend its activities under this AGREEMENT. A temporary suspension may be issued concurrent with the notice of termination.
C. Notwithstanding any provisions of this AGREEMENT, CONSULTANT shall not be relieved of liability to LOCAL AGENCY for damages sustained by City by virtue of any breach of this AGREEMENT by CONSULTANT, and City may withhold any payments due to CONSULTANT until such time as the exact amount of damages, if any, due City from CONSULTANT is determined.
D. In the event of termination, CONSULTANT shall be compensated as provided for in this AGREEMENT. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS
A. The CONSULTANT agrees that 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.
B. The CONSULTANT also agrees to comply with Federal procedures in accordance with 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
C. Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200 are subject to repayment by the CONSULTANT to LOCAL AGENCY.
D. When a CONSULTANT or Subconsultant is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
ARTICLE VIII RETENTION OF RECORD/AUDITS
For the purpose of determining compliance with Gov. Code § 8546.7, the CONSULTANT, Subconsultants, and LOCAL AGENCY shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the AGREEMENT including, but not limited to, the costs of adminis tering the AGREEMENT. All parties, including the CONSULTANT’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the AGREEMENT period and for three (3) years from the date of final payment under the AGREEMENT. LOCAL AGENCY, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the 33 A2408.CON.TWINING.DD
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CONSULTANT, Subconsultants, and the CONSULTANT’s Independent CPA, that are pertinent to the AGREEMENT for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
ARTICLE IX AUDIT REVIEW PROCEDURES
A. Any dispute concerning a question of fact arising under an interim or post audit of this AGREEMENT that is not disposed of by AGREEMENT, shall be reviewed by LOCAL AGENCY’S Chief Financial Officer.
B. Not later than thirty (30) calendar days after issuance of the final audit report, CONSULTANT may request a review by LOCAL AGENCY’S Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.
C. Neither the pendency of a dispute nor its consideration by LOCAL AGENCY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.
D. CONSULTANT and subconsultant AGREEMENTs, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an AGREEMENT audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the AGREEMENT, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, LOCAL AGENCY, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The AGREEMENT, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by LOCAL AGENCY Contract Administrator to conform to the audit or review recommendations.
CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the AGREEMENT by this reference if directed by LOCAL AGENCY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, LOCAL AGENCY or local governments have access to CPA work papers, will be considered a breach of AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
E. CONSULTANT’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI).
IOAI, at its sole discretion, may revi ew and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the CONSULTANT and approved by the LOCAL AGENCY Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the CONSULTANT to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a 34 A2408.CON.TWINING.DD
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breach of the AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
1) During IOAI’s review of the ICR audit work papers created by the CONSULTANT’s independent CPA, IOAI will work with the CPA and/or CONSULTANT toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, LOCAL AGENC Y will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines}is received and approved by IOAI.
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate.
b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty -five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.
2) If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require CONSULTANT to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.
3) If the CONSULTANT fails to comply with the provisions of this paragraph E, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this AGREEMENT.
4) CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this AGREEMENT 35 A2408.CON.TWINING.DD
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has been completed to the satisfaction of LOCAL AGENCY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO LOCAL AGENCY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this AGREEMENT and all other agreements executed between LOCAL AGENCY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.
ARTICLE X SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual relation between the LOCAL AGENCY and any Subconsultants, and no subagreement shall relieve the CONSULTANT of its responsibilities and obligations hereunder. The CONSULTANT agr ees to be as fully responsible to the LOCAL AGENCY for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the CONSULTANT. The CONSULTANT's obligation to pay its Subconsultants is an independent obligation from the LOCAL AGENCY's obligation to make payments to the CONSULTANT.
B. The CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the LOCAL AGENCY Contract Administrator, except that which is expressly identified in the CONSULTANT’s approved Cost Proposal.
C. Any subagreement entered into as a result of this AGREEMENT, shall contain all the provisions stipulated in this entire AGREEMENT to be applicable to Subconsultants unless otherwise noted.
D. CONSULTANT shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each payment made to the CONSULTANT by the LOCAL AGENCY.
E. Any substitution of Subconsultants must be approved in writing by the LOCAL AGENCY Contract Administrator in advance of assigning work to a substitute Subconsultant.
F. Prompt Progress Payment
CONSULTANT or subconsultant shall pay to any subconsultant, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed CONSULTANT on account of the work performed by the subconsultants, to the extent of each subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from CONSULTANT or subconsultant to a subconsultant, CONSULTANT or subconsultant may withhold no mor e than 150 percent of the disputed amount. Any violation of this requirement shall constitute a 36 A2408.CON.TWINING.DD
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cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non- DBE subconsultants.
G. Prompt Payment of Withheld Funds to Subconsultants
The LOCAL AGENCY may hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the LOCAL AGENCY, of the contract work, and pay retainage to CONSULTANT based on these acceptances.
No retainage will be held by the LOCAL AGENCY from progress payments due to CONSULTANT. CONSULTANTS and subconsultants are prohibited from holding retainage from subconsultants. Any delay or postponement of payment may take place only for good cause and with the LOCAL AGENCY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non- DBE subconsultants.
Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subcontract performance, or noncompliance by a subconsultant.
ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES
A. Prior authorization in writing by LOCAL AGENCY’s Contract Administrator shall be required before CONSULTANT enters into any u nbudgeted purchase order , or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.
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B. For purchase of any item, service, or consulting work not covered in CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by LOCAL AGENCY’s Contract Administrator, three competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified.
C. Any equipment purchased with funds provided under the terms of this AGREEMENT is subject to the following:
1) CONSULTANT shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, LOCAL AGENCY shall receive a proper refund or credit at the conclusion of the AGREEMENT, or if the AGREEMENT is terminated, CONSULTANT may either keep the equipment and credit LOCAL AGENCY in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established LOCAL AGENCY procedures; and credit LOCAL AGENCY in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT’s expense, on the basis of a competen t independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by LOCAL AGENCY and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by LOCAL AGENCY.
2) Regulation 2 CFR Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.
ARTICLE XII STATE PREVAILING WAGE RATES
A. No CONSULTANT or Subconsultant may be awarded an AGREEMENT containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this AGREEMENT, including any subsequent amendments.
B. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this AGREEMENT are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer ( https://dot.ca.gov/programs/construction/labor-compliance ). These wage
rates are made a specific part of this AGREEMENT by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site.
Prevailing wages will be applicable to all inspection work performed at LOCAL 38 A2408.CON.TWINING.DD
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AGENCY construction sites, at LOCAL AGENCY facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve LOCAL AGENCY projects. Prevailing wage requirement s do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.
C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations website at http://www.dir.ca.gov .
D. Payroll Records
1) Each CONSULTANT and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the CONSULTANT or Subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct.
b. The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.
2) The payroll records enumerated under paragraph (1) above shall be certified as correct by the CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by LOCAL AGENCY representatives at all reasonable hours at t he principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows:
a. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request.
b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of LOCAL AGENCY , the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
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c. The public shall not be given access to certified payroll records by the CONSULTANT. The CONSULTANT is required to forward any requests for certified payrolls to the LOCAL AGENCY Contract Administrator by both email and regular mail on the business day following receipt of the request.
3) Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.
4) Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by LOCAL AGENCY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.
5) The CONSULTANT shall inform LOCAL AGENCY of the location of the records enumerated under paragraph (1) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.
6) The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (1) above. In the event the CONSULTANT or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to LOCAL AGENCY, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Such penalties shall be withheld by LOCAL AGENCY from payments then due. CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.
E. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the LOCAL AGENCY Contract Administrator.
F. Penalty
1) The CONSULTANT and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the CONSULTANT and any Subconsultant shall forfeit to the LOCAL AGENCY a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any 40 A2408.CON.TWINING.DD
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public work done under the AGREEMENT by the CONSULTANT or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
2) The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the CONSULTANT or Subconsultant to pay the correct rates of prevailing wages.
A mistake , inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under the Labor Code. The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.
3) In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the CONSULTANT or Subconsultant.
4) If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by t he Subconsultant, the prime CONSULTANT of the project is not liable for the penalties described above unless the prime CONSULTANT had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the prime CONSULTANT fails to comply with all of the following requirements:
a. The AGREEMENT executed between the CONSULTANT and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815.
b. The CONSULTANT shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certified payroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the CONSULTANT shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining s ufficient funds due the Subconsultant for work performed on the public works project.
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d. Prior to making final payment to the Subconsultant for work performed on the public works project, the CONSULTANT shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813.
5) Pursuant to Labor Code §1775, LOCAL AGENCY shall notify the CONSULTANT on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.
6) If LOCAL AGENCY determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if LOCAL AGENCY did not retain sufficient money under the AGREEMENT to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the CONSULTANT shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by LOCAL AGENCY.
G. Hours of Labor
1) Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to the LOCAL AGENCY, twenty-five dollars ($25) for each worker employed in the execution of the AGREEMENT by the CONSULTANT or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one and one-half (1.5) times the basic rate of pay, as provided in §1815.
H. Employment of Apprentices
1) Where either the prime AGREEMENT or the subagreement exceeds thirty thousand dollars ($30,000), the CONSULTANT and any subconsultants under him or h er shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.
2) CONSULTANTs and subconsultants are required to comply with all Labor Code requirements regarding the employment of apprentices, i ncluding mandatory ratios of journey level to apprentice workers. Prior to commencement of work, CONSULTANT and subconsultants are advised to 42 A2408.CON.TWINING.DD
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contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey-to- apprentice ratios for the AGREEMENT work. The CONSULTANT is responsible for all subconsultants’ compliance with these requirements. Penalties are specified in Labor Code §1777.7.
ARTICLE XIII CONFLICT OF INTEREST
A. During the term of this AGREEMENT, the CONSULTANT shall disclose any financial, business, or other relationship with LOCAL AGENCY that may have an impact upon the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project. The CONSULTANT sh all also list current clients who may have a financial interest in the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project which will follow.
B. CONSULTANT certifies that it has disclosed to LOCAL AGENCY any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this AGREEMENT. CONSULTANT agrees to advise LOCAL AGENCY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of ex ecution of this AGREEMENT. CONSULTANT further agrees to complete any statements of economic interest if required by either LOCAL AGENCY ordinance or State law.
C. The CONSULTANT hereby certifies that it does not now have nor shall it acquire any financial o r business interest that would conflict with the performance of services under this AGREEMENT.
D. The CONSULTANT hereby certifies that the CONSULTANT or subconsultant and any firm affiliated with the CONSULTANT or subconsultant that bids on any construction contract or on any Agreement to provide construction inspection for any construction project resulting from this AGREEMENT, has established necessary controls to ensure a conflict of interest does not exist. An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.
ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION
The CONSULTANT warrants that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any LOCAL AGENCY employee. For breach or violation of this warranty, LOCAL AGENCY shall have the right, in its discretion, to terminate this AGREEMENT without liability, to pay only for the value of the work actually performed, or to deduct from this AGREEMENT price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
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ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR
FEDERAL FUNDS FOR LOBBYING
A. The CONSULTANT certifies, to the best of his or her knowledge and belief, that:
1) No State, Federal, or LOCAL AGENCY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this AGREEMENT, or with the extension, continuation, renewal, amendment, or modification of this AGREEMENT.
2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form- LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352.
Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.
C. The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subagreements, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.
ARTICLE XVI NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE
A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.
B. During the performance of this AGREEMENT, CONSULTANT and its subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or 44 A2408.CON.TWINING.DD
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applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. CONSULTANT and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.
C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by LOCAL AGENCY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100- 8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.
D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or LOCAL AGENCY shall require to ascertain compliance with this clause.
E. CONSULTANT and its subconsultant s shall give written notice of their obligations under this clause to labor organizations with which they have a collective barg aining or other Agreement.
F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.
G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
H. The CONSULTANT shall comply with regulations relative to non- discrimination in federally-assisted programs of the U.S. Department of Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specif ically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
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I. CONSULTANT, subrecipient or subconsultant will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the LOCAL AGENCY components of the DBE Program Plan, CONSULTANT, subrecipient or subconsultant will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.
ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION
A. The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:
1) Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;
2) Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;
3) Does not have a proposed debarment pending; and
4) Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.
B. Any exceptions to this certification must be disclosed to LOCAL AGENCY. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.
C. Exceptions to the Federal Government Excluded Parties List System maintained by the U.S. General Services Administration are to be determined by FHWA.
ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE)
PARTICIPATION
A. CONSULTANT, subrecipient (LOCAL AGENCY), or subconsultant shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contract (49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR 26.5, The LOCAL AGENCY shows a contract goal for DBEs. CONSULTANT shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers.
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CONSULTANT shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate good faith efforts to meet this goal. It is CONSULTANT’s responsibility to verify that the DBE firm is certified as DBE at date of proposal opening and document the record by printing out the California Unified Certification Program (CUCP) data for each DBE firm. A list of DBEs certified by the CUCP can be found at https://dot.ca.gov/programs/civil-rights/dbe-search.
All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies CONSULTANT purchases from DBEs counts towards the goal in the following manner:
1) 100 percent counts if the materials or supplies are obtained from a DBE manufacturer.
2) 60 percent counts if the materials or supplies are purchased from a DBE regular dealer.
3) Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular de aler. 49CFR26.55 defines "manufacturer" and "regular dealer."
This AGREEMENT is subject to 49 CFR Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. CONSULTANTs who enter into a federally-funded agreement will assist the LOCAL AGENCY in a good faith effort to achieve California's statewide overall DBE goal.
B. The goal for DBE participation for this AGREEMENT is 12%. Participation by DBE CONSULTANT or subconsultants shall be in accordance with information contained in Exhibit 10- O2: Consultant Contract DBE Commitment
attached hereto and
incorporated as part of t he AGREEMENT. If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15- H: DBE Information – Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal. 47 A2408.CON.TWINING.DD
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D. Contract Assurance
Under 49 CFR 26.13(b):
CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.
Failure by the CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
a. Withholding monthly progress payments;
b. Assessing sanctions;
c. Liquidated damages; and/or
d. Disqualifying CONSULTANT from future proposing as non-responsible
E. Termination and Replacement of DBE Subconsultants
CONSULTANT shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless CONSULTANT or DBE subconsultant obtains the LOCAL AGENCY’s written consent. CONSULTANT shall not terminate or replace a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the LOCAL AGENCY.
Unless the LOCAL AGENCY’s consent is provided, the CONSULTANT shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-02: Consultant Contract DBE Commitment form.
Termination of DBE Subconsultants
After execution of the AGREEMENT, termination of a DBE may be allowed for the following, but not limited to, justifiable reasons with prior written authorization from the LOCAL AGENCY:
1) Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.
2) The LOCAL AGENCY stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the LOCAL AGENCY’s bond requirements.
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3) Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.
4) Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5) Listed DBE's work is unsatisfactory and not in compliance with the contract.
6) Listed DBE is ineligible to work on the project because of suspension or debarment.
7) Listed DBE becomes bankrupt or insolvent or exhibits credit unworthiness.
8) Listed DBE voluntarily withdraws with written notice from the Contract.
9) Listed DBE is ineligible to receive credit for the type of work required.
10) Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.
11) The LOCAL AGENCY determines other documented good cause.
CONSULTANT must use the following procedures to request the termination of a DBE or portion of a DBE’s work:
• Send a written notice to the DBE of the CONSULTANT’s intent to use other forces or material sources and include one or more justifiable reasons l isted above. Simultaneously send a copy of this written notice to the LOCAL AGENCY. The written notice to the DBE must request they provide any response within five (5) business days to both the CONSULTANT and the LOCAL AGENCY by either acknowledging their agreement or documenting their reasoning as to why the use of other forces or sources of materials should not occur.
• If the DBE does not respond within five (5) business days, CONSULTANT may move forward with the request as if the DBE had agreed to CONSU LTANT’s written notice.
• Submit CONSULTANT’s DBE termination request by written letter to the LOCAL AGENCY and include:
• One or more above listed justifiable reasons along with supporting documentation.
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• CONSULTANT’s written notice to the DBE regarding the request, including proof of transmission and tracking documentation of CONSULTANT’s written notice.
• The DBE's response to CONSULTANT’s written notice, if received. If a written response was not provided, provide a statement to that effect.
The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE termination request within five (5) business days.
Replacement of DBE Subconsultants
After receiving the LOCAL AGENCY’s written authorization of DBE termination request, CONSULTANT must obta in the LOCAL AGENCY’s written agreement for DBE replacement. CONSULTANT must find or demonstrate GFEs to find qualified DBE replacement firms to perform the work to the extent needed to meet the DBE commitment.
The following procedures shall be followed to request authorization to replace a DBE firm:
1) Submit a request to replace a DBE with other forces or material sources in writing to the LOCAL AGENCY which must include:
• Description of remaining uncommitted work item made available for replacement DBE solicitation and participation.
• The proposed DBE replacement firm's business information, the work they have agreed to perform, and the following:
• Description of scope of work and cost proposal
• Proposed subcontract agreement and written confirmation of agreement to perform on the Contract
• Revised Exhibit 10-O2: Consultant Contract DBE Commitment
2) If CONSULTANT has not identified a DBE replacement firm, submits documentation of CONSULTANT’s GFEs to use DBE replacement firms within seven (7) days of LOCAL AGENCY's authorization to terminate the DBE.
CONSULTANT may request the LOCAL AGENCY's approval to extend this submittal period to a total of 14 days. Submit documentation of actions taken to find a DBE replacement firm, such as:
• Search results of certified DBEs available to perform the original DBE work identified and or other work CONSULTANT had intended to self - perform, to the extent needed to meet DBE commitment
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• Solicitations of DBEs for performance of work identified
• Correspondence with interested DBEs that may have included contract details and requirements
• Negotiation efforts with DBEs that reflect why an agreement was not reached
• If a DBE's quote was rejected, provide reasoning for the rejection, such as why the DBE was unqualified for the work, or why the price quote was unreasonable or excessive
• Copies of each DBE's and non- DBE's price quotes for work identified, as the LOCAL AGENCY may contact the firms to verify solicitation efforts and determine if the DBE quotes are substantially higher
• Additional documentation that supports CONSULTANT’s GFE
The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE replacement request within five (5) business days.
F. Commitment and Utilization
The LOCAL AGENCY’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization.
The LOCAL AGENCY shall request CONSULTANT to:
1) Notify the LOCAL AGENCY’s contract administrator or designated representative of any changes to its anticipated DBE participation.
2) Provide this notification before starting the affected work.
3) Maintain records including:
a. Name and business address of each 1st-tier subconsultant.
b. Name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier.
c. Date of payment and total amount paid to each business (see Exhibit 9- F Monthly Disadvantaged Business Enterprise Payment)
If CONSULTANT is a DBE CONSULTANT, they shall include the date of work performed by their own forces and the corresponding value of the work.
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If a DBE is decertified before completing its work, the DBE must notify CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify CONSULTANT in writing of the certification date. CONSULTANT shall submit the notifications to the LOCAL AGENCY. On work completion, CONSULTANT shall complete a Disadvantaged Business Enterprises (DBE) Certification Status Change, Exhibit 17- O, form and submit the form to the LOCAL AGENCY within 30 days of contract acceptance.
Upon work completion, CONSULTANT shall complete Exhibit 17- F Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First -Tier Subcontractors and submit it to the LOCAL AGENCY within 90 days of contract acceptance. The LOCAL AGENCY will withhold $10,000 until the form is submitted. The LOCAL AGENCY will release the withhold upon submission of the completed form.
In the LOCAL AGENCY’s reports of DBE participation to Caltrans, the LOCAL AGENCY must display both commitments and attainments.
G. Commercially Useful Function
DBEs must perform a commercially useful function (CUF) under 49 CFR 26.55 when performing work or supplying materials listed on the DBE Commitment form. The DBE value of work will only count toward the DBE commitment if the DBE performs a CUF.
A DBE performs a CUF when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself.
CONSULTANT must perform CUF evaluation for each DBE working on a federal -aid contract, with or without a DBE goal. Perform a CUF evaluation at the beginning of the DBE’s work and continue to monitor the performance of CUF for the duration of the project.
CONSULTANT must provide writte n notification to the LOCAL AGENCY at least 15 days in advance of each DBE's initial performance of work or supplying materials for the Contract. The notification must include the DBE's name, work the DBE will perform on the contract, and the location, date, and time of where their work will take place.
Within 10 days of a DBE initially performing work or supplying materials on the Contract, CONSULTANT shall submit to the LPA the initial evaluation and validation of DBE performance of a CUF using the LAPM 9- J: Disadvantaged Business Enterprise Commercially Useful Function Evaluation. Include the following information with the submittal:
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• Subcontract agreement with the DBE
• Purchase orders
• Bills of lading
• Invoices
• Proof of payment
CONSULTANT must monitor all DBE’s performance of CUF by conducting quarterly evaluations and validations throughout their duration of work on the Contract using the LAPM 9-J: DBE Commercially Useful Function Evaluation. CONSULTANT must submit to the LOCAL AGENCY these quarterly evaluations and validations by the 5th of the month for the previous three months of work.
CONSULTANT must notify the LOCAL AGENCY immediately if they believe the DBE may not be performing a CUF.
The LOCAL AGENCY will verify DBEs performance of CUF by reviewing the initial and quarterly submissions of LAPM 9- J: DBE Commercially Useful Function Evaluation, submitted supporting information, field observations, and through any additional LOCAL AGENCY evaluations. The LOCAL AGENCY must evaluate DBEs and their CUF performance throughout the duration of a Contract. The LOCAL AGENCY will provide written notice to the CONSULTANT and the DBE at least two (2) business days prior to any evaluation. The CONSULTANT and the DBE must participate in the evaluation. Upon completing the evaluation, the LOCAL AGENCY must share the evaluation results with the CONSULTANT and the DBE. An evaluation could include items that must be remedied upon receipt. If the LOCAL AGENCY determines the DBE is not performing a CUF, the CONSULTANT must suspend performance of the noncompliant work.
CONSULTANT and DBEs must submit any additional CUF related records and documents within five (5) business days of LOCAL AGENCY’s request such as:
• Proof of ownership or lease and rental agreements for equipment
• Tax records
• Employee rosters
• Certified payroll records
• Inventory rosters
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Failure to submit required DBE Commercially Useful Function Evaluation forms or requested records and documents can result in withholding of payment for the value of work completed by the DBE.
If CONSULTANT and/or the LOCAL AGENCY determine that a listed DBE is not performing a CUF in performance of their DBE committed work, CONSULTANT must immediately suspend performance of the noncompliant portion of the work. LOCAL AGENCY may deny payment for the noncompliant portion of the work. LOCAL AGENCY will ask the CONSULTANT to submit a corrective action plan (CAP) to the LOCAL AGENCY within five (5) days of the noncompliant CUF determination. The CAP must identify how the CONSULTANT will correct the noncompliance findings for the remaining portion of the DBE's work. LOCAL AGENCY has five (5) days to review the CAP in conjunction with the CONSULTANT’s review. The CONSULTANT must implement the CAP within five (5) days of the LOCAL AGENCY's approval. The LOCAL AGENCY will then authorize the prior noncompliant portion of work for the DBE's committed work.
If corrective actions cannot be accomplished to ensure the DBE performs a commercially useful function on the Contract, CONSULTANT may have good cause to request termination of the DBE.
H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
J. CONSULTANT shall maintain records of materials purchased or supplied fr om all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
K. If a DBE subconsultant is decertified during the life of the AGREEMENT, t he decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the AGREEMENT, the subconsultant shall notify CONSULTANT in writing with the date 54 A2408.CON.TWINING.DD
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of certificat ion. Any changes should be reported to LOCAL AGENCY’s Contract Administrator within thirty (30) calendar days.
L. For projects awarded on or after March 1, 2020, but before September 1, 2023: after submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consultant must complete and email Exhibit 9-F: Disadvantaged Business Enterprise Running Tally of Payments to [email protected] with a copy to local administering agencies.
For projects awarded on or after September 1, 2023: Exhibit 9-F is no longer required.
Instead, by the 15th of the month following the month of any payment(s), the CONSULTANT must now submit Exhibit 9- P to the LOCAL AGENCY administering the contract. If the CONSULTANT does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
M. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.
ARTICLE XXXII TITLE VI ASSURANCES
APPENDIX A
During the performance of this Agreement, the contractor, for itself, its assignees and successors in interest (hereinafter collectively referred to as CONSULTANT) agrees as follows:
a. Compliance with Regulations : CONSULTANT shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement.
b. Nondiscrimination: CONSULTANT, with regard to the work performed by it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub- applicants, including procurements of materials and leases of equipment.
CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations.
c. Solicitations for Sub- agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONSULTANT for work to be performed under a Sub- agreement, including 55 A2408.CON.TWINING.DD
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procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by CONSULTANT of the CONSULTANT’S obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin.
d. Information and Reports: CONSULTANT shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA to be pertinent to ascertain compliance with such Regulations or directives. Where any information required of CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, CONSULTANT shall so certify to the recipient or FHWA as appropriate, and shall set forth what efforts CONSULTANT has made to obtain the information.
e. Sanctions for Noncompliance: In the event of CONSULTANT’s noncompliance with the nondiscrimination provisions of this agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
i. withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or
ii. cancellation, termination or suspension of the Agreement, in whole or in part.
f. Incorporation of Provisions: CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub- agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.
CONSULTANT shall take such action with respect to any sub-agreement or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, CONSULTANT may request the recipient enter into such litigation to protect the interests of the State, and, in addition, CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States.
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APPENDIX E
During the performance of this contract, the CONSULTANT, for itself, its assignees, and successors in interest (hereinafter referred to as the “CONSULTANT”) agrees to comply with the following nondiscrimination statutes and authorities, including, but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects);
• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex; • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age);
• Airport and Ai rway 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 applica bility of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration’s Non- discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination 57 A2408.CON.TWINING.DD
RFQ PW 24-01
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 V I, 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).
58 A2408.CON.GEOCON.DD
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CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND GEOCON WEST , INC.
FOR ON- CALL PAVEMENT ENGINEERING AND
MATERIAL TESTING SERVICES, RFQ NO. PW 24-01
THIS CONTRACT is made and entered into in the City of Simi Valley on this 1 5
th day of April , 2024, by and between the CITY OF SIMI VALLEY, a municipal corporation, hereinafter referred to as CITY, and GEOCON WEST , INC. , a California Corporation, hereinafter referred to as CONSULTANT, each a “Party” and collectively “Parties”
RECITALS
WHEREAS, on December 20, 2023, CITY requested proposals for the On-Call Pavement Engineering and Material Testing Services, RFQ NO. PW 24-01; and
WHEREAS, pursuant to such request, CONSULTANT submitted a proposal, which was accepted by CITY for the services.
NOW, THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the Parties hereto agree as follows:
AGREEMENT
1. Recitals. The foregoing recitals are true and correct and are a part of this CONTRACT.
2. Term. The term of this CONTRACT shall be from the date this CONTRACT is made and entered, as first written above through a two year term. This CONTRACT may be extended for one additional one- year term, upon mutual written consent of the CITY and CONSULTANT. Pricing shall remain firm during the entire term of the contract. In the event a price increase is negotiated at the time o f an extension period, the increase rate shall not exceed the Consumer Price Index (CPI) rate for Los Angeles -Riverside-Orange County area for the previous 12- month period (March to March). It is understood that the CONSULTANT’S work under the Work Orders issued may not be completed within the term of this CONTRACT; however, all terms and conditions of the CONTRACT including all rights and obligations, shall survive until the work is completed, except the CITY’S right to issue, and the CONSULTANT’S right to accept, additional Purchase Orders. Either Party may terminate this CONTRACT at any time prior to the expiration date by giving thirty (30) days advance written notice thereof to the other party.
59 A2408.CON.GEOCON.DD
RFQ PW 24-01
3. Description of Services . The services to be performed by CONSULTANT are as follows:
(On-call Pavement Engineering and Material Testing Services). CONSULTANT agrees to perform the services more specifically set forth in the “Scope of Work” attached hereto and incorporated herein as Exhibit “A”. CONSULTANT will meet with CITY at least monthly to discuss the anticipated tasks planned for the month and to receive direct ion from CITY regarding same.
4. Compensation and Payment
.
A. The total compensation payable to CONSULTANT by CITY for services under this CONTRACT shall not exceed the sum of $300,000.00 (the “Not- To-Exceed Amount”), and shall be earned as the work progresses. Payment will be made based on the rates contained in the “Schedule of Fees” as set forth in Exhibit “B” attached hereto and incorporated herein. CONSULTANT acknowledges that CONSULTANT is not guaranteed to receive the Not -To-Exceed Amount or any particular or minimum amount of compensation or work under this CONTRACT.
B. After CONSULTANT has performed the services as specified in this CONTRACT, CITY shall be obligated to pay CONSULTANT based upon the actual CITY-authorized services received by CITY at the rates established as a part of this CONTRACT. In no event shall the total amount paid exceed the CONTRACT Not-to-Exceed Amount unless otherwise agreed to by the Parties in writing.
C. Payments to the CONSULTANT shall be made within 30 days after receipt of an original invoice from the CONSULTANT and acceptance of the services by CITY.
D. CONSULTANT shall provide CITY with written verification of the actual compensation earned, which written verification will be in a form satisfactory to CITY. Invoices shall include the work performed including a list of hours worked by personnel.
5. CONSULTANT’s Representations and Obligations
.
A. CONSULTANT shall perform as required by this CONTRACT.
CONSULTANT also warrants on behalf of itself and all subcontractors engaged for the performance of this CONTRACT that only persons authorized to work in the United States pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the work hereunder.
B. CONSULTANT shall obey all Federal, State, local, and special district laws, ordinances, and regulations.
60 A2408.CON.GEOCON.DD
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C. CONSULTANT agrees to abide by CITY’s Business Tax
Ordinance, of which proof of payment must be obtained prior to performance of this CONTRACT.
D. CONSULTANT acknowledges CITY may contract with other Parties for the performance of services or supplemental services as they relate to the work during the term of this CONTRACT.
E. The CONSULTANT shall keep a tally of the cost for the work ordered by CITY. The CONSULTANT shall not accept work orders from the CITY if the cost for the work will exceed the amount indicated above unless otherwise agreed to by the Parties in writing.
F. To the extent required by law, CONSULTANT agrees to abide by the following provisions pertaining to Prevailing Wages and Federally Funded Projects;
i. CONSULTANTS and all Subcontractors subject to prevailing wage requirements, must be registered and remain registered with DIR (Department Industrial Relations) through the term of the CONTRACT in accordance with the California Labor Code (“Labor Code”), in particular Labor Code Section 1771.1, and any successor or replacement provision thereto, unless a small project exemption applies ($25,000 for public works or $15,000 for maintenance). CONSULTANT further agrees that it will follow all requirements and obligations set forth in Labor Code Section 1776.
ii. Pursuant to the provisions of the California Labor Code the California Department of Industrial Relations has ascertained the general prevailing rate of per diem wages and the general prevailing rate for legal holiday and overtime work in the locality in which this work is to be performed for each craft, classification or type of worker needed to execute the CONTRACT. Such wage scale is set forth at length in a Schedule of Prevailing Rates of Wages that is on file at the California Department of Industrial Relations and is available at www.dir.ca.gov/DLSR/PWD/index.htm . The
published prevailing rates that the CONSULTANT shall pay are hereby incorporated in and made a part of this CONTRACT.
iii. CONSULTANT shall assist in locating, qualifying, hiring, and increasing the skills of minority group employees and applicants for employment, as set forth in Executive Orders 11246 and 11375.
iv. The CONSULTANT shall comply with Labor Code Section 1773.2 and a copy of the general wage rate list shall be posted at each job si te.
CONSULTANT shall indemnify, defend, and hold CITY harmless from any claim that prevailing wages should have been paid pursuant to this CONTRACT, including federal prevailing wage requirements under the Davis-Bacon Act, if applicable and shall be liable for the payment of same and any penalties thereon.
61 A2408.CON.GEOCON.DD
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v. For Federally funded projects the current Federal General Wage Determinations shall apply as predetermined by the Secretary of Labor. If there is a difference in the Federal minimum wage rates and the California Department of Industrial Relations for similar classifications of labor, the CONSULTANT and its subcontractors shall pay not less than the higher wage rate. The wage rate for any classification not listed by the Federal Department of Labor or the California Department of Industrial Relations, but which may be required to execute the CONTRACT, shall be in accord with specified rates for similar or comparable classifications or for those performing similar or comparable duties, within the agencies determinations.
6. Audit.
A. At any time during normal business hours and as often as the CITY may deem necessary, CONSULTANT shall make available to CITY for inspection its records pertaining to this CONTRACT. CONSULTANT shall permit CITY to audit, examine and/or reproduce such records. CONSULTANT will retain such financial records, time sheets, work progress reports, invoices, bills and project records for at least two (2) years after termination or final payment under this CONTRACT. This paragraph shall survive for two (2) years after termination of this CONTRACT.
B. CITY shall have the option of inspecting and/or auditing all records and other written materials used by CONSULTANT in preparing its statements to CITY as a condition precedent to any payment to CONSULTANT.
7. Hold Harmless and Indemnification . To the fullest extent permitted by law (including, without limitation, California Civil Code Sections 2782 and 2782.8), CONSULTANT shall defend, and provide legal defense with attorney(s) acceptable to CITY, indemnify, and hold harmless the CITY, its agents, officials, officers, representatives, and employees, (collectively “Indemnitees”) from and against all claims, lawsuits, liabilities or damages (including, without limitation, injury to or death of an employee of CONSULTANT or its sub- consultant), expense and liability of every kind, nature and description (including, without limitation incidental and consequential damages, court costs, attorney’s fees, litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of litigation) that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT, any sub- consultant, anyone directly or indirectly employed by them, or anyone that they control.
To the extent there is an obligation to indemnify under this Section of this CONTRACT; CONSULTANT shall be responsible for incidental and consequential damages resulting from CONSULTANT’S negligence, recklessness, or willful misconduct. The provisions of this Section survive completion of the services or the termination of this CONTRACT.
The provisions of this Section are not limited by the provisions of this CONTRACT relating to insurance. The CONSULTANT shall thoroughly investigate any and all claims subject to the provisions of this Section, and indemnify the CITY and do whatever is necessary to protect any and all Indemnitees.
62 A2408.CON.GEOCON.DD
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8. Amendments. Any amendment, modification, or variation from the provisions of this CONTRACT shall be in writing and shall be effective only upon mutual written approval by the CITY and CONSULTANT.
9. Anti-Discrimination. In the performance of the terms of this CONTRACT, CONSULTANT shall not engage in, nor permit subcontractors to engage in, discrimination in employment of persons because of the age, race, color, religious creed, sex, sexual orientation, national origin, ancestry, physical disability, mental disability, medical condition, or marital status of such persons. Violation of this provision may result in the imposition of penalties referred to in Labor Code Section 1735.
10. Personal Services. This Agreement is for professional services, which are personal to CITY. Neal Berliner , GE is deemed to be specially experienced and is a key member of CONSULTANT’S firm, and shall be directly involved in performing, supervising, or assisting in the performance of this work. This key person shall communicate with, and periodically report to, CITY on the progress of the work .
Should any such individual be removed from assisting in this contracted work for any reason, CITY may terminate this CONTRACT.
11. Termination. If, during the term of this CONTRACT, CITY determines that CONSULTANT is not faithfully abiding by any term or condition contained herein, CITY may notify CONSULTANT in writing of such defect or failure to perform. The notice must give to the CONSULTANT a ten (10) day period of time thereafter in which to perform the work or cure the deficiency. If CONSULTANT has not performed the work or cured the deficiency within the ten (10) days specified in the notice, such failure shall constitute a breach of this CONTRACT, and CITY may terminate this CONTRACT immediately by written notice to CONSULTANT. In addition, CITY, if it terminates this CONTRACT for cause, may withhold as an offset from payments due CONSULTANT damages occasioned by such breach, including liquidated damages, if so provided herein. The CITY shall be liable to the CONSULTANT only for those fees accrued by the CONSULTANT to the date CONSULTANT receives the notice of termination. In no event, however, shall CONSULTANT be entitled to receive in excess of the CONTRACT amount.
12. Delivery of Reports in Cases of Termination. If this CONTRACT is terminated pursuant to any of the provisions contained hereinabove, and if requested to do so in writing by the CITY, the CONSULTANT shall, within fourteen (14) calendar days after receipt of such written request, deliver and turn over to the CITY all of its preparation and work on the project which were done to the date of the receipt of the notice of termination. The terms "preparation" and "work" as used in this paragraph, shall refer to and include all data and materials of whatever type that have been gathered by the CONSULTANT, and contemplated to be used or actually used, in the provision of the services as specified in this CONTRACT.
63 A2408.CON.GEOCON.DD
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13. Complete CONTRACT . This CONTRACT and its accompanying exhibits shall constitute the complete CONTRACT between the Parties hereto. No verbal agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such verbal agreement, understanding, or representation be binding upon the Parties hereto.
14. Independent Contractor. It is expressly understood between the Parties to this CONTRACT that no employee/employer relationship is intended .
CONSULTANT is not an agent or employee of the CITY and it is not entitled to participate in any pension plan, insurance or other benefits CITY provides for its employees.
CONSULTANT is an independent contractor in performing the Services required under this CONTRACT and will have control of all work and the manner in which it is performed.
Any provision of this CONTRACT that may appear to give CITY the right to direct CONSULTANT as to the details of doing the work required herein or to exercise a measure of control over the work means that the CONSULTANT will follow the direction of the CITY as to the results of the work only.
15. Time of Performance. Time is of the essence in this CONTRACT.
16. Insurance. CONSULTANT shall, at CONSULTANT’S sole cost and expense, provide insurance as contained in Exhibit “C”, incorporated herein.
CONSULTANT shall not commence work on the Services to be performed, until it submits proof of all insurance coverage as required.
17. Ownership of Reports and Data . The originals of all studies, reports, exhibits, documents, data and other work or materials prepared for, or used to comply with any term of this CONTRACT, plus any copies of same required by this CONTRACT to be furnished to the CITY by any of the other party(ies) with whom the CONSULTANT may have contract(s) pertaining to this project, shal l be deemed to be public records open to inspection by the public and, as such, to be and remain the property of the CITY.
18. Conflict of Interest. Neither CONSULTANT nor any employees, agents, or subcontractors of CONSULTANT who will be assigned to this project, to the best of CONSULTANT'S knowledge, own any property or interest in properties, business relationships, or sources of income which may be affected by the performance of this CONTRACT. Should one Party hereto learn of any such interest, inc ome source, or business relationship, such fact shall immediately be brought to the attention of the other Party hereto. If the Parties thereupon cannot mutually agree upon a means to eliminate the conflict, CITY may terminate the CONTRACT immediately for non-performance pursuant to Section 11 herein. In accordance with California Government Code Section 87306, CONSULTANT shall provide, if requested by CITY, a Conflict of Interest Statement, Form 700 no later than 30 days after execution of this CONTRACT, and annually thereafter prior to April 1st of each year for the duration of the CONTRACT.
Failure to file any of the required statements will result in withholding payment for services rendered.
64 A2408.CON.GEOCON.DD
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19. Successors and Assigns. The terms hereof shall be binding upon and inure to the benefit of the successors and assigns of the Parties hereto; provided, however, that no Party hereto shall assign any of the benefits and burdens hereunder, whether voluntarily or by operation of law, without the prior written consent of the other party, and any such assignment without said consent shall be void.
20. Authority to Execute CONTRACT. Both CITY and CONSULTANT do covenant that each individual executing this CONTRACT on behalf of each Party is a person duly authorized and empowered to execute contracts for such party.
21. Jurisdiction and Venue . Jurisdiction is in an appropriate court in the State of California and venue lies in Ventura County, and the Parties do not consent to arbitration. In the event of any dispute, each Party shall bear its own fees and costs (including attorneys’ fees). This CONTRACT shall be governed by California law, without regard to conflict of law principles.
22. Non-Appropriation of Funds . Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of CITY. In the event CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this CONTRACT shall cover only those costs incurred up to the conclusion of the current fiscal year.
23. Taxpayer Identification Number . CONSULTANT shall provide CITY with a complete Request for Taxpayer Identification Number and Certification, form W-9 (latest revision), as issued by the Internal Revenue Service.
24. Permits and Licenses. CONSULTANT, at its sole cost and expense, shall obtain and maintain during the term of this CONTRACT, all appropriate permits, licenses, and certificates that may be required in connection with the performance of this CONTRACT.
25. Waivers. The waiver by one Party of any term or condition of this CONTRACT, or any breach thereof, shall not be construed to be a general waiver by the Party or as a waiver of any other term or breach.
26. Statement of Experience. CONSULTANT warrants that it will perform its Services with at least the due care, diligence and expertise generally accepted in its industry. CONSULTANT also understands and agrees that it is being employed to perform the Services provided for by this CONTRACT because of CONSULTANT’S professed expertise and experience in performing such Services. In addition, CONSULTANT understands and agrees that while CITY or CITY’S officers, employees, agents or volunteers may elect to do so, they have no duty to review, inspect, monitor, or supervise the work performed by CONSULTANT pursuant to this CONTRACT. As a consequence, CONSULTANT waives any right of contribution against CITY or any of CITY’S officers, employees, agents, or volunteers arising out of such failure to inspect, 65 A2408.CON.GEOCON.DD
RFQ PW 24-01
review, monitor, or supervise the work performed by CONSULTANT pursuant to this CONTRACT.
27. Notices. All written notices required by, or related to this CONTRACT shall be sent by Certified Mail, Return Receipt Requested, postage prepaid and addressed as listed below. Neither Party to this CONTRACT shall refuse to accept such mail; the Parties to this CONTRACT shall promptly inform the other Party of any change of address. All notices required by this CONTRACT are effective on the day of receipt, unless otherwise indicated herein. The mailing address of each Party to this CONTRACT is as follows:
CITY Department of Public Works
City of Simi Valley
2929 Tapo Canyon Road
Simi Valley, CA 93063
Staff Contact: Fuad Shamout
Principal Engineer/Capital Projects
(805) 583-6788
66 A2408.CON.GEOCON.DD
RFQ PW 24-01
CONSULTANT Geocon West, Inc.
500 N. Victory Boulevard
Burbank, CA 91502
Staff Contract: Neal Berliner, GE, President
(213) 369-2881
IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be executed the day and year first above written.
Attest: City of Simi Valley, A Municipal Corporation
By:
Lucy Blanco, City Clerk Fred D. Thomas, Mayor of the City of Simi Valley, California
Approved as to Form: Geocon West, Inc.
By:
Algeria R. Ford, City Attorney
Print Name:
Approved as to Content: Title:
By:
Brian Paul Gabler, City Manager
Print Name:
Title:
Johanna Medrano,
Deputy Administrative Services Director/
Budget & Purchasing
Ronald K. Fuchiwaki
Public Works Director
67 A2408.CON.GEOCON.DD
RFQ PW 24-01
EXHIBIT “A”
SCOPE OF WORK
CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND GEOCON WEST , INC.
FOR ON -CALL PAVEMENT ENGINEERING AND
MATERIAL TESTING SERVICES, RFQ NO. PW 24-01
A. Services to be Provided
The selected firm(s) shall provide the Professional Services in connection with design and construction of various public works projects within the City. These Professional Services will be assigned on an as -needed basis through the issuance of task orders depending upon the Department's project workload. Award of this annual contract does not necessarily guarantee the assignment of specific projects to the Consultant. The work, in general, may include but not limited to the following:
• Surface and subsurface soils investigation, testing (relative compaction, R- value, sieve analysis, shear, etc.), evaluation and geotechnical inspection.
• Material testing and inspection of conventional and rubberized asphalt concrete pavement both at the asphalt plant and at the job site, aggregate stockpile at the source; rock and sand base, paving asphalt, liquid asphalt, emulsion, etc.
• Subgrade test for any unusual characteristics which may cause early failure to the pavement section.
• Street structural section evaluations including pavement deflection testing, analysis, and recommendation.
• Other geotechnical/soils engineering and material testing as may be needed.
• Laboratory services, data collection, asphalt concrete batch plant inspection, preparation and submission of engineering reports consisting of test results, with interpretation, analysis, and recommendations.
68 A2408.CON.GEOCON.DD
RFQ PW 24-01
EXHIBIT “B”
SCHEDULE OF FEES
CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND GEOCON WEST , INC.
FOR ON -CALL PAVEMENT ENGINEERING AND
MATERIAL TESTING SERVICES, RFQ NO. PW 24-01
69 Cost Proposal
Specific Rate of Compensation for State/Federally Funded Projects Consultant: Contract Amount:
Project No.: Date:
For Combined Rate
Fringe Benefit % 52.40% 137.53% = 189.93% Combined ICR % For Home Office Rate
= Home Office ICR %
For Field Office Rate
= Field Office ICR %
Fee = 10%
Actual or Avg. % or $
Straight OT (1.5x) OT (2x) Hourly Rate Increase
255.14$ 295.14$ 335.14$ 1/1/24 - 12/31/ 24 80.00$ - 80.00$ - 80.00$ 262.79$ 303.99$ 345.19$ 1/1/25 - 04/14/26 82.40$ 3.0% - 239.19$ 276.69$ 314.19$ 1/1/24 - 12/31/24 75.00$ - 75.00$ - 75.00$ 246.37$ 285.00$ 323.62$ 1/1/25 - 04/14/26 77.25$ 3.0% - 201.34$ 232.91$ 264.47$ 1/1/24 - 12/31/ 24 63.13$ - 60.25$ - 66.00$ 207.36$ 239.87$ 272.38$ 1/1/25 - 04/14/26 65.02$ 3.0% - 160.07$
185.17$ 210.26$ 1/1/24 - 12/31/24 50.19$ - 42.00$ - 57.75$ 164.88$ 190.73$ 216.58$ 1/1/25 - 04/14/26 51.70$ 3.0% - (Add pages as necessary. See Additional Sheet.)
Notes:
+ General & Administrative %
1/16/2024
Name & Job Title / Classification
+ General & Administrative %
+ General & Administrative %
(Classifications Only)
Effective Year of
Hourly Rate
Hourly Range
Mark-ups are not allowed. The cost proposal format shall not be amended.
Billing Rate = Actual Hourly Rate * (1 + ICR) * (1 + Fee). Indirect cost rates shall be updated on an annual basis in accordance with the consultants annual accounting period and established by a cognizant agency or accepted by Caltrans. All costs must comply with the Federal cost principles for reimbursement.
For named employees and key personnel enter the actual hourly rate. For classification only, enter the Average Hourly Rate for that classification.
For named staff, classification shall also be listed to account for possible staff changes. Contract Manager’s pre-approval is required for addition of staff not previously listed on the cost proposal.
Subconsultants must provide their own cost proposals.
1. 2.
3. 4.
5. Geocon West, Inc
Fringe Benefit %
Fringe Benefit %
Principal Engineer
Senior Engineer
Sr. Project Engineer
OR
Hourly Billing Rates
Project Engineer
EXHIBIT B GEOCON
70 Cost Proposal
Specific Rate of Compensation for State/Federally Funded Projects Consultant: Geocon West, Inc Contract Amount:
Project No.: Date: 1/16/2024
Quantity Unit Unit Cost Total
Notes:
Subconsultant 1:
List other direct cost items with estimated costs. These costs should be competitive in their respective industries and supported with appropriate documentation.
Proposed ODC items should be consistently billed regardless of client and contract type.
Items when incurred for the same purpose, in like circumstance, should not be included in any indirect cost pool or in the overhead rate.
Items such as special tooling, will be reimbursed at actual cost with supporting documentation (invoice).
Items listed above that would be considered "tools of the trade" are not reimbursable as other direct cost.
Travel related costs should be pre-approved by the contracting agency and shall not exceed current State Department of Personnel Administration rules.
If mileage is claimed, the rate should be properly supported by the consultant's calculation of their actual costs for company vehicles. In addition, the miles claimed should be supported by mileage logs.
If a consultant proposes rental costs for a vehicle, the company must demonstrate that this is its standard procedure for all of their contracts and that they do not own any vehicles that could be used for the same purpose.
The cost proposal format shall not be amended. All costs must comply with the Federal cost principles.
Subconsultants must provide their own cost proposals.
1. 2.
3. 4.
5. 6.
7. 8.
9. 10.
Subconsultant 2:
Subconsultant 3:
Other:
Vehicle
Other: As Need Lab Testing, See Attached Sheet For Rates Other:
Other:
Mileage Costs
Equipment Rental and Supplies
Schedule of Other Direct Cost Items (Add additional pages as necessary) Description of Item
Permit Fees
Plan Sheets
Test
Page __ of __
71 Cost Proposal
Specific Rate of Compensation for State/Federally Funded Projects Consultant: Contract Amount:
Project No.: Date:
Actual or Avg. % or $
Straight OT (1.5x) OT (2x) Hourly Rate Increase
137.14$ 158.64$ 180.14$ 1/1/24 - 12/31/24 43.00$ - 42.50$ - 43.50$ 141.25$ 163.40$ 185.54$ 1/1/25 - 04/14/26 44.29$ 3. 0% -
92.23$ 106.69$ 121.15$ 1/1/24 - 12/31/24 28.92$ - 26.50$ - 31.25$
95.01$ 109.91$ 124.80$ 1/1/25 - 04/14/26 29.79$ 3. 0% -
208.35$ 241.02$ 273.68$ 1/1/24 - 12/31/24 65.33$ - 56.00$ - 75.00$ 214.60$ 248.25$ 281.89$ 1/1/25 - 04/14/26 67.29$ 3. 0% -
159.46$ 184.46$ 209.46$ 1/1/24 - 12/31/24 50.00$ - 50.00$ - 50.00$ 164.25$ 190.00$ 215.75$ 1/1/25 - 04/14/26 51.50$ 3. 0% -
134.74$ 155.87$ 176.99$ 1/1/24 - 12/31/24 42.25$ - 41.00$ - 43.50$ 138.80$ 160.56$ 182.32$ 1/1/25 - 04/14/26 43.52$ 3. 0% -
102.06$ 118.06$ 134.06$ 1/1/24 - 12/31/24 32.00$ - 32.00$ - 32.00$ 105.12$ 121.60$ 138.08$ 1/1/25 - 04/14/26 32.96$ 3. 0% -
93.28$ 107.
91$ 122.53$ 1/1/24 - 12/31/24 29.25$ - 26.50$ - 32.00$
96.09$ 111.16$ 126.22$ 1/1/25 - 04/14/26 30.13$ 3. 0% -
105.05$ 121.52$ 137.99$ 1/1/24 - 12/31/24 32.94$ - 25.00$ - 42.00$ 108.21$ 125.18$ 142.14$ 1/1/25 - 04/14/26 33.93$ 3. 0% -
180.77$ 209.11$ 237.45$ 1/1/24 - 12/31/24 56.68$ - 56.68$ - 56. 68$
186.19$ 215.38$ 244.57$ 1/1/25 - 04/14/26 58.38$ 3. 0% -
85.18$ 98.54$ 111.89$ 1/1/24 - 12/31/24 26.71$ - 23.00$ - 32.00$
87.74$ 101.50$ 115.25$ 1/1/25 - 04/14/26 27.51$ 3. 0% -
(Add pages as necessary. See Additional Sheet.)
(non-prevailing wage)
Sr. Staff Geologist
Staff Geologist
Senior Field Technician
Effective Year of
Hourly Rate
Hourly Range
(Classifications Only)
(non-prevailing wage)
Staff Engineer
Senior Geologist
Field Technician
Sr. Project Geologist
Project Geologist
Senior Field Technician
(prevailing wage)
Sr. Staff Engineer
Geocon West, Inc.
Name & Job Title / Classification Hourly Billing Rates
1/16/2024
Page _ of __
72 Cost Proposal
Specific Rate of Compensation for State/Federally Funded Projects Consultant: Contract Amount:
Project No.: Date:
Actual or Avg. % or $
Straight OT (1.5x) OT (2x) Hourly Rate Increase
180.77$ 209.11$ 237.45$ 1/1/ 24 - 12/31/24 56.68$ - 56.68$ - 56.68$ 186.19$ 215.38$ 244.57$ 1/1/25 - 04/14/26 58.38$ 3.0% -
90.89$ 105.14$ 119.39$ 1/1/ 24 - 12/31/24 28.50$ - 28.50$ - 28.50$
93.64$ 108.32$ 123.00$ 1/1/25 - 04/14/26 29.36$ 3.0% - 186.44$ 215.67$ 244.90$ 1/1/ 24 - 12/31/24 58.46$ - 58.46$ - 58.46$ 192.02$ 222.13$ 252.23$ 1/1/25 - 04/14/26 60.21$ 3.0% -
98.87$ 114.37$ 129.87$ 1/1/ 24 - 12/31/24 31.00$ - 31.00$ - 31.00$ 101.83$ 117.80$ 133.76$ 1/1/25 - 04/14/26 31.93$ 3.0% -
93.03$ 107.62$ 122.20$ 1/1/ 24 - 12/31/24 29.17$ - 29.17$ - 29.17$
95.84$ 110.87$ 125.89$ 1/1/25 - 04/14/26 30.05$ 3.0% - -
-
-
-
-
-
-
-
-
-
Geocon West, Inc.
Name & Job Title / Classification Hourly Billing Rates Effective Year of Hourly Rate
(prevailing wage)
Draftsman
Hourly Range
(Classifications Only)
Field Technician
(prevailing wage)
Special Inspection
1/16/2024
Word Processing
(non-prevailing wage)
Special Inspection
Page _ of __
73 Cost Proposal with Prevailing Wages
Specific Rate of Compensation for State/Federally Funded Projects Page __ of __
Consultant: Prime or Subconsultant Date: 1/16/2024
Project No.:
Home Office Personnel: Fringe Benefit % Overhead % Combined % NORMAL 52.40% + 64.11% + = 189.93%
OVERTIME 52.40% + 64.11% + = 189.93%
Field Office Personnel: Fringe Benefit % Overhead % Combined % NORMAL 52.40% + 64.11% + = 189.93%
OVERTIME 52.40% + 64.11% + = 189.93%
= 10%
= 1.00
= 1.00
Non Exempt Employee Loaded Billing Rates
Exempt Employee Loaded Billing Rates
Notes:
Prime
Loaded Rate Calculation
A) Straight Time = Actual Hourly Rate * (1 + Field O.H.) * (1 + Fee) + Delta Base * (Applicable Multiplier Delta Base) + Delta Fringe * (Applicable Multiplier Delta Fringe) B) 1.5X or 2.0X Overtime = (Actual Hourly Rate) * (1 + Field O.H.) * (1 + Fee) +.5X or 1.0X (Actual Hourly Rate) + Delta Base * (Applicable Multiplier Delta Base) + Delta Fringe * (Applicable Multiplier Delta Fringe)
C) Straight Time or 1.5X or 2.0X Overtime = Actual Hourly Rate * (1 + Field O.H.) * (1 + Fee) + Delta Base * (Applicable Multiplier Delta Base) + Delta Fringe * (Applicable Multiplier Delta Fringe)
The PW differentials Delta Base and Delta Fringe shown in the formulas above for Loaded Billing Rates are applicable only when performing services covered under DIR determinations.
The PW differentials Delta Base and Delta Fringe shown in the formulas above for Loaded Billing Rates are applicable only when performing services covered under DIR determinations.
1. Prevailing Wages specified are based on current DIR determination. Any future DIR escalation of prevailing wage rates will be reflected in the loaded rates.
2. "NC" denotes No Charge for work more than 8 hours per day and for weekends and holidays for this contract only.
3. The billing rates shown in this cost proposal for field staff entitled for PW rates are calculated with estimated fringe benefits of the staff. The actual billing rates to be used in the invoices will be calculated by using the actual PW fringe benefits of the individual staff in accordance with the certified benefits statement submitted with each invoice.
4. The employees' actual hourly rates shown in this cost proposal are the rates that were effective on xx/xx/xx. Contract Manager's pre-approval is required for addition of staff not previously listed on the cost proposal. The billing rates for these employees, including those that fall under general classifications, will be calculated and reimbursed based on their actual hourly rates on xx/xx/xx. Hourly rates for new employees hired after the date of this cost proposal will not exceed (or shall be in line with) the rates of similar personnel listed on this cost proposal having similar experience.
5. Travel Time Charges: For Managers: On weekdays up to a maximum of 8 hours will be charged for work time, travel time or any combination of travel and work time. Billing Rate = Loaded Rate Formula "C" above. For Exempt staff: During regular work day, actual travel time not to exceed 8 hours in any one day or one way travel will be billed as follow: Billing rate for travel time = Loaded Rate Formula "C" above. All travel time, outside of the regular work day, will be billed without the application of overhead rate as follow: Billing Rate = (Actual Hourly Rate) (1+ Fee) + (Delta Base + Delta Fringe). For Non-Exempt Employees:
During regular work day, actual travel time not to exceed 8 hours in any one day or one way travel will be billed at full normal overhead rate (i.e. without the application of the 1.5X or 2.0X multiplier for overtime as follow) Applicable Multiplier Fringe (Field)
Geocon West, Inc.
General Administration %
73.42%
73.42%
General Administration %
73.42%
73.42%
Fee
Applicable Multiplier Delta Base (Field)
74 Cost Proposal with Prevailing Wages
Specific Rate of Compensation for State/Federally Funded Projects Page __ of __
Consultant: Project No.:
1/1/2024 -
12/31/2024
1/1/2025 -
03/18/2026
1/1/2024 -
12/31/2024
1/1/2025 -
03/18/2026
1/1/2024 -
12/31/2024
1/1/2025 -
03/18/2026
Straight 56.68$ 58.38$ 56. 68$ 58. 38$ 58. 46$ 60. 21$
1.5 OT 85.02$ 87.57$ 85. 02$ 87. 57$ 87. 69$ 90. 32$
2.0 OT 113.36$ 116.76$ 113. 36$ 116. 76$ 116. 92$ 120. 43$
32.81$ 32.81$ 32.81$ 32. 81$ 32. 81$ 32. 81$ Straight 89.49$ 91.19$ 89. 49$ 91. 19$ 91. 27$ 93. 02$
1.5 OT 117.83$ 120.38$ 117. 83$ 120. 38$ 120. 50$ 123. 13$
2.0 OT 146.17$ 149.57$ 146. 17$ 149. 57$ 149. 73$ 153. 24$ Straight 32.94$ 33.93$ 26. 71$ 27. 51$ 28. 50$ 29. 36$
1.5 OT 49.41$ 50.90$ 40. 07$ 41. 27$ 42. 75$ 44. 04$
2.0 OT 65.88$ 67.86$ 53. 42$ 55. 02$ 57. 00$ 58. 72$
9.50$ 9.79$ 9.50$ 9. 79$ 9. 50$ 9. 79$ Straight 42.44$ 43.72$ 36. 21$ 37. 30$ 38. 00$ 39. 15$
1.5 OT 58.91$ 60.68$ 49. 57$ 51. 05$ 52. 25$ 53. 83$
2.0 OT 75.38$ 77.65$ 62. 92$ 64. 81$ 66. 50$ 68. 51$ Straight (47.05)$ (47.48)$ ( 53.28)$ ( 53.90)$ ( 53.27)$ ( 53.88)$
1.5 OT (58.92)$ (59.70)$ ( 68.27)$ ( 69.33)$ ( 68.25)$ ( 69.31)$
2.0 OT (70.79)$ (71.93)$ ( 83.25)$ ( 84.77)$ ( 83.23)$ ( 84.73)$ Straight (47.05)$ (47.48)$ (53.28)$ (53.90)$ (53.27)$ (53.88)$
1.5 OT (23.74)$ (24.45)$ ( 29.97)$ ( 30.87)$ ( 29.96)$ ( 30.85)$
2.0 OT (35.61)$ (36.68)$ ( 44.96)$ ( 46.31)$ ( 44.94)$ ( 46.28)$ Straight 23.74$ 24.45$ 29. 97$ 30. 87$ 29. 96$ 30. 85$
1.5 OT 35.61$ 36.68$ 44. 96$ 46. 31$ 44. 94$ 46. 28$
2.0 OT 47.48$ 48.90$ 59. 94$ 61. 74$ 59. 92$ 61. 71$ Straight (23.31)$ (23.03)$ ( 23.31)$ ( 23.03)$ ( 23.31)$ ( 23.03)$
1.5 OT (23.31)$ (23.03)$ ( 23.31)$ ( 23.03)$ ( 23.31)$ ( 23.03)$
2.0 OT (23.31)$ (23.03)$ ( 23.31)$ ( 23.03)$ ( 23.31)$ ( 23.03)$ Straight 180.77$ 186.19$ 180. 77$ 186. 19$ 186. 44$ 192. 02$ OT (1.5x) 209.11$ 215.38$ 209. 11$ 215. 38$ 214. 67$ 222. 13$ OT (2x) 237.45$ 244.57$ 237. 45$ 244. 57$ 244. 90$ 252. 23$ 3% 3% 3%% Escalation Increase
(Add pages as necessary)Geocon West, Inc.
DELTA (TOTAL) =
Employee Total Rate - DIR Rate
Applicable DELTA (TOTAL) =
Employee Total - DIR Total
DELTA (BASE) =
Employee Base - DIR Base
Applicable DELTA Base =
DIR Rate - Employee Base Rate
Applicable DELTA FRINGE =
DELTA TOTAL - DELTA BASE
(Employee - DIR)
Loaded Hourly Billing Rates
Effective Year of Hourly Rate
Prevailing Wage Rate
established by State DIR
(only applicable for
prevailing wage work)
Base Salary
Fringe Benefits
Total Base Salary +
Fringe Benefits
Employee Actual Rate
(fringe benefits vary
year over year)
Base Salary
Estimate Fringe
Total = Base +
Fringe
Prevailing Wage work - Exempt or Non-Exempt Non-Exempt Non-Exempt Non-Exempt Home or Field Office Personnel Field Field Field
Name/Classification Senior Field Technician Field Technician Special Inspector 75 Cost Proposal with Prevailing Wages
Specific Rate of Compensation for State/Federally Funded Projects Page __ of __
56.68$ 58.38$ 56.68$ 58. 38$ 58. 46$ 60. 21$ Actual Hourly Rate and/or Average Hourly Rate Hourly Range for Class
76 Certification of Direct Costs:
I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost proposal(s) in this contract are actual, reasonable, allowable, and allocable to the contract in accordance with the contract terms and the following requirements:
1. Generally Accepted Accounting Principles (GAAP)
2. Terms and conditions of the contract
3. Title 23 United States Code Section 112 - Letting of Contracts
4. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures
5. 23 Code of Federal Regulations Part 172 - Procurement, Management, and Administration of Engineering and Design Related Service
6. 48 Code of Federal Regulations Part 9904 - Cost Accounting Standards Board (when applicable) All
costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements.
Costs that are noncompliant with the federal and state requirements are not eligible for reimbursement.
Prime Consultant or Subconsultant Certifying:
Name
: Title*:
Signature: Date of Certification:
Email: Phone Number:
Address:
* An individual executive or financial officer of the consultant's or subconsultant's organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract.
List of Services the consultant is providing under the proposed contract:
73 William Lydon CFO
1/16/2024
[email protected] 858 722-0364
500 N. Victory Blvd, Burbank, CA 91504
Provide On-Call Geotechnical Engineering and Special Inspection services 77 Cost Proposal
Specific Rate of Compensation for State/Federally Funded Projects Consultant: Contract Amount:
Project No.: Date:
For Combined Rate
Fringe Benefit % = Combined ICR %
For Home Office Rate
= Home Office ICR %
For Field Office Rate
= Field Office ICR %
Fee =
Actual or Avg. % or $
Straight OT (1.5x) OT (2x) Hourly Rate Increase
- -
-
- -
-
- -
-
- -
-
(Add pages as necessary. See Additional Sheet.)
Notes:
Mark-ups are not allowed. The cost proposal format shall not be amended.
Billing Rate = Actual Hourly Rate * (1 + ICR) * (1 + Fee). Indirect cost rates shall be updated on an annual basis in accordance with the consultants annual accounting period and established by a cognizant agency or accepted by Caltrans. All costs must comply with the Federal cost principles for reimbursement.
For named employees and key personnel enter the actual hourly rate. For classification only, enter the Average Hourly Rate for that classification.
For named staff, classification shall also be listed to account for possible staff changes. Contract Manager’s pre-approval is required for addition of staff not previously listed on the cost proposal.
Subconsultants must provide their own cost proposals.
1. 2.
3. 4.
5. Fringe Benefit %
Fringe Benefit %
OR
Hourly Billing Rates Hourly Range
+ General & Administrative %
Name & Job Title / Classification
+ General & Administrative %
+ General & Administrative %
(Classifications Only)
Effective Year of
Hourly Rate
66 Gold Construction Services, LLC
TBD
01/22/2024
N/A
100
100
$3.20
$68.39
7/1/2023 - 6/30/2024
N/A
N/A
N/A
Labor and Related Classifications
Labor and Related Classifications
Labor and Related Classifications
Labor and Related Classifications
$71.69 $93.455 $115.22
7/1/2024 - 6/30/2025
$71.69
$3.30
$75.09 $97.93 $120.77
7/1/2025 - 06/30/2026
$75.09
$3.40
$68.39 $89.080 $109.77
PW-XX-XX
78 Cost Proposal
Specific Rate of Compensation for State/Federally Funded Projects Consultant: Contract Amount:
Project No.: Date:
Quantity Unit Unit Cost Total
Notes:
Subconsultant 2:
Subconsultant 3:
Description of Item
Permit Fees
Plan Sheets
Test
Subconsultant 1:
List other direct cost items with estimated costs. These costs should be competitive in their respective industries and supported with appropriate documentation.
Proposed ODC items should be consistently billed regardless of client and contract type.
Items when incurred for the same purpose, in like circumstance, should not be included in any indirect cost pool or in the overhead rate.
Items such as special tooling, will be reimbursed at actual cost with supporting documentation (invoice).
Items listed above that would be considered "tools of the trade" are not reimbursable as other direct cost.
Travel related costs should be pre-approved by the contracting agency and shall not exceed current State Department of Personnel Administration rules.
If mileage is claimed, the rate should be properly supported by the consultant's calculation of their actual costs for company vehicles. In addition, the miles claimed should be supported by mileage logs.
If a consultant proposes rental costs for a vehicle, the company must demonstrate that this is its standard procedure for all of their contracts and that they do not own any vehicles that could be used for the same purpose.
The cost proposal format shall not be amended. All costs must comply with the Federal cost principles.
Subconsultants must provide their own cost proposals.
1. 2.
3. 4.
5. 6.
7. 8.
9. 10.
Other:
Vehicle
Other:
Other:
Other:
Mileage Costs
Equipment Rental and Supplies
Schedule of Other Direct Cost Items (Add additional pages as necessary) Page __ of __
67 TBD
1/22/2024
PW-XX-XX
Gold Construction Services, LLC
79 Cost Proposal
Specific Rate of Compensation for State/Federally Funded Projects Consultant: Contract Amount:
Project No.: Date:
Actual or Avg. % or $
Straight OT (1.5x) OT (2x) Hourly Rate Increase
- -
-
- -
-
- -
-
- -
-
- -
-
- -
-
- -
-
- -
-
- -
-
- -
-
(Add pages as necessary. See Additional Sheet.)
Name & Job Title / Classification Hourly Billing Rates Effective Year of Hourly Rate
Hourly Range
(Classifications Only)
Page _ of __
68 Gold Construction Services, LLC
TBD
1/22/2024
Labor and Related Classifications
Labor and Related Classifications
Labor and Related Classifications
$68.39 $89.080 $109.77
$71.69 $93.455 $115.22
$75.09 $97.93 $120.77
$3.20
$68.39
$3.30
$71.69
$75.09
$3.40
7/1/2023 - 6/30/2024
7/1/2024 - 6/30/2025
7/1/2025 - 06/30/2026
N/A
N/A
N/A
PW-XX-XX
80 Cost Proposal with Prevailing Wages
Specific Rate of Compensation for State/Federally Funded Projects Page __ of __
Consultant: Prime or Subconsultant Date:
Project No.:
Home Office Personnel: Fringe Benefit % Overhead % Combined % NORMAL + + = 0.00%
OVERTIME + + = 0.00%
Field Office Personnel: Fringe Benefit % Overhead % Combined % NORMAL + + = 0.00%
OVERTIME + + = 0.00%
=
=
=
Non Exempt Employee Loaded Billing Rates
Exempt Employee Loaded Billing Rates
Notes:
Applicable Multiplier Fringe (Field)
General Administration %
General Administration %
0.00%
0.00%
Fee
Applicable Multiplier Delta Base (Field)
Loaded Rate Calculation
A) Straight Time = Actual Hourly Rate * (1 + Field O.H.) * (1 + Fee) + Delta Base * (Applicable Multiplier Delta Base) + Delta Fringe * (Applicable Multiplier Delta Fringe) B) 1.5X or 2.0X Overtime = (Actual Hourly Rate) * (1 + Field O.H.) * (1 + Fee) +.5X or 1.0X (Actual Hourly Rate) + Delta Base * (Applicable Multiplier Delta Base) + Delta Fringe * (Applicable Multiplier Delta Fringe)
C) Straight Time or 1.5X or 2.0X Overtime = Actual Hourly Rate * (1 + Field O.H.) * (1 + Fee) + Delta Base * (Applicable Multiplier Delta Base) + Delta Fringe * (Applicable Multiplier Delta Fringe)
The PW differentials Delta Base and Delta Fringe shown in the formulas above for Loaded Billing Rates are applicable only when performing services covered under DIR determinations.
The PW differentials Delta Base and Delta Fringe shown in the formulas above for Loaded Billing Rates are applicable only when performing services covered under DIR determinations.
1. Prevailing Wages specified are based on current DIR determination. Any future DIR escalation of prevailing wage rates will be reflected in the loaded rates.
2. "NC" denotes No Charge for work more than 8 hours per day and for weekends and holidays for this contract only.
3. The billing rates shown in this cost proposal for field staff entitled for PW rates are calculated with estimated fringe benefits of the staff. The actual billing rates to be used in the invoices will be calculated by using the actual PW fringe benefits of the individual staff in accordance with the certified benefits statement submitted with each invoice.
4. The employees' actual hourly rates shown in this cost proposal are the rates that were effective on xx/xx/xx. Contract Manager's pre-approval is required for addition of staff not previously listed on the cost proposal. The billing rates for these employees, including those that fall under general classifications, will be calculated and reimbursed based on their actual hourly rates on xx/xx/xx. Hourly rates for new employees hired after the date of this cost proposal will not exceed (or shall be in line with) the rates of similar personnel listed on this cost proposal having similar experience.
5. Travel Time Charges: For Managers: On weekdays up to a maximum of 8 hours will be charged for work time, travel time or any combination of travel and work time. Billing Rate = Loaded Rate Formula "C" above. For Exempt staff: During regular work day, actual travel time not to exceed 8 hours in any one day or one way travel will be billed as follow: Billing rate for travel time = Loaded Rate Formula "C" above. All travel time, outside of the regular work day, will be billed without the application of overhead rate as follow: Billing Rate = (Actual Hourly Rate) (1+ Fee) + (Delta Base + Delta Fringe). For Non-Exempt Employees: During regular work day, actual travel time not to exceed 8 hours in any one day or one way travel will be billed at full normal overhead rate (i.e. without the application of the 1.5X or 2.0X multiplier for overtime as follow) 69 Gold Construction Services, LLC
Subcontractor
1/22/2024
100%
100%
50%
50%
100%
50%
50%
PW-XX-XX
81 Cost Proposal with Prevailing Wages
Specific Rate of Compensation for State/Federally Funded Projects Page __ of __
Consultant: Project No.:
Straight
1.5 OT
2.0 OT
Straight
1.5 OT
2.0 OT
Straight
1.5 OT
2.0 OT
Straight
1.5 OT
2.0 OT
Straight
1.5 OT
2.0 OT
Straight
1.5 OT
2.0 OT
Straight
1.5 OT
2.0 OT
Straight
1.5 OT
2.0 OT
Straight
OT (1.5x)
OT (2x)
Name/Classification
Prevailing Wage work - Exempt or Non-Exempt
Home or Field Office Personnel
Fringe Benefits
Total Base Salary +
Fringe Benefits
Employee Actual Rate
(fringe benefits vary
year over year)
Base Salary
Estimate Fringe
Total = Base +
Fringe
% Escalation Increase
Actual Hourly Rate and/or Average Hourly Rate
Hourly Range for Class
(Add pages as necessary)
DELTA (TOTAL) =
Employee Total Rate - DIR Rate
Applicable DELTA (TOTAL) =
Employee Total - DIR Total
DELTA (BASE) =
Employee Base - DIR Base
Applicable DELTA Base =
DIR Rate - Employee Base Rate
Applicable DELTA FRINGE =
DELTA TOTAL - DELTA BASE
(Employee - DIR)
Loaded Hourly Billing Rates
Effective Year of Hourly Rate
Prevailing Wage Rate
established by State DIR
(only applicable for
prevailing wage work)
Base Salary
70 Labor and Related Classifications
Group1
Labor and Related Classifications
Group1
Prevailing Wage
Prevailing Wage
Field
Field
7/1/2023 -
6/30/2024
7/1/2024 -
6/30/2025
7/1/2025 -
06/30/2026
$41.38
$62.07
$82.76
$27.01
$68.39
$89.08
$109.770
$44.68
$67.02
$89.36
$27.01
$71.69
$93.455
$97.93
$48.08
$72.12
$96.16
$27.01
$75.09
$97.93
$120.77
$3.30
$71.69
-
$68.39
$3.40
$75.09
82 Certification of Direct Costs:
I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost proposal(s) in this contract are actual, reasonable, allowable, and allocable to the contract in accordance with the contract terms and the following requirements:
1. Generally Accepted Accounting Principles (GAAP)
2. Terms and conditions of the contract
3. Title 23 United States Code Section 112 - Letting of Contracts
4. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures
5. 23 Code of Federal Regulations Part 172 - Procurement, Management, and Administration of Engineering and Design Related Service
6. 48 Code of Federal Regulations Part 9904 - Cost Accounting Standards Board (when applicable) All
costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements.
Costs that are noncompliant with the federal and state requirements are not eligible for reimbursement.
Prime Consultant or Subconsultant Certifying:
Name
: Title*:
Signature: Date of Certification:
Email: Phone Number:
Address:
* An individual executive or financial officer of the consultant's or subconsultant's organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract.
List of Services the consultant is providing under the proposed contract:
73 Thomas Robinson
President
1/22/2024
(818)960-4007
[email protected]
11557 Poema Place #102, Chatsworth, CA 91311
83 A2408.CON.GEOCON.DD
RFQ PW 24-01
EXHIBIT “C”
INSURANCE REQUIREMENTS
CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND GEOCON WEST , INC.
FOR ON -CALL PAVEMENT ENGINEERING AND
MATERIAL TESTING SERVICES, RFQ NO. PW 24-01
Insurance - Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees.
Minimum Scope and Limit of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/locat ion (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and 9 (non- owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. Consultant hereby certifies that it is aware of the provisions of Section 3700 et seq., of the Labor Code which require every employer to be insured against liability for Workers' Compensation.
4. Professional Liability (Errors and Omissions) Insurance appropriate to the Consultant’s profession, with limits no less than $2,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
5. If unmanned aerial systems (UAS)/drones will be used – Aviation Liability Insurance: On an “occurrence” basis, including products and completed operations, property damage, bodily injury with limits no less than $1,000,000 per occurrence, and $2,000,000 in the aggregate.
84 A2408.CON.GEOCON.DD
RFQ PW 24-01
If the Consultant maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Other Insurance Provisions - The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its Boards, Officers, Agents, Officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this project/contract, the Consultant’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its Boards, Officers, Agents, Officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its Boards, Officers, Agents, Officials, employees, and volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
Umbrella or Excess Policy
The Consultant may use Umbrella or Excess Policies to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non- contributory, additional insured, Self -Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Consultant’s primary and excess liability policies are exhausted.
Notice of Cancellation
Each insurance policy required above shall state that coverage shall not be canceled, except with notice to the City.
Waiver of Subrogation
Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Wo rkers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Consultant, its employees, agents and subcontractors.
Self-Insured Retentions
85 A2408.CON.GEOCON.DD
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Self-insured retentions must be declared to and approved by the City. The City may require the Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Claims Made Policies
If any of the required policies provide coverage on a claims-made basis:
1. The Retroactive Date must be shown, and this date must be before the execution date of the contract or the beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
3. If coverage is canceled or non- renewed, and not replaced with another claims - made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase extended reporting coverage for a minimum of five (5) years after completion of work.
Verification of Coverage
Consultant shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that the City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
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EXHIBIT “D”
FEDERAL REQUIREMENTS
CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND GEOCON WEST , INC.
FOR ON -CALL PAVEMENT ENGINEERING AND
MATERIAL TESTING SERVICES, RFQ NO. PW 24-01
ARTICLE IV PERFORMANCE PERIOD
A. This AGREEMENT shall go into effect on April 15, 2024, contingent upon approval by LOCAL AGENCY, and CONSULTANT shall commence work after notification to proceed by LOCAL AGENCY’S Contract Administrator. The AGREEMENT shall end on April 15, 2026, unless extended by AGREEMENT amendment.
B. CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on LOCAL AGENCY until the AGREEMENT is fully executed and approved by LOCAL AGENCY.
C. The period of performance for each specific project shall be in accordance with the Task Order for that project. If work on a Task Order is in progress on the expiration date of this AGREEMENT, the terms of the AGREEMENT shall be extended by AGREEMENT amendment prior to the expiration of the contract to cover the time needed to complete the task order in progress only. The maximum term shall not exceed five (5) years.
ARTICLE V ALLOWABLE COSTS AND PAYMENTS
A. CONSULTANT will be reimbursed for hours worked at the hourly rates specified in the CONSULTANT’s approved Cost Proposal. The specified hourly rates shall include direct salary costs, employee benefits, prevailing wages, employer payments, overhead, and fee. These rates are not adjustable for the performance period set forth in this AGREEMENT. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate.
B. In addition, CONSULTANT will be reimbursed for incurred (actual) direct costs other than salary costs that are in the approved Cost Proposal and identified in the approved Cost Proposal and in the executed Task Order.
C. Specific projects will be assigned to CONSULTANT through issuance of Task Orders.
D. After a project to be performed under this AGREEMENT is identified by LOCAL AGENCY, LOCAL AGENCY will prepare a draft Task Order; less the cost estimate.
A draft Task Order will identify the scope of services, expected results, project deliverables, period of performance, project schedule and will designate a LOCAL 87 A2408.CON.GEOCON.DD
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AGENCY Project Coordinator. The draft Task Order will be delivered to CONSULTANT for review. CONSULTANT shall return the draft Task Order within ten (10) calendar days along with a Cost Estimate, including a written estimate of the number of hours and hourly rates per staff person, any anticipated reimbursable expenses, overhead, fee if any, and total dollar amount. After agreement has been reached on the negotiable items and total cost; the finalized Task Order shall be signed by both LOCAL AGENCY and CONSULTANT.
E. Task Orders may be negotiated for a lump sum (Firm Fixed Price) or for specific rates of compensation, both of which must be based on the labor and other rates set forth in CONSULTANT’s approved Cost Proposal.
CONSULTANT shall be responsible for any future adjustments to prevailing wage rates including, but not limited to, base hourly rates and employer payments as determined by the Department of Industrial Relations. CONSULTANT is responsible for paying the appropriate rate, including escalations that take place during the term of the AGREEMENT.
F. Reimbursement for transportation and subsistence costs shall not exceed the rates as specified in the approved Cost Proposal. CONSULTANT will be responsible for transportation and subsistence costs in excess of State rates.
G. When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval in the form of an AGREEMENT amendment for a revised milestone cost estimate from the Contract Administrator before exceeding such estimate.
H. Progress payments for each Task Order will be made monthly in arrears based on services provided and actual costs incurred.
I. CONSULTANT shall not commence performance of work or services until this AGREEMENT has been approved by LOCAL AGENCY and notification to proceed has been issued by LOCAL AGENCY’S Contract Administrator. No payment will be made prior to approval or for any work performed prior to approval of this AGREEMENT.
J. A Task Order is of no force or effect until returned to LOCAL AGENCY and signed by an authorized representative of LOCAL AGENCY. No expenditures are authorized on a project and work shall not commence until a Task Order for that project has been executed by LOCAL AGENCY.
K. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate. Separate invoices itemizing all costs are required for all work performed under each Task Order.
Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing, or upon completion of the 88 A2408.CON.GEOCON.DD
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Task Order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number, project title and Task Order number. Credits due LOCAL AGENCY that include any equipment purchased under the provisions of Article XI Equipment Purchase, must be reimbursed by CONSULTANT prior to the expiration or termination of this AGREEMENT. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following address:
City of Simi Valley, Public Works Department
Attn.: Fuad Shamout, Principal Engineer
2929 Tapo Canyon Road
Simi Valley, CA 93063
L. The period of performance for Task Orders shall be in accordance with dates specified in the Task Order. No Task Order will be written which extends beyond the expiration date of this AGREEMENT.
M. The total amount payable by LOCAL AGENCY for an individual Task Order shall not exceed the amount agreed to in the Task Order, unless authorized by amendment.
N. I f CONSULTANT fails to satisfactorily complete a deliverable according to the schedule set forth in a Task Order, no payment will be made until the deliverable has been satisfactorily completed.
O. Task Orders may n ot be used to a mend the language (or the terms) of th is AGREEMENT nor to exceed the scope of work under this AGREEMENT.
P. The total amount payable by LOCAL AGENCY for all Task Orders resulting from this AGREEMENT shall not exceed $500,000. It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this AGREEMENT through Task Orders.
ARTICLE VI TERMINATION
A. This AGREEMENT may be terminated by LOCAL AGENCY, provided that LOCAL AGENCY gives not less than thirty (30) calendar days’ written notice (delivered by certified mail, return receipt requested) of intent to terminate. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
B. LOCAL AGENCY may temporarily suspend this AGREEMENT, at no additional cost to LOCAL AGENCY, provided that CONSULTANT is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If LOCAL AGENCY gives such notice of temporary suspension, CONSULTANT shall 89 A2408.CON.GEOCON.DD
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immediately suspend its activities under this AGREEMENT. A temporary suspension may be issued concurrent with the notice of termination.
C. Notwithstanding any provisions of this AGREEMENT, CONSULTANT shall not be relieved of liability to LOCAL AGENCY for damages sustained by City by virtue of any breach of this AGREEMENT by CONSULTANT, and City may withhold any payments due to CONSULTANT until such time as the exact amount of damages, if any, due City from CONSULTANT is determined.
D. In the event of termination, CONSULTANT shall be compensated as provided for in this AGREEMENT. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS
A. The CONSULTANT agrees that 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.
B. The CONSULTANT also agrees to comply with Federal procedures in accordance with 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
C. Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200 are subject to repayment by the CONSULTANT to LOCAL AGENCY.
D. When a CONSULTANT or Subconsultant is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
ARTICLE VIII RETENTION OF RECORD/AUDITS
For the purpose of determining compliance with Gov. Code § 8546.7, the CONSULTANT, Subconsultants, and LOCAL AGENCY shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the AGREEMENT including, but not limited to, the costs of administering the AGREEMENT. All parties, including the CONSULTANT’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the AGREEMENT period and for three (3) years from the date of final payment under the AGREEMENT. LOCAL AGENCY, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the 90 A2408.CON.GEOCON.DD
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CONSULTANT, Subconsultants, and the CONSULTANT’s Independent CPA, that are pertinent to the AGREEMENT for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
ARTICLE IX AUDIT REVIEW PROCEDURES
A. Any dispute concerning a question of fact arising under an interim or post audit of this AGREEMENT that is not disposed of by AGREEMENT, shall be reviewed by LOCAL AGENCY’S Chief Financial Officer.
B. Not later than thirty (30) calendar days after issuance of the final audit report, CONSULTANT may request a review by LOCAL AGENCY’S Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.
C. Neither the pendency of a dispute nor its consideration by LOCAL AGENCY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.
D. CONSULTANT and subconsultant AGREEMENTs, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an AGREEMENT audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the AGREEMENT, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, LOCAL AGENCY, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The AGREEMENT, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by LOCAL AGENCY Contract Administrator to conform to the audit or review recommendations.
CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the AGREEMENT by this reference if directed by LOCAL AGENCY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, LOCAL AGENCY or local governments have access to CPA work papers, will be considered a breach of AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
E. CONSULTANT’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI).
IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the CONSULTANT and approved by the LOCAL AGENCY Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the CONSULTANT to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a 91 A2408.CON.GEOCON.DD
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breach of the AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
1) During IOAI’s review of the ICR audit work papers created by the CONSULTANT’s independent CPA, IOAI will work with the CPA and/or CONSULTANT toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, LOCAL AGENCY will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines}is received and approved by IOAI.
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate.
b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty -five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.
2) If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require CONSULTANT to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.
3) If the CONSULTANT fails to comply with the provisions of this paragraph E, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this AGREEMENT.
4) CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this AGREEMENT 92 A2408.CON.GEOCON.DD
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has been completed to the satisfaction of LOCAL AGENCY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO LOCAL AGENCY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this AGREEMENT and all other agreements executed between LOCAL AGENCY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.
ARTICLE X SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual relation between the LOCAL AGENCY and any Subconsultants, and no subagreement shall relieve the CONSULTANT of its responsibilities and obligations hereunder. The CONSULTANT agrees to be as fully responsible to the LOCAL AGENCY for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the CONSULTANT. The CONSULTANT's obligation to pay its Subconsultants is an independent obligation from the LOCAL AGENCY's obligation to make payments to the CONSULTANT.
B. The CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the LOCAL AGENCY Contract Administrator, except that which is expressly identified in the CONSULTANT’s approved Cost Proposal.
C. Any subagreement entered into as a result of this AGREEMENT, shall contain all the provisions stipulated in this entire AGREEMENT to be applicable to Subconsultants unless otherwise noted.
D. CONSULTANT shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each payment made to the CONSULTANT by the LOCAL AGENCY.
E. Any substitution of Subconsultants must be approved in writing by the LOCAL AGENCY Contract Administrator in advance of assigning work to a substitute Subconsultant.
F. Prompt Progress Payment
CONSULTANT or subconsultant shall pay to any subconsultant, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed CONSULTANT on account of the work performed by the subconsultants, to the extent of each subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from CONSULTANT or subconsultant to a subconsultant, CONSULTANT or subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a 93 A2408.CON.GEOCON.DD
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cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non- DBE subconsultants.
G. Prompt Payment of Withheld Funds to Subconsultants
The LOCAL AGENCY may hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the LOCAL AGENCY, of the contract work, and pay retainage to CONSULTANT based on these acceptances.
No retainage will be held by the LOCAL AGENCY from progress payments due to CONSULTANT. CONSULTANTS and subconsultants are prohibited from holding retainage from subconsultants. Any delay or postponement of payment may take place only for good cause and with the LOCAL AGENCY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non-D BE subconsultants.
Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, ad ministrative, or judicial remedies otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subcontract performance, or noncompliance by a subconsultant.
ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES
A. Prior authorization in writing by LOCAL AGENCY’s Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order , or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.
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B. For purchase of any item, service, or consulting work not covered in CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by LOCAL AGENCY’s Contract Administrator, three competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified.
C. Any equipment purchased with funds provided under the terms of this AGREEMENT is subject to the following:
1) CONSULTANT shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an acquisition c ost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, LOCAL AGENCY shall receive a proper refund or credit at the conclusion of the AGREEMENT, or if the AGREEMENT is terminated, CONSULTANT may either keep the equipment and credit LOCAL AGENCY in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established LOCAL AGENCY procedures; and credit LOCAL AGENCY in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by LOCAL AGENCY and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by LOCAL AGENCY.
2) Regulation 2 CFR Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.
ARTICLE XII STATE PREVAILING WAGE RATES
A. No CONSULTANT or Subconsultant may be awarded an AGREEMENT containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this AGREEMENT, including any subsequent amendments.
B. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this AGREEMENT are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer ( https://dot.ca.gov/programs/construction/labor-compliance ). These wage
rates are made a specific part of this AGREEMENT by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site.
Prevailing wages will be applicable to all inspection work performed at LOCA L 95 A2408.CON.GEOCON.DD
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AGENCY construction sites, at LOCAL AGENCY facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve LOCAL AGENCY projects. Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.
C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations website at http://www.dir.ca.gov .
D. Payroll Records
1) Each CONSULTANT and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the CONSULTANT or Subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct.
b. The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.
2) The payroll records enumerated under paragraph (1) above shall be certified as correct by the CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by LOCAL AGENCY representatives at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows:
a. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request.
b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of LOCAL AGENCY , the Division of Labor Standar ds Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
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c. The public shall not be given access to certified payroll records by the CONSULTANT. The CONSULTANT is required to forward any requests for certified payrolls to the LOCAL AGENCY Contract Administrator by both email and regular mail on the business day following receipt of the request.
3) Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.
4) Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by LOCAL AGENCY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.
5) The CONSULTANT shall inform LOCAL AGENCY of the location of the records enumerated under paragraph (1) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.
6) The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (1) above. In the event the CONSULTANT or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to LOCAL AGENCY, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Such penalties shall be withheld by LOCAL AGENCY from payments then due. CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.
E. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the LOCAL AGENCY Contract Administrator.
F. Penalty
1) The CONSULTANT and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the CONSULTANT and any Subconsultant shall forfeit to the LOCAL AGENCY a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any 97 A2408.CON.GEOCON.DD
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public work done under the AGREEMENT by the CONSULTANT or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
2) The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the CONSULTANT or Subconsultant to pay the correct rates of prevailing wages.
A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under the Labor Code. The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.
3) In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the CONSULTANT or Subconsultant.
4) If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the prime CONSULTANT of the project is not liable for the penalties described above unless the prime CONSULTANT had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the prime CONSULTANT fails to comply with all of the following requirements:
a. The AGREEMENT executed between the CONSULTANT and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815.
b. The CONSULTANT shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certified payroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the CONSULTANT shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining sufficient funds due the Subconsultant for work performed on the public works project.
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d. Prior to making final payment to the Subconsultant for work performed on the public works project, the CONSULTANT shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813.
5) Pursuant to Labor Code §1775, LOCAL AGENCY shall notify the CONSULTANT on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.
6) If LOCAL AGENCY determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if LOCAL AGENCY did not retain sufficient money under the AGREEMENT to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the CONSULTANT shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by LOCAL AGENCY.
G. Hours of Labor
1) Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to the LOCAL AGENCY, twenty-five dollars ($25) for each worker employed in the execution of the AGREEMENT by the CONSULT ANT or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one and one- half (1.5) times the basic rate of pay, as provided in §1815.
H. Employment of Apprentices
1) Where either the prime AGREEMENT or the subagreement exceeds thirty thousand dollars ($30,000), the CONSULTANT and any subconsultants under him or her shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.
2) CONSULTANTs and subconsultants are required to comply with all Labor Code requirements regarding the employment of apprentices, including mandatory ratios of journey level to apprentice workers. Prior to commencement of work, CONSULTANT and subconsultants are advised to 99 A2408.CON.GEOCON.DD
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contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey-to- apprentice ratios for the AGREEMENT work. The CONSULTANT is responsible for all subconsultants’ compliance with these requirements. Penalties are specified in Labor Code §1777.7.
ARTICLE XIII CONFLICT OF INTEREST
A. During the term of this AGREEMENT, the CONSULTANT shall disclose any financial, business, or other relationship with LOCAL AGENCY that may have an impact upon the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project. The CONSULTANT sh all also list current clients who may have a financial interest in the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project which will follow.
B. CONSULTANT certifies that it has disclosed to LOCAL AGENCY any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this AGREEMENT. CONSULTANT agrees to advise LOCAL AGENCY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of ex ecution of this AGREEMENT. CONSULTANT further agrees to complete any statements of economic interest if required by either LOCAL AGENCY ordinance or State law.
C. The CONSULTANT hereby certifies that it does not now have nor shall it acquire any financial o r business interest that would conflict with the performance of services under this AGREEMENT.
D. The CONSULTANT hereby certifies that the CONSULTANT or subconsultant and any firm affiliated with the CONSULTANT or subconsultant that bids on any construction contract or on any Agreement to provide construction inspection for any construction project resulting from this AGREEMENT, has established necessary controls to ensure a conflict of interest does not exist. An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.
ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION
The CONSULTANT warrants that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any LOCAL AGENCY employee. For breach or violation of this warranty, LOCAL AGENCY shall have the right, in its discretion, to terminate this AGREEMENT without liability, to pay only for the value of the work actually performed, or to deduct from this AGREEMENT price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
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ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR
FEDERAL FUNDS FOR LOBBYING
A. The CONSULTANT certifies, to the best of his or her knowledge and belief, that:
1) No State, Federal, or LOCAL AGENCY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this AGREEMENT, or with the extension, continuation, renewal, amendment, or modification of this AGREEMENT.
2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form- LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352.
Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.
C. The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subagreements, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.
ARTICLE XVI NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE
A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.
B. During the performance of this AGREEMENT, CONSULTANT and its subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or 101
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applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. CONSULTANT and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.
C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by LOCAL AGENCY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100- 8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.
D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or LOCAL AGENCY shall require to ascertain compliance with this clause.
E. CONSULTANT and its subconsultant s shall give written notice of their obligations under this clause to labor organizations with which they have a collective barg aining or other Agreement.
F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.
G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
H. The CONSULTANT shall comply with regulations relative to non- discrimination in federally-assisted programs of the U.S. Department of Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specif ically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
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I. CONSULTANT, subrecipient or subconsultant will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the LOCAL AGENCY components of the DBE Program Plan, CONSULTANT, subrecipient or subconsultant will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.
ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION
A. The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:
1) Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;
2) Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;
3) Does not have a proposed debarment pending; and
4) Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.
B. Any exceptions to this certification must be disclosed to LOCAL AGENCY. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.
C. Exceptions to the Federal Government Excluded Parties List System maintained by the U.S. General Services Administration are to be determined by FHWA.
ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE)
PARTICIPATION
A. CONSULTANT, subrecipient (LOCAL AGENCY), or subconsultant shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contract (49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR 26.5, The LOCAL AGENCY shows a contract goal for DBEs. CONSULTANT shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers.
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CONSULTANT shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate good faith efforts to meet this goal. It is CONSULTANT’s responsibility to verify that the DBE firm is certified as DBE at date of proposal opening and document the record by printing out the California Unified Certification Program (CUCP) data for each DBE firm. A list of DBEs certified by the CUCP can be found at https://dot.ca.gov/programs/civil-rights/dbe-search.
All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies CONSULTANT purchases from DBEs counts towards the goal in the following manner:
1) 100 percent counts if the materials or supplies are obtained from a DBE manufacturer.
2) 60 percent counts if the materials or supplies are purchased from a DBE regular dealer.
3) Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49CFR26.55 defines "manufacturer" and "regular dealer."
This AGREEMENT is subject to 49 CFR Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. CONSULTANTs who enter into a federally-funded agreement will assist the LOCAL AGENCY in a good faith effort to achieve California's statewide overall DBE goal.
B. The goal for DBE participation for this AGREEMENT is 12%. Participation by DBE CONSULTANT or subconsultants shall be in accordance with information contained in Exhibit 10- O2: Consultant Contract DBE Commitment
attached hereto and
incorporated as part of the AGREEMENT. If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15- H: DBE Information – Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal. 104
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D. Contract Assurance
Under 49 CFR 26.13(b):
CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.
Failure by the CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
a. Withholding monthly progress payments;
b. Assessing sanctions;
c. Liquidated damages; and/or
d. Disqualifying CONSULTANT from future proposing as non-responsible
E. Termination and Replacement of DBE Subconsultants
CONSULTANT shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless CONSULTANT or DBE subconsultant obtains the LOCAL AGENCY’s written consent. CONSULTANT shall not terminate or replace a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the LOCAL AGENCY.
Unless the LOCAL AGENCY’s consent is provided, the CONSULTANT shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-02: Consultant Contract DBE Commitment form.
Termination of DBE Subconsultants
After execution of the AGREEMENT, termination of a DBE may be allowed for the following, but not limited to, justifiable reasons with prior written authorization from the LOCAL AGENCY:
1) Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.
2) The LOCAL AGENCY stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the LOCAL AGENCY’s bond requirements.
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3) Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.
4) Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5) Listed DBE's work is unsatisfactory and not in compliance with the contract.
6) Listed DBE is ineligible to work on the project because of suspension or debarment.
7) Listed DBE becomes bankrupt or insolvent or exhibits credit unworthiness.
8) Listed DBE voluntarily withdraws with written notice from the Contract.
9) Listed DBE is ineligible to receive credit for the type of work required.
10) Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.
11) The LOCAL AGENCY determines other documented good cause.
CONSULTANT must use the following procedures to request the termination of a DBE or portion of a DBE’s work:
• Send a written notice to the DBE of the CONSULTANT’s intent to use other forces or material sources and include one or more justifiable reasons l isted above. Simultaneously send a copy of this written notice to the LOCAL AGENCY. The written notice to the DBE must request they provide any response within five (5) business days to both the CONSULTANT and the LOCAL AGENCY by either acknowledging their agreement or documenting their reasoning as to why the use of other forces or sources of materials should not occur.
• If the DBE does not respond within five (5) business days, CONSULTANT may move forward with the request as if the DBE had agreed to CONSU LTANT’s written notice.
• Submit CONSULTANT’s DBE termination request by written letter to the LOCAL AGENCY and include:
• One or more above listed justifiable reasons along with supporting documentation.
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• CONSULTANT’s written notice to the DBE regarding the request, including proof of transmission and tracking documentation of CONSULTANT’s written notice.
• The DBE's response to CONSULTANT’s written notice, if received. If a written response was not provided, provide a statement to that effect.
The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE termination request within five (5) business days.
Replacement of DBE Subconsultants
After receiving the LOCAL AGENCY’s written authorization of DBE termination request, CONSULTANT must obta in the LOCAL AGENCY’s written agreement for DBE replacement. CONSULTANT must find or demonstrate GFEs to find qualified DBE replacement firms to perform the work to the extent needed to meet the DBE commitment.
The following procedures shall be followed to request authorization to replace a DBE firm:
1) Submit a request to replace a DBE with other forces or material sources in writing to the LOCAL AGENCY which must include:
• Description of remaining uncommitted work item made available for replacement DBE solicitation and participation.
• The proposed DBE replacement firm's business information, the work they have agreed to perform, and the following:
• Description of scope of work and cost proposal
• Proposed subcontract agreement and written confirmation of agreement to perform on the Contract
• Revised Exhibit 10-O2: Consultant Contract DBE Commitment
2) If CONSULTANT has not identified a DBE replacement firm, submits documentation of CONSULTANT’s GFEs to use DBE replacement firms within seven (7) days of LOCAL AGENCY's authorization to terminate the DBE.
CONSULTANT may request the LOCAL AGENCY's approval to extend this submittal period to a total of 14 days. Submit documentation of actions taken to find a DBE replacement firm, such as:
• Search results of certified DBEs available to perform the original DBE work identified and or other work CONSULTANT had intended to self - perform, to the extent needed to meet DBE commitment
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• Solicitations of DBEs for performance of work identified
• Correspondence with interested DBEs that may have included contract details and requirements
• Negotiation efforts with DBEs that reflect why an agreement was not reached
• If a DBE's quote was rejected, provide reasoning for the rejection, such as why the DBE was unqualified for the work, or why the price quote was unreasonable or excessive
• Copies of each DBE's and non- DBE's price quotes for work identified, as the LOCAL AGENCY may contact the firms to verify solicitation efforts and determine if the DBE quotes are substantially higher
• A dditional documentation that supports CONSULTANT’s GFE
The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE replacement request within five (5) business days.
F. Commitment and Utilization
The LOCAL AGENCY’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization.
The LOCAL AGENCY shall request CONSULTANT to:
1) Notify the LOCAL AGENCY’s contract administrator or designated representative of any changes to its anticipated DBE participation.
2) Provide this notification before starting the affected work.
3) Maintain records including:
a. Name and business address of each 1st-tier subconsultant.
b. Name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier.
c. Date of payment and total amount paid to each business (see Exhibit 9- F Monthly Disadvantaged Business Enterprise Payment)
If CONSULTANT is a DBE CONSULTANT, they shall include the date of work performed by their own forces and the corresponding value of the work.
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If a DBE is decertified before completing its work, the DBE must notify CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify CONSULTANT in writing of the certification date. CONSULTANT shall submit the notifications to the LOCAL AGENCY. On work completion, CONSULTANT shall complete a Disadvantaged Business Enterprises (DBE) Certification Status Change, Exhibit 17- O, form and submit the form to the LOCAL AGENCY within 30 days of contract acceptance.
Upon work completion, CONSULTANT shall complete Exhibit 17- F Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First -Tier Subcontractors and submit it to the LOCAL AGENCY within 90 days of contract acceptance. The LOCAL AGENCY will withhold $10,000 until the form is submitted. The LOCAL AGENCY will release the withhold upon submission of the completed form.
In the LOCAL AGENCY’s reports of DBE participation to Caltrans, the LOCAL AGENCY must display both commitments and attainments.
G. Commercially Useful Function
DBEs must perform a commercially useful function (CUF) under 49 CFR 26.55 when performing work or supplying materials listed on the DBE Commitment form. The DBE value of work will only count toward the DBE commitment if the DBE performs a CUF.
A DBE performs a CUF when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself.
CONSULTANT must perform CUF evaluation for each DBE working on a federal -aid contract, with or without a DBE goal. Perform a CUF evaluation at the beginning of the DBE’s work and continue to monitor the performance of CUF for the duration of the project.
CONSULTANT must provide writte n notification to the LOCAL AGENCY at least 15 days in advance of each DBE's initial performance of work or supplying materials for the Contract. The notification must include the DBE's name, work the DBE will perform on the contract, and the location, date, and time of where their work will take place.
Within 10 days of a DBE initially performing work or supplying materials on the Contract, CONSULTANT shall submit to the LPA the initial evaluation and validation of DBE performance of a CUF using the LAPM 9- J: Disadvantaged Business Enterprise Commercially Useful Function Evaluation. Include the following information with the submittal:
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• Subcontract agreement with the DBE
• Purchase orders
• Bills of lading
• Invoices
• Proof of payment
CONSULTANT must monitor all DBE’s performance of CUF by conducting quarterly evaluations and validations throughout their duration of work on the Contract using the LAPM 9-J: DBE Commercially Useful Function Evaluation. CONSULTANT must submit to the LOCAL AGENCY these quarterly evaluations and validations by the 5th of the month for the previous three months of work.
CONSULTANT must notify the LOCAL AGENCY immediately if they believe the DBE may not be performing a CUF.
The LOCAL AGENCY will verify DBEs performance of CUF by reviewing the initial and quarterly submissions of LAPM 9- J: DBE Commercially Useful Function Evaluation, submitted supporting information, field observations, and through any additional LOCAL AGENCY evaluations. The LOCAL AGENCY must evaluate DBEs and their CUF performance throughout the duration of a Contract. The LOCAL AGENCY will provide written notice to the CONSULTANT and the DBE at least two (2) business days prior to any evaluation. The CONSULTANT and the DBE must participate in the evaluation. Upon completing the evaluation, the LOCAL AGENCY must share the evaluation results with the CONSULTANT and the DBE. An evaluation could include items that must be remedied upon receipt. If the LOCAL AGENCY determines the DBE is not performing a CUF, the CONSULTANT must suspend performance of the noncompliant work.
CONSULTANT and DBEs must submit any additional CUF related records and documents within five (5) business days of LOCAL AGENCY’s request such as:
• Proof of ownership or lease and rental agreements for equipment
• Tax records
• Employee rosters
• Certified payroll records
• Inventory rosters
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Failure to submit required DBE Commercially Useful Function Evaluation forms or requested records and documents can result in withholding of payment for the value of work completed by the DBE.
If CONSULTANT and/or the LOCAL AGENCY determine that a listed DBE is not performing a CUF in performance of their DBE committed work, CONSULTANT must immediately suspend performance of the noncompliant portion of the work. LOCAL AGENCY may deny payment for the noncompliant portion of the work. LOCAL AGENCY will ask the CONSULTANT to submit a corrective action plan (CAP) to the LOCAL AGENCY within five (5) days of the noncompliant CUF determination. The CAP must identify how the CONSULTANT will correct the noncompliance findings for the remaining portion of the DBE's work. LOCAL AGENCY has five (5) days to review the CAP in conjunction with the CONSULTANT’s review. The CONSULTANT must implement the CAP within five (5) days of the LOCAL AGENCY's approval. The LOCAL AGENCY will then authorize the prior noncompliant portion of work for the DBE's committed work.
If corrective actions cannot be accomplished to ensure the DBE performs a commercially useful function on the Contract, CONSULTANT may have good cause to request termination of the DBE.
H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
J. CONSULTANT shall maintain records of materials purchased or supplied fr om all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
K. If a DBE subconsultant is decertified during the life of the AGREEMENT, t he decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the AGREEMENT, the subconsultant shall notify CONSULTANT in writing with the date 111
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of certificat ion. Any changes should be reported to LOCAL AGENCY’s Contract Administrator within thirty (30) calendar days.
L. For projects awarded on or after March 1, 2020, but before September 1, 2023: after submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consultant must complete and email Exhibit 9-F: Disadvantaged Business Enterprise Running Tally of Payments to [email protected] with a copy to local administering agencies.
For projects awarded on or after September 1, 2023: Exhibit 9-F is no longer required.
Instead, by the 15th of the month following the month of any payment(s), the CONSULTANT must now submit Exhibit 9- P to the LOCAL AGENCY administering the contract. If the CONSULTANT does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
M. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.
ARTICLE XXXII TITLE VI ASSURANCES
APPENDIX A
During the performance of this Agreement, the contractor, for itself, its assignees and successors in interest (hereinafter collectively referred to as CONSULTANT) agrees as follows:
a. Compliance with Regulations : CONSULTANT shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement.
b. Nondiscrimination: CONSULTANT, with regard to the work performed by it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub- applicants, including procurements of materials and leases of equipment.
CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations.
c. Solicitations for Sub- agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONSULTANT for work to be performed under a Sub- agreement, including 112
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procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by CONSULTANT of the CONSULTANT’S obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin.
d. Information and Reports: CONSULTANT shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA to be pertinent to ascertain compliance with such Regulations or directives. Where any information required of CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, CONSULTANT shall so certify to the recipient or FHWA as appropriate, and shall set forth what efforts CONSULTANT has made to obtain the information.
e. Sanctions for Noncompliance: In the event of CONSULTANT’s noncompliance with the nondiscrimination provisions of this agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
i. withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or
ii. cancellation, termination or suspension of the Agreement, in whole or in part.
f. Incorporation of Provisions: CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub- agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.
CONSULTANT shall take such action with respect to any sub-agreement or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, CONSULTANT may request the recipient enter into such litigation to protect the interests of the State, and, in addition, CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States.
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APPENDIX E
During the performance of this contract, the CONSULTANT, for itself, its assignees, and successors in interest (hereinafter referred to as the “CONSULTANT”) agrees to comply with the following nondiscrimination statutes and authorities, including, but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects);
• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex; • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age);
• Airport and Ai rway 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 applica bility of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration’s Non- discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination 114
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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 V I, 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).
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CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND RMA GROUP FOR ON-
CALL PAVEMENT ENGINEERING AND MATERIAL
TESTING SERVICES, RFQ NO. PW 24-01
THIS CONTRACT is made and entered into in the City of Simi Valley on this 1 5
th day of April , 2024, by and between the CITY OF SIMI VALLEY, a municipal corporation, hereinafter referred to as CITY, and RMA GROUP, a California Corporation, hereinafter referred to as CONSULTANT, each a “Party” and collectively “Parties”
RECITALS
WHEREAS, on December 20, 2023, CITY requested proposals for the On-Call Pavement Engineering and Material Testing Services, RFQ NO. PW 24-01; and
WHEREAS, pursuant to such request, CONSULTANT submitted a proposal, which was accepted by CITY for the services.
NOW, THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the Parties hereto agree as follows:
AGREEMENT
1. Recitals. The foregoing recitals are true and correct and are a part of this CONTRACT.
2. Term. The term of this CONTRACT shall be from the date this CONTRACT is made and entered, as first written above through a two year term. This CONTRACT may be extended for one additional one- year term, upon mutual written consent of the CITY and CONSULTANT. Pricing shall remain firm during the entire term of the contract. In the event a price increase is negotiated at the time o f an extension period, the increase rate shall not exceed the Consumer Price Index (CPI) rate for Los Angeles -Riverside-Orange County area for the previous 12- month period (March to March). It is understood that the CONSULTANT’S work under the Work Orders issued may not be completed within the term of this CONTRACT; however, all terms and conditions of the CONTRACT including all rights and obligations, shall survive until the work is completed, except the CITY’S right to issue, and the CONSULTANT’S right to accept, additional Purchase Orders. Either Party may terminate this CONTRACT at any time prior to the expiration date by giving thirty (30) days advance written notice thereof to the other party.
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3. Description of Services . The services to be performed by CONSULTANT are as follows:
(On-call Pavement Engineering and Material Testing Services). CONSULTANT agrees to perform the services more specifically set forth in the “Scope of Work” attached hereto and incorporated herein as Exhibit “A”. CONSULTANT will meet with CITY at least monthly to discuss the anticipated tasks planned for the month and to receive direction from CITY regarding same.
4. Compensation and Payment
.
A. The total compensation payable to CONSULTANT by CITY for services under this CONTRACT shall not exceed the sum of $300,000.00 (the “Not- To-Exceed Amount”), and shall be earned as the work progresses. Payment will be made based on the rates contained in the “Schedule of Fees” as set forth in Exhibit “B” attached hereto and incorporated herein. CONSULTANT acknowledges that CONSULTANT is not guaranteed to receive the Not -To-Exceed Amount or any particular or minimum amount of compensation or work under this CONTRACT.
B. After CONSULTANT has performed the services as specified in this CONTRACT, CITY shall be obligated to pay CONSULTANT based upon the actual CITY-authorized services received by CITY at the rates established as a part of this CONTRACT. In no event shall the total amount paid exceed the CONTRACT Not-to-Exceed Amount unless otherwise agreed to by the Parties in writing.
C. Payments to the CONSULTANT shall be made within 30 days after receipt of an original invoice from the CONSULTANT and acceptance of the services by CITY.
D. CONSULTANT shall provide CITY with written verification of the actual compensation earned, which written verification will be in a form satisfactory to CITY. Invoices shall include the work performed including a list of hours worked by personnel.
5. CONSULTANT’s Representations and Obligations
.
A. CONSULTANT shall perform as required by this CONTRACT.
CONSULTANT also warrants on behalf of itself and all subcontractors engaged for the performance of this CONTRACT that only persons authorized to work in the United States pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the work hereunder.
B. CONSULTANT shall obey all Federal, State, local, and special district laws, ordinances, and regulations.
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C. CONSULTANT agrees to abide by CITY’s Business Tax
Ordinance, of which proof of payment must be obtained prior to performance of this CONTRACT.
D. CONSULTANT acknowledges CITY may contract with other Parties for the performance of services or supplemental services as they relate to the work during the term of this CONTRACT.
E. The CONSULTANT shall keep a tally of the cost for the work ordered by CITY. The CONSULTANT shall not accept work orders from the CITY if the cost for the work will exceed the amount indicated above unless otherwise agreed to by the Parties in writing.
F. To the extent required by law, CONSULTANT agrees to abide by the following provisions pertaining to Prevailing Wages and Federally Funded Projects;
i. CONSULTANTS and all Subcontractors subject to prevailing wage requirements, must be registered and remain registered with DIR (Department Industrial Relations) through the term of the CONTRACT in accordance with the California Labor Code (“Labor Code”), in particular Labor Code Section 1771.1, and any successor or replacement provision thereto, unless a small project exemption applies ($25,000 for public works or $15,000 for maintenance). CONSULTANT further agrees that it will follow all requirements and obligations set forth in Labor Code Section 1776.
ii. Pursuant to the provisions of the California Labor Code the California Department of Industrial Relations has ascertained the general prevailing rate of per diem wages and the general prevailing rate for legal holiday and overtime work in the locality in which this work is to be performed for each craft, classification or type of worker needed to execute the CONTRACT. Such wage scale is set forth at length in a Schedule of Prevailing Rates of Wages that is on file at the California Department of Industrial Relations and is available at www.dir.ca.gov /DLSR/PWD/index.htm . The
published prevailing rates that the CONSULTANT shall pay are hereby incorporated in and made a part of this CONTRACT.
iii. CONSULTANT shall assist in locating, qualifying, hiring, and increasing the skills of minority group employees and applicants for employment, as set forth in Executive Orders 11246 and 11375.
iv. The CONSULTANT shall comply with Labor Code Section 1773.2 and a copy of the general wage rate list shall be posted at each job site.
CONSULTANT shall indemnify, d efend, and hold CITY harmless from any claim that prevailing wages should have been paid pursuant to this CONTRACT, including federal prevailing wage requirements under the Davis-Bacon Act, if applicable and shall be liable for the payment of same and any penalties thereon.
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v. For Federally funded projects the current Federal General Wage Determinations shall apply as predetermined by the Secretary of Labor. If there is a difference in the Federal minimum wage rates and the California Department of Industrial Relations for similar classifications of labor, the CONSULTANT and its subcontractors shall pay not less than the higher wage rate. The wage rate for any classification not listed by the Federal Department of Labor or the California Department of Industrial Relations, but which may be required to execute the CONTRACT, shall be in accord with specified rates for similar or comparable classifications or for those performing similar or comparable duties, within the agencies determinations.
6. Audit.
A. At any time during normal business hours and as often as the CITY may deem necessary, CONSULTANT shall make available to CITY for inspection its records pertaining to this CONTRACT. CONSULTANT shall permit CITY to audit, examine and/or reproduce such records. CONSULTANT will retain such financial records, time sheets, work progress reports, invoices, bills and project records for at least two (2) years after termination or final payment under this CONTRACT. This paragraph shall survive for two (2) years after termination of this CONTRACT.
B. CITY shall have the option of inspecting and/or auditing all records and other written materials used by CONSULTANT in preparing its statements to CITY as a condition precedent to any payment to CONSULTANT.
7. Hold Harmless and Indemnification . To the fullest extent permitted by law (including, without limitation, California Civil Code Sections 2782 and 2782.8), CONSULTANT shall defend, and provide legal defense with attorney(s) acceptable to CITY, indemnify, and hold harmless the CITY, its agents, officials, officers, representatives, and employees, (collectively “Indemnitees”) from and against all claims, lawsuits, liabilities or damages (including, without limitation, injury to or death of an employee of CONSULTA NT or its sub -consultant), expense and liability of every kind, nature and description (including, without limitation incidental and consequential damages, court costs, attorney’s fees, litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of litigation) that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT, any sub- consultant, anyone directly or indirectly employed by them, or anyone that they control.
To the extent there is an obligation to indemnify under this Section of this CONTRACT; CONSULTANT shall be responsible for incidental and consequential damages resulting from CONSULTANT’S negligence, recklessness, or willful misconduct. The provisions of this Section survive completion of the services or the termination of this CONTRACT.
The provisions of this Section are not limited by the provisions of this CONTRACT relating to insurance. The CONSULTANT shall thoroughly investigate any and all claims subject to the provisions of this Section, and indemnify the CITY and do whatever is necessary to protect any and all Indemnitees.
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8. Amendments. Any amendment, modification, or variation from the provisions of this CONTRACT shall be in writing and shall be effective only upon mutual written approval by the CITY and CONSULTANT.
9. Anti-Discrimination. In the performance of the terms of this CONTRACT, CONSULTANT shall not engage in, nor permit subcontractors to engage in, discrimination in e mployment of persons because of the age, race, color, religious creed, sex, sexual orientation, national origin, ancestry, physical disability, mental disability, medical condition, or marital status of such persons. Violation of this provision may result in the imposition of penalties referred to in Labor Code Section 1735.
10. Personal Services. This Agreement is for professional services, which are personal to CITY. Johnny Rodriguez is deemed to be specially experienced and is a key member of CONSULTANT’S firm, and shall be directly involved in performing, supervising, or assisting in the performance of this work. This key person shall communicate with, and periodically report to, CITY on the progress of the work.
Should any such individual be removed from assisting in this contracted work for any reason, CITY may terminate this CONTRACT.
11. Termination. If, during the term of this CONTRACT, CITY determines that CONSULTANT is not faithfully abiding by any term or condition contained herein, CITY may notify CONSULTANT in writing of such defect or failure to perform. The notice must give to the CONSULTANT a ten (10) day period of time thereafter in which to perform the work or cure the deficiency. If CONSULTANT has not performed the work or cured the deficiency within the ten (10) days specified in the notice, such failure shall constitute a breach of this CONTRACT, and CITY may terminate this CONTRACT immediately by written notice to CONSULTANT. In addition, CITY, if it terminates this CONTRACT for cause, may withhold as an offset from payments due CONSULTANT damages occasioned by such breach, including liquidated damages, if so provided herein. The CITY shall be liable to the CONSULTANT only for those fees accrued by the CONSULTANT to the date CONSULTANT receives the notice of termination. In no event, however, shall CONSULTANT be entitled to receive in excess of the CONTRACT amount.
12. Delivery of Reports in Cases of Termination. If this CONTRACT is terminated pursuant to any of the provisions contained hereinabove, and if requested to do so in writing by the CITY, the CONSULTANT shall, within fourteen (14) calendar days after receipt of such written request, deliver and turn over to the CITY all of its preparation and work on the project which were done to the date of the receipt of the notice of termination. The terms "preparation" and "work" as used in this paragraph, shall refer to and include all data and materials of whatever type that have been gathered by the CONSULTANT, and contemplated to be used or actually used, in the provision of the services as specified in this CONTRACT.
120
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13. Complete CONTRACT . This CONTRACT and its accompanying exhibits shall constitute the complete CONTRACT between the Parties hereto. No verbal agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such verbal agreement, understanding, or representation be binding upon the Parties hereto.
14. Independent Contractor. It is expressly understood between the Parties to this CONTRACT that no employee/employer relationship is intended .
CONSULTANT is not an agent or employee of the CITY and it is not entitled to participate in any pension plan, insurance or other ben efits CITY provides for its employees.
CONSULTANT is an independent contractor in performing the Services required under this CONTRACT and will have control of all work and the manner in which it is performed.
Any provision of this CONTRACT that may appear to give CITY the right to direct CONSULTANT as to the details of doing the work required herein or to exercise a measure of control over the work means that the CONSULTANT will follow the direction of the CITY as to the results of the work only.
15. Time of Performance. Time is of the essence in this CONTRACT.
16. Insurance. CONSULTANT shall, at CONSULTANT’S sole cost and expense, provide insurance as contained in Exhibit “C”, incorporated herein.
CONSULTANT shall not commence work on the Services to be performed, until it submits proof of all insurance coverage as required.
17. Ownership of Reports and Data . The originals of all studies, reports, exhibits, documents, data and other work or materials prepared for, or used to comply with any term of this CONTRACT, plus any copies of same required by this CONTRACT to be furnished to the CITY by any of the other party(ies) with whom the CONSULTANT may have contract(s) pertaining to this project, shal l be deemed to be public records open to inspection by the public and, as such, to be and remain the property of the CITY.
18. Conflict of Interest. Neither CONSULTANT nor any employees, agents, or subcontractors of CONSULTANT who will be assigned to this project, to the best of CONSULTANT'S knowledge, own any property or interest in properties, business relationships, or sources of income which may be affected by the performance of this CONTRACT. Should one Party hereto learn of any such interest, inc ome source, or business relationship, such fact shall immediately be brought to the attention of the other Party hereto. If the Parties thereupon cannot mutually agree upon a means to eliminate the conflict, CITY may terminate the CONTRACT immediately for non-performance pursuant to Section 11 herein. In accordance with California Government Code Section 87306, CONSULTANT shall provide, if requested by CITY, a Conflict of Interest Statement, Form 700 no later than 30 days after execution of this CONTRACT, and annually thereafter prior to April 1st of each year for the duration of the CONTRACT.
Failure to file any of the required statements will result in withholding payment for services rendered.
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19. Successors and Assigns. The terms hereof shall be binding upon and inure to the benefit of the successors and assigns of the Parties hereto; provided, however, that no Party hereto shall assign any of the benefits and burdens hereunder, whether voluntarily or by operation of law, without the prior written consent of the other party, and any such assignment without said consent shall be void.
20. Authority to Execute CONTRACT. Both CITY and CONSULTANT do covenant that each individual executing this CONTRACT on behalf of each Party is a person duly authorized and empowered to execute contracts for such party.
21. Jurisdiction and Venue . Jurisdiction is in an appropriate court in the State of California and venue lies in Ventura County, and the Parties do not consent to arbitration. In the event of any dispute, each Party shall bear its own fees and costs (including attorneys’ fees). This CONTRACT shall be governed by California law, without regard to conflict of law principles.
22. Non-Appropriation of Funds . Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of CITY. In the event CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this CONTRACT shall cover only those costs incurred up to the conclusion of the current fiscal year.
23. Taxpayer Identification Number . CONSULTANT shall provide CITY with a complete Request for Taxpayer Identification Number and Certification, form W-9 (latest revision), as issued by the Internal Revenue Service.
24. Permits and Licenses. CONSULTANT, at its sole cost and expense, shall obtain and maintain during the term of this CONTRACT, all appropriate permits, licenses, and certificates that may be required in connection with the performance of this CONTRACT.
25. Waivers. The waiver by one Party of any term or condition of this CONTRACT, or any breach thereof, shall not be construed to be a general waiver by the Party or as a waiver of any other term or breach.
26. Statement of Experience. CONSULTANT warrants that it will perform its Services with at least the due care, diligence and expertise generally accepted in its industry. CONSULTANT also understands and agrees that it is being employed to perform the Services provided for by this CONTRACT because of CONSULTANT’S professed expertise and experience in performing such Services. In addition, CONSULTANT understands and agrees that while CITY or CITY’S officers, employees, agents or volunteers may elect to do so, they have no duty to review, inspect, monitor, or supervise the work performed by CONSULTANT pursuant to this CONTRACT. As a consequence, CONSULTANT waives any right of contribution against CITY or any of CITY’S officers, employees, agents, or volunteers arising out of such failure to inspect, 122
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review, monitor, or supervise the work performed by CONSULTANT pursuant to this CONTRACT.
27. Notices. All written notices required by, or related to this CONTRACT shall be sent by Certified Mail, Return Receipt Requested, postage prepaid and addressed as listed below. Neither Party to this CONTRACT shall refuse to accept such mail; the Parties to this CONTRACT shall promptly inform the other Party of any change of address. All notices required by this CONTRACT are effective on the day of receipt, unless otherwise indicated herein. The mailing address of each Party to this CONTRACT is as follows:
CITY Department of Public Works
City of Simi Valley
2929 Tapo Canyon Road
Simi Valley, CA 93063
Staff Contact: Fuad Shamout
Principal Engineer/Capital Projects
(805) 583-6788
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CONSULTANT RMA Group
12130 Santa Margarita Court
Rancho Cucamonga, CA 91730
Staff Contract: Johnny Rodriguez, Project Manager
( 909) 989-1751
IN WITNESS WHE REOF, the Parties hereto have caused this instrument to be executed the day and year first above written.
Attest: City of Simi Valley, A Municipal Corporation
By:
Lucy Blanco, City Clerk Fred D. Thomas, Mayor of the City of Simi Valley, California
Approved as to Form: RMA Group
By:
Algeria R. Ford, City Attorney
Print Name:
Approved as to Content: Title:
By:
Brian Paul Gabler, City Manager
Print Name:
Title:
Johanna Medrano,
Deputy Administrative Services Director/
Budget & Purchasing
Ronald K. Fuchiwaki
Public Works Director
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EXHIBIT “A”
SCOPE OF WORK
CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND RMA GROUP FOR ON-
CALL PAVEMENT ENGINEERING AND MATERIAL
TESTING SERVICES, RFQ NO. PW 24-01
A. Services to be Provided
The selected firm(s) shall provide the Professional Services in connection with design and construction of various public works projects within the City. These Professional Services will be assigned on an as -needed basis through the issuance of task orders depending upon the Department's project workload. Award of this annual contract does not necessarily guarantee the assignment of specific projects to the Consultant. The work, in general, may include but not limited to the following:
• Surface and subsurface soils investigation, testing (relative compaction, R- value, sieve analysis, shear, etc.), evaluation and geotechnical inspection.
• Material testing and inspection of conventional and rubberized asphalt concrete pavement both at the asphalt plant and at the job site, aggregate stockpile at the source; rock and sand base, paving asphalt, liquid asphalt, emulsion, etc.
• Subgrade test for any unusual characteristics which may cause early failure to the pavement section.
• Street structural section evaluations including pavement deflection testing, analysis, and recommendation.
• Other geotechnical/soils engineering and material testing as may be needed.
• Laboratory services, data collection, asphalt concrete batch plant inspection, preparation and submission of engineering reports consisting of test results, with interpretation, analysis, and recommendations.
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EXHIBIT “B”
SCHEDULE OF FEES
CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND RMA GROUP FOR ON-
CALL PAVEMENT ENGINEERING AND MATERIAL
TESTING SERVICES, RFQ NO. PW 24-01
126
Cost Proposal
Specific Rate of Compensation for State/Federally Funded Projects Consultant: Contract Amount:
Project No.: Date:
For Combined Rate
Fringe Benefit % 55.69% 55% = 110.53% Combined ICR %
For Home Office Rate
= Home Office ICR %
For Field Office Rate
= Field Office ICR %
Fee = 10%
Actual or Avg. % or $
Straight OT (1.5x) OT (2x) Hourly Rate Increase
254.74$ 254.74$ 231.58$ 110.00$ - 100.00$ - 120.00 $
5.0% -
267.48$ 267.48$ 254.74$ 115.50$ - 110.00$ - 130.00 $
5.0% -
280.85$ 280.85$ 277.90$ 121.28$ - 120.00$ - 140.00 $
5.0% -
208.42$ 208.42$ 162.11$ 90.00$ - 70.00$ - 100.00 $
5.0% -
218.85$ 218.85$ 173.69$ 94.50$ - 75.00$ - 105.00 $
5.0% -
229.79$ 229.79$ 185.27$ 99.23$ - 80.00$ - 110.00 $
5.0% -
92.63$ 92.63$ 57.90$ 40.00$ - 25.00$ - 45.00$
5.0% -
97.26$ 97.26$ 69.47$ 42.00$ - 30.00$ - 50.00$
5.0% -
102.13$ 102.13$ 81.05$ 44.10$ - 35.00$ - 55.00$
5.0% -
Administrative 07/01/2023 -
06/30/2024
07/01/2024 -
06/30/2025
07/01/2025 -
06/30/2026
07/01/2024 -
06/30/2025
Project Engineer 07/01/2025 -
06/30/2026
Project Engineer 07/01/2023 -
06/30/2024
07/01/2025 -
06/30/2026
Administrative
Administrative 07/01/2024 -
06/30/2025
RMA Group
PW 24-01
Fringe Benefit %
Fringe Benefit %
Principal Engineer
OR
Hourly Billing RatesName & Job Title / Classification
+ General & Administrative %
+ General & Administrative %
(Classifications Only)
Effective Year of
Hourly Rate
Hourly Range
+ General & Administrative %
07/01/2023 -
06/30/2024
Principal Engineer
Project Engineer
Principal Engineer
1/18/2024
EXHIBIT B RMA
127
Cost Proposal
Specific Rate of Compensation for State/Federally Funded Projects (Add pages as necessary. See Additional Sheet.)
Notes:
Mark-ups are not allowed. The cost proposal format shall not be amended.
Billing Rate = Actual Hourly Rate * (1 + ICR) * (1 + Fee). Indirect cost rates shall be updated on an annual basis in accordance with the consultants annual accounting period and established by a cognizant agency or accepted by Caltrans. All costs must comply with the Federal cost principles for reimbursement.
For named employees and key personnel enter the actual hourly rate. For classification only, enter the Average Hourly Rate for that classification.
For named staff, classification shall also be listed to account for possible staff changes. Contract Manager’s pre-approval is required for addition of staff not previously listed on the cost proposal.
Subconsultants must provide their own cost proposals.
1. 2.
3. 4.
5. Page __ of __72
128
Cost Proposal
Specific Rate of Compensation for State/Federally Funded Projects Consultant: RMA Group Contract Amount:
Project No.: PW 24-01 Date: 1/18/2024
Quantity Unit Unit Cost Total
each MI 0.67$
Please see the attched Fee Schedule
each DAY 125.00$
Notes:
Notes:
Notes:
Other:
Subconsultant 1:
Other:
Mileage Costs
Equipment Rental and Supplies
Test
Subconsultant 1:
Schedule of Other Direct Cost Items (Add additional pages as necessary) Description of Item
Permit Fees
Plan Sheets
List other direct cost items with estimated costs. These costs should be competitive in their respective industries and supported with appropriate documentation.
P d ODC it h ld b i t tl bill d dl f li t d t t t
1. 2
Subconsultant 1:
Other:
Vehicle
Other:
Other:
Other:
Page __ of __73
129
Cost Proposal
Specific Rate of Compensation for State/Federally Funded Projects Proposed ODC items should be consistently billed regardless of client and contract type.
Items when incurred for the same purpose, in like circumstance, should not be included in any indirect cost pool or in the overhead rate.
Items such as special tooling, will be reimbursed at actual cost with supporting documentation (invoice).
Items listed above that would be considered "tools of the trade" are not reimbursable as other direct cost.
Travel related costs should be pre-approved by the contracting agency and shall not exceed current State Department of Personnel Administration rules.
If mileage is claimed, the rate should be properly supported by the consultant's calculation of their actual costs for company vehicles. In addition, the miles claimed should be supported by mileage logs.
If a consultant proposes rental costs for a vehicle, the company must demonstrate that this is its standard procedure for all of their contracts and that they do not own any vehicles that could be used for the same purpose.
The cost proposal format shall not be amended. All costs must comply with the Federal cost principles.
Subconsultants must provide their own cost proposals.
2. 3.
4. 5.
6. 7.
8. 9.
10. Page __ of __74
130
Cost Proposal
Specific Rate of Compensation for State/Federally Funded Projects Consultant: Contract Amount:
Project No.: Date:
Actual or Avg. % or $
Straight OT (1.5x) OT (2x) Hourly Rate Increase
180.60$ 180.60$ 180.60$ 04/15/2024 - 04/14/2025 75.00$ - 70.00$ - 80.00$ 04/15/2025 - 04/14/2026 5.0% -
157.50$ 157.50$ 157.50$ 04/15/2024 - 04/14/2025 65.00$ - 55.00$ - 75.00$ 04/15/2025 - 04/14/2026 5.0% -
169.05$ 169.05$ 169.05$ 04/15/2024 - 04/14/2025 70.00$ - 55.00$ - 80.00$ 04/15/2025 - 04/14/2026 5.0% -
- -
-
- -
-
- -
-
- -
-
- -
-
- -
-
- -
-
(Add pages as necessary. See Additional Sheet.)
RMA Group
PW 24-01
Name & Job Title / Classification Hourly Billing Rates Effective Year of Hourly Rate
1/18/2024
Quality Control Manager
Hourly Range
(Classifications Only)
Project Geologist
Field Supervisor
Page _ of __75
131
Cost Proposal with Prevailing Wages
Specific Rate of Compensation for State/Federally Funded Projects
Consultant: Prime or Subconsultant Date: 1/18/2024
Project No.:
Home Office Personnel: Fringe Benefit % Overhead % Combined % NORMAL 55.69% + 49.84% + = 110.53%
OVERTIME 55.69% + 49.84% + = 110.53%
Field Office Personnel: Fringe Benefit % Overhead % Combined % NORMAL 55.69% + 49.84% + = 110.53%
OVERTIME 55.69% + 49.84% + = 110.53%
= 10%
=
=
Non Exempt Employee Loaded Billing Rates
Exempt Employee Loaded Billing Rates
Notes:
Prime
1. Prevailing Wages specified are based on current DIR determination. Any future DIR escalation of prevailing wage rates will be reflected in the loaded rates.
2. "NC" denotes No Charge for work more than 8 hours per day and for weekends and holidays for this contract only.
3. The billing rates shown in this cost proposal for field staff entitled for PW rates are calculated with estimated fringe benefits of the staff. The actual billing rates to be used in the invoices will be calculated by using the actual PW fringe benefits of the individual staff in accordance with the certified benefits statement submitted with each invoice.
4. The employees' actual hourly rates shown in this cost proposal are the rates that were effective on xx/xx/xx. Contract Manager's pre-approval is required for addition of staff not previously listed on the cost proposal. The billing rates for these employees, including those that fall under general classifications, will be calculated and reimbursed based on their actual hourly rates on xx/xx/xx. Hourly rates for new employees hired after the date of this cost proposal will not exceed (or shall be in line with) the rates of similar personnel listed on this cost proposal having similar experience.
5. Travel Time Charges: For Managers: On weekdays up to a maximum of 8 hours will be charged for work time, travel time or any combination of travel and work time. Billing Rate = Loaded Rate Formula "C" above. For Exempt staff: During regular work day, actual travel time not to exceed 8 hours in any one day or one way travel will be billed as follow: Billing rate for travel time = Loaded Rate Formula "C" above. All travel time, outside of the regular work day, will be billed without the application of overhead rate as follow: Billing Rate = (Actual Hourly Rate) (1+ Fee) + (Delta Base + Delta Fringe). For Non-Exempt Employees:
During regular work day, actual travel time not to exceed 8 hours in any one day or one way travel will be billed at full normal overhead rate (i.e. without the application of the 1.5X or 2.0X multiplier for overtime as follow)
A) Straight Time = Actual Hourly Rate * (1 + Field O.H.) * (1 + Fee) + Delta Base * (Applicable Multiplier Delta Base) + Delta Fringe * (Applicable Multiplier Delta Fringe) B) 1.5X or 2.0X Overtime = (Actual Hourly Rate) * (1 + Field O.H.) * (1 + Fee) +.5X or 1.0X (Actual Hourly Rate) + Delta Base * (Applicable Multiplier Delta Base) + Delta Fringe * (Applicable Multiplier Delta Fringe) C) Straight Time or 1.5X or 2.0X Overtime = Actual Hourly Rate * (1 + Field O.H.) * (1 + Fee) + Delta Base * (Applicable Multiplier Delta Base) + Delta Fringe * (Applicable Multiplier Delta Fringe) The PW differentials Delta Base and Delta Fringe shown in the formulas above for Loaded Billing Rates are applicable only when performing services covered under DIR determinations.
The PW differentials Delta Base and Delta Fringe shown in the formulas above for Loaded Billing Rates are applicable only when performing services covered under DIR determinations.
Applicable Multiplier Fringe (Field)
RMA Group
PW 24-01
General Administration %
5.00%
5.00%
General Administration %
5.00%
5.00%
Fee
Applicable Multiplier Delta Base (Field)
Loaded Rate Calculation
132
Cost Proposal with Prevailing Wages
Specific Rate of Compensation for State/Federally Funded Projects Page __ of __
Consultant: Project No.:
07/01/2023 -
06/30/2024
07/01/2024 -
06/30/2025
07/01/2025 -
06/30/2026
07/01/2026 -
06/30/2027
07/01/2023 -
06/30/2024
07/01/2024 -
06/30/2025
07/01/2025 -
06/30/2026
07/01/2026 -
06/30/2027
07/01/2023 -
06/30/2024
07/01/2024 -
06/30/2025
07/01/2025 -
06/30/2026
07/01/2026 -
06/30/2027
Straight 57.68$ 61.70$ 65.70$ 69.70$ 59.46$ 63.48$ 67.70$ 71.70$ 61.46$ 65.48$ 69.48$ 73.48$
1.5 OT 86.52$ 92.55$ 98.55$ 104.55$ 89.19$ 95.22$ 101.55$ 107.55$ 92.19$ 98.22$ 104.22$ 110.22$
2.0 OT 115.36$ 123.40$ 131.40$ 139.40$ 118.92$ 126.96$ 135.40$ 143.40$ 122.92$ 130.96$ 138.96$ 146.96$
32.81$ 32.81$ 32.81$ 32.81$ 32.81$ 32.81$ 32.81$ 32.81$ 32.81$ 32.81$ 32.81$ 32.81$ Straight 90.49$ 94.51$ 98.51$ 102.51$ 92.27$ 96.29$ 100.51$ 104.51$ 94.27$ 98.29$ 102.29$ 106.29$
1.5 OT 119.33$ 125.36$ 131.36$ 137.36$ 122.00$ 128.03$ 134.36$ 140.36$ 125.00$ 131.03$ 137.03$ 143.03$
2.0 OT 148.17$ 156.21$ 164.21$ 172.21$ 151.73$ 159.77$ 168.21$ 176.21$ 155.73$ 163.77$ 171.77$ 179.77$ Straight 59.00$ 63.00$ 67.00$ 71.00$ 61.00$ 65.00$ 69.00$ 73.00$ 63.00$ 67.00$ 71.00$ 75.00$
1.5 OT 88.50$ 94.50$ 100.50$ 106.50$ 91.50$ 97.50$ 103.50$ 109.50$ 94.50$ 100.50$ 106.50$ 112.50$
2.0 OT 118.00$ 126.00$ 134.00$ 142.00$ 122.00$ 130.00$ 138.00$ 146.00$ 126.00$ 134.00$ 142.00$ 150.00$
32.81$ 34.00$ 35.50$ 37.00$ 32.81$ 34.00$ 35.50$ 37.00$ 32.81$ 34.00$ 35.50$ 37.00$ Straight 91.81$ 97.00$ 102.50$ 108.00$ 93.81$ 99.00$ 104.50$ 110.00$ 95.81$ 101.00$ 106.50$ 112.00$
1.5 OT 121.31$ 128.50$ 136.00$ 143.50$ 124.31$ 131.50$ 139.00$ 146.50$ 127.31$ 134.50$ 142.00$ 149.50$
2.0 OT 150.81$ 160.00$ 169.50$ 179.00$ 154.81$ 164.00$ 173.50$ 183.00$ 158.81$ 168.00$ 177.50$ 187.00$ Straight 1.32$ 2.49$ 3.99$ 5.49$ 1.54$ 2.71$ 3.99$ 5.49$ 1.54$ 2.71$ 4.21$ 5.71$
1.5 OT 1.98$ 3.14$ 4.64$ 6.14$ 2.31$ 3.47$ 4.64$ 6.14$ 2.31$ 3.47$ 4.97$ 6.47$
2.0 OT 2.64$ 3.79$ 5.29$ 6.79$ 3.08$ 4.23$ 5.29$ 6.79$ 3.08$ 4.23$ 5.73$ 7.23$ Straight -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$
1.5 OT 1.98$ 1.95$ 1.95$ 1.95$ 2.31$ 2.28$ 1.95$ 1.95$ 2.31$ 2.28$ 2.28$ 2.28$
2.0 OT 2.64$ 2.60$ 2.60$ 2.60$ 3.08$ 3.04$ 2.60$ 2.60$ 3.08$ 3.04$ 3.04$ 3.04$ Straight -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$
1.5 OT -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$
2.0 OT -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ Straight -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$
1.5 OT -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$
2.0 OT -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ -$ Straight 136.63$ 145.90$ 155.16$ 164.42$ 141.27$ 150.53$ 159.79$ 169.06$ 145.90$ 155.16$ 164.42$ 173.69$ OT (1.5x) 166.13$ 177.40$ 188.66$ 199.92$ 171.77$ 183.03$ 194.29$ 205.56$ 177.40$ 188.66$ 199.92$ 211.19$ OT (2x) 195.63$ 208.90$ 222.16$ 235.42$ 202.27$ 215.53$ 228.79$ 242.06$ 208.90$ 222.16$ 235.42$ 248.69$ 5% 5% 5% 5% 5% 5% 5% 5% 5%
59.00$ 63.00$ 67.00$ 71.00$ 61.00$ 65.00$ 69.00$ 73.00$ 63.00$ 67.00$ 71.00$ 75.00$ 58-61 62-65 66-69 70-73 60-63 64-67 68-71 72-75 62-65 66-69 70-73 74-77 % Escalation Increase
Actual Hourly Rate and/or Average Hourly Rate
Hourly Range for Class
(Add pages as necessary)RMA Group PW 24-01
DELTA (TOTAL) =
Employee Total Rate - DIR Rate
Applicable DELTA (TOTAL) =
Employee Total - DIR Total
DELTA (BASE) =
Employee Base - DIR Base
Applicable DELTA Base =
DIR Rate - Employee Base Rate
Applicable DELTA FRINGE =
DELTA TOTAL - DELTA BASE
(Employee - DIR)
Loaded Hourly Billing Rates
Effective Year of Hourly Rate
Prevailing Wage Rate
established by State DIR
(only applicable for prevailing
wage work)
Base Salary
Prevailing Wage work - Exempt or Non-Exempt
Home or Field Office Personnel
Fringe Benefits
Total Base Salary +
Fringe Benefits
Employee Actual Rate
(fringe benefits vary year over
year)
Base Salary
Estimate Fringe
Total = Base + Fringe
NDT Testing Technician
non-exempt
Field
Name/Classification Public Works Technician
non-exempt
Field
Public Works Inspector
non-exempt
Field
77 133
Schedule of Fees and General Terms
Laboratory Tests - Steel
Product Name Units Rate ($)
ASTM E605 Spray Applied Fireproofing Den EA $135.00
ASTM A370 Rebar Tension up to #8 EA $70.00
ASTM A370 Rebar Tension #9 to #11 EA $85.00
ASTM A370 Rebar Tension #14 EA $125.00
ASTM A370 Rebar Tension #18 EA $180.00
ASTM A370 Bend Test Rebar up to #8 EA $60.00
ASTM A370 Bend Test Rebar #9 to #11 EA $70.00
ASTM A370 Bend Test Rebar #14 EA $125.00
ASTM A370 Bend Test Rebar # 18 EA $180.00
ASTM A416 Stress‐Strain Analysis EA $250.00
ASTM A416 Tensile Test Only EA $175.00
ASTM A370 Tensile Up to 100K lbs (Each) EA $85.00
ASTM A370 Tensile Up to 200K lbs (Each) EA $100.00
ASTM A370 Tensile Up to 400K lbs (Each) EA $180.00
ASTM A370 Tensile Up to 300K lbs (Each) EA $120.00
ASTM A370 Tensile 400K ‐ 500K lbs (Each) EA $365.00
ASTM A370 Tensile Stress‐Strain Percent EA $205.00
AWS Weld: Macroetch EA $120.00
AWS Weld: Fracture EA $95.00
AWS Bend Test EA $85.00
ASTM A370 Rockwell Hardness (Each) EA $120.00
Steel Chemical Analysis EA $255.00
ASTM F606 Bolt Axial Tensile to 7/8” EA $70.00
ASTM F606 Bolt Wedge Tensile to 7/8” EA $100.00
ASTM F606 Bolt: Axial 7/8” ‐ 1 1/2” EA $105.00
ASTM F606 Bolt Wedge Tens 7/8” to 1 1/2" EA $120.00
ASTM F606 Bolt: Proof Load up to 7/8" EA $110.00
ASTM F606 Bolt: Proof Load up to 1 1/2" EA $135.00
ASTM F606 Nut: Proof Load up to 7/8" EA $75.00
Laboratory Tests - Soil
Product Name Units Rate ($)
ASTM D4318 Plasticity Index of Soils EA $335.00
ASTM D1883 California Bearing Ratio EA $750.00
ASTM D2435 Consolidation EA $295.00
ASTM D2435 Consolidation with Time Rate EA $355.00
ASTM D3080 Direct Shear, Consol&Drained EA $285.00
ASTM D4829 Expansion Index of Soils EA $270.00
ASTM D2166 Unconfined Comp Strength EA $335.00
ASTM D5333 Hydro Collapse Potential EA $260.00
ASTM D2050 Tri‐Axial Shear Strength EA $550.00
ASTM D2937 In‐Place Density, Drive Cyl EA $75.00
ASTM D2216 Soil Moisture Content by Mass EA $55.00
ASTM D698 Maximum Density Std Effort EA $350.00
ASTM D1557 Max Density Optimum Moisture EA $350.00
ASTM D2974 Moisture, Ash, Organic Matter EA $120.00
ASTM D4972 pH of Soils EA $125.00
ASTM D2844 R‐Value & Expansive Pressures EA $480.00
ASTM D2434 Const Head Permeability Test EA $470.00
ASTM D422 Sieve Analysis of Soil EA $260.00
ASTM D1140 Materials Finer than #200 EA $160.00
ASTM D422 Hydrometer Anaylsis EA $395.00
ASTM D4546 Swell Potential EA $260.00
ASTM D854 Specific Gravity of Soils EA $295.00
ASTM D4943 Shrinkage Factor by Resin EA $290.00
ASTM D559 Soil Cement Sample Preparation EA $160.00
ASTM D558 Soil‐Cement Maximum Density EA $395.00
134
Schedule of Fees and General Terms
ASTM D1633 Compression Test Soil Cement EA $130.00
AASHTO T100 Specific Gravity of Soils EA $295.00
Laboratory Tests - Masonry
Product Name Units Rate ($)
ASTM C140 Block Compressive Strength SET $100.00
ASTM C140 Block Moisture & Absorption SET $110.00
ASTM C426 Block Linear Shrinkage SET $375.00
ASTM C140 Block Unit Wt & Dimensions SET $265.00
ASTM C90 Masonry Block Conformance SET $740.00
ASTM C67 Brick Compressive Strength SET $125.00
ASTM C67 Brick Moisture & Absorption SET $110.00
ASTM C67 Brick 5 Hour Boil EA $135.00
ASTM C67 Brick Modulus of Rupture EA $135.00
ASTM C780 Mortar Cylinder Compression EA $50.00
ASTM C1019 Grout Prism Compression EA $55.00
ASTM C1314 Masonry Core Comp Str 8" Max EA $120.00
ASTM C1314 Masonry Core Shear Str 8" Max EA $130.00
ASTM E519 Assemblage Comp Str 8" Block EA $155.00
ASTM E519 Assemblage Comp Str 16" Block EA $175.00
ASTM E519 Assemblage Comp Str 12" Block EA $140.00
ASTM C109 Compressive Strength 2" Cube
EA $75.00
Laboratory Tests - Concrete
Product Name Units Rate ($)
ASTM C39 Concrete Cyl Cured or Tested EA $50.00
ASTM C42 Compressive Strength, Core EA $120.00
ASTM C39 Cyl Tested out of Sequence EA $80.00
ASTM C495 Lightweight Concrete Strength EA $75.00
ASTM C78 Flexural Strength, Beam EA $135.00
ASTM C1140 Shotcrete Panel Test SET $450.00
ASTM C138 Unit Weight of Concrete EA $90.00
ASTM C649 Concrete Modulus of Elasticity EA $275.00
ASTM C157 Concrete Shrinkage (Set of 3) SET $650.00
ASTM C496 Splitting Tensile Test EA $125.00
ASTM C495 Density ‐ Lightweight Concrete EA $240.00
T 336 Coefficient of Thermal Expansion
EA $750.00
Laboratory Tests - Caltrans
Product Name Units Rate ($)
CT202 Sieve Analysis, Combined Agg EA $275.00
CT202 Sieve Analysis, Fine Agg EA $210.00
CT202 Sieve Analysis, Coarse Agg EA $195.00
CT235 Flat and Elongated Particles EA $400.00
CT205 Percentage Crushed Particles EA $275.00
CT207 Specific Gravity, Fine Aggregate EA $295.00
CT206 Specific Gravity, Coarse Aggregate EA $15.00
CT208 Apparent Specific Gravity of Fines EA $295.00
CT229 Durability Index EA $455.00
CT211 Abrasion, Los Angeles Rattler EA $375.00
CT234 Angularity & Voids, Fine Agg EA $295.00
CT227 Cleanness Value EA $420.00
CT213 Organic Impurities in Sand EA $135.00
CT214 Soundness by Sodium Sulfate EA $650.00
CT226 Moisture Content by Oven Drying EA $65.00
CT217 Sand Equivalent EA $190.00
CT308(A) Core Density Paraffin Coated EA $85.00
CT308(C) Core Density SSD EA $75.00
CT303 Approximate Bitumen Ratio EA $335.00
CT304/308(A) LTMD Kneading Compactor EA $480.00
CT305 Swell of Bituminous Mixtures EA $550.00
135
Schedule of Fees and General Terms
CT366 Stabilometer Value EA $395.00
CT308(A)/366 Stability and Density EA $490.00
CT308(C)/366 Stability and Density EA $470.00
CT309 Maximum Theoretical Density EA $295.00
CT370 Moisture Content by Microwave EA $110.00
CT379 Asphalt Content Nuclear Gauge EA $275.00
CT382 Ignition Oven Correction Factor EA $550.00
CT382 Asphalt Content by Ignition EA $275.00
CT371 Tensile Strength Ratio EA $1,470.00
CT302 Film Stripping EA $335.00
CT521 Concrete Cyl Compressive Strength EA $50.00
CT523 Concrete Flexural Strength, Beam EA $135.00
CT531 Length of Drilled Concrete Cores EA $75.00
CT550 Surface Abrasion of Concrete EA $535.00
CT521 Compressive Strength LCB EA $50.00
CT534 Water Retention, Liq Curing Cmpnd EA $570.00
CT524 RSC Flexural Strength, Beam EA $135.00
CT515 Relative Mortar Strength, PCC Sand EA $900.00
CT670 Tensile Strength #8 ‐ #11 EA $120.00
CT670 Tensile Strength up to #8 EA $95.00
CT670 Tensile Strength #14 EA $180.00
CT670 Tensile Strength #18 EA $255.00
CT 52‐1‐08C Slip Test EA $275.00
CT670 Operator Qualification up to #8 LOT $550.00
CT670 Operator Qualification #9 ‐ #11 LOT $655.00
CT670 Operator Qualification #14 LOT $950.00
CT670 Operator Qualification #18 LOT $1,235.00
CT670 Operator Qualification up to #8 EA $550.00
CT670 Operator Qualification #14 EA $950.00
CT670 Operator Qualification #9 ‐ #11 EA $675.00
CT670 Operator Qualification #18 EA $1,235.00
CT670 Production Lot up to #8 (Service) LOT $355.00
CT670 Production Lot #9 to #11 (Service) LOT $475.00
CT670 Production Lot #14 (Service) LOT $635.00
CT670 Production Lot #18 (Service) LOT $825.00
CT670 Production Lot up to #8 (Ultimate) LOT $455.00
CT670 Production Lot #9 to #11(Ultimate) LOT $490.00
CT670 Production Lot #14 (Ultimate) LOT $790.00
CT670 Production Lot #18 (Ultimate) LOT $1,350.00
CT204 Plasticity Index, Atterberg EA $355.00
CT209 Specific Gravity of Soil EA $295.00
CT216 CA Impact Max Density EA $325.00
CT216 CA Impact, Rock Correction EA $95.00
CT301 Resistance R‐Value Stabilometer EA $450.00
CT417 Soluble Sulfates EA $155.00
CT422 Chloride Content EA $135.00
CT643 Resistivity and pH
EA $155.00
136
Schedule of Fees and General Terms
Laboratory Tests - Asphalt
Product Name Units Rate ($)
ASTM D1188 Core Density Parafilm Coated EA $85.00
ASTM D2726 Core Density (SSD) EA $75.00
ASTM D6926 Lab Max Density Marshall EA $395.00
ASTM D6927 Marshal Stability and Flow EA $480.00
ASTM D1561 LTMD Kneading Compactor EA $395.00
ASTM D1560 Hveem Stability and Density EA $490.00
ASTM D1560 Hveem Stability EA $375.00
ASTM D2041 Maximum Theoretical Density EA $295.00
ASTM D6307 Ignition Oven Calibration EA $550.00
ASTM D6307 Asphalt Content by Ignition EA $285.00
ASTM D2172 Asphalt Content by Solvents EA $475.00
ASTM D4125 Asphalt Content Nuclear Gauge EA $335.00
ASTM D5444 Gradation of Extracted Agg EA $335.00
ASTM D244 Emulsion Residue Evaporation EA $280.00
ASTM D244 Emulsion Sieve Analysis EA $185.00
ASTM D3910 Wet Track Abrasion EA $285.00
AASHTO T324 Hamburg Wheel Tracking Test EA $1,100.00
AASHTO T283 Tensile Strength Ratio EA $1,200.00
AASHTO T275 Core Denisty Paraffin Coated EA $85.00
AASHTO T312/T275 LTMD Gyratory Compactor EA $480.00
AASHTO T308 Asphalt Content by Ignition EA $285.00
AASHTO T308A AC Correction Factor EA $550.00
AASHTO T209 Theoretical Maximum Density EA $295.00
AASHTO T324 Hamburg Wheel Tracking ‐ RHMA EA $1,100.00
AASHTO T283 Tensile Strength Ratio ‐ RHMA EA $1,200.00
AASHTO T312/T275 LTMD Gyratory Comp.‐ RHMA
Laboratory Tests - Aggregates
EA $480.00
Product Name Units Rate ($)
ASTM C131 Abrasion, Los Angeles Rattler EA $375.00
ASTM C40 Organic Impurities in Fine Agg EA $135.00
ASTM C127 Specific Gravity, Coarse Agg EA $255.00
ASTM C128 Specific Gravity, Fine Agg EA $290.00
ASTM C1252 Angularity & Voids, Fine Agg EA $280.00
ASTM C566 Moisture Content by Drying EA $35.00
ASTM C117 Materials Finer than No. 200 EA $160.00
ASTM D2419 Sand Equivalent EA $180.00
ASTM C289 Alkali‐Silica Reactivity EA $950.00
ASTM D4791 Flat & Elongated Particles EA $395.00
ASTM D5821 Percent Fractured Particles EA $275.00
ASTM C123 Percent Lightweight Particles EA $295.00
ASTM C88 Soundness by Sodium Sulfate EA $635.00
ASTM C136 Sieve Analysis, Fine Agg EA $265.00
ASTM C136 Sieve Analysis, Combined Agg EA $290.00
ASTM C136 Sieve Analysis, Coarse Agg EA $255.00
ASTM C142 Clay Lumps & Friable Particles EA $260.00
ASTM C535, Abrasion Large Aggregate EA $465.00
AASHTO T304 Angularity & Voids in Fines EA $255.00
AASHTO T84 Specific Gravity, Fine Agg EA $280.00
AASHTO T85 Specific Gravity, Coarse Agg EA $255.00
AASHTO T27 Sieve Analysis, Combined Agg EA $290.00
AASHTO T96 Abrasion, Los Angeles Rattler EA $375.00
AASHTO T27 Sieve Analysis, Fine Agg EA $285.00
AASHTO T27 Sieve Analysis, Coarse Agg EA $255.00
AASHTO T335 Percent Fractured Particles EA $255.00
AASHTO T176 Sand Equivalent
EA $180.00
137
Schedule of Fees and General Terms
Equipment Charges
Product Name Units Rate ($)
Portable Drilling Equipment HR $750.00
Mobile Laboratory Trailer Mobilization EA $1,500.00
Mobile Laboratory Trailer & Testing Equipment DAY $700.00 Stationary Laboratory Trailer & Testing Equipment MO $1,500.00 Mileage MILE Quote
Diamond Bit Core Rig and Generator DAY $750.00
Nuclear Density Test Gauge DAY $35.00
Hand Held Turbidity Meter DAY $50.00
Ultrasonic Test Unit and Consumables DAY $100.00
Magnetic Particle Test Unit DAY $100.00
Skidmore DAY $80.00
Schmidt Hammer DAY $100.00
Torque Wrench DAY $80.00
Proof Load Testing Equipment DAY $150.00
Drilling Equip Mobilization / De‐Mob EA $800.00
ASTM C1028 Coefficient of Friction DAY $800.00
Mini Environmental Quality Meter DAY $400.00
Inertial Profiler DAY $2,000.00
Materials / Supplies LS Quote
Holiday Tester DAY $250.00
VOC Meter DAY $200.00
Misc Permits LS Quote
Misc Fees HR Quote
Misc Subconsultant LS Quote
Set of Aerial Photographs EA Quote
Blueprinting EA Quote
Dutch Cone Penetrometer with Operator HR $875.00
Hollow Stem Auger Drill Rig w/ Operator HR $775.00
Portable Drilling Equipment w/ Operator HR $750.00
Bucket Auger Drill Rig with Operator HR $875.00
Air Rotary Drill Rig with Operator HR $900.00
Rotary Wash Drill Rig with Operator HR $950.00
Per Diem DAY $150.00
138
Schedule of Fees and General Terms
TERMS AND CONDITIONS
GENERAL CHARGES
RMA Group requires twenty‐four (24) hour prior notification for scheduling inspectors and/or technicians.
Inspection charges start at the scheduled show up time at the job site. All inspection hours will be billed in the following increments:
There will be a minimum two (2) hour charge for any RMA Group employee presence on site.
Any time less than four (4) hours of work will be billed as four (4) hours.
Four (4) to eight (8) hours will be billed as eight (8) hours.
When personnel are required to work in excess of 5 hours without an uninterrupted meal period of 30 minutes, due to project constraints, ½ hour will be charged at double time rates in addition to any applicable hours worked.
Rates are valid through April 14, 2026.
Outside services will be billed at cost plus 15% unless billed directly to and paid for by Client.
Requests made by client for management attendance at meetings at the project site will be charged at standard rate.
Administrative/clerical support will be charged at 3% of the monthly direct charges.
OVERTIME CHARGES
Work performed in excess of 8 hours per day and / or up to eight (8) hours on Saturdays will be b illed at 1.50 times the unit rate.
Work performed on Sunday, recognized holidays, or in excess of eight (8) hours on Saturdays will be billed at 2.00 times the unit rate.
A 20% surcharge will be applied for laboratory tests performed on a Saturday or Sunday.
PER DIEM AND TRAVEL CHARGES
A $150.00 charge per day will be applied when our personnel are required to stay overnight at remote locations. Time will be billed at the unit rate while traveling to a remote location or if a location requires an MilMileage for travel outside a 50 mile radius from either the project site or the nearest RMA facility, whichever is closest, will be charged at a rate of $0.60 per mile.
NIGHT WORK
A $10.00 per hour surcharge will be added to all personnel rates for work performed during night shifts. 139
Certification of Direct Costs:
I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost proposal(s) in this contract are actual, reasonable, allowable, and allocable to the contract in accordance with the contract terms and the following requirements:
1. Generally Accepted Accounting Principles (GAAP)
2. Terms and conditions of the contract
3. Title 23 United States Code Section 112 - Letting of Contracts
4. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures
5. 23 Code of Federal Regulations Part 172 - Procurement, Management, and Administration of Engineering and Design Related Service
6. 48 Code of Federal Regulations Part 9904 - Cost Accounting Standards Board (when applicable) All
costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements.
Costs that are noncompliant with the federal and state requirements are not eligible for reimbursement.
Prime Consultant or Subconsultant Certifying:
Nam
e: Title*:
Signature: Date of Certification:
Email: Phone Number:
Address:
* An individual executive or financial officer of the consultant's or subconsultant's organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract.
List of Services the consultant is providing under the proposed contract:
73 Slawek Dymerski, PE, GE President
[email protected] 909.989.1751
12130 Santa Margarita Court, Rancho Cucamonga, CA 91730 Pavement Engineering and Material Testing Services
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EXHIBIT “C”
INSURANCE REQUIREMENTS
CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND RMA GROUP FOR ON-
CALL PAVEMENT ENGINEERING AND MATERIAL
TESTING SERVICES, RFQ NO. PW 24-01
Insurance - Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees.
Minimum Scope and Limit of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/locat ion (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and 9 (non- owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. Consultant hereby certifies that it is aware of the provisions of Section 3700 et seq., of the Labor Code which require every employer to be insured against liability for Workers' Compensation.
4. Professional Liability (Errors and Omissions) Insurance appropriate to the Consultant’s profession, with limits no less than $2,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
5. If unmanned aerial systems (UAS)/drones will be used – Aviation Liability Insurance: On an “occurrence” basis, including products and completed operations, property damage, bodily injury with limits no less than $1,000,000 per occurrence, and $2,000,000 in the aggregate.
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If the Consultant maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Other Insurance Provisions - The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its Boards, Officers, Agents, Officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this project/contract, the Consultant’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its Boards, Officers, Agents, Officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its Boards, Officers, Agents, Officials, employees, and volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
Umbrella or Excess Policy
The Consultant may use Umbrella or Excess Policies to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non- contributory, additional insured, Self -Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Consultant’s primary and excess liability policies are exhausted.
Notice of Cancellation
Each insurance policy required above shall state that coverage shall not be canceled, except with notice to the City.
Waiver of Subrogation
Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Wo rkers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Consultant, its employees, agents and subcontractors.
Self-Insured Retentions
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Self-insured retentions must be declared to and approved by the City. The City may require the Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Claims Made Policies
If any of the required policies provide coverage on a claims-made basis:
1. The Retroactive Date must be shown, and this date must be before the execution date of the contract or the beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
3. If coverage is canceled or non- renewed, and not replaced with another claims - made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase extended reporting coverage for a minimum of five (5) years after completion of work.
Verification of Coverage
Consultant shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that the City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
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EXHIBIT “D”
FEDERAL REQUIREMENTS
CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND RMA GROUP FOR ON-
CALL PAVEMENT ENGINEERING AND MATERIAL
TESTING SERVICES, RFQ NO. PW 24-01
ARTICLE IV PERFORMANCE PERIOD
A. This AGREEMENT shall go into effect on April 15, 2024, contingent upon approval by LOCAL AGENCY, and CONSULTANT shall commence work after notification to proceed by LOCAL AGENCY’S Contract Administrator. The AGREEMENT shall end on April 15, 2026, unless extended by AGREEMENT amendment.
B. CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on LOCAL AGENCY until the AGREEMENT is fully executed and approved by LOCAL AGENCY.
C. The period of performance for each specific project shall be in accordance with the Task Order for that project. If work on a Task Order is in progress on the expiration date of this AGRE EMENT, the terms of the AGREEMENT shall be extended by AGREEMENT amendment prior to the expiration of the contract to cover the time needed to complete the task order in progress only. The maximum term shall not exceed five (5) years.
ARTICLE V ALLOWABLE COSTS AND PAYMENTS
A. CONSULTANT will be reimbursed for hours worked at the hourly rates specified in the CONSULTANT’s approved Cost Proposal. The specified hourly rates shall include direct salary costs, employee benefits, prevailing wages, employer payments, overhead, and fee. These rates are not adjustable for the performance period set forth in this AGREEMENT. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate.
B. In addition, CONSULTANT will be reimbursed for incurred (actual) direct costs other than salary costs that are in the approved Cost Proposal and identified in the approved Cost Proposal and in the executed Task Order.
C. Specific projects will be assigned to CONSULTANT through issuance of Task Orders.
D. After a project to be performed under this AGREEMENT is identified by LOCAL AGENCY, LOCAL AGENCY will prepare a draft Task Order; less the cost estimate.
A draft Task Order will identify the scope of services, expected results, project deliverables, period of performance, project schedule and will designate a LOCAL 144
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AGENCY Project Coordinator. The draft Task Order will be delivered to CONSULTANT for review. CONSULTANT shall return the draft Task Order within ten (10) calendar days along with a Cost Estimate, including a written estimate of the number of hours and hourly rates per staff person, any anticipated reimbursable expenses, overhead, fee if any, and total dollar amount. After agreement has been reached on the negotiable items and total cost; the finalized Task Order shall be signed by both LOCAL AGENCY and CONSULTANT.
E. Task Orders may be negotiated for a lump sum (Firm Fixed Price) or for specific rates of compensation, both of which must be based on the labor and other rates set forth in CONSULTANT’s approved Cost Proposal.
CONSULTANT shall be responsible for any future adjustments to prevailing wage rates including, but not limited to, base hourly rates and employer payments as determined by the Department of Industrial Relations. CONSULTANT is responsible for paying the appropriate rate, including escalations that take place during the term of the AGREEMENT.
F. Reimbursement for transportation and subsistence costs shall not exceed the rates as specified in the approved Cost Proposal. CONSULTANT will be responsible for transportation and subsistence costs in excess of State rates.
G. When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval in the form of an AGREEMENT amendment for a revised milestone cost estimate from the Contract Administrator before exceeding such estimate.
H. Progress payments for each Task Order will be made monthly in arrears based on services provided and actual costs incurred.
I. CONSULTANT shall not commence performance of work or services until this AGREEMENT has been approved by LOCAL AGENCY and notification to proceed has been issued by LOCAL AGENCY’S Contract Administrator. No payment will be made prior to approval or for any work performed prior to approval of this AGREEMENT.
J. A Task Order is of no force or effect until returned to LOCAL AGENCY and signed by an authorized representative of LOCAL AGENCY. No expenditures are authorized on a project and work shall not commence until a Task Order for that project has been executed by LOCAL AGENCY.
K. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate. Separate invoices itemizing all costs are required for all work performed under each Task Order.
Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing, or upon completion of the 145
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Task Order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number, project title and Task Order number. Credits due LOCAL AGENCY that include any equipment purchased under the provisions of Article XI Equipment Purchase, must be reimbursed by CONSULTANT prior to the expiration or termination of this AGREEMENT. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following address:
City of Simi Valley, Public Works Department
Attn.: Fuad Shamout, Principal Engineer
2929 Tapo Canyon Road
Simi Valley, CA 93063
L. The period of performance for Task Orders shall be in accordance with dates specified in the Task Order. No Task Order will be written which extends beyond the expiration date of this AGREEMENT.
M. The total amount payable by LOCAL AGENCY for an individual Task Order shall not exceed the amount agreed to in the Task Order, unless authorized by amendment.
N. If CONSULTANT fails to satisfactorily complete a deliverable according to the schedule set forth in a Task Order, no payment will be made until the deliverable has been satisfactorily completed.
O. Task Orders may n ot be used to a mend the language (or the terms) of th is AGREEMENT nor to exceed the scope of work under this AGREEMENT.
P. The total amount payable by LOCAL AGENCY for all Task Orders resulting from this AGREEMENT shall not exceed $500,000. It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this AGREEMENT through Task Orders.
ARTICLE VI TERMINATION
A. This AGREEMENT may be terminated by LOCAL AGENCY, provided that LOCAL AGENCY gives not less than thirty (30) calendar days’ written notice (delivered by certified mail, return receipt requested) of intent to terminate. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
B. LOCAL AGENCY may temporarily suspend this AGREEMENT, at no additional cost to LOCAL AGENCY, provided that CONSULTANT is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If LOCAL AGENCY gives such notice of temporary suspension, CONSULTANT shall 146
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immediately suspend its activities under this AGREEMENT. A temporary suspension may be issued concurrent with the notice of termination.
C. Notwithstanding any provisions of this AGREEMENT, CONSULTANT shall not be relieved of liability to LOCAL AGENCY for damages sustained by City by virtue of any breach of this AGREEMENT by CONSULTANT, and City may withhold any payments due to CONSULTANT until such time as the exact amount of damages, if any, due City from CONSULTANT is determined.
D. In the event of termination, CONSULTANT shall be compensated as provided for in this AGREEMENT. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS
A. The CONSULTANT agrees that 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.
B. The CONSULTANT also agrees to comply with Federal procedures in accordance with 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
C. Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200 are subject to repayment by the CONSULTANT to LOCAL AGENCY.
D. When a CONSULTANT or Subconsultant is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
ARTICLE VIII RETENTION OF RECORD/AUDITS
For the purpose of determining compliance with Gov. Code § 8546.7, the CONSULTANT, Subconsultants, and LOCAL AGENCY shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the AGREEMENT including, but not limited to, the costs of adminis tering the AGREEMENT. All parties, including the CONSULTANT’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the AGREEMENT period and for three (3) years from the date of final payment under the AGREEMENT. LOCAL AGENCY, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the 147
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CONSULTANT, Subconsultants, and the CONSULTANT’s Independent CPA, that are pertinent to the AGREEMENT for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
ARTICLE IX AUDIT REVIEW PROCEDURES
A. Any dispute concerning a question of fact arising under an interim or post audit of this AGREEMENT that is not disposed of by AGREEMENT, shall be reviewed by LOCAL AGENCY’S Chief Financial Officer.
B. Not later than thirty (30) calendar days after issuance of the final audit report, CONSULTANT may request a review by LOCAL AGENCY’S Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.
C. Neither the pendency of a dispute nor its consideration by LOCAL AGENCY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.
D. CONSULTANT and subconsultant AGREEMENTs, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an AGREEMENT audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the AGREEMENT, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, LOCAL AGENCY, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The AGREEMENT, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by LOCAL AGENCY Contract Administrator to conform to the audit or review recommendations.
CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the AGREEMENT by this reference if directed by LOCAL AGENCY at its sole discretion. Refusal by CONSULTANT to inc orporate audit or review recommendations, or to ensure that the federal, LOCAL AGENCY or local governments have access to CPA work papers, will be considered a breach of AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
E. CONSULTANT’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI).
IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the CONSULTANT and approved by the LOCAL AGENCY Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit rep ort. Refusal by the CONSULTANT to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a 148
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breach of the AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
1) During IOAI’s review of the ICR audit work papers created by the CONSULTANT’s independent CPA, IOAI will work with the CPA and/or CONSULTANT toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, LOCAL AGENCY will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association o f State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines}is received and approved by IOAI.
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate.
b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty -five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.
2) If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require CONSULTANT to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.
3) If the CONSULTANT fails to comply with the provisions of this paragraph E, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this AGREEMENT.
4) CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this AGREEMENT 149
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has been completed to the satisfaction of LOCAL AGENCY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO LOCAL AGENCY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this AGREEMENT and all other agreements executed between LOCAL AGENCY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.
ARTICLE X SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual relation between the LOCAL AGENCY and any Subconsultants, and no subagreement shall relieve the CONSULTANT of its responsibilities and obligations hereunder. The CONSULTANT agr ees to be as fully responsible to the LOCAL AGENCY for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the CONSULTANT. The CONSULTANT's obligation to pay its Subconsultants is an independent obligation from the LOCAL AGENCY's obligation to make payments to the CONSULTANT.
B. The CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the LOCAL AGENCY Contract Administrator, except that which is expressly identified in the CONSULTANT’s approved Cost Proposal.
C. Any subagreement entered into as a result of this AGREEMENT, shall contain all the provisions stipulated in this entire AGREEMENT to be applicable to Subconsultants unless otherwise noted.
D. CONSULTANT shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each payment made to the CONSULTANT by the LOCAL AGENCY.
E. Any substitution of Subconsultants must be approved in writing by the LOCAL AGENCY Contract Administrator in advance of assigning work to a substitute Subconsultant.
F. Prompt Progress Payment
CONSULTANT or subconsultant shall pay to any subconsultant, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed CONSULTANT on account of the work performed by the subconsultants, to the extent of each subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from CONSULTANT or subconsultant to a subconsultant, CONSULTANT or subconsultant may withhold no mor e than 150 percent of the disputed amount. Any violation of this requirement shall constitute a 150
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cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non- DBE subconsultants.
G. Prompt Payment of Withheld Funds to Subconsultants
The LOCAL AGENCY may hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the LOCAL AGENCY, of the contract work, and pay retainage to CONSULTANT based on these acceptances.
No retainage will be held by the LOCAL AGENCY from progress payments due to CONSULTANT. CONSULTANTS and subconsultants are prohibited from holding retainage from subconsultants. Any delay or postponement of payment may take place only for good cause and with the LOCAL AGENCY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non- DBE subconsultants.
Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subcontract performance, or noncompliance by a subconsultant.
ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES
A. Prior authorization in writing by LOCAL AGENCY’s Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order , or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.
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B. For purchase of any item, service, or consulting work not covered in CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by LOCAL AGENCY’s Contract Administrator, three competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified.
C. Any equipment purchased with funds provided under the terms of this AGREEMENT is subject to the following:
1) CONSULTANT shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, LOCAL AGENCY shall receive a proper refund or credit at the conclusion of the AGREEMENT, or if the AGREEMENT is terminated, CONSULTANT may either keep the equipment and credit LOCAL AGENCY in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established LOCAL AGENCY procedures; and credit LOCAL AGENCY in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT’s expense, on the basis of a compete nt independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by LOCAL AGENCY and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by LOCAL AGENCY.
2) Regulation 2 CFR Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.
ARTICLE XII STATE PREVAILING WAGE RATES
A. No CONSULTANT or Subconsultant may be awarded an AGREEMENT containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this AGREEMENT, including any subsequent amendments.
B. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this AGREEMENT are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer ( https://dot.ca.gov/programs/construction/labor-compliance ). These wage
rates are made a specific part of this AGREEMENT by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site.
Prevailing wages will be applicable to all inspection work performed at LOCA L 152
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AGENCY construction sites, at LOCAL AGENCY facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve LOCAL AGENCY projects. Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.
C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations website at http://www.dir.ca.gov .
D. Payroll Records
1) Each CONSULTANT and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the CONSULTANT or Subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct.
b. The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.
2) The payroll records enumerated under paragraph (1) above shall be certified as correct by the CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by LOCAL AGENCY representatives at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows:
a. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request.
b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of LOCAL AGENCY , the Division of Labor Standar ds Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
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c. The public shall not be given access to certified payroll records by the CONSULTANT. The CONSULTANT is required to forward any requests for certified payrolls to the LOCAL AGENCY Contract Administrator by both email and regular mail on the business day following receipt of the request.
3) Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.
4) Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by LOCAL AGENCY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.
5) The CONSULTANT shall inform LOCAL AGENCY of the location of the records enumerated under paragraph (1) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.
6) The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (1) above. In the event the CONSULTANT or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to LOCAL AGENCY, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Such penalties shall be withheld by LOCAL AGENCY from payments then due. CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.
E. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the LOCAL AGENCY Contract Administrator.
F. Penalty
1) The CONSULTANT and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the CONSULTANT and any Subconsultant shall forfeit to the LOCAL AGENCY a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any 154
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public work done under the AGREEMENT by the CONSULTANT or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
2) The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the CONSULTANT or Subconsultant to pay the correct rates of prevailing wages.
A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under the Labor Code. The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.
3) In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the CONSULTANT or Subconsultant.
4) If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the prime CONSULTANT of th e project is not liable for the penalties described above unless the prime CONSULTANT had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the prime CONSULTANT fails to comply with all of the following requirements:
a. The AGREEMENT executed between the CONSULTANT and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815.
b. The CONSULTANT shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certified payroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the CONSULTANT shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining sufficient funds due the Subconsultant for work performed on the public works project.
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d. Prior to making final payment to the Subconsultant for work performed on the public works project, the CONSULTANT shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813.
5) Pursuant to Labor Code §1775, LOCAL AGENCY shall notify the CONSULTANT on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.
6) If LOCAL AGENCY determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if LOCAL AGENCY did not retain sufficient money under the AGREEMENT to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the CONSULTANT shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by LOCAL AGENCY.
G. Hours of Labor
1) Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to the LOCAL AGENCY, twenty-five dollars ($25) for each worker employed in the execution of the AGREEMENT by the CONSULTANT or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one and one-half (1.5) times the basic rate of pay, as provided in §1815.
H. Employment of Apprentices
1) Where either the prime AGREEMENT or the subagreement exceeds thirty thousand dollars ($30,000), the CONSULTANT and any subconsultants under him or h er shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.
2) CONSULTANTs and subconsultants are required to comply with all Labor Code requirements regarding the employment of apprentices, i ncluding mandatory ratios of journey level to apprentice workers. Prior to commencement of work, CONSULTANT and subconsultants are advised to 156
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contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey-to- apprentice ratios for the AGREEMENT work. The CONSULTANT is responsible for all subconsultants’ compliance with these requirements. Penalties are specified in Labor Code §1777.7.
ARTICLE XIII CONFLICT OF INTEREST
A. During the term of this AGREEMENT, the CONSULTANT shall disclose any financial, business, or other relationship with LOCAL AGENCY that may have an impact upon the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project. The CONSULTANT sh all also list current clients who may have a financial interest in the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project which will follow.
B. CONSULTANT certifies that it has disclosed to LOCAL AGENCY any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this AGREEMENT. CONSULTANT agrees to advise LOCAL AGENCY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of ex ecution of this AGREEMENT. CONSULTANT further agrees to complete any statements of economic interest if required by either LOCAL AGENCY ordinance or State law.
C. The CONSULTANT hereby certifies that it does not now have nor shall it acquire any financial o r business interest that would conflict with the performance of services under this AGREEMENT.
D. The CONSULTANT hereby certifies that the CONSULTANT or subconsultant and any firm affiliated with the CONSULTANT or subconsultant that bids on any construction contract or on any Agreement to provide construction inspection for any construction project resulting from this AGREEMENT, has established necessary controls to ensure a conflict of interest does not exist. An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.
ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION
The CONSULTANT warrants that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any LOCAL AGENCY employee. For breach or violation of this warranty, LOCAL AGENCY shall have the right, in its discretion, to terminate this AGREEMENT without liability, to pay only for the value of the work actually performed, or to deduct from this AGREEMENT price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
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ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR
FEDERAL FUNDS FOR LOBBYING
A. The CONSULTANT certifies, to the best of his or her knowledge and belief, that:
1) No State, Federal, or LOCAL AGENCY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this AGREEMENT, or with the extension, continuation, renewal, amendment, or modification of this AGREEMENT.
2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form- LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352.
Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.
C. The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subagreements, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.
ARTICLE XVI NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE
A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.
B. During the performance of this AGREEMENT, CONSULTANT and its subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or 158
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applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. CONSULTANT and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.
C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by LOCAL AGENCY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100- 8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.
D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or LOCAL AGENCY shall require to ascertain compliance with this clause.
E. CONSULTANT and its subconsultant s shall give written notice of their obligations under this clause to labor organizations with which they have a collective barg aining or other Agreement.
F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.
G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
H. The CONSULTANT shall comply with regulations relative to non- discrimination in federally-assisted programs of the U.S. Department of Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specif ically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
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I. CONSULTANT, subrecipient or subconsultant will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the LOCAL AGENCY components of the DBE Program Plan, CONSULTANT, subrecipient or subconsultant will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.
ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION
A. The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:
1) Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;
2) Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;
3) Does not have a proposed debarment pending; and
4) Has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.
B. Any exceptions to this certification must be disclosed to LOCAL AGENCY. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.
C. Exceptions to the Federal Government Excluded Parties List System maintained by the U.S. General Services Administration are to be determined by FHWA.
ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE)
PARTICIPATION
A. CONSULTANT, subrecipient (LOCAL AGENCY), or subconsultant shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contract (49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR 26.5, The LOCAL AGENCY shows a contract goal for DBEs. CONSULTANT shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers.
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CONSULTANT shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate good faith efforts to meet this goal. It is CONSULTANT’s responsibility to verify that the DBE firm is certified as DBE at date of proposal opening and document the record by printing out the California Unified Certification Program (CUCP) data for each DBE firm. A list of DBEs certified by the CUCP can be found at https://dot.ca.gov/programs/civil-rights/dbe-search.
All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies CONSULTANT purchases from DBEs counts towards the goal in the following manner:
1) 100 percent counts if the materials or supplies are obtained from a DBE manufacturer.
2) 60 percent counts if the materials or supplies are purchased from a DBE regular dealer.
3) Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49CFR26.55 defines "manufacturer" and "regular dealer."
This AGREEMENT is subject to 49 CFR Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. CONSULTANTs who enter into a federally-funded agreement will assist the LOCAL AGENCY in a good faith effort to achieve California's statewide overall DBE goal.
B. The goal for DBE participation for this AGREEMENT is 12%. Participation by DBE CONSULTANT or subconsultants shall be in accordance with information contained in Exhibit 10- O2: Consultant Contract DBE Commitment
attached hereto and
incorporated as part of the AGREEMENT. If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15- H: DBE Information – Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal. 161
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D. Contract Assurance
Under 49 CFR 26.13(b):
CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.
Failure by the CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
a. Withholding monthly progress payments;
b. Assessing sanctions;
c. Liquidated damages; and/or
d. Disqualifying CONSULTANT from future proposing as non-responsible
E. Termination and Replacement of DBE Subconsultants
CONSULTANT shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless CONSULTANT or DBE subconsultant obtains the LOCAL AGENCY’s written consent. CONSULTANT shall not terminate or replace a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the LOCAL AGENCY.
Unless the LOCAL AGENCY’s consent is provided, the CONSULTANT shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-02: Consultant Contract DBE Commitment form.
Termination of DBE Subconsultants
After execution of the AGREEMENT, termination of a DBE may be allowed for the following, but not limited to, justifiable reasons with prior written authorization from the LOCAL AGENCY:
1) Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.
2) The LOCAL AGENCY stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the LOCAL AGENCY’s bond requirements.
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3) Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.
4) Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5) Listed DBE's work is unsatisfactory and not in compliance with the contract.
6) Listed DBE is ineligible to work on the project because of suspension or debarment.
7) Listed DBE becomes bankrupt or insolvent or exhibits credit unworthiness.
8) Listed DBE voluntarily withdraws with written notice from the Contract.
9) Listed DBE is ineligible to receive credit for the type of work required.
10) Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.
11) The LOCAL AGENCY determines other documented good cause.
CONSULTANT must use the following procedures to request the termination of a DBE or portion of a DBE’s work:
• Send a written notice to the DBE of the CONSULTANT’s intent to use other forces or material sources and include one or more justifiable reasons l isted above. Simultaneously send a copy of this written notice to the LOCAL AGENCY. The written notice to the DBE must request they provide any response within five (5) business days to both the CONSULTANT and the LOCAL AGENCY by either acknowledging their agreement or documenting their reasoning as to why the use of other forces or sources of materials should not occur.
• If the DBE does not respond within five (5) business days, CONSULTANT may move forward with the request as if the DBE had agreed to CONSU LTANT’s written notice.
• Submit CONSULTANT’s DBE termination request by written letter to the LOCAL AGENCY and include:
• One or more above listed justifiable reasons along with supporting documentation.
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• CONSULTANT’s written notice to the DBE regarding the request, including proof of transmission and tracking documentation of CONSULTANT’s written notice.
• The DBE's response to CONSULTANT’s written notice, if received. If a written response was not provided, provide a statement to that effect.
The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE termination request within five (5) business days.
Replacement of DBE Subconsultants
After receiving the LOCAL AGENCY’s written authorization of DBE termination request, CONSULTANT must obta in the LOCAL AGENCY’s written agreement for DBE replacement. CONSULTANT must find or demonstrate GFEs to find qualified DBE replacement firms to perform the work to the extent needed to meet the DBE commitment.
The following procedures shall be followed to request authorization to replace a DBE firm:
1) Submit a request to replace a DBE with other forces or material sources in writing to the LOCAL AGENCY which must include:
• Description of remaining uncommitted work item made available for replacement DBE solicitation and participation.
• The proposed DBE replacement firm's business information, the work they have agreed to perform, and the following:
• Description of scope of work and cost proposal
• Proposed subcontract agreement and written confirmation of agreement to perform on the Contract
• Revised Exhibit 10-O2: Consultant Contract DBE Commitment
2) If CONSULTANT has not identified a DBE replacement firm, submits documentation of CONSULTANT’s GFEs to use DBE replacement firms within seven (7) days of LOCAL AGENCY's authorization to terminate the DBE.
CONSULTANT may request the LOCAL AGENCY's approval to extend this submittal period to a total of 14 days. Submit documentation of actions taken to find a DBE replacement firm, such as:
• Search results of certified DBEs available to perform the original DBE work identified and or other work CONSULTANT had intended to self - perform, to the extent needed to meet DBE commitment
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• Solicitations of DBEs for performance of work identified
• Correspondence with interested DBEs that may have included contract details and requirements
• Negotiation efforts with DBEs that reflect why an agreement was not reached
• If a DBE's quote was rejected, provide reasoning for the rejection, such as why the DBE was unqualified for the work, or why the price quote was unreasonable or excessive
• Copies of each DBE's and non- DBE's price quotes for work identified, as the LOCAL AGENCY may contact the firms to verify solicitation efforts and determine if the DBE quotes are substantially higher
• A dditional documentation that supports CONSULTANT’s GFE
The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE replacement request within five (5) business days.
F. Commitment and Utilization
The LOCAL AGENCY’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization.
The LOCAL AGENCY shall request CONSULTANT to:
1) Notify the LOCAL AGENCY’s contract administrator or designated representative of any changes to its anticipated DBE participation.
2) Provide this notification before starting the affected work.
3) Maintain records including:
a. Name and business address of each 1st-tier subconsultant.
b. Name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier.
c. Date of payment and total amount paid to each business (see Exhibit 9- F Monthly Disadvantaged Business Enterprise Payment)
If CONSULTANT is a DBE CONSULTANT, they shall include the date of work performed by their own forces and the corresponding value of the work.
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If a DBE is decertified before completing its work, the DBE must notify CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify CONSULTANT in writing of the certification date. CONSULTANT shall submit the notifications to the LOCAL AGENCY. On work completion, CONSULTANT shall complete a Disadvantaged Business Enterprises (DBE) Certification Status Change, Exhibit 17- O, form and submit the form to the LOCAL AGENCY within 30 days of contract acceptance.
Upon work completion, CONSULTANT shall complete Exhibit 17- F Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First -Tier Subcontractors and submit it to the LOCAL AGENCY within 90 days of contract acceptance. The LOCAL AGENCY will withhold $10,000 until the form is submitted. The LOCAL AGENCY will release the withhold upon submission of the completed form.
In the LOCAL AGENCY’s reports of DBE participation to Caltrans, the LOCAL AGENCY must display both commitments and attainments.
G. Commercially Useful Function
DBEs must perform a commercially useful function (CUF) under 49 CFR 26.55 when performing work or supplying materials listed on the DBE Commitment form. The DBE value of work will only count toward the DBE commitment if the DBE performs a CUF.
A DBE performs a CUF when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself.
CONSULTANT must perform CUF evaluation for each DBE working on a federal -aid contract, with or without a DBE goal. Perform a CUF evaluation at the beginning of the DBE’s work and continue to monitor the performance of CUF for the duration of the project.
CONSULTANT must provide writte n notification to the LOCAL AGENCY at least 15 days in advance of each DBE's initial performance of work or supplying materials for the Contract. The notification must include the DBE's name, work the DBE will perform on the contract, and the location, date, and time of where their work will take place.
Within 10 days of a DBE initially performing work or supplying materials on the Contract, CONSULTANT shall submit to the LPA the initial evaluation and validation of DBE performance of a CUF using the LAPM 9- J: Disadvantaged Business Enterprise Commercially Useful Function Evaluation. Include the following information with the submittal:
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• Subcontract agreement with the DBE
• Purchase orders
• Bills of lading
• Invoices
• Proof of payment
CONSULTANT must monitor all DBE’s performance of CUF by conducting quarterly evaluations and validations throughout their duration of work on the Contract using the LAPM 9-J: DBE Commercially Useful Function Evaluation. CONSULTANT must submit to the LOCAL AGENCY these quarterly evaluations and validations by the 5th of the month for the previous three months of work.
CONSULTANT must notify the LOCAL AGENCY immediately if they believe the DBE may not be performing a CUF.
The LOCAL AGENCY will verify DBEs performance of CUF by reviewing the initial and quarterly submissions of LAPM 9- J: DBE Commercially Useful Function Evaluation, submitted supporting information, field observations, and through any additional LOCAL AGENCY evaluations. The LOCAL AGENCY must evaluate DBEs and their CUF performance throughout the duration of a Contract. The LOCAL AGENCY will provide written notice to the CONSULTANT and the DBE at least two (2) business days prior to any evaluation. The CONSULTANT and the DBE must participate in the evaluation. Upon completing the evaluation, the LOCAL AGENCY must share the evaluation results with the CONSULTANT and the DBE. An evaluation could include items that must be remedied upon receipt. If the LOCAL AGENCY determines the DBE is not performing a CUF, the CONSULTANT must suspend performance of the noncompliant work.
CONSULTANT and DBEs must submit any additional CUF related records and documents within five (5) business days of LOCAL AGENCY’s request such as:
• Proof of ownership or lease and rental agreements for equipment
• Tax records
• Employee rosters
• Certified payroll records
• Inventory rosters
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Failure to submit required DBE Commercially Useful Function Evaluation forms or requested records and documents can result in withholding of payment for the value of work completed by the DBE.
If CONSULTANT and/or the LOCAL AGENCY determine that a listed DBE is not performing a CUF in performance of their DBE committed work, CONSULTANT must immediately suspend performance of the noncompliant portion of the work. LOCAL AGENCY may deny payment for the noncompliant portion of the work. LOCAL AGENCY will ask the CONSULTANT to submit a corrective action plan (CAP) to the LOCAL AGENCY within five (5) days of the noncompliant CUF determination. The CAP must identify how the CONSULTANT will correct the noncompliance findings for the remaining portion of the DBE's work. LOCAL AGENCY has five (5) days to review the CAP in conjunction with the CONSULTANT’s review. The CONSULTANT must implement the CAP within five (5) days of the LOCAL AGENCY's approval. The LOCAL AGENCY will then authorize the prior noncompliant portion of work for the DBE's committed work.
If corrective actions cannot be accomplished to ensure the DBE performs a commercially useful function on the Contract, CONSULTANT may have good cause to request termination of the DBE.
H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
J. CONSULTANT shall maintain records of materials purchased or supplied fr om all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
K. If a DBE subconsultant is decertified during the life of the AGREEMENT, t he decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the AGREEMENT, the subconsultant shall notify CONSULTANT in writing with the date 168
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of certificat ion. Any changes should be reported to LOCAL AGENCY’s Contract Administrator within thirty (30) calendar days.
L. For projects awarded on or after March 1, 2020, but before September 1, 2023: after submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consultant must complete and email Exhibit 9-F: Disadvantaged Business Enterprise Running Tally of Payments to [email protected] with a copy to local administering agencies.
For projects awarded on or after September 1, 2023: Exhibit 9-F is no longer required.
Instead, by the 15th of the month following the month of any payment(s), the CONSULTANT must now submit Exhibit 9- P to the LOCAL AGENCY administering the contract. If the CONSULTANT does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
M. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.
ARTICLE XXXII TITLE VI ASSURANCES
APPENDIX A
During the performance of this Agreement, the contractor, for itself, its assignees and successors in interest (hereinafter collectively referred to as CONSULTANT) agrees as follows:
a. Compliance with Regulations : CONSULTANT shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement.
b. Nondiscrimination: CONSULTANT, with regard to the work performed by it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub- applicants, including procurements of materials and leases of equipment.
CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations.
c. Solicitations for Sub- agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONSULTANT for work to be performed under a Sub- agreement, including 169
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procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by CONSULTANT of the CONSULTANT’S obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin.
d. Information and Reports: CONSULTANT shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA to be pertinent to ascertain compliance with such Regulations or directives. Where any information required of CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, CONSULTANT shall so certify to the recipient or FHWA as appropriate, and shall set forth what efforts CONSULTANT has made to obtain the information.
e. Sanctions for Noncompliance: In the event of CONSULTANT’s noncompliance with the nondiscrimination provisions of this agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
i. withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or
ii. cancellation, termination or suspension of the Agreement, in whole or in part.
f. Incorporation of Provisions: CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub- agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.
CONSULTANT shall take such action with respect to any sub-agreement or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, CONSULTANT may request the recipient enter into such litigation to protect the interests of the State, and, in addition, CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States.
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APPENDIX E
During the performance of this contract, the CONSULTANT, for itself, its assignees, and successors in interest (hereinafter referred to as the “CONSULTANT”) agrees to comply with the following nondiscrimination statutes and authorities, including, but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects);
• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex; • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age);
• Airport and Ai rway 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 applica bility of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration’s Non- discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination 171
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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 V I, 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).
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