HomeMy WebLinkAboutAGMT - OCTA (Agmt No C-5-3633 Arterial Pavement Mgmt Program Proj Westminster Avenue Rehab)1
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COOPERATIVE AGREEMENT NO. C -5 -3633
BETWEEN
ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
CITY OF SEAL BEACH
FOR
THE ARTERIAL PAVEMENT MANAGEMENT PROGRAM PROJECT
WESTMINSTER AVENUE REHABILITATION
FROM WEST CITY LIMITS TO SEAL BEACH BOULEVARD PROJECT
#1 (
THIS COOPERATIVE AGREEMENT is effective this Z day of V Lo P,(kq r
2016, by and between the Orange County Transportation Authority, 550 South Main Street, P.O. Box
14184, Orange, California 92863 -1584, a public corporation of the State of California (hereinafter
referred to as "AUTHORITY "), and City of Seal Beach, California, a municipal corporation duly
organized and existing under the constitution and laws of the State of California (hereinafter referred to
as "CITY ").
RECITALS:
WHEREAS, AUTHORITY and CITY desire to enter into a Cooperative Agreement to define the
roles and responsibilities related to funding between AUTHORITY and CITY for construction of
Westminster Avenue Rehabilitation from West City Limits to Seal Beach Boulevard Project as defined
in the scope of work provided in the Arterial Pavement Management Program 2014 Call for Projects
Application, herein incorporated by reference; (hereinafter referred to as "PROJECT'); and
WHEREAS, the Arterial Pavement Management Program is funded with Regional Surface
Transportation Program (hereinafter referred to as "RSTP ") funds, and
WHEREAS, the RSTP program is authorized under Moving Ahead for Progress in the 21"
Century (MAP -21) Federal Transportation Act; and
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AGREEMENT NO. C -5 -3633
1 WHEREAS, CITY is an eligible sub - recipient of Federal funding under the RSTP program, and
2 PROJECT is eligible for RSTP funding contingent on California Department of Transportation
3 (hereinafter referred to as "Caltrans ") and the Federal Highway Administration (hereinafter referred to
4 as FHWA) approval; and
5 WHEREAS, on January 12, 2015, AUTHORITY's Board of Directors, approved providing
6 funding of up to Five Hundred Thousand Dollars ($500,000) in RSTP funds to be matched with Five
7 Hundred Thousand Dollars ($500,000) in CITY funds for the construction phase; and
8 WHEREAS, CITY and AUTHORITY agree that the total full funding for PROJECT including
9 construction management and construction shall be One Million Dollars ($1,000,000) in accordance
10 with Exhibit A, entitled "Arterial Pavement Management Program Funding Plan ", which is attached
11 herein and incorporated by reference, and
12 WHEREAS, AUTHORITY and CITY agree that RSTP funding for PROJECT is contingent upon
13 funding being available through MAP -21 and PROJECT maintaining its eligibility for this funding; and
14 WHEREAS, AUTHORITY and CITY agree that Caltrans and FHWA authorization is required
15 following AUTHORITY's amendment to the Federal Transportation Improvement Program (hereinafter
16 referred to as "FTIP "), and in order to proceed or commence each phase of PROJECT for performance
17 under this Cooperative Agreement, and
18 WHEREAS, AUTHORITY is responsible for programming the funds to specific projects within
19 Orange County; and Caltrans administers the RSTP program on behalf of the FHWA and is responsible
20 for acquiring federal approvals for PROJECT on behalf of CITY, determining federal eligibility,
21 compliance with federal requirements, and reimbursement for project activities; and
22 WHEREAS, CITY agrees that AUTHORITY reserves the right to change the fund source
23 programmed to the PROJECT; and
24 WHEREAS, CITY agrees to act as lead agency for construction engineering, construction
25 management and construction of PROJECT; and
26 WHEREAS, this Cooperative Agreement defines the specific terms and conditions and funding
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AGREEMENT NO. C -5 -3633
1 responsibilities between AUTHORITY and CITY (hereinafter collectively referred to as "Parties' or
2 individually as "Party ") for completion of PROJECT; and
3 (� WHEREAS, CITY's Council approved the Cooperative Agreement on LLV!Iday of
4 bP—C 2015.
5 NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as
6 follows:
7 ARTICLE 1. COMPLETE AGREEMENT
8 A. This Agreement, including any attachments incorporated herein and made applicable by
9 reference, constitutes the complete and exclusive statement of the term(s) and condition(s) of this
10 Agreement between AUTHORITY and CITY and it supersedes all prior representations,
11 understandings, and communications. The invalidity in whole or in part of any term or condition of this
12 Agreement shall not affect the validity of other term(s) or condition(s) of this Agreement. The above
13 referenced Recitals are true and correct and are incorporated by reference herein.
14 B. AUTHORITY's failure to insist on any instance(s) of CITY's performance of any term(s)
15 or condition(s) of this Agreement shall not be construed as a waiver or relinquishment of AUTHORITY's
16 right to such performance or to future performance of such term(s) or condition(s), and CITY's obligation
17 in respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall
18 not be binding upon AUTHORITY except when specifically confirmed in writing by an authorized
19 representative of AUTHORITY by way of a written amendment to this Agreement and issued in
20 accordance with the provisions of this Agreement.
21 C. CITY's failure to insist on any instance(s) of AUTHORITY's performance of any term(s)
22 or condition(s) of this Agreement shall not be construed as a waiver or relinquishment of CITY's right to
23 such performance or to future performance of such term(s) or condition(s), and AUTHORITY's
24 obligation in respect thereto shall continue in full force and effect. Changes to any portion of this
25 Agreement shall not be binding upon CITY except when specifically confirmed in writing by an
26 authorized representative of CITY by way of a written amendment to this Agreement and issued in
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AGREEMENT NO. C -5 -3633
1 accordance with the provisions of this Agreement.
2 ARTICLE 2. SCOPE OF AGREEMENT
3 This Agreement specifies the roles and responsibilities of the Parties as they pertain to the
4 subjects and projects addressed herein. Both AUTHORITY and CITY agree that each will cooperate
5 and coordinate with the other in all activities covered by this Agreement and any other supplemental
6 agreements that may be required to facilitate purposes thereof.
7 ARTICLE 3. RESPONSIBILITIES OF AUTHORITY
8 AUTHORITY agrees to the following responsibilities for PROJECT:
9 A. AUTHORITY shall formally request on behalf of CITY that the Southern California
10 Association of Governments (hereinafter referred to as "SCAG ") amend the FTIP to program up to the
11 amount in accordance with the funding plan outlined in Exhibit A, whereby AUTHORITY's performance
12 under this Cooperative Agreement is contingent upon SCAG, Caltrans and FHWA approval.
13 B. AUTHORITY shall provide assistance to CITY in securing the RSTP funds.
14 C. AUTHORITY shall not be obligated to program any amount beyond what has been
15 identified in this Agreement and what is ultimately approved for the PROJECT by Caltrans and FHWA.
16 D. AUTHORITY shall process any required FTIP amendments.
17 E. AUTHORITY shall review and approve CITY's request for obligation of RSTP funds prior
18 to submittal to Caltrans District 12.
19 F. AUTHORITY may cancel projects for which CITY has not submitted request for
20 authorization to proceed (hereinafter referred to as "E -76 Request ") or has not advanced PROJECT to
21 ready -to -list stage as determined by Caltrans guidelines by February 1 of the fiscal year identified in
22 Exhibit A as required in Article 4, paragraph E.
23 /
24 /
25 /
26 /
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AGREEMENT NO. C -5 -3633
ARTICLE 4. RESPONSIBILITIES OF CITY
CITY agrees to the following responsibilities for PROJECT:
CITY shall act as the lead agency for the construction engineering, construction and construction
management of PROJECT.
A. CITY shall comply with all local, state, and federal project delivery requirements
including but not limited to Disadvantaged Business Enterprise, American with Disabilities Act, and Buy
America provisions.
B. CITY shall submit National Environmental Policy Act (NEPA) and the California
Environmental Quality Act (CEQA) environmental documentation to Caltrans for approval by November
1 of the programming fiscal year as provided in the project schedule in Exhibit A.
C. CITY is responsible for preparing and submitting to AUTHORITY an Engineer's
Estimate of PROJECT cost ninety (90) days prior to E -76 Request, and no later than November 1 of the
fiscal year identified in Exhibit A.
D. CITY is responsible for preparing and submitting all necessary Caltrans- required
documentation including E -76 Request. CITY agrees to submit an E -76 Request to Caltrans District 12
by February 1 of the fiscal year identified in Exhibit A.
E. CITY acknowledges that if the E -76 Request is not submitted to Caltrans with a copy to
AUTHORITY by February 1, or CITY has not advanced PROJECT to ready -to -list stage as determined
through Caltrans guidelines by this date, the proposed funding shall be cancelled by AUTHORITY.
F. CITY acknowledges that they will not advertise for construction until the E -76 request is
approved by FHWA
G. CITY shall provide Fifty Percent (50 %) of the Construction costs in CITY funds as the
required local match consistent with Exhibit A. Any savings recognized in the Construction Phase will
be credited or reimbursed proportionally to the amount contributed to the Construction phase by each
fund type.
H. CITY shall invoice Caltrans at minimum once every six (6) months.
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AGREEMENT NO. C -5 -3633
1 I. CITY agrees that any cost overruns shall be the responsibility of CITY.
2 J. CITY shall submit semi - annual status reports for PROJECT to AUTHORITY due on
3 March 1 for the prior six -month (6) period (July through December) and due on September 1 for the
4 prior six -month (6) period (EXHIBIT B, entitled "Arterial Pavement Management Program Semi - Annual
5 Report Form ").
6 K. CITY shall submit a final report to AUTHORITY within six (6) months of Caltrans
7 payment of final progress invoice for PROJECT in accordance with Exhibit C, entitled "Arterial
8 Pavement Management Program Final Project Report Form."
9 L. CITY is responsible for completing PROJECT in accordance with the funding plan
10 (EXHIBIT A), and to abide by Caltrans Local Assistance Procedure Manual, all RSTP programming
11 guidelines, and any and all other federal, state, and Caltrans requirements.
12 M. CITY shall comply with all Federal, third party contracting laws and regulations pursuant
13 to FTA Circular 4220.1 F and in accordance with Exhibit D, entitled "Federal Clauses."
14 ARTICLE 5. DELEGATED AUTHORITY
15 The actions required to be taken by CITY in the implementation of this Agreement are
16 delegated to its, Public Works Director, or designee, and the actions required to be taken by
17 AUTHORITY in the implementation of this Agreement are delegated to AUTHORITY's Chief Executive
18 Officer or designee.
19 ARTICLE 6. AUDIT AND INSPECTION
20 AUTHORITY and CITY shall maintain a complete set of records in accordance with generally
21 accepted accounting principles. Upon reasonable notice, CITY shall permit the authorized
22 representatives of AUTHORITY to inspect and audit all work, materials, payroll, books, accounts, and
23 other data and records of CITY for a period of four (4) years after final payment by Caltrans, or until any
24 on -going audit is completed. For purposes of audit, the date of completion of this Agreement shall be
25 the date of CITY's payment of AUTHORITY's final billing (so noted on the invoice) under this
26 Agreement. AUTHORITY shall have the right to reproduce any such books, records, and accounts. The
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AGREEMENT NO. C -5 -3633
1 above provision with respect to audits shall extend to and /or be included in contracts with CITY's
2 contractor.
3 ARTICLE 7. INDEMNIFICATION
4 A. To the fullest extent permitted by law, CITY shall defend (at CITY's sole cost and
5 expense with legal counsel reasonably acceptable to AUTHORITY), indemnify, protect, and hold
6 harmless AUTHORITY, its officers, directors, employees, and agents (collectively the "Indemnified
7 Parties "), from and against any and all liabilities, actions, suits, claims, demands, losses, costs,
8 judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses
9 including legal costs and attorney fees (collectively "Claims "), including but not limited to Claims arising
10 from injuries to or death of persons (CITY's employees included), for damage to property, including
11 property owned by AUTHORITY, or from any violation of any federal, state, or local law or ordinance,
12 alleged to be caused by the negligent acts, omissions or willful misconduct of CITY, its officers,
13 directors, employees or agents in connection with or arising out of the performance of this Agreement.
14 B. To the fullest extent permitted by law, AUTHORITY shall defend (at AUTHORITY's sole
15 cost and expense with legal counsel reasonably acceptable to CITY), indemnify, protect, and hold
16 harmless CITY, its officers, directors, employees, and agents (collectively the "Indemnified Parties'),
17 from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments,
18 arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal
19 costs and attorney fees (collectively "Claims "), including but not limited to Claims arising from injuries to
20 or death of persons (AUTHORITY's employees included), for damage to property, including property
21 owned by CITY, or from any violation of any federal, state, or local law or ordinance, alleged to be
22 caused by the negligent acts, omissions or willful misconduct of AUTHORITY, its officers, directors,
23 employees or agents in connection with or arising out of the performance of this Agreement.
24 C. The indemnification and defense obligations of this Agreement shall survive its
25 expiration or termination.
26 /
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AGREEMENT NO. C -5 -3633
1 ARTICLE 8. ADDITIONAL PROVISIONS
2 A. Term of Agreement: This Agreement shall be effective upon execution by both Parties,
3 and shall be in full force and effect through December 2018 or until final acceptance by AUTHORITY,
4 whichever is later.
5 B. Termination: In the event either Party defaults in the performance of their obligations
6 under this Agreement or breaches any of the provisions of this Agreement, the non - defaulting Party
7 shall have the option to terminate this Agreement upon thirty (30) days' prior written notice to the other
8 Party.
9 C. Termination for Convenience: Either Party may terminate this Agreement for its
10 convenience by providing thirty (30) days' prior written notice of its intent to terminate for convenience to
11 the other Party, provided that all outstanding requests for funding or project approvals by CITY pursuant
12 to this Agreement have been satisfied.
13 D. Amendments: This Agreement may be amended in writing at any time by the mutual
14 consent of both Parties. No amendment shall have any force or effect unless executed in writing by
15 both Parties.
16 E. Compliance: AUTHORITY and CITY shall comply with all applicable federal, state, and
17 local laws, statues, ordinances and regulations of any governmental authority having
18 jurisdiction over the PROJECT.
19 F. Legal Authority: AUTHORITY and CITY hereto consent that they are authorized to
20 execute this Agreement on behalf of said Parties and that, by so executing this Agreement, the Parties
21 hereto are formally bound to the provisions of this Agreement.
22 G. Severability: If any term, provision, covenant or condition of this Agreement is held to be
23 invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the
24 remainder of this Agreement shall not be affected thereby, and each term, provision, covenant or
25 condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
26 H. Counterparts of Agreement: This Agreement may be executed and delivered in any
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AGREEMENT NO. C -5 -3633
1 number of counterparts, each of which, when executed and delivered shall be deemed an original and
2 all of which together shall constitute the same agreement. Facsimile or electronic signatures will be
3 permitted.
4 I. Force Majeure: Either Party shall be excused from performing its obligations under this
5 Agreement during the time and to the extent that it is prevented from performing by an unforeseeable
6 cause beyond its control, including but not limited to; any incidence of fire, flood; acts of God;
7 commandeering of material, products, plants or facilities by the federal, state or local government;
8 national fuel shortage; or a material act or omission by the other Party; when satisfactory evidence of
9 such cause is presented to the other Party, and provided further that such nonperformance is
10 unforeseeable, beyond the control and is not due to the fault or negligence of the Party not performing.
11 J. Assignment: Neither this Agreement, nor any of the Parties' rights, obligations, duties,
12 or authority hereunder may be assigned in whole or in part by either Party without the prior written
13 consent of the other Party in its sole and absolute discretion. Any such attempt of assignment shall be
14 deemed void and of no force and effect. Consent to one assignment shall not be deemed consent to
15 any subsequent assignment, nor the waiver of any right to consent to such subsequent assignment.
16 K. Governing Law: The laws of the State of California and applicable local and federal
17 laws, regulations and guidelines shall govern this Agreement.
18 L. Litigation fees: Should litigation arise out of this Agreement for the performance thereof,
19 the court shall award costs and expenses, including attorney's fees, to the prevailing Party.
20 M. Notices: Any notices, requests, or demands made between the Parties pursuant to this
21 Agreement are to be directed as follows:
22 /
23 /
24 /
25 /
26 /
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AGREEMENT NO. C -5 -3633
To CITY:
To AUTHORITY:
City of Seal Beach
Orange County Transportation Authority
211 8th Street
550 South Main Street
Seal Beach, California 90740
P. O. Box 14184
Attn: Director of Public Works
Orange, CA 92863 -1584
Attention: Seamy . tC.-011
Attention: Ben Ku
Ekp-k erector of Public Works
Senior Transportation Funding Analyst
el: (562) 431 -2527
Tel: (714) 560 -5473
E -mail: aeraP;by(c,seal beach. ca. gov
E -mail. Bku(o)octa.net
r+l ho
i
i
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AGREEMENT NO. C-6 -3633
This Agreement shall be made effective upon execution by both Parties.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement No. C- 5-3633 to be
executed on the date first written above.
CITY OF SEAL BEACH ORANGE COUNTY TRANSPORTATION AUTHORITY
City Clerk
APPROVED AS TO
By: Lam/ Z - v
— SteVai CFTdwer
City Attorney
Dated bQr 1 � -a10
M
Darrell .lghngoe
Chief E ec ve Officer
APPROVED AS TO FORM:
By: el
/.Tames M. Donich
General Counsel
APPROVAL RECOMM ED.
By:
Kia Mortazavi
Executive Director, Planning
Dated:
Page 11 of 11
/`— 5-15-
AGREEMENT NO. C -5 -3633
EXHIBIT A
ARTERIAL PAVEMENT MANAGEMENT PROGRAM
FUNDING PLAN
Project Title: Westminster Avenue Rehabilitation from West City Limits to
Seal Beach Boulevard Project
Agency: City of Seal Beach
Date:
Schedule
Original
Completion
Date
Begin Environmental Document
9/1/14
Final Environmental Document
2/1/16
Begin Design Engineering
9/1/14
Plans Specifications, and Estimates Complete
2/1/16
Submit Request for Authorization to Proceed E -76
2/1/16
Begin Construction
4/1/16
End Construction
1 6/1/16
Construction ($000's)
Fund Source
Fiscal
Year
Planned
Obligation
RSTP
FY15/16
$500,000
Local Match 50%
FY15/16
$500,000
TOTAL
$1,000,000
Date:l2- -f3-15 By
Project Manager
AGREEMENT NO. C -5 -3633
EXHIBIT B
ARTERIAL PAVEMENT MANAGEMENT PROGRAM
SEMI - ANNUAL REPORT FORM
Project Title: Westminster Avenue Rehabilitation from West City Limits to
Seal Beach Boulevard Project
Agency: City of Seal Beach
Date:
Schedule
Original
Completion
Date
Current
Completion
Date
Begin Environmental Document
9/1/14
Remaining
Allocation
Final Environmental Document
2/1/16
$500,000
Begin Design Engineering
9/1/14
Plans Specifications, and Estimates Complete
2/1/16
$500,000
Submit Request for Authorization to Proceed E -76
2/1/16
Begin Construction
4/1/16
End Construction
6/1/16
Construction ($000's)
Fund Source
Fiscal
Year
Planned
Obligation
Revised
Obli ation
Actual
Expenditure
Remaining
Allocation
RSTP
FY15/16
$500,000
50%
Local Match (50%T_
FY15/16
$500,000
TOTAL
$1,000,000
Major Activities:
Status:
Issues:
Name/Title:
Note: OCTA may require additional information on performance of the project related to either air quality or transportation
usage
AGREEMENT NO. C -5 -3633
EXHIBIT C
ARTERIAL PAVEMENT MANAGEMENT PROGRAM
FINAL PROJECT REPORT FORM
Date
OCTA
Instructions
The responsible agency should fill out the following: 1) Final Project Form, 2) Final Cost, 3) Certificate of
Completion. Page 4, the OCTA Staff Verification will be filled out by OCTA staff. In addition, the agency must
attach before (if available) and after photographs of the project site and the address or location of the site under
the Location and Scope of work section.
Location and Scope of Work
Verification of Match
(Actual Expenditures)
Local Match
Phase
(ENTER
SOURCE)
(ENTER _
SOURCE)
(ENTER
SOURCE)
RSTP'
Other
OCTA
Funding
Total
Engineering
$ -
$ -
$ -
$ -
$ -
$ -
Right -of -Way
$ -
$ -
$ -
$ -
$ -
$ -
Construction
$ -
$ -
$ -
$ -
$ -
$ -
Total
$ -
$ -
$ -
$ -
$ -
$ -
Proiect Schedule
Phase
Proposed
Actual
Draft Environmental Document
Final Environmental Document
Begin Design Engineering
Plans, Specifications, and Cost Estimates complete
Start Right-of-Way Acquisition
Right-of-Way Certification
Read to Advertise
Award Construction
Project Completion (open for use)
Match
Rate
0%
Page 1
AGREEMENT N0. C -5 -3633
EXHIBIT C
MARTERIAL PAVEMENT MANAGEMENT PROGRAM
OCTA
Item
Page 1
AGREEMENT NO. C -5 -3633
EXHIBIT C
ARTERIAL PAVEMENT MANAGEMENT PROGRAM
FINAL PROJECT REPORT FORM
OCTA
I hereby certify that the statements provided here are true and correct.
Proiect Title
1 The project is designed to city /county and other participating jurisdictions' standards.
❑
❑
❑
2 The project contract was awarded on: ENTER DATE
❑
❑
❑
3 The total cost of the contract is equal to or less than the total APM
❑
❑
❑
funds awarded and matching funds provided.
4 The city /county provided matching funds to the project.
❑
❑
❑
5 Right -of -way was acquired in conformance with city /county procedures.
❑
❑
❑
6 All required environmental documentation is complete and certified.
❑
❑
❑
7 An updated project schedule is included with the final invoice.
❑
❑
❑
8 The final invoice is attached with all the necessary documentation.
❑
❑
❑
Name
Title
Signature Date
Page 1
AGREEMENT NO. C -5 -3633
EXHIBIT C
pp ARTERIAL PAVEMENT MANAGEMENT PROGRAM
FINAL PROJECT REPORT FORM
OCTA
OCTA STAFF USE ONLY
Orange County Transportation Authority staff has inspected the project site and
certifies that the project is complete and ready for use.
Proiect Title
Name
Title
Signature Date
Page 1
REQUIRED FEDERAL CLAUSES
DEFINITIONS
AGREEMENT NO. C -5 -3633
EXHIBIT D
The Orange County Transportation Authority, (hereinafter referred to as "AUTHORITY ").
, (hereinafter referred to as "CITY ")
ARTICLE 1. FEDERAL CHANGES
CITY shall at all times comply with all applicable FTA regulations, policies, procedures
and directives, including without limitation those listed directly or by reference in the agreement
between the AUTHORITY and FTA, as they may be amended or promulgated from time to time
during this Agreement. CITY's failure to comply shall constitute a material breach of contract.
ARTICLE 2. NO FEDERAL GOVERNMENT OBLIGATION TO THIRD PARTIES
AUTHORITY and CITY acknowledge and agree that, notwithstanding any concurrence
by the Federal Government in or approval of the solicitation or award of the underlying
Agreement, absent the express written consent by the Federal Government, the Federal
Government is not a party to this Agreement and shall not be subject to any obligations or
liabilities to the AUTHORITY, CITY, or any other party (whether or not a party to this Agreement)
pertaining to any matter resulting from the underlying Agreement. CITY agrees to include these
requirements in all of its subcontracts.
ARTICLE 3. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND
RELATED ACTS
A. CITY acknowledges that the provisions of the Program Fraud Civil Remedies Act of
1986, as amended, 31 U.S.C. § §3801 et seq. and U.S. DOT regulations, "Program Fraud Civil
Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this project. Accordingly, by
signing this Agreement, CITY certifies or affirms the truthfulness and accuracy of any statement it
has made, it makes, it may make, or causes to be made, pertaining to the underlying Agreement
of the FTA assisted project for which this Agreement's work is being performed. CITY also
acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim,
statement, submission, or certification, the Federal Government reserves the right to impose
penalties of the Program Fraud Civil Remedies Act of 1986 on the CITY to the extent the Federal
Government deems appropriate.
B. CITY also acknowledges that if it makes, or causes to be made, a false, fictitious, or
fraudulent claim, statement, submission, or certification to the Federal Government under an
agreement connected with a project that is financed in whole or part with Federal assistance
awarded by FTA under the authority of 49 U.S.C. §5307 et seq., the Government reserves the
right to impose the penalties of 18 U.S.C. §1001 and 49 U.S.C. §5307(n) (1) et seq. on the CITY,
to the extent the Federal Government deems appropriate. CITY agrees to include this
requirement in all of its subcontracts.
Orange County Transportation Authority
Revised. 0510612014
AGREEMENT NO. C -5 -3633
EXHIBIT D
ARTICLE 4. CIVIL RIGHTS ASSURANCE
During the performance of this Agreement, CITY, for itself, its assignees and successors
in interest agree as follows:
A. Compliance with Regulations: CITY shall comply with the Regulations relative to
nondiscrimination in federally assisted programs of the Department of Transportation
(hereinafter, "DOT ") 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: CITY, with regard to the work performed by it during the
Agreement, shall not discriminate on the grounds of race, color, or national origin in the selection
and retention of subcontractors, including procurements of materials and leases of equipment.
The CITY 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 Subcontracts, Including Procurement of Materials and Equipment: In
all solicitations either by competitive bidding or negotiation made by the CITY for work to be
performed under a subcontract, including procurements of materials or leases of equipment,
each potential subcontractor or supplier shall be notified by the CITY of the CITY's obligations
under this Agreement and the Regulations relative to nondiscrimination on the grounds of race,
color, or national origin.
D. Information and Reports: CITY 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
AUTHORITY to be pertinent to ascertain compliance with such Regulations, orders and
instructions. Where any information required of a CITY is in the exclusive possession of another
who fails or refuses to furnish this information the CITY shall so certify to the AUTHORITY as
appropriate, and shall set forth what efforts it has made to obtain the information.
E. Sanctions for Noncompliance: In the event of the CITY's noncompliance with
nondiscrimination provisions of this Agreement, the AUTHORITY shall impose Agreement
sanctions as it may determine to be appropriate, including, but not limited to:
1. Withholding of payments to the CITY under the Agreement until the CITY
complies; and /or
2. Cancellation, termination, or suspension of the Agreement, in whole or in part.
F. Title VI of the Civil Rights Act. In determining the types of property or services to
acquire, no person in the United States shall, on the grounds of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or otherwise be subjected to
discrimination under any program or activity receiving Federal financial assistance in violation of
Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sections 2000d et seq. and DOT
regulations, "Nondiscrimination in Federally Assisted Programs of the Department of
Transportation— Effectuation of Title VI of the Civil Rights Act of 1964," 49 CFR Part 21. In
addition, FTA Circular 4702.1, "Title VI and Title VI- Dependent Guidelines for FTA Recipients,"
05- 13 -07, provides FTA guidance and instructions for implementing DOT's Title VI regulations.
G. The Americans with Disabilities Act of 1990, as amended (ADA), 42 U.S.C. Sections
12101 et seq., prohibits discrimination against qualified individuals with disabilities in all
programs, activities, and services of public entities, as well as imposes specific requirements on
public and private providers of transportation.
H. Incorporation of Provisions: CITY shall include the provisions of paragraphs (A)
through (H) in every subcontract, including procurements of materials and leases of equipment,
unless exempt by the Regulations, or directives issued pursuant thereto. The CITY shall take
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such action with respect to any subcontract or procurement as the AUTHORITY may direct as a
means of enforcing such provisions including sanctions for noncompliance. Provided, however,
that in the event a CITY becomes involved in, or is threatened with, litigation with a subcontractor
or supplier as a result of such direction, the CITY may request the AUTHORITY to enter into
such litigation to protect the interests of the AUTHORITY, and, in addition, the CITY may request
the United States to enter into such litigation to protect the interests of the United States.
ARTICLE 5. DBE CONTRACT PROVISIONS FOR FTA- ASSISTED CONTRACTS WITH
DISADVANTAGED BUSINESS ENTERPRISE (DBE) GOALS
DBE Participation
It is the Consultant's responsibility to be fully informed regarding the requirements of 49 CFR,
Part 26 and the Orange County Transportation Authority's (Authority's) DBE program
developed pursuant to these regulations. Particular attention is directed to the following:
A. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be certified
through the California Unified Certification Program (CUCP).
B. A certified DBE may participate as a prime consultant, subconsultant, joint venture
partner, as a vendor of material or supplies, or as a trucking company.
C. A DBE must perform a commercially useful function pursuant to 49 CFR 26.55 that is, a
DBE firm must be responsible for the execution of a distinct element of the work and must
carry out its responsibility by actually performing, managing and supervising the work.
D. Consultant must not claim DBE participation as attained until the amount to be claimed is
paid and fully adheres to DBE crediting provisions.
If the Consultant has committed to utilize DBE(s) in the performance of this DOT - assisted
contract, the Consultant's submitted "DBE Participation Commitment Form" will be utilized to
monitor Consultant's DBE commitments, unless otherwise directed and /or approved by the
Authority prior to the Consultant effectuating any changes to its DBE participation
commitment(s) (Refer to Subsection H: "Performance of DBE Subconsultants').
Consultant must complete and submit all required DBE documentation to effectively capture
all DBE utilization on the Authority's DOT - assisted contracts whether achieved race neutrally
or race consciously. Even if a Consultant has not committed to utilize DBE(s) in the
performance of this contract, the Consultant must execute and submit all required DBE forms
and other related documentation as specified under this contract or as otherwise requested
by the Authority. No changes to the Consultant's DBE Commitment must be made until
proper protocols for review and approval of the Authority are rendered in writing.
To ensure full compliance with the requirements of 49 CFR, Part 26 and the Authority's DBE
Program, the Consultant must:
A. Take appropriate actions to ensure that it will continue to meet the DBE Commitment
at the minimal level committed to at award or will satisfy the good faith efforts to meet
the DBE Commitment, when change orders or other contract modifications alter the
dollar amount of the contract or the distribution of work. The Consultant must apply and
report its DBE goal commitments against the total Contract Value, including any contract
change orders and /or amendments.
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DBE Policv and Aimlicabilit
In accordance with federal financial assistance agreements with the U.S. Department of
Transportation (U.S. DOT), the Authority has adopted a Disadvantaged Business Enterprise
(DBE) Policy and Program, in conformance with Title 49 CFR, Part 26, "Participation by
Disadvantaged Business Enterprises in Department of Transportation Programs ".
The project is subject to these stipulated regulations and the Authority's DBE program. In
order to ensure that the Authority achieves its overall DBE Program goals and objectives, the
Authority encourages the participation of DBEs as defined in 49 CFR, Part 26 in the
performance of contracts financed in whole or in part with U.S. DOT funds. Pursuant to the
intent of these Regulations, it is also the policy of the Authority to:
Fulfill the spirit and intent of the Federal DBE Program regulations published under U.S. DOT
Title 49 CFR, Part 26, by ensuring that DBEs have equitable access to participate in all of
Authority's DOT - assisted contracting opportunities.
Ensure that DBEs can fairly compete for and perform on all DOT - assisted contracts and
subcontracts.
Ensure non - discrimination in the award and administration of Authority's DOT - assisted
contracts.
Create a level playing field on which DBEs can compete fairly for DOT - assisted contracts.
Ensure that only firms that fully meet 49 CFR, Part 26 eligibility standards are permitted to
participate as DBEs.
Help remove barriers to the participation of DBEs in DOT - assisted contracts.
Assist in the development of firms that can compete successfully in the marketplace outside
the DBE Program.
Consultant must not discriminate on the basis of race, color, national origin, or sex in the
award and performance of subconsultant.
Any terms used in this section that are defined in 49 CFR, Part 26, or elsewhere in the
Regulations, must have the meaning set forth in the Regulations. In the event of any
conflicts or inconsistencies between the Regulations and the Authority's DBE
Program with respect to DOT - assisted contracts, the Regulations must prevail.
III. Authority's DBE Policy Implementation Directives
Pursuant to the provisions associated with federal regulation 49 CFR, Part 26, the
Disadvantaged Business Enterprise (DBE) program exists to ensure participation, equitable
competition, and assistance to participants in the USDOT DBE program. Accordingly, based
on the Authority's analysis of its past utilization data, coupled with its examination of similar
Agencies' Disparity Study and recent Goal Methodology findings the Authority has
implemented the reinstatement of the DBE program utilizing both race - conscious and race -
neutral means across the board as all protected groups participation have been affected
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using strictly race neutral means on its FTA- assisted contracts.
The Authority reinstates the use of contract goals and good faith efforts. Meeting the contract-
specific goal by committing to utilize DBEs or documenting a bona fide good faith effort to do
so, is a condition of award. Additionally, contract - specific goals are now specifically targeted
at DBEs (DBEs owned and controlled by Black Americans, Hispanic Americans, Asian -
Pacific Americans, Native Americans, Asian - Pacific Americans, Sub - Continent Asian
Americans, and Women). In the event of a substitution, a DBE must be substituted with
another DBE or documented adequate good faith efforts to do so must be made, in order to
meet the contract goal and DBE contract requirements.
Definitions
The following definitions apply to the terms used in these provisions:
"Disadvantaged Business Enterprise (DBE)" means a small business concern: (a)
which is at least 51 percent owned by one or more socially and economically
disadvantaged individuals or, in the case of any publicly -owned business, at least 51
percent of the stock of which is owned by one or more socially and economically
disadvantaged individuals; and (b) whose management and daily business operations
are controlled by one or more of the socially and economically disadvantaged individuals
who own it.
2. "Small Business Concern" means a small business as defined pursuant to Section 3 of
the Small Business Act and relevant regulations promulgated pursuant thereto, except
that a small business concern must not include any concern or group of concerns
controlled by the same socially and economically disadvantaged individual or individuals
which has annual average gross receipts in excess of $19.57 million over the previous
three fiscal years.
3. "Socially and Economically Disadvantaged Individuals" means those individuals who
are citizens of the United States (or lawfully admitted permanent residents) and who are
Black Americans, Hispanic Americans, Native Americans, Asian - Pacific Americans, or
Asian - Indian Americans, women and any other minorities or individuals found to be
disadvantaged by the Small Business Administration pursuant to Section 8(a) of the
Small Business Act, or by the Authority pursuant to 49 CFR part 26.65. Members of the
following groups are presumed to be socially and economically disadvantaged:
A. 'Black Americans," which includes persons having origins in any of the Black racial
groups of Africa;
B. "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban,
Central or South American, or other Spanish or Portuguese culture or origin,
regardless of race;
C. "Native Americans," which includes persons who are American Indians, Eskimos,
Aleuts, or Native Hawaiians;
D. "Asian - Pacific Americans," which includes persons whose origins are from Japan,
China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the
U.S. Trust Territories of the Pacific, and the Northern Marianas;
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E. "Asian- Indian Americans," which includes persons whose origins are from India,
Pakistan, and Bangladesh; and
F. Women, regardless of ethnicity or race.
4. "Owned and Controlled" means a business: (a) which is at least 51 percent owned by
one or more "Socially and Economically Disadvantaged Individuals" or, in the case of a
publicly -owned business, at least 51 percent of the stock of which is owned by one or
more "Socially and Economically Disadvantaged Individuals "; and (b) whose
management and daily business operations are controlled by one or more such
individuals.
5. "Manufacturer" means a firm that operates or maintains a factory or establishment that
produces on the premises the materials or supplies obtained by the Consultant.
6. "Regular Dealer" means a firm that owns, operates or maintains a store, warehouse, or
other establishment in which the materials or supplies required for the performance of the
contract are bought, kept in stock, and regularly sold to the public in the usual course of
business. The firm must engage in, as its principal business, and in its own name, the
purchase and sale of the product in question. A regular dealer in such bulk items as steel,
cement, gravel, stone and petroleum products need not keep such products in stock if it
owns or operates distribution equipment.
7. "Fraud" includes a firm that does not meet the eligibility criteria of being a certified DBE
and that attempts to participate in a DOT - assisted program as a DBE on the basis of
false, fraudulent, or deceitful statements or representations or under circumstances
indicating a serious lack of business integrity or honesty. The Authority may take
enforcement action under 49 CFR, Part 31, Program Fraud and Civil Remedies, against
any participant in the DBE program whose conduct is subject to such action under 49
CFR, Part 31. The Authority may refer the case to the Department of Justice, for
prosecution under 18 U.S.C. 1001 or other applicable provisions of law, any person who
makes a false or fraudulent statement in connection with participation of a DBE in any
DOT - assisted program or otherwise violates applicable Federal statutes.
"Other Socially and Economically Disadvantaged Individuals" means those
individuals who are citizens of the United States (or lawfully admitted permanent
residents) and who, on a case -by -case basis, are determined by Small Business
Administration or a recognized California Unified Certification Program Certifying Agency
to meet the social and economic disadvantage criteria described below.
A. "Social Disadvantage"
1. The individual's social disadvantage must stem from his /her color, national origin, gender,
physical handicap, long -term residence in an environment isolated from the mainstream
of American society, or other similar cause beyond the individual's control.
2. The individual must demonstrate that he /she has personally suffered social disadvantage.
3. The individual's social disadvantage must be rooted in treatment, which he /she has
experienced in American society, not in other countries.
4. The individual's social disadvantage must be chronic, longstanding and substantial, not
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fleeting or insignificant.
5. The individual's social disadvantage must have negatively affected his /her entry into
and /or advancement in the business world.
6. A determination of social disadvantage must be made before proceeding to make a
determination of economic disadvantage.
B. "Economic Disadvantage"
1. The individual's ability to compete in the free enterprise system has been impaired due to
diminished capital and credit opportunities, as compared to others in the same line of
business and competitive market area that are not socially disadvantaged.
2. The following criteria will be considered when determining the degree of diminished credit
and capital opportunities of a person claiming social and economic disadvantage:
With respect to the individual:
• availability of financing bonding capability
• availability of outside equity capital
• available markets
With respect to the individual and the business concern:
• personal and business assets
• personal and business net worth
personal and business income and profits
IV. Submission of DBE Information and Ongoing Reporting Requirements (Post- Award)
If there is a DBE goal on the contract, Consultant must complete and submit the following
DBE exhibits (forms) consistent with Consultant DBE Goal Commitment within the
specified timelines. Even if no DBE participation will be reported, the Consultant must
execute and return the form:
1. "Monthly DBE Subconsultant Commitment and Attainment Report Summary and
Payment Verification " (Form 103)
The purpose of this form is to ensure Consultant DBE commitments are attained, properly
reported and credited in accordance with DBE crediting provisions based on the capacity
the DBE performs the scope of work/service. This form further serves to collect DBE
utilization data required under 49 CFR, Part 26.
The Consultant is required to complete and submit a Form 103 to the Authority by the 10'"
of each month until completion of the contract. The Consultant must submit its first Form
103 following the first month of contract activity. Upon completion of the contract, the
Consultant must complete and submit a "Final: Monthly DBE Subconsultant Commitment
and Attainment Report Summary and Payment Verification" (Form 103) to facilitate
reporting and capturing actual DBE attainments at conclusion of the contract.
The Form 103 must include the following information:
A. General Contract Information — Including Contract Number and Name, Prime
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Consultant and the following:
1. Original Contract Amount
2. Running Total of Change Order Amount
3. Current Contract Amount
4. Amount Paid to Consultant during Month
5. Amount Paid to Consultant from Inception to Date
6. DBE Contract Goal
7. Total Dollar Amount of DBE Commitment
8. DBE Commitment as Percentage of Current Contract Amount
B. Listed and /Proposed Consultant/Subconsultant Information — For All DBE
participation being claimed either Race Neutrally or Race Consciously, regardless
of tier:
DBE Firm Name, Address, Phone Number, DBE Type of Operation,
Certification Type and Certification Number.
2. DBE Firm Contract Value Information:
Original contract amount, running total of change order amount,
Current contract amount, Amount paid to Consultant during month and
Amount paid to Consultant to date.
2. Consultant Assurance of Full Compliance with Prompt Payment
Provisions Consultant to sign the prompt payment assurance statement of
compliance contained within the Form 103. Consultant is to further maintain
and submit at the request of Authority a detailed running tally of related
invoices submitted by DBE(s) and Non DBE(s), including dates of invoice
submission, dates accepted and corresponding dates and amount of payments
made. The Payment and Retention Reporting tally must also include:
DBE(s) and Non DBE(s) Invoice Number, Invoice Amount, Invoice Date,
Prime Consultant's Invoice Number that incorporated the corresponding DBE
and Non DBE invoice(s) for billing purposes, Date of Invoice submission to
Authority, Date and amount Authority paid on Prime Consultant's Invoice. The
report must also reflect a breakout of retention withheld (including retention as
specified in subcontract agreement(s) and disputed invoice retention) and
retention payments made, check number and date paid to DBE and Non DBE.
Consultant is advised not to report the participation of DBE(s) toward the
Consultant's DBE attainment until the amount being claimed has been paid to
the DBE. Verification of payments and /or a signed Verification of Payment by
the applicable DBE or Non DBE must be submitted with Form 103 to
authenticate reported payments.
3. DBE Subcontract Agreements
The Consultant must submit to the Authority copies of executed subcontracts
and /or purchase orders (PO) for all DBE firms participating on the contract
within ten working days of award. The Consultant must immediately notify the
Authority in writing of any problems it may have in obtaining the subcontract
agreements from listed DBE firms within the specified time.
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4. "Monthly DBE Trucking Verification" Form
Prior to the 10th of each month, the Consultant must submit documentation on
the "Monthly DBE Trucking Verification" Form to the Authority showing the
amount paid to DBE trucking companies. The Consultant must also obtain and
submit documentation to the Authority showing the amount paid by DBE
trucking companies to all firms, including owner- operators, for the leasing of
trucks. If the DBE leases trucks from a non -DBE, the Contactor may count
only the fee or commission the DBE receives as a result of the lease
arrangement.
The Consultant must also obtain and submit documentation to the Authority
showing the truck number, owner's name, California Highway Patrol CA
number, and if applicable, the DBE certification number of the owner of the
truck for all trucks used during that month.
5. "Final Report- Utilization of Disadvantaged Business Enterprises (DBE),
First Tier Subconsultants"
Upon completion of the contract, a summary of these records must be
prepared on the: "Final Report- Utilization of Disadvantaged Business
Enterprises (DBE), First Tier Subconsultants" and certified correct by the
Consultant or the Consultant's authorized representative, and must be
furnished to the Engineer. The form must be furnished to the Authority within
90 days from the date of contract acceptance. The amount of $10,000 will be
withheld from payment until a satisfactory form is submitted.
6. "Disadvantaged Business Enterprises (DBE) Certification Status
Change"
If a DBE Sub is decertified during the life of the project, the decertified
Subconsultant must notify the Consultant in writing with the date of
decertification. If a Subconsultant becomes a certified DBE during the life of
the project, the Subconsultant must notify the Consultant in writing with the
date of certification (Attach DBE certification /Decertification letter). The
Consultant must furnish the written documentation to the AUTHORITY.
Upon completion of the contract, the "Disadvantaged Business Enterprises
(DBE) Certification Status Change" must be signed and certified correct by the
Consultant indicating the DBEs' existing certification status. If there are no
changes, please indicate "No Changes'. The certified form must be furnished
to the Authority within 90 days from the date of contract acceptance.
V. DBE Eligibility and Commercially Useful Function Standards
A DBE must be certified at the time of Proposal submission:
A certified DBE must be a small business concern as defined pursuant to Section 3 of the
U.S. Small Business Act and relevant regulations promulgated pursuant thereto.
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2. A DBE may participate as a Prime Consultant, Subconsultant, joint venture partner with a
Prime or Subconsultant, vendor of material or supplies, or as a trucking company.
3. A DBE joint venture partner must be responsible for specific contract items of work, or
clearly defined portions thereof. Responsibility means actually performing, managing and
supervising the work with its own forces. The DBE joint venture partner must share in the
capital contribution, control, management, risks and profits of the joint venture
commensurate with its ownership interest.
4. At time of proposal submission, DBEs must be certified by the California Unified
Certification Program (CUCP). Listings of DBEs certified by the CUCP are available from
the following sources:
A. The CUCP web site, which can be accessed at http: / /www.californiaucp.com; or the
Caltrans "Civil Rights' web site at http: / /www.dot.ca.gov /hg /bep.
5. A DBE must perform a commercially useful function in accordance with 49 CFR 26.55
own workforce to presume it is performing a commercially useful function.
VI. DBE Crediting Provisions
1. When a DBE is proposed to participate in the contract, either as a Prime Consultant or
Subconsultant, at any tier, only the value of the work proposed to be performed by the
DBE with its own forces may be counted towards DBE participation. If the Consultant is a
DBE joint venture participant, only the DBE proportionate interest in the joint venture must
be counted.
2. if a DBE intends to subcontract part of the work of its subcontract to a lower -tier
Subconsultant, the value of the subcontracted work may be counted toward DBE
participation only if the Subconsultant is a certified DBE and actually performs the work
with their own forces. Services subcontracted to a Non -DBE firm may not be credited
toward the Prime Consultant's DBE attainment.
3. Consultant is to calculate and credit participation by eligible DBE vendors of equipment,
materials, and suppliers toward DBE attainment, as follows:
A. Sixty percent (60 %) of expenditure(s) for equipment, materials and supplies required
under the Contract, obtained from a regular dealer; or
B. One hundred percent (100 %) of expenditure(s) for equipment, materials and supplies
required under the Contract, obtained from a DBE manufacturer.
4. The following types of fees or commissions paid to DBE Subconsultants, Brokers, and
Packagers may be credited toward the prime Consultant's DBE attainment, provided that
the fee or commission is reasonable, and not excessive, as compared with fees or
commissions customarily allowed for similar work, including:
A. Fees and commissions charged for providing bona fide professional or technical
services, or procurement of essential personnel, facilities, equipment, materials, or
supplies required in the performance of the Contract;
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B. Fees charged for delivery of material and supplies (excluding the cost of materials or
supplies themselves) when the licensed hauler, trucker, or delivery service is not also
the manufacturer of, or a regular dealer in, the material and supplies;
C. Fees and commissions charged for providing any insurance specifically required in
the performance of the Contract.
5. Consultant may count the participation of DBE trucking companies toward DBE
attainment, as follows:
A. The DBE must be responsible for the management and supervision of the entire
trucking operation for which it is responsible on a particular contract.
B. The DBE must itself own and operate at least one fully licensed, insured, and
operational truck used on the contract.
C. The DBE receives credit for the total value of the transportation services it provides
on the contract using trucks it owns, insures, and operates using drivers it employs.
D. The DBE may lease trucks from another DBE firm, including an owner- operator who
is certified as a DBE. The DBE who leases trucks from another DBE receives credit
for the total value of the transportation services the lessee DBE provides on the
contract.
E. The DBE may also lease trucks from a non -DBE firm, including an owner - operator.
The DBE who leases trucks from a non -DBE is entitled to credit only for the fee or
commission it receives as a result of the lease arrangement. The DBE does not
receive credit for the total value of the transportation services provided by the lessee,
since these services are not provided by a DBE.
F. For purposes of this paragraph, a lease must indicate that the DBE has exclusive use
of and control over the truck. This does not preclude the leased truck from working
for others during the term of the lease with the consent of the DBE, so long as the
lease gives the DBE absolute priority for use of the leased truck. Leased trucks must
display the name and identification number of the DBE.
If the Consultant listed a non - certified 151 tier Subconsultant to perform work on this
contract, and the non - certified Subconsultant subcontracts a part of its work or purchases
materials and /or supplies from a lower tier DBE certified Subconsultant or Vendor, the
value of work performed by the lower tier DBE firm's own forces can be counted toward
DBE participation on the contract. If a DBE Consultant performs the installation of
purchased materials and supplies they are eligible for full credit of the cost of the
materials.
VII. Performance of DBE Subconsultants
DBEs must perform work or supply materials as listed in the "DBE Participation Commitment
Form" specified under "DBE Proposal Submission Requirements" of these special provisions.
Do not terminate a DBE listed Subconsultant for convenience and perform the work with your
own forces or obtain materials from other sources without prior written authorization from the
AUTHORITY.
The AUTHORITY grants authorization to use other forces or sources of materials for
requests that show any of the following justifications (written approval from the AUTHORITY
must be obtained prior to effectuating a substitution):
1. Listed DBE fails or refuses to execute a written contract based on plans and
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specifications for the project.
2. You stipulate a bond is a condition of executing the subcontract and the listed DBE
fails to meet your bond requirements.
3. Work requires a Consultants' license and listed DBE does not have a valid license
under Consultants License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials.
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE delays or disrupts the progress of the work.
7. Listed DBE becomes bankrupt or insolvent.
If a listed DBE Subconsultant is terminated, you must make good faith efforts to find another
DBE Subconsultant to substitute for the original DBE. The substitute DBE must perform at
least the same amount of work as the original DBE under the contract to the extent needed to
meet the DBE goal.
The substitute DBE must be certified as a DBE at the time of request for substitution. The
AUTHORITY does not pay for work or material unless it is performed or supplied by the listed
DBE, unless the DBE is terminated in accordance with this section.
VIII. Additional DBE Subconsultants
In the event Consultant identifies additional DBE Subconsultants or suppliers not previously
identified by Consultant for DBE participation under the contract, Consultant must notify the
Authority by submitting "Request for Additional DBE Firm" to enable Consultant to capture all
DBE participation. Consultant must also submit, for each DBE identified after contract
execution, a written confirmation from the DBE acknowledging that it is participating in the
contract for a specified value, including the corresponding scope of work (a subcontract
agreement can serve in lieu of the written confirmation).
IX. DBE "Frauds" and "Fronts"
Only legitimate DBEs are eligible to participate as DBEs in the Authority's federally - assisted
contracts. Proposers are cautioned against knowingly and willfully using "fronts." The use of
"fronts" and "pass through" subcontracts to non - disadvantaged firms constitute criminal
violations. Further, any indication of fraud, waste, abuse or mismanagement of Federal funds
should be immediately reported to the Office of Inspector General, U.S. Department of
Transportation at the toll -free hotline: (800) 424 -9071; or to the following: 245 Murray Drive,
Building 410, Washington, DC 20223; Telephone: (202) 406 -570.
X. Consultant's Assurance Clause Regarding Non - Discrimination
In compliance with State and Federal anti - discrimination laws, the Consultant must affirm that
they will not exclude or discriminate on the basis of race, color, national origin, or sex in
consideration of contract award opportunities. Further, the Consultant must affirm that they
will consider, and utilize Subconsultants and vendors, in a manner consistent with non-
discrimination objectives.
XI. Prompt Payment Clause
Upon receipt of payment by Authority, Consultant agrees to promptly pay each Subconsultant
for the satisfactory work performed under this Agreement, no later than seven (7) calendar
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days. Consultant agrees further to return retainage payments to each Subconsultant within
thirty (30) calendar days after the Subconsultant's work is satisfactorily completed. Authority
reserves the right to request the appropriate documentation from Consultant showing
payment has been made to the Subconsultants. Any delay or postponement of payment
from the above referenced time frames may occur only for good cause following written
approval by Authority.
In accordance with 49 CFR part 26.29 "Prompt Payment Provisions' (DBE Final Rule) the
Authority will elect to utilize the following method to comply with the prompt payment of
retainage requirement:
Hold retainage from the Consultant and provide for prompt and regular incremental
acceptances of portions of the Consultant, pay retainage to prime Consultants based on
these acceptances, and require a contract clause obligating the Consultant to pay all
retainage owed to the Subconsultants for satisfactory completion of the accepted work within
thirty (30) days after payment to the Consultant.
Failure to comply with this provision or delay in payment without prior written approval from
Authority will constitute noncompliance, which may result in appropriate administrative
sanctions, including, but not limited to a withhold of two (2 %) percent of the invoice amount
due per month for every month that payment is not made.
These prompt payment provisions must be incorporated in all subcontract agreements issued
by Consultant under this Agreement. Each subcontract must require the Subconsultant to
make payments to sub - Subconsultants and suppliers in a similar manner.
XII. Administrative Remedies and Enforcement
Consultant must fully comply with the DBE contract requirements, including the Authority's
DBE Program and Title 49 CFR, Part 26 "Participation of Disadvantaged Businesses in
Department of Transportation Financial Assistance Programs" and ensure that all
Subconsultants regardless of tier are also fully compliant. Consultant's failure to comply
constitutes a material breach of contract, wherein the Authority will impose all available
administrative sanctions including payment withholdings, necessary to effectuate full
compliance. In instances of identified non - compliance, a Cure Notice will be issued to the
Consultant identifying the DBE non - compliance matter(s) and specifying the required course
of action for remedy.
The Consultant must be given ten (10) working days from the date of the Cure Notice to
remedy or to (1) File a written appeal accompanied with supporting documentation and /or (2)
Request a hearing with the Authority to reconsider the Authority's DBE determination. Failure
to respond within the ten (10) working day period must constitute a waiver of the Consultant's
right to appeal. If the Consultant files an appeal, the Authority, must issue a
written determination and /or set a hearing date within ten (10) working days of receipt of the
written appeal, as applicable. A final Determination will be issued within ten (10) working days
after the hearing, as applicable.
If, after review of the Consultant's appeal, the Authority decides to uphold the decision to
impose DBE administrative remedies on the Consultant, the written determination must state
the specific remedy(s) to be imposed.
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Failure to comply with the Cure Notice and /or to remedy the identified DBE non - compliance
matter(s) is a material breach of contract and is subject to administrative remedies, including,
withholding at minimum of two (2 %) percent of the invoice amount due per month for every
month that the identified non - compliance matter(s) is not remedied. Upon satisfactory
compliance the Authority will release all withholdings.
In addition to administrative remedies defined in this section, the Authority is not precluded
from invoking other contractual and /or legal remedies available under federal, state or local
laws.
ARTICLE 6. ACCESS TO RECORDS AND REPORTS
CITY shall provide AUTHORITY, the U.S. Department of Transportation (DOT), the
Comptroller General of the United States, or other agents of AUTHORITY, such access to
CITY's accounting books, records, payroll documents and facilities of the CITY which are
directly pertinent to this Agreement for the purposes of examining, auditing and inspecting all
accounting books, records, work data, documents and activities related hereto. CITY shall
maintain such books, records. data and documents in accordance with generally accepted
accounting principles and shall clearly identify and make such items readily accessible to such
parties during CITY's performance hereunder and for a period of four (4) years from the date of
final payment by AUTHORITY. AUTHORITY's right to audit books and records directly related
to this Agreement shall also extend to all first -tier subcontractors identified in this Agreement.
CITY shall permit any of the foregoing parties to reproduce documents by any means
whatsoever or to copy excerpts and transcriptions as reasonably necessary.
ARTICLE 7. INCORPORATION OF FTA TERMS
All contractual provisions required by Department of Transportation (DOT), whether or
not expressly set forth in this document, as set forth in Federal Transit Administration (FTA)
Circular 4220.1 F, as amended, are hereby incorporated by reference. Anything to the contrary
herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a
conflict with other provisions contained in this Agreement. CITY shall not perform any act, fail
to perform any act, or refuse to comply with any requests, which would cause AUTHORITY to
be in violation of the FTA terms and conditions.
ARTICLE 8. ENERGY CONSERVATION REQUIREMENTS
CITY shall comply with mandatory standards and policies relating to energy efficiency
which are contained in the state energy conservation plan issued in compliance with the
Energy Policy Conservation Act.
ARTICLE 9. PROHIBITED INTERESTS
A. CITY covenants that, for the term of this Agreement, no director, member, officer or
employee of AUTHORITY during his /her tenure in office or for one (1) year thereafter, shall have
any interest, direct or indirect, in this Agreement or the proceeds thereof.
B. No member of or delegate to, the Congress of the United States shall have any
interest, direct or indirect, in this Agreement or to the benefits thereof.
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EXHIBIT D
ARTICLE 10. PRIVACY ACT
CITY shall comply with, and assures the compliance of its employees with, the
information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U.S.C.
§552a. Among other things, CITY agrees to obtain the express consent of the Federal
Government before the CITY or its employees operate a system of records on behalf of the
Federal Government. CITY understands that the requirements of the Privacy Act, including the
civil and criminal penalties for violation of that Act, apply to those individuals involved, and that
failure to comply with the terms of the Privacy Act may result in termination of the underlying
Agreement.
ARTICLE 11. CONFLICT OF INTEREST
CITY agrees to avoid organizational conflicts of interest. An organizational conflict of
interest means that due to other activities, relationships or contracts, the CITY is unable, or
potentially unable to render impartial assistance or advice to the Authority; CITY's objectivity
in performing the work identified in the Scope of Work is or might be otherwise impaired; or
the CITY has an unfair competitive advantage. CITY is obligated to fully disclose to the
AUTHORITY in writing Conflict of Interest issues as soon as they are known to the CITY.
CITY is obligated to fully disclose to the AUTHORITY in writing Conflict of Interest issues as
soon as they are known to the CITY. All disclosures must be submitted in writing to
AUTHORITY pursuant to the Notice provision herein. This disclosure requirement is for the
entire term of this Agreement.
ARTICLE 12. CODE OF CONDUCT
CITY agrees to comply with the AUTHORITY's Code of Conduct as it relates to Third
Party contracts which is hereby referenced and by this reference is incorporated herein. CITY
agrees to include these requirements in all of its subcontracts.
ARTICLE 13. TERMINATION
A. AUTHORITY may terminate this Agreement for its convenience at any time, in whole
or part, by giving CITY written notice thereof. Upon termination, AUTHORITY shall pay CITY its
allowable costs incurred to date of that portion terminated. Said termination shall be construed in
accordance with the provisions of CFR Title 48, Chapter 1, Part 49, of the Federal Acquisition
Regulation (FAR) and specific subparts and other provisions thereof applicable to termination for
convenience. If AUTHORITY sees fit to terminate this Agreement for convenience, said notice
shall be given to CITY in accordance with the provisions of the FAR referenced above. Upon
receipt of said notification, CITY agrees to comply with all applicable provisions of the FAR
pertaining to termination for convenience.
B. AUTHORITY may terminate this Agreement for CITY's default if a federal or state
proceeding for the relief of debtors is undertaken by or against CITY, or if CITY makes an
assignment for the benefit of creditors, or for cause if CITY fails to perform in accordance with the
scope of work or breaches any term(s) or violates any provision(s) of this Agreement and does
not cure such breach or violation within ten (10) calendar days after written notice thereof by
AUTHORITY. CITY shall be liable for any and all reasonable costs incurred by AUTHORITY as a
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result of such default or breach including, but not limited to, reprocurement costs of the same or
similar services defaulted by CITY under this Agreement. Such termination shall comply with
CFR Title 48, Chapter 1, Part 49, of the FAR.
ARTICLE 14. RECYCLED PRODUCTS
CITY shall comply with all the requirements of Section 6002 of the Resource
Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited
to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the
procurement of the items designated in subpart B of 40 CFR Part 247. CITY agrees to include
this requirement in all of its subcontracts.
ARTICLE 15. DEBARMENT & SUSPENSION:
CERTIFICATION REGARDING DEBARMENT, SUSPENSION AND OTHER
RESPONSIBILITY MATTERS - PRIMARY PARTICIPANT AND LOWER -TIER PARTICIPANTS
Unless otherwise permitted by law, any person or firm that is debarred, suspended, or
voluntarily excluded, as defined in the Federal Transit Administration (FTA) Circular 2015.1,
dated April 28, 1989, may not take part in any federally funded transaction, either as a
participant or a principal, during the period of debarment, suspension, or voluntary exclusion.
Accordingly, the Authority, acting on behalf of the District, may not enter into any transaction
with such debarred, suspended, or voluntarily excluded persons or firms during such period.
A certification process has been established by 49 CFR Part 29, as a means to ensure that
debarred suspended or voluntarily excluded persons or firms do not participate in Federally
assisted projects. The inability to provide the required certification will not necessarily result in
denial of participation in a covered transaction. A person or firm that is unable to provide a
positive certification as required by this solicitation must submit a complete explanation
attached to the certification. FTA will consider the certification and any accompanying
explanation in determining whether or not to provide assistance for the project. Failure to
furnish a certification or an explanation may disqualify that person or firm from participating in
the project.
ARTICLE 16. DISPUTES
A. Except as otherwise provided in this Agreement, any dispute concerning a
question of fact arising under this Agreement which is not disposed of by supplemental
agreement shall be decided by AUTHORITY's Director, Contracts Administration and Materials
Management (CAMM), who shall reduce the decision to writing and mail or otherwise furnish a
copy thereof to CONTRACTOR. The decision of the Director, CAMM, shall be final and
conclusive.
B. The provisions of this Article shall not be pleaded in any suit involving a question of
fact arising under this Agreement as limiting judicial review of any such decision to cases where
fraud by such official or his representative or board is alleged, provided, however, that any such
decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or
so grossly erroneous as necessarily to imply bad faith or is not supported by substantial
evidence. In connection with any appeal proceeding under this Article, CONTRACTOR shall be
Orange County Transportation Authority 16
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EXHIBIT D
afforded an opportunity to be heard and to offer evidence in support of its appeal.
C. Pending final decision of a dispute hereunder, CONTRACTOR shall proceed
diligently with the performance of this Agreement and in accordance with the decision of
AUTHORITY's Director, CAMM. This "Disputes" clause does not preclude consideration of
questions of law in connection with decisions provided for above. Nothing in this Agreement,
however, shall be construed as making final the decision of any AUTHORITY official or
representative on a question of law, which questions shall be settled in accordance with the laws
of the state of California.
ARTICLE 17. CLEAN WATER REQUIREMENTS
CITY shall comply with all applicable standards, orders or regulations issued pursuant to
the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. CITY shall report
each violation to AUTHORITY and understands and agrees that the AUTHORITY who will in
turn, report each violation as required to assure notification to FTA and appropriate EPA
Regional Office. CITY agrees to include this requirement in all of its subcontracts.
ARTICLE 18. CLEAN AIR
CITY shall comply with all applicable standards, orders or regulations issued pursuant to
the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. CITY shall report each violation to
AUTHORITY, who will in turn, report each violation as required to assure notification to FTA and
the appropriate EPA Regional Office. CITY agrees to include this requirement in all of its
subcontracts.
ARTCLE 19. LOBBYING
CITY's who apply or bid for an award of $100,000 or more shall file the certification
required by 49 CFR part 20, "New Restrictions on Lobbying ". Each tier certifies to the above that
it will not or has not used Federal appropriated funds to pay any person or organization for
influencing or attempting to influence an officer or employee of any agency, a member of
Congress, officer or employee of Congress, or an employee of a member of Congress in
connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C.
1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act
of 1995 who has made lobbying contacts on its behalf with non - Federal funds with respect to that
Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded
from tier to tier up to the recipient.
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AGREEMENT NO. C -5 -3633
This Agreement shall be made effective upon execution by both Parties.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement No. C -5 -3633 to be
executed on the date first written above.
CITY OF SEAL BEACH ORANGE COUNTY TRANSPORTATION AUTHORITY
Ellery A. Deaton
Mayor
ATTEST:
Bv'
Linda Devine
City Clerk
APPROVED AS TO FORM
Dated :
Steven L. Flower
City Attorney
Bv:
Darrell Johnson
Chief Executive Officer
APPROVED AS TO
By:
James M. Donid
General Counsel
APPROVALRECOM*
By:
Kia Mortazavi
Executive Director, Qnning
Dated :
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AGREEMENT NO. C-6-3633
This Agreement shall be made effective upon execution by both Parties.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement No. C- 5-3633 to be
executed on the date first written above.
CITY OF SEAL BEACH ORANGE COUNPf -TRANSPORTATION AUTHORITY
By: By:
Ellery A. eaton
Mayor
Al
By
City Clerk
APPROVED AS TO °1RM
By:
steverrt'€tower
City Attorney
Dated: Q4. — ) 6(, h � -.; 1
Darrell
Chief E
APPROVED AS TO FORM:
By:
-James M. Donich
General Counsel
APPROVAL RECOMM ED.
By:
Kia Mortazavi
Executive Director, Planning
Dated :
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