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HomeMy WebLinkAbout2011-014 Ground Up Design r C1 ofl -- 0� COPY CITY OF ATASCADERO n 1918 1978 CADS/ CONTRACT FOR Ground Up Design and Construction Management Inc for Streetscape Phase III Construction Inspection Services r t I i9>ts ! ie s CONSULTANT SERVICES AGREEMENT FOR THE CITY OF ATASCADERO Ground Up Design and Construction Management Inc. THIS CONTRACT is made and entered into between City of Atascadero, a Municipal Corporation ("City") and Ground Up Design and Construction Management Inc. ("Consultant") City and Consultant agree as follows 1 SCOPE AND STANDARDS A. CONTRACT Consultant shall do all work, attend all meetings, produce all reports and carry out all activities necessary to complete the services described in the SCOPE OF WORK AND STANDARDS FOR SERVICES, attached hereto and incorporated herein by this reference as Exhibit A, as requested by the City This Contract and its exhibits shall be known as the "Contract Documents " Terms set forth in any Contract Document shall be deemed to be incorporated in all Contract Documents as if set forth in full therein 2 EMPLOYMENT STATUS OF PERSONNEL A. INDEPENDENT CONTRACTOR EMPLOYEES OF CONSULTANT Consultant enters into this Contract as, and shall at all times remain as to the City an independent contractor and not as an employee of the City Nothing in this Contract shall be construed to be inconsistent with this relationship or status. Any persons employed by Consultant for the performance of services pursuant to this Contract shall remain employees of Consultant, shall at all times be under the direction and control of Consultant, and shall not be considered employees of City All persons employed by Consultant to perform services pursuant to this Contract shall be entitled solely to the right and privileges afforded to Consultant employees and shall not be entitled, as a result of providing services hereunder, to any additional rights or privileges that may be afforded to City employees rev 5/1/06 1 792119.3 1 City of Atascadero Ground Up Design and Construction Management Inc SY' 1 _ GVIE141. .. B INDEPENDENT INVESTIGATION The Consultant agrees and hereby represents it has satisfied itself by its own investigation and research regarding the conditions affecting the work to be done and labor and materials needed, and that its decision to execute this Contract is based on such independent investigation and research C COMPLIANCE WITH EMPLOYMENT LAWS The Consultant shall keep itself fully informed of, shall observe and comply with, and shall cause any and all persons, firms or corporations employed by it or under its control to observe and comply with, applicable federal, state, county and municipal laws, ordinances, regulations, orders and decrees which in any manner affect those engaged or employed on the work described by this Contract or the materials used or which in any way affect the conduct of the work. D UNLAWFUL DISCRIMINATION PROHIBITED Consultant shall not engage in unlawful employment discrimination Such unlawful employment discrimination includes, but is not limited to, employment discrimination based upon a person's race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, gender, citizenship or sexual orientation 3 TIME OF PERFORMANCE The services of Consultant are to commence upon execution of this Contract by City, and shall be undertaken and completed in a prompt and timely manner, in accordance with the Scope of Work referenced in Exhibit A. Except as provided in Sections 6 and 19 below, this Contract shall terminate no later than December 31, 2011, unless extended by the mutual agreement of both parties 4 COMPENSATION A. TERMS Compensation to the Consultant shall be as set forth in Exhibit B attached hereto and made a part hereof B NO PAY FOR ADDITIONAL SERVICES WITHOUT WRITING Consultant shall not be compensated for any services rendered in connection with its performance of this Contract, which are in addition to those set forth herein or listed in Exhibit A, unless such additional services are authorized in advance and in writing by the City Manager or the City Manager's designee (hereinafter "City Manager" shall include the City Manager's designee) Consultant shall be compensated for any additional services in the amounts and in the manner as agreed to by City and Consultant at the time City's express written authorization signed by the City Manager is given to Consultant for the performance of said services rev 5/1/06 2 792119.3 City of Atascadero Ground Up Design and Construction Management Inc. 5 SUPERVISON LABOR AGREEMENTS AND PERSONNEL A. CONSULTANT SUPERVISES PERSONNEL. The Consultant shall have the responsibility for supervising the services provided under this Contract, hiring of personnel, establishing standards of performance, assignment of personnel, determining and affecting discipline, determining required training, maintaining personnel files, and other matters relating to the performance of services and control of personnel The City Manager may use any reasonable means to monitor performance and the Consultant shall comply with the City Manager's request to monitor performance B PERFORMANCE NOT SUBJECT TO EMPLOYMENT AGREEMENTS The City acknowledges that the Consultant may be obligated to comply with bargaining agreements and/or other agreements with employees and that the Consultant is legally obligated to comply with these Contracts It is expressly the intent of the parties and it is agreed by the parties that the Consultant's performance shall not in any manner be subject to any bargaining agreement(s) or any other agreement(s) the Consultant may have covering and/or with is employees C APPROVAL OF STAFF MEMBERS Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant's staff assigned to perform the services required under this Contract. Consultant shall notify City of any changes in Consultant's staff to be assigned to perform the services required under this Contract and shall obtain the approval of the City Manager of a list of all proposed staff members who are to be assigned to perform services under this Contract prior to any such performance 6 TERMINATION A. 30 DAYS NOTICE. The City, upon thirty (30) days written notice, may terminate this Contract, without cause, at any time In the event of such termination, Consultant shall be compensated for non-disputed fees under the terms of this Contract up to the date of termination B OBLIGATIONS SURVIVE TERMINATION Notwithstanding any termination of this Contract, Consultant shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of this Contract by Consultant, and the City may withhold any payments due to Consultant until such time as the exact amount of damages if any, due the City from Consultant is determined All of the indemnification, defense and hold harmless obligations in this Contract shall survive termination rev 5/1/06 3 792119.3 City of Atascadero Ground Up Design and Construction Management Inc 7 CHANGES The City or Consultant may, from time to time, request changes in the scope of the services of Consultant to be performed hereunder Such changes, including any increase or decrease in the amount of Consultant's compensation and/or changes in the schedule must be authorized in advance by both Parties in writing Mutually agreed changes shall be incorporated in written amendments to this Contract. Any increase in the amount of Consultant's compensation and/or changes in Exhibit A and or Exhibit B must be authorized in advance by the City Manager 8 PROPERTY OF CITY A. MATERIALS PREPARED EXCLUSIVE PROPERTY OF CITY It is mutually agreed that all materials prepared by the Consultant under this Contract are upon creation and shall be at all times the exclusive property of the City, and the Consultant shall have no property right therein whatsoever City agrees that Consultant shall bear no responsibility for any reuse of the materials prepared by the Consultant if used for purposes other than those expressly set forth in the Intended Use of Consultant's Products and Materials section of this Contract Consultant shall not disseminate any information or reports gathered or created pursuant to this Contract without the prior written approval of City including without limitation information or reports required by government agencies to enable Consultant to perform its duties under this Contract and as may be required under the California Public Records Act excepting therefrom as may be provided by court order Consultant will be allowed to retain copies of all deliverables B CONSULTANT TO DELIVER CITY PROPERTY Immediately upon termination, or upon the request by the City, the City shall be entitled to, and the Consultant shall deliver to the City, all data, drawings, specifications, reports, estimates, summaries and other such materials and property of the City as may have been prepared or accumulated to date by the Consultant in performing this Contract. Consultant will be allowed to retain copies of all deliverables to the City 9 CONFLICTS OF INTEREST A. CONSULTANT covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant's performance of services under this Contract. Consultant further covenants that in the performance of this Contract, Consultant shall take reasonable care to ensure that no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Contract. Consultant agrees to include language similar to this Section 9(A) in all contracts with subcontractors and agents for the work contemplated herein rev 5/1/06 4 792119.3 City of Atascadero Ground Up Design and Construction Management Inc. — 10 CONFIDENTIAL INFORMATION A. ALL INFORMATION KEPT IN CONFIDENCE All materials prepared or assembled by Consultant pursuant to performance of this Contract are confidential and Consultant agrees that they shall not be made available to any individual or organization without the prior written approval of the City, except by court order B REIMBURSEMENT FOR UNAUTHORIZED RELEASE. If Consultant or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this Contract, the City has the right to reimbursement and indemnity from party releasing such information for any damages caused by the releasing party's, including the non-releasing party's attorney's fees and disbursements, including without limitation expert's fees and disbursements C. COOPERATION City and Consultant shall promptly notify the other party should Consultant or City, its officers, employees, agents, or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Contract and the work performed thereunder or with respect to any project or property located within the City City and Consultant each retains the right, but has no obligation, to represent the other party and/or be present at any deposition, hearing or similar proceeding Consultant and City agree to cooperate fully with the other party and to provide the other party with the opportunity to review any response to discovery requests provided by Consultant or City However, City and Consultant's right to review any such response does not imply or mean the right by the other party to control, direct, or rewrite said response 11 PROVISION OF LABOR, EQUIPMENT AND SUPPLIES A. CONSULTANT PROPERTY Consultant shall furnish all necessary labor, supervision, equipment, communications facilities, and supplies necessary to perform the services required by this Contract. City acknowledges that all equipment and other tangible assets used by Consultant in providing these services are the property of Consultant and shall remain the property of Consultant upon termination of this Contract. B SPECIAL SUPPLIES City shall be responsible for supplying any special supplies stationary, notices, forms or similar items that it requires to be issued with a City logo All such items shall be approved by the City Manager and shall be provided at City's sole cost and expense rev 5/1/06 5 792119.3 City of Atascadero Ground Up Design and Construction Management Inc. 12. COMPLIANCE WITH LAW A. COMPLIANCE REQUIRED Consultant shall keep itself informed of applicable local, state, and federal laws and regulations which may affect those employed by it or in any way affect the performance of its services pursuant to this Contract. Consultant shall observe and comply with all applicable laws, ordinances, regulations and codes of federal, state and local governments, and shall commit no trespass on any public or private property in performing any of the work authorized by this Contract Consultant shall at all times hold a valid contractor's license if performing any function or activity for which a license is required pursuant to Chapter 9 (commencing with section 7000) of Division 3 of the California Business and Professions Code, and Consultant shall provide a copy of the license(s) upon the request of the City The City, its officials, officers, elected officials, appointed officials and employees shall not be liable at law or in equity as a result of any failure of consultant to comply with this section B PREVAILING WAGES The Consultant is required to pay prevailing wages for the work performed under this Agreement. The Consultant shall pay all penalties and wages as required by applicable law 13 SUBCONTRACTING None of the services covered by this Contract shall be subcontracted without the prior written consent of the City Manager Consultant shall be as fully responsible to the City for the negligent acts and omissions of its contractors and subcontractors, and of persons either directly or indirectly employed by them, as it is for the negligent acts and omissions of persons directly employed by Consultant. 14 ASSIGNABILITY Consultant shall not assign or transfer any interest in this Contract whether by assignment or notation However claims for money due or to become due Consultant from the City under this Contract may be assigned to a financial institution, but only with prior written consent of the City Manager Notice of any assignment or transfer whether voluntary or involuntary shall be furnished promptly to the City The rights and benefits under this agreement are for the sole and exclusive benefit of the City and this Contract shall not be construed that any third party has an interest in the Contract. rev 5/1/06 6 792119.3 City of Atascadero Ground Up Design and Construction Management Inc. > _ A 15 LIABILITY OF CONSULTANT Consultant shall be responsible for performing the work under this Contract in a manner which is consistent with the generally accepted standards of Consultant's profession and shall be liable for its own negligence and the negligent acts of its employees, agents, contractors and subcontractors The City shall have no right of control over the manner in which the work is to be done but only as to its outcome, and shall not be charged with the responsibility of preventing risk to Consultant or its employees, agents, contractors or subcontractors 16 INDEMNIFICATION A. INDEMNIFICATION FOR PROFESSIONAL LIABILITY When the law establishes a professional standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents ("Indemnified Parties") from and against any and all losses, liabilities, damages, costs and expenses, including attorneys fees and costs to the extent same are caused in whole or in part by any negligence or wrongful act, error or omission of Consultant, willful misconduct, or recklessness of its officers, agents, employees or subconsultants (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this agreement. With respect to the design of public improvements, the Consultant shall not be liable for any injuries or property damage resulting from the reuse of the design at a location other than that specified in Exhibit D without the written consent of the Consultant. B INDEMNIFICATION FOR OTHER THAN PROFESSIONAL LIABILITY Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend and hold harmless City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorneys fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which consultant is legally liable including but not limited to officers, agents, employees or subconsultants of Consultant. C GENERAL INDEMNIFICATION PROVISIONS Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section for each and every subconsultant or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this agreement. In the event consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder This obligation to indemnify and defend City as set forth here is binding on the successor, assigns or heirs of Consultant and shall survive the termination of this agreement or this section rev 5/1/06 7 792119.3 City of Atascadero Ground Up Design and Construction Management Inc. '= D INDEMNITY PROVISIONS FOR CONTACTS RELATED TO CONSTRUCTION Without affecting the rights of City under any provision of this agreement, Consultant shall not be required to indemnify and hold harmless City of liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction In instances where City is shown to have been actively negligent and where City's active negligence accounts for only a percentage of the liability involved, the obligation of consultant will be for that entire portion or percentage of liability not attributable to the active negligence of City 17 INSURANCE Consultant shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit E attached to and part of this agreement. 18 RECORDS Consultant shall maintain complete and accurate records with respect to labor costs, material expenses, parcels abated or serviced and other such information required by City that relates to the performance of services under this Contract. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible and in a form acceptable to the City, which the City may specify and change from time to time Consultant shall provide free access to the representatives of City or its designees, at reasonable times, to such books and records, shall give City the right to examine and audit said books and records, shall permit City to make transcripts therefrom as necessary, and shall allow inspection of all work, data, documents, proceedings, and activities related to this Contract. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. 19 MISCELLANEOUS PROVISIONS A. ASSIGNMENT OR SUBSTITUTION City has a NONDISCRIMINATION / NONPREFERENTIAL TREATMENT STATEMENT In performing this Contract, the parties shall not discriminate or grant preferential treatment on the basis of race, sex, color age religion, sexual orientation, disability, ethnicity, or national origin, and shall comply to the fullest extent allowed by law, with all applicable local, state, and federal laws relating to nondiscrimination B UNAUTHORIZED ALIENS Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act (8 U S C.A & 1101 et seq ), as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this contract, and should the Federal Government impose sanctions against the City for such use of unauthorized aliens, Consultant hereby agrees to, and shall, reimburse City for the cost of all such sanctions imposed, together with any and all costs, including attorneys' fees, incurred by the City in connection therewith rev 5/1/06 8 792119.3 A City of Atascadero Ground Up Design and Construction Management Inc. C GOVERNING LAW The City and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Contract and also govern the interpretation of this Contract. Any litigation concerning this Contract shall take place in the San Luis Obispo Superior Court, federal diversity jurisdiction being expressly waived D City has an interest in the qualifications of and capability of the persons and entities that will fulfill the duties and obligations imposed upon Consultant by this Contract. In recognition of that interest, neither any complete nor partial assignment of this Contract, may be made by Consultant nor changed, substituted for, deleted, or added to without the prior written consent of City which consent shall not be unreasonably withheld Any attempted assignment or substitution shall be ineffective, null, and void, and constitute a material breach of this Contract entitling City to any and all remedies at law or in equity, including summary termination of this Contract. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Contract. E ENTIRE CONTRACT This Contract constitutes the entire Contract and understanding between the parties relative to the services specified herein and there are no understandings, agreements, conditions, representations, warranties or promises, with respect to this Contract, except those contained in or referred to in this Contract and this Contract supersedes all prior understandings, agreements, courses of conduct, prior dealings among the parties and documentation of any kind without limitation F AMENDMENTS This Contract may be modified or amended, or any of its provisions waived, only by a subsequent written agreement executed by each of the parties The parties agree that this requirement for written modifications cannot be waived and any attempted waiver shall be void G CONSTRUCTION AND INTERPRETATION Consultant and City agree and acknowledge that the provisions of this Contract have been arrived at through negotiation and that each party has had a full and fair opportunity revise the provisions of this Contract and to have such provisions reviewed by legal counsel Therefore, any ambiguities in construing or interpreting this Contract shall not be resolved against the drafting party The titles of the various sections are merely informational and shall not be construed as a substantive portion of this Contract. H. WAIVER The waiver at any time by any party of any of its rights with respect to a default or other matter arising in connection with this Contract shall not be deemed a wavier with respect to any subsequent default or other matter I SEVERABILITY The invalidity, illegality or unenforceability, of any provision of this Contract shall not render the other provisions invalid, illegal or unenforceable rev 5/1/06 9 7921193 City of Atascadero Ground Up Design and Construction Management Inc. .m J NOTICES. All invoices, payments, notices, demands, requests, comments, or approvals that are required to be given by one party to the other under this Contract shall be in writing and shall be deemed to have been given if delivered personally or enclosed in a properly addressed envelope and deposited in a United States Post Office for delivery by registered or certified mail addressed to the parties (deemed to have been received three (3) business days after deposit in the U S Mail) at the following addresses City- City of Atascadero Department of Public Works 6907 EI Camino Real Atascadero, CA 93422 Consultant: Ground Up Design and Construction Management Inc P O Box 1583 Paso Robles, CA 93447 Each party may change the address at which it gives notice by giving ten (10) days advance, written notice to the other party K. AUTHORITY TO EXECUTE The person or persons executing this Contract on behalf of Consultant warrant and represent that they have the authority to execute this Contract on behalf of their agency and further warrant and represent that they have the authority to bind Consultant to the performance of its obligations hereunder AGREED to this^�day of , 2010 by the parties as follows Ground Up Design and Construction City of Atascadero Management Inc j�jBy By. Russell S Thompson, P Ro ert Carnes Director of Public Works President rev 5/1/06 IO 792119.3 City of Atascadero Ground Up Design and Construction Management Inc CERTIFICATE OF COMPLIANCE WITH LABOR CODE § 3700 1 am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I have complied or will comply with such provisions before commencing the performance of the work of this contract. (Cal Labor C §§1860, 1861 ) CONSULTANT Robert Carnes, President Ground Up Design and Construction Management Inc rev 5/1/06 I 1 792119.3 City of Atascadero Ground Up Design and Construction Management Inc. CONTRACTOR ACKNOWLEDGEMENT OF LABOR CODE REQUIREMENTS Contractor acknowledges that under California Labor Code sections 1810 and following, 8 hours of labor constitutes a legal day's work. Contractor will forfeit as a penalty to City the sum of $25 00 for each worker employed in the execution of this Contract by Contractor or any subcontractor for each calendar day during which such worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Labor Code section 1810 (Labor Code§ 1813) Attention is given to the fact that both Federal (Davis-Bacon)and State of California prevailing wage rate requirements apply to this project. Not less than the greater of the Federal Davis-Bacon wage rates or the general prevailing wage rate of per diem wages and the Federal prevailing rates for holiday and overtime must be paid on this project. State of California prevailing wage rates are available online at www.dir.ca.gov/dlsr/pwd/southern.htmi. Contractor shall post at the work site or if there is no regular work site then at its principal office for the duration of the Contract, a copy of the determination by the Director of the Department of Industrial Relations of the specified prevailing rate of per diem wages. (Labor Code§ 1773.2 ) Contractor and any subcontractor engaged by Contractor shall pay not less than the specified prevailing rate of per diem wages to all workers employed in the execution of the contract. (labor code § 1774) Contractor is responsible for compliance with Labor Code section 1776 relative to the retention and inspection of payroll records Contractor shall comply with all provisions of Labor Code section 1775 Under section 1775 Contractor may forfeit as a penalty to city up to$50 00 for each worker employed in the execution of the Contract by Contractor or any subcontractor for each calendar day or portion thereof in which the worker is paid less than the prevailing rates. Contractor may also be liable to pay 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. Nothing in this Contract prevents Contractor or any subcontractor from employing properly registered apprentices in the execution of the contract. Contractor is responsible for compliance with Labor Code section 1777 5 for all apprenticeable occupations This statute requires that contractors and subcontractors must submit contract award information to the applicable joint apprenticeship committee must employ apprentices in apprenticeable occupations in a ratio of not less than one hour of apprentices work for every five hours of labor performed by a journeyman (unless an exception is granted under§ 1777 5) must contribute to the fund or funds in each craft or trade or a like amount to the California Apprenticeship Council, and that contractors and subcontractors must not discriminate among otherwise qualified employees as apprentices solely on the ground of sex, race religion, creed national origin, ancestry or color Only apprentices defined in Labor Code sections 3077 who are in training under apprenticeship standards and who have written apprentice contracts may be employed on public works in apprenticeable occupations. Consultant Robert Carnes, President Ground Up Design and Construction Management Inc rev 5/1/06 12 792119.3 EXHIBIT A Scope of Work All work performed shall comply the federal regulations included in Parts A and B of the engineering plans and specifications instructions, per bid package Streetscape Phase III, City Bid No. 2009-009, hereby incorporated by reference as applicable. The Streetscape Phase III project will be under the scrutiny of Caltrans and the paving shall be inspected in conformance with the new Section 39 "Hot Mix Asphalt" "Standard" inspection practice Bob Joslin with the City will act as the Resident Engineer for the project. Ground Up will utilize Caltrans standard format for Daily Reports and all other documentation Pavement Engineering, Inc. (PEI) will be a subcontractor to Ground Up and will perform in plant inspection sampling, testing and nuclear gauge testing utilizing the "Non Destructive" method Ground Up will perform lay down inspection and all other day-to-day public works inspection on the project on the project on a time and materials basis Ground Up and PEI's actual cost for lay down inspection and testing associated with the HMA will be billed in conformance with this contract on a time and materials basis The fee will include the all work by the Consultant and PEI, including inspection, sampling, lab testing and field compaction with nuclear gauge as stated above and will not exceed $12,940, without written authorization The estimated inspection duration for the HMA inspection for the project is based upon the amount of HMA the contractor lays and the bid quantities According to Bid Schedules B & C, there are 721 tons of leveling course and approximately 1940 tons of overlay for lay down inspection and testing This contract reflects an expected 2 days of full time inspection and testing during the leveling course and 2 days for the overlay Work performed outside the normal working hours will be billed at 1 5 times the normal rate for services. Normal working hours are considered Monday through Friday 6 30 AM to 6 00 PM Any additional services authorized by the City of Atascadero, not included in the scope of services as defined by this contract, must be approved in the form of a City of Atascadero Change Order prior to performing additional work. The Construction Inspector will act as the representative of the City of Atascadero He will responsibly represent to the City information presented by the engineer and contractor pertaining to project conditions and provide construction inspection, assisting with decision pertaining to project design, changes and cost. The Construction Inspector has no authority over Contractor and will not be responsible for Contractor's failure to execute the work. It is agreed that the Construction Inspector shall use his professional judgment and experience in performing his observation on behalf of the City of Atascadero in selecting the time and place of observation to the best of his ability The City of Atascadero shall grant reasonable authority to the Construction Inspector to grant permission for modifications, changes or deviations from the Contract Documents The Construction Inspector shall confer with the City on all significant changes Ground Up will subcontract with Pavement Engineering Inc. (PEI) for asphalt inspection and quality control testing services to complying with the federal material testing requirements associated with an ARRA project. PEI's inspection staff is Caltrans certified and will meet all Section 39 requirements PEI will perform 24 hours of Compaction Testing, 4 Asphalt Mix Tests, 24 hours of Plant Inspection, 5 Aggregate Gradation test and 5 Sand Equivalent tests These amounts are based upon 3 paving days with the contractor placing approximately 750 tons of Hot Mix Asphalt per day for a total of 2,000 tons of HMA. This is the only subconsulting allowed by this contract. 658615.1 DRAFT 06/4/014.33 PM A-1 EXHIBIT B Compensation and Method of Payment TOTAL COST OF CONTRACT NOT TO EXCEED $12,940 00 WITHOUT PRIOR WRITTEN AUTHORIZATION Services will be conducted on a time and material basis not to exceed the contractual amount of$ 12,440 00 All reimbursables (telephone calls, vehicle mileage, messenger services and field office expenses) are payable to a maximum amount of$500 00 and will be included in the total contract amount of$12,940 00 Any additional services authorized by the City of Atascadero, not included in the scope of services as defined by this contract, must be approved in the form of a City of Atascadero Change Order prior to performing additional work. Payment will be made within 30 days after receipt and approval of invoice Payments to the consultant in excess of the contract amount of $12,940 00 will not be made unless written authorization is executed prior to the date of the additional requested work. Any charges incurred outside of these contract terms will not be authorized for payment. Ground Up Design and Construction Management Inc. - /12 (?'0- /g! ? �a Robert Carnes, President 658615 1 DRAFT 06/4/014.33 PM B-1 Y Compensation and Method of Payment Ground Up's inspection duration for the project is based on the Streetscape III Bid Schedules B and C and the estimated work duration of approximately 4 days at 8 hours per day Table of estimated costs Streetscape Phase III Inspection Services Ground Up Daily Periodic Inspection DAYS / HRS/ TOTAL TOTAL WK DAY HRS HR/RATE COST 4 8 32 $ 9000 $2,88000 Ground Up Estimated Costs $2,88000 Pavement Engineering, Inc (Sub-Contract for testing) $9,560 00 Total Estimated Inspection Costs $12,44000 Reimbursable Allowance $ 500 00 Total Construction Inspection Contract $12,94000 658615 1 B-2 DRAFT 06/4/014.33 PM EXHIBIT C Items Provided by City Norte 658615 1 DRAFT 06/4/014.33 PM C- EXHIBIT D Location Schedule 1,PROJECT L DCA TION 7 7 r. E 1 T i� Y ' tic...... ........... ............. ......... ...... The Downtown Streetscape Phase III paving inspection location consists of EI Camino Real from Rosario Avenue to San Jacinto Avenue. 658615 I DRAFT 0641014.33 PM D-1 3 EXHIBIT E Insurance Requirements The 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, employees, or subconsultants Minimum Scope of Insurance Coverage shall be at least as broad as 1 Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001) 2 Insurance Services Office form number CA 0001 (Ed. 1/87)covering Automobile Liability, code 1 (any auto) 3 Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 4 Errors and Omissions Liability insurance as appropriate to the consultant's profession. Minimum Limits of Insurance Consultant shall maintain limits no less than 1 General Liability- $1,000,000 per occurrence for bodily injury, personal injury and propertv damage. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2 Automobile Liability- $1,000,000 per accident for bodily injury and property damage. 3 Employer's Liability- $1,000,000 per accident for bodily injury or disease. 4 Errors and Omissions Liability $1,000,000 per occurrence. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City At the option of the City, either- the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers, or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions 1 The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased, hired or borrowed by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, official, employees, agents or volunteers. 658615 1 DRAFT 06/4/014.33 PM E-1 Insurance Requirements 2 For any claims related to this project, the Consultant's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. 3 The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought,except with respect to the limits of the insurer's liability 4 Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A VII Verification of Coverage. Consultant shall furnish the City with a certificate of insurance showing maintenance of the required insurance coverage. Original endorsements effecting general liability and automobile liability coverage required by this clause must also be provided. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf All endorsements are to be received and approved by the City before work commences. 658615 1 DRAFT 06/4/014.33 PM E-2 EXHIBIT F-Federal Form 1273 SECTION 8-FEDERAL REQUIREMENTS FOR FEDERAL-AID PROJECTS GENERAL.—The work herein proposed will be financed in whole or in part with Federal funds, and therefore all of the statutes, rules and regulations promulgated by the Federal (This form need not be filled in if all joint venture firms are Government and applicable to work financed in whole or in DBE owned.) part with Federal funds will apply to such work. The Required Contract Provisions, Federal-Aid Construction e / v Contracts, 'Form FHWA 1273, are included in this Section 1 Name of joint venture &I/ 14 Whenever in said required contract provisions references are made to 'SHA contracting officer 'SHA resident Engineer or 'authorized representative of the SHA, such references shall be construed to mean 2.Address of joint venture 'Engineer" as defined in Section 1-1 18 of the Standard Specifications PERFORMANCE OF PREVIOUS CONTRACT—in ad- 3. Phone number of joint venture dition to the provisions in Section II, "Nondiscrimination, and Section VII "Subletting or Assigning the Contract, of the re- quired contract provisions, the Contractor shall comply with the following. 4 Identify the firms which comprise the joint venture. The bidder shall execute the CERTIFICATION WITH (The DBE partner must complete Schedule A.) REGARD TO THE PERFORMANCE OF PREVIOUS CONTRACTS OR SUBCONTRACTS SUBJECT TO THE EQUAL OPPORTUNITY CLAUSE AND THE FILING OF REQUIRED REPORTS located in the proposal. No request for subletting or assigning any portion of the contract in excess of$10 000 will be considered under the a. Describe the role of the DBE firm in the joint ven- provisions of Section VII of the required contract provisions unless such request is accompanied by the ture. CERTIFICATION referred to above, executed by the proposed subcontractor NON-COLLUSION PROVISION.—The provisions in this b Describe very briefly the experience and business section are applicable to all contracts except contracts for Federal Aid Secondary projects. qualifications of each non-DBE joint venturer, Title 23 United States Code Section 112, requires as a condition precedent to approval by the Federal Highway Administrator of the contract for this work that each bidder file a sworn statement executed by or on behalf of, the person, firm, association, or corporation to whom such contract is to be awarded, certifying that such person, firm 5. Nature of the joint venture's business association, or corporation has not, either directly or indirectly entered into any agreement, participated in any collusion, or otherwise taken any action in restraint of free competitive bidding in connection with the submitted bid. A 6 Provide a copy of the joint venture agreement. form to make the non-collusion affidavit statement required by Section 112 as a certification under penalty of perjury 7 What is the claimed percentage of DBE ownership? rather than as a sworn statement as permitted by 28 USC Sec. 1746,is included in the proposal. PARTICIPATION BY DISADVANTAGED BUSINESS EN- TERPRISES IN SUBCONTRACTING.—Part 26, Title 49, Code of Federal Regulations applies to this Federal-aid 8. Ownership of joint venture (This need not be filled in project. Pertinent sections of said Code are incorporated in part or in its entirety within other sections of these special if described in the joint venture agreement, provided by provisions. question 6) Schedule B—Information for Determining Joint Venture Eligibility 6586151 DRAFT 06/4/014 33 PM F-1 a. Profit and loss sharing. b Capital contributions including equipment. Name of Firm Name of Firm c.Other applicable ownership interests 9 Control of and participation in this contract. Identify Signature Signature by name, race, sex, and 'firm" those individuals (and their titles) who are responsible for day-to-day management and policy decision making, including, but Name Name not limited to those with prime responsibility for- a. ora. Financial decisions Title Title Date Date b Management decisions,such as: Date 1 Estimating State of County of 2.Marketing and sales On this day of 19_, before 3 Hiring and firing of management personnel me appeared (Name) to me personally known,who being duly sworn did execute the 4 Purchasing of major items or supplies foregoing affidavit, and did state that he or she was properly authorized by (Name of firm) to execute the affidavit c. Supervision of field operations and did so as his or her free act and deed Notary Public Note.—If, after filing this Schedule B and before the completion of the joint venture's work on the contract Commission expires covered by this regulation, there is any significant change in the information submitted, the joint venture must inform [Seal] the grantee, either directly or through the prime contractor Date if the joint venture is a subcontractor Affidavit State of 'The undersigned swear that the foregoing statements County of are correct and include all material information necessary to identify and explain the terms and operation of our joint On this _day of 19_, before venture and the intended participation by each joint venturer in the undertaking Further the undersigned me appeared (Name) to me covenant and agree to provide to grantee current, complete and accurate information regarding actual joint personally known,who being duly sworn, did execute the venture work and the payment therefor and any proposed changes in any of the joint venture arrangements and to foregoing affidavit, and did state that he or she was permit the audit and examination of the books, records and files of the joint venture, or those of each joint properly authorized by (Name of firm) venturer relevant to the joint venture by authorized to execute the affidavit representatives of the grantee or the Federal funding agency Any material misrepresentation will be grounds and did so as his or her free act and deed for terminating any contract which may be awarded and for initiating action under Federal or State laws concerning Nota Public false statements. Notary Commission expires Acknowledged. [Seal] � Z rD Robert rnes ate President, Ground Up Design&Const. Ma6agement F-2 , REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONSTRUCTION CONTRACTS FORM 1273(EXCLUSIVE OF APPALACHIAN CONTRACTS) session or territory of the United States (except for em- Page ployment preference for Appalachian contracts, when ap- I. General 3 plicable as specified in Attachment A) or II Nondiscrimination 3 b employ convict labor for any purpose within the limits III. Nonsegregated Facilities 5 of the project unless it is labor performed by convicts who IV Payment of Predetermined Minimum Wage 6 are on parole, supervised release,or probation V Statements and Payrolls 8 VI Record of Materials Supplies,and Labor 9 it NONDISCRIMINATION VII Subletting or Assigning the Contract 9 VIII. Safety* Accident Prevention 10 (Applicable to all Federal-aid construction contracts and to IX. False Statements Concerning Highway Project 10 all related subcontracts of$10,000 or more.) X. Implementation of Clean Air Act and Federal Water 1 Equal Employment Opportunity, Equal employment Pollution Control Act 10 opportunity (EEO) requirements not to discriminate and to XI Certification Regarding Debarment,Suspension take affirmative action to assure equal opportunity as set Ineligibility and Voluntary Exclusion 11 forth under laws, executive orders, rules, regulations XII Certification Regarding Use of Contract Funds for (28 CFR 35 29 CFR 1630 and 41 CFR 60) and orders of Lobbying 12 the Secretary of Labor as modified by the provisions pre- scribed herein, and imposed pursuant to 23 U S C 140 shall ATTACHMENTS constitute the EEO and specific affirmative action standards for the contractor's project activities under this contract. The A. Employment Preference for Appalachian Contracts Equal Opportunity Construction Contract Specifications set (included in Appalachian contracts only) forth under 41 CFR 60-4.3 and the provisions of the Ameri- can Disabilities Act of 1990 (42 U.S.0 12101 et seq.) set I. GENERAL forth under 28 CFR 35 and 29 CFR 1630 are incorporated by reference in this contract. In the execution of this con- t These contract provisions shall apply to all work per tract, the contractor agrees to comply with the following formed on the contract by the contractor's own organization minimum specific requirement activities of EEO- and with the assistance of workers under the contractor's im- a.The contractor will work with the State highway mediate superintendence and to all work performed on the agency(SHA)and the Federal Government in carrying out contract by piecework, station work,or by subcontract. EEO obligations and in their review of his/her activities 2. Except as otherwise provided for in each section, the under the contract, contractor shall insert in each subcontract all of the stipula- b The contractor will accept as his operating policy the tions contained in these Required Contract Provisions, and following statement: further require their inclusion in any lower tier subcontract or purchase order that may in turn be made. The Required !f is the policy of this Company to assure that applicants Contract Provisions shall not be incorporated by reference In are employed, and that employees are treated during any case The prime contractor shall be responsible for employment, without regard to their race, religion, sex, color compliance by any subcontractor or lower tier subcontractor national origin, age or disability Such action shall include. with these Required Contract Provisions. employment, upgrading, demotion, or transfer recruitment or 3 A breach of any of the stipulations contained in these recruitment advertising;layoff or termination, rates of payor Required Contract Provisions shall be sufficient grounds for other forms of compensation; and selection for training, in- termination of the contract. cluding apprenticeship preapprenticeship, and/or on-the-job training. 4 A breach of the following clauses of the Required Con- 2.EEO Officer The contractor will designate and make tract Provisions may also be grounds for debarment as pro- known to the SHA contracting officers an EEO Officer who vided in 29 CFR 5.12: will have the responsibility for and must be capable of Section I,paragraph 2; effectively Section IV paragraphs 1 2,3,4,and 7 Section V paragraphs 1 and 2a through 2g. 5 Disputes arising out of the labor standards provisions of Section IV (except paragraph 5) and Section V of these Required Contract Provisions shall not be subject to the gen- eral disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the U S. De- partment of Labor (DOL) as set forth in 29 CFR 5 6, and 7 Disputes within the meaning of this clause include disputes between the contractor(or any of its subcontractors) and the contracting agency, the DOL, or the contractor's employees or their representatives. 6. Selection of Labor- During the performance of this contract,the contractor shall not: a.discriminate against labor from any other State, pos- F-3 administering and promoting an active contractor program of EEO and who must be assigned adequate authority and responsibility to do so c.The contractor will encourage his present employees 3 Dissemination of Policy- All members of the con- to refer minority group applicants for employment. Infor tractor's staff who are authorized to hire,supervise, promote, mation and procedures with regard to referring minority and discharge employees, or who recommend such action, group applicants will be discussed with employees. or who are substantially involved in such action,will be made 5. Personnel Actions: Wages, working conditions and fully cognizant of and will implement, the contractor's EEO employee benefits shall be established and administered, policy and contractual responsibilities to provide EEO in and personnel actions of every type, including hiring up- each grade and classification of employment. To ensure grading, promotion, transfer demotion, layoff and termina- that the above agreement will be met, the following actions tion, shall be taken without regard to race, color religion will be taken as a minimum: sex, national origin age or disability The following g' g y g proce- a. Periodic meetings of supervisory and personnel office dures shall be followed- employees will be conducted before the start of work and a.The contractor will conduct periodic inspections of then not less often than once every six months, at which project sites to ensure that working conditions and em- time the contractor's EEO policy and its implementation ployee facilities do not indicate discriminatory treatment of will be reviewed and explained The meetings will be con- project site personnel. ducted by the EEO Officer b All new supervisory or personnel office employees b The contractor will periodically evaluate the spread of will be given a thorough indoctrination by the EEO Officer wages paid within each classification to determine any evi- covering all major aspects of the contractor's EEO obliga- dence of discriminatory wage practices. tions within thirty days following their reporting for duty c.The contractor will periodically review selected per with the contractor sonnel actions in depth to determine whether there is evi- c.All personnel who are engaged in direct recruitment dente of discrimination Where evidence is found, the for the project will be instructed by the EEO Officer in the contractor will promptly take corrective action. If the contractor's procedures for locating and hiring minority review indicates that the discrimination may extend group employees beyond the actions reviewed such corrective action shall include all affected persons. d. Notices and posters setting forth the contractor's EEO d.The contractor will promptly investigate all complaints policy will be placed in areas readily accessible to employ- of alleged discrimination made to the contractor in connec ees,applicants for employment and potential employees. tion with his obligations under this contract, will attempt to e.The contractor's EEO policy and the procedures to resolve such complaints, and will take appropriate implement such policy will be brought to the attention of corrective action within a reasonable time If the inves- employees by means of meetings, employee handbooks, tigation indicates that the discrimination may affect per or other appropriate means. sons other than the complainant, such corrective action shall include such other persons. Upon completion of 4 Recruitment: When advertising for employees, the each investigation, the contractor will inform every com- contractor will include in all advertisements for employees Plainant of all of his avenues of appeal the notation. An Equal Opportunity Employer All such 6.Training and Promotion advertisements will be placed in publications having a large circulation among minority groups in the area from which the project work force would normally be derived. a.The contractor will assist in locating, qualifying, and increasing the skills of minority group and women employ- a.The contractor will, unless precluded by a valid bar ees,and applicants for employment. gaining agreement, conduct systematic and direct recruit- ment through public and private employee referral sources b.Consistent with the contractor's work force require- likely to yield qualified minority group applicants To meet ments and as permissible under Federal and State regula- this requirement, the contractor will identify sources of tions, the contractor shall make full use of training pro- potential minority group employees, and establish with grams, i.e., apprenticeship and on-the-job training pro- such identified sources procedures whereby minority grams for the geographical area of contract performance group applicants may be referred to the contractor for Where feasible, 25 percent of apprentices or trainees in employment consideration. each occupation shall be in their first year of apprentice- ship or training. In the event a special provision for train- b In the event the contractor has a valid bargaining ing is provided under this contract, this subparagraph will agreement providing for exclusive hiring hall referrals, he be superseded as indicated in the special provision. is expected to observe the provisions of that agreement to the extent that the system permits the contractor's compli- c.The contractor will advise employees and applicants ante with EEO contract provisions. (The DOL has held for employment of available training programs and en- that where implementation of such agreements have the trance requirements for each effect of discriminating against minorities or women or obligates the contractor to do the same such d.The contractor will periodically review the training and implementation violates Executive Order 11246, as promotion potential of minority group and women employ- amended) ees and will encourage eligible employees to apply for such training and promotion. F-4 A 7 Unions. If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use a.The records kept by the contractor shall document his/her best efforts to obtain the cooperation of such unions the following: to increase opportunities for minority groups and women within the unions and to effect referrals by such unions of (1)The number of minority and non-minority group minority and female employees. Actions by the contractor members and women employed in each work classifica- either directly or through a contractor's association acting as tion on the project; agent will include the procedures set forth below- (2)The progress and efforts being made in coopera- a.The contractor will use best efforts to develop, in co- tion with unions, when applicable to increase employ- operation with the unions, joint training programs aimed ment opportunities for minorities and women, toward qualifying more minority group members and women for membership in the unions and increasing the (3)The progress and efforts being made in locating skills of minority group employees and women so that they hiring, training, qualifying and upgrading minority and may qualify for higher paying employment. female employees,and b The contractor will use best efforts to incorporate an (4)The progress and efforts being made in securing EEO clause into each union agreement to the end that the services of DBE subcontractors or subcontractors such union will be contractually bound to refer applicants with meaningful minority and female representation without regard to their race color religion, sex, national among their employees. origin, age or disability b The contractors will submit an annual report to the c.The contractor is to obtain information as to the re- SHA each July for the duration of the project, indicating ferral practices and policies of the labor union except that the number of minority women, and non-minority group to the extent such information is within the exclusive pos- employees currently engaged in each work classification session of the labor union and such labor union refuses to required by the contract work. This information is to be re- furnish such information to the contractor the contractor ported on Form FHWA-1391 If on-the-job training is be- shall so certify to the SHA and shall set forth what efforts ing required by special provision the contractor will be re- have been made to obtain such information. quired to collect and report training data. d In the event the union is unable to provide the con- IiI NONSEGREGATED FACILITIES tractor with a reasonable flow of minority and women referrals within the time limit set forth in the collective bar (Applicable to all Federal-aid construction contracts and to gaining agreement, the contractor will, through indepen- all related subcontracts of$10,000 or more.) dent recruitment efforts, fill the employment vacancies without regard to race, color religion sex, national origin, a. By submission of this bid, the execution of this con- age or disability- making full efforts to obtain qualified tract or subcontract, or the consummation of this material and/or qualifiable minority group persons and women. supply agreement or purchase order as appropriate, the (The DOL has held that it shall be no excuse that the bidder Federal-aid construction contractor subcontractor union with which the contractor has a collective bargaining material supplier or vendor as appropriate certifies that agreement providing for exclusive referral failed to refer the firm does not maintain or provide for its employees any minority employees.) In the event the union referral prac- segregated facilities at any of its establishments, and that tice prevents the contractor from meeting the obligations the firm does not permit its employees to perform their pursuant to Executive Order 11246 as amended, and services at any location under its control, where segre- these special provisions,such contractor shall immediately gated facilities are maintained. The firm agrees that a notify the SHA, breach of this certification is a violation of the EEO provi- sions of this contract. The firm further certifies that no employee will be denied access to adequate facilities on Materials and Leasing of Equipment: The contractor shall the basis of sex or disability not discriminate on the grounds of race, color religion, sex, national origin age or disability in the selection and retention b.As used in this certification, the term segregated fa- of subcontractors, including procurement of materials and cilities" means any waiting rooms, work areas, restrooms leases of equipment. and washrooms, restaurants and other eating areas, time a.The contractor shall notify all potential subcontractors clocks, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertain- and suppliers of his/her EEO obligations under this ment areas, transportation, and housing facilities provided contract. for employees which are segregated by explicit directive b Disadvantaged business enterprises (DBE), as or are, in fact, segregated on the basis of race color reli- g p ( ) gion, national origin, age or disability because of habit, defined in 49 CFR 26, shall have equal opportunity to focal custom, or otherwise The only exception will be for compete for and perform subcontracts which the the disabled when the demands for accessibility override contractor enters into pursuant to this contract. The (e.g disabled parking) contractor will use his best efforts to solicit bids from and to utilize DBE subcontractors or subcontractors with meaningful minority group and female representation among their employees. Contractors shall obtain lists of DBE construction firms from SHA personnel. c.The contractor will use his best efforts to ensure sub- contractor compliance with their EEO obligations. 9 Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following completion of the contract work and shall be available at reasonable times and places for inspec tion by authorized representatives of the SHA and the FHWA. F-5 c.The contractor agrees that it has obtained or will ob- 2.Classification- fain identical certification from proposed subcontractors or material suppliers prior to award of subcontracts or con- a.The SHA contracting officer shall require that any summation of material supply agreements of $10,000 or class of laborers or mechanics employed under the more and that it will retain such certifications in its files. contract, which is not listed in the wage determination IV PAYMENT OF PREDETERMINED MINIMUM shall be classified in conformance with the wage determination. WAGE b The contracting officer shall approve an additional (Applicable to all Federal-aid construction contracts ex- classification wage rate and fringe benefits only when the ceeding $2,000 and to all related subcontracts, except for following criteria have been met: projects located on roadways classified as local roads or rural minor collectors which are exempt.) (1)the work to be performed by the additional classifi- cation requested is not performed by a classification in 1 General the wage determination a.All mechanics and laborers employed or working (2)the additional classification is utilized in the area upon the site of the work will be paid unconditionally and by the construction industry- not less often than once a week and without subsequent (3)the proposed wage rate, including any bona fide deduction or rebate on any account [except such payroll fringe benefits, bears a reasonable relationship to the deductions as are permitted by regulations (29 CFR 3)] is- wage rates contained in the wage determination, and sued by the Secretary of Labor under the Copeland Act (40 U S C 276c) the full amounts of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of (4)with respect to helpers,when such a classification prevails in the area in which the work is performed payment. The payment shall be computed at wage rates not less than those contained in the wage determination of c. If the contractor or subcontractors, as appropriate the the Secretary of Labor (hereinafter 'the wage f known) to be employed in the determination") which is attached hereto and made a part additional classification laborers and mechanics (i(i their representatives and the hereof regardless of any contractual relationship which contracting of agree on the classification and wage may be alleged to exist between the contractor or its rate (including the amount designated for fringe benefits subcontractors and such laborers and mechanics. The where appropriate) a report of the action taken shall be wage determination (including any additional classific s sent by the contracting officer to the DOL,Administrator of tions and wage rates conformed under paragraph r F this the Wage and Hour Division, Employment Standards Section IV and the DOL poster (WHby the or Form Administration Washington D C 20210 The Wage and and its 495) shall be posted at all times by the contractor Hour Administrator or an authorized representative will and its subcontractors at the site a the work a a approve, modify or disapprove every additional classifica- prominent and accessible place where it can be easily tion action within 30 days of receipt and so advise the con- seen by the workers For the purpose of this Section tracting officer or will notify the contracting officer within contributions made or costs reasonably anticipated for the 30-day period that additional time is necessary bona fide fringe benefits under Section 1(b)(2) of the Davis-Bacon Act(40 U S C 276a)on behalf of laborers or d. In the event the contractor or subcontractors, as ap- mechanics are considered wages paid to such laborers or propriate,the laborers or mechanics to be employed in the mechanics, subject to the provisions of Section IV additional classification or their representatives, and the paragraph 3b, hereof Also, for the purpose of this Sec contracting officer do not agree on the proposed classifica- tion regular contributions made or costs incurred for more tion and wage rate (including the amount designated for than a weekly period(but not less often than quarterly) un- fringe benefits where appropriate) the contracting officer der plans, funds, or programs, which cover the particular shall refer the questions, including the views of all inter weekly period, are deemed to be constructively made or ested parties and the recommendation of the contracting incurred during such weekly period. Such laborers and officer, to the Wage and Hour Administrator for determina- mechanics shall be paid the appropriate wage rate and tion. Said Administrator or an authorized representative fringe benefits othe wage determination for the will issue a determination within 30 days of receipt and so classification of work actually performed, without regard to advise the contracting officer or will notify the contracting skill, except as provided in paragraphs 4 and 5 of this Section IV officer within the 30-day period that additional time is nec- essary b Laborers or mechanics performing work in more than e.The wage rate (including fringe benefits where appro- one classification may be compensated at the rate priate) determined pursuant to paragraph 2c or 2d of this specified for each classification for the time actually Section IV shall be paid to all workers performing work in worked therein, provided, that the employer's payroll the additional classification from the first day on which records accurately set forth the time spent in each work is performed in the classification. classification in which work is performed. c.All rulings and interpretations of the Davis-Bacon Act 3. Payment of Fringe Benefits and related acts contained in 29 CFR 1 3,and 5 are herein incorporated by reference in this contract. a.Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate,the contractor or subcontractors, as appropriate shall either pay the benefit F-6 as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly case equivalent thereof. (4) In the event the Bureau of Apprenticeship and b If the contractor or subcontractor as appropriate, Training, or a State apprenticeship agency recognized does not make payments to a trustee or other third by the Bureau, withdraws approval of an apprenticeship person, he/she may consider as a part of the wages of any program, the contractor or subcontractor will no longer laborer or mechanic the amount of any costs reasonably be permitted to utilize apprentices at less than the appli- anticipated in providing bona fide fringe benefits under a cable predetermined rate for the comparable work per plan or program, provided,that the Secretary of Labor has formed by regular employees until an acceptable found, upon the written request of the contractor that the program is approved applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to b Trainees. set aside in a separate account assets for the meeting of obligations under the plan or program. (1) Except as provided in 29 CFR 5.16 trainees will not be permitted to work at less than the predetermined 4.Apprentices and Trainees(Programs of the U.S. rate for the work performed unless they are employed DOL)and Helpers. pursuant to and individually registered in a program which has received prior approval evidenced by formal a.Apprentices. certification by the DOL, Employment and Training Ad- ministration. (1)Apprentices will be permitted to work at less than (2)The ratio of trainees to journeyman-level employ- the predetermined rate for the work they performed ees on the job site shall not be greater than permitted when they are employed pursuant to and individually under the plan approved by the Employment and registered in a bona fide apprenticeship program Training Administration Any employee listed on the registered with the DOL, Employment and Training payroll at a trainee rate who is not registered and Administration, Bureau of Apprenticeship and Training, participating in a training plan approved by the or with a State apprenticeship agency recognized by the Employment and Training Administration shall be paid Bureau, or if a person is employed in his/her first 90 not less than the applicable wage rate the wage days of probationary employment as an apprentice in on g determination for the classification such an apprenticeship program, who is not individually f work actually registered in the program, but who has been certified by performed In addition, any trainee performing work the Bureau of Apprenticeship and Training or a State the job site in excess of the ratio permitted under the apprenticeship agency where appropriate)to be ell eligible registered program shall be paid not less than the pp p g y( . g applicable wage rate on the wage determination for the for probationary employment as an apprentice. work actually performed (2)The allowable ratio of apprentices to journeyman- (3) Every trainee must be paid at not less than the level employees on the job site in any craft classification rate specified in the approved program for his/her level shall not be greater than the ratio permitted to the of progress, expressed as a percentage of the contractor as to the entire work force under the journeyman-level hourly rate specified in the applicable registered program. Any employee listed on a payroll at wage determination. Trainees shall be paid fringe an apprentice wage rate, who is not registered or benefits in accordance with the provisions of the trainee otherwise employed as stated above, shall be paid not program. If the trainee program does not mention fringe less than the applicable wage rate listed in the wage benefits, trainees shall be paid the full amount of fringe determination for the classification of work actually benefits listed on the wage determination unless the performed. In addition, any apprentice performing work Administrator of the Wage and Hour Division determines on the job site in excess of the ratio permitted under the that there is an apprenticeship program associated with registered program shall be paid not less than the the corresponding journeyman-level wage rate on the applicable wage rate on the wage determination for the wage determination which provides for less than full work actually performed. Where a contractor or fringe benefits for apprentices, in which case such subcontractor is performing construction on a project in trainees shall receive the same fringe benefits as a locality other than that in which its program is registered, the ratios and wage rates (expressed in apprentices. percentages of the journeyman-level hourly rate) (4)In the event the Employment and Training specified in the contractor's or subcontractor's Administration withdraws approval of a training program, registered program shall be observed. the contractor or subcontractor will no longer be (3)Every apprentice must be paid at not less than the permitted to utilize trainees at less than the applicable rate specified in the registered program for the appren- predetermined rate for the work performed until an tice s level of progress, expressed as a percentage of acceptable program is approved. the journeyman-level hourly rate specified in the c. Helpers. applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship Helpers will be permitted to work on a project if the helper program does not specify fringe benefits, apprentices classification is specified and defined on the applicable wage must be paid the full amount of fringe benefits listed on determination or is approved pursuant to the conformance the wage determination for the applicable classification. procedure set forth in Section IV.2 Any worker listed on a If the Administrator for the Wage and Hour Division payroll at a helper wage rate who is not a helper under an determines that a different practice prevails for the approved definition shalt be paid not less than the applicable apprentice classification fringes shall be paid in accordance with that determination. applicable wage rate on the wage determination for the classification of work actually performed F-7 5.Apprentices and Trainees(Programs of the U.S. DOT): Apprentices and trainees working under apprenticeship and skill training programs which have been certified by same prime contractor or any other federally-assisted the Secretary of Transportation as promoting EEO in contract subject to the Contract Work Hours and Safety connection with Federal-aid highway construction programs Standards Act, which is held by the same prime contractor are not subject to the requirements of paragraph 4 of this such sums as may be determined to be necessary to satisfy Section IV The straight time hourly wage rates for any liabilities of such contractor or subcontractor for unpaid apprentices and trainees under such programs will be wages and liquidated damages as provided in the clause set established by the particular programs. The ratio of forth in paragraph 8 above. apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program. V STATEMENTS AND PAYROLLS 6.Withholding (Applicable to all Federal-aid construction contracts ex ceeding $2,000 and to all related subcontracts, except for The SHA shall upon its own action or upon written request projects located on roadways classified as local roads or of an authorized representative of the DOL withhold or rural collectors,which are exempt.) cause to be withheld, from the contractor or subcontractor under this contract or any other Federal contract with the 1 Compliance with Copeland Regulations (29 CFR 3). same prime contractor or any other federally-assisted contract subject to Davis-Bacon prevailing wage The contractor shall comply with the Copeland Regula- requirements which is held by the same prime contractor, as tions of the Secretary of Labor which are herein incorporated much of the accrued payments or advances as may be by reference. considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by 2. Payrolls and Payroll Records: the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice trainee or a. Payrolls and basic records relating thereto shall be helper employed or working on the site of the work, all or maintained by the contractor and each subcontractor part of the wages required by the contract, the SHA during the course of the work and preserved for a period contracting officer may after written notice to the contractor of 3 years from the date of completion of the contract for take such action as may be necessary to cause the sus- all laborers, mechanics, apprentices, trainees, watchmen, pension of any further payment, advance or guarantee of helpers,and guards working at the site of the work. funds until such violations have ceased b The payroll records shall contain the name, social se- 7 Overtime Requirements. curity number and address of each such employee his or her correct classification hourly rates of wages paid No contractor or subcontractor contracting for any part of for (including � ld bona fide fricontributions tl fringe benefits or cash equivalent the the contract work which may require or involve the employ- types described in Section 1(b)(2)(B) of the Davis Bacon ment of laborers, mechanics, watchmen, or guards Act) daily and weekly number of hours worked, (including apprentices, trainees, and helpers described in deductions made- and actual wages paid. In addition, for paragraphs 4 and 5 above) shall require or permit any Appalachian contracts, the payroll records shall contain a laborer mechanic, watchman, or guard in any workweek in notation indicating whether the employee does, or does which he/she is employed on such work,to work in excess of not, normally reside in the labor area as defined in 40 hours in such workweek unless such laborer mechanic, Attachment A, paragraph 1 Whenever the Secretary of watchman, or guard receives compensation at a rate not Labor pursuant to Section IV paragraph 3b, has found less than one-and-one-half times his/her basic rate of pay for that the wages of any laborer or mechanic include the all hours worked in excess of 40 hours in such workweek. amount of any costs reasonably anticipated in providing benefits under a plan or program described in Section 8.Violation 1(b)(2)(B)of the Davis Bacon Act,the contractor and each subcontractor shall maintain records which show that the Liability for Unpaid Wages Liquidated Damages. In the commitment to provide such benefits is enforceable that event of any violation of the clause set forth in paragraph 7 the pian or program is financially responsible, that the plan above the contractor and any subcontractor responsible or program has been communicated in writing to the thereof shall be liable to the affected employee for his/her laborers or mechanics affected, and show the cost unpaid wages. In addition, such contractor and anticipated or the actual cost incurred in providing subcontractor shall be liable to the United States(in the case benefits. Contractors or subcontractors employing of work done under contract for the District of Columbia or a apprentices or trainees under approved programs shall territory to such District or to such territory) for liquidated maintain written evidence of the registration of apprentices damages. Such liquidated damages shall be computed with and trainees, and ratios and wage rates prescribed in the respect to each individual laborer mechanic, watchman, or applicable programs, guard employed in violation of the clause set forth in paragraph 7 in the sum of $10 for each calendar day on which such employee was required or permitted to work in excess of the standard work week of 40 hours without payment of the overtime wages required by the clause set forth in paragraph 7 9.Withholding for Unpaid Wages and Liquidated Damages. The SHA shall upon its own action or upon written request of any authorized representative of the DOL withhold, or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the F-8 c. Each contractor and subcontractor shall furnish, each basis, highway beautification contracts, and contracts for week in which any contract work is performed,to the SHA which the total final construction cost for roadway and bridge resident Engineer a payroll of wages paid each of its em- is less than$1000 000(23 CFR 635)the contractor shall ployees (including apprentices, trainees, and helpers, de- scribed in Section IV paragraphs 4 and 5 and watchmen a. Become familiar with the list of specific materials and and guards engaged on work during the preceding weekly supplies contained in Form FHWA-47 'Statement of payroll period) The payroll submitted shall set out accu- Materials and Labor Used by Contractor of Highway rately and completely all of the information required to be Construction Involving Federal Funds, prior to the maintained under paragraph 2b of this Section V This in- commencement of work under this contract. formation may be submitted in any form desired Optional Form WH-347 is available for this purpose and may be b Maintain a record of the total cost of all materials and purchased from the Superintendent of Documents supplies purchased for and incorporated in the work, and (Federal stock number 029-005-0014-1) U S. also of the quantities of those specific materials and sup- Government Printing Office Washington D C 20402. plies listed on Form FHWA-47 and in the units shown on The prime contractor is responsible for the submission of Form FHWA-47 copies of payrolls by all subcontractors. c. Furnish, upon the completion of the contract, to the d. Each payroll submitted shall be accompanied by a SHA resident Engineer on Form FHWA-47 together with 'Statement of Compliance, signed by the contractor or the data required in paragraph 1b relative to materials and subcontractor or his/her agent who pays or supervises the supplies, a final labor summary of all contract work payment of the persons employed under the contract and indicating the total hours worked and the total amount shall certify the following: earned. (1)that the payroll for the payroll period contains the 2.At the prime contractor's option, either a single report information required to be maintained under paragraph covering all contract work or separate reports for the 2b of this Section V and that such information is correct contractor and for each subcontract shall be submitted and complete, (2)that such laborer or mechanic (including each VII. SUBLETTING OR ASSIGNING THE CONTRACT helper apprentice and trainee) employed on the 1 The contractor shall perform with its own organization contract during the payroll period has been paid the full contract work amounting to not less than 30 percent (or a weekly wages earned, without rebate, either directly or greater percentage if specified elsewhere in the contract) of indirectly and that no deductions have been made the total original contract price, excluding any specialty items either directly or indirectly from the full wages earned, designated by the State. Specialty items may be performed other than permissible deductions as set forth in the by subcontract and the amount of any such specialty items Regulations,29 CFR 3• performed may be deducted from the total original contract (3)that each laborer or mechanic has been paid not price before computing the amount of work required to be less that the applicable wage rate and fringe benefits or performed by the contractor's own organization (23 CFR cash equivalent for the classification of worked per- 635). formed, as specified in the applicable wage determina- a. 'Its own organization" shall be construed to include tion incorporated into the contract. only workers employed and paid directly by the prime con- e.The weekly submission of a properly executed tractor and equipment owned or rented by the prime certification set forth on the reverse side of Optional Form contractor with or without operators Such term does not WH-347 shall satisfy the requirement for submission of the include employees or equipment of a subcontractor 'Statement of Compliance required by paragraph 2d of assignee, or agent of the prime contractor this Section V b. 'Specialty Items" shall be construed to be limited to f.The falsification of any of the above certifications may work that requires highly specialized knowledge abilities subject the contractor to civil or criminal prosecution under tr equipment not ordinarily available in the type of con- 18 U S C 1001 and 31 U S.0 231 acting organizations qualified and expected to bid on the contract as a whole and in general are to be limited to g. The contractor or subcontractor shall make the minor components of the overall contract. records required under paragraph 2b of this Section V available for inspection copying or transcription by authorized representatives of the SHA, the FHWA, or the DOL, and shall permit such representatives to interview employees during working hours on the job If the contractor or subcontractor fails to submit the required records or to make them available, the SHA, the FHWA, the DOL, or all may after written notice to the contractor sponsor applicant, or owner take such actions as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. VI. RECORD OF MATERIALS,SUPPLIES,AND LABOR 1 On all Federal-aid contracts on the National Highway System,except those which provide solely for the installation of protective devices at railroad grade crossings those which are constructed on a force account or direct labor F-9 2.The contract amount upon which the requirements set forth in paragraph 1 of Section VII is computed includes the NOTICE TO ALL PERSONNEL ENGAGED ON cost of material and manufactured products which are to be FEDERAL-AID HIGHWAY PROJECTS purchased or produced by the contractor under the contract provisions. 18 U S.0 1020 reads as follows. 3.The contractor shall furnish(a) a competent superinten- Whoever being an officer agent, or employee of the dent or supervisor who is employed by the firm, has full au- United States, or any State or Territory or whoever whether thority to direct performance of the work in accordance with a person, association, firm, or corporation, knowingly makes the contract requirements, and is in charge of all any false statement, false representation, or false report as construction operations (regardless of who performs the to the character quality quantity, or cost of the material work) and (b) such other of its own organizational resources used or to be used, or the quantity or quality of the work (supervision, management, and Engineering services)as the performed or to be performed, or the cost thereof in SHA contracting officer determines is necessary to assure connection with the submission of plans, maps, the performance of the contract. specifications, contracts, or costs of construction on any assigned or highway or related project submitted for approval to the 4 No portion of the contract shall be sublet, assi 9 Secretary of Transportation, or otherwise disposed of except with the written consent of the SHA contracting officer or authorized representative, and Whoever knowingly makes any false statement, false rep- such consent when given shall not be construed to relieve resentation, false report or false claim with respect to the the contractor of any responsibility for the fulfillment of the character, quality quantity or cost of any work performed or contract. Written consent will be given only after the SHA to be performed, or materials furnished or to be furnished, in has assured that each subcontract is evidenced in writing connection with the construction of any highway or related and that it contains all pertinent provisions and requirements project approved by the Secretary of Transportation, or of the prime contract. Whoever knowingly makes any false statement or false VIII. SAFETY ACCIDENT PREVENTION representation as to material fact in any statement, certifi- cate, or report submitted pursuant to provisions of the Fed- 1 In the performance of this contract the contractor shall eral-aid Roads Act approved July 1 1916, (39 Stat. 355) as comply with all applicable Federal, State,and local laws gov- amended and supplemented; erning safety health, and sanitation (23 CFR 635) The con- tractor shall provide all safeguards, safety devices and Shall be fined not more that $10,000 or imprisoned not protective equipment and take any other needed actions as more than 5 years or both it determines, or as the SHA contracting officer may determine to be reasonably necessary to protect the life and X. IMPLEMENTATION OF CLEAN AIR ACT AND health of employees on the job and the safety of the public FEDERAL WATER POLLUTION CONTROL ACT and to protect property in connection with the performance of the work covered by the contract. (Applicable to all Federal-aid construction contracts and to 2. It is a condition of this contract, and shall be made a all related subcontracts of$100,000 or more) condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any gY submission of this bid or the execution of this contract, subcontractor shall not permit any employee, in performance st subcontract, to appropriate, the bidder Federal-aid con- of the contract, to work in surroundings or under conditions deemed contractor or subcontractor as appropriate will be which are unsanitary hazardous or dangerous to his/her deemed to have stipulated as follows. health or safety as determined under construction safety 1 That any facility that is or will be utilized in the perfor and health standards (29 CFR 1926) promulgated by the mance of this contract, unless such contract is exempt under Secretary of Labor in accordance with Section 107 of the the Clean Air Act, as amended (42 U S C 1857 et seq. as Contract Work Hours and Safety Standards Act (40 U S C amended by Pub L. 91-604) and under the Federal Water 333) Pollution Control Act, as amended(33 U S C 1251 et seq. 3. Pursuant to 29 CFR 1926.3, it is a condition of this con- as amended by Pub L. 92-500) Executive Order 11738 tract that the Secreta of Labor or authorized representative and regulations in implementation thereof(40 CFR 15) is not thereof, shall have right of entry to any site of contract listed, on the date of contract award, the U S performance to inspect or investigate the matter of compli- Environmental Protection Agency (EPA) Listt of Violating Facilities pursuant to 40 CFR 15.20 ance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of 2.That the firm agrees to comply and remain in compli- the Contract Work Hours and Safety Standards Act (40 ance with all the requirements of Section 114 of the Clean U S.0 333) Air Act and Section 308 of the Federal Water Pollution IX. FALSE STATEMENTS CONCERNING HIGHWAY Control Act and all regulations and guidelines listed thereunder PROJECTS 3 That the firm shall promptly notify the SHA of the receipt In order to assure high quality and durable construction in of any communication from the Director Office of Federal conformity with approved plans and specifications and a high Activities, EPA, indicating that a facility that is or will be degree of reliability on statements and representations made utilized by Engineers, contractors, suppliers, and workers on Federal-aid highway projects, it is essential that all persons concerned with theproject perform their functions as carefully thoroughly and honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law To prevent any misunderstanding regarding the seriousness of these and similar acts,the following notice shall be posted on each Federal-aid highway project(23 CFR 635)in one or more places where it is readily available to all persons concerned with the project: F-10 for the contract is under consideration to be listed on the for lower tier covered transactions. EPA List of Violating Facilities. h.A participant in a covered transaction may rely upon a 4 That the firm agrees to include or cause to be included certification of a prospective participant in a lower tier cov- the requirements of paragraph 1 through 4 of this Section X ered transaction that is not debarred, suspended, ineli- in every nonexempt subcontract, and further agrees to take gible, or voluntarily excluded from the covered transaction, such action as the government may direct as a means of unless it knows that the certification is erroneous A par enforcing such requirements. ticipant may decide the method and frequency by which it determines the eligibility of its principals. Each participant XI. CERTIFICATION REGARDING DEBARMENT, may but is not required to check the nonprocurement SUSPENSION, INELIGIBILITY AND VOLUNTARY portion of the"Lists of Parties Excluded From Federal Pro- EXCLUSION curement or Nonprocurement Programs" (Nonprocurement List) which is compiled by the General 1 Instructions for Certification-Primary Covered Services Administration Transactions. i Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to (Applicable to all Federal-aid contracts 49 CFR 29) render in good faith the certification required by this clause. The knowledge and information of participant is a. By signing and submitting this proposal,the prospec not required to exceed that which is normally possessed tive primary participant is providing the certification set out by a prudent person in the ordinary course of business below dealings. b.The inability of a person to provide the certification i Except for transactions authorized under paragraph f set out below will not necessarily result in denial of partic of these instructions, if a participant in a covered transac ipation in this covered transaction The prospective par tion knowingly enters into a lower tier covered transaction ticipant shall submit an explanation of why it cannot pro- with a person who is suspended, debarred ineligible, or vide the certification set out below The certification or voluntarily excluded from participation in this transaction, explanation will be considered in connection with the de- in addition to other remedies available to the Federal Gov- partment or agency's determination whether to enter into ernment, the department or agency may terminate this this transaction. However failure of the prospective pri- transaction for cause or default. mary participant to furnish a certification or an explanation shall disqualify such a person from participation in this ««««« transaction Certification Regarding Debarment, c.The certification in this clause is a material represen- Suspension,Ineligibility and Voluntary tation of fact upon which reliance was placed when the de- Exclusion—Primary Covered Transactions partment or agency determined to enter into this transac- tion. If it is later determined that the prospective primary 1 The prospective primary participant certifies to the participant knowingly rendered an erroneous certification, best of its knowledge and belief that it and its principals in addition to other remedies available to the Federal Gov- ernment, the department or agency may terminate this a.Are not presently debarred, suspended, proposed transaction for cause of default. for debarment, declared ineligible, or voluntarily ex- cluded from covered transactions by any Federal de- d.The prospective primary participant shall provide im- partment or agency, mediate written notice to the department or agency to whom this proposal is submitted if any time the prospec b Have not within a 3-year period preceding this tive primary participant learns that its certification was er proposal been convicted of or had a civil judgment ren- roneous when submitted or has become erroneous by dered against them for commission of fraud or a criminal reason of changed circumstances. offense in connection with obtaining attempting to ob- tain, or performing a public (Federal State or local) e.The terms covered transaction, 'debarred, 'sus- transaction or contract under a public transaction, viola- pended, 'ineligible, 'lower tier covered transaction 'par tion of Federal or State antitrust statutes or commission ticipant," 'person 'primary covered transaction, 'princi- of embezzlement, theft, forgery bribery falsification or pal, 'proposal and 'voluntarily excluded, as used in this destruction of records, making false statements, or re- clause, have the meanings set out in the Definitions and ceiving stolen property- Coverage sections of rules implementing Executive Order 12549 You may contact the department or agency to c.Are not presently indicted for or otherwise criminally which this proposal is submitted for assistance in obtaining or civilly charged by a governmental entity (Federal a copy of those regulations. State or local) with commission of any of the offenses enumerated in paragraph 1 b of this certification, and f The prospective primary participant agrees by submit ting this proposal that, should the proposed covered d.Have not within a 3-year period preceding this ap- transaction be entered into, it shall not knowingly enter plication/proposal had one or more public transactions into any lower tier covered transaction with a person who (Federal, State or local)terminated for cause or default. is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction,un- 2 Where the prospective primary participant is unable less authorized by the department or agency entering into to certify to any of the statements in this certification, such this transaction. prospective participant shall attach an explanation to this proposal. g.The prospective primary participant further agrees by submitting this proposal that it will include the clause titled ««««« "Certification Regarding Debarment, Suspension Inel- igibility and Voluntary Exclusion-Lower Tier Covered Transaction," provided by the department or agency enter ing into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations F-11 2.Instructions for Certification Lower Tier Covered not required to exceed that which is normally possessed Transactions. by a prudent person in the ordinary course of business dealings. (Applicable to all subcontracts, purchase orders and other i. Except for transactions authorized under paragraph e lower tier transactions of$25,000 or more-49 CFR 29) of these instructions, if a participant in a covered transac a.By signing and submitting this proposal,the prospect tion knowingly enters into a lower tier covered transaction tive lower tier is providing the certification set out below with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, b The certification in this clause is a material represen- in addition to other remedies available to the Federal Gov- tation of fact upon which reliance was placed when this ernment, the department or agency with which this transaction was entered into. If it is later determined that transaction originated may pursue available remedies, the prospective lower tier participant knowingly rendered including suspension and/or debarment. an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debar Certification Regarding Debarment, ment. Suspension, Ineligibility and Voluntary c.The prospective lower tier participant shall provide Exclusion-Lower Tier Covered Transactions immediate written notice to the person to which this pro- The prospective lower tier participant certifies by pis submitted if at any time the prospective lower tier submission of this proposal,that neither it nor its principals is participant learns that its certification was erroneous by presently debarred, suspended, proposed for debarment, reason of changed circumstances. declared ineligible, or and submitting this bid or proposal to d.The terms covered transaction, 'debarred, 'sus- the best of his or her knowledge and belief that: pended, 'ineligible 'primary covered transaction, "para. No Federal- ticipant," 'person, 'principal," 'proposal, and "voluntarily be paid, by or on behalf of heriated uundends rsigned to ve been any persoaid or n i excluded, as used in this clause, have the meanings set for influencing or attempting to influence an officer or out in the Definitions and Coverage sections of rules employee of any Federal agency a Member of Congress an implementing Executive Order 12549. You may contact officer or employee of Congress, or an employee of a the person to which this proposal is submitted for assis- Member of Congress in connection with the awarding of any tante in obtaining a copy of those regulations. Federal contract, the making of any Federal grant, the e The prospective lower tier participant agrees by sub- making of any Federal loan, the entering into of any mitting this proposal that, should the proposed covered cooperative agreement, and the extension, continuation, transaction be entered into it shall not knowingly enter renewal, amendment, or modification of any Federal into any lower tier covered transaction with a person who contract,grant, loan,or cooperative agreement. is debarred, suspended, declared ineligible, or voluntarily b. If any funds other than Federal appropriated funds have excluded from participation in this covered transaction, un- been paid or will be paid to any person for influencing or at- less authorized by the department or agency with which tempting to influence an officer or employee of any Federal this transaction originated. agency a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in con- by submitting this proposal that it will include this clause nection with this Federal contract, titled 'Certification Regarding Debarment, Suspension, In- grant, loan, or cooperative agreement,the undersigned shall eligibility and Voluntary Exclusion-Lower Tier Covered complete and submit Standard Form-LLL, Disclosure Form Transaction without modification, in all lower tier covered to Report Lobbying, in accordance with its instructions. transactions and in all solicitations for lower tier covered 2.This certification is a material representation of fact transactions. upon which reliance was placed when this transaction was g A participant in a covered transaction may rely upon a made or entered into Submission of this certification is a certification of a prospective participant in a lower tier cov- prerequisite for making or entering into this transaction im- ered transaction that is not debarred, suspended, ineli- posed by 31 U S C 1352. Any person who fails to file the gible,or voluntarily excluded from the covered transaction, required certification shall be subject to a civil penalty of not unless it knows that the certification is erroneous. A par- less than $10,000 and not more than $100000 for each ticipant may decide the method and frequency by which it such failure. determines the eligibility of its principals. Each participant 3 The prospective participant also agrees by submitting may but is not required to check the Nonprocurement his or her bid or proposal that he or she shall require that the List. language of this certification be included in all lower tier sub- h. Nothing contained in the foregoing shall be construed contracts, which exceed $100,000 and that all such to require establishment of a system of records in order to recipients shall certify and disclose accordingly render in good faith the certification required by this clause. The knowledge and information of participant is F-12 Female and Minority Goals To comply with Section II 'Nondiscrimination, of 'Required Contract Provisions Federal-Aid Construction Contracts the following are goals for female and minority utilization goals for Federal-aid construction contracts and subcontracts that exceed$10 000, The nationwide goal for female utilization is 6.9 percent. The goals for minority utilization[45 Fed Reg 65984(10/3/1980))are as follows. Minority Utilization Goals Economic Area Goal Percent 174 Redding CA. Non-SMSA Counties: 68 CA Lassen, CA Modoc;CA Plumas, CA Shasta;CA Siski ou;CA Tehema 175 Eureka,CA Non-SMSA Counties: 66 CA Del Norte; CA Humboldt;CA Trinity 176 San Francisco-Oakland-San Jose CA. SMSA Counties. 7120 Salinas-Seaside-Monterey CA 289 CA Monterey 7360 San Francisco-Oakland 25.6 CA Alameda;CA Contra Costa, CA Marin; CA San Francisco;CA San Mateo 7400 San Jose CA CA Santa Clara, CA 196 7485 Santa Cruz, CA CA Santa Cruz 149 7500 Santa Rosa CA Sonoma 91 8720 Vallejo-Fairfield-Napa,CA CA Napa,CA Solano 171 Non-SMSA Counties: CA Lake,CA Mendocino; CA San Benito 23.2 177 Sacramento, CA. SMSA Counties- 6920 Sacramento CA 161 CA Placer- CA Sacramento;CA Yolo Non-SMSA Counties 143 CA Butte;CA Colusa;CA EI Dorado;CA Glenn-CA Nevada;CA Sierra;CA Suffer- CA Yuba F-13 178 Stockton-Modesto, CA. SMSA Counties: 5170 Modesto,CA 12.3 CA Stanislaus 8120 Stockton,CA 24.3 CA San Joaquin Non-SMSA Counties 198 CA Alpine, CA Amador; CA Calaveras,CA Mariposa,CA Merced; CA Toulumne 179 Fresno-Bakersfield CA SMSA Counties. 0680 Bakersfield,CA 191 CA Kern 2840 Fresno, CA 261 CA Fresno Non-SMSA Counties. 236 CA Kings; CA Madera,CA Tulare 180 Los Angeles, CA. SMSA Counties- 0360 Anaheim-Santa Ana-Garden Grove, CA 11 9 CA Orange 4480 Los Angeles-Long Beach CA 283 CA Los Angeles 6000 Oxnard-Simi Valley-Ventura,CA 21.5 CA Ventura 6780 Riverside-San Bernardino-Ontario CA 190 CA Riverside; CA San Bernardino 7480 Santa Barbara-Santa Maria-Lompoc, CA 197 CA Santa Barbara Non-SMSA Counties 246 CA In o, CA Mono CA San Luis Obispo 181 San Diego CA. SMSA Counties 7320 San Diego CA 169 CA San Diego Non-SMSA Counties 18.2 CA Imperial For each July during which work is performed under the contract,you and each non-material-supplier subcontractor with a subcontract of$10 000 or more must complete Form FHWA PR-1391 (Appendix C to 23 CFR 230) Submit the forms by August 15 Training This section applies if a number of trainees or apprentices is specified in the special provisions. As part of your equal opportunity affirmative action program, provide on-the-job training to develop full journeymen in the types of trades or job classifications involved. You have primary responsibility for meeting this training requirement. If you subcontract a contract part, determine how many trainees or apprentices are to be trained by the subcontractor Include these training requirements in your subcontract. Where feasible,25 percent of apprentices or trainees in each occupation must be in their 1st year of apprenticeship or training Distribute the number of apprentices or trainees among the work classifications on the basis of your needs and the availability of journeymen in the various classifications within a reasonable recruitment area. F-14 Before starting work,submit to the City of Atascadero; 1 Number of apprentices or trainees to be trained for each classification 2. Training program to be used 3. Training starting date for each classification Obtain the City of Atascadero approval for this submitted information before you start work.The City of Atascadero credits you for each apprentice or trainee you employ on the work who is currently enrolled or becomes enrolled in an approved program The primary objective of this section is to train and upgrade minorities and women toward journeymen status Make every effort to enroll minority and women apprentices or trainees such as conducting systematic and direct recruitment through public and private sources likely to yield minority and women apprentices or trainees,to the extent they are available within a reasonable recruitment area. Show that you have made the efforts. In making these efforts,do not discriminate against any applicant for training. Do not employ as an apprentice or trainee an employee: 1 In any classification in which the employee has successfully completed a training course leading to journeyman status or in which the employee has been employed as a journeyman 2. Who is not registered in a program approved by the US Department of Labor Bureau of Apprenticeship and Training Ask the employee if the employee has successfully completed a training course leading to journeyman status or has been employed as a journeyman. Your records must show the employee's answers to the questions. In your training program establish the minimum length and training type for each classification. The City of Atascadero and FHWA approves a program if one of the following is met: 1 It is calculated to. 1 1 Meet the your equal employment opportunity responsibilities 1.2. Qualify the average apprentice or trainee for journeyman status in the classification involved by the end of the training period 2. It is registered with the U S Department of Labor Bureau of Apprenticeship and Training and it is administered in a way consistent with the equal employment responsibilities of federal-aid highway construction contracts Obtain the State's approval for your training program before you start work involving the classification covered by the program. Provide training in the construction crafts,not in clerk-typist or secretarial-type positions Training is allowed in lower level management positions such as office engineers,estimators,and timekeepers if the training is oriented toward construction applications.Training is allowed in the laborer classification if significant and meaningful training is provided and approved by the division office.Off-site training is allowed if the training is an integral part of an approved training program and does not make up a significant part of the overall training. F-15 The City/County of reimburses you 80 cents per hour of training given an employee on this contract under an approved training program. 1 For on-site training 2. For off-site training if the apprentice or trainee is currently employed on a federal-aid project and you do at least one of the following. 21 Contribute to the cost of the training 2.2. Provide the instruction to the apprentice or trainee 2.3. Pay the apprentice's or trainee's wages during the off-site training period 3. If you comply this section Each apprentice or trainee must: 1 Begin training on the project as soon as feasible after the start of work involving the apprentice's or trainee s skill 2. Remain on the project as long as training opportunities exist in the apprentice's or trainee's work classification or until the apprentice or trainee has completed the training program Furnish the apprentice or trainee- 1 Copy of the program you will comply with in providing the training 2. Certification showing the type and length of training satisfactorily completed Maintain records and submit reports documenting your performance under this section. 6586151 DRAFT 06/4/014.33 PM F-16 EXHIBIT G Exhibit IOF- Certification of Consultant, Commissions & Fees CERTIFICATION OF CONSULTANT I HEREBY CERTIFY that I am the President and duly authorized representative of the firm of Ground Up Design& Const. Management, Inc.,whose address is P O Box 1583 Paso Robles, CA 93447 , and that, except as hereby expressly stated, neither I nor the above firm that I represent have (a) employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person(other than a bona fide employee working solely for me or the above consultant)to solicit or secure this agreement; nor (b) agreed, as an express or implied condition for obtaining this contract,to employ or retain the services of any firm or person in connection with carrying out the agreement; nor (c) paid, or agreed to pay, to any firm, organization or person(other than a bona fide employee working solely for me or the above consultant) any fee, contribution, donation, or consideration of any kind, foror in connection with, procuring or carrying out this agreement. I acknowledge that this Certificate is to be made available to the California Department of Transportation (Caltrans) in connection with this agreement involving participation of Federal-aid Highway funds, and is subject to applicable state and federal laws, both criminal and civil /4/7//11'0 �� a Robert Carnes, President Ground Up Design& Const. Management, Inc 658615 1 DRAFT 06/4/014.33 PM G-1 j s EXHIBIT H Exhibit 10G-Certification of Local Agency CERTIFICATION OF LOCAL AGENCY I HEREBY CERTIFY that I am the Public Works Director of the City of Atascadero, and that the consulting firm of Ground Up Design and Construction Management, or its representative has not been required (except as herein expressly stated),directly or indirectly, as an express or implied condition in connection with obtaining or carrying out this Agreement to (a) employ, retain, agree to employ or retain, any firm or person,or (b) pay or agree to pay, to any firm, person or organization, any fee, contribution, donation, or consideration of any kind. I acknowledge that this Certificate is to be made available to the California Department of Transportation(Caltrans) in connection with this Agreement involving participation of federal- aid highway funds, and is subject to applicable state and federal laws, both criminal and civil Z - 1 D .- 1 0J,AL —r-- Date Russell S Thompso Public Works Director 6586151 DRAFT 06/4/014.3 3 PM H-1 r n n. r in. i iaia �r A 1E i 9I—j CITY OF ATASCADERO 6907 El CAMINO REAL,ATASCADERO CA 93422 EXHIBIT I Exhibit 10-I Notice to Proposers DBE Information NOTICE TO PROPOSERS DISADVANTAGED BUSINESS ENTERPRISE INFORMATION The City of Atascadero has not established an Underutilized goal for this Agreement. However, proposers are encouraged to obtain DBE participation for this Agreement. 1. TERMS AS USED IN THIS DOCUMENT • The term"Disadvantaged Business Enterprise"or"DBE"means a for-profit small business concern owned and controlled by a socially and economically disadvantaged person(s)as defined in Title 49, Part 26 5,Code of Federal Regulations (CFR) • The term"Underutilized Disadvantaged Business Enterprise"or"UDBE " DBE classes that have been determined in the 2007 Caltrans Disparity Study to have a statistically significant disparity in their utilization in previously awarded transportation contracts. UDBEs include African Americans,Native Americans,Asian-Pacific Americans, and Women. • The term "Agreement"also means "Contract." • Agency also means the local entity entering into this contract with the Contractor or Consultant. • The term"Small Business" or"SB"is as defined in 49 CFR 26 65 2. AUTHORITY AND RESPONSIBILITY A. DBEs and other small businesses are strongly encouraged to participate in the performance of Agreements financed in whole or in part with federal funds(See 49 CFR 26,"Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs") The Contractor should ensure that DBEs and other small businesses have the opportunity to participate in the performance of the work that is the subject of this solicitation and should take all necessary and reasonable steps for this assurance.The proposer shall not discriminate on the basis of race,color, national origin, or sex in the award and performance of subcontracts. B Proposers are encouraged to use services offered by financial institutions owned and controlled by DBEs 101-1 6586151 DRAFT 06/4/014.33 PM I-� � 1 3. SUBMISSION OF UDBE AND DBE INFORMATION If there is a UDBE goal on the contract,a"Local Agency Proposer UDBE Commitment(Consultant Contract)"(Exhibit 10-01)form shall be included in the Request for Proposal In order for a proposer to be considered responsible and responsive,the proposer must make good faith efforts to meet the goal established for the contract, If the goal is not met,the proposer must document adequate good faith efforts Only UDBE participation will be counted towards the contract goal,however,all DBE participation shall be collected and reported A"Local Agency Proposer DBE Information (Consultant Contract)"(Exhibit 10-02)form shall be included with the Request for Proposal The purpose of the form is to collect data required under 49 CFR 26 For contracts with UDBE goals, this form collects DBE participation by DBEs owned by Hispanic American and Subcontinent Asian Americans males(persons whose origin are from India, Pakistan, Bangladesh,Bhutan, Maldives Islands,Nepal or Sri Lanka). For contracts with no goals,this form collects information on all DBEs, including UDBEs. Even if no DBE participation will be reported,the successful proposer must execute and return the form 4. DBE PARTICIPATION GENERAL INFORMATION It is the proposer's responsibility to be fully informed regarding the requirements of 49 CFR,Part 26,and the Department's DBE program developed pursuant to the 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 contractor subcontractor,point venture partner, as a vendor of material or supplies,or as a trucking company C A UDBE proposer not proposing as a joint venture with a non-DBE, will be required to document one or a combination of the following. 1 The proposer is a UDBE and will meet the goal by performing work with its own forces. 2 The proposer will meet the goal through work performed by UDBE subcontractors, suppliers or trucking companies. 3 The proposer,prior to proposing,made adequate good faith efforts to meet the goal D 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. E. 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. 101-2 I-2 b F The proposer shall list only one subcontractor for each portion of work as defined in their proposal and all DBE subcontractors should be listed in the bid/cost proposal list of subcontractors. G A prime contractor who is a certified DBE is eligible to claim all of the work in the Agreement toward the DBE participation except that portion of the work to be performed by non-DBE subcontractors. 5. RESOURCES A. The CUCP database includes the certified DBEs from all certifying agencies participating in the CUCP If you believe a firm is certified that cannot be located on the database, please contact the Caltrans Office of Certification toll free number 1-866-810-6346 for assistance. Proposer may call (916)440-0539 for web or download assistance. B Access the CUCP database from the Department of Transportation,Civil Rights, Business Enterprise Program web site at: http://www.dot.ca.gov/hq/bep/ • Click on the link in the left menu titled Disadvantaged Business Enterprise • Click on Search for a DBE Firm link • Click on Access to the DBE pueryforrn located on the first line in the center of the page • Searches can be performed by one or more criteria • Follow instructions on the screen C How to Obtain a List of Certified DBEs without Internet Access D DBE Directory- If you do not have Internet access,Caltrans also publishes a directory of certified DBE firms extracted from the online database A copy of the directory of certified DBEs may be ordered at: http://caltrans-opac.ca.gQv/publicat.htm 6. MATERIALS OR SUPPLIES PURCHASED FROM DBES COUNT TOWARDS DBE CREDIT,AND IF A DBE IS ALSO A UDBE,PURCHASES WiLL COUNT TOWARDS THE UDBE GOAL UNDER THE FOLLOWING CONDITIONS A. If the materials or supplies are obtained from a DBE manufacturer,count 100 percent of the cost of the materials or supplies. A DBE manufacturer is a firm that operates or maintains a factory, or establishment that produces on the premises the materials,supplies, articles,or equipment required under the Agreement and of the general character described by the specifications. B If the materials or supplies purchased from a DBE regular dealer,count 60 percent of the cost of the materials or supplies. A DBE regular dealer is a firm that owns,operates or maintains a store, warehouse,or other establishment in which the materials,supplies, articles or equipment of the general character described by the specifications and required under the Agreement are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. To be a DBE regular dealer,the firm must be an established,regular business that engages,as its principal business and under its own name, in the purchase and sale or lease of the products in question A person may be a DBE regular dealer in such bulk items as petroleum products,steel,cement, gravel,stone or asphalt without owning, operating or maintaining a place of business provided in this section. 10I-3 I-3 C If the person both owns and operates distribution equipment for the products, any supplementing of regular dealers own distribution equipment shall be, by a long-term lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers, brokers, manufacturers' representatives, or other persons who arrange or expedite transactions are not UDBE regular dealers within the meaning of this section. D Materials or supplies purchased from a DBE,which is neither a manufacturer nor a regular dealer,will be limited to the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies,or fees or transportation charges for the delivery of materials or supplies required on the fob site,provided the fees are reasonable and not excessive as compared with fees charged for similar services. 7 FOR DBE TRUCKING COMPANIES:CREDIT FOR DBEs WILL COUNT TOWARDS DBE CREDIT,AND IF A DBE Is A UDBE,CREDIT WILL COUNT TOWARDS THE UDBE GOAL UNDER THE FOLLOWING CONDITIONS. A. The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular Agreement,and there cannot be a contrived arrangement for the purpose of meeting the UDBE goal. B The DBE must itself own and operate at least one fully licensed, insured,and operational truck used on the Agreement. C The DBE receives credit for the total value of the transportation services it provides on the Agreement 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. A DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the Agreement. E. The DBE may also lease trucks from a non-DBE firm, including an owner-operator A 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.A DBE does not receive credit for the total value of the transportation services provided by the lessee, since these services are not provided by the DBE. F For the purposes of this Section D,a lease must indicate that the DBE has exclusive use 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,as 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. 10I-4 I-4 EXHIBIT J Exhibit 10-J Standard Agreement for Subcontractor/DBE Participation 1 Subcontractors A. Nothing contained in this Agreement or otherwise,shall create any contractual relation between the Agency and any subcontractors,and no subcontract shall relieve the Contractor of his/her responsibilities and obligations hereunder The Contractor agrees to be as fully responsible to the Agency for the acts and omissions of its subcontractors 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 Contractor The Contractor's obligation to pay its subcontractors is an independent obligation from the Agency's obligation to make payments to the Contractor B Any subcontract in excess of$25,000,entered into as a result of this Agreement, shall contain all the provisions stipulated in this Agreement to be applicable to subcontractors. C Contractor shall pay its subcontractors within ten (10)calendar days from receipt of each payment made to the Contractor by the Agency D Any substitution of subcontractors must be approved in writing by the Agency's Contract Manager in advance of assigning work to a substitute subcontractor 2 Disadvantaged Business Enterprise(DBE) Participation A. This Agreement is subject to 49 CFR,Part 26 entitled"Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs."Proposers who obtain DBE participation on this contract will assist Caltrans in meeting its federally mandated statewide overall DBE goal B If the contract has an underutilized DBE(UDBE)goal,the Consultant must meet the UDBE goal by committing UDBE participation or document a good faith effort to meet the goal If a UDBE subconsultant is unable to perform,the Consultant must make a good faith effort to replace him/her with another UDBE subconsultant, if the goal is not otherwise met.A UDBE is a firm meeting the definition of a DBE as specified in 49 CFR and is one of the following groups. African Americans,Native Americans,Asian-Pacific Americans, or Women C DBEs and other small businesses,as defined in 49 CFR,Part 26 are encouraged to participate in the performance of agreements financed in whole or in part with federal funds The Consultant, sub-recipient or subconsultant shall not discriminate on the basis of race,color,national origin,or sex in the performance of this Agreement.The Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of US DOT-assisted agreements. Failure by the Consultant to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as the recipient deems appropriate. D Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this section loi-1 6586151 DRAFT 06/4/014.33 PM J-1 3 Performance of DBE Consultant and other DBE Subconsultants/Suppliers A DBE performs a commercially useful function 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 commercially useful function,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 To determine whether a DBE is performing a commercially useful function, evaluate the amount of work subcontracted, industry practices;whether the amount the firm is to be paid under the Agreement is commensurate with the work it is actually performing; and other relevant factors. A DBE does not perform a commercially useful function 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. If a DBE does not perform or exercise responsibility for at least 30 percent 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 commercially useful function 4 Prompt Payment of Funds Withheld to Subcontractors A. No retainage will be held by the Agency from progress payments due the prime consultant. Any retainage held by the prime consultant or subconsultants from progress payments due subconsultants shall be promptly paid in full to subconsultants within 30 days after the subconsultant's work is satisfactorily completed. Federal law(49 CFR26.29)requires that any delay or postponement of payment over the 30 days may take place only for good cause and with the Agency's prior written approval. Any violation of this provision shall subject the violating prime consultant or subconsultant to the penalties, sanctions and other remedies specified in Section 7108.5 of the Business and Professions Code.These requirements shall not be construed to limit or impair any contractual, administrative,orjudicial remedies,otherwise available to the prime consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the prime consultant, deficient subconsultant performance,or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE prime consultant and subconsultants. B Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this section. 5. DBE Records A. The Consultant shall maintain records of materials purchased and/or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor,regardless of tier The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime consultants shall also show the date of work performed by their own forces along with the corresponding dollar value of the work. B Upon completion of the Agreement,a summary of these records shall be prepared and submitted on the form entitled,"Final Report-Utilization of Disadvantaged Business Enterprise(DBE),First-Tier Subcontractors,"CEM-2402F(Exhibit 17-F, Chapter 17,of the LAPM),certified correct by the Consultant or the Consultant's authorized representative and shall be furnished to the Contract Manager with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in 25%of the dollar value of the invoice being withheld from payment until the form is submitted. The 658615.1 DRAFT 06/4/014.33 PM J-2 C amount will be returned to the Consultant when a satisfactory"Final Report-Utilization of Disadvantaged Business Enterprises(DBE), First-Tier Subcontractors" is submitted to the Contract Manager 1) Prior to the fifteenth of each month,the Consultant shall submit documentation to the Agency's Contract Manager showing the amount paid to DBE trucking companies.The Consultant shall also obtain and submit documentation to the Agency's Contract Manager 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 Consultant may count only the fee or commission the DBE receives as a result of the lease arrangement. 2)The Consultant shall also submit to the Agency's Contract Manager documentation showing the truck number,name of owner, California Highway Patrol CA number,and if applicable,the DBE certification number of the truck owner for all trucks used during that month. This documentation shall be submitted on the Caltrans"Months DBE Trucking Verification, CEM-2404(F)form provided to the Consultant by the Agency's Contract Manager 6. DBE Certification and Decertification Status If a DBE subconsultant is decertified during the life of the Agreement,the decertified subconsultant shall notify the 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 the Consultant in writing with the date of certification. Any changes should be reported to the Agency's Contract Manager within 30 days. Materials or supplies purchased from DBEs will count towards DBE credit,and if a DBE is also a UDBE, purchases will count towards the UDBE goal under the following conditions A. If the materials or supplies are obtained from a DBE manufacturer, 100%of the cost of the materials or supplies will count toward the DBE participation A DBE manufacturer is a firm that operates or maintains a factory or establishment that produces on the premises the materials, supplies,articles,or equipment required under the Agreement and of the general character described by the specifications. B If the materials or supplies purchased from a DBE regular dealer,count 60%of the cost of the materials or supplies toward DBE goals. A regular dealer is a firm that owns,operates or maintains a store, warehouse,or other establishment in which the materials, supplies, articles or equipment of the general character described by the specifications and required under the Agreement, are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. To be a regular dealer, the firm must be an established, regular business that engages,as its principal business and under its own name, in the purchase and sale or lease of the products in question. A person may be a regular dealer in such bulk items as petroleum products, steel,cement, gravel,stone or asphalt without owning,operating or maintaining a place of business provided in this section C If the person both owns and operates distribution equipment for the products,any supplementing of regular dealers' own distribution equipment, shall be by a long-term lease agreement and not an ad hoc or Agreement-by-Agreement basis.Packagers,brokers,manufacturers' representatives,or other persons who arrange or expedite transactions are not regular dealers within the meaning of this section. Materials or supplies purchased from a DBE,which is neither a manufacturer nor a regular dealer,will be limited to the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies,or fees or transportation charges for the delivery of materials or supplies required on the job site, provided the fees are reasonable and not excessive as compared with fees charged for similar services. 658615 l DRAFT 0614/014.33 PM J-3